Cemeteries, An Eternal Resting Place

Rock Island Cemetery, Washington, Tx

If you deal with land sales of any kind, eventually, you'll have to deal with a cemetery. When this happens, it will be helpful if you're aware of several points and laws dealing with them in the State of Texas.

1) Can a Cemetery be Moved? 

Technically, yes.  In certain circumstances, the owner of a property on which there is an abandoned cemetery or which is adjacent to an abandoned cemetery on unclaimed land may petition the Texas Historical Commission to have the remains removed.  For such a petition to be granted, the cemetery must be more than 50 years old with no, more recent burials, and the individual or entity who gets approval from the State of Texas must bear the cost of the relocation from start to finish, including any permits. That expense alone is almost 100% prohibitive.  

Once granted the bodies must be disinterred under the supervision of "a professional archeologist, and, when appropriate, with the assistance of a physical anthropologist, who is capable of gathering basic demographic data from the human remains being exhumed. Additionally, casket morphology, casket hardware, and any funerary objects must be examined and identified in a report. This policy applies to both marked and unmarked graves unless otherwise specified by the Commission."  Health and Safety Code, Section 711.010 (a) - (b)

2) Can Development Take Place Over the Cemetery? 

In Texas, the answer is a resounding,"NO!".  Any disturbance of a grave, cemetery, burial monument, headstone, etc. is considered an act of desecration and is prohibited by law.  

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.

If land is purchased with an abandoned cemetery on it, the best option is to fence it off concurrent with notifying local county and state historical commissions.  The specific protocol once an abandoned cemetery is discovered can be found here: CaseText - 13 Tex. Admin. Code § 22.4

3) Must a Seller Disclose There is a Cemetery on Their Land?

If the seller is aware of a cemetery, the answer is, "ABSOLUTELY!".  If no disclosure is made, the seller could face legal action from the buyer if and when the discovery is made.  In truth, if at some future point the buyer discovers a cemetery on the property, even if the seller didn't know about it, there may be an attempt at litigation.  This is another reason to have a full ALTA survey performed either prior to listing or as part of the feasibility period when listing or purchasing land.  An ALTA survey is a detailed land parcel map, showing all existing improvements of the property, utilities, "and significant observations within the insured estate". 

4) Pubic Access Across Private Land

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.

Private Family Cemetery on Land No Longer Owned by the Family.

The court decision in the case of Davis v. May, 135 S.W.3d 747 (Tex.App.–San Antonio 2003, pet. denied), confirmed the trial court’s judgment granting descendants the right of ingress and egress to a private family cemetery surrounded by a single landowner.

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In short, once a cemetery, always a cemetery.  Make sure your clients show them the respect they deserve and understand their responsibilities of good stewardship.  For additional information on cemeteries in Texas I recommend accessing the information available at the Texas Historical Commission and touching base with the local County Historical Commission for the county where the land in question is located.  That last link will prompt you to download an Excel file containing the names and contact information for the Chairs of all 219 counties in Texas.