Cemetery Texas Law
The Texas Historical Commission (THC) or other state agencies do not enforce cemetery laws. This responsibility belongs to county and municipal law enforcement agencies. If you are aware of cemetery vandalism or desecration contact your county sheriff or local police department.
Protection of historic cemeteries is, however, a shared responsibility. Notification must be made in order to protect these irreplaceable cultural resources. Cemetery desecration is a continuing problem in Texas and throughout the United States. Destruction occurs in many ways, including the illegal removal of human remains, damage from roaming livestock, encroaching development and construction, vandalism, and theft of grave goods and funerary objects.
If you believe that items offered for sale are former cemetery properties, contact local law enforcement authorities. State laws exist to protect cemeteries from vandalism, theft and desecration.
The following are state laws and court decisions regarding historic cemeteries. They provide an overview of some legal actions that have been successful in preserving burial grounds around the state. This information does not take the place of legal counsel. Consult the county or city attorney or legal counsel of your choice for more information about laws related to cemeteries in Texas. Most of the Texas laws regarding historic cemeteries are in Chapters 711–715 of the Texas Health and Safety Code; Title 13, Part 2, Chapter 22 of the Texas Administrative Code; and sections of the Penal Code. Neither the THC nor any other state agency enforces cemetery laws. This responsibility belongs to county and municipal law enforcement officials.
Dedication for Use
Section 711.001 of the Health and Safety Code defines a cemetery as a place that is used or intended to be used for interment, containing one or more graves.
Section 711.035 of the Health and Safety Code states that once a property is dedicated for cemetery use, it cannot be used for any other purpose unless the dedication is removed by a district court or the cemetery is enjoined or abated as a nuisance. Property is considered dedicated if one or more burials are present or a dedication of the property for cemetery use is recorded in the deed record.
Section 711.010(a)–(b) of the Health and Safety Code states that improvements to property that would disturb an unknown or abandoned cemetery may not be carried out until the remains are removed under a written order issued by the State Registrar or their designee under Section 711.004(f). The property owner may petition the district court where an unknown or abandoned cemetery is located to remove the dedication for cemetery purposes, and the court shall then order the removal of the human remains from the cemetery to a perpetual care cemetery.
Texas courts have ruled that no special ceremony or record is required to dedicate a cemetery; actual use as a cemetery is sufficient for dedication. Damon v. State, 52 S.W.2d 368 (Tex. 1932). Enclosure of land for use as a cemetery and evidence of burial are among the criteria for dedication. Smallwood v. Midfield Oil Co., 89 S.W.2d 1086 (Tex. Civ. App. – Texarkana 1935, writ dism’d).
Title 13, Part 2, Chapter 22, Rule §22.6 of the Texas Administration Code establishes the HTC designation as a means of preservation by recording boundaries in the county deed record.
Section 711.011(a)–(b) of the Health and Safety Code states that a person who discovers an unknown or abandoned cemetery shall file notice of the cemetery with the county clerk of the county in which it is located, documenting the land on which it is found by way of description as well as an approximate location of the cemetery and the evidence of the cemetery that was discovered. There are no fees associated with this filing. Notice of Existence of Cemetery forms are located on the THC website for recording historic cemeteries and at www.thc.state.tx.us/archeology/aacemexist.shtml for recording cemeteries discovered as a result of archeological investigations.
Held in Trust
Section 711.021 of the Health and Safety Code allows nonprofit corporations to establish, manage, maintain, improve, or operate a private cemetery.
Property dedicated to cemetery purposes and used as a burial ground may not be sold in such a manner as to interfere with its use as a cemetery. State v. Forest Lawn Lot Owners Assn., 254 S.W.2d 87 (Tex. 1953). However, such property may be conveyed in fee simple as long as it is still used as a cemetery and the grantee continues to maintain the cemetery for the benefit of the public. Barker v. Hazel-Fain Oil Co., 219 S.W. 874 (Tex. Civ. App.–Fort Worth 1920, writ ref’d).
A living person who has relatives buried in a graveyard does not, by that fact, own the land or plots in which they are buried. That person can, however, visit, ornament, and protect the graves from desecration even if he or she must cross private property to do so. Gibson v. Berry Cemetery Assn., 250 S.W.2d 600 (Tex. Civ. App.–Dallas 1952, no writ).
The fact that the remains of the dead buried in a cemetery have not been removed and that tombstones mark the places of burial is sufficient to show that the cemetery has not been abandoned. Michels v. Crouch, 122 S.W.2d 211 (Tex. Civ. App.–Eastland 1938, no writ). In Markgraf v. Salem Cemetery Assn., 540 S.W2d 524
(Tex. Civ. App.–San Antonio 1976, no writ), the court decided that land outside a cemetery fence was not abandoned because several graves were still evident.
Section 711.041 of the Health and Safety Code states that any person who wishes to visit a cemetery that has no public ingress or egress shall have the rights for visitation during reasonable hours and for purposes associated with cemetery visits. The owner of the lands surrounding the cemetery may designate the routes for reasonable access. Section 711.0521 further states that interference with ingress and egress is a Class C misdemeanor.
Health and Safety Code section 711.012(b) provides the Texas Funeral Services Commission the authority to write rules to support section 711.041 of the Health and Safety Code. These rules present a course of action that may be undertaken in cases where access to a cemetery is refused. See Title 22, Part 10, Rule §205.2 of the Texas Administrative Code.
The court decision in the case of Davis v. May, 135 S.W.3d 747 (Tex.App.–San Antonio 2003, pet. denied), affirmed the trail court’s judgment granting descendants the right of ingress and egress to a private family cemetery surrounded by a single landowner.
Section 42.08 of the Texas Penal Code states that a person who intentionally or knowingly disinters or disturbs a human corpse has committed a Class A misdemeanor.
Section 28.03(f) of the Texas Penal Code, Criminal Mischief, provides that an offense involving damage or destruction inflicted on a human burial site is a state jail felony.
Section 42.08 of the Penal Code, Abuse of Corpse, allows that a person commits an offense if they knowingly vandalize or damage the space of the interred. This is a Class A misdemeanor, punishable by fine and jail confinement.
Section 28.03 (a)(3) and (f) and Section 28.08 (a) and (d) of the Texas State Penal Code provide that an offense involving graffiti on a place of human burial is a state jail felony.
Section 31.03(e)(4)(b) of the Texas Penal Code provides that an offense under this section is a state jail felony if, regardless of value, the property is stolen from the person of another or from a human corpse or grave.
Chapter 712 of the Health and Safety Code governs the operation of perpetual care cemeteries, regulated by the Texas Department of Banking.
Municipal Cemeteries and County Resources
Sections 694.003 and 713.001 of the Health and Safety Code provide that Type A general law municipalities may regulate burial of the dead and may purchase, establish, and regulate a cemetery. Home rule cities also have this authority. The municipal government may enclose, regulate, and improve cemeteries belonging to the city.
Section 713.002 of the Health and Safety Code generally provides that any city or town that owns or has control of any cemetery has the power to maintain the cemetery.
Section 713.009 of the Health and Safety Code states that a city with a cemetery within its boundaries or jurisdiction may take possession and control of the cemetery on behalf of the public health, safety, comfort, and welfare. Perpetual care cemeteries and private family cemeteries are exempt from this section.
Section 713.011 of the Health and Safety Code states that a municipality that operates or has jurisdiction over a public cemetery shall maintain the cemetery in a condition that does not endanger the public health, safety, comfort, or welfare.
Section 713.021 of the Health and Safety Code states that a (county) commissioners court by resolution may establish a perpetual trust fund to provide maintenance for a neglected or unkept public or private cemetery in the county. The commissioners court shall appoint the county judge as trustee for the fund.
Section 713.028 of the Health and Safety Code states that a commissioners court may use public funds, county employees, and county equipment for the maintenance of certain cemeteries for purposes of historic preservation (cemeteries with graves more than 50 years old) and protection of the public health, safety, and welfare.
Petition for Conservatorship
Chapter 715 of the Health and Safety Code states that a nonprofit corporation may be organized to restore, operate, and maintain a historic cemetery by following a procedure set forth in the chapter.
This chapter offers an excellent framework for citizens to restore a historic cemetery and gain legal responsibility to ensure its continued preservation. The procedure requires a court to approve the establishment of a conservatorship over the cemetery, so it may require the services of an attorney. The THC can assist in preparing for the procedure.
Cemetery Associations and Private Cemeteries
Section 711.031 of the Health and Safety Code states that cemetery organizations may adopt and enforce rules and that these rules must be made available for review.
Section 711.035(d) of the Health and Safety Code requires consent of a cemetery organization prior to public utilities or thoroughfare placement through a cemetery.
For General Provisions Relating to Cemeteries, please see our State Statutes and Rules section
- See more at: http://www.thc.state.tx.us/preserve/projects-and-programs/cemetery-preservation/cemetery-laws#sthash.3eGpeaGU.dpuf