                 TIZEA'ITORNEY       GENERAL
                           OF TEXAS
                       AUSTIN. TSGXAEI
                                    78711



                                     October    7. 1974


The Honorable      Ogden Bass                              Opinion   No.     H-   414
District  Attorney
Brazoria   County                                          Re: Whether  corporation may
Angleton,    Texas    77515                                operate two or more separate
                                                           cemeteries.

Dear   Mr.   Bass:

       You have requested an opinion as to whether a single                       corporation
may operate two or more separate   cemeteries.   You advise:

                         Restwood    Memorial      Park,    Inc.,   a cemetery
                     association   organized   under Art.       912a, R. C. S.,
                     contemplates    the acquisition     of land five miles
                     short of the city’limits     of any city of 5,000 to
                     25,000 population     to be dedicated      for cemetery
                     purposes.    The   land  will  not  be   adjacent  to or
                     contiguous   with the existing     land of the Associa-
                     tion so dedicated.

You ask whether        the association     may use the second        tract    as a cemetery.

          In Texas the operation   and maintenance            of cemeteries   is regulated
by Articles    912a-1 et seq.,  V. T. C. S.  Directly          in point is Article  912a-24
which provides:

                          (a) It shall be unlawful for any person,          company,
                     corporation,     or association    to establish     or use for burial
                     purposes     any graveyard     or cemetery,      or any mausoleum
                     and/or cemetery       except in a cemetery        heretofore  estab-
                     lished and operating,      located within,      or within less than
                     one (1) mile from,      the incorporated     line of any city of not
                     less than five thousand (5,000) nor more than twenty-five




                                               p.   1933
The Honorable       Ogden   Bass   page   2     (H-414)




                thousand (25,000) inhabitants      according    to the last
                preceding   Federal   Census,    or within,   or within less
                than two (2) miles from,      the incorporated     line of any
                city of not less than twenty-five     thousand (25,000) nor
                more than fifty thousand (50,000) inhabitants          according
                to the lastpreceding    Federal   Census,    or within,    or
                within less than three (3) miles from,        the incorporated
                line of any city of not less than fifty thousand (50,000)
                nor more than one hundred thousand (loo, 000) inhabitants
                according   to the last preceding    Federal    Census,    or within,
                or within less than four (4) miles from,        the incorporated
                line of any city of not less than one hundred thousand
                 QOO, 000) nor more than two hundred thousand (200,000)
                inhabitants,      according      to the last preceding       Federal    Census,
                or within,      or within less than five (5) miles from,             the
                incorporated       line of any city or not less than two hundred
                thousand (ZOO, 000) inhabitants,             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 provisions              of this Section: and further
                provided     that the establishment          or use of a columbarium
                by any organized         religious     society   or sect as a part of or
                attached to the principal church building owned by such
                religious     society    or sect, and within the limits hereinabove
                set forth,     shall not be unlawful,          and shall be exempt from
                the provisions        of this Section.

                .    . .


This provision   plainly prohibits the establishment    of a cemetery  on land
located within one mile of the incorporated     line of any city having a popula-
tion of not less than five thousand nor more than twenty five thousand




                                           p.   1934
.   -




        The Honorable     Ogden   Bass     page   3     (H-414)




        inhabitants    unless that land is already     being used as a cemetery.         But in
        the situation about which you have asked the association             proposes   to acquire
        land more than one mile from the city limits for use as a second cemetery.
        Assuming     this is not within the prohibited      distance   of any other city, Article
        912a-24 does not prohibit      the acquisition    of this land for cemetery      purposes.
        See, Faulk v. Buena Vista Burial Park Assoc.,                152 S. W. 2d 891 (Tex.    Civ.
        APP.   --El   Paso   1941, no writ): Franklin    v.  Pietzsch,    334  S. W. 2d 214  (Tex.
        Civ. App. --Dal~las 1960, writ ref’d.,         n. r. e.).

                 A second issue raised by your request,            however,   is whether in any
        circumstances      a single corporation      may own and operate       two separate
        cemeteries.     Nowhere    in Article   912a does there appear any prohibition
        against   such an arrangement.         Furthermore     in Attorney    General    Opinion
        V-1130 (1950) this office implicitly       recognized    that a perpetual    care corpora-
        tion is permitted    to operate    two separate     cemeteries    when it held that such
        a corporation    would be required      to file separate    annual statements      and
        maintain    separate   perpetual    care funds for each cemetery.         In view of
        Attorney    General   Opinion V-1130 and in the absence         of any compelling
        reason for a contrary      conclusion,     it is our opinion that a single corporation
        is authorized    to own and operate      two or more separate       cemeteries.

                                                  SUMMARY

                              A single corporation    may own and operate     two
                          separate  cemeteries    so long as all the requirements
                          for the operation   of a cemetery  set out in Articles
                          912a-1, et seq. are met.




                                                                  torney   General   of Texas




        DAVID M. KENDALL,            Chairman
        Opinion Committee




                                                      pa 1935
