    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                March 14,200l



The Honorable David Cain                                  Opinion No. JC-0355
Chair, Committee on Administration
Texas State Senate                                        Re: Application of chapter 711 of the Health and
P.O. Box 12068                                            Safety Code to cemeteries not dedicated under
Austin, Texas 78711                                       that chapter, and related questions (RQ-0304-JC)


Dear Senator Cain:

          This office addressed a number of questions relating to cemeteries and their regulation in
Attorney General Opinion JC-0235. See Tex. Att’y Gen. Op. No. JC-0235 (2000). Seeking
clarification of that opinion, your predecessor in office asked a number of additional questions about
the application of chapter 711 of the Health and Safety Code to cemeteries dedicated in the late
nineteenth century and the effect of a cemetery dedication under common law.’ We conclude that
the provisions in chapter 7 11 that refer broadly to cemeteries, as opposed to cemetery organizations,
apply as a general matter to the kinds of cemeteries described in the request letter. Land dedicated
as a cemetery under common law, as opposed to chapter 711, may be conveyed, but the conveyance
may not interfere with the land’s dedicated use. Section 711.041 requires the owner of a cemetery
or private burial ground to provide reasonable public access for visiting purposes.

         First, your predecessor asked how chapter 711 applies to cemeteries, where burials were
made in the late nineteenth century, that are now located within privately owned land. He explained
that this small area of land “was once devoted to burials and evidence of burials exists on the site.
This type of cemetery property has not been dedicated by a cemetery organization under Section
711.034, but may have been recorded and formally dedicated by deed to cemetery use prior to the
Act.” Request Letter, supra note 1, at 1. He also asked, “In a situation where a landowner owns
property that contains a cemetery of the above described nature, does Chapter 7 11 of the Health and
Safety Code apply to the cemetery ?” Id. We answer these two questions together.

        The request asks, in essence, whether chapter 7 11 applies to a cemetery that is not organized
as a cemetery organization. Chapter 711 refers to both cemetery organizations and cemeteries and



         ‘Letter from Honorable Chris Harris, Senator, Texas State Senate, to Honorable John Comyn, Texas Attorney
General (Oct. 25,200O) (on file with Opinion Committee) [hereinafter Request Letter].
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uses both terms. It defines the term “cemetery organization” in section 711 .001(3) to mean “(A) 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; or (B) 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. 0 711,001(3)(A), (B) (Vernon Supp. 2001).
“Cemetery purpose” means “a purpose necessary or incidental to establishing, maintaining,
managing, operating, improving, or conducting a cemetery, interring remains, or caring for,
preserving, and embellishing cemetery property.”          Id. 0 711 .001(4). By contrast, the term
“cemetery” is defined in section 7 11 .001(2) to mean “a place that is used or intended to be used for
interment, and includes a graveyard, burial park, or mausoleum.” Id. 8 711 .001(2). “Burial park”
means “a tract of land that is used or intended to be used for interment in graves.” Id. lj 711 .001(l).
Thus, in chapter 711, the term “cemetery” is broader in meaning than the term “cemetery
organization” and includes places used for interment that are not formally organized.

         In answer to your predecessor’s questions, we believe that those provisions in chapter 711
that refer broadly to cemeteries apply as a general matter to the kinds of cemeteries he describes.
The term “cemetery” is defined to embrace any “tract of land that is used or intended to be used for
interment in graves.” Id. 5 7 11 .001(l). On the other hand, the provisions dealing specifically with
cemetery organizations apply only to those entities that fall within the section 7 11 .OOl(3) definition
of that term. As he has not asked about any particular provision of chapter 711, we do not address
whether any specific statute applies only to cemetery organizations or more generally to all
cemeteries.

         Your predecessor also asked the following questions         about the effect of a cemetery
dedication under common law, as opposed to chapter 7 11:

                        Does a landowner    of a property as described above act as a
                Trustee of the cemetery?

                        In a situation where the landowner of such property wishes to
                convey the entire property including the area used as cemetery, may
                the area of property used as cemetery be conveyed like any other
                property?

Request Letter, supra note 1, at 2.

        We believe that Attorney General Opinion JC-0235 and the cases discussed in that opinion
answer these questions. Although that opinion focused primarily on chapter 7 11, we also noted that
“under the common law, the conveyance of land dedicated as a cemetery did not affect its use,”
citing Houston Oil Co. v. Williams, 57 S.W.2d 380,384-85 (Tex. Civ. App.-Texarkana       1933, writ
ref d). That case includes the following statement:
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                It appears to be the rule that, where property has been actually
                appropriated either as a private family burying ground or as a public
                cemetery, it cannot in either instance be inherited or conveyed as
                other property is done so as to interfere with the use and purposes to
                which it has been devoted. . . . “When once dedicated to burial
                purposes, and interments have there been made, the then owner holds
                the title to some extent in trust for the benefit of those entitled to
                burial in it, and the heir at law, devisee, or vendee takes the property
                subject to this trust.”

Id. (citations omitted) (quoting Hines v. Tennessee, 149 SW. 1058, 1059 (Term. 1911)). See
generaIIy 12 TEX. JUR. 3D Cemeteries $9 12-13 (1993). In answer to your predecessor’s questions,
it appears that, under comrnon law, land dedicated as a cemetery may be conveyed, but that the
conveyance may not interfere with its dedicated use. Given this limitation on the use of the property,
a person who takes title to the property is said hold title “to some extent in trust for the benefit of
those entitled to burial in it.” Williams, 57 S.W.2d at 384-85.

        Finally, your predecessor   asked:

                       Do these types of cemeteries, once devoted to and used by the
               public, with or without recording or formal deeded dedication, remain
               public cemeteries by virtue of past use even though they [a]re located
               within private property?

Request Letter, supra, note 1, at 1. It is not clear to us what is meant by “public” cemetery, and
whether this means, for example, a cemetery to which the public is allowed access for visitation
purposes or a cemetery open to members of the public for burial. Section 711.041 governs public
access to cemeteries and private burial grounds, providing:

                       Any person who wishes to visit a cemetery or private burial grounds
               for which no public ingress or egress is available shall have the right to
               reasonable ingress and egress for the purpose of visiting the cemetery or
               private burial grounds. This right of access extends only to visitation during
               reasonable hours and only for purposes usually associated with cemetery
               visits.

TEX. HEALTH & SAFETY CODE ANN. 8 711.041(a) (Vernon Supp. 2001). The owners of land
surrounding the cemetery or private burial ground may designate reasonable routes for ingress and
egress. Id. 9 711.041(b). With respect to burial, land dedicated and used as a cemetery must be
preserved as a burial ground for those who have already been interred there. See Williams, 57
S.W.2d at 384-85. Whether a land owner must permit members of the public to be interred in a
cemetery, however, would depend upon the terms of the original dedication and existing plot
conveyances, if any. See TEX. HEALTH & SAFETY CODE ANN. 0 711.039(a) (Vernon Supp. 2001)
The Honorable       David Cain - Page 4                       (JC-0355)




(“A plot in which the exclusive right of sepulture is conveyed is presumed to be the separate property
of the person named as grantee in the certificate of ownership or other instrument of conveyance.“);
see also id. 5 8 711.038 (sale of plots by cemetery association); 714.003 (abandoned plots in private
cemeteries). In the case of each particular cemetery, resolution of this issue would require findings
of fact,* and perhaps even contract interpretation3 which are beyond the purview of an attorney
general opinion.




          2See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M- 187 (1968) at 3 (“[Tlhis office is without authority to make . . . factual
determinations.“);   O-291 1 (1940) at 2 (“[Tlhis . . . presents a fact question which we are unable to answer.“).

          3See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (contract interpretation beyond purview of this office);
DM-383 (1996) at 2 (interpretation of contract not appropriate function for opinion process); DM- 192 (1992) at 10
(“This office, in the exercise of its authority to issue legal opinions, does not construe contracts.“); JM-697 (1987) at
6 (“review of contracts is not an appropriate function for the opinion process”).
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                                      SUMMARY

                        The provisions in chapter 711 of the Health and Safety Code
               that refer broadly to cemeteries,        as opposed to cemetery
               organizations, apply as a general matter to the cemeteries dedicated
               in the late nineteenth century. Land dedicated as a cemetery under
               common law, as opposed to chapter 711, may be conveyed, but the
               conveyance may not interfere with the land’s dedicated use. Section
               711.041 requires the owner of a cemetery or private burial ground to
               provide reasonable public access for visiting purposes.




                                            ggcT
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
