                            ATTORNEY GENERAL OF TEXAS
                                        GREG      ABBOTT




                                           August 19,2004



The Honorable Yolanda de Le6n                      Opinion No. GA-0235
Cameron County District Attorney
Cameron County Courthouse                          Re: Whether a county may acquire and operate
974 East Harrison Street                           property for the exclusive interment of deceased
Brownsville, Texas 78520                           paupers (RQ-0185-GA)

Dear Ms. de Le6n:

        You ask whether any law authorizes Cameron County to acquire and operate property for the
exclusive interment of deceased paupers.’ You also ask whether Cameron County has discretion
under Health and Safety Code section 694.002 to adopt a rule authorizing the county to acquire and
operate property to bury deceased paupers.

        Health and Safety Code section 694.002 provides that “[tlhe commissioners court of each
county shall provide for the disposition of the body of a deceased pauper.” TEX. HEALTH & SAFETY
CODE AMj. 5 694.002(a) (Vernon 2003). McNorton Y. Vu1 Verde County, 25 S.W. 653,654 (Tex.
Civ. App. 1894, no writ) (county owes a duty of burial to every pauper). Section 694.002(a) also
provides that “[tlhe commissioners court may adopt rules to implement this section.” TEX. HEALTH
& SAFETY CODE ANN. 5 694.002(a) (Vernon 2003).

        Attorney General Opinion O-2699 (1940) construed the predecessor of Health and Safety
Code section 694.002 as authorizing a county commissioners court to establish a cemetery for
paupers. The opinion first determined that no statute authorized a county to establish a “public
cemetery” but then concluded as follows:

                        [I]t is the duty of the county to provide for the burial of
                paupers. The commissioners’ court is charged with this duty and
                undoubtedly has a large amount of discretion in selecting the means
                and methods       of carrying out such duty. Undoubtedly         the
                commissioners’ court would have the power to secure land for the
                county and establish there a cemetery or burying place for paupers.




        ‘LetterfromHonorableYolandadeL-&m,CameronCounty  DistrictAnomey, to HonorableGregAbbott,Texas
AttorneyGeneral(Feb. l&2004) (on file withOpinionCommittee,ako available at http://www.oag.state.tx.us).
The Honorable Yolanda de Le6n - Page 2                 (GA-0235)




Tex. Att’y Gen. Gp. No. O-2699 (1940) at 2 (construing provision of Revised Civil Statutes article
2351, repealed and reenacted by Act of May 18,1989,71st Leg., R.S., ch. 678, $5 1,5,1989 Tex.
Gen. Laws 2230, 3000,3163) (adopting the Health and Safety Code). If the county established a
cemetery for paupers, it would be authorized to spend county funds for the reasonable maintenance
of the cemetery. See Tex. Att’y Gen. Gp. No. O-2699 (1940) at 3.

         “A commissioners court may exercise only those powers expressly given by either the Texas
Constitution or the Legislature.” City ofSun Antonio v. City ofBoerne, 111 S.W.3d 2228 (Tex.
2003) (citing Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948)). “When the Constitution or
Legislature imposes an obligation on a commissioners court, that commissioners court also has the
implied authority to exercise the power necessary to accomplish its assigned duty.” Id. (citing
Anderson V. Wood, 152 S.W.2d 1084,1085 (Tex. 1941)). While section 694.002 formerlyprovided
that “[tlhe commissioners court of each county shall provide for the burial of paupers,” Act of May
 18, 1989, 71st Leg., R.S., ch. 678, 5 5, 1989 Tex. Gen. Laws 2230, 3163, it now requires the
commissioners court to “provide for the disposition op’ a deceased pauper’s body. TEX. HEALTH &
SAFETYCODE ANN. $694.002(a) (Vernon 2003) (emphasis added). See Act of May 19,1999,76th
Leg., R.S., ch. 929, 5 1, 1999 Tex. Gen. Laws 3663,3663. Pursuant to this provision, the county
may dispose of remains by burial, by donating the body to a medical facility, or by cremation. See
Tex. Att’y Gen. Gp. No. JC-0228 (2000) at 5. If the county decides to bury such deceased persons,
the commissioners court would have to acquire burial lots for that purpose and section 694.002
would impliedly authorize it to do so. See generally Snellen v. Brazoria County, 224 S.W.2d 305,
3 10 (Tex. Civ. App.-Galveston    1949, writ ref d n.r.e.) (statute that expressly authorizes counties to
acquire fire-fighting equipment also impliedly authorizes them to acquire quarters necessary for
housing equipment); Dancy v. Davidson, 183 S.W.2d 195 (Tex. Civ. App.-San Antonio 1944, writ
ref d) (commissioners court’s power to “provide” necessary public buildings includes the power to
purchase buildings); Tex. Att’y Gen. Op. No. S-126 (1954) at 4 (commissioners court has implied
authority under statute requiring it to provide for the support of paupers to lease space and facilities
from private hospital for care and hospitalization ofresident paupers). The commissioners court also
has implied authority under Health and Safety Code section 694.002 to purchase land and operate
a cemetery to bury deceased paupers instead ofpurchasing cemetery lots individually. Seegenerally
Damon v. State, 37 S.W.2d 405 (Tex. Civ. App.-Austin), affd, 52 S.W.2d 368 (Tex. Comm’n App.
 1932) (condemnation of land that had formerly been owned by county and used to bury paupers and
convicts). See also Tex. Att’y Gen. Op. No. O-2699 (1940) at 3.

         Since Attorney General Opinion O-2699 was issued, the legislature has adopted statutes
giving counties certain authority as to cemeteries, but no provision expressly addresses a county’s
authority to acquire and maintain property for the exclusive interment ofpaupers. Health and Safety
Code chapter 713, subchapter B addresses county authority to maintain certain public and private
cemeteries. A “private cemetery’ is one used only by a family or a small portion of the community,
while a “public cemetery” is one dedicated for use by the general community.          See Meadows v.
Edwards, 116 S.W.2d 831, 833 (Tex. Civ. App.-Texarkana            1938, writ ref d); see also Conn v.
Boylan, 224 N.Y.S.2d 823,835 (cemetery mapped in plots that were sold to the general public was
a public cemetery). A “public cemetery” may be owned by a private entity. See TEX. HEALTH &
SAFETYCODE ANN. $5 711.021 (Vernon 2003) (formation of a private corporation to maintain and
The Honorable Yolanda de Leon - Page 3                 (GA-0235)




operate cemetery), 711.038 (sale of cemetery plots); Mount Olivet Cemetery Co. v. City ofFort
Worth, 275 S.W.2d 152,154 (Tex. Civ. App.-Fort Worth 1955, writref dn.r.e.) (paving assessment
against private corporation owning and operating a public cemetery for profit). See also TEX.
HEALTH & SAFETY CODE ANN. $5 713.001 (Vernon 2003) (governing body of a municipality may
purchase, establish, and regulate a cemetery), 713.026(b)(l) (county-owned cemetery).

          Chapter 713, subchapter B authorizes a commissioners court to establish a perpetual trust
fund with the county judge as trustee to maintain “a neglected or unkept public or private cemetery
in the county.” Id. 5 713.021. See also id. 5 713.022 (acceptance of gifts or grants for trust fund).
Subject to specific exceptions, the trustee of the fund, “a member of the commissioners court or any
other elected county officer may not pay or use public funds or county employees, equipment, or
property to maintain a neglected or unkept public or private cemetery.” Id. 5 713.026(a). This
restriction does not apply to a county if:

                        (1) the county owned the cemetery from September        1,1976,
                through January 1,1979; or

                        (2) the county used county funds, employees, equipment,       or
                property to maintain a county-owned cemetery during 1976.

Id. 5 713.026(b). A county within the section 713.026(b) exceptions “may continue to own the
cemetery or to provide maintenance for the cemetery” if it tiles with the secretary of state a
commissioners court order certifying that it qualifies for one ofthe exceptions. See id. 5 713.026(c).

         Section 713.026(b) reflects the fact that all counties were at one time authorized to maintain
public cemeteries. See Tex. Att’y Gen. Op. No. WW-1058 (1961) at 4. In 1951, the legislature
authorized all counties to spend “moneys in the general fund for purpose of maintenance and upkeep
of public cemeteries in their respective counties.” Act ofMay7, 1951,52dLeg.,            R.S., ch. 271, 8
1, 1951 Tex. Gen. Laws 437-38 (previously article 2351f, Revised Civil Statutes). The legislature
repealed this authorizationin  1977, see Act ofMay20,1977,65th       Leg., R.S., ch. 654,s 5,1977 Tex.
Gen. Laws 1657-58, but subsequently adopted the predecessor of Health and Safety Code section
713.026(b), which “grandfathered” county authority to maintain public cemeteries owned or
maintained during specific years. See Act ofMay 10, 1979,66th Leg., R.S., ch. 228,s 1, 1979 Tex.
Gen. Laws 497 (adopting section 9 of former article 235 If-l, Revised Civil Statutes); repealed and
reenacted by Act ofMay 18, 1989, 71st Leg., R.S., ch. 678, $8 1, 13, 1989 Tex. Gen. Laws 2230,
3022,3165 (act adopting the Health and Safety Code).

         The chapter 713 provisions relating to county maintenance of “public” or “private”
cemeteries have no bearing on a county’s implied authority to acquire and maintain a cemetery
exclusively for deceased paupers, because such cemetery would be neither a “public” nor a “private”
cemetery. Section 713.027 authorizes a county with a population of 8,200 or less to “own, operate,
and maintain a cemetery and sell the right ofburial in the cemetery.” TEX.HEALTH & SAFETY CODE
ANN. 5 713.027 (Vernon 2003). This provision contemplates a public cemetery, as evidenced by
the county’s authority to sell the right ofburial. Like other provisions ofchapter 713, subchapter B,
The Honorable Yolanda de Leon - Page 4               (GA-0235)




it has no impact on a county’s implied authority to provide a burial place exclusively   for deceased
paupers.

         Health and Safety Code section 713.029(a) authorizes a commissioners court to “purchase
burial grounds to be used exclusively” to bury honorably discharged veterans who “die without
leaving sufficient means to pay funeral expenses.” Id. § 713.029(a); see also id. 5 713.029(b)
(commissioners     court “may not purchase burial grounds under this section if there is a national
military cemetery or other military plot in the county in which honorably discharged veterans of the
United States armed forces may be buried free of charge’?.             This provision authorizes a
commissioners court to purchase burial grounds for the exclusive use of a particular class of persons
who may also be paupers within section 694.002. While Health and Safety Code section 694.002
impliedly authorizes a county commissioners court to acquire and operate a cemetery for all paupers,
it is not evident that it would allow a particular group to be singled out as does section 713.029.
Section 713.029 does not undermine our conclusion that a county has implied authority pursuant to
Health and Safety Code section 694.002 to acquire and maintain land to be used for the exclusive
interment of deceased paupers. The commissioners court may adopt a rule under this provision
authorizing the county to acquire and operate property to bury deceased paupers.
The Honorable Yolanda de Leon - Page 5             (GA-0235)




                                      SUMMARY

                        Pursuant to its duty under Health and Safety Code section
               694.002 to provide for the disposition of the body of a deceased
               pauper, a commissioners court has implied authority to purchase and
               maintain land for the exclusive interment of deceased paupers. The
               commissioners     court may adopt a rule under this provision
               authorizing the county to acquire and operate property for this
               purpose.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
