Untitled Texas Attorney General Opinion ( 2000 )

OFPKE
OFTHEATTORNEY
GENERAL.
STATE
OFnx*s
JOHN CORNYN
June 7,200O
The Honorable William C. Sowder Opinion No. JC-0228
Lubbock County Criminal District Attorney
P.O. Box 10536 Re: Whether a county or a surviving relative must
Lubbock, Texas 79408-3536 provide for the disposition of a deceased pauper’s
remains, and related questions (RQ-0167-JC)
Dear Mr. Sowder:
Section 694.002 of the Health and Safety Code requires a county commissioners court to
“provide for the disposition of the body of” a deceased pauper. See TEX. HEALTH & SAFETY CODE
ANN. 5 694.002 (Vernon Supp. 2000). Section 711.002 of the same code requires a person of the
decedent’s choosing or a surviving relative to inter the remains of a decedent and to be “liable for
the reasonable cost of interment.” Id. 5 711.002(a). You ask whether, given these two statutes, it is
the responsibility of the county under section 694.002 to pay to dispose of a pauper’s remains or
the responsibility of a person listed in section 711.002(a). See Letter from Honorable
William C. Sowder, Lubbock County:Criminal District Attorney, to Opinion Committee, Office of
the Attorney General (Dec. 20, 1999) (on tile with Opinion Committee) [hereinafter “Request
Letter”]. We conclude that the county is responsible for the expenses in accordance with rules of
the commissioners court.
You ask three additional questions. You ask whether the Lubbock County General
Assistance Agency may seize an indigent decedent’s assets to cover the cost of burial. Id. at 1. It
may not. You ask next whether, if we conclude that surviving relatives do not bear primary
responsibility for the costs of disposing of a pauper’s remains under section 711.002, a county may
receive donations toward interment or cremation expenses from the relatives. Id. at 1. It may. See
TEX. Lot. GOV’T CODE ANN. 5 81.032 (Vernon Supp. 2000). You ask finally whether funds
received toward the costs of interment or cremation should be deposited into a county’s general fund
or “with” the county’s “General Assistance Agency.” See Request Letter, supra, at 1. The funds
should go into the county depository, but the county may allocate the funds to a special account for
the General Assistance Agency. See TEX. LOC. GOV’T CODE ANN. 5 113.021 (Vernon 1999).
You indicate that the General Assistance Agency, a department ofLubbock County, receives
funds from the county through the county’s general fund budgeting process. See Memorandum
accompanying Request Letter, supm, at 1. The agency provides primarily for the disposition of
remains of “indigent residents of Lubbock County and has a scheduled contribution amount based
on the size of the decedent’s family (if any) and income.” Id. The county currently requires a
The Honorable William C. Sowder - Page 2 (X-0228)
surviving spouse “to present any check he or she receives for the decedent’s Social Security Lump
Sum Death Benefit to the Agency as reimbursement.” Id. On behalf of the Lubbock County General
Assistance Agency, you ask us to clarify “whether it is the responsibility ofLubbock County or that
of’ a person listed in section 711.002(a) ofthe Health and Safety Code “to pay for burial costs when
an individual is indigent but has surviving family members.” Id. By “burial costs,” we assume you
mean disposition costs, which include the costs of burial, cremation, or donation to a medical
facility. Neither section 694.002 nor section 711.002 pertain solely to burial costs.
Section 694.002 of the Health and Safety Code devolves upon a county commissioners court
the duty to dispose of a deceased pauper’s remains:
(a) The commissioners court of each county shall provide for
the disposition of the body of a deceased pauper. The commissioners
court may adopt rules to implement this section.
(b) The commissioners court shall consider any information,
including the religious affiliation ofthe deceased pauper, provided by
a person listed in Section 711.002(a).
TEX. HEALTH& SAFETYCODE ANN. 5 694.002 (Vernon Supp. 2000). In 1894 a Texas Court of Civil
Appeals described a county’s responsibility to provide for the burial of deceased paupers under a
statutory predecessor to section 694.002:
[It is] incumbent on the county to provide for the burial of paupers;
and this is a duty the county owes to every pauper, no matter whether
he has been formally declared a pauper by the county or not.
Whenever it is ascertained that a man has died, who was a pauper, it
becomes the duty of the county to provide for his burial.
McNorton v. Val Verde County, 25 S.W. 653,654 (Tex. Civ. App. 1894, no writ).
Section 711.002 provides for the disposition of a person’s remains, not limited to the remains
of a pauper:
(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, includingcremation, 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;
The Honorable William C. Sowder - Page 3 (Jc-0228)
(2) the decedent’s surviving spouse;
(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.
(d) A person listed in Subsection (a) has the right, duty, and
liability provided by that subsection only if there is no person in a
priority listed before the person.
(e) If there is no person with the duty to inter under
Subsection (a) and:
(1) an inquest is held, the person conducting the inquest
shall inter the remains; and
(2) an inquest is not held, the county in which the death
occurred shall inter the remains.
TEX. HEALTH & SAFETYCODE ANN. 5 711.002(a), (d), (e) (V emon Supp. 2000). Section 711.002,
according to a Texas Court of Civil Appeals, establishes a “statutorily imposed liability” for the
reasonable cost of disposing of a decedent’s remains. See Glover v. Elliston, 529 S.W.2d 119, 120
(Tex. Civ. App.-Eastland 1975, no writ).
Thus, under section 694.002, the body of a deceased pauper must be disposed of by a county.
See TEX. HEALTH & SAFETY CODE ANN. 5 694.002(a) (Vernon Supp. 2000). By contrast, under
section 711.002, the body of a deceased pauper may be disposed of in accordance with the
decedent’s written wishes; by a person the decedent has chosen in a written and signed instrument;
by a surviving relative; by aperson who performs an inquest; or, ifthere is no inquest, by the county.
See id. 5 711.002(a), (d), (e).
We harmonize statutes if it is possible to do so. See La Sara Grain Co. v. First Nat ‘1Bank
of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984) (stating that courts are to harmonize statutes with
relevant laws if possible). You suggest that sections 694.002 and 711.002 may be harmonized
“logically by interpreting section 694.002 to require the County to bury only when the decedent has
no surviving relatives under the statutory listing of section 711.002.” See Memorandum
The Honorable William C. Sowder - Page 4 (X-0228)
accompanying Request Letter, supra, at 3. This appears consistent with a construction this office
appeared to adopt in 1996. Considering sections 694.002 and 711.002 together, this office stated
that determining who is responsible for burial expenses depends upon the facts ofthe particular case:
In the absence of a survivor who is statutorily responsible for burial,
[see TEX. HEALTH & SAFETY CODE ANN. 5 711.002(a), (d)], the
county in which the death occurred must inter the remains unless an
inquest is held, in which case the person conducting the inquest must
inter the remains, id. 5 711.002(e). In either event, the commis-
sioners court is responsible for paying the burial expenses if the
[decedent] is a pauper. See id. 5 694.002.
Tex. Att’y Gen. LO-96-037, at 2.
We do not believe sections 694.002 and 7 11.002 can be so neatly harmonized. With respect
to the body of a deceased pauper who is survived by a person listed in section 711.002(a), the
statutes conflict irreconcilably: either the county is responsible and liable for disposition under
section 694.002 in accordance with county rules or a person listed in section 711.002(a) is
responsible and liable for disposition. Where two statutes conflict irreconcilably, we construe the
more specific provision as an exception to the more general provision, unless the general provision
was enacted later and the legislature’s manifest intent is that the general provision prevail. See TEX.
GOV’TCODEANN. § 311.026(b) (Vernon 1998); Tex. Att’y Gen. Op. No. JC-0126 (1999) at 5. As
between sections 694.002 and 711.002 of the Health and Safety Code, section 711.002 is the more
general, applying on its face to the bodily remains of all persons, while section 694.002 is the more
specific, applying only to the remains of deceased paupers.
Although section 7 11.002 was adopted after the more specific provision for paupers, we find
no evidence of a “manifest intent” that it prevail over a more specific provision. The substance of
section 711.002 originally was adopted in 1945, see Act of June 4, 1945,49th Leg., R.S., ch. 340,
$20,1945 Tex. Gen. Laws 559,570, while the substance ofsection694.002 was inexistence at least
asearlyas 1911. See ActapprovedMar. 25, 1911,32dLeg., R.S., ch. 116, 1911 Tex. Gen. Laws
236, 237 (enacted as article 2241(10), Revised Civil Statutes). The purposes for which the two
statutes were adopted suggest that they had different purposes and that each was not intended to
infringe upon the other. The statutory predecessor to section 694.002 was part of a statute detailing
the powers of a commissioners court. See id.; cf: TEX. Lot. Gov’~ CODE ANN. 5 81.027 (Vernon
Supp. 2000) (requiring commissioners court to provide for support of paupers); TEX. HEALTH &
SAFETYCODE ANN. 4 694.002 (Vernon Supp. 2000). The statutory predecessor to section 711.002,
by contrast, was part of an act adopted to regulate cemeteries and cenietery corporations. See Act
of June 4, 1945,49th Leg., R.S., ch. 340, 9 30, 1945 Tex. Gen. Laws 559, 574.
Furthermore, the history of various amendments to each provision recognizes the existence
oftheother. SeeActofMar.21,1991,72dLeg.,R.S.,ch. 14, §§211,213,1991 Tex.Gen.Laws
42,190 (amending sections 694.002 and 711.002, respectively); Hearings on Tex. H.B. 2301 Before
The Honorable William C. Sowder - Page 5 (X-0228)
theHouse Comm. on County Affairs, 76th Leg., R.S. (Mar. 17,1999) (exchange between’Honorablc
Woodrow W. Gossam, Jr., Wichita County Judge, and unidentified representative; testimony ofJim
Allison, General Counsel, County Judges & Commissioners Ass’n). From 1989 through 1999,
section 694.002 expressly permitted a relative to object to cremation ifthat was the county’s normal
method of disposing of a pauper’s remains. See Act of May 28, 1989,71st Leg., RX, ch. 937,$ 1,
art. 235 l(7), 1989 Tex. Gen. Laws 4001,4002 (“No pauper shall be cremated if a relative or friend
expresses objection to this procedure.“); Act ofMar. 21, 1991, 72d Leg., R.S., ch. 14, § 211, 1991
Tex. Gen. Laws 42, 190 (“A pauper may not be cremated if a relative or friend expresses objection
to this procedure.“). At the same time, under section 711.002, the surviving relative would be
responsible for and liable for disposition of the pauper’s remains, not the county. Even the current
version of section 694.002(b) recognizes that one or more of the persons listed in section 7 11.002(a)
might survive a deceased pauper and provide information to the county, although the county remains
responsible to provide for disposition ofthe body in accordance with county rules. See TEX. HEALTH
& SAFETYCODE ANN. 5 694.002(b) (Vernon Supp. 2000).
We conclude that section 694.002 of the Health and Safety Code requires a county to take
responsibility for disposing of a deceased pauper’s remains in accordance with county rules, even
when the deceased is survived by a person listed in section 711.002(a) of the Health and Safety
Code. Thus, section 711.002(e)(2), which requires a county to inter the remains of a person who is
not survived by a person listed in section 711.002(a) nor upon whom an inquest is not conducted,
applies to decedents who are not paupers. To the extent Letter Opinion 96-037 suggests that a
county is responsible for a deceased pauper’s remains only if there are no surviving persons listed
under section 711.002(a) of the Health and Safety Code, it is incorrect.
A county may specify by rule how it normally will determine the manner of disposition and
how it will receive information from persons listed in section 711.002(a), as section 694.002(b)
requires it to do. Whether the county permits a relative listed in section 711.002 to overrule the
county’s choice of disposition (which may be based upon economic considerations) and under what
circumstances is a matter for the county to determine. A commissioners court may, for example,
adopt a policy under which it will bury paupers whose relatives object to the less expensive options,
donation or cremation, on religious grounds only if the relatives provide the difference between the
cost of the county’s normal choice and the higher cost of burial. See id.; see also Hearings on H.B.
2301 Before the House Comm. on County Affairs, 76th Leg., R.S. (Mar. 17, 1999) (statement of
Representative Farabee) (estimating normal cost of burial as $1,200 and normal cost of cremation
as $800); id. (exchange between Representative Brown and Representative Farabee).
Your first question appears to presume that a deceased pauper’s remains may be disposed
ofonly by “burial.” See Request Letter, supm, at 1. Whether a county normally disposes of remains
by burial, by donating the body to a medical facility, or by cremating the body is a matter for the
commissioners court to determine. Section 694.002 allows a county to adopt any of these means of
disposal. See TEX. HEALTH & SAFETY CODE ANN. § 694.002 (Vernon Supp. 2000). In addition,
whether a county that has decided normally to cremate paupers’ remains will except from this policy
The Honorable William C. Sowder - Page 6 (X-0228)
deceased paupers whose relatives object on religious grounds is a matter for the commissioners court
to determine.
You ask second about the Lubbock County General Assistance Agency’s authority to seize
an indigent decedent’s assets to cover the costs of “burial” (or, we presume, donation or cremation
of the body). See Request Letter, supra, at 1. We find none. The General Assistance Agency, as
an agency of the county, may have no more power than the delegating county has. A county
commissioners court, a court of limited jurisdiction, may exercise only those powers that the state
constitution and statutes confer upon it, either explicitly or implicitly. See Tex. Att’y Gen. Op. No.
JC-0171 (2000) at 1. While a commissioners court is explicitly directed to provide for the
disposition of deceased paupers’ remains, it has no authority to seize a decedent’s (or anyone else’s)
assets to reimburse the county for performing its statutory duty in this regard. Accordingly, the
General Assistance Agency also may not seize assets to cover costs associated with the disposition
of a deceased pauper’s remains.
With respect to the General Assistance Agency’s current requirement that a surviving spouse
pay over to the Agency any Social Security lump-sum death benefit, it appears that the death benefit
is not an asset of the decedent’s estate but a payment to which the surviving spouse may have an
entitlement. See 42 U.S.C. 5 402(i); cf 101 N.Y. JUR. 2D Taxation &Assessment 3 1955 (1992)
(indicating that decedent, at time of death, has “no property interest” in Social Security funds
payable to beneficiaries). Section 402(i), 42 U.S.C., “no longerprovides for the payment ofa [lump-
sum death payment] to the person who paid the deceased worker’s funeral expenses.” Social
Security Ruling 85-24a.’ We thus find nothing authorizing a county, or the General Assistance
Agency, to require a surviving spouse to pay over any Social Security lump-sum death benefit.
The legislature considered, but did not adopt, a revision in 1997 that suggests a belief, at least
by some legislators, that the law does not currently permit a county to reimburse itself from a
pauper’s estate. The legislation would expressly have allowed a county, in certain circumstances,
to collect reimbursement for “support of paupers” from the pauper’s estate. See Tex. H.B. 15 14,
75thLeg.,R.S. (1997) (HouseComm. Report,AmendmentNo. 1). TheBill Analysis forHouseBil1
1514 stated, “The county does not have a mechanism for reimbursement by the estate of the pauper
for its services to a pauper.” HOUSE COMM. ON PUBLIC HEALTH, BILL ANALYSIS, Tex. H.B. 15 14,
75th Leg., R.S. (1997). We cannot draw any conclusions from a legislative failure to adopt a certain
law, however. See Garcia v. St&e, 829 S.W.2d 796, 799 (Tex. Crim. App. 1992) (en bane) (“The
suggestion that some motive can reliably be inferred from the failure of a legislature to enact certain
laws . is not only tenuous, but dangerous, for it supplants orthodox democratic institutions with
a judicial oligarchy.“).
Next, you ask whether, if we determine that the relatives listed in section 711.002 of the
Health and Safety Code “do not bear primary responsibility for the costs of’ a deceased pauper’s
“burial [or other disposition] under section 711.002,” they may “donate funds toward the burial
‘See Internet site: Letter, supra, at 1. Section 8 1.032 of the Local Government Code specifically
permits a commissioners court to accept a donation “for the purpose of performing a function
conferred by law on the county.” TEX. Lot. Gov’r CODE ANN. 5 81.032 (Vernon Supp. 2000).
Thus, a county may accept contributions toward the expenses of disposing of a particular pauper’s
remains.
You ask fourth and finally whether funds received toward the cost of burial should be
deposited with the General Assistance Agency of Lubbock County or into the Lubbock County
General Fund. A donation received for expenses associated with the disposition of a deceased
pauper’s remains belongs to the county and is therefore subject to chapter 113 of the Local
Government Code. As funds belonging to the county, the donation must be deposited with the
county treasurer, who will subsequently deposit the money into the county depository. See id.
$5 113.001, ,021, ,022 (Vernon 1999). The county treasurer may deposit the money into a special
account in the depository only if the commissioners court has so ordered. See id. § 113.021(b); see
also id. 5 113,004(b)(3), (c) (indicating that county commissioners court may designate special
accounts for certain monies).
The Honorable William C. Sowder - Page 8 (X-0228)
SUMMARY
Section 694.002 of the Health and Safety Code requires a
county to provide for disposition of a deceased pauper’s remains,
even though the decedent is survived by a person listed in section
711.002(a) of the same code, in accordance with county rules.
Neither a county commissioners court nor an agency with powers
delegated by the county commissioners court may seize assets of
a deceased pauper’s estate to pay expenses associated with
the disposition ofthe pauper’s remains. To the extent Letter Opinion
96-037 suggests that a county is responsible for a deceased pauper’s
remains only if there are no surviving persons listed under section
711.002(a) of the Health and Safety Code, it is incorrect.
A county may accept contributions toward the expenses of
disposing of a particular pauper’s remains. See TEX. LOC. GOV’T
CODE ANN. 5 81.032 (Vernon Supp. 2000). Any donations the
General Assistance Agency receives must be deposited with the
county treasurer. See id. $5 113.021(a), .022 (Vernon 1999).
Whether the treasurer deposits the money into the county’s general
fund or into a special account in the county depository is a matter for
the commissioners court to determine. See id. $5 113.004(b)(3), (c),
.021(b).
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee