Texas Cemetery Law

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cedric:
I notice that there are quite a few people from Texas here. I also notice that the mainstay of most budding paranormal researchers is to go check out their local graveyards.

No doubt you've been told that "this is illegal and that's illegal" and so on, but second-hand information is a good way to get yourself in a lot of trouble.

So, it's my responsibility both as a paranormal researcher and a good Texan to keep as many of you guys out of the pokey as I can, and also to arm you against whatever back-woods know-it-alls happen to start spouting pop-lawyerisms at you.

(BTW, I have this all saved in a Word file, so if anyone wants it, just shoot me an e-mail and I'll send it as an attachment.)

And so it begins.

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The following sections are those laws that directly relate to the paranormal investigator operating in a cemetery or similar location. It is highly advised that an investigator do further research at the federal, state, county, and municipal level, since the relevant laws are spread throughout the legal codes. In all cases, your actions and knowledge of the law are your own responsibility.

Anyone who is attempting to do paranormal research in a Texas cemetery is highly advised to print out these statutes, make your team familiar with them, and carry them whenever you are operating in or near a cemetery.

cedric:
Texas Health and Safety Code, Subtitle C, Chapter 711
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.008.00.000711.00.htm

711.009. AUTHORITY OF CEMETERY KEEPER.
   (a) The superintendent, sexton, or other person in charge of a cemetery has the same powers, duties, and immunities granted by law to:
      (1)  a police officer in the municipality in which the cemetery is located;  or
      (2)  a constable or sheriff of the county in which the cemetery is located if the cemetery is outside a municipality.
   (b) A person who is granted authority under Subsection (a) shall maintain order and enforce the cemetery organization's rules, state law, and municipal ordinances in the cemetery over which that person has charge and as near the cemetery as necessary to protect cemetery property.
   (c) This section applies only to a cemetery located in a municipality with a population of 40,000 or more or in a county with a population of 290,000 or more.


711.010. UNKNOWN OR ABANDONED CEMETERY.
   (a) The owner of property on which an unknown cemetery is discovered or on which an abandoned cemetery is located may not construct improvements on the property in a manner that would further disturb the cemetery until the human remains interred in the cemetery are removed under a written order issued by the state registrar or the state registrar's designee under Section 711.004(f).
   (b) On petition of the owner of the property, a district court of the county in which an unknown cemetery is discovered or an abandoned cemetery is located may order the removal of any dedication for cemetery purposes that affects the property.  If a court orders the removal of a dedication of a cemetery and all human remains on the property have not previously been removed, the court shall order the removal of the human remains from the cemetery to a perpetual care cemetery.
   (c) In addition to any notice required by Section 711.004, notice of a petition filed under Subsection (b) must be given to the Texas Historical Commission and to the county historical commission of the county in which the cemetery is located.  The Texas Historical Commission and the county historical commission may intervene and become parties to the suit.

(NOTE = Section 711.004 relates to the legal methods for removal of remains).

(ALSO NOTE = Texas has established an Adopt-A-Cemetery program to help preserve lost or abandoned cemeteries through non-government volunteers. Details can be found at http://www.historictexas.net/cemeteries/1a/adopt.htm.)


711.011. FILING RECORD OF UNKNOWN CEMETERY.
   (a) A person who discovers an unknown or abandoned cemetery shall file notice of the cemetery with the county clerk of the county in which the cemetery is located.  The notice must contain a legal description of the land on which the unknown or abandoned cemetery was found and describe the approximate location of the cemetery and the evidence of the cemetery that was discovered.
   (b) A county clerk may not charge a fee for filing notice under this section.


711.031. RULES;  CIVIL PENALTY.
    (a) A cemetery organization may adopt and enforce rules:
      (1) concerning the use, care, control, management, restriction, and protection of the cemetery operated by the cemetery organization;
      (2) to restrict the use of cemetery property;
      (3) to regulate the placement, uniformity, class, and kind of markers, monuments, effigies, and other structures in any part of the cemetery;
      (4) to regulate the planting and care of plants in the cemetery;           
      (5) to prevent the interment of remains not entitled to be interred in the cemetery;
      (6) to prevent the use of a plot for a purpose that violates the cemetery organization's restrictions;
      (7) to regulate the conduct of persons on cemetery property and to prevent improper meetings at the cemetery;  and
      (8 ) for other purposes the directors consider necessary for the proper conduct of the cemetery organization's business, and for the protection of the premises and the principles, plans, and ideals on which the cemetery was organized.
   (b) Rules adopted under this section must be plainly printed or typed and maintained for inspection in the cemetery organization's office or another place in the cemetery prescribed by the directors.
   (c) The directors may prescribe a penalty for the violation of a rule adopted under this section.  The cemetery organization may recover the amount of the penalty in a civil action.

   (NOTE = Under 711.011 (Definitions), a Cemetery Organization is defined 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.)


711.041. ACCESS TO CEMETERY.
    (a) 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.
   (b)  The owner or owners of the lands surrounding the cemetery or private burial grounds may designate the routes of reasonable ingress and egress.

cedric:
Texas Health and Safety Code, Subtitle C, Chapter 713
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.008.00.000713.00.htm


713.001. MUNICIPAL CEMETERY AUTHORIZED.
The governing body of a municipality may:
      (1)  purchase, establish, and regulate a cemetery;  and                       
      (2)  enclose and improve a cemetery owned by the municipality.   


713.009. LOCAL POSSESSION AND CONTROL OF UNKEPT OR ABANDONED CEMETERY.
   (g)  A cemetery in the possession and control of a municipality or corporation under this section must remain open to the public.
   (i)  This section (referring to section 713.009) does not apply to:                                           
      (1)  a perpetual care cemetery incorporated under the laws of this state;  or
      (2)  a private family cemetery. 

(NOTE = perpetual care cemeteries and private cemeteries operate under state law, not municipal, which is why Section 9 does not apply.)

713.010. PRIVATE CARE OF GRAVES. (refers to municipal regulations)
This subchapter does not affect the right of a person who has an interest in a grave or burial lot, or who is related within the third degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a decedent interred in the cemetery, to beautify or maintain a grave or burial lot individually or at the person's own expense in accordance with reasonable municipal rules.


713.025. PRIVATE CARE OF GRAVES. (refers to county regulations)
This subchapter does not affect the right of a person to maintain a grave or burial lot in a cemetery if the person:
   (1)  has an interest in the grave or burial lot;  or
   (2)  is related within the third degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to
a decedent interred in a cemetery maintained by a trustee under this subchapter.

(NOTE = Beware! This chapter does not explicitly state what is meant by "an interest.")

cedric:
Texas Health and Safety Code, Subtitle C, Chapter 715
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.008.00.000715.00.htm


715.014. CEMETERY OPEN TO PUBLIC.
   A historic cemetery restored, operated, and maintained by a nonprofit corporation under this chapter must remain open to the public.


715.015. EXEMPTION.
This chapter does not apply to:
   (1)  a perpetual care cemetery;  or
   (2)  a family cemetery.

(NOTE = perpetual care cemeteries and private cemeteries are not operated under the auspices of the Texas Historical Commission. If such a cemetery does operate under the THC's auspices, it no longer qualifies as a perpetual care cemetery or private cemetery. This is why Chapter 715 does not apply.)

cedric:
Excerpts from a Judicial Opinion regarding application of Chapter 711 of the Health and Safety Code specifically to cemeteries established in the nineteenth century, issued by John Cornyn, State Attorney General, on March 14,2001
https://www.oag.state.tx.us/opinions/JC/JC0355.pdf.

Judge Cornyn concluded that...

* All provisions of Chapter 711 also apply to cemeteries established in the nineteenth century.

* Although small cemeteries that were "once devoted to burials and evidence of burials exists on the site" were not specifically addressed in chapter 711, the statements in that chapter broadly refer to all cemeteries as a general matter.

* “under the common law, the conveyance of land dedicated as a cemetery did not affect its use,” This specifically refers to Texas Common Law, rather than chapter 711.

* The owner or purchaser of land on which a cemetery exists "takes the property subject to this trust," and is thus considered the legal trustee of the cemetery.

* Landowners of cemeteries or private burial grounds are required to provide reasonable public access for visiting purposes.

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