The Office of Vince Ryan ‘County Attorney January 30, 2017 TO: Janet K. Wegner, Chair Haris County Historical Commission FROM: Glen Van Slyke Assistant County Attomey RE: Aldine Cemetery (Removal of Grave Markers) ‘The purpose of this memorandum is to summarize current Texas law concerning the removal of grave markers from a cemetery by the owner of the land on which the cemetery is or the located, without the consent of the owners of cemetery plots on which the markers were: located, descendants of those buried in those plots. This memorandum is addressed to you in. your capacity as Chair of the Harris County Historical Comission, which has among. its ‘purposes recognized by the Texas Legislature rendering assisance to County Commissioners Courts and the Texas Historical Commission (THC) in the preservation of our historic and cultural resources, including historic Texas cemeteries in our county, as set forth in the Texas Local Government Code, Chapter 318. ‘The factual situation you have asked me to address involves the Aldine Cemetery, located fn Aldine Meadows Road in Houston, The cemetery is localed on an approximately S-acre (217,800 square feet tract of land, described as Lot 12 in Mageolia Gardens. Except for burials and grave markers, itis unimproved. The cemetery was created on January 28, 1911, by a deed from the landowmer, Ferris W. Colby, to Harry Ashton, F.W. Roush, and Walter P. Baynes, Trustees, and their successors, “to hold the above deseribed proxerty forthe people of the above ‘mentioned district, for cemetery purposes, forever. (Harris County Deed Records, Vol. 264, pe, 152), The deed authorized the trustees to fence and improve the property, maintain it for ‘cemetery purposes, prevent it from being used for improper purposes, and subdivide it into cemetery lots. At least 30 identified persons were buried there between 1914 and 2005, and at 1 1019 Congress, 15% Floor + Houstor, Tevas 77002 + Phone: 713-755-5101 + Fax: 713-755-8924least ten (10) grave markers were placed there, according to the “Find A Grave” ‘website uips/ von findagrave,com/cgibin/fee¢i?pagererdCRid~20754CSen=Aldine-Cemet exrtdeCScntry=4&CSst=468. Because itis more than 50 years old, Aldine Cemetery is eligible for designation by the Texas Historical Commission ss a “Historic Texas Cemetery.” 13 ‘Tex.Admin,Code Rule 22.6(8) Sixty-four years afer its dedication, the S-acre tract was conveyed on August 29, 1975, bby Roy B. Howerton and Gordon L. Ginn, acting as partners of “Aldine Cemetery Association, ‘A Partnership,” to Foresthaven Cemetery Corporation ("Foresthaven”), “save and except the south 30 feet of said lot Twelve (12).” The excepted portion joins Aldine Meadows Road, & private road, and the Find A Grave website indicates “some graves lost due to road expansion” — 1 possible explanation for excepting the 30-foot stip. The conveyance was “made and accepted subject oils prior dedication asa cemetery under the laws of the State of Texas.” (Harris County Deed Records, File No. E544468, Film Code 127-08-1579) The parties later filed a correction deed, dated November 12, 1981, stating that the reference to its “prior dedication as a cemetery” ‘was only intended to limit the warranty of the grantors, “but not to ratify, approve or republish ‘any restrictions theretofore applicable to the real propery.” (Haris County Deed Records, File ‘No. H230303, Film Code 20-95-0090). Although only seven (7) of the 30 known persons buried in Aldine Cemetery have been interred since Foresthaven acquited it over 40 years ago, Foresthaven has sought and obtained an 100 percent exception on all ad ad valorem taxes on the tract under the “cemetery use exemption.” See Tex. Health & Safety Code Sec. 711.035). In December 2016, family members of decedents buried in Aldine Cemetery contacted. ‘your Commission to report that land clearing activities, including the removal of tres, were ‘occuring on the tract, aparently atthe direction of Foresthaven, It was reported that some of the grave markers were removed during this operation. Foresthaven has represented to a sherif' = investigator that this operation was part ofits normal cleaning and maintenance, Ina visit to the site on January 27, 2017, I noted only seven markers were present. Missing were three of the markers shown on the “Find A Grave” website ~ a east bronze marker for Wilbur Alber Roush. Jr. (une 25, 1924 ~ April 6, 1925), and engraved stone markers for Antonia Seeliger (October 21, 1875 — April 1, 1937) and Gustav (“Gus") B, Seeliger (October 12, 1975 ~ May 10, 1956) ‘The Harris County Sheriff's investigator is requesting advice whether the removal of these three tombstones from Aldine Cemetery without the consent of the descendants of Wilbur Albert Roush, Jr Antonia Seeliger or Gustav (“Gus”) B. Seeliger is a violation of the Texas Penal Code, Three possible statues are relevant. (“Abuse of Corpse"), This law ereates a Class A ‘misdemeanor offense for any person who, without legal authority, knowingly “vandalizes, damages or teats in an offensive manner the space in which a human corpse has been interred." No proof is required of the value of the property vandalized, damaged or treated offensively ‘The law provides a defense ifthe actor isan agent of a cemetery organization (e.g, Foresthaven)who removed anything “placed in the cemetery in violation of the rues of the cemetery," or “placed in the cemetery by or with the cemetery organizations consent but that, in the organization's judgment, had become wrecked, unsightly, or dilapidated.” Texas Penal Code Section 42.08(e). Although the statute is directed at protecting “the space in which a human corpse has been intered”, the “space” must include e memorial marker or other decoration placed on the grave, since the Legislature proved a defense in subsection (e) to cemetery agents who remove or damage “anything placed in or on any portion ofthe oxganization’s cemetery” in violation of the rules. (Emphasis added). In this case there is no evidence that the three (3) missing Roush and Secliger grave markers have been vandalized or damaged. The remaining theory under which Foresthaven could be prosecuted for violating Section 42.08 would be thet it acted without “legal authority” in removing the Roush and Seeliger monuments, when it knew (or should have known) that the Roush and Seeliger descendants would consider this offensive. ‘The three Roush and Secliger grave markers were located on their respective graves in the Aldine Cemetery when Foresthaven became the new tile owner of the land in 1975. Under ‘Texas common law, the sale of land already dedicated as a cemetery does not affect its use; the new owner holds tile “to some extent in trust for the benefit of the entitled to burial init.” Houston Oil Co. v. Wiliams, 57 $.W 24 380 (Tex Civ. App. ~ Texarkana 1933, writ re); Texas Atomey General Opinions JC-0235 (2000) and JC-0355 (2001). By statute, the dedication of property to cemetery use, and title to the exclusive right of burial of a plot owner, are not affected by “the dissolution of a cemetery organization, nonuse by the cemetery organization, alienation, encumbrance, or forced sale of the property.” Texas Health & Safety Code Section 711.035(0). When a person dies, his surviving executor or heirs at law or required by law to sremate or bury his remains, carrying out any written directions that “may gover the inscription to be placed on a grave marker attached to any plot in which the decedent hed the right of sepulture atthe time of death and in which plot the decedent is subsequently interred.” Texas Health & Safety Code Section 711.02 (g). Texas law thus gives to a decedent's executor or heirs st law the right of control over the grave marker attached to the burial plo, including the insription placed on it, Ther living descendants do not, by that fact alone, own the land or plots in which they are buried. They do, however, have the legal right to visit, omament and protect the praves from damage even if they must cross Foresthaven’s private property to da so. Gibson ¥, Berry Cemetery Ass'n, 250 $,W2d 600, Tex.Civ.App. ~ Dallas 1952, no wri). As the owner of the land on which Aldine Cemetery is located, Foresthaven’s only tight to control the grave ‘markers is that of a trustee, to maintain them in theit location with the graves of the dead they ‘memorialize, for the benefit of descendants of those interred in the graves. When property containing a cemetery is sold, it must still be used as a cemetery and the owner must continue to ‘maintain the cemetery for the benefit of the public. Barker v, Hazel-Fain Oil Co, 219 8.W.24 874 (Tex.Civ.App. —Fort Worth 1920, wit reP'),‘Texas Penal Code Section 28.03(0 (Criminal Mischief", This law creates a state jail felony offense for anyone who, without the effective corsent of the owner, intentionally or knowingly damages a place of human burial, or tampers wit) a place of human burial and causes ‘monetary loss or substantial inconvenience tothe owner or ¢ third person. Any descendant of the Roush or Seeliger decedents whose grave markers were removed could be considered an “owmer” of the markers, since proof of ownership requires thatthe descendants have a greater right to possession of the markers than Foresthaven. Texas Penal Code Section 1.07(a)(35). Without evidence that the three markers have been damaged, a prosecution could be based the charge that Foresthaven “tampered with” the places of burial by removing their grave markers, causing the Rush and Seeliger families “substantial inconvenience” in locating their burial plots without aid of the associated grave mackers. ‘Texas Penal Code Section 31,03(¢}(4)(B) (“Theft of Property From a Grave"), This law: provides a state jail felony offense for any person who, without the owner's consent, appropriates property from 2 grave, “including property that is a military grave marker.” The actor may “appropriate” a grave marker by acquiring “or otherwise exercising] control overt.” ‘Texas Penal Code Section 31.01(4). The offense requires proof that Foresthaven intended to deprive the Roush and Seeliger descendants of the markers without their consent. Wilson ¥. State, 671 S.W.24 120 (Tex.App. ~ Houston [Ist Dist] 1984, pet. rea), The three criminal statutes discussed above all require evidence as to the intent oF knowledge of Foresthaven in removing the three missing markers, which Foresthaven claims .as for the purpose of maintenance and cleaning. If rue, Foresthaven should be willing to return ‘them tothe graves with which they are sssociated.