Who pays to move a body from an autopsy to the funeral home in Texas?

Plain-English summary

The Texas Funeral Service Commission asked the AG who pays to move a body from an autopsy to its final destination. When a person dies under circumstances such as an unknown cause or possible unlawful means, a justice of the peace must hold an inquest and may order an autopsy. The law makes the county commissioners court pay a reasonable fee to transport the body to the place where the autopsy is performed. The Commission's question was about the trip afterward: once the autopsy is done and the funeral home retrieves the body, who pays for that transportation, the county or the deceased's agent?

The AG concluded that the cost generally falls on the person with the legal duty to inter the deceased, or that person's agent, not on the county. A commissioners court has only the powers the Constitution or the Legislature gives it. The Legislature gave counties a narrow role in body disposition: paying for the disposition of a deceased pauper, and, when a body is unclaimed for burial or to be buried at public expense and the Anatomical Board of the State of Texas does not require it, paying "all costs" of preparing the body for burial, which could include transporting it to its final destination. Outside those situations, the AG found no provision authorizing a commissioners court to pay for post-autopsy transportation.

The AG explained that final responsibility for disposing of a body rests, by statute, on the person with the legal duty to inter the deceased, who is liable for the reasonable cost of interment, the same as if no autopsy had been ordered. Transporting a body is generally part of the services a funeral establishment provides. When a funeral director takes charge of a body (the relationship the industry calls "first call"), the director has the duty to supervise the pickup, including transfers to and from a morgue where an autopsy is performed. The Funeral Service Commission's own rule treats only the transport of a body to a morgue for a justice-of-the-peace autopsy as outside the consumer's responsibility, not the trip from the morgue afterward.

Finally, the AG noted that the autopsy's purpose is to determine the cause of death, and moving the body afterward does not further that purpose. The Legislature authorized commissioners courts to pay autopsy-related costs only for the autopsy and the events leading up to it, such as transport to the autopsy, chemical analysis, and a death investigator's help, not for events afterward. Because the Legislature knows how to provide for a cost when it wants to and did not provide for post-autopsy transportation, the AG read that silence to place the cost on the person with the legal duty to inter, or that person's agent. So in the usual case the family or its funeral establishment pays; the county pays only in the limited unclaimed or public-expense burial situation.

Currency note

This opinion was issued in 2016. 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 Code of Criminal Procedure, Health and Safety Code, and Occupations Code provisions cited here, and the Funeral Service Commission rule, may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

The Texas Funeral Service Commission and funeral establishments (as the opinion described it): The opinion told the Commission that post-autopsy transportation to the final destination is generally part of the funeral establishment's services and the responsibility of the person with the legal duty to inter the deceased, or that person's agent, consistent with the Commission's own "first call" rule.

County commissioners courts (as the opinion described it): The opinion described the county's payment obligation as narrow: a commissioners court must pay for post-autopsy transportation only when the body is unclaimed for burial or is to be buried at public expense and the Anatomical Board does not require it, and otherwise has no authority to pay that cost.

Families and the person with the legal duty to inter (as the opinion described it): The opinion described that person, or the funeral establishment acting as agent, as bearing the cost of transporting the body to its final destination after the autopsy, the same as if no autopsy had been ordered.

Common questions

Who pays to move a body from an autopsy to the funeral home in Texas?
Under this opinion, usually the person with the legal duty to inter the deceased, or that person's agent (the funeral establishment), not the county.

Doesn't the county pay for the autopsy transport?
Yes, but only the trip to the autopsy. The AG explained the Legislature authorized counties to pay for the autopsy and the steps leading up to it, including transport to the autopsy, not the trip afterward.

When does the county pay for the trip after the autopsy?
The AG identified one situation: when the body is unclaimed for burial or is to be buried at public expense and the Anatomical Board of the State of Texas does not require it. Then the commissioners court must pay the costs of preparing the body for burial.

Why isn't post-autopsy transport treated as an autopsy cost?
The AG reasoned that the autopsy's purpose is to determine the cause of death, and moving the body afterward does not further that purpose, so it is not an autopsy-related cost the county must bear.

Is transporting the body part of the funeral home's job?
The opinion described transportation as generally within the scope of a funeral establishment's services, and the funeral director's "first call" duty as covering transfers to and from a morgue.

Background and statutory framework

When a death triggers an inquest, a justice of the peace may order an autopsy, and the commissioners court "shall pay a reasonable fee for the transportation of a body to a place where an autopsy can be performed" (Tex. Code Crim. Proc. art. 49.04(a)(1)-(8), art. 49.10(e), (e)(1), (e)(2)-(3), (h); see also art. 49.25, § 12 (medical examiner counties)). A commissioners court has only powers expressly delegated or necessarily implied (City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)). The Legislature gave counties a limited role in body disposition: paying for the disposition of a deceased pauper, and, for a body unclaimed for burial or to be buried at public expense that the Anatomical Board does not require, paying "all costs" of preparing the body for burial (Tex. Health & Safety Code §§ 694.002(a), (e), 691.021, 691.023(a)(1), (3), (b), 711.002(e); see also §§ 691.001-.035 (Anatomical Board)).

Final responsibility for interment rests on the person with the legal duty to inter, who is liable for its reasonable cost, and transportation is generally within a funeral establishment's services (Tex. Health & Safety Code §§ 711.002(a), (a-3), 711.001(13)). On "first call," a funeral director must direct and personally supervise the pickup of a body, including delegated transfers to and from a morgue where an autopsy is performed, and remains accountable for the transfer (Tex. Occ. Code §§ 651.401(a), (b)(2), (d), 651.405). The Funeral Service Commission's rule treats only transport of a body to a morgue for a justice-of-the-peace autopsy as outside the consumer's responsibility (22 Tex. Admin. Code § 203.21(b)).

The AG observed that the Legislature authorized commissioners courts to pay autopsy-related costs only for the autopsy and events leading up to it, such as a consultation about ordering the autopsy, performing the autopsy, transporting the body to the autopsy, chemical analysis, and a death investigator's assistance, not for events afterward (Tex. Code Crim. Proc. art. 49.10(b), (g), (h), art. 49.11(c), art. 49.23(a)). Because the Legislature knows how to provide for a cost and did not provide for post-autopsy transportation, the AG concluded that cost is the responsibility of the person with the legal duty to inter, or that person's agent (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)).

Citations

Statutory and regulatory provisions:

• Tex. Code Crim. Proc. art. 49.04(a)(1)-(8) (circumstances triggering an inquest)
• Tex. Code Crim. Proc. art. 49.10(b), (e), (e)(1), (e)(2)-(3), (g), (h) (ordering and paying for an autopsy)
• Tex. Code Crim. Proc. art. 49.11(c) (chemical analysis)
• Tex. Code Crim. Proc. art. 49.23(a) (death investigator)
• Tex. Code Crim. Proc. art. 49.25, § 12 (medical examiner counties)
• Tex. Health & Safety Code § 694.002(a), (e) (disposition of a deceased pauper)
• Tex. Health & Safety Code §§ 691.001-.035 (Anatomical Board of the State of Texas)
• Tex. Health & Safety Code § 691.021 ("political subdivision" includes a county)
• Tex. Health & Safety Code § 691.023(a)(1), (3), (b) (unclaimed bodies; costs of preparation)
• Tex. Health & Safety Code § 711.001(13) (definition of "funeral establishment")
• Tex. Health & Safety Code § 711.002(a), (a-3), (e) (right and duty to control disposition)
• Tex. Occ. Code § 651.401(a), (b)(2), (d) (funeral director's "first call" duties)
• Tex. Occ. Code § 651.405 (retail price list)
• 22 Tex. Admin. Code § 203.21(b) (Funeral Service Commission, First Call Definition)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0083
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0083.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 9, 2016

Ms. Jean L. Olinger, D.M. Opinion No. KP-0083
Presiding Officer
Texas Funeral Service Commission Re: Whether a county is responsible for costs
Post Office Box 12217 associated with transporting a body from an
Austin, Texas 78711 autopsy to its final destination (RQ-0069-KP)

Dear Ms. Olinger:

Your question concerns the transportation of a body following an autopsy performed by order of a justice of the peace. [1] If a person dies under certain circumstances, such as when the cause is unknown or there are indications that the death may have been caused by unlawful means, a justice of the peace in the county must conduct an inquest into the death. See TEX. CODE CRIM. PROC. art. 49.04(a)(1)-(8) (listing various circumstances triggering the duty of a justice of the peace to conduct an inquest). During an inquest, a justice of the peace may decide that an autopsy is necessary to determine or confirm the nature and cause of death, in which case he or she must order an autopsy. See id. art. 49.10(e)(1). [2] In such an instance, the commissioners court "shall pay a reasonable fee for the transportation of a body to a place where an autopsy can be performed." Id. art. 49.10(h). You inquire as to "who is responsible for transporting the body to the final destination" after the autopsy has been completed. Request Letter at 1. "If the funeral home must retrieve the body," you ask, "who is responsible for the transportation costs - the county or the deceased's agent?" Id.

A county commissioners court generally has only those powers expressly delegated to it by the Texas Constitution or the Legislature. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). The commissioners court may also exercise those powers that are necessarily implied for the accomplishment of its assigned duties. Id. With regard to the disposition of a body, the Legislature has given the commissioners court the limited responsibility of providing "for the disposition ... of a deceased pauper" and has authorized the county to "create a fund ... to pay the costs incurred" in the disposition, which could conceivably include transporting the body to its final destination. TEX. HEALTH & SAFETY CODE § 694.002(a), (e). Similarly, the Legislature has directed a political subdivision with "charge or control of a body not claimed for burial or a body required to be buried at public expense" to notify the Anatomical Board of the State of Texas (the "Board"), [3] if requested, of the existence of the body and allow the Board "to remove the body." Id. § 691.023(a)(1), (3); see also id. §§ 691.021 (clarifying that "political subdivision" as used in subchapter B of chapter 691 includes a county), 711.002(a) (listing in priority order the persons with the right to control the disposition of a decedent's remains). If the Board does not require the body, the political subdivision must "pay all costs" of preparing the body for burial. Id. § 691.023(b); see also id. § 711.002(e) (giving the person conducting an inquest the duty to inter the remains when no person with the legal duty to inter has assumed the responsibility). Thus, if a body is not claimed for burial or is to be buried at public expense, and if the Board does not require the body, the commissioners court is required to pay for the body's preparation for burial, which could include the cost of transporting the body to its final destination.

We find no other provision authorizing a commissioners court to transport a body following an autopsy or to pay for the cost of such transportation. You suggest that transporting a body following an autopsy should be considered part of the costs related to obtaining the autopsy. See Brief at 1. In your view, "[i]f this were not so, the cost would have to be borne by the Funeral Establishment, and would certainly be passed on to the family or person responsible for the final disposition of the deceased." Id. However, placing the ultimate financial responsibility for the disposition of a body on the person with the legal duty to inter the deceased appears to be precisely what the Legislature intended and would be the case had no autopsy been ordered. See HEALTH & SAFETY CODE § 711.002(a), (a-3) (making such a person liable for the reasonable cost of interment). Furthermore, statutes governing the involvement of a funeral establishment to carry out the interment contemplate that the transportation of a body generally falls within the scope of the services provided by the establishment. See id. § 711.001(13) (providing that a "funeral establishment" is "a place of business used in the care and preparation for interment or transportation of human remains" (emphasis added)).

When a funeral director is engaged to take charge of a deceased's body and prepare it for burial or other disposition, the funeral director begins a relationship with the consumer known in the industry as "first call," which gives the director the legal duty to assume responsibility for the body. See TEX. OCC. CODE § 651.401; see also id. § 651.405 (requiring a funeral establishment to provide a written retail price list including the price of "transferring a deceased person to the funeral establishment"). In providing certain parameters governing the provision of services "on first call," section 651.401 of the Occupations Code generally requires a funeral director to "direct and personally supervise the pickup of a dead human body." Id. § 651.401(a). The Legislature anticipated that there would be circumstances under which the personal supervision of the funeral director would be unnecessary and could be delegated to an employee, including when transferring a body "from a funeral establishment to and from a morgue in which an autopsy is performed." Id. § 651.401(b)(2). But such a transfer is still the responsibility of the funeral director. See id. § 651.401(d) (providing that "[a] funeral director ... who directs the removal or transfer of a dead human body without personally supervising the transfer is strictly accountable for compliance with the requirements" of section 651.401). The Funeral Service Commission's own rules appear to acknowledge that only the transportation of a body to a morgue for an autopsy, and not from the morgue afterward, falls outside of the scope of a funeral director's responsibility. See 22 TEX. ADMIN. CODE § 203.21(b) (2015) (Tex. Funeral Serv. Comm'n, First Call Definition) ("Transportation of a body sent to a morgue ... for ... autopsy at the request of a Justice of the Peace ... does not constitute a First Call. Any expenses ... for the transportation of a body under this subsection are not items of choice for the consumer ... and therefore are not the responsibility of the consumer to pay." (emphasis added)).

This view is consistent with the objective of an autopsy. The purpose of exercising a justice of the peace's statutory authority to order an autopsy is to determine the cause of death. See TEX. CODE CRIM. PROC. art. 49.10(e) (listing the circumstances requiring an autopsy). Transporting a body to its final destination after the autopsy does not further this purpose. In addition, the Legislature has authorized a commissioners court to pay for autopsy-related expenses only for the autopsy itself and events leading up to its undertaking, not for events afterward. See, e.g., id. arts. 49.10(b) (for a consultation with a county health officer or physician as to the necessity of ordering an autopsy), 49.10(g) (if assessed, to a physician for performing the autopsy), 49.10(h) (for transportation of a body to a place where an autopsy can be performed), 49.11(c) (for chemical analysis), 49.23(a) (for the assistance of a death investigator during an inquest). The fact that the Legislature knows how to provide for autopsy-related costs but has not provided for post-autopsy transportation of a body is an indication that such a cost is the responsibility of the person with the legal duty to inter the deceased, or that person's agent, and not a commissioners court. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (noting that the Legislature knows how to enact a law effectuating its intent).

SUMMARY

A commissioners court is authorized to pay the cost of transporting a body to its final destination following an autopsy ordered by a justice of the peace only if a body is not claimed for burial or is to be buried at public expense and if the Anatomical Board of the State of Texas does not require the body. Otherwise, the cost of transporting the body to its final destination is the responsibility of the person with the legal duty to inter the deceased, or that person's agent.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Ms. Jean L. Olinger, D.M., Presiding Officer, Tex. Funeral Serv. Comm'n, and attached brief, to Honorable Ken Paxton, Tex. Att'y Gen. (Nov. 9, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Brief," respectively). Because your letter references an autopsy ordered by a justice of the peace, we presume your question relates to a county that has not established the office of medical examiner. See TEX. CODE CRIM. PROC. art. 49.25, § 12 ("When the commissioners court of any county shall establish the office of medical examiner, all powers and duties of justices of the peace in such county relating to the investigation of deaths and inquests shall vest in the office of the medical examiner."). We limit our analysis accordingly.

[2] A justice of the peace must also order an autopsy in the case of a child under age six whose death was unexpected or the result of abuse or neglect, or if directed to do so by the district attorney, criminal district attorney, or, in some cases, the county attorney. Id. art. 49.10(e)(2)-(3).

[3] The Board is statutorily authorized to facilitate the distribution of deceased human remains for the purpose of teaching and research. See generally TEX. HEALTH & SAFETY CODE §§ 691.001-.035.