Pets May Not be Buried in a Dedicated Cemetery

    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:

• Nothing in chapter 711 expressly prohibits the burial of non-humans in a cemetery.  A number of  provisions, however, are couched in language from which it might be reasonably inferred that burial is limited to humans.  .  .  .  Nevertheless, we are loath to infer an express prohibition in such an indirect manner.  .  .  SUMMARY: §713.027 of the Texas Health and Safety Code authorizes a commissioner’s court in a county of fewer than 8,200 to determine whether non-human animals may be buried in a cemetery owned and operated by the county.

Op. Tex. Att’y Gen. No. DM-93-16 (1993).  This opinion is, we believe, clearly wrong.  The Texas Tax Code grants a person an “exemption from taxation of property he owns and uses exclusively for human burial and does not hold for profit.”  Tex. Tax Code Ann. §11.17 (West 2008).  Thus, any cemetery organization desiring to avail itself of this tax exemption must restrict the use of cemetery plots to the interment of human remains only.  In Laurel Land, the Fifth Circuit Court of Appeals at Dallas—after recognizing that the tax code’s exemption requirements restrict a cemetery organization’s use of dedicated cemetery property to the interment of human remains only—held:

• A cemetery organization dedicates portions of its property for human burial by filing  a public declaration of dedication with the county clerk.  The effect of publicly dedicating cemetery property is to commit the land to a public purpose different from any other land.  Once a cemetery organization publicly dedicates property, the organization cannot use that property for any purpose other than for human burial.  Moreover, once a cemetery organization dedicates property, the dedication may be removed only through judicial proceedings.  In effect, the  dedication fixes the property’s use.  Thus, once dedicated, the property not only must be used “exclusively for cemetery purposes” as required by the health and safety code, but also must be used “exclusively for human burial” as contemplated by the tax code.  Publicly dedicating cemetery property, therefore, not only satisfies the health and safety code’s prerequisite for tax exemption, but also satisfies the first condition of the two-part test for tax exemption set forth in the tax code.

Laurel Land Memorial Park, Inc.  v. Dallas Central Appraisal District, 911 S.W.2d 783, 787 (Tex. App.—Dallas 1995, writ denied)(emphasis added; citations omitted).  It should be noted, however, that the court in Laurel Land did not face the issue of pet burial.

B.    The opinion of the Texas Department of Banking.

    The Texas Department of Banking has also weighed in on this issue.  It determined that pets may not be buried in a dedicated cemetery.  See Op. Tex. Dep’t of Banking No. LO 12-01 (May 9, 2012).  In its legal opinion, the department held that it “construes chapters 711 and 712  to provide for the interment of humans alone in cemeteries.”   Id.  This position was taken in part based on the current definitions contained in subtitle C which refer ultimately to the interment of human remains only.  For example, the subtitle defines the term cemetery to mean “a place that is used or intended to be used for interment.”  Tex. Health & Safety Code Ann. §711.001(2) (West Supp. 2012).  In turn, it defines the term interment to mean “the permanent disposition of remains by entombment, burial, or placement in a niche.”  Id. §711.001(16)(emphasis added).  The term remains is defined to mean “either human remains or cremated remains.”  Id. §711.001(28).  And cremated remains means “the bone fragments remaining after the cremation process, which may include the residue of any foreign materials that were cremated with the human remains.”  §711.001(6)(emphasis added).  Additionally, the definitions of the terms cremation, crematory, crypt, funeral establishment, grave, and lawn crypt all refer to human remains only.  See id. §711.001(7), (8), (10), (13), (14), and (19).  The term human remains means “the body of a decedent.”  Id. §711.001(15).  The Department’s legal opinion also pointed out that other sections of the subtitle make sense only in relation to human remains.  For example--

• §711.002(a):    The following “persons” have the right to control the disposition of a decedent’s remains:  “(1)  the person designated in a written instrument signed by the decedent; (2)  the decedent’s surviving spouse; (3) any one of the decedent’s surviving adult children;” etc.

• §711.003:    A record shall be kept of every interment in a cemetery including “the name and age of the person interred.”

• §711.004:    The following “persons” may consent to removal of interred remains:  “(1)  the decedent’s surviving spouse; (2) the decedent’s surviving adult children;”  etc.

• §711.032:    “A cemetery organization may not adopt or enforce a rule that prohibits interment because of the race, color, or national origin of a decedent.”

See also, Shields v. Karns, 622 N.E.2d 673 (Ohio Ct. App.  1993) and St. Peter’s Evangelical Lutheran Church v. Bean, 22 Montg. 74, 15 Pa.D. 636 (Ct. of Common Pleas of Pa. 1906).  The department’s opinion letter concluded that “a legislative change would be required before pets could be buried in cemeteries for humans.”  Op. Tex. Dep’t of Banking No. LO 12-01 (May 9, 2012).

    There have been recent accounts in the news about pet owners who have made the decision to have their remains buried beside those of their pets in a pet cemetery.  Often, the cost is less to bury human remains in a pet cemetery than it is to bury them in a cemetery for humans.  There is as yet no statute in Texas regulating pet cemeteries.  See Op. Tex. Dep’t of Banking No. LO 12-01 (May 9, 2012).  Although a pet cemetery is not a “dedicated cemetery” as was in issue in LO 12-01, nevertheless, once human remains have been interred in a pet cemetery, it would seem that the pet cemetery thereafter would fall within Chapter 711’s definition of “cemetery”:  i.e., “a place that is used or intended to be used for interment, and includes a graveyard .  .  .  or any other area containing one or more graves.”  See id. §711.001(2)(emphasis added).  The term grave means, in part, “a space of ground that contains interred human remains.”  Id. §711.001(14).  Thus, once the decision has been made by the owner of a pet cemetery to permit the interment of human remains therein, then it would seem that the pet cemetery has acquired a “cemetery purpose”  (that is, “a purpose necessary or incidental .  .  .  to interring [human] remains.”  See id. §711.001(4) and (28)).  If so, then the appropriate cemetery organization must survey the property into gardens or sections, see id. §711.034(a)(1), make a map or plat of the property showing the plots contained therein and showing a specific unique number for each plot, see id., file the map or plat with the county clerk of each county in which the property or any part of the property is located, see id. §711.034(b), and file with the map or plat a written certificate or declaration dedicating the property exclusively to cemetery purposes, see id. §711.034(c).  Thus, once a pet cemetery contains but a single human grave, then—under the logic of LO 12-01—it can no longer be used to inter the remains of pets.