Digging up someone's grave and stealing whatever's down there isn't legal, but what about the dirt laying over the grave or next to a headstone? Is it against the law to take home a scoop or two? And what if the person is somewhat famous? Should you be allowed to sell the dirt you've taken and make a few bucks?
These are all questions facing the Walker County DA's office, which has jurisdiction over a graveyard in Huntsville, where it looks like someone has been taking dirt from atop the graves of serial killers and then auctioning it off on the Internet.
This first came to light when Andy Kahan, the world's leading expert on murderbilia (he literally coined the phrase) noticed that a well-known dealer of murderbilia was trying to sell bags of dirt from the graves of serial killers Henry Lee Lucas and Kenneth McDuff. Both are buried at Captain Joe Byrd Cemetery, which is owned by the Texas Department of Criminal Justice.
Upset that someone had taken the dirt and was trying to make a profit, (both bags have a listed starting bid of $22.50), Kahan called the Walker County DA asking if his office could prosecute.
"They said they could not find a statute and are having someone research it," Kahan tells Hair Balls. "They said in a correspondence that, 'It does not look favorable at this time.'"
The Walker County DA's office has not responded to our request for comment. Neither has the DA's offices in Harris or Brazos counties when we called to ask what they would do.
Seth Howards of the Texas District and County Attorneys Association says there may be a few round-about ways to prosecute someone for this, but it's not clear-cut. First, a DA would have to prove that the dirt was not a fraud, and was actually taken from the grave site. If the dirt was genuine, someone could possibly be charged with theft. If the value of the dirt is worth more that $50 it would be a class C misdemeanor. The more the dirt is worth, the more serious the charges.
However, this could be a jailable offense, depending on the reading and interpretation of state's theft law. Under the Texas Penal Code, it's a state-jail felony if, "regardless of value, the property is stolen from the person of another or from a human corpse or grave ...." Howards says this may apply if the dirt somehow constitutes property stolen from a grave. He also suggests that there may be some way to prosecute for damaging or trespassing on state property, since this particular cemetery is owned by the Texas prison system.
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Michelle Lyons, spokeswoman for TDCJ, says there are no posted visiting hours or signs telling people not to trespass at the cemetery.
"We do not condone anyone removing dirt from any grave on that site," she says. "The hope is that people adhere to the basic decency of visiting a grave site and leave everything as they found it."
If the Walker County DA decides not to pursue charges, Kahan says he will work to amend the the law so that it addresses this type of particularly grim theft.
"If they can't charge him under the current statutes as written," he says, "then we need to come up with something, because this will be an ongoing issue. No matter whose grave it is, it is a sacred place, and for someone to disturb whatever elements that are on someone's grave for the purpose of profiting is as low as you could possibly sink."