    OFFICEOF
          THEATTORNEYGENLRAL-ST~TEOFTEXAS
    JOHN CORNYN




                                            June 22.2000



The Honorable Chris Harris                          Opinion No. X-0235
Chair, Administration Committee
Texas State Senate                                  Re: Whether a property owner of land dedicated
P.O. Box 12068                                      as a cemetery may convey the land and related
Austin, Texas 7871 l-2068                           questions (RQ-0175-JC)


Dear Senator Harris:

         You ask a number of questions about the disposition of land dedicated as a cemetery.
Because you have not provided any background information, we answer your questions in only the
most general terms and without regard to any specific factual situation. As a general matter,
property dedicated as a cemetery must be used as a cemetery unless and until the dedication is
removed. A permit from the Texas Department of Health is required to remove remains from a
cemetery to another, offsite location or to disturb remains in an unknown or abandoned cemetery in
order to construct improvements on the property. A cemetery dedication may be removed in an
action under section 711.010 or 711.036 of the Health and Safety Code or an action to abate a
cemetery as a nuisance under section 711.007. We wish to stress that these very general legal
conclusions, and the other legal conclusions that follow, are not intended to reflect the proper legal
resolution of any particular fact situation.

        Your first two questions pertain to the right of the owner ofproperty   dedicated as a cemetery
to convey the land:

                         1) Does [a] property owner who holds in trust property that
                was conveyed by deed and dedication therein as a public burial
                ground (“cemetery”) and on which remains have been interred, have
                the right of sale or conveyance to such publicly dedicated land other
                than the sale of burial plots?

                        2) May property that has been conveyed by deed and
                dedicated as a public “cemetery” when [the] deed has been so
                recorded and human remains have been interred on the property be
                subject to any sale or conveyance that would interfere with its
                continued use as a public burial ground?
The Honorable   Chris Harris - Page 2             (K-0235)




Letter from Senator Chris Harris, Chair, Administration Committee, to Honorable John Comyn,
Texas Attorney General, at 1 (Jan, 20,200O) (on file with Opinion Committee) [hereinafier“Request
Letter”].

         Chapter 711 ofthe Health and Safety Code contains general provisions relating to cemeteries
and is the codification of various statutes, some enacted as early as 1917 and 1934.’ As your letter
cites section 711.035 ofthe Health and Safety Code after each ofthese questions, see id., we assume
that the cemetery to which you refer was dedicated by a cemetery organization under section 7 11.034
of the Health and Safety Code, see TEX. HEALTH & SAFETY CODE ANN. 5 711.034 (Vernon Supp.
2000); see also id. ij 711.001(3) (defining “cemetery organization”).

        Under section 711.035 of the Health and Safety Code, dedication of land as a cemetery is not
affected by its sale and the land must be used as a cemetery until the dedication is removed or the
cemetery is abated as a nuisance by court order under section 711.007. Section 711.035 provides
that “[dledication of cemetery property and title to the exclusive right of sepulture of a plot owner
are not affected by the dissolution of the cemetery organization, nonuse by the cemetery
organization, alienation, encumbrance, or forced sale oftheproperty”and      that “[dledicated cemetery
property shall be used exclusively for cemetery purposes until the dedication is removed by court
order or until the maintenance of the cemetery is enjoined or abated as a nuisance under Section
711.007.” Id. 5 711.035(b), (f). We also note that case law suggests that, under the common law,
the conveyance of land dedicated as a cemetery did not affect its use. See, e.g., Houston Oil Co. v.
 Williams, 57 S.W.2d 380,384-85 (Tex. Civ. App.-Texarkana 1933, writ ref d) (“It appears to be the
tule that, where property has been actually appropriated either as a private family burying ground
or as a public cemetery, it cannot in either instance be inherited or conveyed as other property is
done so as to interfere with the use and purposes to which it has been devoted.              ‘When once
dedicated to burial purposes, and interments have there been made, the then owner holds the title to
some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or
vendee takes the property subject to this trust.“‘) (citations omitted) (quoting Hines v. Tennessee,
 149 SW. 1058, 1059 (Tenn. 1911)). Seegenerally         12 TEX. JUR. 3D Cemeteries $5 12-13 (1993).

          Your third question goes to how dedication of land as a cemetery is accomplished as well as
its effect: “If [the] original grantor of [the] land recorded a written instrument dedicating [the] land
as [a] public burial ground and the public uses such land to inter remains[,] is an irrevocable
dedication to public use created?’ Request Letter at 1.

         Section 711.034 ofthe Health and Safety Code provides various requirements that a cemetery
organization that acquires property for interment purposes must follow in order to dedicate it as a
cemetery, including making a map of the property and tiling the map and written certificate or
declaration of dedication with the county clerk. See TEX. HEALTH & SAFETY CODE ANN.
5 711.034(a)(l), (b), (c) (Vernon Supp. 2000). “Filing a map         and a certificate or declaration


         ‘SeeActofMar. 29, 1917,35thLeg.,R,S.,ch. 125,s 1, 1917Tex.Gen. Laws323;ActofFeb. 27, 1934,43d
Leg., 2d C.S., ch. 66, 9 1, 1934Tex. Gen. Laws 146.
The Honorable   Chris Harris - Page 3               (JC-0235)




under [section 711.0341 dedicates the property for cemetery purposes and is constructive notice of
that dedication.” Id. 5 711.034(d). Under the common law, however, no instrument was required
to dedicate land as a cemetery, and the actual use of land as a cemetery was sufficient for a
dedication. See Damon v. State, 52 S.W.2d 368, 370 (Tex. Comm’n App. 1932) (“no particular
instrument or ceremony is required to dedicate a tract of land to cemetery purposes. Its actual use
as such is sufficient”). See generally TEX. JUR. 30 Cemeteries 5 11 (1993). Again, with respect to
the effect of a cemetery dedication, the Health and Safety Code provides that “[dledicated cemetery
property shall be used exclusively for cemetery purposes until the dedication is removed by court
order or until the maintenance of the cemetery is enjoined or abated as a nuisance under Section
711.007.” TEX. HEALTH & SAFETYCODE ANN. 5 711.035(f) (Vernon Supp. 2000).

         Your fourth question is whether section 711.008 of the Health and Safety Code “appl[ies]
to a cemetery established prior to the Act and in existence without operating (existing interment but
no current or future interment of remains)?’ Request Letter at 1. We understand you to ask about
the scope of subsections (a) and (b)(l) of section 711.008. Subsection (a) restricts the location of
a cemetery in and near municipalities of various populations.         It provides that “an individual,
corporation, partnership, firm, trust, or association may not establish or operate a cemetery, or use
any land for the interment ofremains,” located, for example, “in or within one mile of the boundaries
of a municipality with a population of 5,000 to 25,000.” TEX. HEALTH & SAFETY CODE ANN.
5 711.008(a)( 1) (Vernon Supp. 2000). The required distance increases for municipalities of greater
populations. See id. 5 711,008(a)(2)-(5). H owever, subsection (b)(l) provides that the subsection
(a) restrictions   do not apply to “a cemetery heretofore established and operating.”               Id.
5 711.008(b)(l).      Your query requires us to construe the phrase “heretofore established and
operating” in subsection (b)(l) both with respect to the date to which “heretofore” refers and with
respect to the meaning of the phrase “established and operating.”

         First, we consider the scope of section (b)(l) with respect to time.            When section
711.008(b)( 1) was enacted in 1989 as the codification offormer article 912a-24 ofthe Revised Civil
Statutes, it provided that subsection (a) did not apply to a cemetery established and operating on or
before September 3,1945, the effective date of former article 912a-24.2 Section 711.008(b)(l) was
amended in 1991, however, to provide that subsection (a) does not apply to “a cemetery heretofore
established and operating.” Act of Mar. 21, 1991, 72d Leg., R.S., ch. 14, 5 215, 1991 Tex. Gen.
Laws 42, 191. The purpose of this change was to “better conform to the law from which” section
711.008 was derived, see id., and may have been the result of concern that the term “heretofore” in
former article 912a-24 actually referred to the effective date of a very similar 1934 provision, former
article 930, that it replaced.3 However, we believe that “heretofore” must now be construed not by
reference to the source law but rather according to its express terms, which clearly refer to the



        ‘See Act of May 18, 1989,71stLeg., R.S., ch. 678, 5 1, 1989Tex. Gen. Laws 2230,3005 (enactingTEX.
HEALTH& SAFETYCODEANN.5 711.008);see        also TEX.HEALTH     & SAFETYCODEANN 3 711.008 revisor’snote
(Vernon Supp.2000).

        ‘See Act of Feb. 27, 1934,43dLeg., 2d C.S., ch. 66,s 1, 1934Tex. Gen. Laws 146.
The Honorable   Chris Harris - Page 4             (X-0235)




effective date ofthe 1991 enactment, September 1,1991, see id. 5 286,199l Tex. Gen. Laws at 242;
see also Fleming Foods, Inc. Y. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (“directive to the
Legislative Council [in connection with the codification of statutes] to refrain from changing the
sense, meaning, or effect of a previous statute [may not] be used as a basis to alter the express terms
of a code that the Legislature enacts as law, even when the Council’s language does change the prior,
repealed law”). Thus, we conclude that by operation of subsection (b)(l), as amended in 1991, the
location restrictions of subsection (a) do not apply to a cemetery established and operating prior to
September 1, 1991.

         Next, we consider the meaning of the phrase “established and operating.” Again, section
711.008(b) excepts from the location restrictions cemeteries “heretofore established and operating.”
TEX. HEALTH & SAFETYCODE ANN. 5 71 l.OOS(b)( 1) (V emon Supp. 2000) (emphasis added). You
specifically ask whether section 711.008 applies to a cemetery “in existence without operating,”
which you describe as “existing interment but no current or future interment of remains.” Request
Letter at 1.

         We disagree with your assumption that a cemetery that is not currently interring remains and
will not inter remains in the future is not “operating” for purposes of section 711.008(b). Under this
construction ofthe term, the statute would except cemeteries at which interments have occurred and
will occur in the future but not those that no longer inter remains. This would, in effect, require the
dismantling of cemeteries where bodies have been buried, but that, for whatever reason, are no
longer interring remains. This construction would be inconsistent with the strong public policy in
favor of preserving cemeteries out ofrespect for the dead. See TEX. HEALTH& SAFETYCODE ANN.
5 711.035(a) (Vernon Supp. 2000) (“Property may be dedicated for cemetery purposes, and the
dedication is permitted in respect for the dead, for the disposition of remains, and in fulfillment of
a duty to and for the benefit of the public.“); see also Faulk v. Buena Vista Burial Park Ass’n, 152
S.W.2d 891, 894 (Tex. Civ. App.-El Paso 1941, no writ) (noting that distinction made in former
article 930 between established cemeteries and cemeteries to be established in the future “may have
been made out of regard for the religious and sentimental feelings of a large body of the public.
Thus was avoided the disinterment of the dead               Furthermore, we think that is was done in
recognition of the property rights of those who had theretofore dedicated their property to cemetery
purposes.“); TEX. Gov’r CODE ANN. 5 311.021(3) (Vernon 1998) (“In enacting a statute, it is
presumed that       a just and reasonable result is intended.“). Furthermore, the law provides special
procedures for the removal of cemeteries that have become a nuisance or have been abandoned, see,
e.g., TEX. HEALTH & SAFETY CODE ANN. $5 711.007, .010(b) (Vernon Supp. 2000), 713.009,
714.004 (Vernon 1992), and we do not believe that this is the purpose of section 711.008.

         We believe the more reasonable construction of the section 711.008(b)(l) grandfather
provision is that it distinguishes between cemeteries established and actually used for interment, on
the one hand, and cemeteries established but not yet used for interment, on the other. This is
consistent with the chapter 7 11 definition of a “cemetery” as a place “that is used or intended to be
used for interment,” id. 5 711 .001(2) (Vernon Supp. 2000) (emphasis added), and thus includes both
places where remains are actually interred and places established to inter remains that have not yet
The Honorable   Chris Harris - Page 5             (JC-0235)




been used for that purpose. Therefore, in answer to your question, we conclude that the exception
applies to a cemetery established and used for interment prior to September 1, 1991.

         Your fifth question is whether “remains [may] be disinterred without approval and permit
from the Texas Department of Health?’ Request Letter at 1. The question cites section 694.001 of
the Health and Safety Code, which provides that the Texas Department ofHealth “shall regulate the
disposal, transportation, interment, and disinterment of dead bodies to the extent reasonable and
necessary to protect public health and safety.” TEX. HEALTH & SAFETY CODE ANN. 5 694.001.
(Vernon 1992). Section 711.004 of the Health and Safety Code, which governs the removal of
remains from a cemetery to another, offsite location, is also relevant. It provides that remains may
be removed from a cemetery with the consent of the cemetery organization and consent of one of
several listed relatives or a court order. See id. 5 711.004(a)-(e) (Vernon Supp. 2000). In addition,
subsection (f) of section 7 11.004 provides that a written order from the state registrar-the chief of
the Bureau of Vital Statistics of the Texas Department of Health, see id. $j§ 191.002-,004 (Vernon
 1992)-must    be obtained to remove remains from a cemetery:

                        Except as is authorized for a justice of the peace acting as
                coroner or medical examiner under Chapter 49, Code of Criminal
                Procedure, remains may not be removed from a cemetery except
                on the written order of the state registrar or the state registrar’s
                designee.

Id. 5 711.004(f) (Vernon Supp. 2000). It also provides that “[tlhe Texas Board ofHealth may adopt
rules to implement this subsection.” Id.

         The Texas Department of Health has adopted a rule governing disinterment, which, like
section 711.004(f), requires that remains may not be removed from a cemetery except on written
order of the state registrar or the state registrar’s designee. See 25 TEX. ADMIN. CODE 5 181.6 (1999)
(Disinterment).    The rule provides that a permit “shall serve as the authority to disinter, transport,
and reinter a body.” Id. 5 181.6(f). Although section 694.001 of the Health and Safety Code gives
the Department authority over all disinterments, the rule provides that a permit is not required to
move remains within the same cemetery: “A disinterment permit shall not be required if a body is
to be disinterred and reinterred in the same cemetery.” Id. 5 181.6(d).

        Because the Department’s exception ofremoval ofremains from one plot to another within
a cemetery from the permit requirement has significant legal implications, see, e.g., infru p, 9, we
briefly examine the validity of the rule. We conclude that the Department’s construction of the
permit requirement is reasonable. Again, section 711.004(f) ofthe Health and Safety Code requires
a permit for removal of remains “from a cemetery.” TEX. HEALTH & SAFETY CODE ANN.
5 711.004(f) (Vernon Supp. 2000). It is clear from section 711.004 as a whole that the phrase
“removed from a cemetery” does not include moving remains from one plot to another within the
same cemetery. Subsections (a) through (d) of section 711.004 provide certain requirements that
must be satisfied before “[rlemains interred in a cemetery may be removed from the cemetery.” Id.
The Honorable   Chris Harris - Page 6            (JC-0235)




?j 711.004(a). These requirements do not apply “to the removal of remains [] from one plot to
another plot in the same cemetery.” Id. 5 711.004(e)(l).    It is entirely reasonable to construe the
phrase “from a cemetery” in subsection (f) to have the same meaning as the phrase “from the
cemetery” as it is used in subsections (a) through (e). Furthermore, the Department’s rule is not
inconsistent with the Department’s more general duty to regulate disinterment under section
694.001, because that statute gives the Department considerable leeway in exercising its regulatory
authority.   See id. 5 694.001 (Vernon 1992) (providing that the Department “shall regulate the
disposal, transportation, interment, and disinterment of dead bodies to the extent reasonable and
necessary toprotectpublic    health and safety”) (emphasis added). We assume that the Department
has determined that regulation of disinterment and reburial within the same cemetery is not
necessary from the perspective of public health and safety.

          In addition to section 711.004 and the Department’s rule, several other provisions are
germane to the issue of approval to disinter or remove remains, Recently enacted section 711.010
of the Health and Safety Code provides that the owner of property on which an unknown cemetery
is discovered or on which an abandoned cemetery is located “may not construct improvements on
the property in a manner that would further disturb the cemetery until the human remains interred
in the cemetery are removed under a written order issued by the state registrar          under Section
711.004(t).” Id. 5 71 I ,010 (Vernon Supp. 2000). Unlike section71 1.004(t), whichrequires apermit
for disinterment to remove remains from a cemetery to another, offsite location, section 711 .OlO
requires a property owner to obtain a permit to remove remains prior to constructing improvements
in a manner that would disturb the cemetery and thus may, in some circumstances, require a permit
to move remains within the same cemetery.          In addition, section 71 I .007(d) provides that the
governing body of a municipality may authorize the removal of bodies from a cemetery that is
“neglected so that it is offensive to the inhabitants of the smrounding section” to a perpetual care
cemetery.     See id. 5 711.007(a)(2), (d). Similarly, a court or municipal governing body may
authorize the removal of bodies Tom a cemetery to a perpetual care cemetery in certain other
 situations. See id. 5 714.004 (Vernon 1992) (in case of abandoned and neglected cemetery in a
county with a population of at least 525,000, court abating a cemetery as a nuisance or the governing
body of the municipality      where the cemetery is located may authorize removal of bodies to a
perpetual care cemetery).

        In sum, as a general matter, remains may not be disinterred and removed from a cemetery
without a permit from the Texas Department of Health. Although a permit is not required to move
remains within the same cemetery, the owner of an unknown or abandoned cemetery who wishes
to make improvements on the property may not disturb the cemetery until the remains have been
removed pursuant to a permit. In addition, a court or the governing body of a municipality may
authorize the removal of bodies from a cemetery in certain circumstances. Finally, we caution that
although a permit is not generally required to move remains within the same cemetery, the authority
to move remains from one plot to another within a cemetery may be limited by statutory rights to
burial in a particular location, see id. $5 711.03%,040 (Vernon Supp. 2000), the rules of the
cemetery organization, see id. 5 711.038(a)(2), any instrument of conveyance governing the plot
owner’s rights, see id., by contract, and, possibly, by tort and penal law, see, e.g., TEX. PEN. CODE
The Honorable   Chris Harris - Page 7             (X-0235)




ANN. ij 42.08 (Vernon 1994) (person commits a misdemeanor        offense “if, not authorized by law, he
intentionally or knowingly[] disinters, disturbs, removes,          or treats in a seriously offensive
manner a human corpse”).

         Several of your questions pertain to removal of a cemetery dedication. Question 6 asks,
“May [the] owner of ‘cemetery’ property petition a court for removal of the deeded dedication when
the property owner is not a cemetery association. 7” Request Letter at 1. Given that this question
cites section 71 I .036(a) of the Health and Safety Code, see id., we gather the question is whether
section 711.036(a) provides a mechanism for a property owner other than a cemetery organization
to remove a cemetery dedication. Section 711.036(a) provides that “[a] cemetery organization may
petition a district court of the county in which its dedicated cemetery is located to remove the
dedication with respect to all or any portion of the cemetery” upon certain conditions. See TEX.
HEALTH & SAFETY CODE ANN. § 711.036(a) (Vernon Supp. 2000). A cemetery organization is
defined by chapter 711 as:

                        (A) an unincorporated        association of plot owners not
                operated for profit that is authorized by its articles of association to
                conduct a business for cemetery purposes; or

                         (B) a corporation, either for profit or not for profit, that is
                authorized by its articles of incorporation to conduct a business for
                cemetery purposes.

Id. 5 71 I .001(3). Section 711.036 does not authorize persons other than cemetery organizations as
defined by chapter 71 I to petition for removal of a cemetery dedication. We note, however, that
section 711.007 ofthe Health and Safety Code authorizes various officials, entities, and individuals
to bring an action in county court to abate a cemetery as a nuisance and enjoin its continuance. See
id. 5 711.007; see also id. § 714.004 (Vernon 1992). A court order enjoining or abating a cemetery
serves the same purpose as a court order removing the dedication. See id. 9 711.035(f) (Vernon
Supp. 2000) (“[dledicated cemetery property shall be used exclusively for cemetery purposes until
the dedication is removed by court order or until the maintenance of the cemetery is enjoined or
abated as a nuisance under Section 711.007.“). In addition, recently enacted section 711.010
authorizes a district court of the county in which an unknown cemetery is discovered or on which
an abandoned cemetery is located to order the removal of a cemetery dedication “[o]n petition ofthe
owner of the property.” Id. 5 711.010(b). The right to petition provided by section 711 .OlO is not
limited to cemetery organizations.

        Your seventh question is whether “[the] owner of ‘cemetery’ property [may] seek to remove
deeded dedication of [a] public burial ground while remains are interred on the property?’ Request
Letter at 1. Under section 711.036, a cemetery organization may petition a district court forremoval
of a cemetery dedication if “( 1) all the remains have been removed from that portion of the cemetery
where the dedication is to be removed, or (2) no interments were made in that portion of the
cemetery where the dedication is to be removed and that portion of the cemetery is not used or
The Honorable   Chris Harris - Page 8




necessary for interment purposes.” TEX. HEALTH& SAFETYCODEANN. 5 71 I .036(a) (Vernon Supp.
2000). As we have noted, however, other provisions provide for a court to abate a cemetery as a
nuisance and enjoin its continuance. See id. 5 711.007(a), @); seealso id. 5 714.004 (Vernon 1992).
These provisions allow for removal of remains following a court order. See id. § 711.007(d)
(Vernon Supp. 2000); see also id. 5 714.004 (Vernon 1992). Finally, section 71 I.010 authorizes a
district court to order the removal remains from an abandoned or previously unknown cemetery to
a perpetual care cemetery on the petition of the property owner to remove the cemetery dedication.
See id. 3 711.010(b) (Vernon Supp. 2000).

        Your eighth question is closely related: “May remains be disinterred prior to removal of
deeded dedication?” Request Letter at 2. As we have discussed, remains may be disinterred and
removed from a cemetery with the requisite consent (or a court order) and a permit from the Texas
Department of Health. See discussion, supra p. 5. Consent and a permit are not generally required
to move remains within the same cemetery, although other limitations may apply. See discussion,
supra pp. 5-6. Furthermore, the owner of an unknown or abandoned cemetery who wishes to make
improvements on the property may not disturb the cemetery until the remains have been removed
pursuant to a permit from the Texas Department of Health. See discussion, supra p. 6. Finally, a
court or the governing body of a municipality may authorize removal of remains to a perpetual care
cemetery in certain limited circumstances.   See id.

         Your ninth question is whether “[the] owner of ‘cemetery’ property [may] make [an]
application to plat such property for another intended use when the deeded dedication of such
property has not been removed by a court or remains are interred on the property? May a municipal
board approve such application or plat on property with a deeded dedication that has not been
removed or while remains are interred?” Request Letter at 2. As we have noted, a cemetery
dedication is for the benefit of the public and “[dledicated cemetery property shall be used
exclusively for cemetery purposes until the dedication is removed by court order or until the
maintenance of the cemetery is enjoined or abated as a nuisance under Section 711.007.” TEX.
HEALTH & SAFETY CODE ANN. 5 711.035(f) (V emon Supp. 2000). Although we have found no
statute or case addressing the authority of a city to consider and approve a plat providing for use of
a dedicated cemetery for purposes contrary to the dedication, we have found authority standing for
the general proposition that a city may not authorize a person to use property contrary to a dedicated
publicuse. SeegenerallyLysaght       Y. CityofFort Worth, 359 S.W.2d 128,130 (Tex. Civ. App.-Fort
Worth 1962, writ ref d) (“As against the public the city cannot give the abutting property owners the
right to construct permanent obstructions on any portion of a street dedicated to public use.“); Joseph
v. City ofAustin, 101 S.W.2d 381,384 (Tex. Civ. App.-Austin 1936, writ ref d) (“The law is settled
that as against the public the city could not give the abutting property owners the right to construct
permanent obstructions on any portion of a street dedicated to public use by map and plat of an
addition.“); 30 TEX. JUR. 30 Dedication 5 53 (1998). Therefore, we conclude that a city may not
authorize a person to use property dedicated as a cemetery contrary to the dedication and that
municipal approval of a plat for a purpose contrary to a cemetery dedication would be without effect.
The Honorable   Chris Harris - Page 9            (X-0235)




         Your tenth question is whether “[the] property owner of a non-perpetual care cemetery who
is not a cemetery organization [may] move interred remains from one plot to another location in the
‘cemetery.’        If yes, are the descendants of those interred provided notification of removal and
relocation of the remains and is their consent required?’ Request Letter at 2.

         Section 7 11.004(a) of the Health and Safety Code provides that “[rlemains interred in a
cemetery may be removed from the cemetery with the written consent of the cemetey organization
operating the cemetery and the written consent of the current plot owner or owners and’ certain
relatives of the decedent in order of priority. TEX. HEALTH & SAFETY CODE ANN. 5 71 I .004(a)
(Vernon Supp. 2000) (emphasis added). If consent cannot be obtained, remains may be removed
with court permission, Id. 5 711.004(c). Notice must be given to the cemetery organization, the
relatives listed in subsection (a), and any other person the court requires. See id.

         Significantly, section 711.004 authorizes removal of remains from a cemetery operated by
a cemetery organization. As we have noted, the consent and notice limitations do not apply “to the
removal of remains (1) from one plot to another plot in the same cemetery.” Id. 5 711.004(e).
Although the regulatory scope of section 711.004 is limited to removal of remains from a cemetery
operated by a cemetery organization and section 711.004 clearly permits a cemetery organization
to move remains within a cemetery, we do not believe this means that other types of cemetery
owners may not move remains within the cemetery. As discussed above, the Texas Department of
Health rule on disinterment provides that a disinterment permit from the state registrar is not
required to move remains within the same cemetery. See 25 TEX. ADMIN. CODE 5 181.6(d) (1999)
(Disinterment).      Thus, we believe that the state regulatory scheme contemplates that a property
owner of, as described by your question, “a non-perpetual care cemetery who is not a cemetery
organization” may move remains within the same cemetery without a permit and without providing
notice. As we have explained, however, the owner of property on which an unknown cemetery is
discovered or an abandoned cemetery is located may not construct improvements that would disturb
the cemetery without first obtaining a permit to remove the remains, See TEX. HEALTH & SAFETY
CODE ANN. 5 711.010 (Vernon Supp. 2000). Furthermore, as we have noted, the authority to move
remains from one plot to another within a cemetery may be limited by statutory rights to burial in
a particular location, the rules of a cemetery organization, any instrument of conveyance, and
contract as well as tort and penal law. See discussion, supra p. 6.

         Question 10 also includes the following query: “If the State Registrar in their permitting
process requires the notification and consent of descendants prior to disinterment, is the property
owner subject to the permitting process when property owner is not a cemetery organization?’
Request Letter at 2. We have not been able to locate a specific Texas Department of Health
regulation requiring notice to descendants and thus answer your question in very general terms. The
Texas Department ofHealth’s regulatory authority over disinterment applies not only to removal of
remains from a cemetery operated by a cemetery organization, as provided by section 711.004, but
also to disinterment generally. See TEX. HEALTH& SAFETYCODEANN. § 694.001 (Vernon 1992);
see also id. 5 711.010(a) (Vernon Supp. 2000) (permit required to remove remains in an unknown
The Honorable   Chris Harris - Page IO              (X-0235)




or abandoned cemetery).      Thus, we do not believe that the Department’s         permitting   process is
necessarily limited to disinterment by cemetery organizations.

        Your eleventh and twelfth questions, which pertain to reburial of disinterred remains, are
whether “remains that are disinterred from individual burial plots [may] be grouped together and re-
interred in one burial or must remains be re-interred in individual plots,” and whether the
requirements of section 714.001 ofthe Health and Safety Code apply to reinterred remains? Request
Letter at 2. Section 714.001 establishes depth requirements for graves, providing that “[tlhe body
of a decedent may not be buried in a manner so that the outside top surface of the container of the
body is” less than a certain number of feet below the surface, depending upon the material of the
container. See TEX. HEALTH&SAFETY CODEANN. 5 714.001(a) (Vernon 1992). We see no reason
why these provisions would not apply to reburial of bodies. We have not located any statute
addressing whether disinterred remains may be buried together in a common plot. Generally,
however, the law contemplates that remains will be buried in an individual plot or in separate graves
within a plot. See, e.g., id. $5 711.003, .004(e)(l), ,038, ,039 (Vernon Supp. 2000). Furthermore,
we note that under section 42.08 of the Penal Code a person commits a misdemeanor offense “if,
not authorized by law, he intentionally or knowingly[] disinters, disturbs, removes,       or treats in
a seriously offensive manner a human corpse.” TEX. PEN. CODE ANN. 5 42.08 (Vernon 1994).
Whether reburial of remains in a common plot violates section 42.08 in a specific instance will
depend upon the facts and is beyond the scope of an attorney general opinion.4

       Your remaining questions pertain to sections added to chapter 711 of the Health and Safety
Code by the Seventy-sixth Legislature establishing certain duties with respect to unknown or
abandoned cemeteries. Section 711.010 provides:

                         (a) The owner ofproperty on which an unknown cemetery is
                discovered or on which an abandoned cemetery is located may not
                construct improvements on the property in a manner that would
                further disturb the cemetery until the human remains interred in the
                cemetery are removed under a written order issued by the state
                registrar or the state registrar’s designee under Section 711.004(f).

                         (b) On petition of the owner of the property, a district court
                of the county in which an unknown cemetery is discovered or an
                abandoned cemetery is located shall order the removal of any
                dedication for cemetery purposes that affects the property.       If 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.         A petition under this
                subsection shall be made ex parte in the name of the owner of the


        ‘See, e.g.,Tex. Att’y Gen.Op. Nos. K-0020 (1999)at 2 (statingthatresolutionof fact questionsis beyond
purview of opinionprocess);M-187 (1968) at 3 (same); O-2911 (1940) at 2 (same).
The Honorable   Chris Harris - Page 11             (JC-0235)




                property   without   naming   any defendant    or joinder   of any other
                person.

TEX. HEALTH & SAFETYCODE ANN. 5 711.010 (Vernon Supp. 2000). In addition, section 711 ,011
requires a person who discovers an unknown or abandoned cemetery to file notice of the cemetery
with the county clerk. Id. 5 711.011(a) (“A person who discovers an unknown or abandoned
cemetery shall file notice of the cemetery with the county clerk ofthe county in which the cemetery
is located. The notice must contain a legal description of the land on which the unknown or
abandoned cemetery was found and describe the approximate location of the cemetery and the
evidence of the cemetery that was discovered.“) (emphasis added).

         You point out that the term “unknown or abandoned cemetery” is not defined in sections
711.010 and 711.011 or elsewhere in chapter 711. See Request Letter at 2. You askif“the fact that
property maintenance       has been neglected in a non-perpetual          care cemetery amount[s] to
abandonment?’      Id. You also ask: “If a deed has been recorded in the County records, publicly
dedicating land as [a] cemetery, or improvements have been constructed on the property, or grave
markers remain on the property or the property has been publicly marked as [a] cemetery, or remains
are interred on the property[,] is this sufficient to show that a cemetery is not abandoned?’ Id. Thus,
we gather you are concerned with the meaning of the term “abandoned cemetery.”

          The Code Construction Act directs that “[wlords and phrases shall be read in context and
construed according to the rules of grammar and common usage” and that “[wlords and phrases that
have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall
be construed accordingly.” TEX. GOV’T CODE ANN. 4 3 11 ,011 (Vernon 1998). In the absence of a
legislative definition and given that judicial opinions use the term, we define the term “abandoned
cemetery” by reference to prior cases. See id. $ 311 .Ol l(b). According to the case law,

                [a]s long as land once dedicated to use as a cemetery “is kept and
                preserved as a resting place for the dead, with anything to indicate the
                existence of graves, or as long as it is known and recognized by the
                public as a graveyard, it is not abandoned.”        (Citation omitted.)
                Where bodies which have been buried in a cemetery remain therein
                and the ground awakens sacred memories in living persons, the mere
                fact that for some years no new burials have been had, and that the
                graves have been neglected, does not operate as an abandonment and
                authorize the desecration of the graves.

Andrus v. Remmert, 146 S.W.2d 728,730 (Tex.), modifiedon othergrounds, 149 S.W.2d 584 (Tex.
1941); see also 12 TEX. JUR. 30 Cemeteries $20 (1993). Thus, in answer to your questions, we do
not believe that the mere fact that graves are neglected would justify a finding that a cemetery has
been abandoned. Furthermore, the other facts you mention-that       land had been publicly dedicated
as a cemetery, that improvements have been made to a cemetery, that the graves remain marked, that
the property has been publicly marked as a cemetery, and that remains are interred on the property
The Honorable   Chris Harris - Page    12         (JC-0235)




-would     all support a finding that a cemetery has not been abandoned. Ultimately, however, the
determination as to whether a particular cemetery has been abandoned will depend upon the totality
of the circumstances and, because it must involve resolution of fact questions, is beyond the purview
of an attorney general opinion. See supra note 4.

                                        SUMMARY

                        Property dedicated as a cemetery must be used as a cemetery
                unless and until the dedication is removed. A permit from the Texas
                Department of Health is required to remove remains Erom a cemetery
                to another, offsite location or to disturb remains in an unknown or
                abandoned cemetery in order to construct improvements         on the
                property. A cemetery dedication may be removed in an action under
                section 711.010 or 711.036 of the Health and Safety Code or in an
                action to abate a cemetery as a nuisance under section 711.007.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
