Can a for-profit company run a whole-body (willed-body) donation program in Texas?

Plain-English summary

When someone donates their whole body to science in Texas, the law channels that gift through a state agency called the Anatomical Board of Texas. The Board's chairman asked the AG whether a commercial, for-profit company, using Science Care Corporation as the example, could set up a Texas facility to receive whole-body donations and then redistribute the tissue for medical research and education.

The AG worked through two chapters of the Health and Safety Code. Chapter 691, which created the Anatomical Board, says donated whole bodies may go only to "the [B]oard, a medical or dental school, or another donee authorized by the [B]oard." Because the company was not a medical school, a dental school, or a Board-authorized donee, chapter 691's plain language did not let it receive whole-body donations.

Chapter 692A, the Revised Uniform Anatomical Gift Act, was the other route. It lets an "eye bank or tissue bank" receive an anatomical gift, and it defines a "tissue bank" as a person "licensed, accredited, or regulated under federal or state law" to recover, screen, test, process, store, or distribute tissue. The company argued it met that definition because it was accredited by the American Association of Tissue Banks and licensed in other states, including a New York tissue-bank license. The AG agreed on the key legal point: chapter 692A defines "state" to mean "a state of the United States," and it directs courts to promote uniformity among states. So "state law" in the tissue-bank definition is not limited to Texas law. An entity licensed as a tissue bank by any state is a tissue bank in Texas. The AG did not decide as a fact whether the company's particular New York license actually covered all the listed activities, but held that if it did, the company was a tissue bank under chapter 692A and could operate in Texas as that chapter allows.

The limit the AG stressed comes from subsection 692A.011(a)(4): a tissue bank's use of "a gift of a whole body must be coordinated through the Anatomical Board." Reading "coordinated" by its ordinary dictionary meaning, the AG explained that the Legislature gave the Board the job of managing whole-body donations across Texas, including making sure medical and forensic institutions have an adequate supply of bodies, inspecting and approving recipients, and revoking authorization for improper use. So a tissue bank that takes whole-body donations remains subject to the Board's oversight, and any use of those donations, including a transfer, has to be coordinated through the Board. The AG noted in a footnote that some institutions worried for-profit whole-body programs could cause shortages of teaching and research material, but said that policy concern was for the Legislature; a court cannot rewrite the plain words of the statute.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

For the Anatomical Board, which posed the question, the opinion confirmed two things at once: it could not simply exclude a commercial operator on the theory that chapter 691 lists only schools and Board-authorized donees, because chapter 692A opened a separate door for tissue banks; but it retained its coordinating authority over every whole-body donation that flowed through such a company. For a commercial willed-body operator at the time, the opinion meant that out-of-state tissue-bank licensure could be enough to operate in Texas under chapter 692A, while whole-body donations specifically had to run through the Board rather than around it. The AG did not resolve whether the company's New York provisional license in fact covered the full set of tissue-bank activities; that factual question was left open.

Common questions

Q: Who can receive a whole-body donation in Texas under chapter 691?
A: Under section 691.028(a), only the Anatomical Board, a medical or dental school, or another donee the Board has authorized. A company that is none of those cannot receive whole-body donations under chapter 691.

Q: How can a commercial company still operate, then?
A: Through chapter 692A, the Revised Uniform Anatomical Gift Act, if it qualifies as a "tissue bank," which is defined as an entity licensed, accredited, or regulated under federal or state law for specified tissue activities.

Q: Does the company have to be licensed in Texas specifically?
A: No. The AG read chapter 692A's definition of "state" to mean any U.S. state, so a tissue-bank license from another state (here, New York) can satisfy the definition.

Q: What oversight stays in place for whole bodies?
A: Under subsection 692A.011(a)(4), the use of a gift of a whole body must be coordinated through the Anatomical Board, so the Board keeps oversight of whole-body donations and any transfer of them.

Q: Did the AG decide whether Science Care's license was sufficient?
A: No. The AG expressly did not decide whether the company's New York provisional license actually covered all the listed tissue-bank activities; that was a fact question.

Background and statutory framework

Two chapters of the Texas Health and Safety Code govern body donation for science, education, and research (sections 691.001-.035 and 692A.001-.023). Chapter 691 created the Anatomical Board of Texas and directs it to "distribute bodies and anatomical specimens to institutions and other persons authorized to receive them" (section 691.022(a)), with authorized recipients limited under section 691.028(a) to the Board, a medical or dental school, or another Board-authorized donee; the Board also inspects and approves recipients and may suspend or revoke authorization (section 691.034(a), (c)) and may redistribute a donated body to another institution (section 691.030(a), (d)). Chapter 692A, the Revised Uniform Anatomical Gift Act, lists authorized donees in section 692A.011(a), including an eye bank or tissue bank, "except that use of a gift of a whole body must be coordinated through the Anatomical Board" (section 692A.011(a)(4)). "Tissue bank" is defined in section 692A.002(35), "tissue" in section 692A.002(34), and "state" in section 692A.002(31) as "a state of the United States"; section 692A.022 directs that consideration be given to uniformity among states. The AG applied the plain-meaning rule of Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015), used dictionary meaning per City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252 (Tex. 2018), described the Board's role with Perna v. Hogan, 162 S.W.3d 648 (Tex. App.-Houston [14th Dist.] 2005, no pet.), and declined to rewrite the statute for policy reasons, citing R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670 (Tex. 1968) and McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003). New York's "nontransplant anatomic bank" framework appears at N.Y. Comp. Codes R. & Regs. tit. 10, §§ 52-1.1(r), 52-2.2.

Citations and references

Statutory and regulatory provisions:

• Tex. Health & Safety Code ch. 691 (§§ 691.022, 691.028, 691.030, 691.033, 691.034)
• Tex. Health & Safety Code ch. 692A (§§ 692A.002, 692A.011, 692A.015, 692A.022)
• 25 Tex. Admin. Code § 479.1(a)
• N.Y. Comp. Codes R. & Regs. tit. 10, §§ 52-1.1(r), 52-2.2

Cases:

• Perna v. Hogan, 162 S.W.3d 648, 651 (Tex. App.-Houston [14th Dist.] 2005, no pet.)
• Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)
• City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 262 (Tex. 2018)
• R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670, 672 (Tex. 1968)
• McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0279
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0279.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 4, 2019

John K. Hubbard, Ph.D., PT
Chairman
Anatomical Board of the State of Texas
Post Office Box 195895
Dallas, Texas 75219

Opinion No. KP-0279

Re: Authority of a commercial entity to operate a willed-body program in Texas (RQ-0292-KP)

Dear Dr. Hubbard:

You ask whether a commercial entity, such as Science Care Corporation ("Science Care"), may operate a willed-body program in Texas.[1] Science Care "wishes to establish a facility in Texas to receive whole body donations and redistribute the tissue for medical research and education."[2] You question whether state law authorizes Science Care to do so. Request Letter at 1, 3-4.

Two chapters in the Health and Safety Code, chapters 691 and 692A, govern the donation of a body for science, education, and research, and we consider each in turn. See TEX. HEALTH & SAFETY CODE §§ 691.001-.035, 692A.001-.023. Chapter 691, which establishes the Anatomical Board of Texas ("Board"), directs the Board to "distribute bodies and anatomical specimens to institutions and other persons authorized to receive them." Id. § 691.022(a); see Perna v. Hogan, 162 S.W.3d 648, 651 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (describing the Board as "the agency responsible for overseeing the Willed Body Program in Texas"). Chapter 691 identifies those institutions and persons authorized to receive donated bodies as "the [B]oard, a medical or dental school, or another donee authorized by the [B]oard." TEX. HEALTH & SAFETY CODE § 691.028(a); see also id. §§ 691.033(a) (providing that a "school, college, or person designated by the board" may use a donated body or anatomical specimen distributed under chapter 691), 691.034(a) (authorizing Board to inspect and approve institutions and other persons for the receipt and use of bodies); 25 TEX. ADMIN. CODE § 479.1(a) (Anatomical Bd. of Tex., Institutions Authorized to Receive and Hold Bodies). As Science Care is not a medical school, dental school, or a Board-authorized donee, the plain language of section 691.028 does not authorize it to receive a donation of a whole body under chapter 691. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) ("Our objective in construing a statute is to give effect to the Legislature's intent, which requires us to first look to the statute's plain language.").

Chapter 692A, the Revised Uniform Anatomical Gift Act, governs the donation of anatomical gifts.[3] TEX. HEALTH & SAFETY CODE §§ 692A.001, .003. Section 692A.011 lists the entities and persons who may receive an anatomical gift. Id. § 692A.011(a)(1)-(7). Relevant here, subsection 692A.011(a)(4) identifies as an authorized donee "an eye bank or tissue bank, except that use of a gift of a whole body must be coordinated through the Anatomical Board." Id. § 692A.011(a)(4). Chapter 692A defines a "tissue bank" as a "person licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue." Id. § 692A.002(35); see also id. § 692A.002(34) (defining "tissue" to mean "a portion of the human body other than an organ or an eye"). We thus consider whether Science Care is a tissue bank.

You tell us that Science Care does not "solicit parts of bodies or specific organs for donations" but obtains "human tissue from whole body donations." Request Letter at 2 (stating that "Science Care is a whole-body donation organization and not a tissue bank"). Science Care asserts that it satisfies the definition of "tissue bank" in two ways: (1) through its accreditation by the American Association of Tissue Banks ("AATB"); and (2) because it is licensed and regulated under laws of other states. Science Care Brief at 5-6 (pointing out that Illinois and Florida define "tissue bank" as an entity accredited by the AATB and stating that "Science Care is licensed by the State of New York Department of Health as a tissue bank, [and] is therefore both accredited and licensed under state law as a tissue bank").

Science Care submits with its brief copies of its "Provisional License for Tissue Bank Operation" issued by the New York State Department of Health. Id. at Exhibit E. The copies of the licenses submitted indicate that New York approved Science Care as a nontransplant anatomic bank. See id. Under the relevant New York regulations, a "nontransplant anatomic bank" is a "person or facility that solicits, retrieves, ... preserves, transports, allocates, distributes, acquires, processes, stores or arranges for the storage of nontransplant anatomic parts, including whole bodies, body segments, organs or tissues from living or deceased donors, for education and/or research purposes specifically authorized by" specified provisions of New York law. N.Y. COMP. CODES R. & REGS. tit. 10, § 52-1.1(r). In defining a "tissue bank" in chapter 692A to include licensure, accreditation, or regulation under state law, the Texas Legislature did not intend for state law to mean only Texas state law. Instead, the Legislature specifically defined "state" for purposes of chapter 692A to mean "a state of the United States." TEX. HEALTH & SAFETY CODE § 692A.002(31); see also id. § 692A.022 ("In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to the subject matter of this chapter among states that enact a law substantially similar to this chapter."). An entity engaged in the "recovery, screening, testing, processing, storage, or distribution of tissue" that is "licensed, accredited, or regulated" under the law of any state to so act is a tissue bank in Texas. Id. § 692A.002(31), (35). Accordingly, to the extent that it is licensed by New York for the "recovery, screening, testing, processing, storage, and distribution of tissue," a question we do not decide,[4] Science Care is a tissue bank under chapter 692A. Id.

Yet, the Legislature limits a tissue bank's use of a gift of a whole body. Id. § 692A.011(a)(4). Subsection 692A.011(a)(4) provides that the use of a gift of a whole body to a tissue bank must "be coordinated through" the Board. Id. § 692A.011(a)(4). Under its rulemaking authority, the Board provides that a tissue bank receiving a whole-body donation "may only transfer those donations to institutions in approved categories." 25 TEX. ADMIN. CODE § 479.1(a) (Anatomical Bd. of Tex., Institutions Authorized to Receive and Hold Bodies). Chapter 692A does not define the term "coordinated," but its common meaning is to "bring the different elements of (a complex activity or organization) into a relationship that will ensure efficiency or harmony." NEW OXFORD ENGLISH DICTIONARY 383 (3rd ed. 2010); City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 262 (Tex. 2018) ("To determine a statutory term's common, ordinary meaning, we typically look first to [its] dictionary definitions ...." (quotation marks omitted)). Here, the complex activity to be coordinated by the Board includes ensuring the various medical and forensic science institutions in Texas have an adequate supply of bodies for education and research.[5] Cf. TEX. HEALTH & SAFETY CODE § 692A.015 (requiring hospitals in the State to "enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts [to ensure] its maintenance of an effective donation system in order to maximize organ, tissue, and eye donation"). In this task, the Legislature gives the Board exclusive authority to distribute bodies and anatomical specimens to authorized recipients and requires it to do so in a respectful manner. Id. §§ 691.022(a) ("The board shall distribute ...."), 691.022(b) ("The board shall adopt rules to ensure that each body ... is treated with respect."). Further, the Board has express authority to take a body donated to one of the particular institutions listed in chapter 691 and redistribute it to another institution. Id. § 691.030(a), (d). Moreover, the Legislature expressed its intent that, but for a few specific exceptions, the Board is the "donee of gifts of bodies ... made for the purpose of education or research." Id. § 692A.011(b). The Board is the authority that approves whole-body recipients other than those identified in chapter 691 and 692A. See id. §§ 691.030(a), .028(a). Lastly, the Board is charged with inspecting and approving facilities of an authorized recipient as well as suspending or revoking an entity's authorization to receive bodies if the Board determines improper use of a body. Id. § 691.034(a), (c). These provisions embody the Legislature's intent to have the Board coordinate whole-body donations in Texas.

For these reasons, to the extent Science Care is a tissue bank under Health and Safety Code chapter 692A, it may operate in Texas as allowed by that chapter. Yet, to the extent it receives whole-body donations, it is subject to oversight by the Board, and any use of whole-body donations, including their transfer, must be coordinated through the Board.

SUMMARY

Chapter 692A of the Health and Safety Code defines a "tissue bank" to include an entity licensed under state law to engage in specified activities with respect to donated bodies or anatomical specimens. For purposes of chapter 692A, the Texas Legislature defined "state" broadly to include any state. Thus, to the extent Science Care is licensed as a tissue bank by another state, it is a tissue bank under chapter 692A, and it may operate in Texas as allowed by that chapter. Pursuant to chapter 692A, to the extent Science Care receives whole-body donations, it is subject to oversight by the Anatomical Board of Texas, and its use of a whole-body donation, including a transfer, must be coordinated through the Board.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from John K. Hubbard, Ph.D., PT, Chairman, Tex. Anatomical Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 24, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Brief from Denise Webb Glass, Norton Rose Fulbright at 1, 4 (July 24, 2019), (hereinafter "Science Care Brief") (on file with the Op. Comm.).

[3] Chapter 692A defines "anatomical gift" as "a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education." TEX. HEALTH & SAFETY CODE § 692A.002(3).

[4] The licenses proffered by Science Care are identified as provisional licenses. See Science Care Brief at Exhibit E. Under the New York regulations, the New York Department of Health "may issue a provisional license which shall be valid for a period determined by the department to be sufficient to enable the department to assess the compliance of the ... nontransplant anatomic bank" with the regulations. N.Y. COMP. CODES R. & REGS. tit. 10, § 52-2.2(a). They also provide that a nontransplant anatomic bank "initially applying for a license may be issued a provisional license" merely upon the submission of a complete application. Id. § 52-2.2(c), cf. id. § 52-2.2(b) (requiring a tissue bank initially applying for a license to be issued a provisional license only if it meets certain conditions).

[5] In briefing submitted to this office, involved institutions inform us that allowing for-profit commercial entities to operate a whole-body donation program in Texas "has the potential to cause a shortage of anatomical training and research resources, negatively impacting the advancement of the medical profession and sciences in Texas." Brief from Daniel H. Sharphorn, Vice Chancellor & Gen. Counsel, The Univ. of Tex. System at 1 (Aug. 1, 2019) (on file with the Op. Comm.). While this may be a legitimate concern for the Legislature to consider, this office, like a court, cannot disregard the plain language of the statute or insert words into the statute to foreclose that possibility. See R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670, 672 (Tex. 1968) (stating that because courts "are not the law-making body," they "are not responsible for omissions in legislation" but only for interpreting the statute as written (quotation marks omitted)); see also McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003) (stating that a court's role "is not to second-guess" the Legislature's policy choices informing a statute "or to weigh the effectiveness of their results"). Here, the plain language of the relevant statutory text commits to the Board the task of "coordinating" the gift of whole-body donations, which coordination may mitigate potential negative impacts on educational and research institutions.