Health and Safety Code
SUBTITLE C. CEMETERIES
CHAPTER 711. GENERAL PROVISIONS RELATING TO CEMETERIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 711.001. Definitions.
In this chapter:
(1) "Burial park" means a tract of land that is used or intended
to be used for interment in graves.
(2) "Cemetery" means a place that is used or intended to be used
for interment, and includes a graveyard, burial park, or
mausoleum.
(3) "Cemetery organization " means:
(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.
(4) "Cemetery purpose" means a purpose necessary or incidental to
establishing, maintaining, managing, operating, improving, or
conducting a cemetery, interring remains, or caring for,
preserving, and embellishing cemetery property.
(5) "Columbarium" means a durable, fireproof structure, or a room
or other space in a durable, fireproof structure, containing
niches and used or intended to be used to contain cremated
remains.
(6) "Cremated remains" means the bone fragments remaining after
the cremation process, which may include the residue of any
foreign materials that were cremated with the human remains.
(7) "Cremation" means the irreversible process of reducing human
remains to bone fragments through extreme heat and evaporation,
which may include the processing or the pulverization of bone
fragments.
(8) "Crematory" means a structure containing a furnace used or
intended to be used for the cremation of human remains.
(9) "Crematory and columbarium" means a durable, fireproof
structure containing both a crematory and columbarium.
(10) "Crypt" means a chamber in a mausoleum of sufficient size to
inter human remains.
(11) "Directors" means the governing body of a cemetery
organization.
(12) "Entombment" means interment in a crypt.
(13) "Funeral establishment" means a place of business used in
the care and preparation for interment or transportation of human
remains, or any place where one or more persons, either as sole
owner, in copartnership, or through corporate status, are engaged
or represent themselves to be engaged in the business of
embalming or funeral directing.
(14) "Grave" means a space of ground that is in a burial park and
that is used or intended to be used for interment in the ground.
(15) "Human remains" means the body of a decedent.
(16) "Interment" means the permanent disposition of remains by
entombment, burial, or placement in a niche.
(17) "Interment right" means the right to inter the remains of
one decedent in a plot.
(18) "Inurnment" means the placement of cremated remains in an
urn.
(19) "Lawn crypt" means a subsurface receptacle installed in
multiple units for ground burial of human remains.
(20) "Mausoleum" means a durable, fireproof structure used or
intended to be used for entombment.
(21) "Niche" means a space in a columbarium used or intended to
be used for the placement of cremated remains in an urn or other
container.
(22) "Nonperpetual care cemetery" means a cemetery that is not a
perpetual care cemetery.
(23) "Perpetual care" or "endowment care" means the maintenance,
repair, and care of all places in the cemetery.
(24) "Perpetual care cemetery" or "endowment care cemetery" means
a cemetery for the benefit of which a perpetual care trust fund
is established as provided by Chapter 712.
(25) "Plot" means space in a cemetery owned by an individual or
organization that is used or intended to be used for interment,
including a grave or adjoining graves, a crypt or adjoining
crypts, a lawn crypt or adjoining lawn crypts, or a niche or
adjoining niches.
(26) "Plot owner" means a person:
(A) in whose name a plot is listed in a cemetery organization's
office as the owner of the exclusive right of sepulture; or
(B) who holds, from a cemetery organization, a certificate of
ownership or other instrument of conveyance of the exclusive
right of sepulture in a particular plot in the organization's
cemetery.
(27) "Prepaid funeral contract" means a written contract
providing for prearranged or prepaid funeral services or funeral
merchandise.
(28) "Remains" means either human remains or cremated remains.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 212, eff. Sept. 1,
1991.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 1, eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 1389, Sec. 3, eff. Sept. 1, 1997.
Sec. 711.002. Disposition of Remains; Duty to Inter.
(a) Unless a decedent has left directions in writing for the
disposition of the decedent's remains as provided in Subsection
(g), the following persons, in the priority listed, have the
right to control the disposition, including cremation, of the
decedent's remains, shall inter the remains, and are liable for
the reasonable cost of interment:
(1) the person designated in a written instrument signed by
the decedent;
(2) the decedent's surviving spouse;
(3) any one of the decedent's surviving adult children;
(4) either one of the decedent's surviving parents;
(5) any one of the decedent's surviving adult siblings; or
(6) any adult person in the next degree of kinship in the
order named by law to inherit the estate of the decedent.
(b) The written instrument referred to in Subsection (a)(1)
shall be in substantially the following form:
APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
I,
,
(your name and address)??
being of sound mind, willfully and voluntarily make known my
desire that, upon my death,
the disposition of my remains shall be controlled by
(name of agent) ??
in accordance with Section 711.002 of the Health and Safety Code
and, with respect to that subject only, I hereby appoint such
person as my agent (attorney-in-fact).
All decisions made by my agent with respect to the disposition
of my remains, including cremation, shall be binding.
SPECIAL DIRECTIONS:
Set forth below are any special directions limiting the power
granted to my agent:
AGENT:
Name:
Address:
Telephone Number:
Acceptance of Appointment:
(signature of agent)
Date of Signature:
SUCCESSORS:
If my agent dies, becomes legally disabled, resigns, or refuses
to act, I hereby appoint the following persons (each to act alone
and successively, in the order named) to serve as my agent
(attorney-in-fact) to control the disposition of my remains as
authorized by this document:
1. First Successor
Name:
Address:
Telephone Number:
Acceptance of Appointment:
(signature of first successor)??
Date of Signature:
2. Second Successor
Name:
Address:
Telephone Number:
Acceptance of Appointment:
(signature of second successor) ??
Date of Signature:
DURATION:
This appointment becomes effective upon my death.
PRIOR APPOINTMENTS REVOKED:
I hereby revoke any prior appointment of any person to control
the disposition of my remains.
RELIANCE:
I hereby agree that any cemetery organization, business
operating a crematory or columbarium or both, funeral director or
embalmer, or funeral establishment who receives a copy of this
document may act under it. Any modification or revocation of
this document is not effective as to any such party until that
party receives actual notice of the modification or revocation.
No such party shall be liable because of reliance on a copy of
this document.
ASSUMPTION:
THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS
APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY
THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND SAFETY CODE.
Signed this _________________ day of
__________________________, 19___.??
_______________
_______________
____??
(your signature)??
State of ____________________
County of ___________________
This document was acknowledged before me on _________________
(date) by _____________________________ (name of principal).
_______________
_______________
___??
(signature of notarial officer)??
(Seal, if any, of notary)
_______________
_______________
___??
(printed name)??
My commission
expires:
_________
(c) A written instrument is legally sufficient under Subsection
(a)(1) if the wording of the instrument complies substantially
with Subsection (b), the instrument is properly completed, the
instrument is signed by the decedent, the agent, and each
successor agent, and the signature of the decedent is
acknowledged. Such written instrument may be modified or revoked
only by a subsequent written instrument that complies with this
subsection.
(d) A person listed in Subsection (a) has the right, duty, and
liability provided by that subsection only if there is no person
in a priority listed before the person.
(e) If there is no person with the duty to inter under
Subsection (a) and:
(1) an inquest is held, the person conducting the inquest
shall inter the remains; and
(2) an inquest is not held, the county in which the death
occurred shall inter the remains.
(f) A person who represents that the person knows the identity
of a decedent and, in order to procure the disposition, including
cremation, of the decedent's remains, signs an order or
statement, other than a death certificate, warrants the identity
of the decedent and is liable for all damages that result,
directly or indirectly, from that warrant.
(g) A person may provide written directions for the
disposition, including cremation, of the person's remains in a
will, a prepaid funeral contract, or a written instrument signed
and acknowledged by such person. The directions may be modified
or revoked only by a subsequent writing signed and acknowledged
by such person. The person otherwise entitled to control the
disposition of a decedent's remains under this section shall
faithfully carry out the directions of the decedent to the extent
that the decedent's estate or the person controlling the
disposition are financially able to do so.
(h) If the directions are in a will, they shall be carried out
immediately without the necessity of probate. If the will is not
probated or is declared invalid for testamentary purposes, the
directions are valid to the extent to which they have been acted
on in good faith.
(i) A cemetery organization, a business operating a crematory
or columbarium or both, a funeral director or an embalmer, or a
funeral establishment shall not be liable for carrying out the
written directions of a decedent or the directions of any person
who represents that the person is entitled to control the
disposition of the decedent's remains .
(j) Any dispute among any of the persons listed in Subsection
(a) concerning their right to control the disposition, including
cremation, of a decedent's remains shall be resolved by a court
of competent jurisdiction. A cemetery organization or funeral
establishment shall not be liable for refusing to accept the
decedent's remains, or to inter or otherwise dispose of the
decedent's remains, until it receives a court order or other
suitable confirmation that the dispute has been resolved or
settled.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 213, eff. Sept. 1,
1991.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 2, eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 967, Sec. 1, eff. Sept. 1, 1997.
Sec. 711.003. Records of Interment.
A record shall be kept of each interment in a cemetery. The
record must include:
(1) the date the remains are received;
(2) the date the remains are interred;
(3) the name and age of the person interred if those facts
can be conveniently obtained; and
(4) the identity of the plot in which the remains are
interred.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 3, eff. Sept. 1,
1993.
Sec. 711.004. Removal of Remains.
(a) Remains interred in a cemetery may be removed from the
cemetery with the written consent of the cemetery organization
operating the cemetery and the written consent of the current
plot owner or owners and the following persons, in the priority
listed:
(1) the decedent's surviving spouse;
(2) the decedent's surviving adult children;
(3) the decedent's surviving parents;
(4) the decedent's adult siblings; or
(5) the adult person in the next degree of kinship in the
order named by law to inherit the estate of the decedent.
(b) A person listed in Subsection (a) may consent to the
removal only if there is no person in a priority listed before
that person.
(c) If the consent required by Subsection (a) cannot be
obtained, the remains may be removed by permission of the county
court of the county in which the cemetery is located. Before the
date of application to the court for permission to remove remains
under this subsection, notice must be given to:
(1) the cemetery organization operating the cemetery in
which the remains are interred;
(2) each person whose consent is required for removal of the
remains under Subsection (a); and
(3) any other person that the court requires to be served.
(d) For the purposes of Subsection (c), personal notice must be
given not later than the 11th day before the date of application
to the court for permission to remove the remains, or notice by
certified or registered mail must be given not later than the
16th day before the date of application.
(e) Subsections (a)-(d) do not apply to the removal of remains:
(1) from one plot to another plot in the same cemetery;
(2) by the cemetery organization from a plot for which the
purchase price is past due and unpaid, to another suitable
place; or
(3) on the order of a court or person who conducts inquests.
(f) Except as is authorized for a justice of the peace acting
as coroner or medical examiner under Chapter 49, Code of Criminal
Procedure, remains may not be removed from a cemetery except on
the written order of the state registrar or the state registrar's
designee. The cemetery organization shall keep a duplicate copy
of the order as part of its records. The Texas Board of Health
may adopt rules to implement this subsection.
(g) A person who removes remains from a cemetery shall keep a
record of the removal that includes:
(1) the date the remains are removed;
(2) the name and age at death of the decedent if those facts
can be conveniently obtained;
(3) the place to which the remains are removed; and
(4) the cemetery and plot from which the remains are
removed.
(h) If the remains are not reinterred, the person who removes
the remains shall make and keep a record of the disposition of
the remains.
(i) A person who removes remains from a cemetery shall give the
cemetery organization operating the cemetery a copy of the record
made as required by Subsections (g) and (h).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 214, eff. Sept. 1,
1991; Acts 1991, 72nd Leg., ch. 488, Sec. 1, eff. Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 4, eff. Sept. 1,
1993.
Sec. 711.006. Limitations on Crematory Construction and Operation.
(a) A crematory may be constructed, established, or maintained
only in a burial park having a columbarium, plot, or mausoleum
equipped for the interment of cremated remains.
(b) The crematory may be in the same fireproof structure as the
columbarium, plot, or mausoleum, or in a separate fireproof
building in the same burial park as the columbarium, plot, or
mausoleum.
(c) A crematory that cremates a decedent's human remains shall
dispose of the cremated remains by:
(1) delivering the cremated remains to or as directed by the
funeral establishment that contracted to provide for the
cremation;
(2) delivering the cremated remains as directed by the
person who contracted for the cremation; or
(3) if not delivered as provided by Subdivision (1) or (2),
by permanent interment of the cremated remains in a plot.
(d) Not later than the 90th day after the cremation, the
crematory shall send a written notice by registered or certified
mail to the funeral establishment or person who contracted for
the cremation stating that the cremated remains will be interred
under Subsection (c)(3) unless the notified funeral establishment
or person, or other person authorized by the notified funeral
establishment or person, claims and removes the cremated remains
not later than the 60th day after the date of the notice.
(e) A crematory is not liable for any actions taken by the
crematory in accordance with Subsection (c) or (d).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 5, eff. Sept. 1,
1993.
Sec. 711.007. Nuisance; Abatement and Injunction.
(a) A court of the county in which a cemetery is located may,
by order, abate the cemetery as a nuisance and enjoin its
continuance if the cemetery is:
(1) maintained, located, or used in violation of this
chapter or Chapter 712; or
(2) neglected so that it is offensive to the inhabitants of
the surrounding section.
(b) The proceeding may be brought by:
(1) the attorney general;
(2) the Banking Commissioner of Texas;
(3) the governing body of a municipality with a population
of more than 25,000, if the cemetery is located in the
municipality or not farther than five miles from the
municipality;
(4) the district attorney of the county, if the cemetery is
located in an area of the county not described by Subdivision
(3);
(5) the owner of a residence:
(A) in or near the municipality in which the cemetery is
located; or
(B) in the area proscribed for the location of a
cemetery by Section 711.008; or
(6) the owner of a plot in the cemetery.
(c) The court shall grant a permanent injunction against each
person responsible for the nuisance if a cemetery nuisance exists
or is threatened.
(d) If a cemetery nuisance under Subsection (a)(2) is located
in a municipality, the governing body of the municipality may
authorize the removal of all bodies, monuments, tombs, or other
similar items from the cemetery to a perpetual care cemetery.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 6, eff. Sept. 1,
1993.
Sec. 711.008. Location of Cemetery.
(a) Except as provided by Subsections (b), (c), and (k), an
individual, corporation, partnership, firm, trust, or association
may not establish or operate a cemetery, or use any land for the
interment of remains, located:
(1) in or within one mile of the boundaries of a
municipality with a population of 5,000 to 25,000;
(2) in or within two miles of the boundaries of a
municipality with a population of 25,000 to 50,000;
(3) in or within three miles of the boundaries of a
municipality with a population of 50,000 to 100,000;
(4) in or within four miles of the boundaries of a
municipality with a population of 100,000 to 200,000; or
(5) in or within five miles of the boundaries of a
municipality with a population of at least 200,000.
(b) Subsection (a) does not apply to:
(1) a cemetery heretofore established and operating; or
(2) the establishment and use of a columbarium by an
organized religious society or sect as part of or attached to
the principal church building owned by the society or sect.
(c) A cemetery organization operating a cemetery that
heretofore was used and maintained inside the limits prescribed
by Subsection (a) may acquire land that is adjacent but not
necessarily contiguous to the cemetery for cemetery purposes if
additional land is required. That land may be used as an
addition to the cemetery.
(d) Subsection (a) does not apply to a cemetery established and
operating before September 1, 1995, in a county with a population
of more than 217,250 and less than 217,450 that borders the Gulf
of Mexico.
(e) For the purpose of determining where a cemetery may be
located under Subsection (a), the boundary of an area annexed by
a municipality is not considered to be a boundary of the
municipality if no more than 10 percent of the boundary of the
annexed area is composed of a part of the boundary of the
annexing municipality as it existed immediately before the
annexation.
(f) to (j) Deleted by Acts 1993, 73rd Leg., ch. 634, Sec. 7,
eff. Sept. 1, 1993.
(k) This subsection applies only to a municipality with a
population of 100,000 or more that is located in a county with a
population of less than 120,000. Not later than September 1,
1994, a person may file a written application with the governing
body of the municipality to establish or use a cemetery located
inside the boundaries of the municipality. The municipality by
ordinance shall prescribe the information to be included in the
application. The governing body by ordinance may authorize the
establishment or use of a cemetery located inside the boundaries
of the municipality if the municipality determines and states in
the ordinance that the establishment or use of the cemetery does
not adversely affect public health, safety, and welfare.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Secs. 215, 216, eff.
Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 597, Sec. 77, eff. Sept.
1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 7, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 736, Sec. 1, eff. Sept. 1, 1993.
Sec. 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.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 8, eff. Sept. 1,
1993.
SUBCHAPTER B. CEMETERY CORPORATIONS
Sec. 711.021. Formation of Corporation to Maintain and Operate Cemetery.
(a) An individual, corporation, partnership, firm, trust, or
association may not engage in a business for cemetery purposes in
this state unless the person is a corporation organized for those
purposes.
(b) A corporation conducting a business for cemetery purposes,
including the sale of plots, may be formed only as provided by
this section. The corporation must be either:
(1) a nonprofit corporation organized in accordance with Section
A or B, Article 3.01, Texas Non-Profit Corporation Act (Article
1396-3.01, Vernon's Texas Civil Statutes), or with Section
711.022; or
(2) a private corporation operated for profit.
(c) The charter of a cemetery corporation formed after May 15,
1947, but before September 1, 1993, must state whether the
corporation:
(1) is operated for profit or not for profit; and
(2) is operating a perpetual care cemetery or a nonperpetual care
cemetery.
(d) A corporation formed before September 3, 1945, under
statutory authority other than Section 5, Chapter 340, Acts of
the 49th Legislature, Regular Session, 1945 (Article 912a-5,
Vernon's Texas Civil Statutes), to maintain and operate a
cemetery is governed by this chapter only to the extent that this
chapter does not conflict with the charter or articles of
incorporation of the corporation.
(e) This section does not apply to a corporation chartered by the
state before September 3, 1945, that, under its charter, bylaws,
or dedication, created a perpetual care trust fund and maintains
that fund in accordance with the corporation's trust agreement,
Chapter 712, and this chapter. The corporation may operate a
perpetual care cemetery without amending the corporation's
charter as if it had been incorporated under this section.
(f) Any cemetery that begins its initial operations on or after
September 1, 1993, shall be operated as a perpetual care cemetery
in accordance with Chapter 712.
(g) This section does not apply to:
(1) a family, fraternal, or community cemetery that is not larger
than 10 acres;
(2) an unincorporated association of plot owners not operated for
profit;
(3) a church, a religious society or denomination, or an entity
solely administering the temporalities of a church or religious
society or denomination; or
(4) a public cemetery belonging to this state or a county or
municipality.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 9, eff. Sept. 1,
1993.
Sec. 711.022. Formation of Nonprofit Cemetery Corporation by Plot Owners.
(a) Plot owners may organize a nonprofit corporation to receive
title to land previously dedicated to cemetery purposes.
(b) The plot owners must:
(1) publish notice of the time and place of the
organizational meeting in a newspaper in the county, if there
is a newspaper, for 30 days before the date of the meeting; and
(2) post written notice at the cemetery of the time and
place of the meeting for 30 days before the date of the
meeting.
(c) A majority of the plot owners present and voting at the
meeting shall decide whether to incorporate and to convey the
land to the corporation.
(d) If the plot owners vote to incorporate, at the same meeting
they shall select from the plot owners a board of directors to be
named in the charter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 711.023. Rights of Plot Owners in Cemetery Operated by Nonprofit
Cemetery Corporation.
(a) A person who purchases a plot from a nonprofit cemetery
corporation is a shareholder of the corporation. The person may
vote in the election of corporate officers and on other matters
to the same extent as a stockholder in another corporation.
(b) An owner of a plot in a cemetery operated by a nonprofit
corporation is a shareholder in any corporation that owns the
cemetery. The plot owner may exercise the rights and privileges
of a shareholder, whether the owner acquired title to the plot
from the corporation or before the corporation was organized.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 711.024. Authority of Nonprofit Cemetery Corporation.
A nonprofit cemetery corporation organized by plot owners may
divide cemetery property into lots and subdivisions for cemetery
purposes and charge assessments on the property for the purposes
of general improvement and maintenance.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER C. CEMETERY ORGANIZATIONS
Sec. 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.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 11, eff. Sept. 1,
1993.
Sec. 711.0311. Desecration of Cemetery.
(a) A person commits an offense if the person acts without
proper legal authority and knowingly:
(1) destroys or damages the remains of a decedent;
(2) removes any portion of the remains of a decedent from a
plot or other repository of remains;
(3) desecrates remains; or
(4) obliterates, vandalizes, or desecrates a plot or other
repository of remains.
(b) An offense under Subsection (a) is a felony of the third
degree. The person found guilty of committing the offense shall
provide restitution to the cemetery organization for any damage
caused by the person.
(c) A person commits an offense if the person acts without
proper legal authority and knowingly:
(1) defaces, vandalizes, injures, or removes a gravestone,
monument, or other structure commemorating a deceased person or
group of persons, whether located within or outside of a
cemetery;
(2) obliterates, vandalizes, or desecrates a park or other
area clearly designated to preserve and perpetuate the memory
of a deceased person or group of persons;
(3) obliterates, vandalizes, or desecrates plants, trees,
shrubs, or flowers located on or around a cemetery; or
(4) obliterates, vandalizes, or desecrates a fence, rail,
curb, or other structure of a similar nature intended for the
protection or for the ornamentation of any plot, gravestone,
monument, or other structure of similar character.
(d) An offense under Subsection (c) is a Class C misdemeanor.
The person found guilty of committing the offense shall provide
restitution to the cemetery organization for the amount of any
damage caused by the person.
(e) Subsections (a)-(d) do not apply to the removal or
unavoidable breakage or injury by a cemetery organization of
anything placed in or on any portion of its cemetery in violation
of any of the rules of the cemetery organization, to the removal
of anything placed in the cemetery in violation of any of the
rules of the cemetery organization, or to the removal of anything
placed in the cemetery by or with the consent of the cemetery
organization that in its judgment has become wrecked, unsightly,
or dilapidated.
(f) If an unemancipated minor is found guilty of violating
Subsection (a) or (c) and is unable to provide restitution to the
cemetery organization, the minor may be required to spend that
amount of time in service to the community as is determined by
the court or the parents or legal guardians of the minor may be
required to provide restitution to the cemetery organization for
the amount of any damage caused by the offense, up to the total
amount allowed under law.
(g) A person commits an offense if the person knowingly enters
or knowingly remains on the premises of a cemetery without
authorization during hours that the cemetery is posted as closed
to the public. An offense under this subsection is a Class C
misdemeanor.
(h) This section does not prevent a cemetery organization or
the owner of a plot, gravestone, monument, or other structure of
similar character from maintaining a civil action for the
recovery of damages caused by any injury resulting from a
violation of this section.
Added by Acts 1993, 73rd Leg., ch. 634, Sec. 12, eff. Sept. 1,
1993.
Sec. 711.032. Discrimination by Race, Color, or National Origin
Prohibited.
(a) A cemetery organization may not adopt or enforce a rule
that prohibits interment because of the race, color, or national
origin of a decedent.
(b) A provision of a contract entered into by a cemetery
organization or of a certificate of ownership or other instrument
of conveyance issued by a cemetery organization that prohibits
interment in a cemetery because of the race, color, or national
origin of a decedent is void.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 13, eff. Sept. 1,
1993.
Sec. 711.033. Property Acquisition by Cemetery Organization; Recording
Title.
(a) A cemetery organization may acquire by purchase, donation,
or devise property consisting of land, a mausoleum, a crematory
and columbarium, or other property in which remains may be
interred under law.
(b) A cemetery organization that acquires property may record
title to its property with the county clerk of the county in
which the property is located if its president and secretary or
other authorized officer acknowledge a declaration executed by
the cemetery organization that describes the property and
declares the cemetery organization's intention to use the
property or a part of the property for interment purposes.
(c) Filing under Subsection (b) is constructive notice as of
the date of the filing of the use of the property for interment.
(d) A cemetery organization may by condemnation acquire
property in which remains may be interred, and the acquisition of
that property is for a public purpose.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 14, eff. Sept. 1,
1993.
Sec. 711.034. Dedication.
(a) A cemetery organization that acquires property for
interment purposes shall:
(1) in the case of land, survey and subdivide the property
into gardens or sections, with descriptive names or numbers,
and make a map or plat of the property showing the plots
contained within the perimeter boundary and showing a specific
unique number for each plot; or
(2) in the case of a mausoleum or a crematory and
columbarium, make a map or plat of the property delineating
sections or other divisions with descriptive names and numbers
and showing a specific unique number for each crypt, lawn
crypt, or niche.
(b) The cemetery organization shall file the map or plat with
the county clerk of each county in which the property or any part
of the property is located.
(c) The cemetery organization shall file with the map or plat a
written certificate or declaration of dedication of the property
delineated by the map or plat, dedicating the property
exclusively to cemetery purposes. The certificate or declaration
must be:
(1) in a form prescribed by the directors or officers of the
cemetery organization;
(2) signed by the president or vice-president and the
secretary of the cemetery organization, or by another person
authorized by the directors; and
(3) acknowledged.
(d) Filing a map or plat and a certificate or declaration under
this section dedicates the property for cemetery purposes and is
constructive notice of that dedication.
(e) The certificate or declaration may contain a provision
permitting the directors by order to resurvey and change the
shape and size of the property for which the associated map or
plat is filed if that change does not disturb any interred
remains. If a change is made, the cemetery organization shall
file an amended map or plat and shall indicate any change in a
specific unique number assigned to a plot, crypt, lawn crypt, or
niche.
(f) The county clerk shall number and file the map or plat and
record the certificate or declaration in the county deed records.
(g) A cemetery association is civilly liable to the state in an
amount not to exceed $1,000 for each map or plat that fails to
comply with Subsection (a), (b), (c), or (e).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 15, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 502, Sec. 1, eff. Oct. 1, 1995.
Sec. 711.035. Effect of Dedication.
(a) Property may be dedicated for cemetery purposes, and the
dedication is permitted in respect for the dead, for the
disposition of remains, and in fulfillment of a duty to and for
the benefit of the public.
(b) Dedication of cemetery property and title to the exclusive
right of sepulture of a plot owner are not affected by the
dissolution of the cemetery organization, nonuse by the cemetery
organization, alienation, encumbrance, or forced sale of the
property.
(c) Dedication of cemetery property may not be invalidated
because of a violation of the law against perpetuities or the law
against the suspension of the power of alienation of title to or
use of property.
(d) A railroad, street, road, alley, pipeline, telephone,
telegraph, electric line, or other public utility or thoroughfare
may not be placed through, over, or across a part of a dedicated
cemetery without the consent of:
(1) the directors of the cemetery organization that owns or
operates the cemetery; or
(2) at least two-thirds of the owners of plots in the
cemetery.
(e) All property of a dedicated cemetery, including a road,
alley, or walk in the cemetery:
(1) is exempt from public improvements assessments, fees,
and public taxation; and
(2) may not be sold on execution or applied in payment of
debts due from individual owners and plots.
(f) Dedicated cemetery property shall be used exclusively for
cemetery purposes until the dedication is removed by court order
or until the maintenance of the cemetery is enjoined or abated as
a nuisance under Section 711.007.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 16, eff. Sept. 1,
1993.
Sec. 711.036. Removal of Dedication.
(a) A cemetery organization may petition a district court of
the county in which its dedicated cemetery is located to remove
the dedication with respect to all or any portion of the cemetery
if:
(1) all the remains have been removed from that portion of
the cemetery where the dedication is to be removed; or
(2) no interments were made in that portion of the cemetery
where the dedication is to be removed and that portion of the
cemetery is not used or necessary for interment purposes.
(b) The court shall order the removal of the dedication on
notice and proof satisfactory to the court.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 17, eff. Sept. 1,
1993.
Sec. 711.037. Lien Against Cemetery Property.
(a) A cemetery organization by contract may incur indebtedness
as required to conduct its business and may secure the
indebtedness by mortgage, deed of trust, or other lien against
its property.
(b) A mortgage, deed of trust, or other lien placed on
dedicated cemetery property, or on cemetery property that is
later dedicated with the consent of the holder of the lien, does
not affect the dedication and is subject to the dedication. A
sale on foreclosure of the lien is subject to the dedication of
the property for cemetery purposes.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 18, eff. Sept. 1,
1993.
Sec. 711.038. Sale of Plots.
(a) A cemetery organization may sell and convey the exclusive
right of sepulture in a plot:
(1) after a map or plat and a certificate or declaration of
dedication are filed as provided by Section 711.034;
(2) subject to the rules of the cemetery organization and
the restrictions in the certificate of ownership or other
instrument of conveyance; and
(3) after payment in full of the purchase price of the plot.
(b) A certificate of ownership or other instrument evidencing
the conveyance of the exclusive right of sepulture by a cemetery
organization must be signed by the president or vice-president
and the secretary or other officers authorized by the cemetery
organization.
(c) A conveyance of the exclusive right of sepulture must be
filed and recorded in the cemetery organization's office.
(d) A plot or a part of a plot that is conveyed as a separate
plot by a certificate of ownership or other instrument may not be
divided without the consent of the cemetery organization.
(e) A person is not required to be licensed to sell a plot in a
dedicated cemetery.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 19, eff. Sept. 1,
1993.
Sec. 711.039. Rights of Interment in Plot.
(a) A plot in which the exclusive right of sepulture is
conveyed is presumed to be the separate property of the person
named as grantee in the certificate of ownership or other
instrument of conveyance.
(b) The spouse of a person to whom the exclusive right of
sepulture in a plot is conveyed has a vested right of interment
of the spouse's remains in the plot while the spouse is married
to the plot owner or if the spouse is married to the plot owner
at the time of the owner's death.
(c) An attempted conveyance or other action without the joinder
or written, attached consent of the spouse of the plot owner does
not divest the spouse of the vested right of interment.
(d) The vested right of interment is terminated:
(1) on the final decree of divorce between the plot owner
and the owner's former spouse unless the decree provides
otherwise; or
(2) when the remains of the person having the vested right
are interred elsewhere.
(e) Unless a plot owner who has the exclusive right of
sepulture in a plot and who is interred in that plot has made a
specific disposition of the plot by express reference to the plot
in the owner's will or by written declaration filed and recorded
in the office of the cemetery organization:
(1) a grave, niche, or crypt in the plot shall be reserved
for the surviving spouse of the plot owner; and
(2) the owner's children, in order of need, may be interred
in any remaining graves, niches, or crypts of the plot without
the consent of a person claiming an interest in the plot.
(f) The surviving spouse or a child of an interred plot owner
may each waive his right of interment in the plot in favor of a
relative of the owner or relative of the owner's spouse. The
person in whose favor the waiver is made may be interred in the
plot.
(g) The exclusive right of sepulture in an unused grave, niche,
or crypt of a plot in which the plot owner has been interred may
be conveyed only by:
(1) specific disposition of the unused grave, niche, or
crypt by express reference to it in a will or by written
declaration of the plot owner filed and recorded in the office
of the cemetery organization;
(2) the surviving spouse, if any, and children of the owner;
or
(3) the surviving spouse, if any, and the heirs-at-law of
the owner, if there is no surviving child of the owner.
(h) Unless a deceased plot owner who has the exclusive right of
sepulture in a plot and who is not interred in the plot has
otherwise made specific disposition of the plot, the exclusive
right of sepulture in the plot, except the one grave, niche, or
crypt reserved for the surviving spouse, if any, vests on the
death of the owner in the owner's heirs-at-law and may be
conveyed by them.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 20, eff. Sept. 1,
1993.
Sec. 711.040. Multiple Owners of Plot.
Two or more owners of a plot may designate a person to
represent the plot and file with the cemetery organization
written notice of the designation. If notice is not filed, the
cemetery organization may inter or permit an interment in the
plot at the request or direction of a registered co-owner of the
plot.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 21, eff. Sept. 1,
1993.
Sec. 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.
Added by Acts 1993, 73rd Leg., ch. 634, Sec. 22, eff. Sept. 1,
1993.
SUBCHAPTER D. ENFORCEMENT
Sec. 711.051. Enforcement by Attorney General; Proceedings to Forfeit
Charter for Noncompliance.
(a) A cemetery corporation that violates this chapter or Chapter
712 forfeits the corporation's charter and right to do business
in this state unless the corporation corrects the violation
before the 91st day after the date of receiving notice of the
violation from the attorney general.
(b) When the attorney general learns that a cemetery corporation
has violated this chapter or Chapter 712, the attorney general
shall serve notice of the violation on the corporation.
(c) If the violation is not corrected before the 91st day after
the date of the notice, the attorney general shall bring suit or
quo warranto proceedings for the forfeiture of the corporation's
charter and dissolution of the corporation in the district court
of any county in which the violation occurred.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 711.052. Criminal Penalties.
(a) A person who is an individual, firm, association,
corporation, or municipality, or an officer, agent, or employee
of an individual, firm, association, corporation, or
municipality, commits an offense if the person:
(1) engages in a business for cemetery purposes in this
state other than through a corporation organized for that
purpose, if a corporation is required by law;
(2) fails or refuses to keep records of interment as
required by Sections 711.003 and 711.004;
(3) sells, offers to sell, or advertises for sale a plot or
the exclusive right of sepulture in a plot for purposes of
speculation or investment; or
(4) represents through advertising or printed material that
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