SUBTITLE C. CEMETERIES

CHAPTER 711. GENERAL PROVISIONS RELATING TO CEMETERIES

SUBCHAPTER A. GENERAL PROVISIONS

§ 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, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 212, eff. Sept. 1, 1991.

Amended by Acts 1993, 73rd Leg., ch. 634, § 1, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1389, § 3, eff. Sept. 1, 1997.

§ 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

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:

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:

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___.

This document was acknowledged before me on _____________(date) by _____________________________________(name of principal)

________________________(signature of notarial officer)

(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 govern the inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and in which plot the decedent is subsequently interred. 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) In the absence of evidence of a contrary intent, it is presumed that a married woman directs that her name, as it appears on the grave marker for the plot in which she is interred, include the same last name she used at the time of her death.

(k) 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, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 213, eff. Sept. 1, 1991.

Amended by Acts 1993, 73rd Leg., ch. 634, § 2, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 967, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1385, § 1, eff. Aug. 30, 1999.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 3, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 214, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 488, § 1, eff. Sept. 1, 1991.

Amended by Acts 1993, 73rd Leg., ch. 634, § 4, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 5, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 6, eff. Sept. 1, 1993.

§ 711.008. Location of Cemetery

(a) Except as provided by Subsections (b), (c), (f), 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) Repealed by Acts 2001, 77th Leg., ch. 200, § 1.

(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 250,000 and less than 251,000 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) This subsection applies only to a municipality with a population of at least 60,000 that is located in a county with a population of no more than 155,000. Not later than December 1, 2001, a charitable nonprofit corporation may file a written application with the governing body of a 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.

(g) to (j) Deleted by Acts 1993, 73rd Leg., ch. 634, § 7, eff. Sept. 1, 1993.

(k) This subsection applies only to a municipality with a population of 110,000 or more that is located in a county with a population of less than 127,000. 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, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, §§ 215, 216, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 597, § 77, eff. Sept. 1, 1991.

Amended by Acts 1993, 73rd Leg., ch. 634, § 7, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 736, § 1, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 200, § 1, eff. May 21, 2001; Acts 2001, 77th Leg., ch. 631, § 1, eff. June 13, 2001; Acts 2001, 77th Leg., ch. 669, § 39, eff. Sept. 1, 2001.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 8, eff. Sept. 1, 1993.

§ 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 shall order the removal of any dedication for cemetery purposes that affects the property. If 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. A petition under this subsection shall be made ex parte in the name of the owner of the property without naming any defendant or joinder of any other person.

Added by Acts 1999, 76th Leg., ch. 703, § 1, eff. June 18, 1999.

§ 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.

Added by Acts 1999, 76th Leg., ch. 703, § 1, eff. June 18, 1999.

SUBCHAPTER B. CEMETERY CORPORATIONS

§ 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.

(h) A cemetery corporation, including a corporation described by Subsection (d), that does not operate as a perpetual care cemetery in accordance with Chapter 712 may not use the words "perpetual care" or "endowment care," or any other term that suggests "perpetual care" or "endowment care" standards, in:

(1) the cemetery's name; or

(2) any advertising relating to the cemetery.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 9, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 405, § 1, eff. Sept. 1, 2001.

§ 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, § 1, eff. Sept. 1, 1989.

§ 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, § 1, eff. Sept. 1, 1989.

§ 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, § 1, eff. Sept. 1, 1989.

SUBCHAPTER C. CEMETERY ORGANIZATIONS

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 11, eff. Sept. 1, 1993.

§ 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, § 12, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 13, eff. Sept. 1, 1993.

§ 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 operating a cemetery located and operated in accordance with the distance requirements prescribed in Section 711.008 may acquire land adjacent to the cemetery for cemetery purposes. In this subsection, "adjacent" means that some part of the property to be acquired has a common boundary with the existing cemetery, or a common boundary with a public easement, a utility easement, or a railroad right-of-way, some part of which has a common boundary with the cemetery. In no event shall the closest points of the property to be acquired and the cemetery be more than 200 feet apart.

(c) 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.

(d) Filing under Subsection (b) is constructive notice as of the date of the filing of the use of the property for interment.

(e) 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 14, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 200, § 2, eff. May 21, 2001.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 15, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 502, § 1, eff. Oct. 1, 1995.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 16, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 17, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 18, eff. Sept. 1, 1993.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 19, eff. Sept. 1, 1993.

§ 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; or

(2) the surviving spouse, if any, and the heirs-at-law 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 20, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 502, § 1, eff. Sept. 1, 2001.

§ 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, § 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, § 21, eff. Sept. 1, 1993.

§ 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, § 22, eff. Sept. 1, 1993.

§ 711.042. Authority of Nonprofit Cemetery Organization

A nonprofit cemetery organization organized by plot owners may:

(1) divide cemetery property into lots and subdivisions for cemetery purposes;

(2) charge assessments on the property for the purposes of general improvement and maintenance; and

(3) take any action, to the same extent and for the same purposes as a for-profit cemetery corporation, that is necessary to carry out the organization's business purposes, which include the business purposes necessarily incident to the burial and disposal of human remains, including any action necessary to:

(A) convey property or other assets of the organization;

(B) borrow money;

(C) pledge or mortgage the property or other assets of the organization to secure the organization's indebtedness or other obligations;

(D) lend money and take security for the loan in furtherance of its business purposes; and

(E) conduct any business activity or business directly or by or through one or more subsidiaries.

Added by Acts 1999, 76th Leg., ch. 703, § 2, eff. June 18, 1999.

SUBCHAPTER D. ENFORCEMENT

§ 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, § 1, eff. Sept. 1, 1989.

§ 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 a retail department will be established for the resale of the plots of plot purchasers, that specific improvements will be made in the cemetery, or that specific merchandise or services will be furnished to a plot owner, unless adequate funds or reserves are created by the cemetery organization for the represented purpose.

(b) A cemetery organization or an officer, agent, or employee of the cemetery organization commits an offense if the cemetery organization, officer, agent, or employee offers any inducement, pecuniary or otherwise, to any person or entity for the purpose of securing or attempting to secure business for that cemetery organization. This subsection does not prohibit the offering or payment by a cemetery organization of any such inducement, pecuniary or otherwise, to an officer, employee, agent, subcontractor, or representative of the cemetery organization.

(c) A cemetery organization or an officer, agent, or employee of the cemetery organization commits an offense if the cemetery organization, officer, agent, or employee of a cemetery organization offers a free plot in a drawing, in a lottery, or in another manner, unless the offer is for the immediate burial of an indigent person.

(d) An offense under this section is a Class A misdemeanor.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 217, eff. Sept. 1, 1991.

Amended by Acts 1993, 73rd Leg., ch. 634, § 23, eff. Sept. 1, 1993.

SUBCHAPTER E. LAWN CRYPTS

§ 711.061. Requirements for Lawn Crypts

 A lawn crypt may not be installed unless:

(1) the lawn crypt is constructed of concrete and reinforced steel or other comparably durable material;

(2) the lawn crypt is installed on not less than six inches of rock, gravel, or other drainage material;

(3) the lawn crypt provides a method to drain water out of the lawn crypt;

(4) the outside top surface of the lawn crypt at the time of installation is at least 1-1/2 feet below the surface of the ground as required by Section 714.001(a)(2) and is capable of withstanding the weight of the soil and sod above the top surface and the weight of machinery and equipment normally used in the maintenance of the cemetery;

(5) the lawn crypt is installed in a garden or other section of the cemetery that has been dedicated for lawn crypt interment purposes in accordance with Section 711.034; and

(6) except as provided by Section 711.062, the lawn crypt is installed in multiple units of 10 or more.

Added by Acts 1997, 75th Leg., ch. 1389, § 4, eff. Sept. 1, 1997.

§ 711.062. Request to Install Lawn Crypt in Fewer Than 10 Units

A lawn crypt may be installed in fewer than 10 units if it is installed in a plot pursuant to the plot owner's written request that is in substantially the following form:

"REQUEST FOR INSTALLATION OF A LAWN CRYPT IN FEWER THAN 10 UNITS

I, (plot owner's name and address), request (name of cemetery organization) to install a lawn crypt consisting of (number of) units in the following location (description of plots) in (name and address of cemetery).

The lawn crypt must meet the requirements of Section 711.061, Health and Safety Code:

(1) the lawn crypt must be constructed of concrete and reinforced steel or other comparably durable material;

(2) the lawn crypt must be installed on not less than six inches of rock, gravel, or other drainage material;

(3) the lawn crypt must provide a method to drain water out of the lawn crypt;

(4) the outside top surface of the lawn crypt at the time of installation must be at least 1-1/2 feet below the surface of the ground as required by Section 714.001(a)(2), Health and Safety Code, and be capable of withstanding the weight of the soil and sod above the top surface and the weight of machinery and equipment normally used in the maintenance of the cemetery; and

(5) the plot in which the lawn crypt is to be installed must be located in a garden or other section of the cemetery that is dedicated for lawn crypt interment purposes in accordance with Section 711.034, Health and Safety Code.

Added by Acts 1997, 75th Leg., ch. 1389, § 4, eff. Sept. 1, 1997.