| (a) §711.010 of the Health and Safety Code requires
that, 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 may order the 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. If a court orders the
removal of a dedication of a cemetery and all human remains in that
cemetery have not previously been removed, the court shall order the
removal of the human remains from the cemetery to a perpetual care
cemetery or a municipal or county cemetery.
(b) Commission role in removal of remains.
(1) The Commission may consider alternatives to the
removal of human remains such as preservation of the remains in place
and recommend to the State Registrar that a disinterment permit not
be issued.
(2) The Commission shall ensure that a reasonable effort
has been made to identify the remains and that the next of kin is
notified if the name of the decedent is determined.
(c) Method of Removal of Remains.
(1) When human remains are to be removed under a disinterment
permit from the State Registrar, the exhumation of graves must take
place as required by this section.
(2) Removal of remains for Antiquities Code permitted
projects.
(A) When removal of remains is requested during a project
with an Antiquities Permit under Chapter 26 of this title (relating
to Rules of Practice and Procedures) and under the jurisdiction of
the Health and Safety Code of Texas, graves must be removed under
the procedures described in §711.0105.
(B) Remains must be exhumed by a professional archeologist,
and, when appropriate, with the assistance of a physical anthropologist,
who is capable of gathering basic demographic data from the human
remains being exhumed. Additionally, casket morphology, casket hardware,
and any funerary objects must be examined and identified in a report.
This policy applies to both marked and unmarked graves unless otherwise
specified by the Commission.
(C) Unless otherwise specified, all physical anthropological
investigations of human remains that fall under the Commission's jurisdiction
will use noninvasive techniques. If invasive techniques are proposed,
the Commission must give approval.
(D) Funerary objects will be reburied with the human
remains after they have been documented unless the Commission approves
other disposition.
(E) Decisions regarding the appropriateness of the
reburial of human remains will be made in consultation with the Commission,
but the Commission has no formal role in decisions about the methods
or ceremonies associated with reburials.
(F) A reasonable, good faith effort should be made
to define the boundaries of the cemetery within all accessible portions
of land on which a previously unknown or abandoned cemetery exists.
(i) If the cemetery is being investigated for compliance
with state or federal environmental or cultural resource laws, the
investigator need only document those portions of the cemetery within
the project area.
(ii) If the cemetery is being investigated for compliance
with state or federal environmental or cultural resource laws, complete
definition of a cemetery's boundaries may be deferred until previously
inaccessible portions of the cemetery are made accessible during construction.
(iii) Notice of the cemetery's location shall be sent
to the THC and concurrently to the landowner on record in the county's
appraisal district within 10 days following completion of discovery
efforts.
(G) For cemeteries 50 years in age or older or whose
age cannot be determined, a cemetery record for the Texas Historic
Sites Atlas and request for a cemetery number or a Texas Archeological
Research Laboratory trinomial shall be completed and submitted to
the Commission. The survey shall record all "cemetery elements" to
be moved in drawings and photographic record. Both the drawings and
photographic record should be in a form that is expected to last seventy-five
years or longer.
(i) The site record or request for a cemetery number
shall be submitted within ten days of completion of fieldwork at the
cemetery.
(ii) Upon receipt of an official number for the cemetery,
the recorder shall submit a formal notice of the number to the county
clerk.
(iii) The formal notice to the county clerk shall take
the form of a notice to be placed in the county deed record files
that documents the assignment of a cemetery number to a cemetery in
the county and instructs interested parties to contact the commission
for further information.
(H) For unmarked graves found during projects under
the jurisdiction of the National Historic Preservation Act, 16 U.S.C. §470,
et seq., (hereafter NHPA) and/or Native American Graves Protection
and Repatriation Act, 25 U.S.C. §3001, et seq., (hereafter NAGPRA),
the final disposition of remains will be determined in consultation
with appropriate federally-recognized tribes and other appropriate
consulting parties. Agencies may satisfy this requirement through
their regular consultation process for compliance with these laws.
(3) Removal of remains outside Antiquities permitted
projects.
(A) The exhumation of identified graves in a cemetery
where a cemetery organization or other governing body exists or in
a family cemetery may be performed by a cemetery keeper, licensed
funeral director, medical examiner, coroner or professional archeologist.
(B) The exhumation of unmarked graves should be performed
by a professional archeologist and, when appropriate, with the assistance
of a physical anthropologist who is capable of gathering basic demographic
data (i.e., sex, age, height, possible cause of death, etc.) from
the human remains being exhumed.
(C) Notice of exhumation of graves shall be made in
accordance with subsection (c)(2) of this section.
(d) If remains are to be reburied in the same cemetery
as permitted by law, this section does not apply.
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