Neither the Texas Historical Commission (THC), or any other state agency
enforces the cemetery. This responsibility lies with county and municipal
enforcement law. If the cemetery being vandalized or destroyed, contact
your county sheriff or local police department. Enlist the support of
other individuals or groups, including the court of county commissioners,
the local media, the historic county commission, local societies for the
preservation or relatives of people buried in the cemetery.Here are some
of the state and local laws or court decisions relating to cemeteries.
They provide an overview of the legal steps that have been successful
in preserving some of the cemeteries in the state. This information does
not take the place of an attorney. Check with the county attorney or city
or legal advice for more information about laws related to cemeteries
in Texas. Most Texas law on cemeteries are in Chapters 694-715 of the
Health and Safety.Chapter 712 of the Code perpetual care of Health and
covers the operation of cemeteries continuing care, the Texas Department
of Banking regulates.711,021 Property Section of the Health and Safety
Code allows nonprofit corporations to establish, manage, maintain, improve
or operate a private cemetery. Property for purposes of the cemetery and
used as a burial site can not be sold in such a way as to interfere with
its use as a cemetery. V State Forest. Lawn Association of lot owners.,
254 SW2d 87 (Texas 1953). However, this property can be transferred domain,
provided that is still used as a cemetery and the licensee continues to
maintain the cemetery for public benefit. Barker v. Hazel-Fain Oil Co.,
219 S.W. 874 (Texas Civ App - .. Fort Worth 1920, ref'd written).
A person living who has relatives buried in a cemetery not, by that fact,
owners of the land or parcels on which they are buried. That person may,
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
Association, 250 SW2d 600 (Tex Civ App - .. Dallas 1952, no writing) ..Dedication
section 711035 (f) Health and Safety Code that property once devoted to
the use of the cemetery, can not be used for any other purpose unless
the dedication is removed by a district court or the cemetery is ordered
or abated as a nuisance.Section 711010 (a) (b) amends section 711 to say
that improvements to the property that alters an unknown or abandoned
cemetery can not be done until the debris is removed by a written order
issued by the Secretary of State the person designated under section 711
004 (f). The owner may petition the district court in an unknown or abandoned
cemetery is located to remove the dedication for cemetery purposes and
the court shall order the removal of human remains from the cemetery to
a cemetery in permanent care.Section 711011 (a) (b) amends section 711
further state that a person who discovers an unknown or abandoned cemetery
shall provide notice of the cemetery with the county clerk where is the
documentation of the land on was found as a description and an approximate
location of the cemetery and the evidence that the cemetery was discovered.
There are no costs associated with this presentationTexas courts have
said there is no special ceremony or registration is necessary to dedicate
a cemetery, current use as a cemetery is enough dedication. Damon against
the state, 52 S.W.2d 368 (Tex. 1932). Enclosure of land for use as a cemetery
and evidence of burial are some of the criteria for commitment. Smallwood
v. Defense Oil Co., 89 SW2d 1086 (Texas Civ App - .. Texarkana 1935, written
dism'd).
Vandalism appears to be growing in cemeteries throughout the state. The
three people who vandalized the cemetery Hays County were arrested and
prosecuted. All individuals were charged? And received judicial punishment.
The tombstones were restored, but some of them suffered permanent damage.Abandonment
The fact that the remains of those buried in a cemetery have not been
eliminated and that the stones mark the burial sites is sufficient to
show that the cemetery has been abandoned. Michels v. Crouch, 122 SW2d
211 (Tex Civ App - .. Eastland 1938, no writing). In the cemetery of Salem
v Markgraf. Association, 540 S.W2d 524 (Tex Civ App - .. San Antonio 1976,
no writing)., The court decided that the land outside the cemetery fence
was not abandoned due to several graves were still evident.Petition for
Guardianship of a historic cemetery chapter 715 of the Health and Safety
that a nonprofit corporation may be organized to restore, manage and maintain
a historic cemetery, following a procedure established by law. This chapter
provides an excellent way for private citizens to restore a historic cemetery
and obtain legal custody of him to ensure their continued preservation.
The procedure requires a court to approve the establishment of a guardianship
over the cemetery, so it may require the services of an attorney. For
additional information about the procedure, the THC can assist.Local laws
of Sections 694,003 and 713,001 Cemetery of the Health and Safety Code
provides that municipalities Type Ageneral law may regulate the burial
of the dead and the purchase may, establish and regulate a cemetery. The
municipal government may include, regulate and improve the city-owned
cemeteries.Section 713002 of the Health and Safety generally provides
that any city or town that owns or has control of any cemetery has the
power to maintain the cemetery.
Section 713009 of the Health and Safety that a city with a cemetery within
its boundaries or jurisdiction may take possession and control of the
cemetery, on behalf of public health, safety, comfort and welfare. Perpetual
care cemeteries and private cemeteries of the family are exempt from this
section.Section 713021 of the Health and Safety for a court (county) commissioners
by resolution may establish a trust fund to provide perpetual maintenance
of a cemetery abandoned or unkept public or private in the county. Commissioners
Court County Judge appointed as trustee of the funds.Section 713028 of
the Health and Safety that a commissioners court may use public funds,
county employees and county equipment to maintain the cemeteries certain
historic preservation purposes (cemeteries with graves of more than 50
years of age) and the protection of public health, safety and welfare.Criminal
conduct Section 28.03 (f) provides that PenalCode theTexas an offense
of damage or destruction inflicted on a human burial site is a state jail
felony.Desecration of Section 42.08 of the Texas Penal Code a person who
intentionally or knowingly, or disturbs the unearths a human corpse has
committed a Class A misdemeanor
Section 711.0311 of the Health and Safety that a person who destroys,
damages or removes the remains of a deceased or destroys, vandalizes,
or desecrates a plot or deposit of the remains has committed a third degree
felony. It further provides that a person who commits any of the following
acts committed a Class C misdemeanor: defaces, vandalizes, injures or
removes a tombstone, monument or other structure to commemorate a deceased
person or group of persons, whether inside or outside a cemetery, destroys,
vandalizes, or desecrates a park or other area clearly designated to preserve
and perpetuate the memory of a deceased person or group of persons cleared,
vandalizes, or desecrates plants, trees, shrubs or flowers located in
or around a cemetery, destroys, vandalizes, or desecrates a fence, rail,
curb, or any other structure of the same nature for the protection or
decoration of any plot, headstone, monument or other structure of similar
character. The person convicted of committing a crime will be released
to the organization of the cemetery by the amount of damage? By the person. |