Untitled Texas Attorney General Opinion ( 1974 )

TIZEA'ITORNEY GENERAL
OF TEXAS
AUSTIN. TSGXAEI
78711
October 7. 1974
The Honorable Ogden Bass Opinion No. H- 414
District Attorney
Brazoria County Re: Whether corporation may
Angleton, Texas 77515 operate two or more separate
cemeteries.
Dear Mr. Bass:
You have requested an opinion as to whether a single corporation
may operate two or more separate cemeteries. You advise:
Restwood Memorial Park, Inc., a cemetery
association organized under Art. 912a, R. C. S.,
contemplates the acquisition of land five miles
short of the city’limits of any city of 5,000 to
25,000 population to be dedicated for cemetery
purposes. The land will not be adjacent to or
contiguous with the existing land of the Associa-
tion so dedicated.
You ask whether the association may use the second tract as a cemetery.
In Texas the operation and maintenance of cemeteries is regulated
by Articles 912a-1 et seq., V. T. C. S. Directly in point is Article 912a-24
which provides:
(a) It shall be unlawful for any person, company,
corporation, or association to establish or use for burial
purposes any graveyard or cemetery, or any mausoleum
and/or cemetery except in a cemetery heretofore estab-
lished and operating, located within, or within less than
one (1) mile from, the incorporated line of any city of not
less than five thousand (5,000) nor more than twenty-five
p. 1933
The Honorable Ogden Bass page 2 (H-414)
thousand (25,000) inhabitants according to the last
preceding Federal Census, or within, or within less
than two (2) miles from, the incorporated line of any
city of not less than twenty-five thousand (25,000) nor
more than fifty thousand (50,000) inhabitants according
to the lastpreceding Federal Census, or within, or
within less than three (3) miles from, the incorporated
line of any city of not less than fifty thousand (50,000)
nor more than one hundred thousand (loo, 000) inhabitants
according to the last preceding Federal Census, or within,
or within less than four (4) miles from, the incorporated
line of any city of not less than one hundred thousand
QOO, 000) nor more than two hundred thousand (200,000)
inhabitants, according to the last preceding Federal Census,
or within, or within less than five (5) miles from, the
incorporated line of any city or not less than two hundred
thousand (ZOO, 000) inhabitants, according to the last
preceding Federal Census: provided that where cemeteries
have heretofore been used and maintained within the limits
hereinabove set forth, and additional lands are required
for cemetery purposes, land adjacent to said cemetery may
be acquired by the cemetery association operating such
cemetery, to be used as an addition to such cemetery, and
the use of said additional land for such purposes shall be
exempt from the provisions of this Section: and further
provided that the establishment or use of a columbarium
by any organized religious society or sect as a part of or
attached to the principal church building owned by such
religious society or sect, and within the limits hereinabove
set forth, shall not be unlawful, and shall be exempt from
the provisions of this Section.
. . .
This provision plainly prohibits the establishment of a cemetery on land
located within one mile of the incorporated line of any city having a popula-
tion of not less than five thousand nor more than twenty five thousand
p. 1934
. -
The Honorable Ogden Bass page 3 (H-414)
inhabitants unless that land is already being used as a cemetery. But in
the situation about which you have asked the association proposes to acquire
land more than one mile from the city limits for use as a second cemetery.
Assuming this is not within the prohibited distance of any other city, Article
912a-24 does not prohibit the acquisition of this land for cemetery purposes.
See, Faulk v. Buena Vista Burial Park Assoc., 152 S.W.2d 891 (Tex. Civ.
APP. --El Paso 1941, no writ): Franklin v. Pietzsch, 334 S.W.2d 214 (Tex.
Civ. App. --Dal~las 1960, writ ref’d., n. r. e.).
A second issue raised by your request, however, is whether in any
circumstances a single corporation may own and operate two separate
cemeteries. Nowhere in Article 912a does there appear any prohibition
against such an arrangement. Furthermore in Attorney General Opinion
V-1130 (1950) this office implicitly recognized that a perpetual care corpora-
tion is permitted to operate two separate cemeteries when it held that such
a corporation would be required to file separate annual statements and
maintain separate perpetual care funds for each cemetery. In view of
Attorney General Opinion V-1130 and in the absence of any compelling
reason for a contrary conclusion, it is our opinion that a single corporation
is authorized to own and operate two or more separate cemeteries.
SUMMARY
A single corporation may own and operate two
separate cemeteries so long as all the requirements
for the operation of a cemetery set out in Articles
912a-1, et seq. are met.
torney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
pa 1935