Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 2,2005
The Honorable Richard J. Miller Opinion No. GA-0301
Bell County Attorney
Post Office Box 1127 Re: Whether Health and Safety Code section
Belton, Texas 76513 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 69 1.023(b) prohibits a commissioners court
“from adopting an order authorizing cremation as a means of disposing of a [deceased] pauper’s
remains.“’
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 ofthe deceased pauper, provided by
a person listed in Section 711.002(a).
TEX. HEALTH& SAFETYCODE ANN. § 694.002 (Vernon 2003). See id. 5 711.002(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
lLetter tkm Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney
General, at 2 (Aug. 20,2004) (on tile with Opinion Committee, also available athttp://www.oag.state.tx.us) [hereinai’m
RequestLetter].
The Honorable Richard J. Miller - Page 2 (GA-0301)
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&SAFETYCODEANN. 5 694.002(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 ofthe State ofTexas and authorizes it to distribute dead bodies to various persons
and educational institutions for dissection and other scientific purposes. See TEX. HEALTH&
SAFETYCODEANN. $5 691.022, ,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. 5 691.023(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. 5 691.023(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 aftinning 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. Gp. 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.” Civ ofSun Antonio v. City ofBoerne, 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 ofthe body of a deceased pauper,” and may accomplish this duty by donation, cremation,
or burial of the remains. See TEX.HEALTH& SAFETYCODEANN.5 694.002(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).
The Honorable Richard J. Miller - Page 3 (GA-0301)
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. HEALTHAND 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 Nat1 Bank of Mercedes, 673 S.W.2d
558,565 (Tex. 1984); Tex. Att’y Gen. Gp. 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 69 1.023 was adopted in 196 1, a commissioners court had long been required to bury paupers’
remains. See Act of Aug. 2,1961,57th Leg., 1st C.S., ch. 36,$ 1,196l Tex. Gen. Laws 147,149
(adopting former article 4584, Revised Civil Statutes, now codified in various sections ofHealth and
Safety Code chapter 691), Act approved July 22,1876,15th Leg., R.S., ch. 45, 5 4,1876 Tex. Gen.
Laws 5 1,52 (commissioners court shall provide for burial of paupers); see also Tex. Att’y Gen. Gp.
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, 5 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
69 1.023 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 ifthe two sections were determined to be irreconcilable, section 694.002 would prevail
as the statute latest in date of enactment. See TEX.GOV’T CODEANN. 9 3 11.025(a) (Vernon 1998)
(“[IIf statutes enacted at the same or different sessions ofthe legislature are irreconcilable, the statute
latest in date ofenactment 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 ofMay 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 ofMarch 21,1991,72d Leg., RX,
ch. 14,§211, 1991 Tex.Gen.Laws42,190. SeealsoActofMay28,1989,71stLeg.,R.S.,ch.937,
5 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 ofMay 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.
The Honorable Richard J. Miller - Page 4 (GA-0301)
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.
The Honorable Richard J. Miller - Page 5 (GA-0301)
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 ofdisposition. 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 trub yours,
- Attom&ie&ral of Texas
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