Can a Texas county cremate the body of an unidentified pauper?

TX AG Opinion GA-0543: Can a Texas county cremate an unidentified pauper's body?

Plain-English summary

When a poor person dies with no one to arrange a funeral, the county commissioners court must provide for the disposition of the body under Health and Safety Code section 694.002(a). Prior AG opinions had read that duty to let a county choose how to do it: burial, donation to a medical facility, or cremation, with the choice left to the commissioners court. Cremation is cheaper, and the request noted that in Hidalgo County a cremation cost the county about $250 against roughly $1,050 for a burial. A state senator asked, on behalf of another senator, whether a county could go ahead and have unidentified deceased paupers cremated.

The Attorney General said no. A different part of the same code, section 716.101, says plainly that "a crematory establishment may not accept for cremation unidentified human remains." The senator suggested reading that ban to distinguish between unidentified bodies brought in by a county fulfilling its statutory duty and those brought in by anyone else. The opinion refused to draw that line, because the Legislature never wrote it. Nothing in section 716.101, in the pauper-disposition statute, or anywhere else carves out counties. And reading in a county exception would ripple through the rest of chapter 716, which repeatedly assumes the remains are identified: the cremation form must identify the deceased, the receipt to a funeral establishment must identify the deceased, the cremated remains must be placed in a container "with proper identification," and the crematory must keep a record of the names of those it cremates.

The practical result is a conflict the statute resolves against cremation. A county may have authority under section 694.002(a) to cremate, but because no licensed crematory may lawfully accept unidentified remains, that authority cannot be exercised for an unidentified pauper. The opinion was careful to limit its holding: chapter 716 does not affect a county's authority to cremate the remains of an identified pauper. The opinion also flagged, without deciding, a separate provision (section 716.201) about a crematory acting under a valid court order, noting the senator did not ask about that route.

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.

Chapters 694 and 716 of the Health and Safety Code (pauper disposition and crematory regulation) may have been amended since 2007, and the Legislature could since have added an exception for counties or a court-order path. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2007)

County commissioners courts: The opinion told counties that, for an unidentified pauper, the cheaper cremation option was off the table, because no crematory could lawfully accept the remains. The county's duty to provide for disposition remained, but had to be met another way, such as burial.

Crematory establishments: The opinion confirmed the section 716.101 ban applied to remains brought by a county just as to anyone else; accepting unidentified remains for cremation was prohibited regardless of who delivered them.

Counties cremating identified paupers: The opinion expressly preserved this. Where the pauper's identity was known, chapter 716 did not bar cremation under section 694.002.

Common questions

Can a Texas county save money by cremating unidentified indigent bodies?
No, based on this opinion. The Attorney General concluded section 716.101 prohibits any crematory from accepting unidentified human remains, so a county cannot have an unidentified pauper cremated even though cremation is cheaper.

Does the county get an exception because it is following a legal duty?
No. The opinion declined to read a county exception into section 716.101, because the Legislature wrote none, and doing so would undercut chapter 716's other identification requirements.

Can a county still cremate a pauper whose identity is known?
Yes. The opinion stated that chapter 716 does not affect a county's authority under section 694.002 to have the remains of an identified pauper cremated.

What is a county supposed to do with an unidentified pauper's body, then?
The opinion did not prescribe a method, but it left intact the county's duty under section 694.002(a) to provide for disposition, which the prior opinions described as including burial or donation to a medical facility.

Background and statutory framework

Health and Safety Code section 694.002(a) requires a county commissioners court to "provide for the disposition of the body of a deceased pauper" and lets the court adopt rules to implement that duty (Tex. Health & Safety Code Ann. § 694.002(a) (Vernon 2003)). No Texas court had construed the county's cremation authority, but this office had read the subsection to authorize disposition by burial, donation to a medical facility, or cremation, with the means and selection method left to the commissioners court (citing GA-0301 (2005) and JC-0228 (2000)).

Chapter 716 regulates crematory establishments, which must be licensed by the Texas Funeral Service Commission (Tex. Health & Safety Code Ann. ch. 716, § 716.001(10) (Vernon Supp. 2006); Tex. Occ. Code Ann. §§ 651.656(a), 651.001(2) (Vernon 2004); 22 Tex. Admin. Code § 205.3 (2006)). Section 716.101 provides that "[a] crematory establishment may not accept for cremation unidentified human remains" (Tex. Health & Safety Code Ann. § 716.101 (Vernon Supp. 2006)). The opinion found no statutory distinction between unidentified remains delivered by a county and by anyone else, and neither section 716.101 nor section 694.002 excepts a county (Tex. Health & Safety Code Ann. § 694.002 (Vernon 2003)). Reading in a county exception would also conflict with chapter 716's other identification requirements: the cremation form must identify the deceased (§ 716.052(a)(1)), the receipt to a funeral establishment must identify the deceased (§ 716.102(a)(6)), the cremated remains must be placed with proper identification in a temporary container or urn (§ 716.155(a)), and the crematory must maintain a record of the names of those whose remains it cremated (§ 716.251(a)(1)) (Tex. Health & Safety Code Ann. §§ 716.052(a)(1), 716.102(a)(6), 716.155(a), 716.251(a)(1) (Vernon Supp. 2006)).

Because a crematory establishment cannot accept unidentified remains, the opinion concluded section 716.101 effectively abrogates a county's authority to cremate an unidentified pauper's remains under section 694.002(a), while leaving intact the authority to cremate identified remains, consistent with the rule that statutes are construed to harmonize or create limited exceptions (Tex. Gov't Code Ann. §§ 311.025, .026 (Vernon 2005)). The opinion noted in a footnote that section 716.201 lets a crematory refuse remains absent a valid court order and declined to consider whether a court order might allow acceptance under that provision despite section 716.101 (Tex. Health & Safety Code Ann. § 716.201(a)-(b) (Vernon Supp. 2006); Tex. Gov't Code Ann. § 311.026(b) (Vernon 2005)).

Citations

Statutes and rules:

• Tex. Health & Safety Code Ann. § 694.002(a) (Vernon 2003)
• Tex. Health & Safety Code Ann. § 694.002 (Vernon 2003)
• Tex. Health & Safety Code Ann. § 716.101 (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. ch. 716 (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 716.001(10) (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. §§ 716.052(a)(1), 716.102(a)(6), 716.155(a), 716.251(a)(1) (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 716.201(a)-(b) (Vernon Supp. 2006)
• Tex. Occ. Code Ann. §§ 651.656(a), 651.001(2) (Vernon 2004)
• Tex. Gov't Code Ann. §§ 311.025, .026, 311.026(b) (Vernon 2005)
• 22 Tex. Admin. Code § 205.3 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0543
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0543.pdf

Original opinion text

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

GREG ABBOTT

April 26, 2007

The Honorable Royce West
Chair, Committee on Intergovernmental Relations
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0543

Re: Whether, in light of section 716.101 of the Health and Safety Code, a county may cremate an unidentified deceased pauper's remains (RQ-0551-GA)

Dear Senator West:

Health and Safety Code section 694.002(a), which requires a county commissioners court to "provide for the disposition" of a deceased pauper's body, implicitly permits the county to dispose of a pauper's remains by cremation. TEX. HEALTH & SAFETY CODE ANN. § 694.002(a) (Vernon 2003); see Tex. Att'y Gen. Op. Nos. GA-0301 (2005) at 2, JC-0228 (2000) at 5. Section 716.101 of the same code, however, prohibits a crematory from accepting unidentified human remains for cremation. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 716.101 (Vernon Supp. 2006). On behalf of Senator Juan "Chuy" Hinojosa, you ask whether, in light of section 716.101, a county may have the remains of unidentified deceased paupers cremated.

Section 694.002(a) requires a county commissioners court to "provide for the disposition of the body of a deceased pauper." TEX. HEALTH & SAFETY CODE ANN. § 694.002(a) (Vernon 2003). The commissioners court may adopt rules implementing this requirement. See id. Although no Texas court has considered a county's authority to cremate remains under section 694.002(a), this office has construed the subsection to authorize a commissioners court "to dispose of paupers' remains by burial, by donating the bod[ies] to a medical facility, or by cremation." Tex. Att'y Gen. Op. Nos. GA-0301 (2005) at 1, JC-0228 (2000) at 5. The means of disposition and the method by which the county selects a means of disposition are for the commissioners court to determine. See Tex. Att'y Gen. Op. Nos. GA-0301 (2005) at 2, JC-0228 (2000) at 5.

Chapter 716 of the Health and Safety Code regulates the operation of crematory establishments. See TEX. HEALTH & SAFETY CODE ANN. ch. 716 (Vernon Supp. 2006); see also id. § 716.001(10) (defining "crematory establishment" as "a business that operates a crematory for which a license is required under Subchapter N, Chapter 651, Occupations Code"). Under section 716.101, which you cite, "[a] crematory establishment may not accept for cremation unidentified human remains." Id.

You suggest that we should interpret section 716.101 to distinguish between unidentified remains brought to a crematory establishment by counties and those brought by other entities or individuals. See Request Letter, supra note 1, at 2. But the Legislature has not, in section 716.101 or in any other statute of which we are aware, articulated such a distinction. Neither section 716.101 nor any other statute (such as Health and Safety Code section 694.002) excepts from chapter 716's requirements a county that is fulfilling its statutory duty to dispose of unidentified paupers' remains. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 694.002 (Vernon 2003); id. § 716.101 (Vernon Supp. 2006). Moreover, were we to construe section 716.101 to create an exception for unidentified remains brought by a county, we would implicitly create a parallel exception to all of the other provisions in chapter 716 requiring identification of the remains. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 716.052(a)(1) (Vernon Supp. 2006) (requiring the cremation form that must be received with the remains to identify the deceased person); id. § 716.102(a)(6) (requiring a crematory establishment to provide a receipt that identifies the deceased person to a representative of a funeral establishment); id. § 716.155(a) (requiring a crematory establishment to place cremated remains "with proper identification" into a temporary container or urn); id. § 716.251(a)(1) (requiring a crematory establishment to maintain a record listing the names of the deceased persons whose remains it has cremated).

Because a crematory establishment cannot accept unidentified remains for cremation, section 716.101 effectively abrogates a county's authority to dispose of an unidentified pauper's remains by cremation under section 694.002(a). See id. § 716.101. Of course, chapter 716 does not affect a county's authority under section 694.002 to have the remains of an identified pauper cremated. Cf. TEX. GOV'T CODE ANN. §§ 311.025, .026 (Vernon 2005) (encouraging a construer to interpret statutes so that they harmonize or create limited exceptions).

SUMMARY

Despite its authority to dispose of the body of an unidentified deceased pauper under section 694.002(a) of the Health and Safety Code by cremation, section 716.101 of the same code prohibits a crematory establishment from accepting such remains for cremation. Accordingly, a county may not have the remains of an unidentified pauper cremated.

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

Footnotes

[1] See Letter from Honorable Royce West, Chair, Committee on Intergovernmental Relations, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Nov. 3, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] No person may conduct a crematory business in this state unless the owner or operator of the crematory "holds a crematory establishment license" issued by the Texas Funeral Service Commission. TEX. OCC. CODE ANN. § 651.656(a) (Vernon 2004); see also id. § 651.001(2) (defining "commission"); 22 TEX. ADMIN. CODE § 205.3 (2006) (Tex. Funeral Serv. Comm'n, Crematory License Requirement and Procedure).

[3] You indicate that the costs of cremation are "substantially less" than the costs associated with burial. Request Letter, supra note 1, at 1. Using Hidalgo County as an example, you state that "it currently costs the county $250 for each cremation and $1,050 for each burial." Id.; see also Hearings on H.B. 2301 Before the House Comm. on County Affairs, 76th Leg., R.S. (Mar. 17, 1999) (statement of Representative Farabee) (estimating the normal cost of burial as $1,200 and the normal cost of cremation as $800).

[4] Section 716.201 of the Health and Safety Code authorizes a crematory to "refuse to accept deceased human remains or to perform a cremation if the crematory establishment . . . is aware of . . . any . . . lawful reason for refusing to accept or cremate the remains" unless the cremation is "authorized by a valid court order." TEX. HEALTH & SAFETY CODE ANN. § 716.201(a)-(b) (Vernon Supp. 2006). You do not ask, and we do not consider here, whether a crematory establishment could accept the remains of an unidentified pauper under section 716.201(a)(3) if the county had obtained a court order, even though section 716.101 specifically prohibits the acceptance of unidentified remains. Cf. TEX. GOV'T CODE ANN. § 311.026(b) (Vernon 2005) (stating that if a general provision irreconcilably conflicts with a special provision adopted at the same time, "the special . . . provision prevails as an exception to the general provision").