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Section 26: Cemeteries (for State)

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Procedure

Under Section 203.051(e) of the Transportation Code, the Commission cannot condemn property used, and dedicated to be used, as a cemetery pursuant to Health and Safety Code, Subtitle C, Title 8. To ensure sensitive and legal treatment of cemeteries within TxDOT right of way, TxDOT will:

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  • Avoid cemetery impacts wherever possible.
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  • Identify cemetery locations as one type of cultural resource that may be affected by proposed transportation improvements.
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  • Perform archeological investigations for cemeteries only when proposed transportation activities will impact a known or suspected cemetery and that cemetery is believed to be over 50 years old.
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  • Consult with the cemetery association and living descendants and carry out their recommendations in the care and treatment of these properties, where possible.
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  • Conform to state law concerning the maintenance, excavation, and removal of cemeteries and human burials.
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  • Ensure that reburials are made in a cemetery designated by known descendants, in a cemetery of the decedent's known religion, or in a local cemetery having available space, if no preference is indicated.
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  • Erect a monument at the place of reburial indicating the source and date of reburial.
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  • Not allow public exhibition of human remains or photographs of human burials.
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Impact Categories

Cemetery impacts fall into two categories: (1) unmarked cemeteries believed or suspected to be present in proposed right of way but where no visible evidence is present to confirm; and (2) marked cemeteries within right of way where transportation activities are proposed. Treatment of each category is outlined below.

Category 1 - Avoid impacts where possible. When impacts cannot be avoided, the District will:

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  • Notify the county judge, county historical commission, the cemetery association, and known descendants that archeological field investigations will be performed to verify the presence or absence of the cemetery.
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  • Request that the Environmental Affairs Division perform mechanical investigations to verify the presence or absence of graves within the area to be impacted. If no graves are identified, the Division will prepare and provide a report to the regulatory authority recommending the project proceed. TxDOT will provide a copy of the report to the county judge, county historical commission, the cemetery association, and descendants.
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  • If graves are identified, they will be plotted on right of way or project maps, covered with plywood or other appropriate material, and covered with soil. TxDOT environmental coordinator will work with TxDOT personnel to determine if this newly identified cemetery will move to Category II status.

Category II - Avoid impacts where possible. When impacts cannot be avoided, the following will apply:

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  • If the cemetery has interments less than 50 years old, TxDOT will work with the cemetery association, the appropriate legal descendant, and the county court (see Health and Safety Code, Section 711. 036(a)) to remove the dedication for the cemetery, and to disinter and reinter the burials in another cemetery.
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  • If the cemetery has interments made over 50 years ago, TxDOT shall have the Environmental Affairs Division consult with the Texas Historical Commission, FHWA, the appropriate legal descendant, and the county court (see Health and Safety Code, Section 711.036(a)) to remove the dedication for the cemetery, and to disinter and reinter the burials in another cemetery.

In some situations, with the cooperation of local officials, a cemetery dedication may be set aside, but generally this is not possible.

Acquiring releases from relatives to remove and reinter bodies, or court orders where releases cannot be obtained, is a difficult, time-consuming operation. Contracting for the removal and reinternment of bodies, and the necessary legal procedures to remove prior dedications, if any, require much additional time.

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