                                                  KEN PAXTON
                                             ATTORNEY GENERAL OF TEXAS




                                                     May 9, 2016



Ms. Jean L. Olinger, D.M.                                       Opinion No. KP-0083
Presiding Officer
Texas Funeral Service Commission                                Re: Whether a county is responsible for costs
Post Office Box 12217                                           associated with transporting a body from an
Austin, Texas 78711                                             autopsy to its final destination (RQ-0069-KP)

Dear Ms. Olinger:

         Your question concerns the transportation of a body following an autopsy performed by
order of a justice of the peace. 1 If a person dies under certain circumstances, such as when the
cause is unknown or there are indications that the death may have been caused by unlawful means,
a justice of the peace in the county must conduct an inquest into the death. See TEX. CODE CRIM.
PROC. art. 49.04(a)(l)-(8) (listing various circumstances triggering the duty of a justice of the
peace to conduct an inquest). During an inquest, a justice of the peace may decide that an autopsy
is necessary to determine or confirm the nature and cause of death, in which case he or she must
order an autopsy. See id. art. 49 .10( e)(1). 2 In such an instance, the commissioners court "shall
pay a reasonable fee for the transportation of a body to a place where an autopsy can be performed."
Id. art. 49.lO(h). You inquire as to "who is responsible for transporting the body to the final
destination" after the autopsy has been completed. Request Letter at 1. "If the funeral home must
retrieve the body,'; you ask, "who.is responsible for the transportation costs - the county or the
deceased's agent?" Id.                                                                              ·




         1
           See Letter from Ms. Jean L. Olinger, D.M., Presiding Officer, Tex. Funeral Serv. Comm'n, and attached
brief, to Honorable Ken Paxton, Tex. Att'y Gen. (Nov. 9, 2015), https://www.texasattorneygeneral.gov/opinion
/requests-for-opinion-rqs ("Request Letter" and "Brief," respectively). Because your letter references an autopsy
ordered by a justice of the peace, we presume your question relates to a county that has not established the office of
medical examiner. See. TEX. CODE CRIM. PROC. art. 49.25, § 12 ("When the commissioners court of any county shall
establish the office of medical examiner, all powers and duties of justices of the peace in such county relating to the
investigation of deaths and inquests shall vest in the office of the medical examiner."). We limit our analysis
accordingly.

         2
          A justice of the peace must also order an autopsy in the case of a child under age six whose death was
unexpected or the result of abuse or neglect, or if directed to do so by the district attorney, criminal district attorney,
or, in some cases, the county attorney. Id. art. 49.1 O(e)(2)-(3).
Ms. Jean L. Olinger, D.M. - Page 2                    (KP-0083)



        A county commissioners court generally has only those powers expressly delegated to it
by the Texas Constitution or the Legislature. City of San Antonio v. City of Boerne, 111 S.W.3d
22, 28 (Tex. 2003). The commissioners court may also exercise those powers that are necessarily
implied for the accomplishment of its assigned duties. Id. With regard to the disposition of a
body, the Legislature has given the commissioners court the limited responsibility of providing
"for the disposition ... of a deceased pauper" and has authorized the county to "create a fund ...
to pay the costs incurred" in the disposition, which could conceivably include transporting the
body to its final destination. TEX. HEALTH & SAFETY CODE § 694.002(a), (e). Similarly, the
Legislature has directed a political subdivision with "charge or control of a body not claimed for
burial or a body required to be buried at public expense" to notify the Anatomical Board of the
State of Texas (the "Board"), 3 if requested, of the existence of the body and allow the Board "to
remove the body." Id. § 691.023(a)(l), (3); see also id. §§ 691.021 (clarifying that "political
subdivision" as used in subchapter B of chapter 691 includes a county), 71 l.002(a) (listing in
priority order the persons with the right to control the disposition of a decedent's remains). If the
Board does not require the body, the political subdivision must "pay all costs" of preparing the
body for burial. Id. § 691.023(b); see also id. § 71 l.002(e) (giving the person conducting an
inquest the duty to inter the remains when no person with the legal duty to inter has assumed the
responsibility). Thus, if a body is not claimed for burial or is to be buried at public expense, and
if the Board does not require the body, the commissioners court is required to pay for the body's
preparation for burial, which could include the cost of transporting the body to its final destination.

        We find no other provision authorizing a commissioners court to transport a body following
an autopsy or to pay for the cost of such transportation. You suggest that transporting a body
following an autopsy should be considered part of the costs related to obtaining the autopsy. See
Brief at 1. In your view, "[i]f this were not so, the cost would have to be borne by the Funeral
Establishment, and would certainly be passed on to the family or person responsible for the final
disposition of the deceased." Id. However, placing the ultimate financial responsibility for the
disposition of a body on the person with the legal duty to inter the deceased appears to be precisely
what the Legislature intended and would be the case had no autopsy been ordered. See HEALTH
& SAFETY CODE § 71 l.002(a), (a-3) (making such a person liable for the reasonable cost of
interment). Furthermore, statutes governing the involvement of a funeral establishment to carry
out the interment contemplate that the transportation of a body generally falls within the scope of
the services provided by the establishment. See id. § 711.001(13) (providing that a "funeral
establishment" is "a place of business used in the care and preparation for interment or
transportation ofhumanremains" (emphasis added)).

        When a funeral director is engaged to take charge of a deceased's body and prepare it for
burial or other disposition, the funeral director begins a relationship with the consumer known in
the industry as "first call," which gives the director the legal duty to assume responsibility for the
body. See TEX. Occ. CODE§ 651.401; see also id. § 651.405 (requiring a funeral establishment to
provide a written retail price list including the price of "transferring a deceased person to the
funeral establishment"). In providing certain parameters governing the provision of services "on


         3
          The Board is statutorily authorized to facilitate the distribution of deceased human remains for the purpose
of teaching and research. See generally TEX. HEALTH & SAFETY CODE§§ 691.001-.035.
Ms. Jean L. Olinger, D.M. - Page 3              (KP-0083)



first call," section 651.401 of the Occupations Code generally requires a funeral director to "direct
and personally supervise the pickup of a dead human body." Id. § 651.401(a). The Legislature
anticipated that there would be circumstances under which the personal supervision of the funeral
director would be unnecessary and could be delegated to an employee, including when transferring
a body "from a funeral establishment to and from a morgue in which an autopsy is performed."
Id. § 651.401 (b)(2). But such a transfer is still the responsibility of the funeral director. See id.
§ 651.401 (d) (providing that "[a] funeral director ... who directs the removal or transfer of a dead
human body without personally supervising the transfer is strictly accountable for compliance with
the requirements" of section 651.401). The Funeral Service Commission's own rules appear to
acknowledge that only the transportation of a body to a morgue for an autopsy, and not from the
morgue afterward, falls outside of the scope of a funeral director's responsibility. See 22 TEX.
ADMIN. CODE § 203.21(b) (2015) (Tex. Funeral Serv. Comm'n, First Call Definition)
("Transportation of a body sent to a morgue ... for ... autopsy at the request of a Justice of the
Peace ... does not constitute a First Call. Any expenses ... for the transportation of a body under
this subsection are not items of choice for the consumer ... and therefore are not th.e responsibility
of the consumer to pay." (emphasis added)).

         This view is consistent with the objective of an autopsy. The purpose of exercising a justice
of the peace's statutory authority to order an autopsy is to determine the cause of death. See TEX.
CODE CRIM. PROC. art. 49.IO(e) (listing the circumstances requiring an autopsy). Transporting a
body to its final destination after the autopsy does not further this purpose. In addition, the
Legislature has authorized a commissioners court to pay for autopsy-related expenses only for the
autopsy itself and events leading up to its undertaking, not for events afterward. See, e.g., id. arts.
49 .1 O(b) (for a consultation with a county health officer or physician as to the necessity of ordering
an autopsy), 49.1 O(g) (if assessed, to a physician for performing the autopsy), 49. IO(h) (for
transportation of a body to a place where an autopsy can be performed), 49.1 l(c) (for chemical
analysis), 49.23(a) (for the assistance of a death investigator during an inquest). The fact that the
Legislature knows how to provide for autopsy-related costs but has not provided for post-autopsy
transportation of a body is an indication that such a cost is the responsibility of the person with the
legal duty to inter the deceased, or that person's agent, and not a commissioners court. See FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (noting that the
Legislature knows how to enact a law effectuating its intent).
Ms. Jean L. Olinger, D.M. - Page 4           (KP-0083)



                                      SUMMARY

                      A commissioners court is authorized to pay the cost of
              transporting a body to its final destination following an autopsy
              ordered by a justice of the peace only if a body is not claimed for
              burial or is to be buried at public expense and if the Anatomical
              Board of the State of Texas does not require the body. Otherwise,
              the cost of transporting the body to its final destination is the
              responsibility of the person with the legal duty to inter the deceased,
              or that person's agent.

                                             Very truly yours,



                                            ~?~
                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee
