Access, Desecration, and Abandonment

Access

Any person who wishes to visit a cemetery that has no public ingress or egress shall have the rights for visitation during reasonable hours and for purposes associated with cemetery visits. The owner of the lands surrounding the cemetery may designate the routes for reasonable access. Interference with ingress and egress is a Class C misdemeanor. (Health and Safety Code, Section 711.041 and Section 711.0521)

The Texas Funeral Services Commission has the authority to write rules to support Section 711.041. These rules present a course of action that may be undertaken in cases where access to a cemetery is refused. See Title 22, Part 10, Rule §205.2 of the Texas Administrative Code. (Health and Safety Code, Section 711.012(b))

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

Desecration

The Texas Penal Code states that a person who intentionally or knowingly disinters or disturbs a human corpse has committed a Class A misdemeanor. A person commits an offense if they knowingly vandalize or damage the space of the interred. This Class A misdemeanor is punishable by fine and jail confinement. (Texas Penal Code, Section 42.08)

Criminal mischief, as described in the Texas Penal Code, includes an offense involving damage or destruction inflicted on a human burial site is a state jail felony. (Texas Penal Code, Section 28.03(f))

Graffiti

An offense involving graffiti on a place of human burial is a state jail felony. (Texas State Penal Code Section 28.03 (a)(3) and (f) and Section 28.08 (a) and (d))

Theft

Theft is a state jail felony if the property, regardless of value, is stolen from the person of another or from a human corpse or grave. (Texas Penal Code, Section 31.03(e)(4)(b))

Abandonment

The fact that the remains of the dead buried in a cemetery have not been removed and that tombstones mark the places of burial is sufficient to show that the cemetery has not been abandoned (Michels v. Crouch, 122 S.W.2d 211, Tex. Civ. App.–Eastland 1938, no writ).

In Markgraf v. Salem Cemetery Assn., 540 S.W2d 524 (Tex. Civ. App.–San Antonio 1976, no writ), the court decided that land outside a cemetery fence was not abandoned because several graves were still evident.