Texas Historic Commission staff presented the following white paper concerning desecration of historic cemeteries
to the Culture, Recreation and Tourism Committee of the Texas House of Representatives on Aug. 23, 2006.
DESECRATION OF HISTORIC CEMETERIES:
A BRIEF ASSESSMENT BY THE TEXAS HISTORICAL COMMISSION
Historic cemeteries are more than just old monuments to our ancestors—they are among
the most valuable of historic resources, revealing information about historic events, religion,
lifestyles, artistic styles and genealogy. Cemetery desecration is a continuing problem in Texas
and throughout the United States. Destruction occurs in many ways, including the illegal removal
of human remains, damage from roaming livestock, encroaching development and construction,
vandalism, and theft of grave goods and funerary objects.
To begin to address various issues related to the preservation of historic cemeteries,
Texas Historical Commission (THC) chairman John L. Nau, III, appointed a cemetery advisory
committee, chaired by District Judge Jim Lovett of Red River County and comprised of THC
commissioners and staff, and public members. The committee spent many hours researching the
issues and formulating plans to address the need for stronger laws to protect historic cemeteries.
Particularly concerned about cemetery vandalism, the committee recommended legislative action
to address inconsistencies in Texas laws regarding prosecution for such offenses. House Bill
1012, passed by the 79th Legislature, removed the provision concerning prosecution for
desecration from the Health and Safety Code, where it was a class C misdemeanor, and placed it
under Criminal Mischief, Penal Code 28.03 (f), which states:
f) An offense under this section is a state jail felony if the damage or destruction is
inflicted on a place of worship or human burial, a public monument, or a community
center that provides medical, social, or educational programs and the amount of the
pecuniary loss to real property or to tangible personal property is less than $20,000.
A further amendment to Section 42.08 of the Penal Code (Abuse of Corpse) could enhance the
penalty for such action from a Class A misdemeanor to a state jail felony. In a state in which
there is inadequate jail space, this option raises a number of questions: Can the system handle
desecration cases if the penalties are strengthened? Could educational efforts be more effective
as a deterrent? What alternative measures could be developed as penalties for such egregious
actions?
The desecration of cemeteries as the result of livestock grazing continues to be a problem
in Texas, as well. When allowed to roam within cemetery boundaries, the animals knock over
and break gravestones. The fallen stones are broken up even more as the livestock search for
grass or shade. According to case law in Texas, when a burial has occurred, the land where the
burial is located is automatically dedicated as a cemetery and cannot be used for any other
purpose without the removal of the dedication through a court hearing. This would appear to
include the use of the property for livestock grazing. Stronger provisions should be established to
stop the continued desecration of small rural cemeteries by such practices.
No laws currently exist to explicitly define how close new development or construction
projects can occur next to cemeteries. In many instances, fences do not encompass all the graves
in a cemetery. In order to ensure some effort is made to determine the actual dimensions of a
cemetery, there should be a standard buffer zone to protect the resource from disturbance or
development. Unless an archeological investigation is conducted to determine the actual
boundaries of the cemetery and existence of graves outside fence lines, a 75-100 foot buffer zone
should be established around the cemetery as common practice.
News and law enforcement reports indicate much intentional vandalism of cemeteries is
carried out by juveniles and young adults. All too often, we hear reports of groups of youths
having contests in cemeteries see who can turn over the most gravestones. This type of ongoing
desecration can occur over many years, resulting in the total destruction of a cemetery. The
provisions of HB 1012 will help address this issue, but much remains to be done regarding
prosecution of offenders.
The wanton theft of gravestones, fences, urns, statuary and other decorative cemetery
elements continues to be a major issue related to desecration. An increased market for antique
garden items has fueled the theft of cemetery items, resulting in the permanent loss of historic
cemetery features. Stronger laws pertaining to the theft and marketing of cemetery objects,
including the sale of funerary objects in retail stores, should be considered.
Statesman Benjamin Franklin once said, “In this world, nothing is certain but death and
taxes.” Another of his quotes seems appropriate when discussing cemetery desecration: “One can
tell the morals of a culture by the way they treat their dead.”