JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

512/475-2501 

Telex 9101674-1367 

Telecopier 5121475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742-6944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533-3464 

I Texas, Suite 700 

Houston. TX. 77002-3111 

71312235666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

606/747-5236 

4309 N. Tenth, Suite B 

McAllen, TX. 76501.1665 

5121682-4547 

200 MaIn Plaza, suite 400 

San Antonio. TX. 76205.2797 

51212254191 

An Equal Opportunity1 

Affirmative Action Employer 

The Attorney General of Texas 

June 21, 1984 

Honorable Jack A. McGaughey 

District Attorney for Archer, 

Clay, and Montague Counties 

P. 0. Box 55 

Montague, Texas 76251 

Opinion No. JM-175 

Re: Validity of a municipal 

ordinance which prohibits the 

transfer of municipal cemetery 

lots to a party other than the 

city 

Dear Mr. McGaughey: 

You ask us "[wlhether or not a city which owns and operates a 

municipal cemetery may lawfully enact an ordinance prohibiting the 

sale or transfer [by a grantee] of lots in that cemetery to a party 

other than the city." We conclude that a city may not enact such an 

ordinance, because it would constitute an unreasonable restraint on 

alienation. 

You inform us that a city has operated a municipal cemetery 

pursuant to articles lOlS(13) and 1015(32), V.T.C.S., since 1966 under 

an ordinance which provides the following at section 7: 

The sale or transfer of any lot or lots or part of 

a lot in the [clemetery is prohibited, except any 

oerson desirinn to sell or transfer a lot or lots 

or a part of a lot in the [clemetery shall sell or 

transfer the same to the [c]lty at a price equal 

to the purchase price paid for said lot, lots or 

parts of [al lot, and the [cllty shall be 

obligated to purchase the same at -said price. 

(Emphasis added). 

The ordinance provides at section 4(5) that 

[t]he term 'Certificate of Ownership' as used 

herein shall be construed as the instrument 

conveying interment rights in lots in the 

[clemetery. 

We note at the outset that the grantee of a burial lot in a deed of 

conveyance does not acquire a fee simple title, but only acquires the 

lot for its intended burial purposes; it is clear, however, that such 

grantee is not the ordinary owner of an easement and that the interest 

passed by a deed to the purchaser of a burial lot is an interest in 

p. 770 
,.. 

Honorable Jack A. McGaughey - Page 2 (JM-175) 

land. Oak Park Cemetery, Inc. V. Donaldson, 148 S.W.2d 994 (Tex. Civ. 

APP. - Galveston 1941, writ dism'd judgmt car.). 

Alienability is a legal incident of property, and restraints 

against it are not favored. Citizens' State Bank V. O'Leary, 167 

S.W.2d 719 (Tex. 1942); Mischer V. Burke, 456 S.W.2d 550 (Tex. Civ. 

APP. - Houston [lst Dist.] 1970, writ ref'd n.r.e.). See Tex. Con&. 

art. I, 626 (provision prohibiting perpetuities). Suchrestraints are 

against public policy and are void. Benson v. Greenville National 

Exchange Bank, 253 S.W.2d 918 (Tex. Civ. App. - Texarkana 1952, writ 

ref'd n.r.e.). An agreement, on the other hand, which merely provides 

for the first refusal to buy or for a preferential right of repurchase 

to be exercised within a specified period of time does not restrain 

alienation. U.S. Life Title Corn an 

185 (Tex. App. 

p y of Dallas V. Andreen, 644 S.W.2d 

- San Antonio 1982, no writ); Foster V. Bullard, 496 

S.W.2d 724 (Tex. Civ. App. - Austin 1973,v.e.); 

Courseview, Inc. V. Phillips Petroleum Co., 258 S.W.2d 391 (Tex. Civ. 

APP. - Galveston 1953, writ ref'd n.r.e.). In order for a uurchase 

agreement to constitute an unreasonable restraint on alienation. the 

purchase agreement must contain a direction to the vendee ordering him 

not to convey. U.S. Life Title Company of Dallas V. Andreen, supra; 

Mattern V. Herzog, 367 S.W.2d 312, 319 (Tex. 1963). At issue in this 

request is the proper way to characterize section 7 of the ordinance. 

(Tex 

522 

In Forderhause v. 

:. Civ. App. 

Cherokee Water Company, 623 S.W.2d 435, 437 

- Texarkana 1981), rev'd on other grounds, 641 S.W.2d 

(Tex. 1982), the court declared that the following contractual 

provision did not constitute a restraint on alienation and did not 

violate the prohibition against perpetuities set forth in article I, 

section 26, of the Texas Constitution: 

Grantee is hereby given the first option to 

purchase the oil, gas and other minerals herein 

reserved, at the same price and on the same terms 

as Grantor has agreed to sell to a third party; 

such option to be accented or reiected within five 

(5) days after Grantee-has been furnished with the 

bona fide offer made by such third party. Failure 

to exercise such option on one sale, shall not be 

a waiver to purchasing at any subsequent sale or 

sales by Grantor. (Emphasis added). 

The court then concluded: 

The purchase right involved here does not 

constitute an unreasonable restraint on 

alienation. There is no fixed price. There is no 

absolute option unlimited as to time. There is 

only the right, exercisable whenever the owner 

desires to sel~l, to purchase the property by 

meeting any bona fide offer. The holder of the 

right cannot force or prevent a sale; neither can 

p. 771 
, . 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jim Moellinger 

Assistant Attorney General 

APPROVED : 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Honorable Jack A. McGaughey - Page 3 (JM-175) 

he fix the price for a sale. In those 

circumstances there is not such a restraint on 

alienation as would violate our public policy. 

623 S.W.2d 435 at 439. See also Gray v. Vandver, 623 S.W.2d 172 (Tex. 

Civ. App. - Beaumont 1981, no writ) (court held that resenration in 

deed to the effect that grantors reserved their right to repurchase 

property for $175 at any time that grantee, his heirs, executors and 

administrators decide to sell was an unreasonable restraint on 

alienation). 

The ordinance which is the subject of this request does set forth 

a fixed price. It is unlimited as to time. The holder of the right, 

i.e. the city, can act to forbid any sale or transfer. It does act, 

therefore, as a restraint on alienation. Accordingly, we conclude 

that a city which owns and operates a municipal cemetery may not enact 

an ordinance prohibiting the sale or transfer by a grantee of lots in 

that cemetery to a party other than the city. 

SUMMARY 

A city which owns and operates a municipal 

cemetery may not enact an ordinance prohibiting 

the sale or transfer by a grantee of lots in that 

cemetery to a party other than the city. 

JIM MATTOX 

Attorney General of Texas 

p. 772