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Archiver > TXGILLES > 2006-02 > 1139684544
From: "Sarah" <>
Subject: Texas Historical Commission - Texas Historic Cemetery Guidelines pages 1 thru 4
Date: Sat, 11 Feb 2006 13:02:24 -0600
This is available in pdf format on the internet, but I refer to it so often
I scanned it into Word to email pertinent sections to key people as we try
to save the oNBC. Though some of you might want a copy for your own
cemeteries at risk. If you find any typos please let me know.
Page 1
Unfortunately, historic cemeteries do not necessarily remain permanent
reminders of our heritage. They are subject to long-term deterioration from
natural forces such as weathering and uncontrolled vegetation. Neglect
accelerates and compounds the process. Development activities and
construction projects are also a threat to these precious resources.
Vandalism and theft continue to plague both rural and urban burying grounds
across the nation.
With this booklet, the Texas Historical Commission (THC) presents steps to
aid in the preservation of the state's historic cemeteries. None of these
steps, however, will be successful without the involvement of individuals
who have an interest in local culture and history and a commitment to saving
the physical remnants of Texas' heritage that are present in our
communities.
Page 2
CEMETERY LAWS
Neither the Texas Historical Commission (THC) nor any other state agency
enforces cemetery laws. This responsibility belongs to county and municipal
law enforcement officials. If a cemetery is being vandalized or destroyed,
contact your county sheriff or local police department. Enlist the support
of other individuals or groups, including the county commissioners court,
local media, county historical commission, local preservation societies or
family members of individuals interred in the cemetery.
Following are some of the state and local laws or court decisions regarding
cemeteries. They provide an overview of the legal steps that have been
successful in preserving some of the state's burial grounds. This
information does not take the place of legal counsel. Consult the county or
city attorney or other legal counsel for more information about laws related
to cemeteries in Texas. Most of the Texas laws regarding cemeteries are in
Chapters 694-715 of the Health and Safety Code.
Perpetual Care
Chapter 712 of the Health and Safety Code covers the operation of perpetual
care cemeteries, which the Banking Department of Texas regulates.
Ownership
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).
Dedication
Section 711.035(f) of the Health and Safety Code states that once 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.
Section 711.010( a)(b) amends Chapter 711 by stating 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.
Section 711.011 (a)(b) further amends Chapter 711 by stating 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.
Page 3
Texas courts have said 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).
Abandonment
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.
Petition for Guardianship of a Historic Cemetery
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 these laws.
Page 4
This chapter offers an excellent way for private citizens to restore a
historic cemetery and gain legal custody over it 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. If you need additional information about the procedure, the THC
can provide assistance.
Local Cemetery Laws
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. 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 713.021 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.
Access
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.
The validity of section 711.041 has been called into question. The owner of
a cemetery challenged the right of access under sec. 711.041 as a taking of
his property. In Meek v. Smith, 7 S. W. 3d 2CJ7 (Tex.Ct.App.-Beaumont 1999,
no pet.), the court held that Section 711.041 constitutes an
unconstitutional taking of property without just compensation as applied to
the owners of property near a cemetery. However, the general applicability
of this decision is in doubt. The court held the law unconstitutional only
as applied to the facts of this case. Further, the state was not a party to
the case, as it usually is when the constitutionality of a state law is
challenged. Other issues, such as a right of access through a prescriptive
easement or easement by adverse possession were not considered in the
appeal.
Criminal Mischief
Section 28.03(f) of the Texas Penal Code provides that an offense involving
damage or destruction inflicted on a human burial site is a state jail
felony.
Desecration
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.
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