PART 10. TEXAS FUNERAL SERVICE COMMISSION
CHAPTER 205. CEMETERIES AND CREMATORIES
The Texas Funeral Service Commission "Commission" adopts new §205.2, concerning ingress and egress to certain cemeteries in accordance with §711.012(b) and §711.041, Texas Health and Safety Code. The new rule is adopted with changes to the proposed text as published in the October 31, 2008, issue of the Texas Register (33 TexReg 8874).
The purpose of new §205.2 is (through the authority granted to the Funeral Service Commission by the Texas Legislature in §711.012(b), Texas Health and Safety Code) to give effect to §711.041, Texas Health and Safety Code which provides that any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds during reasonable hours for the purposes usually associated with cemetery visits and that the owner or owner of lands surrounding the cemetery or private burial grounds may designate the routes of reasonable ingress and egress.
In summary, new §205.2 sets up a system that encourages voluntary negotiations (resulting in a written agreement) between affected landowners and persons desiring access to cemeteries or private burial grounds for which no public ingress or egress exists. But, if an agreement is not reached, any party to the negotiations may request of the Executive Director of the Texas Funeral Service Commission that the dispute be formally mediated through the Funeral Service Commission's alternative dispute resolution policies and procedures. If the mediation is not successful, the Executive Director of the Commission is required to propose to the Funeral Service Commission for adoption an order setting out a reasonable visitation schedule and a route or routes of reasonable ingress or egress to a cemetery or private burial grounds for which no public ingress or egress is available. A notice and a copy of the order proposed by the Executive Director is required to be sent to all interested parties not less than 30 days before the meeting at which the Funeral Service Commission will consider the adoption of the order proposed by the Executive Director. At the meeting at which the adoption of the order proposed by the Executive Director is considered, each affected party will have the opportunity to offer testimony with respect to the proposed order. At the meeting, the Funeral Service Commission may adopt the order as proposed, adopt the order with changes, or may defer action to a future meeting. A copy of the final order is to be mailed by certified mail to all parties.
Following are the public comments received and corresponding commission response:
TEXAS DEER ASSOCIATION COMMENTS: The officers and members of the Texas Deer Association are concerned about the unanticipated consequences and possible tragic repercussions if the proposed language to the above regulation is not strengthened and clearly adhered to by those wishing to access the cemeteries. Those wishing to access the cemeteries must be aware that, without advance approval and arrangements with landowners, there are real problems and safety issues that must be taken into consideration (hunting, prescribed burning, mechanical or chemical control of brush, etc.). We respect the rights of approved and reasonable access by interested parties and family members to cemeteries, but that public access cannot be without discretion, respect of, and adherence to, landowner directives, and best interest of all parties in regard to safety and liability. The proposed and permissive language, as written, (i.e., owner may designate the routes of reasonable ingress and egress) seems to only loosely address landowner concerns. We suggest stronger language in regard to making prior arrangements and designated routes of reasonable ingress and egress with the landowner. After all, during hunting season as well as in regard to the above listed possibilities, such access could result in tragic consequences.
COMMISSION RESPONSE: The Commission does not necessarily disagree with the sentiments expressed by the Texas Deer Association. Indeed, the intent of new §205.2 is to encourage parties to reach agreement on the terms of ingress and egress either through informal negotiation or formal mediation and for the Funeral Service Commission to enter a final order only as a last resort. In entering a final order, the Funeral Service Commission would intend to take into consideration insofar as possible the rights and concerns of each party. However, state law in the form of §711.041, Texas Health and Safety Code does provide that any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds during reasonable hours for the purposes usually associated with cemetery visits and that surrounding landowners may designate the routes of reasonable ingress and egress. Much of the concern of this association appears to be with the provisions of the statute rather than the provisions of new §205.2. The Commission does not believe that new §205.2 needs to be revised to meet the concerns expressed.
EXOTIC WILDLIFE ASSOCIATION COMMENTS: On behalf of the officers and members of the Exotic Wildlife Association, we would like to voice our concerns if the proposed language in the above regulation is not strengthened and strictly adhered to by those wishing access to the cemeteries. That individual wanting access to cemeteries on private property must realize that a whole array of problems exists if advanced notice is not given to the landowner. Liability issues, safety issues, as well as property rights issues are just some of the problems that will exist without stronger language in this regulation. From a personal note, a private cemetery lies within the boundaries of my ranch in Bandera County. The family members always notify us and set up a prearranged time for access. They respect our property rights during the various hunting seasons and in return we maintain the entrance to the cemetery so that it is always in a manicured condition. We understand and respect the rights of family members and other interested parties to reasonable access to cemeteries but public access cannot and should not be without the discretion and directive of the landowner. This only makes sense from a safety and liability standpoint. Language in the regulation that states "owners may designate routes of reasonable ingress and egress" does not fully address landowner's property rights. As a private property rights organization we suggest stronger language that will leave nothing to interpretation regarding prior arrangements and ingress and egress issues with the landowner.
COMMISSION RESPONSE: The Commission does not necessarily disagree with the sentiments expressed by the Texas Exotic Game Association. Indeed, the intent of new §205.2 is to encourage parties to reach agreement on the terms of ingress and egress either through informal negotiation or formal mediation and for the Funeral Services Commission to enter a final order only as a last resort. In entering a final order, the Commission would intend to take into consideration insofar as possible the rights and concerns of each party. However, state law in the form of §711.041, Texas Health and Safety Code does provide that any person who wishes to visit a cemetery or private burial ground for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds during reasonable hours for the purposes usually associated with cemetery visits and that affected landowners may designate the routes of reasonable ingress and egress. Much of the concern of this association appears to be with the provisions of the statute rather than the provisions of new §205.2. The Commission does not believe that new §205.2 needs to be revised to meet the concerns of the association.
COMMENT: Commenter is writing you today in support of the commission's proposal to add a new rule to 22 TAC Part 10, Chapter 205, §205.2, to better ensure Texans have access to 'cemeteries as they are entitled by law. Recently, a constituent informed commenter about the challenges family members face when trying to visit cemeteries that are completely surrounding by privately owned land and the landowners deny or discourage access. Cemeteries are more than final resting places for the deceased; they play an important part in the cultural and social fabric of a community and how a community remembers and recognizes its past. Whenever Texans are denied access to cemeteries, they are denied an opportunity to honor their family and their history. State law recognizes the importance of access to cemeteries in §711.041(a) Texas Health and Safety Code. However, currently there is no formal enforcement mechanism for this statute beyond filing a civil suit, which can often be costly and time consuming for Texans who want nothing more than to pay their respects to loved ones and relatives who have passed away. It is crucial that state government ensure that Texans have that access to which they are entitled under the law. This proposed rule is a step in the right direction. It aims to protect access while also providing reasonable accommodations for land owners who have land adjoining a cemetery. The commenter strongly supports the proposed rule and would respectfully ask the Texas Funeral Service Commission to approve it.
COMMISSION RESPONSE: Commenter's letter is supportive of new §205.2 as written.
COMMENT: Commenter is writing you today in support of the commission's proposal to add a new rule to 22 TAC Part 10, Chapter 205, §205.2, to better ensure Texans have access to cemeteries as they are entitled by law. Over the past year, commenter's office has received several calls from Texans across the state who all faced a similar circumstance of trying to visit a cemetery that was completely surrounding by privately owned land which the landowners would not let them cross. Cemeteries are more than final resting places for the deceased; they play an important part in the cultural and social fabric of a community and how a community remembers and recognizes its past. Whenever Texans are denied access to cemeteries, they are denied an opportunity to honor their history and those who have passed away. State law recognizes the importance of access to cemeteries in §711.041(a) Texas Health and Safety Code. However, currently there is no formal enforcement mechanism for this statute beyond filing a civil suit, which can often be costly and time consuming for Texans who want nothing more than to pay their respects to loved ones and relatives who have passed away. It is crucial that state government ensure that Texans have that access to which they are entitled under the law. Although commenter intends to file legislation in the next legislative session to strengthen Texans' access to cemeteries, commenter believes this rule is a good first step based on current law to protect that access while also providing reasonable accommodations for land owners who have land adjoining a cemetery. Commenter supports the proposed rule and would respectfully ask the Texas Funeral Service Commission to approve it at their first opportunity.
COMMISSION RESPONSE: While indicating that commenter intends to introduce legislation to strengthen the public's right of access to cemeteries, commenter's letter is supportive of new §205.2 as written.
COMMENT: Commenter is writing this letter regarding your proposal for cemeteries. Commenter believes that access to cemeteries is a right. Death and dying can be a traumatic event for families and friends. It can be complex. It may affect their minds, bodies, and spirits. Each person deals with death and dying differently. Some may move on immediately. Some may think they are over the event only to experience grief later. Others may take years to resolve their grief. Commenter is writing this letter of support for consumers.
1. Commenter feels individuals should be able to visit cemeteries daily from sunrise to sunset.
2. Commenter feels that access routes to cemeteries should be permanently designated and maintained consistently. It is important for inventory, researchers, historians, and caretakers of cemeteries. Renegotiating access can a negative affect on the deceased loved ones and delay future burials.
3. Commenter feels that Individual or families do not need to purchase an insurance policy to visit or keep the cemeteries clean.
4. Commenter feels local authorities should oversee the process to prevent delays and maintain timeliness for consumers. The state does not have a funds and staff to implement a timely course of action to resolve dilemmas. And finally,
5. Commenter feels access to cemeteries should not be a political issue. Policies and procedures should be consistent across the state.
COMMISSION RESPONSE: The commission does not necessarily disagree with comments. However, the process described above that would be set in place by the adoption of new §205.2 is designed to resolve on a case by case basis the issues raised by comments with the exception of comment number 4 where commenter suggests oversight by local officials. The Commission lacks authority to require oversight by local officials.
COMMENT: Commenter's father is buried in Boggy Cemetery in Flynn (Leon County), Texas. As a nurse, commenter knows personally that death and dying is a traumatic event and every person deals with it differently and goes through a process of grieving.
Commenter is writing this letter of support for consumers.
1. Commenter feels that commenter should be able to visit cemeteries daily from sunrise to sunset.
2. Commenter feels that policies and procedures should be written by the state and enforced consistent across the state.
3. Commenter feels that access routes to and from the cemeteries should be permanently designated and enforced.
4. Commenter feels local authorities should oversee the process to prevent delays and maintain time-lines for consumers with an empathic attitude.
COMMISSION RESPONSE: The commission does not necessarily disagree with the comments. However, the process described above that will be set in place by the adoption of new §205.2 is designed to resolve on a case by case basis the issues raised by comments with the exception of her comment number 4 where commenter suggests oversight by local officials. The Commission lacks authority to require oversight by local officials.
Comment letter dated November 25, 2008 (incorporating by reference letters dated June 16, 2008, July 7, 2008, and September 29, 2008):
LETTER DATED NOVEMBER 25, 2008: In accordance with comment procedure set forth in the proposed rule published on October 31, 2008, in the Texas Register under (33 TexReg 8874), [my client] believes there should be a withdrawal of the proposed rule, modification of the proposed rule and/or amendment of the proposed rule. As you are aware, [my client] is the owner of a tract or property located in Harrison County, Texas. an adjoining tract, with its boundaries not contiguous to the property owned by [my client] there is a place of internment which is locally known as the Love Cemetery. Commenter has provided various comments, both in person at your meeting in Marshall, Texas, as well as by mail. Commenter would incorporate in these comments those items of correspondence, which includes correspondence dated June 16, 2008, July 7, 2008, and September 29, 2008. Commenter would ask that the Texas Funeral Service Commission or the Attorney General for the State of Texas respond to each of the comments made herein. Commenter will break down comments into two (2) different sections. The first one will be comments concerning the legality and constitutionality of the proposed rule, and the second would be concerns over the provisions of the proposed rule. It concerns the commenter that you outline in the information contained within the Texas Register various issues that were raised at the local meetings, yet to my knowledge there were no major changes actually made to the rule to take into consideration anything that was provided to you in the way of comments at the meetings.
I. Legality and Constitutionality of the Proposed Rule.
1. The Commission seeks to enact a rule concerning the provision of §711.041(a) of the Texas Health and Safety Code. in researching the §711.041, the Beaumont Court of Appeals held the rule was unconstitutional as violating Texas Constitution Article I, Section 17. The case is Meek v. Smith and is published at 7 S.W.3d 297 (Court of Appeals- Beaumont 1999) That case is very similar to the case that is involved with [my client] in that there was an attempt to utilize the statute in order to obtain access across adjoining property to a cemetery that was located on property not owned by the landowners in question. The Court there found that the permanent appropriation of an easement for a right-of-way for travel across a tract of land constitutes a taking without compensation within the purview of Article I, Section 17 of the Constitution and therefore found the provision to be unconstitutional. Although there have been other cases that have ruled on the statute since the 1999 case of Meek, each of the other cases has found specifically that the statute becomes unconstitutional when it attempted to be applied to property which is not surrounding, contiguous or adjacent to the cemetery in question. Therefore, including §205.2(d) makes the rule unconstitutional in that it attempts to make a rule as to facts which the Texas Court of Appeals has already concluded is unconstitutional.
2. As you are aware, there is already an existing access easement that has been signed by the Love Colored Burial Association as Grantee and "previous owner" as Grantor which covers art access way. Therefore, as you are also aware, this document requires the delivery of liability insurance for use of the access easement. Therefore, you have not indicated in the rule whether or not you are trying to terminate existing easements or whether or not your rule will affect those. If you are attempting to affect the existing easement, if any, then the rule will violate Texas Constitutional Article 1, Section 16, which provides that no law can be made impairing the obligations of contracts. Since you have not indicated in your rule whether existing documentation of agreements reached with cemeteries will be modified, it will continue to be [my client's] position that they are not subject to the rule since the rule only applies to instances in which there is no ingress or egress available. To the contrary, there may be the ability for ingress and egress to the Love Cemetery so long as the parties requesting access comply with the easement.
3. The Attorney General in 1998 also reviewed a proposed statute, §251.053 of the Texas Transportation Code, which authorized the establishment of a neighborhood road to obtain access to landlocked property. The Attorney General, after reviewing the statute, in a 1998 Attorney General's Opinion No. DM487, found that the County could not take private property for the purpose of establishing a road under the Neighborhoods Road Statute. This Attorney General's Opinion, which relies on the Supreme Court case of Estate of Wagner v. Oleghorn, 376S.W.2d (Tex. 1964) found that providing statute which takes private property is unconstitutional and void.
I would ask that you have the Attorney General provide a response to the above constitutionality and legality arguments since it appears that in the 1998 Attorney General's Opinion No. DM-487 would equally apply to the statute and proposed rule.
II. Comments concerning the Proposed Rule. Although as indicated above, commenter believes the statute and proposed rule as drafted will be unconstitutional and therefore illegal, nevertheless commenter is providing the following comments to the proposed rule in hopes that the Commission will make appropriate changes to make the rule less onerous to landowners. These comments would be as follows:
1. In the proposed rule you attempt to provide that the requirement of insurance or indemnification cannot be utilized to thwart the rule, yet there is no provision concerning how that provision is to be interpreted. As per commenter's previous comments, since you have made the imposition of the rule subject to mediation between the parties there does not seem to be any reason why the parties could not mediate the requirement of indemnification and liability insurance. The rule does not provide for any apportionment of risk or responsibility and therefore contrary to the assertion in the Texas Register under the Takings Impact Statement, I do believe that the taking that you are proposing will have a substantial impact on the private real property rights of the landowner.
2. You also have a reasonable hours provision under §205.2(c). As per commenter's previous discussions, commenter believes that the times of access should be part of the negotiations between the Landowner and the cemetery association since in most cases commenter does not think the cemetery association wants there to be open access to the cemetery and would want to control access to the cemetery.
3. In §205.2(n), you provide that the decision of the commission is not appealable. Commenter does not believe that the Commission can be the final determiner of the taking of a landowner's property for ingress and egress. It would appear that it would be appropriate to remove the provision concerning "may not be appealed" since the commenter does not believe that provision is constitutional.
As indicated above, commenter would ask that the Commission and/or the Attorney General respond to each of the comments in writing so that [my client] can understand the basis for the provisions as written. It would seem only appropriate for the Commission to review the rule, not only with the issues of access to the cemetery being taken into consideration, but also the comments and concerns of landowners whose land is going to be subject to the imposition of the rule. If commenter can provide any further information concerning any of the above comments, please contact.
LETTER DATED JUNE 16, 2008: Commenter represents [my client] I have previously written the Funeral Service Commission concerning the issue of Love Cemetery which is located on property adjoining [my client's] property in Harrison County, Texas. Commenter has received notice that there is to be a public hearing concerning access issues to cemeteries such as Love Cemetery and rather than being present at the hearing, [my client] asked that I provide you written comments concerning any proposed rules or regulations. These comments would be as follows:
1. As per commenter's previous correspondence, Love Cemetery Association has a written easement agreement, which although it is somewhat confusing as to the exact route to achieve access to the cemetery, would provide access to the cemetery but the Association has chosen not to proceed by the terms of the easement but instead wants an unfettered right to obtain access.
2. As indicated above, the Cemetery is not located on the property of [my client] although [my client] seems to continue to receive requests for access without compliance with the right-of-way agreement. The Cemetery is actually located on the property of [another person], a doctor from Shreveport, Louisiana, and therefore, any use of a statute which would allow access across property on which the Cemetery is located would impact [the other person's] property and not the property of [my client].
3. Any regulation or statute which would establish a right to cross property of a third party in order to obtain access to a cemetery would necessarily require some type of release of the property owner from any claims that might be made as a result of the use. In addition, it would have to require the users of the property to repair any damage they do to a third party's property. Also, the release of any claims would only handle one of two issues, the second being if there was damage to the property that they were crossing, for example, the activities resulted in a fire which destroyed the timber of the landowner that would cause there to be a potentially uncompensated damage to the Landowner. [My client] would be concerned that there is no method to restrict who obtains access such that if access is left open to the parties involved in the cemetery, there would be no ability to prevent access from third parties who have no intent to access the cemetery but simply want to obtain access to [my client's] property.
4. Any such regulation or statute would potentially cause there to be a taking of an easement without compensation which would be violative of the Texas Constitution. The legislature has attempted in the past to provide relief for other landlocked property and although they have attempted to grant a mechanism to obtain access to landlocked property, the grant of such mechanism was held to be unconstitutional.
[My client] is keenly aware of the issue to access to the Cemetery but the Funeral Service Commission should be aware that all [my client] has ever asked is that the Cemetery comply with their agreements under the easement that they obtained from "the previous owner" prior to the purchase by [my client], and the Cemetery Association is unwilling or unable to complete the purchase of insurance to protect [my client] in connection with its ownership of the property. If the Funeral Service Commission were to enact regulations dealing with this matter, the impact would be on the other person's property since it would be the property in which the cemetery was contained and not on [my client's] property.
All that being said, if the Funeral Service Commission is able to resolve the issue, not only of potential liability to the landowner for allowing access, but also a method to provide for recovery of any damage that is caused as a result of the use, then such regulation would potentially protect the landowner in connection with a forced easement onto their property but I anticipate that the Funeral Service Commission will not be able to provide for regulations which would result in the various issues with the landowner being resolved. The commenter would appreciate it if this letter would be made a part of the record of the Commission hearing in order to act as [my client's] formal response to the Notice of the Holding of the Hearing.
LETTER DATED JULY 7, 2008: After our conversation on Thursday June 19, 2008, commenter had an opportunity to visit with the media who were at the entrance of [my client's] property. Commenter provided them my account of the situation that arose on Thursday. Commenter thought it appropriate to write you and make you aware of my concern about how the whole matter was handled by the Funeral Service Commission. When you arrived at my office, unannounced, you and the vice chairman of the Commission were the only two (2) people that entered my office and led me to believe that you were the only two (2) people that would be escorted to the property. It has now come to my attention from my staff that at the time you entered my office you already had other individuals with you, who commenter anticipated you would also want to enter the property, and who would be at the site at the time the [my client's] representative appeared. If you had made it known to commenter that you were going to have media people involved and/or others involved in the meeting, commenter would not have agreed to allow "another representative" to meet you at the location, but instead would have had you postpone any meeting until commenter could be available. Therefore, commenter feels that whether you contacted the media or not, commenter was misled about the activities that were to take place at [my client's] property. In addition, you indicated to commenter that you needed to be escorted in order to see the cemetery. As commenter learned later, you were planning to visit the cemetery through [another person's] property and therefore, it did not appear that it would have been necessary for you to utilize [my client's] property in order to have access to the cemetery. If commenter had known that you already had access to the cemetery commenter would have again viewed the whole matter in a different light. This is not to say that [my client] is unwilling to allow the Funeral Service Commission to proceed on a fact finding mission, but as you have been informed on a number of occasions, this is not a landlocked cemetery except as to any position that [the other person] may take. Contrary to that position, the Cemetery Association entered into an Easement Agreement which contractually bound them to provide insurance in connection with the use of the easement and they simply have chosen not to. This particular cemetery issue is not consistent with some of the others that you are reviewing where the cemetery is surrounded by land and they have no right of entry but instead is a contractual matter in that the Cemetery Association has not complied with the contract and have not provided any alternatives to compliance with the contract. Based upon my review of the issues that arose in connection with your access to the property, it appears that either you or someone within the party wanted to make this a media event. Since you were aware that commenter was not going to be in attendance, it appears that someone within the group wanted to have a representative of [my client] who was not as familiar with the issues at hand to appear at the property of [my client] in order to utilize his potential unsophistication and his lack of knowledge to make it difficult for him to properly respond to whatever questions either you or the media may have had. "The other representative" would not have been able to answer the questions and the party that should have been available was me but, as indicated in the newspaper article, commenter was unavailable that afternoon. It is not the fact that the media was in attendance that was a problem, it was the fact that the appropriate person to respond to any questions was not going to be available to attend the meeting. Other arrangements would have been made if commenter had been aware that there were other parties that planned on attending the meeting. Based upon all of the information commenter has, it appears that the Funeral Service Commission, rather than being on a fact finding mission, intended instead to create a media event. It also appears that rather than attempting to fairly and accurately describe the issues that are at hand, either you and/or the Funeral Service Commission has already made up their mind that the Cemetery Association does not need to honor its contractual obligations but instead should be allowed an unfettered right to go across private property leaving the landowner without any potential recourse should an incident occur which results in either damage to the property or liability to the property owner. You indicated to the newspaper reporter that you planned on contacting the Attorney General of the State of Texas concerning this matter and I would request that you do so since I anticipate that you will find that what the Funeral Service Commission is proposing as legislation would have to be drafted very carefully not to violate constitutional prohibitions on taking of private property for private purposes. As indicated above, [my client] is keenly aware of the concerns of the parties but the status of the matter was not of [my client's] making and [my client] is simply requiring the parties to comply with the contractual easement agreement as it would of any other person or entity in connection with the use of its property. As I indicated to you, I will be happy to provide you another opportunity to go across [my client's] property to the fence that is on [the other person's] boundary if you will provide me dates on which you wish to obtain access. In addition, in the future if you will notify me that you plan to make it a media event for whatever reason, instead of a fact finding mission, commenter will make himself available so that commenter can answer any questions that the parties may have and make sure that the media, as well as the Funeral Service Commission, is aware of the true nature of the situation.
LETTER DATED SEPTEMBER 29, 2008: After the meeting in Marshall, commenter thought it would be appropriate to mention one other comment that commenter would have to the proposed rule. This comment would be, in addition to the other comments the commenter made at the meeting, and in particular this should not indicate that commenter feels that the rule that is going to be proposed is necessary or constitutional. An additional comment would be that commenter does not see the reason why the Commission would place certain specifics in the rule when it appears that the rule is intended to provide for a mechanism to mediate and determine the best method for the cemetery and landowner to agree to allow for access. In the rule, you have made two (2) specific determinations, those being that the reasonable hours for access are from 8:00 a.m. to 5:00 p.m., each day of the week and that there can be no requirement of liability insurance or indemnification. It would seem that the more appropriate approach would be to leave those two (2) items to the mediation process rather than predetermining those issues. Specifically, in speaking to the individuals in control of the Love Cemetery Association, they would not want there to be open access to the cemetery but would only want limited access since they have indicated that they would also be concerned about potential vandalism and theft if the access is not properly monitored. I would suggest that the Commission may wish to delete the definition of reasonable hours and any prohibition of requiring liability insurance and instead leave those as part of the mediation process in order to be fair to both parties to the process.
COMMISSION RESPONSE: The commenter divides the substantive comments in his letter dated November 25, 2008 into two categories. In a category denominated "Legality and Constitutionality of the Proposed Rule," commenter makes three primary points. First, he points out that one Court of Appeals case has held §711.041 unconstitutional when applied to a certain fact situation. He also notes that other courts have not found the statute constitutional when applied to other fact situations. However, new §205.2 provides a broad framework for the negotiation, mediation, and, ultimately, for an order of the Commission only if negotiation and mediation are not successful. The Commission will not intentionally adopt an order that is unconstitutional. Second, the commenter makes the point that there may be an existing easement providing access with respect to a particular cemetery in Harrison County, and that any enforced modification of that easement would violate a provision of the Texas Constitution providing that no law can be made impairing the obligations of contracts. The commenter also notes that it is his belief that new §205.2 would in and of itself violate the Private Real Property Rights Preservation Act. The Commission disagrees for the reasons stated under "Taking Impacts Statement" in the preface to the publication for comment of new §205.2. Once again, however, new §205.2 provides a broad framework for negotiation, mediation, and, only after negotiation and mediation are not successful would the Commission adopt an order with respect to a particular fact situation. The Commission would expect to consider all legal issues before acting. Third, the commenter cites an Attorney General's opinion that found that a county could not take private property for the purpose of establishing a road under a law referred to as the Neighborhood Road Statute. The Commission believes that this opinion may or may not be applicable to any particular fact situation that the Commission might address under new §205.2. The Commission does not believe that any modification of new §205.2 needs to be made to address the comments with respect to the legality and constitutionality of new §205.2.
In a category denominated "Comments concerning the Proposed Rule," the commenter makes three additional points. First, he expresses concern with a provision contained in subsection (g) of new §205.2 providing that an owner or owners of land surrounding a cemetery or private burial cannot render the right of ingress and egress impractical by the imposition of liability insurance or other indemnification requirements. He goes on to say that he does not see any reason why liability insurance and indemnification requirements cannot be negotiated and mediated between the parties. Indeed, it is assumed by the Commission that such negotiation and mediation will in fact occur. The point of the provision is to make it clear that if the negotiation and mediation process envisioned by new §205.2 does not result in a voluntary agreement, the Commission would be able to act to prevent exorbitant liability and insurance requirements from rendering §711.041, Texas Health and Safety Code meaningless, thus thwarting the purpose of the statute. Secondly, the commenter objects to the provision in subsection (e) of new §205.2 that establishes 8:00 a.m. to 5:00 p.m. on any day of the week as the nominal standard for reasonable hours of ingress and egress. However, subsection (e) goes on to state: "It is provided, however, that the hours during the day and the days of the week during which ingress and egress shall be allowed may be more particularly circumscribed by an agreement reached or an order entered pursuant to subsections (i) - (n)" of new §205.2. New §205.2 contemplates that the parties will negotiate or mediate or the Commission will order a set of hours and days that is appropriate to the particular fact situation surrounding a particular cemetery or private burial ground. The Commission does not believe that any changes to new §205.2 are necessary to accommodate these two comments. Finally, the commenter points out that subsection (n) of new §205.2 could be interpreted as an attempt to preclude access to the courts to challenge an order of the Commission. The Commission agrees that subsection (n) could be misconstrued and has changed the language of that subsection to avoid such an interpretation. The letters dated June 16, 2008 and July 7, 2008 that were incorporated by reference in the commenter's letter of November 28, 2008 precede the comment period and relate to the specific fact situation surrounding a particular cemetery in Harrison County that has not been addressed pursuant to the procedures contained in new §205.2. The letters do not offer any specific comments with regard to new §205.2 that are not covered by the points made in the commenter's letter of November 28, 2008. The letter of September 29, 2008 also precedes the comment period. However, it does suggest that new §205.2 should not mandate 8:00 a.m. to 5:00 p.m. as reasonable hours and should not mandate that there can be no requirement for liability insurance or indemnification. These comments also are made in the commenter's letter of November 28, 2008 and are discussed in the immediately preceding paragraph where it is pointed out that new §205.2 does not mandate either of these things.
The new rule is adopted under Texas Occupations Code §651.152 and §711.012(b), Texas Health and Safety Code.
§205.2.Ingress and Egress to Cemeteries and Private Burial Grounds Which Have No Public Ingress or Egress.
(a) Section 711.012(b), Texas Health and Safety Code, authorizes the Texas Funeral Service Commission (commission) to promulgate rules to effectuate §711.041, Texas Health and Safety Code.
(b) Section 711.041(a), Texas Health and Safety Code, provides that any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have, for the purposes usually associated with cemetery visits and during reasonable hours, the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds.
(c) Section 711.041(b), Texas Health and Safety Code, provides that the owner or owners of lands surrounding a cemetery or private burial grounds may designate the route or routes of reasonable ingress and egress.
(d) The term "owner or owners of lands surrounding a cemetery or private burial grounds" as used in §711.041(b), Texas Health and Safety Code, means any person, persons, entity, or entities that own lands that lie between a public road and a cemetery or private burial grounds that has no public ingress or egress irrespective of whether such lands are contiguous to the cemetery or private burial grounds or to the public road.
(e) The term "reasonable hours" as used in §711.041(a), Texas Health and Safety Code, means 8:00 a.m. to 5:00 p.m. on any day of the week. It is provided, however, that the hours during the day and the days of the week during which ingress and egress shall be allowed may be more particularly circumscribed by an agreement reached or an order entered pursuant to subsections (i) - (n) of this section.
(f) The phrase "purposes usually associated with cemetery visits" as used in §711.041(a), Texas Health and Safety Code, means a visit by any person or group of persons for the purpose of interring a person or persons in a cemetery or private burial grounds or for the purpose of paying respect to a person or persons interred in a cemetery or private burial grounds.
(g) The use by the Texas Legislature of the word "reasonable" in the phrase "designate the routes of reasonable ingress and egress" as set out in §711.041(b), Texas Health and Safety Code, means:
(1) that an "owner or owners of land surrounding the cemetery or private burial grounds" may not designate a route or routes of ingress and egress that discourages visits to a cemetery or private burial grounds during "reasonable hours" for the "purposes usually associated with cemetery visits" as defined in subsections (d) and (e) of this section; and
(2) that an owner or owners of lands surrounding a cemetery or private burial grounds may not thwart the right of ingress and egress guaranteed by §711.041, Texas Health and Safety Code, by the imposition of liability insurance or other indemnification requirements that render impractical or impossible visits during "reasonable hours" for the "purposes usually associated with cemetery visits" as defined in subsections (d) and (e) of this section.
(h) Within the framework provided by subsections (d) - (g) of this section, persons or entities that are interested in establishing a visitation schedule and a route or routes of reasonable ingress and egress with respect to a particular cemetery or private burial grounds shall make contact with and negotiate with each owner or owners of lands that surround the cemetery or private burial grounds for the purpose of agreeing to and reducing to writing the visitation schedule and route or routes of reasonable ingress and egress to a cemetery or private burial grounds for which no public ingress and egress is available. The persons or entities making contact with the owner or owners of land that surround such a cemetery or public burial grounds shall inform the executive director of the commission that such contact is being initiated.
(i) If the parties reach agreement during the negotiations prescribed by subsection (h) of this section, the persons or entities making contact with the owner or owners of lands shall file a written agreement signed by all parties with the executive director of the commission.
(j) If the parties cannot reach agreement during the negotiations prescribed by subsection (h) of this section, any party to the negotiations may request of the executive director of the commission that the dispute be mediated pursuant to the commission's alternate dispute resolution policy and procedure as set out in §207.1 of this title (relating to Alternative Dispute Resolution Policy and Procedure).
(k) If the mediation is successful, the mediated agreement shall be reduced to writing and filed with the executive director of the commission.
(l) If the mediation is not successful, the executive director shall propose to the commission the adoption of an order setting out a reasonable visitation schedule and a route or routes of reasonable ingress to the cemetery or private burial grounds for which no public ingress or egress is available.
(m) Notice and a copy of the proposed order will be sent by certified mail to all interested parties no less than 30 days prior to the commission meeting at which the adoption of an order will be considered. At the meeting at which the adoption of an order will be considered, each affected party will be given an opportunity to offer testimony with respect to the proposed order. Subject to expansion by the commission on the day of the meeting, time limits on testimony shall be set by the executive director in the notice accompanying a copy of the proposed order.
(n) After consideration of the proposed order and any testimony taken, the commission may adopt the order as proposed, may adopt the order with changes, or may defer action to a future meeting. An order adopted by the commission under this section is final as of the date of the Commission's adoption of the order, as proposed or with changes, at a meeting. A copy of the Commission's final order will be sent to the parties by certified mail.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 30, 2009.
TRD-200900370
O.C. Robbins
Executive Director
Texas Funeral Service Commission
Effective date: February 19, 2009
Proposal publication date: October 31, 2008
For further information, please call: (512) 936-2466