Does Texas cemetery law (Chapter 711) apply to old, informal burial grounds on private property?

Plain-English summary

Old family and community burial grounds, some dating to the 1800s, often sit inside what is now privately owned land. They were never set up by a formal cemetery organization, though some may have been deeded to cemetery use long ago. Following an earlier Attorney General opinion (JC-0235), a state senator's predecessor asked how chapter 711 of the Health and Safety Code, the main cemetery statute, applies to these old cemeteries, whether the landowner acts as a trustee, whether the cemetery area can be conveyed along with the rest of the property, and whether such places stay "public" cemeteries by virtue of past use.

The opinion drew a line between the statute's two key terms. Chapter 711 defines "cemetery" broadly as "a place that is used or intended to be used for interment," including a graveyard, burial park, or mausoleum, while "cemetery organization" means a specific kind of nonprofit association or corporation authorized to conduct cemetery business. Because "cemetery" is broader, the provisions of chapter 711 that refer to cemeteries generally apply to the old, unorganized burial grounds described in the request, while provisions aimed specifically at cemetery organizations apply only to those entities. Since the request did not name a particular statute, the opinion did not sort each section into one bucket or the other. On conveyance, the opinion relied on JC-0235 and the case law it cited, especially Houston Oil Co. v. Williams, for the common-law rule: land dedicated as a cemetery may be conveyed, but the conveyance cannot interfere with its dedicated burial use, and the heir, devisee, or buyer takes title "to some extent in trust for the benefit of those entitled to burial in it." On public access, section 711.041 gives any person who wishes to visit a cemetery or private burial ground without public ingress or egress the right to reasonable access during reasonable hours for ordinary visitation, with surrounding landowners allowed to designate reasonable routes. As for whether such places remain "public" cemeteries, the opinion found the term ambiguous: dedicated cemetery land must be preserved for those already interred, but whether the public may be buried there going forward would depend on the original dedication and any plot conveyances, which involve fact findings and contract interpretation outside the scope of an AG opinion.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Health and Safety Code's cemetery provisions can change, so verify the current statutes before relying on any specific section or rule here.

What the opinion meant for those who asked

Landowners with an old cemetery on their property (what the opinion held for them): The opinion held that the general "cemetery" provisions of chapter 711 apply to such burial grounds, that they could convey the property but not in a way that interferes with the dedicated burial use, and that they must give reasonable visitation access under section 711.041.

People with relatives buried in these grounds (what the opinion held for them): The opinion confirmed a right of reasonable access to visit and that dedicated cemetery land must be preserved for those already interred, with the owner holding title partly in trust for them.

Anyone asking whether the public may still be buried there (what the opinion held for them): The opinion declined to answer in the abstract, explaining that this turns on the original dedication and existing plot conveyances, which require fact findings and contract interpretation beyond an AG opinion.

Common questions

Does Texas's cemetery statute reach a small, old, unorganized graveyard on private land?
The opinion concluded that the provisions of chapter 711 that speak broadly of "cemeteries" do apply to such places, while provisions aimed only at "cemetery organizations" do not.

Can a landowner sell property that includes an old cemetery?
Yes, under the common-law rule the opinion applied: the land may be conveyed, but the conveyance cannot interfere with its dedicated burial use, and the buyer takes it partly in trust for those entitled to burial there.

Do I have a right to visit a relative's grave on someone else's land?
The opinion pointed to section 711.041, which gives a person the right to reasonable access to visit a cemetery or private burial ground that has no public way in or out, during reasonable hours and for ordinary visitation.

Does an old cemetery stay a "public" cemetery forever?
The opinion found "public" ambiguous and declined to decide. Dedicated land must be preserved for those already buried, but whether new public burials are allowed depends on the original dedication and plot conveyances, which are fact and contract questions.

Background and statutory framework

Chapter 711 of the Health and Safety Code uses both "cemetery organization" (defined in section 711.001(3) as a nonprofit plot-owners' association or a corporation authorized to conduct cemetery business) and the broader term "cemetery" (section 711.001(2): a place used or intended for interment, including a graveyard, burial park, or mausoleum), with "burial park" and "cemetery purpose" also defined in section 711.001. Section 711.041 governs public access to cemeteries and private burial grounds. Section 711.039(a) presumes a conveyed plot to be the grantee's separate property, section 711.038 covers sales of plots by a cemetery association, and section 714.003 addresses abandoned plots in private cemeteries. The opinion built on Tex. Att'y Gen. Op. No. JC-0235 (2000) and the common-law dedication rule from Houston Oil Co. v. Williams, 57 S.W.2d 380 (Tex. Civ. App.-Texarkana 1933, writ ref'd) (quoting Hines v. Tennessee, 149 S.W. 1058 (Tenn. 1911)), and noted that fact and contract questions fall outside the opinion process (citing JC-0020, M-187, O-2911, JC-0032, DM-383, DM-192, JM-697).

Citations

Statutory provisions:

• Tex. Health & Safety Code Ann. §§ 711.001, 711.038, 711.039(a), 711.041, 714.003 (Vernon Supp. 2001)

Cases:

• Houston Oil Co. v. Williams, 57 S.W.2d 380 (Tex. Civ. App.-Texarkana 1933, writ ref'd)
• Hines v. Tennessee, 149 S.W. 1058 (Tenn. 1911)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. JC-0235 (2000); JC-0020 (1999); JC-0032 (1999); DM-383 (1996); DM-192 (1992); JM-697 (1987); M-187 (1968); O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0355
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0355.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

March 14, 2001

The Honorable David Cain
Chair, Committee on Administration
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0355

Re: Application of chapter 711 of the Health and Safety Code to cemeteries not dedicated under that chapter, and related questions (RQ-0304-JC)

Dear Senator Cain:

This office addressed a number of questions relating to cemeteries and their regulation in Attorney General Opinion JC-0235. See Tex. Att'y Gen. Op. No. JC-0235 (2000). Seeking clarification of that opinion, your predecessor in office asked a number of additional questions about the application of chapter 711 of the Health and Safety Code to cemeteries dedicated in the late nineteenth century and the effect of a cemetery dedication under common law. We conclude that the provisions in chapter 711 that refer broadly to cemeteries, as opposed to cemetery organizations, apply as a general matter to the kinds of cemeteries described in the request letter. Land dedicated as a cemetery under common law, as opposed to chapter 711, may be conveyed, but the conveyance may not interfere with the land's dedicated use. Section 711.041 requires the owner of a cemetery or private burial ground to provide reasonable public access for visiting purposes.

(Footnote: Letter from Honorable Chris Harris, Senator, Texas State Senate, to Honorable John Cornyn, Texas Attorney General (Oct. 25, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

First, your predecessor asked how chapter 711 applies to cemeteries, where burials were made in the late nineteenth century, that are now located within privately owned land. He explained that this small area of land "was once devoted to burials and evidence of burials exists on the site. This type of cemetery property has not been dedicated by a cemetery organization under Section 711.034, but may have been recorded and formally dedicated by deed to cemetery use prior to the Act." Request Letter, supra note 1, at 1. He also asked, "In a situation where a landowner owns property that contains a cemetery of the above described nature, does Chapter 711 of the Health and Safety Code apply to the cemetery?" Id. We answer these two questions together.

The request asks, in essence, whether chapter 711 applies to a cemetery that is not organized as a cemetery organization. Chapter 711 refers to both cemetery organizations and cemeteries and uses both terms. It defines the term "cemetery organization" in section 711.001(3) to mean "(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." TEX. HEALTH & SAFETY CODE ANN. § 711.001(3)(A), (B) (Vernon Supp. 2001). "Cemetery purpose" means "a purpose necessary or incidental to establishing, maintaining, managing, operating, improving, or conducting a cemetery, interring remains, or caring for, preserving, and embellishing cemetery property." Id. § 711.001(4). By contrast, the term "cemetery" is defined in section 711.001(2) to mean "a place that is used or intended to be used for interment, and includes a graveyard, burial park, or mausoleum." Id. § 711.001(2). "Burial park" means "a tract of land that is used or intended to be used for interment in graves." Id. § 711.001(1). Thus, in chapter 711, the term "cemetery" is broader in meaning than the term "cemetery organization" and includes places used for interment that are not formally organized.

In answer to your predecessor's questions, we believe that those provisions in chapter 711 that refer broadly to cemeteries apply as a general matter to the kinds of cemeteries he describes. The term "cemetery" is defined to embrace any "tract of land that is used or intended to be used for interment in graves." Id. § 711.001(1). On the other hand, the provisions dealing specifically with cemetery organizations apply only to those entities that fall within the section 711.001(3) definition of that term. As he has not asked about any particular provision of chapter 711, we do not address whether any specific statute applies only to cemetery organizations or more generally to all cemeteries.

Your predecessor also asked the following questions about the effect of a cemetery dedication under common law, as opposed to chapter 711:

Does a landowner of a property as described above act as a Trustee of the cemetery?

In a situation where the landowner of such property wishes to convey the entire property including the area used as cemetery, may the area of property used as cemetery be conveyed like any other property?

Request Letter, supra note 1, at 2.

We believe that Attorney General Opinion JC-0235 and the cases discussed in that opinion answer these questions. Although that opinion focused primarily on chapter 711, we also noted that "under the common law, the conveyance of land dedicated as a cemetery did not affect its use," citing Houston Oil Co. v. Williams, 57 S.W.2d 380, 384-85 (Tex. Civ. App.-Texarkana 1933, writ ref'd). That case includes the following statement:

It appears to be the rule 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."

Id. (citations omitted) (quoting Hines v. Tennessee, 149 S.W. 1058, 1059 (Tenn. 1911)). See generally 12 TEX. JUR. 3D Cemeteries §§ 12-13 (1993). In answer to your predecessor's questions, it appears that, under common law, land dedicated as a cemetery may be conveyed, but that the conveyance may not interfere with its dedicated use. Given this limitation on the use of the property, a person who takes title to the property is said to hold title "to some extent in trust for the benefit of those entitled to burial in it." Williams, 57 S.W.2d at 384-85.

Finally, your predecessor asked:

Do these types of cemeteries, once devoted to and used by the public, with or without recording or formal deeded dedication, remain public cemeteries by virtue of past use even though they [a]re located within private property?

Request Letter, supra, note 1, at 1. It is not clear to us what is meant by "public" cemetery, and whether this means, for example, a cemetery to which the public is allowed access for visitation purposes or a cemetery open to members of the public for burial. Section 711.041 governs public access to cemeteries and private burial grounds, providing:

Any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds. This right of access extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits.

TEX. HEALTH & SAFETY CODE ANN. § 711.041(a) (Vernon Supp. 2001). The owners of land surrounding the cemetery or private burial ground may designate reasonable routes for ingress and egress. Id. § 711.041(b). With respect to burial, land dedicated and used as a cemetery must be preserved as a burial ground for those who have already been interred there. See Williams, 57 S.W.2d at 384-85. Whether a land owner must permit members of the public to be interred in a cemetery, however, would depend upon the terms of the original dedication and existing plot conveyances, if any. See TEX. HEALTH & SAFETY CODE ANN. § 711.039(a) (Vernon Supp. 2001) ("A plot in which the exclusive right of sepulture is conveyed is presumed to be the separate property of the person named as grantee in the certificate of ownership or other instrument of conveyance."); see also id. §§ 711.038 (sale of plots by cemetery association); 714.003 (abandoned plots in private cemeteries). In the case of each particular cemetery, resolution of this issue would require findings of fact, and perhaps even contract interpretation, which are beyond the purview of an attorney general opinion.

(Footnote: See, e.g., Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make . . . factual determinations."); O-2911 (1940) at 2 ("[T]his . . . presents a fact question which we are unable to answer.").)

(Footnote: See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (contract interpretation beyond purview of this office); DM-383 (1996) at 2 (interpretation of contract not appropriate function for opinion process); DM-192 (1992) at 10 ("This office, in the exercise of its authority to issue legal opinions, does not construe contracts."); JM-697 (1987) at 6 ("review of contracts is not an appropriate function for the opinion process").)

SUMMARY

The provisions in chapter 711 of the Health and Safety Code that refer broadly to cemeteries, as opposed to cemetery organizations, apply as a general matter to the cemeteries dedicated in the late nineteenth century. Land dedicated as a cemetery under common law, as opposed to chapter 711, may be conveyed, but the conveyance may not interfere with the land's dedicated use. Section 711.041 requires the owner of a cemetery or private burial ground to provide reasonable public access for visiting purposes.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee