Can a Texas county cremate a deceased pauper's remains instead of burying them?

TX AG Opinion GA-0301: Does a burial-cost statute stop a county from cremating a pauper's remains?

Plain-English summary

A Bell County attorney asked whether Health and Safety Code section 691.023(b) blocks a commissioners court from choosing cremation to dispose of a deceased pauper's remains. The question arose because the State Anatomical Board, which can accept unclaimed bodies for medical education, told the county it was no longer taking paupers' bodies since it had enough voluntary donations, and section 691.023(b) says that when the board does not require delivery of a body, "the political subdivision shall pay all costs of preparation for burial, including costs of embalming." The county attorney read that language as assuming burial was the only option and wondered whether it overrode a different provision, section 694.002, which prior opinions had already read as letting a county choose burial, donation, or cremation for a pauper's remains.

The opinion reaffirmed that section 694.002 gives a commissioners court authority to dispose of a pauper's remains by donation, cremation, or burial, and that the court can adopt a rule specifying which method it normally uses. It then harmonized that with section 691.023(b) by reading the burial-cost provision narrowly: its purpose was never to require burial as the only method, but to assign financial responsibility for preparing a body when the Anatomical Board does not take it. The reference to "burial" in that section was incidental, reflecting an older era when burial was the default, not a substantive command that pauper remains must be buried. Even if the two provisions could not be harmonized, the opinion noted that section 694.002 would control anyway because it was the more recently amended of the two.

Currency note

This opinion was issued in 2005. 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.

Who this opinion affected (as of 2005)

County commissioners courts handling indigent burials: The opinion confirmed that a commissioners court retains full authority under section 694.002 to dispose of a deceased pauper's remains by donation, cremation, or burial, and that the Anatomical Board's declining to accept a body, along with the cost-shifting language in section 691.023(b), does not narrow that choice to burial only.

County attorneys and auditors managing pauper burial costs: The opinion clarified that section 691.023(b)'s "pay all costs of preparation for burial" language is a cost-allocation rule triggered when the Anatomical Board does not take a body, not an independent requirement that the county actually bury the remains.

The State Anatomical Board and county officials coordinating with it: The opinion noted the board's practice, described in the request, of no longer accepting pauper bodies from counties because voluntary donations already supplied its needs, a fact that made the cost-allocation question under section 691.023(b) practically relevant to counties statewide.

Common questions

Can a Texas county cremate a deceased pauper's remains instead of burying them?
Yes, according to this opinion. Health and Safety Code section 694.002 authorizes a commissioners court to dispose of a pauper's remains by donation, cremation, or burial, and the county can adopt a rule for how it normally makes that choice.

Does the requirement to pay "costs of preparation for burial" in section 691.023(b) mean a county must actually bury a pauper's remains?
No. The opinion read that language as assigning who pays preparation costs when the Anatomical Board doesn't require delivery of the body, not as mandating burial as the disposal method.

What happens if the Anatomical Board declines to take a pauper's body?
Under section 691.023(b), if the board does not require the political subdivision to deliver the body, the political subdivision must pay all costs of preparation, including embalming costs, but the county still chooses the ultimate method of disposition under section 694.002.

Which statute controls if section 694.002 and section 691.023 truly conflict?
The opinion concluded they can be harmonized, but added that even if they were irreconcilable, section 694.002 would prevail because it is the statute more recently amended (last amended in 1999, versus no amendment to section 691.023 since its 1989 codification).

Background and statutory framework

Health and Safety Code section 694.002 requires each county's commissioners court to provide for the disposition of a deceased pauper's body and lets the court adopt rules to implement that duty, considering any information about the pauper's religious affiliation provided by a person designated under section 711.002(a). Because the statute does not define "disposition," prior Attorney General opinions, including JC-0228 (2000) and GA-0235 (2004), had already construed it, based on the provision's legislative history, to authorize disposal by burial, by donating the body to a medical facility, or by cremation, with the county free to specify by rule which method it normally uses.

Health and Safety Code chapter 691 separately establishes the Anatomical Board of the State of Texas, which can direct that unclaimed bodies required to be buried at public expense be delivered to it for distribution to educational institutions for dissection and other scientific purposes. Section 691.023(a) requires an officer or representative of a political subdivision having charge of such a body to notify the board and deliver the body as directed. Section 691.023(b) addresses what happens when the board does not require delivery: the political subdivision must then pay all costs of preparing the body for burial, including embalming costs.

The opinion applied the general rule that courts will, where possible, construe two statutes to harmonize with each other rather than treat them as conflicting. Tracing section 691.023's history to a 1961 predecessor (itself descended from an 1876 statute requiring commissioners courts to bury paupers), the opinion found that the provision's core purpose was always to allocate the cost of preparing a body, not to mandate burial as the only permissible method; its use of "burial" reflected the historical default method rather than a substantive limitation on the county's choice. Reading section 694.002 (the county's affirmative duty and choice of disposal method) alongside section 691.023(b) (a cost-allocation rule triggered by the board's non-acceptance of a body) resolves any apparent tension: the county may cremate, donate, or bury, and separately must cover preparation costs if the board doesn't take the body. As a fallback, the opinion noted that section 694.002 was last amended in 1999 while section 691.023 has not been amended since the two provisions were jointly codified into the Health and Safety Code in 1989, so under the rule that the more recently enacted of two irreconcilable statutes controls, section 694.002 would govern in any event.

Citations

Statutes:

• Tex. Health & Safety Code Ann. § 694.002 (Vernon 2003)
• Tex. Health & Safety Code Ann. § 711.002(a)
• Tex. Health & Safety Code Ann. §§ 691.022, .030, .033 (Vernon Supp. 2004)
• Tex. Health & Safety Code Ann. § 691.023(a) (Vernon 2003)
• Tex. Health & Safety Code Ann. § 691.023(b) (Vernon 2003)
• Tex. Gov't Code Ann. § 311.025(a) (Vernon 1998)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)

Other authorities:

• Tex. Att'y Gen. Op. No. JC-0228 (2000)
• Tex. Att'y Gen. Op. No. GA-0235 (2004)
• Tex. Att'y Gen. Op. No. GA-0262 (2004)
• Tex. Att'y Gen. Op. No. WW-1150 (1961)
• Act of May 19, 1999, 76th Leg., R.S., ch. 929, § 1, 1999 Tex. Gen. Laws 3663 (House Bill 2301)
• Act of Aug. 2, 1961, 57th Leg., 1st C.S., ch. 36, § 1, 1961 Tex. Gen. Laws 147, 149
• Act approved July 22, 1876, 15th Leg., R.S., ch. 45, § 4, 1876 Tex. Gen. Laws 51, 52
• Act of March 21, 1991, 72d Leg., R.S., ch. 14, § 211, 1991 Tex. Gen. Laws 42, 190
• Act of May 28, 1989, 71st Leg., R.S., ch. 937, § 1, 1989 Tex. Gen. Laws 4001, 4002
• Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2990, 3000

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0301
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0301.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 2, 2005

The Honorable Richard J. Miller
Bell County Attorney
Post Office Box 1127
Belton, Texas 76513

Opinion No. GA-0301

Re: Whether Health and Safety Code section 691.023(b) prohibits a commissioners court from adopting an order authorizing cremation as a means of disposing of the remains of a deceased pauper (RQ-0263-GA)

Dear Mr. Miller:

You ask whether Health and Safety Code section 691.023(b) prohibits a commissioners court "from adopting an order authorizing cremation as a means of disposing of a [deceased] pauper's remains."[1]

The commissioners court of a county must provide for the disposition of a deceased pauper's remains pursuant to Health and Safety Code section 694.002. This provision states as follows:

(a) The commissioners court of each county shall provide for the disposition of the body of a deceased pauper. The commissioners court may adopt rules to implement this section.

(b) The commissioners court shall consider any information, including the religious affiliation of the deceased pauper, provided by a person listed in Section 711.002(a).

TEX. HEALTH & SAFETY CODE ANN. § 694.002 (Vernon 2003). See id. § 711.002(a) (person designated in written instrument signed by decedent or certain relatives).

You point out that section 694.002 does not define "disposition." See Request Letter, supra note 1, at 1. This office has, however, construed section 694.002 as authorizing a commissioners court to dispose of paupers' remains by burial, by donating the body to a medical facility, or by cremation. See Tex. Att'y Gen. Op. No. JC-0228 (2000) at 5 (citing legislative history). See also Tex. Att'y Gen. Op. No. GA-0235 (2004) at 2. A county may specify by rule how it normally will determine the manner of disposition. See TEX. HEALTH & SAFETY CODE ANN. § 694.002(a) (Vernon 2003); see also Tex. Att'y Gen. Op. Nos. GA-0235 (2004) at 4, JC-0228 (2000) at 5.

You note that the attorney general opinions construing section 694.002 to authorize cremation of deceased paupers' remains do not address Health and Safety Code section 691.023. See Request Letter, supra note 1, at 1. Health and Safety Code chapter 691 establishes the Anatomical Board of the State of Texas and authorizes it to distribute dead bodies to various persons and educational institutions for dissection and other scientific purposes. See TEX. HEALTH & SAFETY CODE ANN. §§ 691.022, .030, .033 (Vernon Supp. 2004). Section 691.023(a) requires an officer, employee, or representative of the state or a political subdivision "having charge or control of a body required to be buried at public expense" to notify the board of the body's existence and deliver the body in accordance with the board's direction. Id. § 691.023(a) (Vernon 2003). Section 691.023(b) provides as follows:

If the board does not require a political subdivision or agency of the political subdivision to deliver a body under this section, the political subdivision shall pay all costs of preparation for burial, including costs of embalming.

Id. § 691.023(b).

The Anatomical Board (the board) has advised you that it is no longer accepting paupers' bodies from counties because there is an adequate supply from voluntary donations. See Request Letter, supra note 1, at 2. You ask whether section 691.023(b) prohibits the commissioners court from adopting an order authorizing cremation of a pauper's remains. See id.

We begin by affirming the conclusion of Attorney General Opinion JC-0228 that section 694.002 authorizes a commissioners court to dispose of paupers' remains by burial, by donating the body to a medical facility, or by cremation. See Tex. Att'y Gen. Op. No. JC-0228 (2000) at 5; accord Tex. Att'y Gen. Op. No. GA-0235 (2004) at 2. When the legislature imposes an obligation on the commissioners court, the court has "implied authority to exercise the power necessary to accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Thus, a commissioners court has implied authority under section 694.002 to exercise the powers necessary to "provide for the disposition of the body of a deceased pauper," and may accomplish this duty by donation, cremation, or burial of the remains. See TEX. HEALTH & SAFETY CODE ANN. § 694.002(a) (Vernon 2003). The legislative history of the 1999 enactment that adopted the present language of section 694.002(a) supports this conclusion. See Act of May 19, 1999, 76th Leg., R.S., ch. 929, § 1, 1999 Tex. Gen. Laws 3663 (House Bill 2301). See also Hearings on Tex. H.B. 2301 Before the Senate Comm. on Intergovernmental Relations, 76th Leg., R.S. (May 5, 1999) (statement of Senate sponsor Senator Moncrief that the bill gives the commissioners court the option to dispose of a deceased pauper's body by donation, cremation, or burial).

Your question suggests that Health and Safety Code section 694.002 is inconsistent with section 691.023, which requires a political subdivision to "pay all costs of preparation for burial, including costs of embalming," if the Anatomical Board does not require the political subdivision to deliver a body in accordance with its directions. TEX. HEALTH AND SAFETY CODE ANN. § 691.023(b) (Vernon 2003) (emphasis added). The courts will, if possible, construe statutes to harmonize with each other. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984); Tex. Att'y Gen. Op. No. GA-0262 (2004) at 5.

In applying this rule to the statutes under consideration, we note that section 691.023 does not expressly require a pauper's body to be buried. Instead, this provision assumes that the body will be buried and requires the political subdivision to pay the related costs. When the predecessor of section 691.023 was adopted in 1961, a commissioners court had long been required to bury paupers' remains. See Act of Aug. 2, 1961, 57th Leg., 1st C.S., ch. 36, § 1, 1961 Tex. Gen. Laws 147, 149 (adopting former article 4584, Revised Civil Statutes, now codified in various sections of Health and Safety Code chapter 691), Act approved July 22, 1876, 15th Leg., R.S., ch. 45, § 4, 1876 Tex. Gen. Laws 51, 52 (commissioners court shall provide for burial of paupers); see also Tex. Att'y Gen. Op. No. WW-1150 (1961) at 1 (quoting former article 2351, section 12 of the Revised Civil Statutes requiring commissioners court to provide for the burial of paupers). The predecessor of section 691.023 also required the Anatomical Board to pay "all costs of transportation and/or preparation for burial or transportation" when the board required a political subdivision to deliver a pauper's body to it. Act of Aug. 2, 1961, 57th Leg., 1st C.S., ch. 36, § 1, 1961 Tex. Gen. Laws 147, 149. Thus, the predecessor of section 691.023 incidentally referred to "burial" as the usual disposition of paupers' remains, but its actual purpose was to establish responsibility for paying the costs of preparing a body for burial. We harmonize Health and Safety Code section 694.002 with section 691.023 by concluding that the former provision authorizes a commissioners court to provide for the disposition of a pauper's remains by donation, cremation, or burial. If the Anatomical Board does not require delivery of a pauper's body, section 691.023 requires the commissioners court to pay certain costs of preparing the body for disposition.

Even if the two sections were determined to be irreconcilable, section 694.002 would prevail as the statute latest in date of enactment. See TEX. GOV'T CODE ANN. § 311.025(a) (Vernon 1998) ("[I]f statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails."). Sections 691.023 and 694.002 were both included in the 1989 recodification of statutes relating to health and safety enacted as the Health and Safety Code. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2990, 3000. While section 691.023 has not been amended since it was codified in the Health and Safety Code, section 694.002 has been amended twice since its codification. In 1991, the legislature conformed section 694.002 to a 1989 amendment to its predecessor statute. See Act of March 21, 1991, 72d Leg., R.S., ch. 14, § 211, 1991 Tex. Gen. Laws 42, 190. See also Act of May 28, 1989, 71st Leg., R.S., ch. 937, § 1, 1989 Tex. Gen. Laws 4001, 4002 (amending former article 2351f, section 12, Revised Civil Statutes relating to interment or cremation of paupers). The legislature amended section 694.002 in 1999 to adopt its present language. See Act of May 19, 1999, 76th Leg., R.S., ch. 929, § 1, 1999 Tex. Gen. Laws 3663. Section 694.002 governs a commissioners court's duty to provide for the disposition of a deceased pauper's remains, despite any apparently inconsistent language in section 691.023.

Accordingly, section 694.002 authorizes a commissioners court to dispose of paupers' remains by donation, cremation, or burial and allows a county to specify by rule how it normally will determine the manner of disposition. Health and Safety Code section 691.023(b) does not prohibit a commissioners court from adopting an order authorizing cremation to dispose of a pauper's remains.

SUMMARY

Health and Safety Code section 694.002 authorizes a commissioners court to dispose of a pauper's remains by donation, cremation, or burial and allows a county to specify by rule how it normally will determine the manner of disposition. Health and Safety Code section 691.023(b) requires a county to pay the costs of preparing a pauper's remains for disposition if the remains are not needed by the State Anatomical Board and does not prohibit a commissioners court from adopting an order authorizing cremation to dispose of a pauper's remains.

Very truly yours,

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney General, at 2 (Aug. 20, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].