Held in Trust
Nonprofit corporations can establish, manage, maintain, improve, or operate a private cemetery, according to Health and Safety Code sec. 711.021.
Property dedicated to cemetery purposes and used as a burial ground may not be sold in such a manner as to interfere with its use as a cemetery (State v. Forest Lawn Lot Owners Assn., 254 S.W.2d 87, Tex. 1953). However, such property may be conveyed in fee simple as long as it is still used as a cemetery and the grantee continues to maintain the cemetery for the benefit of the public (Barker v. Hazel-Fain Oil Co., 219 S.W. 874, Tex. Civ. App.–Fort Worth 1920, writ ref’d).
A living person who has relatives buried in a graveyard does not, by that fact, own the land or plots in which they are buried. That person can, however, visit, ornament, and protect the graves from desecration even if he or she must cross private property to do so (Gibson v. Berry Cemetery Assn., 250 S.W.2d 600, Tex. Civ. App.–Dallas 1952, no writ).
Dedication for Use
A cemetery is a place that is used or intended to be used for interment, containing one or more graves, as defined in Health and Safety Code sec. 711.001.
Once a property is dedicated for cemetery use, it cannot be used for any other purpose unless the dedication is removed by a district court or the cemetery is enjoined or abated as a nuisance. Property is considered dedicated if one or more burials are present or a dedication of the property for cemetery use is recorded in the deed record. (Health and Safety Code sec. 711.035)
Improvements to property that would disturb an unknown or abandoned cemetery may not be carried out until the remains are removed under a written order issued by the State Registrar or their designee under sec. 711.004(f). The property owner may petition the district court where an unknown or abandoned cemetery is located to remove the dedication for cemetery purposes, and the court shall then order the removal of the human remains from the cemetery to a perpetual care cemetery. (Health and Safety Code sec. 711.010(a)–(b))
Texas courts have ruled that no special ceremony or record is required to dedicate a cemetery; actual use as a cemetery is sufficient for dedication (Damon v. State, 52 S.W.2d 368, Tex. 1932). Enclosure of land for use as a cemetery and evidence of burial are among the criteria for dedication (Smallwood v. Midfield Oil Co., 89 S.W.2d 1086, Tex. Civ. App. – Texarkana 1935, writ dism’d).
Why Start a Cemetery Organization?
Every cemetery should have an organized, functional cemetery association. There are many reasons why, but one of the most important is that a cemetery association has quite a bit of authority under the Health and Safety Code. Sec. 711.031, for example, gives the association the right to adopt and enforce many kinds of rules, including those that pertain to the use, care, control, management, restriction, and protection of the cemetery. Below we outline the basic process for starting an association.
Any time you have a single individual making decisions for a cemetery (not including those cemeteries which are truly a private, family cemetery), disputes over those decisions may ensue. The best thing family members and other stakeholders can do is to consider starting a cemetery association—this gives them the right to adopt and enforce all kinds of rules, including those that pertain to the use, care, control, management, restriction, and protection of the cemetery.
Starting A Cemetery Association
There are several routes for establishing a cemetery association, and the right one will depend on the specifics of the situation, the goals of the group, etc. There are legal and fiscal implications to these various options, especially if you choose to go the federally tax-exempt route, and you may want to consult with legal counsel to discuss what is most appropriate in each situation. The THC’s Cemetery Preservation Program cannot provide legal guidance.
The Texas Health and Safety Code provides at least two different processes for forming a nonprofit organization to oversee an existing cemetery:
- Sec. 711.022 states “Plot owners may organize a nonprofit corporation to receive title to land previously dedicated to cemetery purposes.” It provides very specific instructions on how to go about doing that; or
- Chapter 715 provides a process under which a nonprofit organization can petition a court for legal authority to “restore, operate, and maintain a historic cemetery.”
There may be a third option: if a cemetery organization existed at some time and is now defunct, there may be a way to restore the organization. You will likely need the Bylaws and Rules established by the original organization. The THC does not have these on file and you may need to consult an attorney or contact the Secretary of State to do this.
In general, cemetery associations can be unincorporated or incorporated nonprofit associations. Very little is involved to form an unincorporated association and many small family cemeteries choose that route. Incorporated nonprofits, however, are required to file a Certificate of Formation (used to be known as Articles of Incorporation) with the Texas Secretary of State. After that, an incorporated association may choose to also file for federal tax-exempt status, as well.
You can read more about the process for forming a nonprofit organization on the Secretary of State’s website. They also have links to additional helpful resources. Also check out the free publications by the group Texas Community Building with Attorney Resources (CBAR). Scroll down to the bottom of that page and download “How to Start a Texas Nonprofit Corporation.”
Can I establish a cemetery on my own property?
The Texas Historical Commission cannot assist with the establishment of a new cemetery. Please see the TCCA's FAQ sheet and scroll down to "I would like to establish a Family Cemetery on my property. How do I do that?"