                                 NO. 12-12-00248-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN THE ESTATE OF                            §              APPEAL FROM THE

THOMAS C. WOODS,                            §              COUNTY COURT AT LAW

DECEASED                                    §              RUSK COUNTY, TEXAS

                                          OPINION
       This appeal concerns the right to dispose of the ashes of the body of the decedent,
Thomas C. Woods. His surviving wife, Ann Woods, appeals the decision of the trial court
allowing Curtis Woods, a son of the decedent’s first marriage, to dispose of the cremains in his
capacity as independent executor. We reverse and render.


                                        BACKGROUND
       Thomas’s first wife, Irene, died in 1999. Thomas and Ann were married in 2000. In
January 2012, Thomas filed for divorce from Ann. Thomas died on May 23, 2012, and no final
divorce decree had been rendered. Thomas left a will dated November 3, 2011, naming Curtis as
his independent executor. Ann contested the will, contending that Thomas was not competent at
the time he executed it.
       A hearing was held to determine who would control the disposition of Thomas’s
cremains. Both Ann and Curtis acknowledge that Thomas wanted to be cremated and wanted his
cremains buried next to Irene in a family plot in a Houston cemetery. However, Thomas left no
writing specifying who would control the disposition of his ashes following his cremation. Both
Curtis and Ann wanted that responsibility. Thus, the disagreement between Curtis and Ann
concerned who would conduct the ceremony to bury the cremains. Thomas’s will was admitted
to probate, and Curtis was appointed independent executor.        The trial court ordered that
Thomas’s cremains be delivered to Curtis, in his capacity as independent executor, for
disposition. This appeal followed.


                                        DISPOSITION OF CREMAINS
       In her second issue, Ann contends that the trial court erred in ordering Curtis, as the
independent executor of Thomas’s will, to control the disposition of his cremains. Relying on
Texas Health and Safety Code Section 711.002, she argues that the will did not constitute legal
authority for the trial court’s ruling. Rather, she contends, the statute gives her, as the surviving
spouse, preference to control the disposition of Thomas’s cremains.
Standard of Review
       Statutory construction is a legal question, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, our primary objective is to
give effect to the Legislature’s intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. Where the text
is clear, the text is determinative of that intent. Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 437 (Tex. 2009). We construe the statute’s words according to their plain and
common meaning. City of Rockwall, 246 S.W.3d at 625. In construing a statute, whether or not
the statute is considered ambiguous on its face, a court may consider among other matters, the
object sought to be attained, circumstances under which the statute was enacted, legislative
history, and the common law or former statutory provisions, including laws on the same or
similar subjects. TEX. GOV’T CODE ANN. § 311.023(1)-(4) (West 2013). We presume that the
Legislature was aware of existing law and acted with reference to it. Acker v. Tex. Water
Comm’n, 790 S.W.2d 299, 301 (Tex. 1990).
Discussion
       Ann contends that Curtis’s lack of authority is established by Section 711.002(a) of the
Texas Health and Safety Code, which states as follows:


       (a) Except as provided by Subsection (l), unless a decedent has left directions in writing for the
           disposition of the decedent’s remains as provided in Subsection (g), the following persons, in
           the priority listed, have the right to control the disposition, including cremation, of the
           decedent’s remains, shall inter the remains, and are liable for the reasonable cost of interment:

                (1) the person designated in a written instrument signed by the decedent;
                (2) the decedent’s surviving spouse;


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               (3)   any one of the decedent’s surviving adult children;
               (4)   either one of the decedent’s surviving parents;
               (5)   any one of the decedent’s surviving adult siblings; or
               (6)   any adult person in the next degree of kinship in the order named by law to
                     inherit the estate of the decedent.


TEX. HEALTH & SAFETY CODE ANN. § 711.002(a) (West Supp. 2012). Curtis and Ann agree that
Thomas did not provide written directions for the disposition of his cremains in his will, in a
prepaid funeral contract, or in a written instrument signed and acknowledged by him. See id.
§ 711.002(g). Further, Ann had not been charged with a crime in connection with Thomas’s
death, which would have disqualified her from controlling the disposition of Thomas’s cremains.
See id. § 711.002(l).
       Curtis, an adult child of the decedent, contends that the trial court had discretion to award
him the right to control the disposition of the decedent’s cremains pursuant to subsection (k) of
Section 711.002, which states in pertinent part, that


                [a]ny dispute among any of the persons listed in Subsection (a) concerning their right to
       control the disposition, including cremation, of a decedent’s remains shall be resolved by a court
       of competent jurisdiction.


Id. § 711.002(k). In support of his argument that the trial court did not abuse its discretion by
giving him the right to control the disposition of his father’s cremains, Curtis cites to Burnett v.
Surratt, 67 S.W.2d 1041 (Tex. Civ. App.—Dallas 1934, writ ref’d). There, the sister of the
deceased’s first wife, a business associate, and a longtime friend challenged the estranged wife of
the deceased for control of the decedent’s remains. Id. at 1042. The trial court determined that
the disposition of the remains should be made by the deceased’s first wife’s sister, the decedent’s
business associate, and the decedent’s longtime friend. The appellate court affirmed the trial
court’s judgment based upon principles of equity. Id. at 1042-43. The court’s opinion is dated
February 3, 1934, and rehearing was denied February 10, 1934.
       The 43rd Legislature for the State of Texas was in special session from the dates of
January 29, 1934, to February 27, 1934. During this special session, on February 22, 1934, by a
vote of 105 to 7, the House of Representatives passed Article 928, which stated in pertinent part
as follows:




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         Article 928. Duty of Interring and Right to Control Disposition of Remains. The right to control
       the disposition of the body of a deceased person, unless other directions shall have been made
       therefor by the deceased, shall be vested in, and the duty of interment and the liability for the
       reasonable cost of the interment of such deceased person shall devolve upon, his or her surviving
       wife or husband, or if there be no surviving wife or husband they shall vest in and devolve upon
       the surviving child or children of deceased, or if there be no surviving husband or wife or child of
       deceased, they shall vest in and devolve upon the surviving parent or parents of such deceased, or
       if there be no surviving husband or wife or child or parent of such deceased they shall vest in and
       devolve upon the person or persons respectively in the next degrees of kindred in the order named
       by the laws of Texas as entitled to succeed to the estate of said deceased.


Act of February 27, 1934, 43rd Leg., 2d C.S., ch. 66, §1, 1934 Tex. Gen. & Spec. Laws 146,
157-58. The Senate passed Article 928 by vote of 23 to 0 on February 27, 1934, just over three
weeks after the Dallas Court of Appeals issued its opinion in Burnett. The law became effective
March 15, 1934.
       In 1945, the 49th Legislature recodified the statute, retaining the original priority
designation in the right to control the disposition of the body of a deceased person. Act of 1945,
49th Leg. 2d C.S., ch. 340, § 20, 1945 Tex. Gen. Laws 570. In 1989, the Legislature recodified
this law under Section 711.002 of the Health and Safety Code. Act of May 18, 1989, 71st Leg.,
ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 3002.                    This statute has been amended by the
Legislature during its regular sessions in the years 1991, 1993, 1997, 1999, and 2011. See TEX.
HEALTH & SAFETY CODE ANN. § 711.002 (West. Supp. 2012).
       During the 73rd Legislature’s regular session in 1993, House Bill 1213 was introduced to
amend Section 711.002 of the Health and Safety Code. The House Committee on Investments
and Banking considered various amendments to H.B. 1213. The committee heard testimony
describing a recent situation involving an estranged spouse’s refusal to make funeral
arrangements and the funeral home’s reluctance to work with the deceased’s children in light of
the spouse’s statutory priority. Hearings on Tex. H.B. 1213 Before the House Comm. on
Investments and Banking, 73rd Leg., R.S. 9-10 (April 6, 1993) (transcript available from
Legislative Reference Library). However, the 73rd Legislature made no change in the priority of
individuals having authority to dispose of a decedent’s remains. Act of May 24, 1993, 73rd
Leg., R.S., ch. 634, § 2, 1993 Tex. Gen Laws 2381, 2382.
       This history of the statute going back to 1934 shows that the Legislature has steadfastly
adhered to its established priority of individuals who are to dispose of the remains of the
deceased in the absence of specific instructions by the decedent. See TEX. HEALTH & SAFETY


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CODE ANN. § 711.002(a). The priorities established by the Legislature in a special session in
1934 have remained intact to this day as the law of the State of Texas. The independent executor
of the deceased’s estate is not listed in this exclusive priority list. Id. Accordingly, we hold the
trial court erred when it awarded the right to control Thomas’s cremains to Curtis in his capacity
as independent executor.
         Curtis’s contention that the trial court had the authority to award the decedent’s ashes to
him as his son is misplaced. In Texas, marriage may be terminated only by death or court
decree. In re Marriage of Wilburn, 18 S.W.3d 837, 840 (Tex. App.—Tyler 2000, no pet.).
Although they were estranged, Thomas was still married to Ann on the date of his death. A
surviving spouse, even one who is separated from the deceased spouse at death, retains the status
afforded by the marriage relationship. See Corgey v. McConnell, 260 S.W.2d 99, 102 (Tex. Civ.
App.—El Paso 1953, no writ). Case law has emphasized that the widow has the paramount right
to designate the place and manner of burial. Samsel v. Diaz, 659 S.W.2d 143, 144 (Tex. App.—
Corpus Christi 1983, no writ). Ann, as Thomas’s widow, had priority ahead of his son Curtis to
dispose of his cremains. The intent of the Legislature, as reinforced by case law, is clear.
Entergy Gulf States, Inc., 282 S.W.3d at 437. We hold that a surviving spouse, even if
estranged from the deceased, has priority to dispose of the deceased’s cremains, over a child of
the deceased. We sustain Ann’s second issue. We need not address Ann’s first issue. See TEX.
R. APP. P. 47.1.


                                                    DISPOSITION
         Having held that the trial court erred in awarding disposition of the deceased’s cremains
to Curtis Woods, we reverse the judgment of the county court at law and render judgment
ordering that the cremains of Thomas C. Woods be placed in the possession of Ann Woods to
conduct a proper burial according to the decedent’s wishes.
                                                                JAMES T. WORTHEN
                                                                  Chief Justice


Opinion delivered May 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                                    (PUBLISH)

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                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                              MAY 22, 2013


                                       NO. 12-12-00248-CV

             IN THE ESTATE OF THOMAS C. WOODS, DECEASED
_____________________________________________________________________________
                         Appeal from the County Court at Law
                     of Rusk County, Texas. (Tr.Ct.No. 12-062-P)
_____________________________________________________________________________

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment be reversed and judgment rendered ordering that the
cremains of Thomas C. Woods be placed in the possession of ANN WOODS to conduct a
proper burial according to the deceased’s wishes; and that all costs of this appeal are hereby
adjudged against the Appellee, CURTIS WOODS, in accordance with the opinion of this court;
and that this decision be certified to the court below for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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                     THE STATE OF TEXAS
                        MANDATE
                    *********************************************


TO THE COUNTY COURT AT LAW of RUSK COUNTY, GREETING:

       Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 22nd
day of May, 2013, the cause upon appeal to revise or reverse your judgment between

                 IN THE ESTATE OF THOMAS C. WOODS, DECEASED

                       NO. 12-12-00248-CV; Trial Court No. 12-062-P

                          Opinion by James T. Worthen, Chief Justice.

was determined; and therein our said Court made its order in these words:

        “THIS CAUSE came to be heard on the oral arguments, appellate record and the briefs
filed herein, and the same being considered, because it is the opinion of this court that there was
error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this
court that the judgment be reversed and judgment rendered ordering that the cremains of
Thomas C. Woods be placed in the possession of ANN WOODS to conduct a proper burial
according to the deceased’s wishes; and that all costs of this appeal are hereby adjudged against
the Appellee, CURTIS WOODS, in accordance with the opinion of this court; and that this
decision be certified to the court below for observance.”

        WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.

        WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court
of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the ______ day of __________________, 201____.

                      CATHY S. LUSK, CLERK


                      By:_______________________________
                        Deputy Clerk

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