                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 March 9,2005



Mr. Randall S. James, Commissioner                          Opinion No. GA-03 10
Texas Department of Banking
2601 North Lamar Boulevard                                  Re: Whether a funeral establishment must
Austin, Texas 78705-4294                                    comply with a statutory requirement that it
                                                            obtain a “cremation authorization form” signed
                                                            by an “authorizing agent” when a purchaser
                                                            in a prepaid funeral contract has previously
                                                            specified disposition ofthe purchaser’s remains
                                                            by cremation    (RQ-0271-GA)


Dear Commissioner       James:

        You ask whether a funeral establishment must comply with a statutory requirement that it
obtain a “cremation authorization form” signed by an “authorizing agent” when a purchaser in a
prepaid funeral contract has previously specified disposition of the purchaser’s remains by
cremation.’

         Chapter 154 of the Finance Code, denominated “Prepaid Funeral Services,” vests the
administration of prepaid funeral contracts in the Department of Banking (the “Department”) and
authorizes the Department to adopt reasonable rules for such administration. TEX. FIN. CODE ANN.
$154.05 l(a)-(b) (Vernon Supp. 2004-05). A “person,” defined as “an individual, firm, partnership,
corporation, or association,” id. 3 154.002(g), must, in order to sell prepaid funeral contracts:

                        (1) file an application for a permit with the department             on a
                 form prescribed by the department;

                          (2) pay a tiling fee in an amount set by the commission           under
                  Section 154.05 1; and

                          (3) if applicable, pay extraordinary expenses required for out-
                 of-state investigation of the person.



           ‘Letter from Mr. Randall S. JameS, Commissioner, Texas Department of Banking, to Honorable Greg Abbott,
Texas Attorney General (Sept. 7,2004) (on tile with Opinion Committee, also available af http:l/www.oag.state.6r.us)
[hereinafter Request Letter].
Mr. Randall S. James   - Page 2                    (GA-0310)




Id. 3 154.102. The Department is required to “approve a sales contract form for prepaid funeral
benefits before the form is used.” Id. 3 154.151(a). Section 154.1551(a) provides, in relevant part:

                        (a) The funeral merchandise and services to be provided by
               the seller under a fully paid prepaid funeral benefits contract may be
               modified after the death of the beneficiary if the modification
               complies with Subsection (b) or is otherwise agreed to in a writing
               signed by the seller and the person charged with the disposition of the
               beneficiary’s remains by Section 7 11.002(a), Health and Safety Code,
               except that:

                           (1) if the purchaser is also the beneficiary:

                               (A) the contracted funeral merchandise and
                       services may not be modified if the contract contains
                       a clause that prohibits modification; and

                                (B) amodificationmaynot     change the type of
                       disposition specified by the purchaser in the contract,
                       whether by burial, cremation, or another alternative by
                       which the purchaser’s remains attain their final resting
                       place, as provided by Section 711.002(g), Health and
                       Safety Code

Id. 5 154.1551(a)(l)(A)-(B). Thus, chapter 154oftheFinance     Code speciticallydeclares that, where
a purchaser of a prepaid funeral contract specifies in the document that, on death, the purchaser’s
remains shall be disposed of by cremation, and that such contract may not be modified, the
decedent’s remains must be cremated.

        Section 711.002 of the Health and Safety Code imposes vittually the same requirement:

                        (a) 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;

                                   (3) any one of the decedent’s surviving adult
                       children;
Mr. Randall S. James - Page 3                      (GA-0310)




                                   (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.

                          .


                        (g) A person may provide written directions for the
               disposition, including cremation, of the person ‘s remains in a will, a
               prepaid funeral contract, or a written instrument          signed and
               acknowledged by such person.          The directions may be modified
               orrevoked only byasubsequent writingsignedandacknowledged            by
               such person. Theperson otherwise entitled to control the disposition
               of a decedent’s remains under this section shallfaithfully    carry out
               the directions of the decedent to the extent that the decedent’s estate
               or theperson controlling the disposition are$nancially able to do so.

TEX. HEALTH   & SAFETY        CODE ANN.    3 711.002(a),    emon 2003) (emphasis added). Again,
                                                           (g) (V
where a purchaser of a prepaid fimeral contract has therein designated cremation as part of that
contract, the purchaser’s preference may not be overruled or modified. We limit our discussion here
to a situation in which a decedent has designated in a prepaid funeral contract that the purchaser’s
remains shall be cremated.

       In 2003, the legislature added chapter 716, denominated            “Crematories,”   to the Health and
Safety Code? Section 716.051 provides:

                        Except 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 that the deceased human remains may
                        be cremated.




       ?See Act ofMay   8,2003,78th   Leg., RX, ch. 178,2003   Tex. Gen. Laws 253,X3-64.
Mr. Randall S. James - Page 4                 (GA-0310)




Id. 5 716.051 (Vernon Supp. 2004-05). Section 716.052 describes the contents of a cremation
authorization form. See id. 5 716.052(a)-(d). It also requires a representative of the contracting
funeral establishment to sign the form and directs a crematory establishment to “provide a cremation
authorization form to an authorizing agent on request.” Id. § 716.052(d).

       You indicate that

               [a] question has recently arisen regarding the relationship between
               statutory provisions that authorize a person to direct the disposition
               of [that person’s] remains and prohibit a funeral provider from
               disposing of the remains in any other manner, and provisions that
               prohibit a funeral provider from cremating remains without written
               authorization from an authorizing agent.      The question has arisen
               because, in some instances, the person who is the statutorily
               designated authorizing agent has refused, for religious or other
               reasons, to execute the required form, even though the decedent has
               provided written directions in a prepaid funeral contract specifying
               disposition by cremation.

Request Letter, supra note 1, at 1. You therefore ask whether, and if so how, these provisions may
be reconciled. See id. at 2.

         At first glance, section 716.05 1 of the Health and Safety Code, which prohibits a crematory
establishment     from cremating “deceased human remains until it receives                a cremation
authorization form signed by an authorizing agent,” would seem to be in irreconcilable conflict with
both section 154.1551 of the Finance Code and section 711.002 of the Health and Safety Code,
which require a crematory establishment to fulfill, upon a person’s death, its contractual obligation
to the purchaser of a prepaid funeral contract. We are admonished, however, to harmonize statutes
concerning the same subject matter, if possible, so as to give effect to all. See TEX. GOV’T CODE
ANN. $ 311.026(a) (Vernon 1998); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 531 (Tex. 2002)
(harmonizing Insurance Code and Labor Code provisions); Acker Y. Tex. Water Comm’n, 790
S.W.2d 299,301 (Tex. 1990) (harmonizing predecessor of Administrative Procedure Act and Open
Meetings Act provisions). And in our view, these disparate statutes may be readily harmonized.

         Section 716.001 of the Health and Safety Code, part of the 2003 legislation, defines
“authorizing agent” as “a person authorized to dispose of a decedent’s remains under Section
711.002.” TEX. HEALTH &SAFETY CODE ANN. 5 716.001( 1) (Vernon Supp. 2004-05). As we have
indicated, section 7 11.002(a) lists a number of individuals who may control the disposition of a
decedent’s remains. But the wishes of such persons are subject to an overriding qualification:
“Unless a decedent has let? directions in writing for the disposition of the decedent’s remains . .”
Id. 5 711.002(a) (Vernon 2003). Moreover, subsection (g) of chapter 711 contemplates that “[a]
person may provide written directions for the disposition, including cremation, of the person’s
remains in a. prepaid funeral contract.” Id. $711.002(g). We therefore conclude that, (1) because
section 716.05 1 requires the signature of an “authorizing agent,” (2) because “authorizing agent” is
Mr. Randall S. James - Page 5                  (GA-0310)




defined by reference to section 711.002, and (3) because section 711.002 clearly permits the
purchaser of a prepaid funeral contract to designate the disposition of the decedent’s remains, no
cremation authorization form is required in a situation in which a purchaser of a prepaid funeral
contract has specified in that document the disposition of the purchaser’s remains.

         Finally, to the extent that the application of section 716.052 of the Health and Safety Code
would purport to abrogate any provision of a prepaid funeral contract entered into prior to its
effective date of September 1,2003, it may contravene the contract clauses of the federal and state
constitutions. See U.S. CONST. art. I, 5 10, cl. 1; TEX. CONST. art. I, 3 16. These provisions prohibit
the state from enacting any law that would impair the obligation of contracts. In order to come
within the protection of these constitutional provisions, a contract must be legally enforceable and
must involve property interests that have a material value. See Thompson v. Cobb, 65 S.W. 1090,
 1091 (Tex. 1902); Mexican Nat’1 R.R. v. Mussette, 26 SW. 1075, 1077 (Tex. 1894).

         We conclude that a funeral establishment need not comply with a statutory requirement
that it obtain a “cremation authorization form” signed by an “authorizing agent” when a purchaser
of a prepaid funeral contract has previously specified disposition of the purchaser’s remains by
cremation, and therefore, we need not answer your second question as to options available to a
funeral establishment if an authorizing agent refuses to sign the cremation authorization form.
Mr. Randall S. James - Page 6                (GA-0310)




                                      SUMMARY

                       A funeral establishment need not comply with a statutory
               requirement that it obtain a “cremation .authorization form” signed
               by an “authorizing agent” when a purchaser in a prepaid funeral
               contract has previously specified disposition of the purchaser’s
               remains by cremation.




                                                         eneral of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WlLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
