ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

August 15,2006 

Mr. O.C. “Chet” Robbins 

Executive Director 

Texas Funeral Service Commission 

Post Office Box 122 17 

Austin, Texas 78711 

Opinion No. GA-0448 

Re: Applicability of chapter 711, Health and 

Safety Code, to a family cemetery (RQ-0440-GA) 

Dear Mr. Robbins: 

You ask “whether an unincorporated family attempting to establish and operate a cemetery 

solely for the interment of family members on family-owned property is a ‘cemetery organization’ 

required to comply with the survey, filing and dedication requirements of Health and Safety Code, 

tj 711.034.“l The Texas Funeral Service Commission (“Commission”) does not construe section 

7 11.034 to apply to a family-owned cemetery. See Request Letter, supra note 1, at 3. You inform 

us that the Commission’s interpretation is not accepted throughout Texas and that at least one county 

“refuses to allow a family to inter a deceased family member on family-owned property.” Id. 

You state the family is an “unincorporated family.” See id. at 1. We understand you to mean 

that the family members have not taken formal steps to create a corporate entity. At the same time, 

you do not state whether the family members have prepared or operate under articles of association. 

See id. at l-3. We therefore believe that you inquire only about a family as that term is ordinarily 

understood. 

Section 711.034 of the Health and Safety Code imposes certain dedication requirements on 

“cemetery organizations.” TEX. HEALTH & SAFETY CODE ANN. 5 711.034 (Vernon 2003). Section 

7 11.034 requires a “cemetery organization” to survey and subdivide cemetery land into plots and to 

make a map or plat of the property. See id. 5 7 ll.O34(a)( 1). The “cemetery organization” is required 

to “file the map or plat with the county clerk of each county in which the property or any part of the 

property is located.” Id. § 711.034(b). Along with the map or plat, a “cemetery organization” must 

dedicate the property “exclusively to cemetery purposes.” Id. (j 711.034(c). You inquire only about 

‘Letter from O.C. “Chet” Robbins, Executive Director, Texas Funeral Service Commission, to Honorable Greg 

Abbott, Attorney General of Texas (Feb. 2, 2006) (on file with the Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 
Mr. O.C. “Chet” Robbins - Page 2 (GA-0448) 

the provisions of section 711 .034.2 see Request Letter, supra note 1, at 1. To answer your question, 

we must determine whether a family interring remains on family-owned property is a “cemetery 

organization.” 

A “cemetery organization” is defined in chapter 711 as 

an unincorporated association of plot owners not operated for 

profit that is authorized by its articles of association to 

conduct a business for cemetery purposes;3 or 

(W a corporation, either for profit or not for profit, that is 

authorized by its articles of incorporation to conduct a 

business for cemetery purposes. 

TEX. HEALTH & SAFETY CODE ANN. 5 711.001(3) (Vernon Supp. 2005). Because the family is 

unincorporated, by definition it is not a corporation organized for profit or not for profit. We 

therefore conclude that a family is not a “cemetery organization” under subsection 7 11 .OO 1(3)(B). 

Thus, the family is a “cemetery organization” only if it is an “unincorporated association of 

plot owners.“4 Id. 5 7 11 .OO 1(3)(A). Chapter 7 11 does not define an “unincorporated association of 

plot owners,” but does provide that it is excluded from the section 711.021 requirement that entities 

engaged in the business of cemetery purposes be organized as a corporation. See id. $7 11.02 1 (g)(2) 

(Vernon 2003). A “family, fraternal, or community cemetery that is not larger than 10 acres” is also 

excluded from this corporate structure requirement. Id. 9 7 11.02 1 (g)( 1). Because these exceptions 

are listed in section 711.021 as two separate exceptions, they must be different from each other. If 

they were identical, the inclusion of both exceptions would be redundant, a result which is to be 

avoided. See Henry v. Kaufman County Dev. Dist. No. 1,150 S.W.3d 498,507 (Tex. App.Austin 

2004, pet. granted) (“A statutory construction that creates a redundancy is to be avoided.“). Thus, 

a “family . . . cemetery” is not an “unincorporated association of plot owners not operated for profit.” 

TEX.HEALTH& SAFETYCODE ANN. 5 711.021(g)(l),(2)(V ernon 2003). We therefore conclude 

2Because you inquire only about the applicability of section 7 11.034, we limit our opinion to that section of 

chapter 7 11. 

3”Cemetery purpose” is defined as “a purpose necessary or incidental to establishing, maintaining, managing, 

operating, improving, or conducting a cemetery, interring remains, or caring for, preserving, and embellishing cemetery 

property.” TEX. HEALTH & SAFETY CODE ANN. 5 7 11 .OO l(4) (Vernon Supp. 2005). 

4A plot owner is a person “(A) in whose name a plot is listed in a cemetery organization’s office as the owner 

of the exclusive right of sepulture; or (B) who holds, from a cemetery organization, a certificate of ownership or other 

instrument of conveyance of the exclusive right of sepulture in a particular plot in the organization’s cemetery.” TEX. 

HEALTH & SAFETY CODE ANN. 5 7 11 .OO l(26) (Vernon Supp. 2005). You do not provide us specific information on the 

operation of the family-owned cemetery but we doubt that the members of the family fall within the defmition of “plot 

owner.” 
Mr. O.C. “Chet” Robbins - Page 3 (GA-0448) 

that a family is not a “cemetery organization” under subsection 711 .001(3)(A). Because it is not a 

“cemetery organization,” a family is not subject to the requirements of section 711.034? 

‘We note that the Texas Funeral Service Commission agrees with our conclusion. See Request Letter, supra 

note 1, at 3 (“In this agency’s interpretation, a family described in the second paragraph of this request is not a cemetery 

organization within the [section] 7 11 .OO l(3) definition of the term.“); see id at 1 (describing in the second paragraph 

an “unincorporated family attempting to establish and operate a cemetery solely for the interment of family members on 

family-owned property.“). The Commission’s reasonable interpretation is entitled to deference. See Flares v. Employees 

Ret. Sys. of Tex., 74 S.W.3d 532,545 (Tex. App. -Austin 2002, pet. denied) (“An administrative agency’s construction 

or interpretation of a statute, which the agency is charged with enforcing, is entitled to serious consideration by reviewing 

courts, so long as that construction is reasonable and does not contradict the plain language of the statute.“); see TEX. 

OCC. CODE ANN. ch. 65 1 (Vernon 2004 & Supp. 2005) (entitled “Cemetery and Crematory Services, Funeral Directing, 

and Embalming”). 
Mr. O.C. “Chet” Robbins - Page 4 (GA-0448) 

SUMMARY 

A family is not a “cemetery organization” subject to section 

711.034 of the Texas Health and Safety Code. 

Very truly yours, 

eneral of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee