Local scenario:
Call to police of a dead body in a home or apartment. County medical examiner also responds to scene. On the floor beside the bed where dead body is located is a wallet with a significant amount of cash. Medical examiner seizes the wallet and cash as possible evidence. After autopsy, it is determined no criminal activity has occurred. Relatives refuse to claim the body for burial. As stated, deceased has cash and a small homestead. Locals think that it falls to the county by default to bury the deceased. If so, what procedures short of opening an administration of the estate are avilable to apply the cash and or other homestead assets to offset the costs of burial?

I'm working on this very issue in my county. We have the problem of people refusing to claim bodies of their next of kin, but have no problem accepting their cash or other personal property.

You might want to check out AG opinion JC-0228. In that opinion, it clearly states that if the deceased is a pauper, that the county cannot seize a decedent's estate to reimburse the county for disposition of the body. This is because under sec. 694.002 of the Health and Safety Code, a county is required to take responsibility for disposing of a pauper's remains. However, if the decedent is not a pauper and the family refuses to claim the body, I wonder if the county can file for an emergency intervention (Tex. Prob. Code sections 108-115) to provide for the payment of funeral and burial expenses? Just a thought...

Couldn't H&S 691.023 apply?

Section 691.023 would require the county (as a political subdivision) to send the body to the board upon the board's request, but only if the county is required by law to provide for burial or disposition. It seems to me that the real issue boils down to when, precisely, is a decedent a "pauper" such that the county is required by law to provide for burial or disposition. The logical tie of "pauper" status to the concept of indigency makes it logically inconsistent that a person who has assets that could readily be converted to pay what the Probate Code would consider to be first priority claims (burial expenses) would be a "pauper" such that the county should bear the burden of burial while the heirs reap the unencumbered benefit of the estate. I suppose that a county in enacting its regulations under section 694.002(a) could define "pauper" and conclude that a decedent who has sufficient assets to provide for burial is not a "pauper", but when the family refuses to claim the body, there's still the question of who makes the public health decision about disposition of the body.

My county is wrestling with what to do about disposing of pauper remains. We have 90+ per year. Heretofore, it has been left to the local funeral homes to make appropriate inquiries, and the county has usually paid about $1,000, although the funeral homes insist (and they're probably correct) that they're losing money. I wasn't aware of all of the costs that go into even a pauper burial (opening & closing graves, vault costs, etc.). The commissioners are now leaning toward cremation as the only option for disposing of pauper remains, which will still run about $1,000, but the thought is that perhaps more folks will pony up the loot necessary for a burial, and the county will not be involved. It certainly will be easier on the funeral homes. However, there still remains the problem of when a person is considered indigent and thus a county responsibility. I would suggest that there should be an inquiry similar to that of a defendant applying for a court-appointed attorney. And there is also the question of what happens when a family is found lying about the pauper's assets in order to get the county to underwrite the disposal of the remains. Tampering if it's a county-generated form to the funeral homes?

Our county as a matter of policy goes the cremation route to avoid opening-and-closing-plus-vault costs. It has discouraged some who sought to direct the family member's burial and partake of estate assets while having the county pick up the disposition tab. If you generate a form for the pauper/indigency determination, Rick, I'd like to get a copy of it since we only run about 20 a year shy of your numbers (because Amarillo is split between two counties) in terms of numbers that illustrate this problem.

You got it, Scott. I'm not sure how long it will be before the commissioners make a decision, but it will have to be a relatively simple form for the funeral homes to use, and it will likely have to look to the discovery of immediate assets rather than something we would have to go into probate after. I'll let you know when we get to that point.

Because this topic interests me, I also found Att'y Gen Opinion No. GA-0301 that deals with this issue and confirms that a county must establish a policy for disposition of pauper's remains** (see also Tex. Att'y Gen. Op. No. JC-0228 (2000) at 5; accord Tex. Att'y Gen. Op. No. GA-0235 (2004)) and cremation is explicitly identified as an option. And my earlier wonderment would not apply if the State Anatomical Board would not accept the remains.

**"Health and Safety Code section 694.002 authorizes a commissioners court to dispose of a pauper's remains by donation, cremation, or burial and allows a county to specify by rule how it normally will determine the manner of disposition. Health and Safety Code section 691.023(b) requires a county to pay the costs of preparing a pauper's remains for disposition if the remains are not needed by the State Anatomical Board and does not prohibit a commissioners court from adopting an order authorizing cremation to dispose of a pauper's remains."

Prior to requesting the AG opinion as to whether or not a commissioners court had the option to dispose of pauper remains by cremation (it does), I contacted the Anatomical Board. Although the statute appears to mandate turning a pauper's body over to the Board, the Board is not accepting any indigent bodies from counties because of (1) potential liability to decedents' families, and (2) they are getting enough corpses through routine donations.

To bring this discussion full circle back to where it started:

I've got a problem where the decedent was NOT a pauper but the family has refused to take the body, and now my commissioner wants to know what we should do with the body. The Board hasn't notified us that it wants the body.

Under 691.023, can the body be cremated (AG opinions say yes as to paupers, but what about those who are not)? Who is responsible for the costs of the disposition? Also, how does 691.023 interract with 711.002 at this point?

Any law/opinions that you have all come across on this would be very helpful...

That is why I questioned whether Tex. Prob. Code sections 108-115 could apply in this situation. That way the county (in situations where the deceased is not a pauper and the family refuses to claim the body) may be able to obtain the expenses from the deceased's estate. Whether this approach would be practical--who knows?

If the deceased leaves an estate, is there any way to have a lien placed on that property to cover the county's costs in disposing of the remains?

At this point, I'm a little less concerned about the costs of who pays than the question of what exactly to do with the body.

What is the county's responsibility at this point, and can cremation be used?

quote:

---

Originally posted by Rick Miller:
If the deceased leaves an estate, is there any way to have a lien placed on that property to cover the county's costs in disposing of the remains?

---

I don't think so. As far as I can tell there isn't any authority for it. Tex. Att�y Gen. Op. No. JC-0171 (2000) mentioned that in 1997 the legislature declined to adopt a revision to Texas Local Government Code Ann. section 81.028, which would have allowed a county to collect reimbursement via a lien for services provided to paupers if it were found later that the pauper wasn't really a pauper. That opinion stated:
"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. 1514, 75th Leg., R.S. (1997) (House Comm. Report, Amendment No. 1). The Bill Analysis for House Bill 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. 1514, 75th Leg., R.S. (1997)."

Maybe the mechanism to collect reimbursement is to file a claim against the estate if the estate is probated (Chapter VIII, Part 4 of the Texas Probate Code). Funeral and burial expenses are given first priority when it comes to paying out claims against the estate.

As far as how to dispose of the body...well, there are certainly holes in the law concerning this. I would think that if the deceased was not a pauper, then the next of kin ("NOK") would be the responsible party under section 711.002. But, the problem is how do you force the NOK to take responsibility?

Under the emergency intervention statute, if the county is stuck with the body so to speak, it may be able to petition the probate court for the costs of burial. In order to cremate, it has to get the court's approval. Tex. Prob. Code Ann. � 111(d).

I'm bumping this topic to see if any of you have any new insight on this topic.

We have a deceased man in the funeral home whose next of kin have not claimed his body. We know he has two daughters from whom he has been estranged for years. And, we know he has $3800 in the local bank, which would cover his burial. At what point is burial appropriate? and, if the County arranges for it, can we get reimbursement from his bank account?

HB1843, effective now, provides:

Section 694.002, Health and Safety Code, is amended by adding Subsections (c), (d), and (e) to read as follows:
(c) If a county discovers cash in the possession of a deceased pauper, a county may use the cash to pay the actual costs incurred by the county in disposing of the pauper's body.

This is an excerpt -- see the whole bill.

[This message was edited by A. Diamond on 08-03-09 at .]