OHNEY GENEKAL OF TEXAS

Honorable Richard E. Rudeloff County Attorney Bee County Beeville, Texas Opinion No. WW-373 Re: Authority to establish a cemeterywithin less than one mile from the incorporated line of a citywhich 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 cemeterymay be established on property situated within one-halfmile of the incorporated limits of Beeville, a city of about 15,000population, and if the establishment of such a cemetery is prohibitedby 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 applicableportion of said Article 912a-24 reads as follows:

"It shallbe 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 establishedand operating, locatedwithin, or within less than one (1)mile from, the incorporated line of any city of not less than five thousand (5,000)nor more thanle Richard E. Rudeloff, Page 2 (WW-373 

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twenty-five thousand (25,000)inhabitants according to the lastpreceding Federal Census, , , .provided that where cemeterieshave heretoforebeen used andmaintainedwithin the limits hereinabove set forth, and additional lands are required for cemeterypurposes, land adjacent to said cemeterymay be acquiredby 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 shallbe exempt from the provisions of this Section." In our opinion there is no doubt that theproposed location of the cemetery is prohibited under the terms of Article 912a-24, su ra Faulk v. BuenaVista Burial Park Association, 152 &d 891 (Civ.App. 1941, no writ hi= tory), is the only reported casewe have found bearing on the statute in question. In that case, the predecessor to Article 912a-24, supra,was sustainedby the Court as an exerciseby the State of its police power. The Courtwas of the opinion that the statutewas neither unreasonable nor arbitrary.

We, likewise, agreewith your conclusion that the prohibition on the location of new cemeteries contained in Article 912a-24, supra, cannotbe waived, In this instance, by the City of Beeville and the Commissioners'Court of Bee County. This statute Is an expressionof the Intention of the Texas Legislature, and does not confer upon local governing bodies thepower to waive the applicatloa of any of Its provisions.

SUMMARY Article 912a-24prohibits the establishmentof a cemeterywithin one mile or less from a citywhose population is not less than 5,000 nor more than 25,000, and localHonorable Richard E, Rudeloff, Page 3 (WW-373)

governingbodies may not waive this statutoryprohibition. 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