                     October7. 1987




Honorable Mike Driscoll       Opinion'No. JM-808
Harris County Attorney
1001 Preston, Suite 634       Re: Whether a dead body must
Houston, Texas 77002          be,transferred to a county
                              morgue under the direction
                              and supervision of a.licensed
                              funeral director or embalmer
Dear Mr. Driscoll:
     You ask the following question:
      Must dead human bodies be transferred to the
      morgue under the direction and supervision
      of a licensed funeral director or embalmer?
In order to put your question in context, we will set out
relevant provisions governing county medical examiners as
well as relevant provisions governing funeral directors
and embalmers.
     Article 49.25 of the Code of Criminal Procedure
governs inquests upon dead bodies by county medical
examiners. Cf. Code Crim. Proc. art. 49.01 (inquests upon
dead bodies by justices of the peace). Section 6 of
article 49.25 provides:

          -Y   medical   examiner, or    his  duly
       authorized deputy, shall be authorized, and
       it shall be his duty, to hold inquests with
       or without a jury within his county, in the
       following cases:

          1.   When a person shall die      within
       twenty-four hours after admission to      a
       hospital or institution or in prison or in
       jail;
          2. When any - person is killed; or from
       any cause dies an unnatural death, except



                          p. 3821
Honorable Mike Driscoll - Page 2    (TM-808
                                          j




           under sentence of the law: or dies in     the
           absence of one or more good witnesses:
               3. When the body of a human being is
            found, and the circumstances of his death
            are unknown;
               4. When the circumstances of the death
            Of  any person are such as to lead to
            suspicion that he .came to his death by
            unlawful means;
               5. When any 'person commits suicide, or
            the circumstances of his death are such as
            to lead to suspicion that he committed
            suicide:
               6. When a person dies without having
            been attended by     a duly licensed     and
            practicing physician, and the local health
            officer or registrar required to report the
            cause of death under Rule 41a, Sanitary Code
            of Texas, Article     4477, Revised    Civil
            Statutes, General Laws, 46th Legislature,
            1939, page 343, does not know the cause of
            death. When the local health officer or
            registrar of vital statistics whose duty it
            is to certify the cause of death does not
            know the cause of death, he shall so notify
            the medical examiner of the county in which
            the death occurred and request an inquest:
            and
               7. When a person dies who has been
            attended immediately preceding his death by
            a duly licensed and practicing physician or
            physicians, and such physician or physicians
            are not certain as to the cause of death and
            are unable to certify with certainty the
            cause of death as required by Rule 40a,
            Sanitary Code of     Texas, Article     4477,
            Revised Civil Statutes, Chapter 41, Acts,
            First Called Session, 40th      Legislature,
            1927.   In case of such uncertainty the
            attending physician or physicians, or the
            superintendent or general manager of the
            hospital or    institution in     which   the
            deceased shall have died, shall so report to




                               P.   3822
.   ,




        Honorable Mike Driscoll - Page 3     (JM-808)




                    the medical examiner of the county in which
                    the death occurred, and request an inquest.
                       The inquests authorized and required by
                    this Article shall be held by the medical
                    examiner of the county in which the death
                    occurred.
                       In making such investigations and holding
                    such inquests, the medical examiner or an
                    authorized deputy may administer oaths and
                    take affidavits. u the absence of next of
                    kin or    lesal   renresentatives   of   the
                     eceased. the medical examiner or authorized
                    deoutv shall take charoe of the bodv and all
                    grooertv found with it. (Emphasis added.)
                  Section 8 of article 49.25 prohibits anyone. from
             disturbing or moving a dead body without the authorization
             of the medical examiner if the death occurred under
             circumstances set out above in section 6:
                       When any death under circumstances set
                    out in Section 6 shall have occurred, the
                    body shall not be disturbed or removed from
                    the position in which it is found by any
                    person without    authorization   from   the
                    medical examiner    or authorized    deputy,
                    except for the purposes of preserving such
                    body from loss or destruction or maintaining
                    the flow of traffic on a highway, railroad
                    or airport..
                  Section 9 of article 49.25, which gives the medical‘
             examiner authority to perform an autopsy if necessary to
             determine the cause of death, provides in part:        "In
             performing an autopsy the medical examiner or authorized
             deputy may use the facilities of any city or county
             hospital within the county or such other facilities as are
             made available."
                  Under article 49.25, then, the Harris County Medical
             Examiner has authority to have a body moved to a morgue if
             he needs to do so to determine cause of death. You ask
             whether the act governing funeral directors, article
             4582b, V.T.C.S., requires that a licensed funeral director
             or embalmer supervise the moving of the dead body in such
             a situation.




                                           p-.3823
Honorable Mike Driscoll - Page 4   :,<x-808)




          A funeral director is “a person who for compensation
     engages in or conducts, or who holds himself out as being
     engaged, for compensation, in preparing, other than by
     embalming, for the burial or disposition of dead human
     bodies,   and   maintaining   or   operating   a   funeral
     establishment for the preparation and disposition, or for
     the care  of dead human bodies." V.T.C.S. art. 4582b,
     51(A)(l). See also V.T.C.S. art. 4582b, §l(D) (defining
     Wembalmer~~). Section l(B) of article 458233provides:
               The term *directing     a funeral,'    or
            'funeral directing' as herein used, shall
            mean the directing by a licensed funeral
            director from the time of the first call
            until interment or entombment services are
            completed, or until the body is released for
            transport to a crematorium, or released to a
            public carrier. (Emphasis added.)
          Section l(C) of article 4582b defines **first call"
     and requires a licensed funeral director or embalmer to
     personally supervise the transfer of a body on "first
     call":
               The term 'first call' shall mean the
            beginning of the relationship and duty of
            the funeral director to take charge of a
            dead human body and have same prepared by
            embalming, cremation, or otherwise,       for
            burial or disposition, provided all laws
            pertaining to public health in this state
            are complied with. 'First call* does not
            include calls made by ambulance, when the
            person dispatching the ambulance does not
            know whether a dead human body is to be
            picked up.     A dead human body shall be
            picked up on first call only under the
            direction and personal supervision of a
            licensed funeral director or embalmer.      A
            dead human body may be transferred from one
            funeral home to another funeral home and
            Prom a funeral home to and from a morgue
            where an autopsy is to be performed without
            a licensed      funeral director   personally
            making the transfer. u      circumstances u
                  there is no reasonable nrobability
            &hat unlicensed oersonnel will encounter
            familv members    or other versons with whom
            funeral arranaements are normallv made by



                                   p. 3824
Honorable Mike Driscoll - Page 5   (JM-908)




           licensed funeral directors or embalmers, a
           dead human bodv mav      be nicked UD     or
           transferred without the nersonal suaervision
           of a funeral director or embalmer.       Anv
           inadvertent contact with familv members or
           Qther nersons    shall be    restricted   to
           unlicensed   nersonnel    identifvinc    the
           emnlover to    the nerson.    arranoino   an
           anwointment with the emwlover for anv werson
           who indicates a desire to make funeral
           arranaements for the deceased. and makinq
           anv disclosure to     the werson that     is
           reouired bv anv federal or state reaulation.
           A funeral director or embalmer who directs
           the removal or transfer of a dead human bodv
           without Drovidinc nersonal suwervision shall
           be held strictlv accountable for comwliance
           with the requirements of and excentions to
           'first call' as wrovided bv this Act.
    (Underlined language added by Acts 1987, 70th Leg., ch.
    306, 51, at 3319, 3320.)      It is an offense for an
    unlicensed person to make a first call "without the
    authorization or supervision as provided in Section lC.'!
    See also V.T.C.S. art. 458233,53(H)(17) (Funeral Service
    Commission may revoke license for failure to comply with
    section l(C)); §6A(2). Your question is whether article
    458233requires that a dead body be moved under the
    personal supervision of a licensed funeral director or
    embalmer when the county medical examiner orders it to be
    transferred from the ~place it was found to a county
    morgue.
         The first movement of a dead body from the site of
    .death is not necessarily a first call.  First call, as
    defined in article 458233, section l(C), is the first
    transfer a funeral director is responsible for making,1


          1. The statement in article 458213,section l(C),
    that first call does not include calls made by ambulance
    when the person dispatching the ambulance does not know
    whether a dead human body is to be picked up gives the
    impression that the requirements of first call apply to
    anyone who makes the initial transfer of a dead body from
    the place where it is found. Everything else in section
                                          (Footnote Continued)



                               p. 3825
Honorable Mike Driscoll - Page 6     (JM-808)




     and a funeral director has such a responsibility only
     after he has been engaged to take charge of the disposal
     of a body by the person with the right to possess the
     body. m    mve v. Aetna Casualtv & Suretv Co., 99 S.W.Zd
     646 (Tex. Civ. App. - Beaumont 1936), aff'd 121 S.W.2d 986
     (Tex. 1938) (next of kin have right to possession of dead
     body as well .s duty to provide for burial): Code Crim.
     Proc. art. 49.25, 56 (in absence of next of kin or legal
     representative, medical examiner shall take charge of dead
     body). Therefore, if the Harris County Medical Examiner
     orders a dead body moved to the county morgue before a
     funeral director has been engaged to prepare the body for
     burial or other disposition, the statutes governing first
     calls cannot possibly apply.
          A remaining question is whether the        provisions
     governing first call are applicable when a body is being
     transferred under the orders of a county medical examiner.
     and the next of kin have alread engaged a funeral director
     to take charge of the disposition of the body.     Section
     l(C) of article 4582b,      V.T.C.S., excepts from     the
     requirement of    personal  supervision   on  first   call
     transfers of a dead body to and from specific places:   "A
     dead human body may be transferred from one funeral home
     to another funeral home and from a funeral home to and
     from a morgue where an autopsy is to be performed without
     a  licensed   funeral director    personally making    the
     transfer."    (Underlined   language    added   by    70th
     Legislature.) Before the 70th Legislature amended section

     (Footnote Continued)
     l(C) 8 however, makes clear that the requirements apply
     only to licensed funeral directors or embalmers who have
     taken on the responsibility for a dead body. For example,
     section l(C) states that first call is the beginning of
     the "duty of the funeral director to take charge of a dead
     human body." Also, the 70th legislature added, language
     that leaves no room for doubt that the requirements of
     that section are intended to regulate the actions of
     funeral directors and embalmers:   "A funeral director or
     embalmer who directs the removal or transfer of a dead
     human body without providing personal supervision shall be
     held strictly    accountable for    compliance with    the
     requirements of and exceptions to 'first call' as provided
     by this Act."    Apparently, then, the statement about
     ambulances was intended to apply if an ambulance is
     dispatched by a funeral director or embalmer.




                                   p; 3826
Honorable Mike Driscoll - Page 7   (JM-808)




    l(C) t all transfers to and from a morgue where an autopsy
    was to be performed were excepted from the requirement of
    personal supervision.    It has been suggested that the
    addition of the words "from a funeral home" to that
    exception mean that transfers to a morgue from a place
    other than a funeral home are subject to the requirements
    applicable to first calls.    We think that interpretation
    is partially correct: the amendment does not          mean,
    however, that a county medical examiner must have a body
    moved to the county morgue under the personal supervision
    of a funeral director or embalmer. The requirements of
    first call apply only if it is the dutv of a funeral
    director to have the bodv transfered to a morcue.       The
    county medical examiner is in charge of the transfer of
    dead bodies subject to section 6 of article 49.25 of the
    Code of Criminal Procedure.     @   Code Crim. Proc. art,
    49.25, 58.    The obligation to personally supervise the
    transfer of a dead body     can arise only when a funeral
    director is responsible for a body. Because the right of
    a medical examiner to order a dead body transferred to a
    morgue is paramount to the rights of the person who has a
    right to possession      of the body,     the rights    and
    responsibilities of a funeral director in regard to a dead
    body--which    are    derived   from    the   rights    and
    responsibilities of the person who has a right           to
    possession of the body-- cannot supersede the authority  of
    a medical examiner over the removal of a body subject to
    article 49.25.      Thus, unless    the medical    examiner
    authorizes a funeral director or embalmer to transfer a
    body to a morgue, the funeral director or embalmer can
    have no duty to personally supervise the transfer, and the
    statutes governing first call are inapplicable.
          In your request letter you state that bodies have
     often been transferred to the county morgue from the place
     they are found by persons employed by funeral homes.    If
     the medical examiner has authorized a funeral director to
     have a body transfered from the place where it is found to
     the county morgue and it is therefore .the         funeral
     director's responsibility to do so, then, under the terms
     of the language added to article ,4582b, section.l(C), by
     the 70th Legislature, a licensed funeral director must
     personally supervise the transfer unless there is no
     reasonable probability that unlicensed personnel will
     encounter family members or other persons with whom
     funeral arrangements are normally made.




                               p. 3827
iioncrableMike Driscoll - Page 8   (JM-808)




                            SUMMARY
               A county    medical    examiner  has    no
            obligation to engage a licensed funeral
            director or embalmer      to supervise    the
            transfer of    a dead     body found    under
            circumstances described in article 49.25,
            section 6, of the Code of Criminal Procedure
            from the place the body his found to the
            county morgue.    A    funeral director    or
            embalmer who has been engaged by the next of
            kin of a deceased person has no right or
            obligation to supervise the transfer of the
            body of the deceased to the county morgue
            unless the county medical examiner        has
            authorized the funeral director to transfer
            the body. If a licensed funeral director or
            embalmer has been authorized and therefore
            has-the responsibility to move a dead body
            from the place it is found to the county
            morgue, then the move must be made under the
            personal supervision and direction of the
            licensed funeral director or embalmer unless
            there is no reasonable probability that
            unlicensed personnel will encounter family
            members or other persons with whom funeral
            arrangements are normally made.



                                      J-k
                                         Very truly you
                                                .


                                         JIM     MATTOX
                                         Attorney General of Texas
     MARYKELLER
     Executive Assistant Attorney General
     JUDGE ZOLLIE STEAXLEY
     Special Assistant Attorney General
     RICK GILPIN
     Chairman, Opinion Committee
     Prepared by Sarah Woelk
     Assistant Attorney General




                               p. 3828
