Section 22.5 - Removal of Remains from an Abandoned or Unknown Cemetery(a) § RSA 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.13 Tex. Admin. Code § 22.5
The provisions of this §22.5 adopted to be effective May 20, 2010, 35 TexReg 3809; Amended by Texas Register, Volume 42, Number 52, December 29, 2017, TexReg 7686, eff. 1/2/2018