TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 22. CEMETERIES

The Texas Historical Commission (hereafter referred to as the Commission) proposed amendments to §§22.1 - 22.4 and 22.6 of Title 13, Part 2, Chapter 13 of the Texas Administrative Code (relating to Cemeteries). These changes are needed to update definitions, remove definitions not used in Chapter 22, and clarify language as needed in §22.1; remove unnecessary language and make corrections to §22.2; clarify and specify Commission's role in abatement of a cemetery as a nuisance and options in such cases in §22.3; correct cross-references to the Health and Safety Code and add more accurate and specific language to §22.4; and update procedures for Historic Texas Cemetery (HTC) designations and add procedures to §22.6 for the new Historic Texas Freedmen's Cemetery (HTFC) designation, which was added to Chapter 442 of the Government Code by adoption of Senate Bill 217 by the 89th Texas Legislature.

FISCAL NOTE. Joseph Bell, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

PUBLIC BENEFIT. Mr. Bell has also determined that for the first five-year period the amended rule is in effect, the public benefit will be more accurate and clearer definitions for Chapter 22, and greater clarity regarding the Commission's authority of cemeteries; the Commission's role in abatement of a cemetery as a nuisance and options in such cases; regarding unknown, abandoned, and unverified cemeteries; insert; and regarding procedures for Historic Texas Cemeteries and adopted procedures for Historic Texas Freedmen's Cemeteries.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Bell has also determined that there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing these rules. Accordingly, no regulatory flexibility analysis, as specified in Texas Government Code § 2006.002, is required.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules, as proposed. There is no effect on local economy for the first five years that the proposed new section is in effect; therefore, no local employment impact statement is required under Texas Government Code § 2001.022 and 2001.024(a)(6).

GOVERNMENT GROWTH IMPACT STATEMENT. During the first five years that the amendments would be in effect, the proposed amendments: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendments would be in effect, the proposed amendments will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. The Commission has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, § 2007.043.

PUBLIC COMMENT. Comments on the proposal and as to whether the reasons for initially adopting these rules continue to exist may be submitted to Joseph Bell, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

STATUTORY AUTHORITY. These amendments are proposed under the authority of Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission, and Texas Government Code §442.302(h), which requires the Commission to establish a Historic Texas Freedmen's Designation Program.

CROSS REFERENCE TO OTHER LAW. No other statutes, articles, or codes are affected by these amendments.

§22.1. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) "Abandoned cemetery" means a non-perpetual care cemetery containing one or more graves and possessing cemetery elements for which no cemetery organization exists and which is not otherwise maintained by any caretakers. It may or may not be recorded in deed records of the county in which it lies.

(2) "Antiquities Permit" means a permit issued by the Texas Historical Commission under the jurisdiction of the Antiquities Code of Texas, Natural Resources Code Ch. [ch.] 191.

(3) [(4)] "Burials" and "Burial pits" mean marked and unmarked locales of a human burial or burials [set aside for a human burial or burials purposes]. Burials and burial pits may contain the remains of one or more individuals located in a common grave in a locale. The site area [encompasses the human remains present and also] may contain gravestones, markers, containers, coverings, garments, vessels, tools, and other grave objects [which may be present] or could be evidenced by the presence of depressions, pit feature stains, or other archeological evidence.

(4) [(5)] "Cemetery" means a place that is used or intended to be used for interment, and includes a graveyard, burial park, unknown cemetery, abandoned cemetery, mausoleum, or any other area containing one or more graves or unidentified graves.

(5) [(6)] "Commission" means the Texas Historical Commission.

(6) [(7)] "Declaration of Dedication" means a notarized statement submitted to the appropriate county clerk's office, in which the state verifies and acknowledges that the named cemetery contains human burials at least 50 years old.

(7) [(9)] "Disinterment Permit" means a permit issued by the State Registrar of Vital Statistics, Texas Department of State Health Services, that authorizes the exhumation of human remains from a grave location.

(8) [(10)] "Family cemetery" means a cemetery containing members of a single family or kinship group, usually located on land belonging to the family or occupied by the family when established.

(9) [(11)] "Funerary objects" means physical objects associated with a burial, such as a casket, whether whole or deteriorated into pieces, personal effects, ceremonial objects, and any other objects interred with human remains.

(10) [(12)] "Grave" means a space of ground that contains interred human remains or is in a burial park and this is used or intended to be used for interment of human remains in the ground.

(11) [(13)] "Identified grave" means a grave that is marked with name of the individual interred in the grave or for which there is other evidence of the name of the individual interred in the grave.

(12) [(14)] "Interment" means the permanent disposition of human remains by entombment, burial, or placement in a niche, but does not include the location of displaced or disarticulated human remains.

(13) [(15)] "Historic cemetery" means a cemetery with at least one grave that is 50 years old or older.

(14) [(16)] "Human remains" means the body of a decedent.

(15) [(17)] "Marked grave" means a grave that has some physical object or objects identifying it as a grave, including a headstone, wooden or metal marker, arrangement of field stones, plantings, or other such indicia, whether or not the individual in the grave is identified.

(16) [(18)] "Nonperpetual care cemetery" means a cemetery that is not a perpetual care cemetery.

(17) [(20)] "Perpetual care cemetery" [or "endowment care cemetery"] means a cemetery for the benefit of which a perpetual care trust fund is established as provided by Chapter 712 of the Health and Safety Code.

(18) [(21)] "Physical anthropologist" means an archeologist certified by the Register of Professional Archeologists (RPA) for the level of required investigation; anyone determined a professional archeologist by the state archeologist, according to the criteria of the RPA; or anyone meeting required qualifications and standards detailed in pertinent state rules (§26.4 of this title) or federal requirements specified in the Secretary of Interior's Professional Qualifications Standards (36 CFR Part 61, Appendix A) for archeological investigations [individual who has a graduate degree in anthropology or archaeology with a concentration of study in the assessment of human skeletal remains. This person must be qualified to obtain measurements of the skeleton and obtain a biological profile, including sex, age, ancestry, stature, and anomalous pathological and traumatic conditions].

(19) [(22)] "Professional archeologist" means an individual who has a degree in anthropology, archeology, or a closely related field if that degree also included formal training in archeological field methods, research, and site interpretation, and who conducts archeological investigations as a vocation.

(21) [(23)] "Unidentified grave" means a grave that is not marked in a manner that provides the identity of the interment.

(22) [(24)] "Unknown cemetery" means an abandoned cemetery evidenced by the presence of marked or unmarked graves that does not appear on a map or in deed records.

(23) [(25)] "Unverified cemetery" means a location having some evidence of human burial interments, but in which the presence of one or more unmarked graves has not been verified by a person described by §711.0105(a) of the Health and Safety Code of Texas or by the commission.

(24) [(26)] "Verified cemetery" means the location of a human burial interment or interments as verified by the commission.

§22.2. Authority of Commission.

(a) Section 22.3 and §22.6 of this title (relating to Abatement of Cemetery as Nuisance and Historic Texas Cemeteries) withstanding, the [The] authority of the Commission and this chapter apply only to non-perpetual care cemeteries. Its authority includes previously unknown cemeteries, abandoned cemeteries, and unverified cemeteries, and all other graves not located in a perpetual care cemetery.

(b) For information concerning perpetual care cemeteries, members of the public should contact the Texas Department of Banking [Finance Commission or the Texas Funeral Services Commission].

§22.3. Abatement of Cemetery as Nuisance.

(a) If the Commission receives notice of legal action under Health and Safety Code §711.007 to abate a cemetery as a nuisance, the Commission will commence an investigation to determine whether it should request the Attorney General of Texas to intervene on the Commission's behalf in the legal action.

(b) In its investigation, the Commission will attempt to determine:

(1) whether the cemetery contains marked, unmarked, and/or unverified graves that are more than 50 years old;

(2) whether the cemetery has historical significance to the local area or the State;

(3) whether repair and restoration of the cemetery is physically possible;

(4) whether the cost of repair and restoration of the cemetery is unreasonable;

(5) whether there is a cemetery organization or other party financially responsible for the repair and restoration of the cemetery;

(6) whether the cemetery is used or maintained in violation of Health and Safety Code Chapter 711 or 712;

(7) whether the cemetery is neglected so that it is offensive to the inhabitants of the surrounding section; and

(8) the impact to affected parties of the removal of the graves to a perpetual care cemetery and abatement of the cemetery.

(c) The Commission may present the results of its investigation to the Court whether or not it intervenes in the lawsuit.

(d) If the court determines that the cemetery is a nuisance and must be abated by repair and restoration, all [All] repairs and restoration in a non-perpetual care cemetery should comply with the Standards for Preservation of Historic Cemeteries, published by the Texas Historical Commission.

(e) If the court or governing body of the municipality authorizes abatement of the cemetery nuisance by removal of the cemetery to a perpetual care cemetery, [The extent allowed by the rules of the perpetual care cemetery to which the remains are moved,] the original relationship of the various elements of the cemetery, such as monuments and fencing, should be retained and reinstalled in the perpetual care cemetery to the extent allowed by its rules.

§22.4. Unknown, Abandoned, and Unverified Cemeteries.

(a) Discovery of Unknown or Abandoned Cemeteries. §711.011 [§711.010] of the Health and Safety Code requires that a person who discovers an unknown or abandoned cemetery shall file notice of the discovery of the cemetery with the county clerk of the county in which the cemetery is located and concurrently mail notice to the landowner on record in the county appraisal district not later than the 10th day after the date of the discovery. The notice must contain a legal description of the land on which the unknown or abandoned cemetery was found and describe the approximate location of the cemetery and the evidence of the cemetery that was discovered.

(1) The Commission may provide assistance to any party required to file this notice.

(2) The Notice of Existence of Cemetery form available on the Commission's website may be used to file this notice.

(3) The county clerk must provide a copy of the notice to the Commission within 15 days after the filing of the notice with the clerk, by mailing it to the following address: Cemetery Preservation Coordinator, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711-2276.

(b) If one or more graves are discovered during construction of improvements on a property, construction must stop and may only proceed in a manner that would not further disturb the grave or graves unless the graves are removed in accordance with §711.010 and §711.0105 of the Health and Safety Code.

(c) Agricultural (including ranching), construction, utility lines, industrial, and mining operations may not be conducted in a manner that will disturb a grave , grave marker, burial pit, or cemetery unless the graves and dedication of the cemetery are removed in accordance with §711.010 [§711.035] of the Health and Safety Code.

(d) Discovery of Unverified Cemeteries. Section 711.0111 of the Health and Safety Code of Texas requires that any person that discovers an unverified cemetery shall file a notice and evidence of the discovery with the commission on a form provided by the commission. Section 711.0111 also requires that any person that discovers an unverified cemetery shall concurrently provide a copy of the notice of the filing with the landowner on record in the county appraisal district on whose land the unverified cemetery is located. The commission shall evaluate the notice and the evidence submitted with the notice, and consider the response of the landowner, if any is received not later than the 30th day after notice, and shall determine whether there is sufficient evidence to support the claim of the existence of a cemetery. If the commission determines that sufficient evidence supports the existence of a cemetery, the commission shall notify the landowner and may file notice of the existence of the cemetery under §711.011 of the Health and Safety Code. If a notice of existence has already been filed under §711.011 and the commission has determined that there is not sufficient evidence of a cemetery the commission shall notify the landowner of its determination, amend the notice to include the commission's determination, and file the amendment with the county clerk to correct the dedication.

(1) The Commission may provide assistance to a person required to file this notice.

(2) The Notice of Unverified Cemetery form, which is available on the Commission's website, shall be used to file this notice.

(3) The Texas Historical Commission, with consent of the landowner, may investigate a suspected but unverified cemetery or may delegate the investigation to a qualified person described by §711.0105(a).

(e) The commission shall use one or more of the following criteria when assessing the verification of the existence of a cemetery:

(1) the location contains interment(s) that is/are confirmed through archival or field assessments or investigations consented by the landowner and performed by a professional archeologist or other individuals as defined by §711.0105(a) of the Health and Safety Code of Texas;

(2) the location contains human burial caskets or other containers or vessels that contain human remains or are contextually known to have been used to inter human remains;

(3) the location contains articulated human remains that were deliberately interred; or

(4) the location contains a burial pit or burial pit features.

§22.6. Historic Texas Cemeteries.

(a) Any cemetery that is deemed worthy of recognition and preservation for its historic associations is eligible for designation as a Historic Texas Cemetery. The purpose of this designation is to alert the public, as well as present and future owners of land adjacent to the cemetery of the existence of the cemetery. Such cemeteries are eligible for this status if established at least 50 years before the date of application. The Commission [History Programs Committee] may waive the age requirement for cemeteries that are deemed to be exceptionally significant. Designation as a Historic Texas Cemetery does not restrict in any way the private owner's use of the land outside the cemetery boundaries.

(c) [(b)] Any individual, organization, or agency may submit an application for designation. The Commission shall notify the owner of the property containing a cemetery, [or] adjacent landowners having common boundaries with the cemetery, and the cemetery organization (if applicable) about the proposed designation.

(d) [(c)] Applications for [Historic Texas Cemetery] designation are available [at the Commission or] on the Commission's website. Completed applications, along with the processing fee of $25 (twenty-five dollars), shall be sent to the Commission for processing and review. The Commission will notify County Historical Commissions [will be notified] of applications submitted for cemeteries in their county and will be provided a copy of the application materials. The Commission may request further documentation if necessary. The burden of proof of the existence of an eligible [the] cemetery is on the applicant. If the application is accepted for designation, the applicant will be sent a Declaration of Dedication to be filed with the appropriate county clerk's office. The applicant must forward to the Commission a copy of the recorded Declaration of Dedication and exhibit(s) which include the filing date and recording data. [Applications rejected because of ineligibility may be reviewed by the History Programs Committee upon the request of the applicant.] The cemetery will be officially recognized as a Historic Texas Cemetery or a Historic Texas Freedmen's Cemetery once certified by the Commission at a quarterly meeting [when the applicant forwards a copy of the recorded Declaration of Dedication and exhibits which include the filing date and recording data].

(e) [(d)] Designation [as a Historic Texas Cemetery] must be based on complete documentation of the cemetery's eligibility as outlined in the application form available from the Commission. Examples of documentation that may be requested include deed and title, historic map(s), [plot records,] archival documents, photographs, oral histories, genealogical records, and archeological data.

(f) [(e)] The [Historic Texas Cemetery] designation may be removed only by action of the Commission or by an order of the court of proper jurisdiction removing the dedication or permitting the removal of the cemetery and the return of the land to other purposes. A transfer of ownership does not result in a removal of the dedication.

(g) [(f)] Adesignated cemetery [Historic Texas Cemetery] may be further recognized with an Official Historic Texas Cemetery Marker, available for purchase through the Commission. The marker shall be placed in accordance with §21.7 of this title (relating to Application Requirements) and §21.9 of this title (relating to Application Evaluation Procedures).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 27, 2026.

TRD-202601022

Joseph Bell

Executive Director

Texas Historical Commission

Earliest possible date of adoption: April 12, 2026

For further information, please call: (512) 463-6100