                        OHNEY         GENEKAL

                      OF   TEXAS




Honorable Richard E. Rudeloff
County Attorney
Bee County
Beeville, Texas
                                Opinion No. WW-373
                                Re:    Authority to establish
                                       a cemetery within less
                                       than one mile from the
                                       incorporated line of a
                                       city which has a popula-
                                       tion of not less than
                                       5,000, but not more
Dear Mr. Rudeloff:                     than 25,000 inhabitants.
        You have requested the opinion of this office as to
whether a new cemetery may be established on property situ-
ated within one-half mile of the incorporated limits of Bee-
ville, a city of about 15,000 population, and if the estab-
lishment of such a cemetery is prohibited by Article 912a-
24, VernonIs Civil Statutes, whether the City of Beeville
and the Commissioners' Court of Bee County may waive this
restriction.
        You have advised us that the property on which the
cemetery is proposed to be established is adjacent to a
cemetery that has been in operation for fifty years or more.
        The applicable portion of said Article 912a-24
reads as follows:
                "It shall be unlawful for any
        person, company, corporation, or associa-
        tion to establish or use for burial pur-
        poses any graveyard or cemetery, or any
        mausoleum and/or cemetery except in a
        cemetery heretofore established and
        operating, located within, or within
        less than one (1) mile from, the incor-
        porated line of any city of not less than
        five thousand (5,000) nor more than
      le Richard E. Rudeloff, Page 2 (WW-3731


       twenty-five thousand (25,000) inhabi-
       tants according to the last preceding
       Federal Census, , , . provided that
       where cemeteries have heretofore been
       used and maintained within the limits
       hereinabove set forth, and additional
       lands are required for cemetery purposes,
       land adjacent to said cemetery may be
       acquired by the cemetery association
       operating such cemetery, to be used as
       an addition to such cemetery, and the
       use of said additional land for such
       purposes shall be exempt from the pro-
       visions of this Section."
        In our opinion there is no doubt that the proposed
location of the cemetery is prohibited under the terms of
Article 912a-24, su ra   Faulk v. Buena Vista Burial Park
Association, 152 &d     891 (Civ. App. 1941, no writ hi=
tory), is the only reported case we have found bearing on
the statute in question. In that case, the predecessor to
Article 912a-24, supra, was sustained by the Court as an
exercise by the State of its police power. The Court was
of the opinion that the statute was neither unreasonable
nor arbitrary.
        We, likewise, agree with your conclusion that the
prohibition on the location of new cemeteries contained in
Article 912a-24, supra, cannot be waived, In this instance,
by the City of Beeville and the Commissioners' Court of Bee
County. This statute Is an expression of the Intention of
the Texas Legislature, and does not confer upon local govern-
ing bodies the power to waive the applicatloa of any of Its
provisions.



                          SUMMARY
                  Article 912a-24 prohibits
                  the establishment of a
                  cemetery within one mile or
                  less from a city whose popula-
                  tion is not less than 5,000
                  nor more than 25,000, and local
Honorable Richard E, Rudeloff, Page 3 (WW-373)


                    governing bodies may not
                    waive this statutory pro-
                    hibition.
                                 Yours very truly,




DRT:jl:wam
APPROVED
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. C. Davis, Jr.
Leonard Passmore
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY:   W. V. Geppert
