The Texas Historical Commission proposes new Chapter 22, Cemeteries, including §22.1, relating to Definitions, §22.2, relating to Authority of Commission, §22.3, relating to Abatement of Cemetery as Nuisance, §22.4, relating to Unknown and Abandoned Cemeteries, §22.5, relating to Removal of Remains, and §22.6, relating to Historic Texas Cemeteries (which is being repealed as §21.12 in a separate proposal at a later date), to contain rules concerning discovery notification, permits for, and requirements related to the removal of unknown and abandoned cemeteries and graves. The purpose of the rules is to implement changes to the law regarding cemeteries made by House Bill 2927, 81st Texas Legislature, 2009.

Section 22.1 adds definitions of "abandoned cemetery," "Commission," "grave," "grave goods," "family cemetery," "identified grave," "marked grave," "professional archeologist," "state registrar," "unknown cemetery," and "unmarked grave." Section 22.2 states that the authority of the Commission is limited to non-perpetual care cemeteries. It refers interested parties to the Texas Funeral Services Commission regarding perpetual care cemeteries and to the appropriate city or county government for municipal or county cemeteries. Section 22.3 deals with Abatement of a Cemetery as a Nuisance. It provides that, if the Commission receives notice of a legal action to abate a cemetery, it will investigate the action and determine if it should ask the Attorney General to intervene on its behalf. In its investigation, the Commission will attempt to determine if the cemetery contains graves that are more than 50 years old, if the cemetery has historical significance, whether the preservation or restoration of the cemetery is physically or financially reasonable, whether there is a cemetery organization that is financially responsible for the cemetery, whether the cemetery is a public nuisance, whether the cemetery is offensive to the neighboring inhabitants, and the impact to affected parties of the removal of the graves to a perpetual care cemetery and abatement of the cemetery. The Commission may present the results of its investigation to the Court whether or not it intervenes. Repairs and restoration must comply with the Standard of Preservation of Historic Cemeteries. Section 22.4 relates to Unknown or Abandoned Cemeteries. A person discovering an abandoned or previously unknown cemetery is required to file notice of the cemetery with the county clerk within 10 days of discovery. A form for the notice is available from the Commission. The county clerk must provide notice of the filing to the Commission. If a grave is discovered during construction, the construction must either proceed in a manner that would not further disturb the grave or stop until the grave is removed in accordance with this chapter. Agricultural, industrial, or mining operations may not be conducted in a manner that will disturb a grave or cemetery unless the grave or cemetery is removed in accordance with the chapter. Section 22.5 relates to the Removal of Remains. Permits for removal of remains within the jurisdiction of the Commission must be obtained from the Department of State Health Services. The Commission may consider alternatives to removal of remains such as preservation in place. If remains are identified, the Commission will notify the State Registrar. The section describes the methods for removal of remains in permitted projects, where an antiquities permit has been issued by the Commission. The removal must be conducted by a professional archeologist. Federal laws concerning archeological research must be observed. The graves and cemetery details must be documented and notice provided to the county clerk or Commission, as appropriate. For removal of remains outside permitted projects, the removal may be made by a cemetery keeper, licensed funeral director, medical examiner, coroner, or professional archeologist. Notice should be provided in accordance with the section. Remains may be removed in emergencies and held at a secure location pending final disposition in accordance with the section. The section does not apply to remains reburied in the same cemetery as permitted by law. Section 22.6 relates to Historic Texas Cemeteries. This section is moved from Chapter 21 (§21.12) to Chapter 22. The section provides a process for identifying, recognizing, and marking cemeteries that are deemed worthy of recognition and preservation for their historic associations. Any person may file an application for the designation. The Commission will notify adjacent landowners and investigate the application. The application may be approved by the Commission. An official Historic Texas Cemetery marker is available from the Commission.

Mark Wolfe, Executive Director, has determined that for the first five-year period the sections as proposed are in effect, there will be fiscal implications as a result of enforcing or administering these rules for state or local governments. These costs would only be incurred by those agencies that discover human graves and cemeteries in the course of their normal activities. The fiscal impact results primarily from the change in the law enacted by House Bill 2927, as noted above, and these sections largely implement that Act without modifying its fiscal impact. Data does not exist to provide total impact estimates, but impact on a case-by-case basis is provided.

There will be an impact on the Department of State Health Services for additional disinterment permits to be processed. The total number of additional permits will depend on the number of remains discovered, and no data exist for that.

There will be additional cost to county clerks for the filing of notice of existence of cemetery in the county where the cemetery is found. The clerks are not allowed to charge a fee for this filing, so the cost will be absorbed by the clerks. Since the number of filings in each county is estimated to be fewer than ten, the cost of each additional filing is estimated to be negligible.

There will be additional cost to state and local governments undertaking construction projects that disturb or uncover human remains. The costs of removal or remediation of the impact on the graves is likely to be borne by the governmental entity rather than the private contractor performing the work, which would pass the cost through. Since there is no way to estimate the number of times that graves will be encountered during these projects, a total fiscal impact cannot be estimated. For each set of human remains found, the governmental entity will have to obtain an order from a district court allowing the removal and reburial of the remains in a perpetual care cemetery or for its return to the next of kin or an affiliated tribal group. Legal costs for each grave are estimated to be $1,000. The cost of reburial of each remains in a perpetual care cemetery is estimated to be $5,000.

Mr. Wolfe has determined that the rules will not have an impact on local employment, small businesses, microbusinesses, or individuals.

Mr. Wolfe also anticipates that the public will benefit from added protection of the graves and cemeteries where the ancestors of most Texas citizens are buried.

Comments on the proposal may be submitted to Mark Wolfe, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711-2276.

The new rules are proposed under §711.012(c), Texas Health and Safety Code, §191.052, Texas Natural Resources Code, and §442.005, Texas Government Code, which authorize the Texas Historical Commission to promulgate rules for its programs and regarding the regulation of cemeteries.

The proposal will affect Texas Health and Safety Code Chapters 711, 712, and 713.