Can a Texas school district keep and maintain a historic cemetery found on its property?

Plain-English summary

This opinion grew out of the discovery known as the "Sugar Land 95." In April 2018, contractors working on a Fort Bend Independent School District construction site uncovered the skeletal remains of 95 individuals. Archeologists determined the site was an unmarked burial ground of the former Imperial State Prison Farm, and the remains were those of people from the state's convict-leasing system. After litigation and investigation, the District reinterred the remains where they were found in November 2019. The chair of the House Committee on Public Health, Senfronia Thompson, asked the Attorney General whether the District had authority to keep ownership and maintain the cemetery going forward.

The AG started by sorting the kinds of cemeteries Texas law recognizes. There are heavy requirements for anyone who goes into the business of operating a cemetery, including the perpetual-care-trust-fund rules for cemeteries that started operating on or after September 1, 1993. But nothing in the request suggested the District was going into the cemetery business or running a perpetual care cemetery. The relevant category was an "abandoned cemetery," which the statute defines as one not owned or operated by a cemetery organization, with no person legally responsible for its care, and not maintained by anyone. When such a cemetery is discovered, the finder must notify the county clerk, who notifies the Texas Historical Commission and records the notice. And critically, the property owner may not build improvements that would disturb the cemetery until the remains are removed under a written order of the state registrar and a district court.

The AG noted the District had followed exactly that path: it stopped construction, notified the Commission, filed the notice, obtained judicial approval to exhume, and ultimately chose to reinter the remains where found, modifying its construction plans to avoid the cemetery land. From there, the AG's legal conclusion was straightforward. The one firm prohibition is building over the graves. As long as the owner complies with that, the law generally does not forbid the owner from continuing to own the land and maintain the cemetery. The Legislature did create ways for other entities to take over in particular circumstances: a municipality may take possession of a cemetery that endangers public health, safety, comfort, or welfare; a county may spend public funds to maintain a cemetery at least 50 years old; and a nonprofit corporation may petition a district court for authority to restore, operate, and maintain a historic cemetery. But unless a municipality passed such a resolution or a court authorized a different entity, the District, which holds title to its school property through its trustees, could continue to maintain the cemetery.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify the current text of Health and Safety Code chapters 711-715 before relying on any specific rule here.

What the opinion meant for those who asked

The opinion answered an ownership-and-stewardship question for a school district and the legislators following the Sugar Land 95. For Fort Bend ISD, the reading at the time was that, having complied with the no-disturbance rule and reinterred the remains, it could keep its land and continue to maintain the cemetery. For municipalities and counties, the opinion laid out the specific statutory triggers under which they could take possession or fund maintenance. For preservation nonprofits, it described the petition route to gain court authority to restore and operate a historic cemetery. The AG framed the District's continuing authority as the default in the absence of one of those other actions, grounding it in the school-property title statute and the cemetery chapters of the Health and Safety Code.

Common questions

Q: Can a Texas school district keep a cemetery it discovers on its land?
A: Yes, generally, the AG concluded. The main legal limit is that the owner cannot build improvements that disturb the cemetery until the remains are removed under a court and state-registrar order. Having complied with that and reinterred the remains, Fort Bend ISD could continue to own the land and maintain the cemetery.

Q: What must a property owner do after finding human remains?
A: File notice of the discovery with the county clerk, who forwards it to the Texas Historical Commission and records it. The owner must not construct improvements that would disturb the cemetery until the remains are removed under a written order of the state registrar and a district court, with certain exceptions.

Q: Can someone else take over the cemetery?
A: In specific situations. A municipality may take possession of a cemetery within its boundaries or extraterritorial jurisdiction if it endangers public health, safety, comfort, or welfare. A county may use public funds to maintain a cemetery at least 50 years old. And a nonprofit may petition a district court for authority to restore, operate, and maintain a historic cemetery. Absent one of these, the District kept its maintenance authority.

Q: Did the District have to set up a perpetual care trust fund?
A: No, in the AG's reading. Those requirements apply to entities engaging in the cemetery business or operating a perpetual care cemetery. Nothing indicated the District was doing either, so the perpetual-care rules did not govern its maintenance of the discovered cemetery.

Background and statutory framework

The cemetery framework is in the Health and Safety Code, where § 711.001 defines abandoned, perpetual care, and unverified cemeteries; section 711.010 bars improvements disturbing a cemetery (and lets a court order removal or relocation under subsection (b)(3)); section 711.011 sets the notice procedure; and sections 711.021 and 712.021 govern cemetery corporations and perpetual care trust funds. The takeover paths are section 713.009 (municipal possession of an unkept or abandoned cemetery), section 713.028 (county maintenance of older cemeteries), and chapter 715 (nonprofit petitions to restore and operate a historic cemetery), with the historic-cemetery definition and designation in 13 Texas Administrative Code sections 22.1(15) and 22.6. The District's continuing title came from Education Code section 11.151(c). The factual and procedural history, including the reinterment decision and a nonsuit dispute, is recounted in In re Fort Bend Indep. Sch. Dist., 589 S.W.3d 301.

Citations and references

Statutory and regulatory provisions:

• Tex. Health & Safety Code ch. 711 (general cemetery provisions; §§ 711.001, 711.010, 711.011, 711.021); ch. 712 (perpetual care cemeteries)
• Tex. Health & Safety Code ch. 713 (§§ 713.009, 713.028); ch. 715 (historic cemetery preservation)
• Tex. Educ. Code § 11.151 (school district property)
• 13 Tex. Admin. Code §§ 22.1(15), 22.6 (historic cemetery definition and designation)

Case:

• In re Fort Bend Indep. Sch. Dist., 589 S.W.3d 301 (Tex. App.-Houston [1st Dist.] 2019, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0317
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0317.pdf

Original opinion text

June 15, 2020

The Honorable Senfronia Thompson
Chair, House Committee on Public Health
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0317

Re: Authority of Fort Bend Independent School District to maintain a historic cemetery discovered on a school construction site (RQ-0326-KP)

Dear Representative Thompson:

You ask about the authority of a school district to maintain ownership of a cemetery discovered on its property during construction.[1] You explain that in April of 2018, Fort Bend Independent School District ("the District") discovered the skeletal remains of 95 individuals at a school construction site. Request Letter at 1. You further explain that archeologists determined the site was "an unmarked burial ground of the former Imperial State Prison Farm" and that the remains were of individuals from "the state-sanctioned convict leasing system." Id. In November 2019, the District formally reinterred the remains at the burial site where originally found. Id. You ask about the District's ongoing authority to maintain the cemetery. Id.

Texas law recognizes various types of cemeteries and establishes different requirements for maintenance and operation depending on the cemetery at issue. See generally TEX. HEALTH & SAFETY CODE § 711.001(1), (30), (38) (defining, among other words, "abandoned cemetery," "perpetual care cemetery," and "unverified cemetery"). Significant requirements exist for individuals or entities that "engage in a business for cemetery purposes." Id. § 711.021 (titled "Formation of Corporation to Maintain and Operate Cemetery"). Generally, any cemetery that begins its operations on or after September 1, 1993, must operate as a "perpetual care cemetery," which requires a perpetual care trust fund for the general care, maintenance, embellishment, and establishment of the cemetery. See id. §§ 711.021(f), 712.021(c); see also id. §§ 711.001(30) (defining "perpetual care cemetery" as one "for the benefit of which a perpetual care trust fund is established"), 712.021(a)-(h) (explaining the requirements and purposes of a perpetual trust fund). No information provided with your request indicates that the District is "engag[ing] in a business" related to the discovered cemetery or intending to operate a perpetual care cemetery. See id. § 711.021(a).

Distinct from a perpetual care cemetery, the Legislature defines "abandoned cemetery" as "a cemetery, regardless of whether it appears on a map or in deed records, that is not owned or operated by a cemetery organization, does not have another person legally responsible for its care, and is not maintained by any person." Id. § 711.001(1). Upon discovery of an abandoned cemetery, a person must file notice of the discovery of the cemetery with the county clerk of the county in which the cemetery is located. Id. § 711.011(a).[2] The county clerk must send a copy of the notice to the Historical Commission ("the Commission") and file the notice in the deed records of the county. Id. § 711.011(c). "The owner of property on which an . . . abandoned cemetery is located may not construct improvements on the property in a manner that would disturb the cemetery until the human remains interred in the cemetery are removed under a written order" of the state registrar and a district court, with certain exceptions. Id. § 711.010(a).

Consistent with these requirements for abandoned cemeteries, when the District's contractors discovered the remains at the school construction site, the District stopped construction, notified the Commission, and filed the statutorily required notice of discovery of the cemetery. In re Fort Bend Indep. Sch. Dist., 589 S.W.3d 301, 304 (Tex. App.-Houston [1st Dist.] 2019, no pet.). The District received judicial approval to exhume the remains, and its investigation concluded "that there were ninety-five graves on the property and that the remains were likely from male African-American prisoners who were part of the state's convict-leasing program from the 1870s through 1911." Id. While the District considered moving the remains to a municipal cemetery on adjacent land, it ultimately decided to reinter the remains where found. Id. at 305, 308-09.[3] It modified its construction plans to avoid the cemetery land, and it currently maintains the cemetery designation on its property.[4]

The law prohibits a property owner who discovers human remains on his or her land from constructing improvements that would disturb the cemetery where the human remains are interred. TEX. HEALTH & SAFETY CODE § 711.010(a). However, if a property owner complies with this requirement, the law generally does not prohibit the property owner from continuing to own that land and maintain the cemetery.[5] The Legislature established procedures by which other entities may take possession and control of abandoned, unkept, or historic cemeteries in certain instances. A municipality may, by resolution, take possession and control of a cemetery within its boundaries or extraterritorial jurisdiction "if the cemetery threatens or endangers public health, safety, comfort, or welfare." Id. § 713.009(a) (titled "Local Possession and Control of Unkept or Abandoned Cemetery"). Separately, a county may use public funds to maintain a cemetery that is at least 50 years old. Id. § 713.028(a). In addition, a nonprofit corporation may petition the district court of the county in which a historic cemetery is located for authority to "restore, operate, and maintain the cemetery." Id. § 715.002; see 13 TEX. ADMIN. CODE § 22.1(15) (defining "historic cemetery" as "a cemetery with at least one grave that is 50 years old or older"), id. § 22.6 (establishing procedure for designation as a historic cemetery). The nonprofit corporation must include with its petition a written plan describing the actions it will take regarding the cemetery and other details of operation. TEX. HEALTH & SAFETY CODE § 715.005. Upon making certain findings, a court may issue an order authorizing the nonprofit to "restore, operate, and maintain the cemetery." Id. § 715.008(a). In the absence of a municipal resolution taking possession of the cemetery or a court order authorizing a different entity to maintain the cemetery, the District may continue to maintain the cemetery. See TEX. EDUC. CODE § 11.151(c) ("All rights and titles to the school property of the district . . . shall be vested in the trustees and their successors in office.").

[1] See Letter from Honorable Senfronia Thompson, Chair, House Comm. on Pub. Health, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 20, 2019) ("Request Letter").

[2] See Tex. Historical Comm'n, "Notice of Existence of Cemetery Form" (Instructions & Sample).

[3] Once the district decided to reinter the remains where found, it filed a notice of nonsuit in the district court. In re Fort Bend Indep. Sch. Dist., 589 S.W.3d at 311. Unless collateral matters remain, a nonsuit extinguishes a case or controversy from the moment the motion is filed or an oral motion is made in open court; the only requirement is the mere filing of the motion with the clerk of the court. Id. at 310 (quotation marks and citation omitted). Despite the nonsuit and no collateral issues, "the trial court continued to exercise jurisdiction over the merits of the suit and to make appointments of a guardian ad litem and master in chancery." Id. at 311. The Court of Appeals ordered the trial court to vacate those orders and dismiss the underlying proceeding. Id. at 312.

[4] See Fort Bend Indep. Sch. Dist., The Sugar Land 95: Historic cemetery discovered at the construction site of the James Reese Career & Tech. Center.

[5] With regard to an abandoned cemetery, a district court may order the removal of any dedication of land for cemetery purposes and move the human remains to "any other place on the owner's property that the district court finds is in the public interest." TEX. HEALTH & SAFETY CODE § 711.010(b)(3).

S U M M A R Y

The Legislature prohibits an owner of property on which an abandoned cemetery has been discovered from constructing improvements on the property in a manner that would disturb the cemetery. If a property owner complies with this requirement, the law generally does not prohibit the property owner from maintaining the cemetery on the land.

Pursuant to Health & Safety Code section 713.009, a municipality may, by resolution, take possession and control of a cemetery within its boundaries or extraterritorial jurisdiction if the cemetery threatens or endangers public health, safety, comfort, or welfare. Chapter 715 of the Health and Safety Code authorizes a district court to, upon making certain findings, issue an order authorizing a nonprofit corporation to restore, operate, and maintain a historic cemetery. In the absence of a municipal resolution taking possession of the cemetery or a court order authorizing a different entity to maintain the cemetery, the Fort Bend Independent School District may continue to maintain the cemetery discovered on its land in 2018.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee