ATTORNEY GENERAL OF TEXAS 

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 a home-rule municipality may operate a cemetery. 

Chapter 711 of the Health and Safety Code sets forth various provisions relating to 

cemeteries. Section 711.02 1 thereof 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) of that statute, however, specifically declares that 

. 66 [t]his section does not apply to,” inter alia, “a public cemetery belonging to this state or a county 

or municipality.” Id. 9 7 11.02 1 (g). 

Section 7 13 .OO 1 of the Health and Safety Code provides: 

The governing body of a municipality 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 of authority for the operation to be vested in a city” prohibits 

a home-rule municipality from operating a cemetery, thus requiring the city “to contract with a 

qualified corporation” under section 7 11.02 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 to the Texas Constitution, article XI, section 5, has broad authority to exercise all powers 

not prohibited by statute. See TEX. CONST. art. XI, 0 5; TEX. Lot. GOV’T CODE ANN. 9 5 1.072(a) 

(Vernon 1999) (a home-rule “municipality has full power of local 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 a home-rule municipality may be express or implied, but the intent of the legislature to 

impose such a limitation must appear with “unrnistakable clarity.” City of Sweetwater v. Geron, 380 

S.W.2d 550, 552 (Tex. 1964). 

In the absence of any statutory limitation, either express or implied, on the power of a homerule municipality to operate a cemetery, we conclude that a home-rule municipality is authorized to 

operate a cemetery. 
The Honorable Florence Shapiro - Page 3 (GA-0044) 

SUMMARY 

A home-rule municipality is authorized to operate a cemetery. 

Very tn.-$y yours, 

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