ENTERING CEMETERIES AT NIGHT

One thing we certainly get a lot of is e-mail asking specific questions. Sometimes, the question is more or less the same as ones we have already answered and to this point we would just cut and paste the response back in an e-mail. Recently, one of our group members had a better idea. Post the most notable questions on the web site! Great idea! So here it is, we will add to this section as topics arise. Thanks!

What are the rules for visiting a cemetery at night? Are we really liable for arrest?

A very timely question and a little complicated. To start off, I will tell you what I used to tell rookie police officers in the Academy. "The police officer in the field is the only part of the criminal justice chain who can exercise the right to making judgment calls in the field. He alone decides if an arrest is necessary, or the issuance of a summons, Desk Appearance Ticket (DAT) or to let a person go with a warning or even to take no action at all. If every police officer in New York City decided to, every officer across the city could "Collar Up" within 30 minutes of turning out for their shift. Of course, that would leave the city unprotected, so they are taught to use their "Discretionary Powers."

That being said, a police officer can deem that you are causing a nuisance anywhere and can charge you with trespass under sections of the Penal Code. Will that charge stick in court? Unlikely, unless you go to a Justice of the Peace who really doesn't know the law himself. Assuming you are doing no harm or damage, the trespass statutes do not apply.

Why not? Well, if you look into the state's Public Health Law, you will find all sorts of interesting stuff on cemeteries. One universal condition found in literally all States guarantees the free access to all cemeteries as a public right. In Texas, Section § 711.041 guarantees every citizens' right to enter and leave a cemetery for any purpose, even when the cemetery is clearly marked private property.

According to the legal definition: trespass is:

• An unlawful act causing injury to the person, property, or rights of another, committed with force or violence, actual or implied.

• A wrongful entry upon the lands of another.

• The action to recover damages for such an injury.

• An encroachment or intrusion.

• To encroach on a person's privacy, time, etc.; infringe (usually followed by on or upon).

• To commit a transgression or offense; transgress; offend.

The Public Health statutes in Texas are clear, all cemeteries are to be considered "Public domain" under the law. That is to say, anyone can go into any cemetery for the purpose of visiting, researching, photographing, etc. You can however be held liable for any damages done, but you legally can be there. The penal statutes are muddy on this, first of all, you have to have a complainant to arrest in a trespass case. Case law notes that a genealogist who was found making a rubbing of a tombstone was arrested and convicted for trespass, because the State maintained he had damaged the headstone in the process. He was given 12 months probation and was subject to civil penalties of over $5,000 for the repairs to the stone.

The best rules of thumb should be:

1. Find out who owns the cemetery in advance (if it is not posted, then call the local funeral director, who has the listing of trustees), then call the trustee and tell him what you are about and what you want to do. Get his permission to go tot he site and get a phone number that will work both day and evening!

2. Call the police department, the chief or duty officer and advise him the group will be at that site at a time and date already agreed upon. Give him the trustees name and contact information, and politely ask him to advise both the duty officer and dispatcher on the tour when you will be visiting that you will be there. This will eliminate needless visits by the police and allow them to tell callers that they are aware of your presence.

3. If the police are reluctant, you might want to advise the city council person for the area, or mayor of the situation. But you have every right, under the law in Texas to be there, as long as you are not causing damage or creating a nuisance.

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