# TIZEA'ITORNEY OF TEXASGENERAL

AUSTIN. 

# TSGXAEI 78711

October 7. 1974
The Honorable Ogden Bass District Attorney Brazoria County Angleton, Texas 77515 Opinion No. H- 414 Re: Whether corporation may operate two or more separate cemeteries. Dear Mr. Bass:

You have requested an opinion as towhether a single corporation may operate two or more separate cemeteries. You advise: Restwood Memorial Park, Inc., acemetery association organized under Art. 912a, R. C.S., contemplates the acquisition ofland five miles short ofthe city’limits ofany city of 5,000 to 25,000 population to bededicated for cemetery purposes. The land will not be adjacent to or contiguous with the existing land ofthe Association so dedicated. You ask whether the association may use the second tract as a cemetery.

In Texas the operation and maintenance ofcemeteries is regulated byArticles 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 acemetery heretofore established and operating, located within, or within less than one (1)mile from, the incorporated line ofany city ofnot less than five thousand (5,000) nor more than twenty-five

p. 1933The Honorable Ogden Bass page 2 (H-414)

thousand (25,000) inhabitants according tothe last preceding Federal Census, or within, or within less than two (2) miles from, the incorporated line ofany city ofnot 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 ofany city ofnot less than fifty thousand (50,000) nor more than one hundred thousand (loo, 000) inhabitants according tothe last preceding Federal Census, or within, or within less than four (4) miles from, the incorporated line ofany city of not less than one hundred thousand QOO,000) nor more than two hundred thousand (200,000) inhabitants, according tothe last preceding Federal Census, or within, or within less than five (5) miles from, the incorporated line ofany city or not less than two hundred thousand (ZOO,000) inhabitants, according tothe 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 beacquired bythe cemetery association operating such cemetery, to be used as anaddition to such cemetery, and the use of said additional land for such purposes shall be exempt from the provisions ofthis Section: and further provided that the establishment or use ofa columbarium byany organized religious society or sect as apart ofor 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 ofthis Section.

. . . This provision plainly prohibits the establishment ofacemetery onland located within one mile ofthe incorporated line ofany city having apopulation ofnot 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 acemetery. 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 ofany other city, Article 912a-24 does not prohibit the acquisition ofthis land for cemetery purposes. See, Faulk v. Buena Vista Burial Park Assoc., 152S.W.2d 891(Tex. Civ. APP. --El Paso 1941, nowrit): Franklin v. Pietzsch, 334S.W.2d 214(Tex. Civ. App. --Dal~las 1960, writ ref ’d., n.r.e.). A second issue raised byyour request, however, is whether inany circumstances a single corporation may own and operate two separate cemeteries. Nowhere inArticle 912adoes there appear any prohibition against such an arrangement. Furthermore inAttorney General Opinion V-1130 (1950) this office implicitly recognized that aperpetual care corporation is permitted tooperate two separate cemeteries when itheld that such a corporation would be required tofile separate annual statements and maintain separate perpetual care funds for each cemetery. Inview of Attorney General Opinion V-1130 and in the absence ofany 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 ofa cemetery set out in Articles 912a-1, et seq. are met.

DAVID M. KENDALL, Chairman torney General of Texas

Opinion Committee

pa 1935