Can Texas allow DNA testing of human remains found at a historic cemetery site?

Plain-English summary

In 2018, a Fort Bend Independent School District construction project near Sugar Land uncovered the skeletal remains of ninety-five people. Archeologists believed they were buried in a forgotten historic cemetery connected to the State's convict-leasing program, a system that ran from roughly the 1870s into the 1910s. Almost no records survive to say who these people were, which made it hard to notify descendants or mark the graves. The proposed solution was scientific testing: take a molar and an incisor from each set of remains for isotope and DNA analysis, with the goal of identifying descendants and sparing them from ever having to re-exhume the remains after reburial. The Texas Historical Commission asked the AG whether it had legal authority to permit this kind of destructive testing, and if so, whether DNA collection could be one of its purposes.

The AG started with a foundational principle of administrative law: a state agency has only the powers the Legislature expressly grants, plus the implied powers reasonably necessary to carry out its express functions. Because no Texas statute speaks directly to destructive testing of human remains, the question became whether that power was reasonably necessary for the Commission to do its job.

The AG examined three statutory schemes together. Government Code chapter 442 sets out the Commission's powers and gives it authority over the State's archeological program, including contracts for archeological investigations. Natural Resources Code chapter 191, the Antiquities Code, makes the Commission the legal custodian of items recovered and retained by the State, lets it contract for the discovery and scientific investigation of archeological deposits, and directs that investigations recover the maximum amount of historic, scientific, archeological, and educational information. The AG read those provisions as showing the Legislature meant the Commission to be in charge of authorizing the archeological investigation, scientific testing, and data recovery of items found at sites of historic human activity, including exhumed human remains. So to the extent destructive testing is reasonably necessary to fulfill those duties, the Commission may permit it.

The AG then turned to Health and Safety Code chapter 711, which gives the Commission a role in removing remains from unknown or abandoned cemeteries and requires that a reasonable effort be made to identify the remains and notify next of kin. The Commission's own rules default to noninvasive techniques but allow invasive ones when specified, with the Commission approving the use of destructive analysis through the research design it reviews for an Antiquities Permit. The AG concluded that destructive DNA testing could serve the Commission's duty to make a reasonable effort to identify the remains, so to the extent it is reasonably necessary for the Commission to carry out its chapter 711 functions, the Commission is authorized to permit it. Because the first two questions were answered yes, the AG did not need to reach the question of whether some other public entity held the authority.

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

The Texas Historical Commission: At the time of the opinion, the AG read chapters 442 and 191 and chapter 711 together to authorize the Commission to permit destructive testing of human remains, including DNA sampling, to the extent reasonably necessary to fulfill its archeological and cemetery duties. The opinion tied that authority to the Commission's role as custodian and its duty to recover historical information and to make a reasonable effort to identify remains.

Local governments and school districts handling found remains: The opinion described a path, through the Commission and the Antiquities Permit process, for authorizing scientific analysis of remains discovered during construction at an unknown or abandoned cemetery.

Potential descendants and researchers: The opinion explained the legal basis for DNA analysis aimed at identifying the dead, which was the stated purpose of the testing in the Fort Bend matter.

Common questions

Who decides whether human remains found at a construction site can be DNA tested?
The AG concluded the Texas Historical Commission has authority to permit destructive testing, including DNA analysis, to the extent reasonably necessary to carry out its functions under Government Code chapter 442, Natural Resources Code chapter 191, and Health and Safety Code chapter 711.

Why does the Commission have this power if no statute mentions DNA testing?
The AG explained that an agency has implied powers reasonably necessary to carry out its express functions, and the Commission's duties to recover historical information and to make a reasonable effort to identify remains support permitting such testing.

Can the testing be done specifically to collect DNA?
Yes. The AG concluded that destructive analysis for the purpose of obtaining DNA samples is within the Commission's authority to the extent it is reasonably necessary to its chapter 711 duties, including identifying remains.

Did the opinion cover Native American remains?
No. The opinion expressly noted it did not address tribal restrictions on invasive or destructive testing of Native American remains that may be subject to federal law.

Background and statutory framework

A state agency has only the powers the Legislature expressly grants plus those reasonably necessary to carry out its express functions (Texas State Board of Examiners of Marriage and Family Therapists v. Texas Medical Association), and the Legislature does not intend agency functions to be an exercise in futility (Sexton v. Mount Olivet Cemetery Association). Courts read the relevant statutes to determine implied powers (Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Board).

Government Code section 442.005 sets out the Commission's powers and duties, and section 442.007 gives it authority over the State's archeological program, including contracts for archeological investigations. Natural Resources Code chapter 191 (the Antiquities Code, sections 191.001-.174) makes the Commission the legal custodian of recovered items (section 191.051(a)), authorizes contracts for the discovery and scientific investigation of archeological deposits (section 191.053; section 191.051(b)(3)), and requires operations to recover the maximum historic, scientific, archeological, and educational information (section 191.055(1), (3)), with rulemaking authority in section 191.052. The AG read these as placing the Commission in charge of authorizing archeological investigation, testing, and data recovery of items including exhumed human remains.

Health and Safety Code chapter 711 (sections 711.001-.084) covers nonperpetual care cemeteries, including unknown and abandoned ones. Section 711.010 bars a property owner from disturbing such a cemetery until the remains are removed under orders, and lets the Commission intervene (section 711.010(c)), with rulemaking under section 711.012(c) and Government Code section 442.017(d). Commission rules (13 Texas Administrative Code section 22.5) require a reasonable effort to identify remains and notify next of kin, default to noninvasive techniques unless otherwise specified, and place approval of destructive analysis with the Commission through its review of the research design for an Antiquities Permit (sections 29.5(g), 26.3(23), 29.4(17)). On that basis the AG concluded destructive DNA testing could serve the duty to identify remains and is authorized to the extent reasonably necessary. A footnote noted the opinion did not address federal-law tribal restrictions on testing Native American remains (13 Texas Administrative Code section 22.5(c)(2)(H)).

Citations

Statutory and regulatory provisions:

• Tex. Gov't Code § 442.005; § 442.007(a), (c); § 442.017(d)
• Tex. Nat. Res. Code §§ 191.001-.174; § 191.001; § 191.051(a); § 191.051(b)(3); § 191.052; § 191.053(a); § 191.055(1), (3)
• Tex. Health & Safety Code §§ 711.001-.084; § 711.001(1), (28), (29), (36); § 711.010(a), (c); § 711.011; § 711.012(c)
• 13 Tex. Admin. Code § 22.5(b), (b)(2), (c), (c)(2)(C), (c)(2)(H); § 26.3(5), (23), (37); § 29.4(17); § 29.5(g)
• 25 Tex. Admin. Code § 181.1(27)

Cases:

• Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 33 (Tex. 2017)
• Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. App.-Austin 1986, writ ref'd n.r.e.)
• Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 101 (Tex. App.-Austin 2004, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0255
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0255.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 10, 2019

Mr. Mark Wolfe Opinion No. KP-0255
Executive Director
Texas Historical Commission Re: Authority of the Historical Commission to
Post Office Box 12276 permit the destructive testing of human remains
Austin, Texas 78711-2276 for research purposes, including for the purpose
of obtaining DNA samples adequate to enable
the identification of genetically related
descendants (RQ-0259-KP)

Dear Mr. Wolfe:

    You ask whether the Historical Commission ("Commission") has "authority to permit the destructive testing of human remains for research purposes."1 In the event the answer is yes, you ask whether "the purpose of destructive analysis [can] be to obtain DNA samples." Request Letter at 1. In the event the answer to either question is no, you ask whether "such authority is held by some other public entity." Id. Briefing informs us that your request relates to a discovery during a construction project by Fort Bend Independent School District of the skeletal remains of ninety-five individuals.2 Archeologists associated with the project believe the remains to be from a forgotten historic cemetery from the State's convict leasing program, which operated from the 1870s to the 1910s,3 but note that few records exist to identify the remains to facilitate the notification of descendants and install headstones for each individual. See City Brief at 1; see also Morris Brief, Exhibit C, at 1. Briefing also informs us that the proposed destructive testing involves "a molar and incisor from each individual for the use of invasive analysis such as isotope and DNA analysis," which is intended to "eliminate the need for potential descendants to ever re-exhume the remains once ... reinterred." Morris Brief at 1.

   As a state agency, the Commission has only those powers expressly given it by the Legislature and those implied powers reasonably necessary to carry out its express functions or duties. See Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 33 (Tex. 2017). When the Legislature grants authority, it "does not intend that agency functions be an exercise in futility." Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. App.-Austin 1986, writ ref'd n.r.e.).

              [W]ith respect to a power specifically granted the agency, the full extent of that power must be ascertained with due regard for the rule that the Legislature generally intends that an agency should have by implication such authority as may be necessary to carry out the specific power delegated, in order that the statutory purpose might be achieved.

Id. When considering the scope of an agency's authority, courts examine the language of the relevant statutes to determine and give effect to the Legislature's intent with respect to the agency's implied powers. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 101 (Tex. App.-Austin 2004, pet. denied). You tell us that "[n]othing in state law refers specifically to destructive testing of human remains for research purposes including for the purpose of obtaining DNA samples." Request Letter at 1. Thus, we consider whether such power is reasonably necessary for the Commission to carry out its express functions.

     The three related statutes relevant to your questions are Government Code chapter 442, Natural Resources Code chapter 191, and Health and Safety Code chapter 711. We first examine provisions in Government Code chapter 442 and Natural Resources Code chapter 191. Government Code section 442.005 generally sets out the Commission's powers and duties, most of which relate to the preservation of archeological or historic structures, sites, or landmarks. See TEX. GOV'T CODE § 442.005. Section 442.007 gives the Commission authority over the State's archeological program, which includes the authority to enter into contracts or cooperative agreements with certain entities and individuals "for prehistoric or historic archeological investigations, surveys, excavations, or restorations in this state." Id. § 442.007(a), (c).

      Natural Resources Code chapter 191 is the Antiquities Code. See TEX. NAT. RES. CODE §§ 191.001-.174; see also id. § 191.001 (entitling chapter 191 as the "Antiquities Code of Texas"). It declares the Commission the "legal custodian of all items described by this chapter that have been recovered and retained by the State of Texas." Id. § 191.051(a). Section 191.053 authorizes the Commission to contract with specified entities and individuals for the "discovery and scientific investigation of ... archeological deposits or treasure imbedded in the earth."4 Id. § 191.053(a); see also id. § 191.051(b)(3) (providing that the Commission shall contract or provide for discovery operations and scientific investigations under section 191.053); see also 13 TEX. ADMIN. CODE § 26.3(5) (Tex. Historical Comm'n, Definitions) (defining "archeological site" to mean "[a]ny land or marine-based place containing evidence of prehistoric or historic human activity"). Further, section 191.055 provides that the operations conducted under section 191.053 must be supervised by the Commission and must be carried out "in such a manner that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved in addition to the physical recovery of items." TEX. NAT. RES. CODE § 191.055(1), (3) (emphasis added). "Investigation" means "[a]rcheological or architectural activity including, but not limited to: reconnaissance or intensive survey, testing, exhumation, or data recovery."5 13 TEX. ADMIN. CODE § 26.3(37) (Tex. Historical Comm'n, Definitions); see TEX. NAT. RES. CODE § 191.052 (authorizing the Commission to employ the power to formulate and adopt requirements of general applicability).

    These provisions in Government Code chapter 442 and Natural Resources Code 191 evidence the Legislature's intent to place the Commission in charge of authorizing the archeological investigation, scientific testing, and recovery of data from items, including exhumed human remains, found in places containing indications of historic human activity. Such investigation, testing, and data recovery serve the Commission's statutory duty in Natural Resources Code section 191.055(3) to glean the maximum amount of historic, scientific, and archeological information from the State's archeological sites. Moreover, the Commission, as the legal custodian of recovered items, has the authority to determine which discovery or scientific investigations may be necessary. Accordingly, a court would likely conclude that to the extent the destructive testing of human remains is reasonably necessary for the Commission to fulfill its functions and duties under these chapters, the Commission is authorized to permit it.

    We next consider Health and Safety Code chapter 711, which grants the Commission authority over nonperpetual care cemeteries,6 including those unknown or abandoned. See TEX. HEALTH & SAFETY CODE §§ 711.001-.084; see id. §§ 711.001(36) (defining "[u]nknown cemetery" to mean "an abandoned cemetery evidenced by the presence of marked or unmarked graves that does not appear on a map or in deed records"), 711.001(1) (defining an "[a]bandoned cemetery" to mean "a cemetery ... that is not owned or operated by a cemetery organization, does not have another person legally responsible for its care, and is not maintained by any person"). Section 711.010 prohibits a property owner from constructing improvements that would disturb an unknown or abandoned cemetery until the human remains are removed "under a written order issued by the state registrar7 ... and under an order of a district court." Id. § 711.010(a). It authorizes the Commission, after receiving notice from the property owner, to intervene and become a party to a suit. Id. § 711.010(c). The Commission is part of the process of the removal of human remains from an unknown or abandoned cemetery. See 13 TEX. ADMIN. CODE § 22.5(b), (c) (Tex. Historical Comm'n, Removal of Remains from an Abandoned or Unknown Cemetery); see also TEX. GOV'T CODE § 442.017(d) (authorizing the Commission to adopt rules implementing its program to identify and preserve abandoned cemeteries across the State); HEALTH & SAFETY CODE § 711.012(c) (authorizing the Commission to adopt rules to enforce and administer sections 711.010 and 711.011 and other provisions to the extent they relate to cemeteries that are not perpetual care cemeteries). As part of its involvement, the Commission "shall ensure that a reasonable effort has been made to identify the remains and that the next of kin is notified if the name of the decedent is determined." 13 TEX. ADMIN. CODE § 22.5(b)(2) (Tex. Historical Comm'n, Removal of Remains from Abandoned or Unknown Cemetery). The Commission's rules provide that "[u]nless otherwise specified, all physical anthropological investigations of human remains ... will use noninvasive techniques." Id. § 22.5(c)(2)(C). Yet, those same rules recognize that invasive techniques may be utilized if "otherwise specified," and place approval for such techniques with the Commission. See id. Destructive DNA testing, such as proposed here, could be found to serve the Commission's obligations to make a reasonable effort to identify the remains. See id. § 29.5(g) (Tex. Historical Comm'n, Disposition of State Associated Collections) (providing the Commission is the authority to approve the use of destructive analysis through its approval of the research design submitted in connection with an application for an Antiquities Permit); id. §§ 26.3(23), 29.4(17) (Tex. Historical Comm'n, Definitions) (defining "destructive analysis"). A court would likely determine that to the extent destructive analysis for the purpose of obtaining DNA samples is reasonably necessary for the Commission to carry out its functions and duties under Health and Safety Code chapter 711, the Commission is authorized to permit it.8

                                 SUMMARY

                  A court would likely conclude that the Historical Commission is authorized to permit the destructive testing of human remains for research purposes, including the purpose of obtaining DNA samples adequate to enable the identification of genetically related descendants pursuant to the Commission's authority in Government Code chapter 442, Natural Resources Code chapter 191, and Health and Safety Code chapter 711.

                                        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

1Letter from Mr. Mark Wolfe, Exec. Dir., Tex. Historical Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 10, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2See Brief from Mr. Douglas Brinkley, Assistant City Manager, City of Sugar Land, Tex. at 1 (Jan. 16, 2019) ("City Brief"); see also Brief from Ms. Michelle R. Morris, Rogers, Morris, & Grover, L.L.P. at 1 (Jan. 22, 2019) ("Morris Brief") (letters on file with the Op. Comm.).
3This opinion does not address tribal restrictions on invasive or destructive testing of Native American remains that may be subject to federal law. See 13 TEX. ADMIN. CODE § 22.5(c)(2)(H) (Tex. Historical Comm'n, Removal of Remains from Abandoned or Unknown Cemetery).
4Briefing submitted in response to your request explains: "All work has been or is being conducted under existing Antiquities Permit #8197, issued by the [Commission] and sponsored by [Fort Bend] ISD, for the 23-acre complex containing archeological site 41FB355." Morris Brief, Exhibit C at 1.
5Moreover, the Commission recognizes the need for the use of destructive analysis. See 13 TEX. ADMIN. CODE § 29.5(g) (Tex. Historical Comm'n, Disposition of State Associated Collections) (providing that the Commission is the authority to approve the use of destructive analysis through its approval of the research design submitted in connection with an application for an Antiquities permit).
6A "[n]onperpetual care cemetery" is a "cemetery that is not a perpetual care cemetery." TEX. HEALTH & SAFETY CODE § 711.001(28). "Perpetual care" means "the maintenance, repair, and care of all places in the cemetery." Id. § 711.001(29).
7The state registrar is the "Unit Director of the Vital Statistics Unit, Texas Department of State Health Services." 25 TEX. ADMIN. CODE § 181.1(27) (Dep't of State Health Servs., Definitions).
8Given the answers to your first two questions, we need not address your third. See Request Letter at 1.