Case Information
*1 The Attorney General of Texas June 21, 1984 JIM MATTOX
Attorney General
Supreme Court Building Honorable Jack A. McGaughey Opinion No. JM-175 P. 0. Box 12546 District Attorney for Archer, Austin, TX. 76711. 2546 Clay, and Montague Counties Re: Validity of a municipal 512/475-2501 ordinance which prohibits the P. 0. Box 55 Telex 9101674-1367 Telecopier 5121475-0266 Montague, Texas 76251 transfer of municipal cemetery
lots to a party other than the city 714 Jackson, Suite 700 Dallas, TX. 75202.4506
Dear Mr. McGaughey: 2141742-6944 You ask us "[wlhether or not a city which owns and operates a
4824 Alberta Ave., Suite 160 municipal cemetery may lawfully enact an ordinance prohibiting the El Paso, TX. 79905.2793 sale or transfer [by a grantee] of lots in that cemetery to a party 9151533-3464 other than the city." We conclude that a city may not enact such an ordinance, because it would constitute an unreasonable restraint on [71312235666] Houston. TX. 77002-3111 I Texas, Suite 700 alienation. You inform us that a city has operated a municipal cemetery
pursuant to articles lOlS(13) and 1015(32), V.T.C.S., since 1966 under an ordinance which provides the following at section 7: 606 Broadway, Suite 312 Lubbock, TX. 79401.3479 606/747-5236 The sale or transfer of any lot or lots or part of
a lot in the [clemetery is prohibited, except any oerson desirinn to sell or transfer a lot or lots 4309 N. Tenth, Suite B or a part of a lot in the [clemetery shall sell or McAllen, TX. 76501.1665 5121682-4547 transfer the same to the [c]lty at a price equal
to the purchase price paid for said lot, lots or 200 MaIn Plaza, suite 400 San Antonio. TX. 76205.2797 parts obligated to purchase the same at -said price. (Emphasis added). of [al lot, and the [cllty shall be The ordinance provides at section 4(5) that
An Equal Opportunity1 Affirmative Action Employer [t]he term 'Certificate of Ownership' as used
herein shall be construed as the instrument conveying interment rights in lots in the [clemetery.
We note at the outset that the grantee of a burial lot in a deed of conveyance does not acquire a fee simple title, but only acquires the lot for its intended burial purposes; it is clear, however, that such grantee is not the ordinary owner of an easement and that the interest passed by a deed to the purchaser of a burial lot is an interest in *2 ,..
land. Oak Park Cemetery, Inc. V. Donaldson, 148 S.W.2d 994 (Tex. Civ. APP. - Galveston 1941, writ dism'd judgmt car.).
Alienability is a legal incident of property, and restraints against it are not favored. Citizens' State Bank V. O'Leary, 167 S.W.2d 719 (Tex. 1942); Mischer V. Burke, 456 S.W.2d 550 (Tex. Civ. APP. - Houston [lst Dist.] 1970, writ ref'd n.r.e.). See Tex. Con&.
art. I, 626 (provision prohibiting perpetuities). Suchrestraints are against public policy and are void. Benson v. Greenville National Exchange Bank, 253 S.W.2d 918 (Tex. Civ. App. - Texarkana 1952, writ ref'd n.r.e.). An agreement, on the other hand, which merely provides for the first refusal to buy or for a preferential right of repurchase to be exercised within a specified period of time does not restrain alienation. U.S. Life Title Corn an p y of Dallas V. Andreen, 644 S.W.2d 185 (Tex. App. - San Antonio 1982, no writ); Foster V. Bullard, 496 S.W.2d 724 (Tex. Civ. App. - Austin 1973,v.e.);
Courseview, Inc. V. Phillips Petroleum Co., 258 S.W.2d 391 (Tex. Civ. APP. - Galveston 1953, writ ref'd n.r.e.). In order for a uurchase agreement to constitute an unreasonable restraint on alienation. the purchase agreement must contain a direction to the vendee ordering him not to convey. U.S. Life Title Company of Dallas V. Andreen, supra; Mattern V. Herzog, 367 S.W.2d 312, 319 (Tex. 1963). At issue in this request is the proper way to characterize section 7 of the ordinance.
In Forderhause v. Cherokee Water Company, 623 S.W.2d 435, 437 (Tex :. Civ. App. - Texarkana 1981), rev'd on other grounds, 641 S.W.2d (Tex. 1982), the court declared that the following contractual provision did not constitute a restraint on alienation and did not violate the prohibition against perpetuities set forth in article I, section 26, of the Texas Constitution:
Grantee is hereby given the first option to purchase the oil, gas and other minerals herein reserved, at the same price and on the same terms as Grantor has agreed to sell to a third party; such option to be accented or reiected within five (5) days after Grantee-has been furnished with the bona fide offer made by such third party. Failure to exercise such option on one sale, shall not be a waiver to purchasing at any subsequent sale or sales by Grantor. (Emphasis added).
The court then concluded:
The purchase right involved here does not constitute an unreasonable restraint on alienation. There is no fixed price. There is no absolute option unlimited as to time. There is only the right, exercisable whenever the owner desires to sel~l, to purchase the property by meeting any bona fide offer. The holder of the right cannot force or prevent a sale; neither can *3 , .
he fix the price for a sale. In those circumstances there is not such a restraint on alienation as would violate our public policy.
623 S.W.2d 435 at 439. See also Gray v. Vandver, 623 S.W.2d 172 (Tex. Civ. App. - Beaumont 1981, no writ) (court held that resenration in deed to the effect that grantors reserved their right to repurchase property for $175 at any time that grantee, his heirs, executors and administrators decide to sell was an unreasonable restraint on alienation).
The ordinance which is the subject of this request does set forth a fixed price. It is unlimited as to time. The holder of the right, i.e. the city, can act to forbid any sale or transfer. It does act, therefore, as a restraint on alienation. Accordingly, we conclude that a city which owns and operates a municipal cemetery may not enact an ordinance prohibiting the sale or transfer by a grantee of lots in that cemetery to a party other than the city.
SUMMARY A city which owns and operates a municipal cemetery may not enact an ordinance prohibiting the sale or transfer by a grantee of lots in that cemetery to a party other than the city.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED :
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton