Can a Texas family bury relatives on their own land without filing cemetery paperwork with the county?

TX AG Opinion GA-0448: Is a family burying relatives on its own land a "cemetery organization"?

Plain-English summary

The Executive Director of the Texas Funeral Service Commission asked the Attorney General whether an unincorporated family that sets up and runs a cemetery only for burying its own members, on land the family owns, is a "cemetery organization" that must meet the survey, filing, and dedication requirements of Health and Safety Code section 711.034. The Commission itself read the law to say no, the requirements do not reach a family-owned cemetery, but its interpretation was not accepted everywhere in Texas, and at least one county refused to let a family bury a deceased relative on family-owned land. So the Commission sought the Attorney General's view.

Section 711.034 imposes its requirements (surveying and subdividing the land into plots, making a map or plat, filing that with the county clerk, and dedicating the property exclusively to cemetery purposes) only on a "cemetery organization." Chapter 711 defines a "cemetery organization" as either (A) an unincorporated association of plot owners, not for profit, authorized by its articles of association to conduct a cemetery business, or (B) a corporation authorized by its articles of incorporation to do so. Because the family was unincorporated, it plainly was not the corporation in part (B). The only question was whether it could be the "unincorporated association of plot owners" in part (A).

The Attorney General concluded it could not. Section 711.021, which generally requires entities in the cemetery business to be corporations, lists two separate exceptions: one for an "unincorporated association of plot owners not operated for profit," and a different one for a "family, fraternal, or community cemetery that is not larger than 10 acres." Because the statute lists those as two distinct exceptions, they must mean different things, since reading them as the same would make one redundant, a result statutory construction avoids. That means a "family cemetery" is not the same as an "unincorporated association of plot owners." So a family is not a "cemetery organization" under either part of the definition, and is not subject to section 711.034. The opinion noted that this matched the Commission's own reasonable interpretation, which is entitled to deference.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Health and Safety Code cemetery provisions (chapter 711, including sections 711.001, 711.021, and 711.034) may have been amended since 2006, and local rules and other statutes can also affect private burials. A family considering burying a relative on its own land today should confirm the current state law and any local requirements with counsel rather than rely on the section numbers described here.

Who this opinion affected (as of 2006)

Families maintaining a private burial ground: The opinion concluded that an unincorporated family burying only its own members on family-owned land was not a "cemetery organization" and so was not bound by section 711.034's survey, plat-filing, and dedication requirements.

County officials and clerks: The opinion addressed the disagreement that had led at least one county to refuse a family burial, explaining why section 711.034 did not classify such a family as a cemetery organization.

The Texas Funeral Service Commission: The opinion agreed with the Commission's own reading and noted that the agency's reasonable interpretation of a statute it enforces is entitled to deference.

Common questions

Does a family have to survey and plat its land to bury relatives there?
According to the opinion, no. Section 711.034's survey, map-or-plat, county-filing, and dedication requirements apply only to a "cemetery organization," and the opinion concluded a family is not one.

Why isn't a family a "cemetery organization"?
The opinion explained that a family is not a corporation, and it is not an "unincorporated association of plot owners" either, because the statute lists a small "family cemetery" as a separate exception from such an association, so the two cannot be the same thing.

Does the 10-acre figure matter?
The opinion referenced the statute's separate exception for a "family, fraternal, or community cemetery that is not larger than 10 acres," using its existence to show that a family cemetery is treated differently from an "unincorporated association of plot owners."

Did the funeral commission agree?
Yes. The opinion noted that the Texas Funeral Service Commission had reached the same conclusion and that its reasonable interpretation was entitled to deference.

Background and statutory framework

Section 711.034 requires a "cemetery organization" to survey and subdivide cemetery land into plots, make a map or plat (Tex. Health & Safety Code Ann. § 711.034(a)(1) (Vernon 2003)), file it with the county clerk of each county where the property sits (§ 711.034(b)), and dedicate the property exclusively to cemetery purposes (§ 711.034(c)). Chapter 711 defines "cemetery organization" as an unincorporated association of plot owners not operated for profit and authorized by its articles of association to conduct a cemetery business, or a corporation so authorized by its articles of incorporation (§ 711.001(3) (Vernon Supp. 2005); see also § 711.001(4) (defining "cemetery purpose"); § 711.001(26) (defining "plot owner")). Because the family was unincorporated, it was not the corporation in subsection 711.001(3)(B).

On whether the family was an "unincorporated association of plot owners," the opinion turned to section 711.021, which requires entities engaged in cemetery purposes to be corporations but excludes both an "unincorporated association of plot owners not operated for profit" (§ 711.021(g)(2)) and a "family, fraternal, or community cemetery that is not larger than 10 acres" (§ 711.021(g)(1)). Treating the two listed exceptions as distinct to avoid redundancy (Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 507 (Tex. App.-Austin 2004, pet. granted)), the opinion concluded a family cemetery is not an "unincorporated association of plot owners," so a family is not a "cemetery organization" and is not subject to section 711.034. The opinion deferred to the Commission's consistent reasonable interpretation (Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 545 (Tex. App.-Austin 2002, pet. denied); see Tex. Occ. Code Ann. ch. 651 (Vernon 2004 & Supp. 2005)).

Citations

Statutes:

• Tex. Health & Safety Code Ann. §§ 711.034, 711.034(a)(1), (b), (c), 711.021(g)(1)-(2) (Vernon 2003); §§ 711.001(3), 711.001(4), 711.001(26) (Vernon Supp. 2005)
• Tex. Occ. Code Ann. ch. 651 (Vernon 2004 & Supp. 2005)

Cases:

• Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 507 (Tex. App.-Austin 2004, pet. granted)
• Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 545 (Tex. App.-Austin 2002, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0448
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0448.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 15, 2006

Mr. O.C. "Chet" Robbins
Executive Director
Texas Funeral Service Commission
Post Office Box 12217
Austin, Texas 78711

Opinion No. GA-0448

Re: Applicability of chapter 711, Health and Safety Code, to a family cemetery (RQ-0440-GA)

Dear Mr. Robbins:

You ask "whether an unincorporated family attempting to establish and operate a cemetery solely for the interment of family members on family-owned property is a 'cemetery organization' required to comply with the survey, filing and dedication requirements of Health and Safety Code, § 711.034." The Texas Funeral Service Commission ("Commission") does not construe section 711.034 to apply to a family-owned cemetery. See Request Letter, supra note 1, at 3. You inform us that the Commission's interpretation is not accepted throughout Texas and that at least one county "refuses to allow a family to inter a deceased family member on family-owned property." Id.

You state the family is an "unincorporated family." See id. at 1. We understand you to mean that the family members have not taken formal steps to create a corporate entity. At the same time, you do not state whether the family members have prepared or operate under articles of association. See id. at 1-3. We therefore believe that you inquire only about a family as that term is ordinarily understood.

Section 711.034 of the Health and Safety Code imposes certain dedication requirements on "cemetery organizations." TEX. HEALTH & SAFETY CODE ANN. § 711.034 (Vernon 2003). Section 711.034 requires a "cemetery organization" to survey and subdivide cemetery land into plots and to make a map or plat of the property. See id. § 711.034(a)(1). The "cemetery organization" is required to "file the map or plat with the county clerk of each county in which the property or any part of the property is located." Id. § 711.034(b). Along with the map or plat, a "cemetery organization" must dedicate the property "exclusively to cemetery purposes." Id. § 711.034(c). You inquire only about the provisions of section 711.034. See Request Letter, supra note 1, at 1. To answer your question, we must determine whether a family interring remains on family-owned property is a "cemetery organization."

A "cemetery organization" is defined in chapter 711 as

(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. § 711.001(3) (Vernon Supp. 2005). Because the family is unincorporated, by definition it is not a corporation organized for profit or not for profit. We therefore conclude that a family is not a "cemetery organization" under subsection 711.001(3)(B).

Thus, the family is a "cemetery organization" only if it is an "unincorporated association of plot owners." Id. § 711.001(3)(A). Chapter 711 does not define an "unincorporated association of plot owners," but does provide that it is excluded from the section 711.021 requirement that entities engaged in the business of cemetery purposes be organized as a corporation. See id. § 711.021(g)(2) (Vernon 2003). A "family, fraternal, or community cemetery that is not larger than 10 acres" is also excluded from this corporate structure requirement. Id. § 711.021(g)(1). Because these exceptions are listed in section 711.021 as two separate exceptions, they must be different from each other. If they were identical, the inclusion of both exceptions would be redundant, a result which is to be avoided. See Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 507 (Tex. App.-Austin 2004, pet. granted) ("A statutory construction that creates a redundancy is to be avoided."). Thus, a "family . . . cemetery" is not an "unincorporated association of plot owners not operated for profit." TEX. HEALTH & SAFETY CODE ANN. § 711.021(g)(1), (2) (Vernon 2003). We therefore conclude that a family is not a "cemetery organization" under subsection 711.001(3)(A). Because it is not a "cemetery organization," a family is not subject to the requirements of section 711.034.

SUMMARY

A family is not a "cemetery organization" subject to section 711.034 of the Texas Health and Safety Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from O.C. "Chet" Robbins, Executive Director, Texas Funeral Service Commission, to Honorable Greg Abbott, Attorney General of Texas (Feb. 2, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Because you inquire only about the applicability of section 711.034, we limit our opinion to that section of chapter 711.

3. "Cemetery purpose" is defined as "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." TEX. HEALTH & SAFETY CODE ANN. § 711.001(4) (Vernon Supp. 2005).

4. A plot owner is a person "(A) in whose name a plot is listed in a cemetery organization's office as the owner of the exclusive right of sepulture; or (B) who holds, from a cemetery organization, a certificate of ownership or other instrument of conveyance of the exclusive right of sepulture in a particular plot in the organization's cemetery." TEX. HEALTH & SAFETY CODE ANN. § 711.001(26) (Vernon Supp. 2005). You do not provide us specific information on the operation of the family-owned cemetery but we doubt that the members of the family fall within the definition of "plot owner."

5. We note that the Texas Funeral Service Commission agrees with our conclusion. See Request Letter, supra note 1, at 3 ("In this agency's interpretation, a family described in the second paragraph of this request is not a cemetery organization within the [section] 711.001(3) definition of the term."); see id. at 1 (describing in the second paragraph an "unincorporated family attempting to establish and operate a cemetery solely for the interment of family members on family-owned property."). The Commission's reasonable interpretation is entitled to deference. See Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 545 (Tex. App.-Austin 2002, pet. denied) ("An administrative agency's construction or interpretation of a statute, which the agency is charged with enforcing, is entitled to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute."); see TEX. OCC. CODE ANN. ch. 651 (Vernon 2004 & Supp. 2005) (entitled "Cemetery and Crematory Services, Funeral Directing, and Embalming").