OHNEY GENEKAL 

OF TEXAS 

Honorable Richard E. Rudeloff 

County Attorney 

Bee County 

Beeville, Texas 

Opinion No. WW-373 

Re: Authority to establish 

a cemetery within less 

than one mile from the 

incorporated line of a 

city which has a population of not less than 

5,000, but not more 

Dear Mr. Rudeloff: than 25,000 inhabitants. 

You have requested the opinion of this office as to 

whether a new cemetery may be established on property situated within one-half mile of the incorporated limits of Beeville, a city of about 15,000 population, and if the establishment of such a cemetery is prohibited by Article 912a24, VernonIs Civil Statutes, whether the City of Beeville 

and the Commissioners' Court of Bee County may waive this 

restriction. 

You have advised us that the property on which the 

cemetery is proposed to be established is adjacent to a 

cemetery that has been in operation for fifty years or more. 

The applicable portion of said Article 912a-24 

reads as follows: 

"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 established 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 
le Richard E. Rudeloff, Page 2 (WW-373 1 

twenty-five thousand (25,000) 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." 

In our opinion there is no doubt that the proposed 

location of the cemetery is prohibited under the terms of 

Article 912a-24, su ra Faulk v. Buena Vista Burial Park 

Association, 152 &d 891 (Civ. App. 1941, no writ hi= 

tory), is the only reported case we have found bearing on 

the statute in question. In that case, the predecessor to 

Article 912a-24, supra, was sustained by the Court as an 

exercise by the State of its police power. The Court was 

of the opinion that the statute was neither unreasonable 

nor arbitrary. 

We, likewise, agree with your conclusion that the 

prohibition on the location of new cemeteries contained in 

Article 912a-24, supra, cannot be waived, In this instance, 

by the City of Beeville and the Commissioners' Court of Bee 

County. This statute Is an expression of the Intention of 

the Texas Legislature, and does not confer upon local governing bodies the power to waive the applicatloa of any of Its 

provisions. 

SUMMARY 

Article 912a-24 prohibits 

the establishment of a 

cemetery within one mile or 

less from a city whose population is not less than 5,000 

nor more than 25,000, and local 
Honorable Richard E, Rudeloff, Page 3 (WW-373) 

governing bodies may not 

waive this statutory prohibition. 

Yours very truly, 

DRT: jl:wam 

APPROVED 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

J. C. Davis, Jr. 

Leonard Passmore 

John Reeves 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. Geppert