                                 ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                    July 19,2004



 Mr. 0. C. “Chet” Robbins                                    Opinion No. GA-02 18
 Executive Director
 Texas Funeral Service Commission                           Re: Whether chapter 7 16 of the Health and Safety
 Post Office Box 122 17                                     Code permits a person authorized to dispose ofthe
 Austin, Texas 787 1 l-22 17                                remains of a deceased individual to contract
                                                            directly for cremation services (RQ-0 169-GA)

 Dear Mr. Robbins:

         You ask whether chapter 7 16 of the Health and Safety Code permits a person authorized to
 dispose of the remains of a deceased individual to contract directly for cremation services.’

         Chapter 716 of the Health and Safety Code, enacted in 2003, addresses the regulation of
crematories.    See Act of May 8, 2003, 78th Leg., R.S., ch. 178, 2003 Tex. Gen. Laws 253.
“Crematory” is defined therein as “a structure containing a retort used or intended to be used for
cremation of human remains.“* TEX. HEALTH & SAFETY CODE ANN. § 716.001(g) (Vernon Supp.
2004). “‘Cremation’ means the irreversible process of reducing human remains to bone fragments
through direct flame, extreme heat, and evaporation. The term may include pulverization, which is
the process of reducing identifiable bone fragments after cremation and processing granulated
particles by manual or mechanical means.” Id. 0 716.001(5).           Section 716.051 provides that,
“[elxcept as otherwise provided in this chapter, a crematory establishment may not cremate deceased
human remains until it receives: (1) a cremation authorization form signed by an authorizing agent;
and (2) a death certificate or other death record that indicates the deceased human remains may be
cremated.” Id. 5 7 16.05 1.




          ‘Letter from Mr. 0. C. “Chet” Robbins, Executive Director, Texas Funeral Service Commission, to Honorable
Greg Abbott, Texas Attorney General (Jan. 21, 2004) (on file with Opinion Committee,               also available at
http://www.oag.state.tx.us)  [hereinafter Request Letter].

          *“Retort” is defined in the American Heritage Dictionary as: “A closed . . . vessel . . . used for . . .
decomposition by heat.” AMERICAN HERITAGE DICTIONARY 1489 (4th ed. 2000); The Oxford American Dictionary
defines “retort” as a “container or furnace for carrying out a chemical process on a large or industrial scale.” OXFORD
AMERICANDICTIONARY 1455 (1st ed. 2001); see also TEX. HEALTH& SAFETYCODEANN. 0 716.001(6) (Vernon Supp.
2004) (“‘Cremation chamber”’ means an enclosed retort used exclusively for cremation of human remains.“).
  Mr. 0. C. “Chet” Robbins         - Page 2




          A “cremation authorization        form” must, inter alia:

                             (1) identify the deceased person and the time and date of
                   death;

                           (2) include the name and address of the funeral director OY
                   otherperson that contracted to provide for the cremation;

                           (3) ident@ the authorizing agent and the relationship between
                   the authorizing agent and the deceased person;




                            (7) include the name of the funeral establishment or other
                   person authorized to receive the cremated remains fi-om the crematory
                   establishment;




Id. 5 716.052(a)(1)-(3), (7) (emphasis added). “Authorizing agent” means “a person authorized to
dispose of a decedent’s remains under Section 711.002 [of the Health and Safety Code].“3 Id. 0
7 16.00 l(1). Section 7 11.002(g) provides that an individual “may provide written directions for the
disposition” of his or her remains, “including cremation.” Id. 0 711.002(g) (Vernon 2003). If a
decedent has not left written directions, section 711.002(a) names those persons, “in the priority
listed [that] have the right to control the disposition, including cremation, of the decedent’s remains.”
Id. 8 711.002(a). Section 711.002(b) sets forth the form of the “written instrument” by which the
decedent shall have directed the disposition of his or her remains. Id. 0 711.002(b).

         As we have indicated, section 716.052(a) provides that a “cremation authorization form”
must “include the name and address of the funeral director or otherperson that contracted to provide
for the cremation,” as well as “the name of the funeral establishment or otherperson authorized to
receive the cremated remains from the crematory establishment.” Id. 9 716.052(a)(2), (7) (Vernon
Supp. 2004) (emphasis added). Your question is whether the phrase “other person” is limited to
agents of a funeral establishment, or whether it may include the authorizing agent. Request Letter,
supra note 1, at 3. If the latter construction is correct, then an authorizing agent may contract
directly with a crematory.

         In State v. Johnson, 939 S. W.2d 586 (Tex. Crim. App. 1996), the court was asked to construe
a portion of article 38.23(a) of the Code of Criminal Procedure, which provided that “[n]o evidence
obtained by an officer or other person in violation of any provision of the Constitution or laws of the
State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in



         %ection 716.053(a) permits an authorizing agent to “delegate to a representative in writing the authority to
execute a cremation authorization form.” TEX. HEALTH & SAFETY CODE ANN. Q 716.053(a) (Vernon Supp. 2004).
 Mr. 0. C. “Chet” Robbins     - Page 3             (GA-02 18)




evidence against the accused on the trial of any criminal case . . .” Id. at 587. The court said that
“[tlhis dispute turns on the words ‘officer or other person’. The State contends that ‘other person’
includes only ‘peace officers or citizens acting as agents for peace officers’. . . . Appellee, however,
urges that ‘other person’ encompasses private individuals not acting as agents of the government.”
Id. The court concluded:

                 No doubt, the plain language of [article] 38.23 supports the
                 conclusion that the unlawful or unconstitutional actions of all people,
                 governmental and private alike, fall under the purview of Texas’
                 exclusionary rule. One need only turn to a dictionary of the English
                 language: “[Olther” means “being the ones distinct from those first
                 mentioned”. . . . Since “officer[s]” are “those first mentioned,”
                 “other person[s]” are those distinct from officers. Of course, a person
                 can be distinct from an officer in many ways, but the text of [article]
                 38.23 does not draw any distinction other than the most general
                 “officer or other person”. And, despite the State’s assertion to the
                 contrary, “officer” in no way modifies “other person” so as to limit
                 the meaning of “other person” to “citizens acting as agents for peace
                 officers”. . . . Not only is the State’s contention grammatically
                 insupportable, but it also proposes that the “other person[s]” are
                 somehow like officers, a concept that contradicts the very definition
                 of “other”, which serves to draw a distinction, albeit broad, between
                 “ofticer[s]” and “other person[s]“.

Id. (citation omitted).

          Likewise, nothing in section 716.052(a) of the Health and Safety Code suggests that the term
“other person” should be limited to agents of a funeral establishment.        As the court declared in
Johnson, such a construction “contradicts the very definition of ‘other,’ which serves to draw a
distinction, albeit broad, between “officer[s]” and “other person[s].” See id. We find this reasoning
highly persuasive in its application to the question you present. Nothing in the legislative history
of the bill enacting chapter 716 indicates that the legislature intended the term “other person” to
apply only to agents of a funeral establishment.     In addition, our construction is supported by the
entire context of chapter 716. When the legislature intends to use “other” in reference to the
representative of a funeral establishment, it has done so explicitly. See, e.g., TEX. HEALTH &
SAFETY CODE ANN. 5 716.052(c) (Vernon Supp. 2004) (“A funeral director or other representative
of a funeral establishment that contracts to provide for the cremation of deceased human remains
must sign the cremation authorization form.“).

         This does not end our inquiry, however.    Section 716.004(b) of the Health and Safety Code
provides:

                        (b) Unless a crematory establishment is also licensed as a
                funeral establishment, the crematory establishment may not accept
Mr. 0. C. “Chet” Robbins          - Page 4              (GA-021 8)




                   any deceased human remains for cremation until the cremation is
                   authorized in writing by a justice of the peace or medical examiner of
                   the county in which the death occurred.

Id. 5 716.004(b). This provision means that an authorizing agent may directly use the services of
a crematory only if the crematory is also licensed as a “funeral establishment,” or, in the alternative,
if the authorizing agent receives a written authorization from either a justice of the peace or medical
examiner of the county in which the death occurred. Although section 7 16.004(b) thus imposes an
additional limitation on an authorizing agent’s attempt to contract directly for cremation services,
it does not forbid it.4

          We conclude that chapter 716 of the Health and Safety Code permits a person authorized to
dispose of the remains of a deceased individual to contract directly for cremation services, but only
if the crematory is also licensed as a funeral establishment or if the authorizing agent receives written
authorization from either a justice of the peace or medical examiner of the county in which the death
occurred.




            4Section 14 of House Bill 587, which enacted chapter 716 of the Health and Safety Code, imposes yet another
qualification upon an authorizing agent’s capacity to contract directly for cremation services. Section 14 of that bill
added section 651.656 to the Occupations Code. See Act ofMay 8,2003,78thLeg.,         R.S., ch. 178,§ 14,2003 Tex. Gen.
Laws 253,262. That statute provides that “[a] person may not hold a crematory establishment license unless the person
holds a funeral establishment license or owns or operates a perpetual care cemetery.”           TEX. Oct. CODE Am. $
65 1.656(b) (Vernon 2004). However, subsection(c) states that “[slubsection (b) does not apply to the owner or operator
of a crematory registered with the commission on September 1, 2003 .” Id. 0 65 1.656(c). Thus, an authorizing agent
who attempts to contract with a crematory not registered with the Texas Funeral Service Commission on September 1,
2003, may in fact be compelled to negotiate with a funeral establishment or a cemetery in order to receive crematory
services.
Mr. 0. C. “Chet” Robbins    - Page 5          (GA-021 8)




                                       SUMMARY

                        Chapter 716 of the Health and Safety Code permits a person
               authorized to dispose of the remains of a deceased individual to
               contract directly for cremation services, but only if the crematory is
               also licensed as a funeral establishment or if the authorizing agent
               receives written authorization from either a justice of the peace or
               medical examiner in which the death occurred.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
