Reversed and Remanded and Opinion filed July 12, 2012.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-11-01000-CV

                MARY CATHERINE LEVANDOVSKY, Appellant

                                         V.

   TARGA RESOURCES INC. AND TARGA DOWNSTREAM LLC, Appellee


                      On Appeal from the 344th District Court
                            Chambers County, Texas
                         Trial Court Cause No. CV26087


                                  OPINION
      In this summary-judgment appeal, appellant Mary Catherine Levandovsky
contends that the trial court erred in declaring a family cemetery located on property
owned by Targa Resources Inc. and Targa Downstream LLC (collectively, “Targa”)
“abandoned” and granting summary judgment in favor of Targa.         We reverse and
remand.
                                           BACKGROUND

        This appeal involves a small family cemetery located on slightly more than one
acre tract of land within the perimeter of Targa’s 200-plus acre Mont Belvieu gas-
processing facility in Chambers County, Texas. Targa’s predecessor in interest, Warren
Petroleum, acquired the acreage containing the cemetery tract from Edgar C. Fisher on
August 16, 1955. The deed from Fisher to Warren included a reservation of the surface
estate of the approximately one acre cemetery, referred to as the Ben Fisher Cemetery. 1
This reservation explicitly stated that Warren, the grantee, would own fee simple title to
the property, but it was not permitted to use the surface estate of the Ben Fisher Cemetery
as long as the land was used as a cemetery. The graves of Edgar Fisher, his mother, his
brother, and his daughter are located in the cemetery. The oldest grave in the cemetery
dates from 1898, and the most recent burial occurred in 1976.                          The cemetery is
surrounded by a fence, headstones are clearly visible, and the area within is maintained
by Targa. See Appendix.2

        In December 2010, Targa brought a declaratory judgment action seeking removal
of the dedication for cemetery purposes and permitting exhumation and transfer of the
human remains to a perpetual-care cemetery. Prior to filing suit, Targa discovered that
appellant was the granddaughter of Edgar Fisher.                    When she was notified of the
proceeding, she opposed relocation of the graves.                   Targa also notified the Texas
Historical Commission, which declined to intervene in the matter in the trial court.3

        In August 2011, Targa filed a motion for summary judgment, requesting the relief
described above. In support of its request, Targa asserted that, in relevant part, the


        1
          The deed contains a metes and bounds description of the cemetery tract and states: “This deed
includes said cemetery tract, with the exception that Grantee shall not have the right to use the surface of
said cemetery tract for any purpose so long as it is used as a cemetery.”
        2
            These photographs were attached to Targa’s summary-judgment motion.
        3
          However, on appeal, the Texas Historical Commission, through the Office of the Attorney
General, has filed an amicus brief supporting appellant’s position.

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cemetery is abandoned, and it is in the public interest to remove the dedication for
cemetery purposes and relocate any buried remains to a perpetual care cemetery. Targa
further alleged that, prior to filing the suit, none of the grave sites had been visited by
family members for at least thirty-five years. It alleged that it and its predecessor,
Warren, had provided “minimal maintenance” to the grave sites for more than fifty-five
years, including mowing the grass in the tract to prevent the accumulation of long
grasses. Targa asserted that it was dangerous for people to visit the cemetery due to the
risks associated with a large gas processing facility, citing a prior fire at an adjacent
facility. It argued that public interests would be better served by exhumation of the
bodies from the graves and removal to a perpetual care cemetery where the public would
have safer access to the graves.

       Appellant responded, denying that the cemetery had been abandoned and asserting
that Targa had failed to establish that relocation of the graves was in the best interest of
the public.   She attached her own affidavit to the response, stating that she is the
granddaughter of Edgar Fisher and became aware of the cemetery only after she was
contacted by a Targa representative. She stated that she had visited the cemetery on
September 16, 2011 and had researched her family history.          She explained that the
cemetery is an important location for both “personal and general historical reasons.” She
further stated that she intended to visit the cemetery in the future, that the safety
requirements associated with a visit to the cemetery, including wearing appropriate safety
gear and watching a safety video, did not “bother” her, and that she was not concerned
about her safety when visiting the cemetery. She expressed willingness to execute a
waiver of liability. Finally, she stated that she intended to replace or repair the damaged
headstones and markers and would “gladly see to the maintenance of the cemetery” if
permitted by Targa.

       Also attached to the response was the affidavit of Catherine Levandovsky,
appellant’s daughter and the great-granddaughter of Edgar Fisher. Catherine averred that
she became aware of the cemetery during the pendency of the suit and has visited it three

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times. She explained that she discovered many details regarding her family history,
including that her family was one of the founding families in Chambers County. Like her
mother, Catherine stated that she planned to visit the cemetery in the future and was
willing to execute a waiver of liability. She further explained as follows:

       While I understand there are inherent risks to visiting the cemetery I am not
       concerned about my safety. As stated above I will follow all instructions
       and safety precautions as instructed by Targa employees and included in
       the safety video. I am a Department of the Army employee and work on an
       Army installation. The need to follow rules and procedures when it comes
       to safety and security are very important and familiar to me.

       The trial court heard Targa’s summary-judgment motion on October 4, 2011. It
subsequently granted the following declaratory relief:

       Any dedication, implied easement or designation for cemetery purposes
       that affects the real property described below and recorded at Vol. 168,
       Page 369 of the Real Property Records of Chambers County, Texas (the
       “Real Property), has been abandoned, and therefore is of no further effect
       or a burden on the Real Property. . . .

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court
       that Targa may forthwith remove any human remains from said Real
       Property to a perpetual care cemetery, at Targa’s sole cost and expense.
       Also at Targa’s sole cost and expense, Targa shall do the following in
       connection with the relocation of the graves and any bodily remains located
       in the Real Property to a perpetual care cemetery: (a) it shall engage the
       perpetual care cemetery funeral director to relocate the graves and any
       human remains located in the Real Property to the perpetual care cemetery,
       to maintain and perform all required record keeping, and to secure any
       required permits in the performance of such tasks, and henceforth to care
       for the graves in accordance with the rules and standards of the perpetual
       care cemetery; (b) it shall also direct that the perpetual care cemetery
       follow all laws and regulations with respect to the proper reinternment [sic]
       and care of the graves; (c) it shall advise Mary Catherine Levandosky [sic]
       of the new location of the graves; (d) it shall engage a religious official to
       oversee the dis-internment [sic] and the reinternment [sic] of the graves and
       remains from the Real Property to the perpetual care cemetery; and (e) it
       shall engage a person qualified in the repair of gravestones to make repairs
       to the gravestones in a manner that is in accordance with normal
       maintenance of gravestones at the perpetual care cemetery.
                                             4
This appeal timely followed the trial court’s declaratory judgment.

                                    ANALYSIS

       We review a trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, we take
as true all evidence favorable to the nonmovant, indulging every reasonable inference,
and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Management
Co., 690 S.W.2d 546, 549 (Tex. 1985). In a traditional motion for summary judgment, if
the movant’s motion and summary judgment evidence facially establish its right to
judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine,
material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). This burden shifts, however, only
when the movant establishes its right to judgment as a matter of law. See id.

       In her first issue, appellant asserts that the trial court erred in determining that the
Ben Fisher Cemetery had been abandoned. The Texas Health & Safety Code provides
that the owner of a property on which an “abandoned” cemetery is located may petition a
district court in the county in which the cemetery is located for removal of any dedication
for cemetery purposes that affects the property if the court finds that the removal of the
dedication is in the public interest. Tex. Health & Safety Code § 711.010(b). “If a court
orders the removal of a dedication of a cemetery and 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.” Id. The Texas Historical
Commission (the “Commission”) may adopt rules to enforce and administer section
711.010 of the Texas Health & Safety Code. Id. at 711.012(c)(1).

       Administrative rules have the same force and effect as statutes. Rodriguez v.
Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999). They should be construed in
the same manner as statutes. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
438 (Tex. 2011). Unless the rule is ambiguous, the court should follow the rule’s clear


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language. Rodriguez, 997 S.W.2d at 254. In construing an administrative rule, the
primary objective is to give effect to the agency’s intent. Id. To discern that intent, we
begin with the plain language of the rule.            See TGS-NOPEC Geophysical Co., 340
S.W.3d at 439.

       Apparently unbeknownst to the parties in this case, the Commission adopted a
definition of an “abandoned cemetery” in May 2010, prior to the filing of this suit. 13
Tex. Admin. Code § 22.1.           The Commission defines an “abandoned cemetery” as
follows: “a non-perpetual care cemetery containing one or more graves and possessing
cemetery elements for which no cemetery organization exists and which is not otherwise
maintained by any caretakers. It may or may not be recorded in deed records of the
county in which it lies.” Id. § 22.1(1) (emphasis added).

       The trial court erred by failing to consider the Commission’s definition of an
abandoned cemetery. As defined by the Commission, a non-perpetual care cemetery is
abandoned if it: (1) contains one or more graves; (2) has cemetery elements for which no
cemetery organization exists; and (3) is not otherwise maintained by any caretakers. Id.
The Ben Fisher Cemetery meets the first and second but not the third prong of the
Commission’s definition of an abandoned cemetery.                 Under the facts of this case,
including photographs4 of the cemetery, it appears that the Ben Fisher Cemetery has been
maintained, even though it has been maintained by Targa, the party seeking a declaration
that it has been abandoned.

       In sum, the Ben Fisher Cemetery does not meet the definition of an “abandoned
cemetery” as established by the Commission because it is “otherwise maintained by [a]
caretaker.”5 Id. Accordingly, the trial court erred in declaring the Ben Fisher Cemetery
abandoned. We sustain appellant’s first issue.


       4
           See Appendix
       5
         Cf. Andrus v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730 (Tex. 1941) (“As long as land once
dedicated to use as a cemetery is kept and preserved as a resting place for the dead, with anything to

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                                             CONCLUSION

        Having sustained appellant’s first issue, we reverse and remand to the trial court
for proceedings consistent with this opinion.6




                                                   /s/       Adele Hedges
                                                             Chief Justice



Panel consists of Chief Justice Hedges and Justices Seymore and Brown.




indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard, it
is not abandoned.” (internal quotations omitted)), modified, 136 Tex. 185, 149 S.W.2d 584 (1941). The
parties rely on case law in their briefs because, as noted above, none of them appears to have been aware
of the Commission’s definition of an abandoned cemetery. Although none of the cases cited by the
parties explicitly defines an “abandoned cemetery,” the Commission’s definition is consistent with the
common law. See id.
        6
            Because of our disposition this issue, we need not reach appellant’s second issue.

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APPENDIX




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