Can a Texas county medical examiner charge a tissue procurement organization for using its facility?

TX AG Opinion GA-0544: Can a medical examiner charge tissue-recovery groups for using its facility?

Plain-English summary

When someone dies under circumstances that require an inquest, Texas law lets the county medical examiner permit a qualified organization to recover organs or tissue for transplant. The Harris County Attorney explained that tissue procurement organizations, some from outside the county, increasingly competed to recover tissue at the medical examiner's facility, and that handling them strained the office: staff had to referee which organization got access, monitor their use of equipment, medical records, and blood samples, and pathologists spent extra time working around the results of recovery surgery during the autopsy. The county asked whether the medical examiner could recover its costs by charging the tissue organizations a fee under section 693.002(b) of the Health and Safety Code.

The Attorney General answered no. A statute that imposes a fee, meaning a charge to cover costs rather than to raise revenue, is strictly construed, and courts will not imply the authority to charge one. The Legislature knew how to authorize reimbursement: section 693.002(a)(6) lets a county collect up to $1,000 from an organ procurement organization when the medical examiner has to attend an organ removal at a hospital. But the tissue provision, subsection (b), contains no parallel reimbursement language at all, so it does not authorize a fee. Nothing in article 49.25 of the Code of Criminal Procedure, which sets up medical examiner offices, lets an examiner set fees for tissue work either, and a county may not impose a fee it is not specifically authorized to charge.

The county had argued that because the examiner only "may" permit tissue removal, the activity was discretionary, like the unofficial tasks officers were allowed to charge for in older cases (such as a clerk providing unofficial copies, or a constable delivering eviction notices). The opinion rejected that. Deciding whether to allow tissue removal, and giving a written denial if it refuses, is an official duty of the medical examiner, and the mere word "may" does not turn an official duty into a chargeable side activity. Finally, the county suggested that forcing it to provide a free facility to a private organization was an unconstitutional gift of public resources under article III, section 52(a). The opinion disagreed: making available tissue that would otherwise be lost serves a predominantly public purpose, the county receives a return benefit, and the requirements that the organization be "qualified" and that the examiner retain discretion provide the public control the constitution requires.

Currency note

This opinion was issued in 2007. 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.

The Health and Safety Code organ- and tissue-donation provisions cited here (including section 693.002 and the definitions in section 692.002) and article 49.25 of the Code of Criminal Procedure may have been amended since 2007. If a current reimbursement question arises, confirm whether the Legislature has since added tissue-procurement reimbursement authority before relying on this analysis.

Who this opinion affected (as of 2007)

County medical examiners: The opinion told examiners they had no authority under section 693.002(b), article 49.25, or any other statute to charge a tissue procurement organization for using the examiner's facility and resources, even though attending to those organizations imposed real burdens.

Tissue procurement organizations: The opinion confirmed that qualified organizations could not be billed by the medical examiner or the county for tissue recovery done under subsection (b), and that providing them access did not amount to an unconstitutional gift of public resources.

County commissioners courts: The opinion made clear a commissioners court could not impose the fee on the medical examiner's behalf either, because a county may charge a fee only when specifically authorized by statute.

Common questions

Can a Texas medical examiner bill a tissue-recovery group for using the morgue's facilities?
No, based on this opinion. The Attorney General concluded that section 693.002(b) authorizes no reimbursement from a tissue procurement organization, and no other statute lets the examiner or the county set such a fee.

Why can a county charge for organ removal but not tissue removal?
The opinion explained that the Legislature expressly authorized reimbursement up to $1,000 for organ removal at a hospital in section 693.002(a)(6), but wrote no comparable language into the tissue provision, subsection (b). A fee statute is strictly construed, so the absence of authorization means no fee.

Doesn't the word "may" mean the examiner can treat this as an extra service and charge for it?
The opinion rejected that argument. Deciding whether to allow tissue removal is an official duty, not an unofficial side task, and the word "may" by itself does not make an official activity chargeable.

Is it unconstitutional to make the county provide free facilities to a private tissue organization?
The opinion said no. Providing tissue that would otherwise be lost serves a public purpose and gives the county a return benefit, and the "qualified organization" requirement plus the examiner's discretion supply the public control article III, section 52(a) requires.

Background and statutory framework

Section 693.002 governs the removal of organs and tissue from decedents who died under circumstances requiring an inquest (Tex. Health & Safety Code Ann. § 693.002 (Vernon Supp. 2006); Tex. Code Crim. Proc. Ann. art. 49.25, § 6(a) (Vernon 2006)). Subsection (a) lets a medical examiner permit organ removal on request from a qualified organ procurement organization with consent under section 693.003, and subsection (a)(6) requires the organization to reimburse the county for the medical examiner's actual costs of attending the removal at a hospital, "not to exceed $1,000." Subsection (b) lets the examiner permit removal of clinically usable tissue from such a decedent if consent is obtained or no objection is known, and requires a written explanation if the examiner denies removal (Tex. Health & Safety Code Ann. § 693.002(a)-(b), § 693.002(a)(6) (Vernon Supp. 2006); §§ 693.003-.004 (Vernon 2003)). A qualified organ or tissue procurement organization is defined in section 692.002(9), and "visceral organ" is defined in section 693.001 (Tex. Health & Safety Code Ann. § 692.002(9), § 693.001 (Vernon 2003)).

A court strictly construes a statute imposing a fee and will not imply authority to charge one (Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); McCalla v. City of Rockdale, 246 S.W. 654, 655 (Tex. 1922); Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 (Tex. 1997)). Because subsection (b), unlike subsection (a)(6), contains no reimbursement authorization, the opinion concluded section 693.002 does not authorize the examiner to recoup costs from a tissue organization. Article 49.25 gives the examiner no independent fee authority (Tex. Code Crim. Proc. Ann. art. 49.25 (Vernon 2006)), and a county may not charge a fee unless specifically authorized (Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942)). The opinion rejected the argument that "may" in subsection (b) made tissue facilitation an unofficial, chargeable activity, distinguishing the unofficial-task cases; the term "may" denotes discretionary authority (Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005)), but deciding whether to allow removal and issuing any denial is an official duty.

On the constitutional question, the opinion applied the presumption of constitutionality and the rule that statutes are read to avoid constitutional infirmity (Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); Sullivan v. Andrews County, 517 S.W.2d 410, 413 (Tex. Civ. App.-El Paso 1974, writ ref'd n.r.e.) (quoting Vincent v. State, 235 S.W. 1084, 1088 (Tex. Comm'n App. 1921, judgm't adopted))). Applying the three-part public-purpose test (Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 384 (Tex. 2002)), the opinion concluded that providing access to tissue that would otherwise be unavailable serves a predominantly public purpose, gives the county a return benefit, and is adequately controlled by the "qualified organization" requirement and the examiner's discretion, so it does not violate article III, section 52(a) (Tex. Const. art. III, § 52(a); Tex. Health & Safety Code Ann. §§ 692.002(9) (Vernon 2003), 693.002(b) (Vernon Supp. 2006)).

Citations

Statutes and constitutional provisions:

• Tex. Health & Safety Code Ann. § 693.002 (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 693.002(a)-(b) (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 693.002(a)(6) (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 693.001 (Vernon 2003)
• Tex. Health & Safety Code Ann. §§ 693.003-.004 (Vernon 2003)
• Tex. Health & Safety Code Ann. § 692.002(9) (Vernon 2003)
• Tex. Code Crim. Proc. Ann. art. 49.25 (Vernon 2006)
• Tex. Code Crim. Proc. Ann. art. 49.25, § 6(a) (Vernon 2006)
• Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005)
• Tex. Const. art. III, § 52(a)

Cases:

• Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)
• McCalla v. City of Rockdale, 246 S.W. 654, 655 (Tex. 1922)
• Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 (Tex. 1997)
• Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942)
• Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 384 (Tex. 2002)
• Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003)
• Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)
• Sullivan v. Andrews County, 517 S.W.2d 410, 413 (Tex. Civ. App.-El Paso 1974, writ ref'd n.r.e.)
• Vincent v. State, 235 S.W. 1084, 1088 (Tex. Comm'n App. 1921, judgm't adopted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0544
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0544.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

May 3, 2007

The Honorable Mike Stafford
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002

Opinion No. GA-0544

Re: Whether a county medical examiner is authorized to recoup costs incurred when the medical examiner permits a tissue procurement organization to remove tissue using the medical examiner's facility and resources under section 693.002(b), Health and Safety Code (RQ-0545-GA)

Dear Mr. Stafford:

Section 693.002(b) of the Health and Safety Code authorizes a county medical examiner to permit a qualified tissue procurement organization to remove tissue from a decedent in certain circumstances. See TEX. HEALTH & SAFETY CODE ANN. § 693.002(b) (Vernon Supp. 2006). You ask whether a county medical examiner is authorized to recoup costs incurred when the medical examiner permits a tissue procurement organization to remove tissue using the medical examiner's facility and resources under section 693.002(b).

Section 693.002 pertains to the removal of organs and tissue from decedents who died under circumstances requiring an inquest. See TEX. HEALTH & SAFETY CODE ANN. § 693.002 (Vernon Supp. 2006); see also TEX. CODE CRIM. PROC. ANN. art. 49.25, § 6(a) (Vernon 2006) (setting out circumstances in which an inquest is required). Section 693.002 provides:

(a)(1) On a request from a qualified organ procurement organization, . . . the medical examiner . . . may permit the removal of organs from a decedent who died under circumstances requiring an inquest . . . if consent is obtained pursuant to Section 693.003.

(6) If, in performing the duties required by this subsection, the medical examiner . . . is required to be present at the hospital to examine the decedent prior to removal of the organs or during the procedure to remove the organs, the qualified organ procurement organization shall on request reimburse the county or the entity designated by the county for the actual costs incurred in performing such duties, not to exceed $1,000. . . .

(b) On a request from a qualified tissue procurement organization, as defined in Section 692.002, the medical examiner may permit the removal of tissue believed to be clinically usable for transplants or other therapy or treatment from a decedent who died under circumstances requiring an inquest if consent is obtained pursuant to Section 693.003 or, if consent is not required by that section, no objection by a person listed in Section 693.004 is known by the medical examiner. If the medical examiner denies removal of the tissue, the medical examiner shall explain in writing the reasons for the denial . . . to:

(1) the qualified tissue procurement organization; and

(2) the person . . . who consented to the removal.

TEX. HEALTH & SAFETY CODE ANN. § 693.002(a)-(b) (Vernon Supp. 2006); see also id. §§ 693.003-.004 (Vernon 2003) (setting out circumstances in which consent is required and listing the persons who may consent or object to organ or tissue removal). A qualified organ procurement or tissue procurement organization is an organization that

procures and distributes organs or tissues for transplantation, research, or other medical purposes and that:

(A) is affiliated with a university or hospital or registered to operate as a nonprofit organization in this state for the primary purpose of organ or tissue procurement; and

(B) if the organization is an organ procurement organization, is certified to act as an organ procurement organization by the appropriate federal agency.

Id. § 692.002(9).

You distinguish between organ procurement, which is governed by section 693.002(a), and tissue procurement, which is governed by section 693.002(b). See Memorandum Brief, supra note 1, at 1. You equate the term "organ" with the phrase "visceral organ," which section 693.001 defines to mean "the heart, kidney, liver, or other organ or tissue that requires a patient-support system to maintain the viability of the organ or tissue." TEX. HEALTH & SAFETY CODE ANN. § 693.001 (Vernon 2003); see Memorandum Brief, supra note 1, at 1. You inform us that "[o]rgans are typically removed at a hospital in a sterile environment while the patient is connected to a life support system, not at" the medical examiner's facility. Memorandum Brief, supra note 1, at 1. By contrast, you state, "the tissue that is recovered from decedents is usually skin, bone, dura mater, heart valves, veins and corneas," none of which requires a patient-support system to remain viable. Id. (footnote added). You further state that tissue can be removed at the medical examiner's facility "in an aseptic recovery field." Id.

Your question pertains solely to the removal of tissue under section 693.002(b). See Request Letter, supra note 1, at 1. You suggest that the presence of qualified tissue procurement organizations in the medical examiner's facility creates difficulty for the medical examiner:

[Tissue procurement organizations], including some located outside Harris County, increasingly vie with each other to recover tissue from decedents at the [medical examiner's] facility. The [medical examiner's] staff is challenged to referee disputes over which competing [tissue procurement organizations] may use the [medical examiner's] facility and staff, when, and how. The [medical examiner's] staff must monitor and control the [tissue procurement organizations'] use of resources including medical records, equipment, and decedent blood samples. The [medical examiner's] pathologists spend additional time on many donor cases as they work around the remnants of recovery surgery during the postmortem examination and as they communicate with the [tissue procurement organizations] regarding preliminary cause of death information. The presence of [tissue procurement organizations] in the [medical examiner's] facility places a burden on the ability of the [medical examiner's] office to perform duties mandated by law.

Memorandum Brief, supra note 1, at 1 (footnote added). You inquire about a medical examiner's authority to obtain reimbursement from a tissue procurement organization. See Request Letter, supra note 1, at 1.

A court strictly construes a statute imposing a fee, that is, a charge to cover costs and not to raise revenue, and will not imply authority to impose a fee. See Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); McCalla v. City of Rockdale, 246 S.W. 654, 655 (Tex. 1922); see also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 (Tex. 1997) (distinguishing between license fees, which primarily serve to cover the costs of regulation, from taxes, which serve to increase the general revenues). As the Texas Supreme Court has stated, "[n]o officer is permitted to collect fees or commissions unless the same are provided for and the amount thereof declared by law." McCalla, 246 S.W. at 655.

Section 693.002(a)(6) authorizes a county to collect reimbursement, "not to exceed $1,000," from an organ procurement organization to be deposited in the county's general fund and applied to "the additional costs incurred by the office of the medical examiner . . . in performing" duties associated with attending an organ removal at a hospital. TEX. HEALTH & SAFETY CODE ANN. § 693.002(a)(6) (Vernon Supp. 2006). By contrast, section 693.002(b) does not authorize collecting reimbursement from a tissue procurement organization, establish a maximum reimbursement, or limit the uses to which reimbursement fees may be put. See id. § 693.002(b). Section 693.002 thus does not authorize a medical examiner to recoup costs from a tissue procurement organization. Cf. Tex. Att'y Gen. Op. No. GA-0389 (2005) at 11-12 (stating that section 693.002(a)(6) "[b]y its plain terms . . . does not provide for costs to be paid by a tissue procurement organization").

Additionally, a medical examiner has no independent statutory authority to collect reimbursement from a tissue procurement organization. Article 49.25 of the Code of Criminal Procedure authorizes certain counties to establish a medical examiner's office and provides medical examiners with certain duties and authority. See TEX. CODE CRIM. PROC. ANN. art. 49.25 (Vernon 2006). Nothing in article 49.25 authorizes a medical examiner to set or collect fees for duties associated with tissue procurement. See id.

Nor may the county commissioners court require reimbursement on behalf of the medical examiner. A county may not charge a fee unless specifically authorized to do so. See Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942); McCalla, 246 S.W. at 655. No statute authorizes a county to set a fee to be collected from a tissue procurement organization for the use of the medical examiner's resources. See TEX. HEALTH & SAFETY CODE ANN. § 693.002 (Vernon Supp. 2006); cf. Tex. Att'y Gen. LO-94-066, at 2 (determining that a county commissioners court may not charge funeral homes for transporting bodies to the county morgue); Tex. Att'y Gen. LO-92-020, at 2 (concluding that a county commissioners court has no authority to charge funeral homes a daily fee for storing bodies at the medical examiner's office).

You suggest, however, that statutory authority for the medical examiner's collection of a fee is not necessary because a medical examiner's power to permit a tissue procurement organization to remove tissue is discretionary, not mandatory. See Memorandum Brief, supra note 1, at 1-3. As you point out, section 693.002(b) states that a medical examiner "may permit the removal of tissue." TEX. HEALTH & SAFETY CODE ANN. § 693.002(b) (Vernon Supp. 2006) (emphasis added); see Memorandum Brief, supra note 1, at 2. In general, the term "may" denotes "discretionary authority." TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005). Thus, as you assert, a medical examiner "is under no obligation under the law to permit a [tissue procurement organization] to remove tissue." Memorandum Brief, supra note 1, at 2. You cite Moore v. Sheppard, a 1946 Texas Supreme Court case, and Attorney General Opinion GA-0364, issued in 2005, for the proposition that an officer may collect a fee for performing duties the officer is not required by law to perform. See Memorandum Brief, supra note 1, at 3; see also Moore, 192 S.W.2d at 560; Tex. Att'y Gen. Op. No. GA-0364 (2005) at 5-6.

But the principle articulated in Moore and Opinion GA-0364, allowing officers to charge fees for performing unofficial activities, does not apply here. The court in Moore determined that providing unofficial copies of court opinions is not among a clerk's official activities, and Opinion GA-0364 concludes that delivering eviction notices is not an official activity of a constable. See Moore, 192 S.W.2d at 560-61; Tex. Att'y Gen. Op. No. GA-0364 (2005) at 6. By contrast, facilitating tissue removal is an official activity of a medical examiner. See TEX. HEALTH & SAFETY CODE ANN. § 693.002(b) (Vernon Supp. 2006). We know of no authority or policy supporting your assertion that the word "may" in a statute, by itself, removes the activity that is subject to that statute from the realm of official activities. Moreover, despite the use of the word "may" in section 693.002(b), the medical examiner is obligated by statute to determine whether to allow tissue removal when requested to do so by a tissue procurement organization and to either allow the removal or provide a notice of denial. See id. We therefore conclude that the medical examiner's duties under section 693.002(b) are official activities for which any fee charged requires statutory authority.

You also suggest that section 693.002(b), to the extent it requires a county "to provide a free facility and services to a private corporation," i.e., a tissue procurement organization, contravenes article III, section 52(a) of the Texas Constitution. See Memorandum Brief, supra note 1, at 3-4; see also TEX. CONST. art. III, § 52(a) (prohibiting the grant of public funds to private entities). Article III, section 52(a) prohibits the Legislature from authorizing a county "to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever." TEX. CONST. art. III, § 52(a). The Texas Supreme Court has set forth a three-part test to determine whether a statute's grant of public resources violates article III, section 52(a):

Specifically, the Legislature must: (1) ensure that the statute's predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensure that the political subdivision receives a return benefit.

Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 384 (Tex. 2002).

In analyzing your claim that section 693.002(b) is unconstitutional to the extent a medical examiner must provide free access to tissue procurement organizations, a court would begin by presuming the statute's constitutionality. See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). If possible, a court would interpret the statute "in a manner to avoid constitutional infirmities." Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); see also Sullivan v. Andrews County, 517 S.W.2d 410, 413 (Tex. Civ. App.-El Paso 1974, writ ref'd n.r.e.) (stating that a court will "always lean in favor of the validity of a legislative act," and if there is reasonable doubt about a statute's constitutionality, "the court will solve the doubt in favor of the statute" (quoting Vincent v. State, 235 S.W. 1084, 1088 (Tex. Comm'n App. 1921, judgm't adopted))). We consequently begin by presuming that section 693.002(b) does not authorize a grant of public resources in violation of article III, section 52(a) of the Texas Constitution. Indeed, nothing in section 693.002(b) expressly requires that county resources be used in the tissue removal procedure.

In our opinion, providing free access to tissue procurement organizations, even if a grant of public resources occurs, does not violate article III, section 52(a). We consider that providing tissue that would otherwise not be freely available to tissue procurement organizations serves a predominantly public purpose and provides the county a return benefit. See Hearings on Tex. S.B. 351 Before the Senate Comm. on Health & Human Servs., 74th Leg., R.S. (Mar. 1, 1995) (testimony of Senator Moncrief) (tape available from the Texas State Library and Archives Comm'n) (noting that eight percent of potential organ donors in Texas fall within medical examiners' jurisdiction, who, between 1990 and 1993, denied the release of organs from 48 potential donors, thereby affecting at least 168 Texans who died because they did not receive a timely transplant); House Research Org., Bill Analysis, Tex. S.B. 351, 74th Leg., R.S. (1995) at 3 (noting that the bill would "facilitate the timely removal and transplantation of organs and tissue from decedents subject to a medical examiner inquest"). Further, both the requirement that a tissue procurement organization be "qualified" and the medical examiner's discretion to determine whether to permit or deny a request by a tissue procurement organization to remove tissue in a particular circumstance provide the requisite control ensuring that any use of public resources accomplishes a public purpose. See TEX. HEALTH & SAFETY CODE ANN. §§ 692.002(9) (Vernon 2003), 693.002(b) (Vernon Supp. 2006).

For all of these reasons, we conclude that section 693.002(b) does not permit a county medical examiner to recoup from a tissue procurement organization costs incurred when the medical examiner permits the organization to use the medical examiner's facility and resources to remove tissue.

SUMMARY

A county medical examiner is not authorized to obtain reimbursement from a tissue procurement organization for costs incurred when the medical examiner permits the organization to use the medical examiner's facility and resources to remove tissue under section 693.002(b), Health and Safety Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee