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A Grave Matter: The Law of the Texas Cemetery

A Grave Matter: The Law of the Texas Cemetery

I visited an historical cemetery once for a school project in sixth grade. Our class was studying a local historical figure — sadly, I cannot remember who — and the teacher offered extra credit for any student who visited the historical figure’s gravesite and made a rubbing of the headstone to turn in as proof of their visit. Admittedly in need of the extra credit, I made such a visit.

Upon finding the headstone, I realized that this teacher, and perhaps others, had been offering this type of extra credit for quite some time; the headstone was marred by stray chalk and crayon marks of every color, no doubt left by credit-seeking students hurriedly making their evidentiary rubbings. I remember being saddened by the sight of the graffitied headstone, thinking how disappointed the historical figure might be to know that their grave had essentially become part of a schoolchildren’s scavenger hunt. I did not, at the time, think of that person’s living relatives, or of how they might feel — perhaps because the historical figure had long been dead, and any living relatives would not have known them personally. But having since visited the graves of some of my own relatives, I now consider gravesites as being meant more for the living than for the dead. Apparently, the law recognizes this aspect, too, because cemetery law protects the interests of the living, as well as those of the dead.

For example, in Texas, it is a crime to intentionally or knowingly make, without the owner’s consent, “markings, including inscriptions, slogans, drawings, or paintings,” on a place of human burial, but only if the markings are made with paint, an indelible marker, or an etching or engraving device, or if the markings cause $750 or more in damage to the burial place. While criminalizing the graffitiing of burial places may seem equally beneficial for the dead who are interred there and for the living who visit them, we’ll tally this one in the column for the living because the “owner” who may consent to the graffiti must be a living person. Incidentally, in the case of the extra credit assignment discussed above, perhaps no single student caused $750 or more in damages, but the cumulative effect of multiple students’ rubbings certainly may have. I wonder if the teacher could be held liable under those circumstances.

Another Texas cemetery law, seemingly for the benefit of the living, permits any person, not just a relative, to visit a cemetery or private burial ground, even if there is no public access and the visitor must cross private property to access the site. The property owner may limit the visitation hours and designate the route visitors must take, but they cannot prevent visitors from entering their property.

Other laws seem to benefit the dead more than the living. For example, Texas law criminalizes the abuse of a corpse. The “abuse” described by the applicable statute is somewhat broader than that term would suggest, as it includes the disturbing, treating in an offensive manner, improperly concealing, or selling or buying of a human corpse.

There are surprisingly many other laws relating to death and burial in Texas. Sometimes it is difficult to determine whether it was the interests of the living or the dead that was in the hearts and minds of the legislators who created such laws, but one thing is for certain: death. Oh, and taxes. Two things. And I think I just remember whose headstone it was I made a rubbing of back in sixth grade — Cardinal Ximenez. No, that’s a joke. I still don’t remember.

Happy Halloween!

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.

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