                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                                  March 21,2003



 The Honorable Florence Shapiro                                Opinion No. GA-0044
 Chair, Senate Committee on Education
 Texas State Senate                                            Re: Whether a home-rule municipality               may
 P.O. Box 12068                                                operate a cemetery (RQ-06 14-JC)
 Austin, Texas 7871 l-2068

 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 .OO1 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 CODEANN. 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 home-
rule 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
