Who Owns a Cemetery?

Held in Trust

Nonprofit corporations can establish, manage, maintain, improve, or operate a private cemetery, according to Section 711.021 of the Health and Safety Code.

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 Section 711.001 of the Health and Safety Code.

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, Section 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 Section 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, Section 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).