### 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 & SAFETYCODE 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 ofthe property. See id. 57ll.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. (j711.034(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 ofplot 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 711.034, we limit our opinion to that section of chapter 711. 3”Cemetery purpose” is defined as “apurpose necessary or incidental to establishing, maintaining, managing, operating, improving, or conducting acemetery, interring remains, or caring for, preserving, and embellishing cemetery property.” TEX.HEALTH& SAFETY CODEANN.

5 711 .OO l(4) (Vernon Supp. 2005). 4Aplot owner is aperson “(A) in whose name aplot is listed in a cemetery organization’s office as the owner ofthe exclusive right of sepulture; or (B) who holds, from a cemetery organization, a certificate of ownership or other instrument of conveyance ofthe exclusive right of sepulture in aparticular plot in the organization’s cemetery.” TEX. HEALTH & SAFETY

CODEANN.5711.OO

l(26) (Vernon Supp. 2005). You do not provide us specific information onthe operation ofthe family-owned cemetery but we doubt that the members ofthe 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 (“Inthis agency’s interpretation, afamily described inthe second paragraph ofthis request isnot a cemetery organization within the [section] 711.OO l(3) definition ofthe term.“); see id at 1 (describing in the second paragraph an “unincorporated family attempting to establish and operate acemetery solely for the interment of family members on family-owned property.“). The Commission’s reasonable interpretation isentitled to deference. SeeFlares 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 ofastatute, which the agency ischarged with enforcing, isentitled to serious consideration by reviewing courts, so long as that construction isreasonable and does not contradict the plain language of the statute.“); see TEX. OCC.CODEANN.

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