### ATTORNEY GENERAL OFTEXAS GREG ABBOTT
March 21,2003

The Honorable Florence Shapiro Chair, Senate Committee on Education Texas State Senate P.O. Box 12068 Austin, Texas 7871 l-2068 Opinion No. GA-0044 Re: Whether a home-rule municipality may operate a cemetery (RQ-06 14-JC)
Dear Senator Shapiro: You ask whether ahome-rule municipality may operate a cemetery. Chapter 711 of the Health and Safety Code sets forth various provisions relating to cemeteries. Section 711.02 1thereof provides that “[a]n individual, corporation, partnership, firm, trust, or association may not engage in a business for cemetery purposes in this state unless the person is a corporation organized for those purposes,” and imposes certain requirements upon entities wishing to maintain and operate a cemetery. TEX. HEALTH & SAFETY CODE ANN. 5 711.021(a) (Vernon Supp. 2003). Subsection (g) ofthat statute, however, specifically declares that

. 66 [t]his section does not apply to,” inter alia, “apublic cemetery belonging to this state or a county or municipality.” Id. 9 711.02 1(g). Section 713.OO

1of the Health and Safety Code provides: The governing body of amunicipality may: (1) purchase, establish, and regulate a cemetery; and (2) enclose and improve a cemetery owned by the municipality. Id. 8 713 .OOl. Because section 713.001 specifically fails to include the word “operate,” you ask whether the absence of“a specific grant ofauthority for the operation tobe vested in acity” prohibits a home-rule municipality from operating a cemetery, thus requiring the city “to contract with a qualified corporation” under section 711.02 1.’

‘Letter from Honorable Florence Shapiro, Chair, Senate Committee on Education, to Honorable John Cornyn, Texas Attorney General at 2 (Sept. 30,2002) (on file with Opinion Committee).The Honorable Florence Shapiro - Page 2 (GA-0044)

The authority to “purchase, establish, and regulate a cemetery” includes the authority to operate it. First, section 713.002(a) indicates that a municipality may operate a cemetery: “A municipality that owns or operates a cemetery or has control of cemetery property may act as a permanent trustee for the perpetual maintenance of the lots and graves in the cemetery.” Id. $ 713.002(a) (Vernon 1992) (emphasis added). Second, nothing in subchapter A of chapter 713, regarding municipal regulation of cemeteries, suggests that a municipality must contract with a private entity to operate a cemetery that the municipality itself owns. Finally, a home-rule city, unlike other types of municipality, by virtue of the home-rule amendment tothe Texas Constitution, article XI, section 5,has broad authority to exercise allpowers not prohibited by statute. See TEX.CONST.art. XI, 0 5; TEX.Lot. GOV’TCODE ANN. 9 51.072(a) (Vernon 1999) (ahome-rule “municipality has full power oflocal self-government”). A home-rule municipality need not look to the legislature for grants of power but only for limitations on its powers. Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). A legislative limitation on the authority of ahome-rule municipality may be express or implied, but the intent ofthe legislature to impose such alimitation must appear with “unrnistakable clarity.” City ofSweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964). In the absence of any statutory limitation, either express orimplied, on the power of ahomerule municipality to operate acemetery, we conclude that ahome-rule municipality is authorized to operate a cemetery.The Honorable Florence Shapiro - Page 3 (GA-0044)

SUMMARY Ahome-rule municipality is authorized to operate acemetery. Very tn.-$yyours,

BOTT Attom neral of Texas
BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General - General Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee