                                             GREG        ABBOTT




                                                  April 26,2007


The Honorable Royce West                                          Opinion No. GA-0543
Chair, Committee on Intergovernmental Relations
Texas State Senate                                               Re: Whether, in light of section 716.101 of
Post Office Box 12068                                            the Health and Safety Code, a county may
Austin, Texas 787 11-2068                                        cremate an unidentified deceased pauper's
                                                                 remains (RQ-055 1-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& SAFETYCODEANN.5 694.002(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& SAFETYCODEANN. 5 716.101 (Vernon Supp. 2006). On
behalf of Senator Juan "Chuy" Hinojosa, you ask whether, in light of section 7 16.10I, 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& SAFETYCODEANN.5 694.002(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
establishment^.^ See TEX.HEALTH& SAFETYCODEANN.ch. 716 (Vernon Supp. 2006); see also

         'SeeLetter 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].

        2Noperson 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. CODEANN. 5
                                                                                                        (continued.. .)
The Honorable Royce West - Page 2                       (GA-0543)



id.5 716.001(10) (defining "crematory establishment" as "a business that operates a crematory for
which a license is required under Subchapter N, Chapter 65 1, Occupations Code"). Under section
7 16.101, which you cite, "[a] crematory establishment may not accept for cremation unidentified
human remains." Id.

        You suggest that we should interpret section 7 16.101 to distinguish between unidentified
remains brought to a crematory establishment by counties and those brought by other entities or
 individual^.^ See Request Letter, supra note 1, at 2. But the Legislature has not, in section 7 16.101
or in any other statute of which we are aware, articulated such a distinction. Neither section 7 16.101
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& SAFETYCODEANN.5 694.002 (Vernon 2003); id. 5 716.101 (Vernon
Supp. 2006). Moreover, were we to construe section 7 16.101 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 7 16 requiring identification of the remains. See, e.g., TEX.HEALTH&SAFETY
CODEANN. 5 716.052(a)(l) (Vernon Supp. 2006) (requiring the cremation form that must be
received with the remains to identify the deceased person); id.5 7 16.102(a)(6) (requiring a crematory
establishment to provide a receipt that identifies the deceased person to a representative of a funeral
establishment); id. 5 7 16.1%(a) (requiring a crematory establishment to place cremated remains
"with proper identification" into a temporary container or urn); id. 5 716.251(a)(l) (requiring a
crematory establishment to maintain a record listing the names of the deceased persons whose
remains it has cremated).

        Because a crematory establishmentcannot accept unidentified remains for cremation, section
716.10 1 effectively abrogates a county's authority to dispose of an unidentified pauper's remains by
cremation under section 694.002(a).4 See id.5 716.101. 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'TCODEANN. $5 3 11.025, .026 (Vernon 2005) (encouraging a construer to interpret
statutes so that they harmonize or create limited exceptions).


         '(...continued)
65 1.656(a) (Vernon 2004); see also id. 5 651.001(2) (defining "commission"); 22 TEX.ADMIN.CODE5 205.3 (2006)
(Tex. Funeral Serv. Comm'n, Crematory License Requirement and Procedure).

          '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 $1050 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).

          4Section 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
CODEANN. $ 7 16.201(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 7 16.201(a)(3) if the county had obtained
a court order, even though section 7 16.101 specifically prohibits the acceptance of unidentified remains. CJ TEX.GOV'T
CODEANN. 5 3 11.026(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").
The Honorable Royce West - Page 3           (GA-0543)



                                      S U M M A R Y

                     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,




                                             Attorney ~ e g r aof
                                                                l 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
