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Senate Bill 1167 |
Senate Author: Carona |
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Effective: 9-1-11 |
House Sponsor: Hernandez Luna |
Senate Bill 1167 amends provisions of the Health and Safety Code relating to cemeteries and perpetual care cemetery corporations. The bill establishes the presumption that a person with the right to control the disposition of a decedent's remains is unable or unwilling to control the disposition if the person fails to make final arrangements or appoint another person to make final arrangements for the disposition before a specified date, in which case that right is terminated and passed to another person in a prescribed order of priority. The bill authorizes the installation of a lawn crypt in fewer than 10 units if the crypt is part of a private estate, establishes construction deadlines for the start and completion of a lawn crypt section in a cemetery in which undeveloped lawn crypt spaces are being sold or reserved for sale, and provides for a full refund, on request, of the amount paid for the undeveloped space on the failure to meet either deadline. The bill requires a sales contract for an undeveloped lawn crypt space to disclose certain buyer's options in the event the crypt is not constructed within the specified limits or the person to be interred in the space dies before the completion of the related lawn crypt section. The bill prohibits a perpetual care cemetery from being operated in Texas unless a certificate of formation for a domestic filing entity or registration to transact business for a foreign filing entity is filed with the secretary of state showing, among other information, subscriptions and payments in cash for 100 percent of the entity's ownership or membership interests.
Senate Bill 1167 requires a corporation to hold a certificate of authority issued by the Banking Commissioner of Texas to operate a perpetual care cemetery. The bill establishes criteria that an applicant must demonstrate to the commissioner's satisfaction to qualify for a certificate of authority and establishes requirements relating to the application for and the issuance and renewal of such a certificate. The bill prohibits a transfer or assignment of a certificate of authority, requires a certificate holder to notify the Banking Department of Texas of a transfer of ownership or change of control of the certificate holder's business, and establishes a procedure for the authorized surrender of a certificate of authority under certain conditions.
Senate Bill 1167 authorizes the commissioner to examine certain books, records, and consumer complaint files of a corporation on a periodic basis, rather than annually or more often, and authorizes the commissioner to issue an order requiring restitution by a person if, after notice and opportunity for a hearing, the commissioner finds that a corporation has not ordered memorials in compliance with the deadlines established by rule. The bill authorizes, rather than requires, a trier of fact to make recommendations regarding commissioner sanctions in a case in which the trier of fact finds that a violation of an applicable statute or rule establishes a pattern of wilful disregard for such statutes or rules. The bill authorizes the commissioner to issue an order to cease and desist to a person if the commissioner finds that the person has violated state law, a commissioner's final order, or a Finance Commission of Texas rule relating to perpetual care cemeteries and the violation is not timely corrected after the person receives written notice of the violation and to issue an emergency order if the commissioner finds that immediate and irreparable harm is threatened to the public or a plot owner, marker purchaser, or other person whose interests are protected by provisions relating to perpetual care cemeteries. The bill authorizes the attorney general to seek the appointment of a receiver in conjunction with a proceeding to forfeit the right to do business in Texas brought by the attorney general. The bill makes it an offense for a person to collect money for the purchase of a memorial and knowingly defalcate or misappropriate the funds.