A report of the opinion in Chavez v. Chavez (decided May 2, 1890) was published by West Publishing Co. at page 1018, volume 13, of the South Western Reporter. West attributes the case to the “Supreme Court of Texas.” Chavez, 13 S.W. at 1018. The report of the case also contains the following notes: “Commissioners’ decision. Consent case. Error from district court, Bexar county; G. H. Noonan, Judge.” Id. The report does not expressly identify the court making the transfer to the Commission of Appeals, nor does it indicate the date of transfer. The opinion is authored by “Acker, J.” Id. Finally, the LEXIS Advance Research legal database has inserted the following notice in its electronic publication of the case: “Notice: PUBLICATION STATUS PENDING. CONSULT STATE RULES REGARDING PRECEDENTIAL VALUE.” Id.
What is the precedential value of Chavez and how should it be cited?
Chavez was implicitly adopted by . . .
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New laws and regulations governing cemetery brokers became effective on January 1, 2014. To see a restatement of the Texas laws and regulations governing cemetery brokers, click here. For the initial registration form (CORP-CB01 [10/13]) issued by the Texas Department of Banking required to register as a cemetery broker in Texas, please click here.
The current law in Texas on this subject is represented by two dueling legal opinions from two different administrative offices. Most of the time, however, this issue will never arise since the certificate of ownership or deed to the plot, and the regulations and bylaws of a cemetery association, will restrict the use of the cemetery to the interment of human remains only.
A. The opinion of the Attorney General of Texas.
In a questionable 1993 legal opinion, the office of the attorney general of Texas determined that there was no express prohibition against the burial of pets in a dedicated cemetery:
An estate planning and probate attorney should not forget about used burial spaces. Consider, for example, a plot owner who purchases a plot containing two burial spaces. Even after he buries his deceased wife in one of the spaces, he will still be the owner of the exclusive right of sepulture to both burial spaces. The exclusive right of sepulture to a burial space does not disappear once the remains of a person have been interred in the space. In fact, there are several important rights that are peculiar to a used space:
Thus, whether an attorney is drafting a Last Will and Testament or a Transfer of Right of Sepulture, the attorney should include all burial property owned by the plot owner (or former plot owner, as the case may be)—both used and unused—in the instrument. This is just one more service that a savvy estate planning and probate attorney can offer his clients.
In 2013, the Texas Legislature began to regulate cemetery brokers. See Act of May 17, 2013, 83rd Leg., R.S., H.B. 52. The Act amends chapter 711, Health and Safety Code, by adding several new sections: §711.0381 (Sale or Resale of Plots by Certain Persons); §711.057 (Emergency Orders); §711.058 (Restitution); and §711.059 (Seizure of Accounts and Records). It also adds two entirely new subchapters: Subchapter C-1 (Cemetery Broker Registration), containing five new sections: §711.045 (Definitions); §711.046 (Cemetery Broker Registration); §711.047 (Exemptions); §711.048 (Complaints); and §711.049 (Termination of Registration), and Subchapter F (Powers and Duties of Department of Banking Relating to Cemetery Brokers), containing four new sections: §711.081 (Definitions); §711.082 (Administration; Fees); §711.083 (Records; Examination); and §711.084 (Examination Fee). Finally, the Act amends the following sections: §711.001; §711.012(a); §711.038; §711.052(a); §711.056(a).
Section 711.0381 and Subchapter C-1 take effect on January 1, 2014. Act of May 17, 2013, 83rd Leg., R.S., H.B. 52, §11(b). Other parts of the
Do you have a Will? My Estate Planning page provides a brief overview of various estate planning instruments as well as some considerations for why it is important to have a will.
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D. Scott Curry
Attorney at Law