Cemetery Queries

By Jennifer McWilliams, Cemetery Preservation Program Coordinator

Within the field of historic preservation, cemeteries present an interesting challenge, with issues spanning from land and legal considerations to maintenance and preservation concerns. Our Cemetery Preservation Program receives numerous inquiries about cemeteries. Here are answers to three frequently asked questions.

Who owns a cemetery?

Historically, family members in Texas were often buried near their farms and ranches. As a community grew, a philanthropic landowner may have set aside land for a cemetery. With no need for formal dedication, record keeping, or ceremony, the cemetery was used by family and community members until it was no longer needed due to population decline or the creation of a new cemetery near a church or town.

The land was typically passed to a family’s descendants or, in some cases, sold outright. Sometimes the cemetery was separately deeded off of the larger land tract, but many times it was sold as part of the property—with or without any reference to the cemetery. Therefore, determining ownership often requires a thorough review of deed records or property transfer documents.

Regardless of who holds title to cemetery land, each grave is protected by law. Cemeteries are considered to be held in trust for the benefit of those interred. The grave or cemetery need not be listed in the county deed records or separated by a fence to be protected under state law. Once a property is dedicated for cemetery use, it cannot be disturbed or used for any other purpose, including grazing or improvements, until the dedication is legally removed, a process outlined in Sec. 711.004 of the Texas Health and Safety Code.

How do I access a cemetery on private property?

The THC does not play a role in granting access to cemeteries on private property. The only way to access many cemeteries is to cross private property.

The Health and Safety Code allows visitors the right to access a cemetery; however, this right does not provide permission to trespass. Contact the property owner prior to visiting. The landowner is permitted to establish reasonable hours and may designate the routes.

Is funding available for historic cemetery maintenance?

As time passes, there are fewer family and community members to maintain cemeteries, resulting in hundreds of neglected sites. In the past, cemetery associations often formed to oversee a cemetery, and the group may have held traditional fundraising events such as barbecues or fish fries associated with maintenance days, family reunions, or Decoration Days. These events remain successful ways to generate funds while connecting descendants who may be far removed from their ancestral burial grounds.

The THC does not provide grant funding specifically for cemetery maintenance, but some cemeteries could qualify for restoration or educational project grant monies through the agency’s Texas Preservation Trust Fund. Local governments may also provide financial assistance, equipment, or labor for maintenance projects.

If you have additional questions, please email the THC’s Jennifer McWilliams or call her at 512-475-4506.

This article was originally published in the Summer 2016 issue of The Medallion.

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