H.B. No. 1213
1-1 AN ACT
1-2 relating to the laws governing cemeteries and perpetual care
1-3 cemeteries; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 711.001, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 711.001. Definitions. In this chapter:
1-8 (1) "Burial park" means a tract of land that is
1-9 <dedicated to and is> used or intended to be used for interment in
1-10 graves.
1-11 (2) "Cemetery" means a place that is <dedicated to and
1-12 that is> used or intended to be used for interment, and includes a
1-13 graveyard, burial park, or mausoleum.
1-14 (3) "Cemetery organization <association>" means <an
1-15 organization that is>:
1-16 (A) an unincorporated association of plot owners
1-17 not operated for profit that is authorized by its articles of
1-18 association to conduct a business for cemetery purposes; or
1-19 (B) <or> a corporation, either for profit or not
1-20 for profit, that is<; and>
1-21 <(B)> authorized by its articles of
1-22 incorporation to conduct a business for cemetery purposes.
1-23 (4) "Cemetery purpose" means a purpose necessary or
1-24 incidental to establishing, maintaining, managing, operating,
2-1 improving, or conducting a cemetery, interring remains, or caring
2-2 for, preserving, and embellishing cemetery property.
2-3 (5) "Columbarium" means a durable, fireproof
2-4 structure, or a room or other space in a durable, fireproof
2-5 structure, containing niches and used or intended to be used to
2-6 contain cremated remains.
2-7 (6) "Cremated remains" means the bone fragments
2-8 remaining after the cremation process, which may include the
2-9 residue of any foreign materials that were cremated with the human
2-10 remains <remains after incineration in a crematory>.
2-11 (7) "Cremation" means the irreversible process of
2-12 reducing human remains to bone fragments through extreme heat and
2-13 evaporation, which may include the processing or the pulverization
2-14 of bone fragments <reduction of remains to cremated remains>.
2-15 (8) "Crematory" means a structure containing a furnace
2-16 used or intended to be used for the cremation <incineration> of
2-17 human remains.
2-18 (9) "Crematory and columbarium" means a durable,
2-19 fireproof structure containing both a crematory and columbarium.
2-20 (10) "Crypt" means a chamber in a mausoleum of
2-21 sufficient size to inter human <uncremated> remains.
2-22 (11) "Directors" means the governing body of a
2-23 cemetery organization <association>.
2-24 (12) "Entombment" means interment in a crypt.
2-25 (13) "Funeral establishment" means a place of business
2-26 used in the care and preparation for interment or transportation of
2-27 human remains, or any place where one or more persons, either as
3-1 sole owner, in copartnership, or through corporate status, are
3-2 engaged or represent themselves to be engaged in the business of
3-3 embalming or funeral directing.
3-4 (14) "Grave" means a space of ground that is in a
3-5 burial park and that is used or intended to be used for interment
3-6 in the ground.
3-7 (15) "Human remains" means the body of a decedent.
3-8 (16) <(14)> "Interment" means the permanent
3-9 disposition of remains by entombment, <or> burial, or placement in
3-10 a niche.
3-11 (17) "Interment right" means the right to inter the
3-12 remains of one decedent in a plot.
3-13 (18) <(15)> "Inurnment" means the placement of
3-14 cremated remains in an urn.
3-15 (19) <(16)> "Lawn crypt" means a subsurface concrete
3-16 and reinforced steel receptacle installed in multiple units for
3-17 burial of human remains <in a coffin>.
3-18 (20) <(17)> "Mausoleum" means a durable, fireproof
3-19 structure used or intended to be used for entombment.
3-20 (21) <(18)> "Niche" means a space in a columbarium
3-21 used or intended to be used for the placement of cremated remains
3-22 in an urn or other container.
3-23 (22) <(19)> "Nonperpetual care cemetery" means a
3-24 cemetery that is not a perpetual care cemetery.
3-25 (23) <(20)> "Perpetual care" or "endowment care" means
3-26 the maintenance, repair, and care of all <in proper order of the
3-27 sod, foliage, and> places in the cemetery <in which interments have
4-1 been made>.
4-2 (24) <(21)> "Perpetual care cemetery" or "endowment
4-3 care cemetery" means a cemetery for the benefit of which a
4-4 perpetual care trust fund is established as provided by Chapter
4-5 712.
4-6 (25) <(22)> "Plot" means space in a cemetery owned by
4-7 an individual or organization that is used or intended to be used
4-8 for interment, including a grave or adjoining graves, a crypt or
4-9 adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche
4-10 or adjoining niches.
4-11 (26) <(23)> "Plot owner" means a person:
4-12 (A) in whose name a plot is listed in a cemetery
4-13 organization's <association> office as the owner of the exclusive
4-14 right of sepulture; or
4-15 (B) who holds, from a cemetery organization
4-16 <association>, a <conveyance or a> certificate of ownership or
4-17 other instrument of conveyance of the exclusive right of sepulture
4-18 in a particular plot in the organization's <association's>
4-19 cemetery.
4-20 (27) "Prepaid funeral contract" means a written
4-21 contract providing for prearranged or prepaid funeral services or
4-22 funeral merchandise.
4-23 (28) <(24)> "Remains" means either human remains or
4-24 cremated remains <the body of a decedent>.
4-25 SECTION 2. Section 711.002, Health and Safety Code, is
4-26 amended to read as follows:
4-27 Sec. 711.002. Disposition of Remains; Duty to Inter.
5-1 (a) Unless a decedent has left <other> directions in writing for
5-2 the disposition of the decedent's remains as provided in Subsection
5-3 (g), the following persons, in the priority listed, have the right
5-4 to control the disposition, including cremation, of the decedent's
5-5 <person's> remains, shall inter the remains, and are liable for the
5-6 reasonable cost of interment:
5-7 (1) the person designated in a written instrument
5-8 signed by the decedent;
5-9 (2) the decedent's surviving spouse;
5-10 (3) any one of <(2)> the decedent's surviving adult
5-11 children;
5-12 (4) either one of <(3)> the decedent's surviving
5-13 parents;
5-14 (5) any one of <(4)> the decedent's surviving adult
5-15 siblings; or
5-16 (6) any <(5) the> adult person in the next degree of
5-17 kinship in the order named by law to inherit the estate of the
5-18 decedent <deceased>.
5-19 (b) The written instrument referred to in Subsection (a)(1)
5-20 shall be in substantially the following form:
5-21 APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
5-22 I,___________________________________________________________,
5-23 (your name and address)
5-24 being of sound mind, willfully and voluntarily make known my desire
5-25 that, upon my death, the disposition of my remains shall be
5-26 controlled by __________________________________ in accordance with
5-27 (name of agent)
6-1 Section 711.002 of the Health and Safety Code and, with respect to
6-2 that subject only, I hereby appoint such person as my agent
6-3 (attorney-in-fact).
6-4 All decisions made by my agent with respect to the
6-5 disposition of my remains, including cremation, shall be binding.
6-6 SPECIAL DIRECTIONS:
6-7 Set forth below are any special directions limiting the power
6-8 granted to my agent:
6-9 ___________________________________________________________________
6-10 ___________________________________________________________________
6-11 ___________________________________________________________________
6-12 ___________________________________________________________________
6-13 ___________________________________________________________________
6-14 AGENT:
6-15 Name:________________________________________________________
6-16 Address:_____________________________________________________
6-17 Telephone Number:____________________________________________
6-18 Acceptance of Appointment:___________________________________
6-19 (signature of agent)
6-20 Date of Signature:___________________________________________
6-21 SUCCESSORS:
6-22 If my agent dies, becomes legally disabled, resigns, or
6-23 refuses to act, I hereby appoint the following persons (each to act
6-24 alone and successively, in the order named) to serve as my agent
6-25 (attorney-in-fact) to control the disposition of my remains as
6-26 authorized by this document:
6-27 1. First Successor
7-1 Name:____________________________________________________
7-2 Address:_________________________________________________
7-3 Telephone Number:________________________________________
7-4 Acceptance of Appointment:_______________________________
7-5 (signature of first successor)
7-6 Date of Signature:_______________________________________
7-7 2. Second Successor
7-8 Name:____________________________________________________
7-9 Address:_________________________________________________
7-10 Telephone Number:________________________________________
7-11 Acceptance of Appointment:_______________________________
7-12 (signature of second successor)
7-13 Date of
7-14 Signature:_______________________________________
7-15 DURATION:
7-16 This appointment becomes effective upon my death.
7-17 PRIOR APPOINTMENTS REVOKED:
7-18 I hereby revoke any prior appointment of any person to
7-19 control the disposition of my remains.
7-20 RELIANCE:
7-21 I hereby agree that any cemetery organization, business
7-22 operating a crematory or columbarium or both, funeral director or
7-23 embalmer, or funeral establishment who receives a copy of this
7-24 document may act under it. Any modification or revocation of this
7-25 document is not effective as to any such party until that party
7-26 receives actual notice of the modification or revocation. No such
7-27 party shall be liable because of reliance on a copy of this
8-1 document.
8-2 ASSUMPTION:
8-3 THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS
8-4 APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY
8-5 THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND SAFETY CODE.
8-6 Signed this ____________ day of _____________________, 19___.
8-7 __________________________________
8-8 (your signature)
8-9 State of ____________________
8-10 County of ___________________
8-11 This document was acknowledged before me on _________________
8-12 (date)
8-13 by _____________________________.
8-14 (name of principal)
8-15 _________________________________
8-16 (signature of notarial officer)
8-17 (Seal, if any, of notary) _________________________________
8-18 (printed name)
8-19 My commission expires: _________
8-20 (c) A written instrument is legally sufficient under
8-21 Subsection (a)(1) if the wording of the instrument complies
8-22 substantially with Subsection (b), the instrument is properly
8-23 completed, the instrument is signed by the decedent, the agent, and
8-24 each successor agent, and the signature of the decedent is
8-25 acknowledged. Such written instrument may be modified or revoked
8-26 only by a subsequent written instrument that complies with this
8-27 subsection.
9-1 (d) A person listed in Subsection (a) has the right, duty,
9-2 and liability provided by that subsection only if there is no
9-3 person in a priority listed before the person.
9-4 (e) <(c)> If there is no person with the duty to inter under
9-5 Subsection (a) and:
9-6 (1) an inquest is held, the person conducting the
9-7 inquest shall inter the remains; and
9-8 (2) an inquest is not held, the county in which the
9-9 death occurred shall inter the remains.
9-10 (f) A person <(d) An individual> who represents that the
9-11 person <individual> knows the identity of a <the> decedent and, in
9-12 order to procure the disposition, including cremation, of the
9-13 decedent's remains <interment>, signs an order or statement, other
9-14 than a death certificate, warrants the identity of the decedent and
9-15 is liable for all damages <damage> that result <results>, directly
9-16 or indirectly, from that warrant.
9-17 (g) <(e)> A person may provide written directions for the
9-18 disposition <instructions to direct the preparation for and type or
9-19 place of interment> of the person's remains in a will, a prepaid
9-20 funeral contract, or a written instrument signed and acknowledged
9-21 by such person. The directions <instructions> may be modified or
9-22 revoked only by a subsequent writing signed and acknowledged by
9-23 such person <in writing>. The person <or persons> otherwise
9-24 entitled to control the disposition of a decedent's <the> remains
9-25 under this section shall faithfully carry out the directions
9-26 <instructions> of the decedent to the extent that the decedent's
9-27 estate or the person controlling the disposition are financially
10-1 able to do so.
10-2 (h) <(f)> If the directions <instructions> are in a will,
10-3 they shall be carried out immediately without the necessity of
10-4 probate. If the will is not probated or is declared invalid for
10-5 testamentary purposes, the directions <instructions> are valid to
10-6 the extent to which they have been acted on in good faith.
10-7 (i) <(g)> A cemetery organization, a business operating a
10-8 crematory or columbarium or both, a funeral director or an
10-9 embalmer, or a funeral establishment shall <association is> not be
10-10 liable for carrying out the written directions <instructions> of a
10-11 <the> decedent or the directions of any person who represents that
10-12 the person is entitled to control the disposition of the decedent's
10-13 remains <unless it has actual notice that the representation is
10-14 untrue>.
10-15 (j) Any dispute among any of the persons listed in
10-16 Subsection (a) concerning their right to control the disposition,
10-17 including cremation, of a decedent's remains shall be resolved by a
10-18 court of competent jurisdiction. A cemetery organization or
10-19 funeral establishment shall not be liable for refusing to accept
10-20 the decedent's remains, or to inter or otherwise dispose of the
10-21 decedent's remains, until it receives a court order or other
10-22 suitable confirmation that the dispute has been resolved or
10-23 settled.
10-24 SECTION 3. Section 711.003, Health and Safety Code, is
10-25 amended to read as follows:
10-26 Sec. 711.003. Records of Interment. A record shall be kept
10-27 of each interment in a cemetery. The record must include:
11-1 (1) the date the remains are received;
11-2 (2) the date the remains are interred;
11-3 (3) the name and age of the person interred if those
11-4 facts can be conveniently obtained; and
11-5 (4) the identity of the plot<, and grave, niche, or
11-6 crypt> in which the remains are interred.
11-7 SECTION 4. Section 711.004, Health and Safety Code, is
11-8 amended to read as follows:
11-9 Sec. 711.004. Removal of Remains. (a) Remains<, including
11-10 cremated remains,> interred in a cemetery may be removed from the
11-11 cemetery with the written consent of the cemetery organization
11-12 <association> operating the cemetery and the written consent of the
11-13 current plot owner or owners and the following persons, in the
11-14 priority listed:
11-15 (1) the decedent's surviving spouse;
11-16 (2) the decedent's surviving adult children;
11-17 (3) the decedent's surviving parents;
11-18 (4) the decedent's adult siblings; or
11-19 (5) the adult person in the next degree of kinship in
11-20 the order named by law to inherit the estate of the decedent.
11-21 (b) A person listed in Subsection (a) may consent to the
11-22 removal only if there is no person in a priority listed before that
11-23 <the> person.
11-24 (c) If the consent required by Subsection (a) cannot be
11-25 obtained, the remains may be removed by permission of the county
11-26 court of the county in which the cemetery is located. Before the
11-27 date of application to the court for permission to remove remains
12-1 under this subsection, notice must be given to:
12-2 (1) the cemetery organization <association> operating
12-3 the cemetery in which the remains are interred;
12-4 (2) <the plot owner or owners;>
12-5 <(3)> each person whose consent is required for
12-6 removal of the remains under Subsection (a) <who does not consent
12-7 to the removal>; and
12-8 (3) <(4)> any other person that the court requires to
12-9 be served.
12-10 (d) For the purposes of Subsection (c), personal notice must
12-11 be given not later than the 11th day before the date of application
12-12 to the court for permission to remove the remains, or notice by
12-13 certified or registered mail must be given not later than the 16th
12-14 day before the date of application.
12-15 (e) Subsections (a)-(d) do not apply to the removal of
12-16 remains:
12-17 (1) from one plot to another plot in the same
12-18 cemetery;
12-19 (2) by the cemetery organization <association> from a
12-20 plot for which the purchase price is past due and unpaid, to
12-21 another suitable place; or
12-22 (3) on the order of a court or person who conducts
12-23 inquests.
12-24 (f) Except as is authorized for a justice of the peace
12-25 acting as coroner or medical examiner under Chapter 49, Code of
12-26 Criminal Procedure, remains may not be removed from a cemetery
12-27 except on the written order of the state registrar or the state
13-1 registrar's designee. The cemetery organization shall keep a
13-2 duplicate copy of the order as part of its records. The Texas
13-3 Board of Health may adopt rules to implement this subsection.
13-4 (g) A person who removes remains from a cemetery shall keep
13-5 a record of the removal that includes:
13-6 (1) the date the remains are removed;
13-7 (2) the name and age at death of the decedent if those
13-8 facts can be conveniently obtained;
13-9 (3) the place to which the remains are removed; and
13-10 (4) the cemetery and plot from which the remains are
13-11 removed.
13-12 (h) If the remains are not reinterred, the person who
13-13 removes the remains shall make and keep a record of the disposition
13-14 of the remains.
13-15 (i) A person who removes remains from a cemetery shall give
13-16 the cemetery organization <association> operating the cemetery a
13-17 copy of the record made as required by Subsections (g) and (h).
13-18 SECTION 5. Section 711.006, Health and Safety Code, is
13-19 amended to read as follows:
13-20 Sec. 711.006. Limitations on Crematory Construction and
13-21 Operation. (a) A crematory may be constructed, established, or
13-22 maintained only in a burial park having a columbarium, plot, or
13-23 mausoleum <amply> equipped for the interment of cremated remains
13-24 <cremated at that crematory>.
13-25 (b) The crematory may be in the same fireproof structure as
13-26 the columbarium, plot, or mausoleum, or in a separate fireproof
13-27 building in the same <cemetery or> burial park as the columbarium,
14-1 plot, or mausoleum.
14-2 (c) A crematory that cremates a decedent's human remains
14-3 shall dispose of the cremated remains by:
14-4 (1) delivering the cremated remains to or as directed
14-5 by the funeral establishment that contracted to provide for the
14-6 cremation;
14-7 (2) delivering the cremated remains as directed by the
14-8 person who contracted for the cremation; or
14-9 (3) if not delivered as provided by Subdivision (1) or
14-10 (2), by permanent interment of the cremated remains in a plot.
14-11 (d) Not later than the 90th day after the cremation, the
14-12 crematory shall send a written notice by registered or certified
14-13 mail to the funeral establishment or person who contracted for the
14-14 cremation stating that the cremated remains will be interred under
14-15 Subsection (c)(3) unless the notified funeral establishment or
14-16 person, or other person authorized by the notified funeral
14-17 establishment or person, claims and removes the cremated remains
14-18 not later than the 60th day after the date of the notice.
14-19 (e) A crematory is not liable for any actions taken by the
14-20 crematory in accordance with Subsection (c) or (d) <Cremated
14-21 remains not removed from the crematory for permanent deposit
14-22 elsewhere shall be permanently interred in a grave, crypt, or niche
14-23 not later than the 30th day after the date of cremation>.
14-24 SECTION 6. Section 711.007, Health and Safety Code, is
14-25 amended to read as follows:
14-26 Sec. 711.007. <Nonconforming or Abandoned Cemetery as a>
14-27 NUISANCE; ABATEMENT AND INJUNCTION. (a) A court of the county in
15-1 which a cemetery is located may, by order, abate the cemetery as a
15-2 nuisance and enjoin its continuance if the cemetery is:
15-3 (1) maintained, located, or used in violation of this
15-4 chapter or Chapter 712; or
15-5 (2) neglected so that it is offensive to the
15-6 inhabitants of the surrounding section <and has no perpetual care
15-7 fund regularly and legally established>.
15-8 (b) The proceeding may be brought by:
15-9 (1) the attorney general;
15-10 (2) the Banking Commissioner of Texas;
15-11 (3) the governing body of a municipality with a
15-12 population of more than 25,000, if the cemetery is located in the
15-13 municipality or not farther than five miles from the municipality;
15-14 (4) <(2)> the district attorney of the county, if the
15-15 cemetery is located in an area of the county not described by
15-16 Subdivision (3) <(1)>; <or>
15-17 (5) <(3)> the owner of a residence:
15-18 (A) in or near the municipality in which the
15-19 cemetery is located; or
15-20 (B) in the area proscribed for the location of a
15-21 cemetery by Section 711.008; or
15-22 (6) the owner of a plot in the cemetery.
15-23 (c) The court shall grant a permanent injunction against
15-24 each person responsible for the nuisance if a cemetery nuisance
15-25 exists or is threatened.
15-26 (d) If a cemetery nuisance under Subsection (a)(2) is
15-27 located in a municipality, the governing body of the municipality
16-1 may authorize the removal of all bodies, monuments, tombs, or other
16-2 similar items from the cemetery to a perpetual care cemetery.
16-3 SECTION 7. Section 711.008, Health and Safety Code, is
16-4 amended to read as follows:
16-5 Sec. 711.008. Location of Cemetery. (a) Except as provided
16-6 by Subsections (b) and<,> (c), <and (e),> an individual,
16-7 corporation, partnership, firm, trust, or association may not
16-8 establish or operate a cemetery, or use any land for the interment
16-9 of remains, <inter remains in a cemetery> located:
16-10 (1) in or within one mile of the boundaries of a
16-11 municipality with a population of 5,000 to 25,000;
16-12 (2) in or within two miles of the boundaries of a
16-13 municipality with a population of 25,000 to 50,000;
16-14 (3) in or within three miles of the boundaries of a
16-15 municipality with a population of 50,000 to 100,000;
16-16 (4) in or within four miles of the boundaries of a
16-17 municipality with a population of 100,000 to 200,000; or
16-18 (5) in or within five miles of the boundaries of a
16-19 municipality with a population of at least 200,000.
16-20 (b) Subsection (a) does not apply to:
16-21 (1) a cemetery heretofore established and operating;
16-22 or
16-23 (2) the establishment and use of a columbarium by an
16-24 organized religious society or sect as part of or attached to the
16-25 principal church building owned by the society or sect.
16-26 (c) A cemetery organization <association> operating a
16-27 cemetery that heretofore was used and maintained inside the limits
17-1 prescribed by Subsection (a) may acquire land that is adjacent but
17-2 not necessarily contiguous to the cemetery for cemetery purposes if
17-3 additional land is required. That land may be used as an addition
17-4 to the cemetery.
17-5 (d) Subsection (a) does not apply to a cemetery established
17-6 and operating before September 1, 1995, in a county with a
17-7 population of more than 217,250 and less than 217,450 that borders
17-8 the Gulf of Mexico. <Subsections (e)-(i) apply to the
17-9 establishment or use of a cemetery in a county with a population of
17-10 less than 235,000 that borders the Gulf of Mexico.>
17-11 (e) <Not later than August 31, 1990, a person who desires to
17-12 establish or use a cemetery may file a written application to
17-13 establish or use the cemetery if the cemetery is located inside a
17-14 municipality and 80 percent or more of the municipality's
17-15 boundaries are contiguous with the boundaries or extraterritorial
17-16 jurisdiction of another municipality or if the cemetery is located
17-17 outside a municipality but within the distance prohibited by
17-18 Subsection (a) for the municipality. The application must be filed
17-19 with the governing body of the municipality.>
17-20 <(f) If the location of the proposed cemetery is inside the
17-21 prohibited distance from more than one municipality, the person
17-22 must file a written application with the governing body of each
17-23 municipality.>
17-24 <(g) The governing body of a municipality by ordinance shall
17-25 prescribe the information required in an application submitted
17-26 under this subsection or Subsection (e).>
17-27 <(h) The governing body may grant the application if it
18-1 determines that the establishment or use of the cemetery does not
18-2 adversely affect public health, safety, and welfare.>
18-3 <(i) Before the person may establish or use the cemetery,
18-4 the application must be granted by each municipality required to
18-5 receive an application under this section.>
18-6 <(j)> For the purpose of determining where a cemetery may be
18-7 located under Subsection (a), the boundary of an area annexed by a
18-8 municipality is not considered to be a boundary of the municipality
18-9 if no more than 10 percent of the boundary of the annexed area is
18-10 composed of a part of the boundary of the annexing municipality as
18-11 it existed immediately before the annexation.
18-12 SECTION 8. Section 711.009, Health and Safety Code, is
18-13 amended to read as follows:
18-14 Sec. 711.009. Authority of Cemetery Keeper. (a) The
18-15 superintendent, sexton, or other person in charge of a cemetery has
18-16 the same powers, <and> duties, and immunities granted by law to:
18-17 (1) a police officer in the municipality in which the
18-18 cemetery is located; or
18-19 (2) a constable or sheriff of the county in which the
18-20 cemetery is located if the cemetery is outside a municipality.
18-21 (b) A person who is granted authority under Subsection (a)
18-22 shall maintain order and enforce the cemetery organization's
18-23 <association> rules, state law, and municipal ordinances in the
18-24 cemetery over which that person has charge and as near the cemetery
18-25 as necessary to protect cemetery property.
18-26 SECTION 9. Section 711.021, Health and Safety Code, is
18-27 amended to read as follows:
19-1 Sec. 711.021. Formation of Corporation to Maintain and
19-2 Operate Cemetery. (a) An individual, corporation, partnership,
19-3 firm, trust, or association may not engage in a business for
19-4 cemetery purposes in this state unless the person is a corporation
19-5 organized for those purposes.
19-6 (b) A corporation conducting a business for cemetery
19-7 purposes, including the sale of plots, may be formed only as
19-8 provided by this section. The corporation must be either:
19-9 (1) a nonprofit corporation organized in accordance
19-10 with Section A or B, Article 3.01, Texas Non-Profit Corporation Act
19-11 (Article 1396-3.01, Vernon's Texas Civil Statutes), or with Section
19-12 711.022; or
19-13 (2) a private corporation operated for profit.
19-14 (c) The charter of a cemetery corporation formed after May
19-15 15, 1947, but before September 1, 1993, must state whether the
19-16 corporation:
19-17 (1) is operated for profit or not for profit; and
19-18 (2) is operating a perpetual care cemetery or a
19-19 nonperpetual care cemetery.
19-20 (d) A corporation formed before September 3, 1945, under
19-21 statutory authority other than Section 5, Chapter 340, Acts of the
19-22 49th Legislature, Regular Session, 1945 (Article 912a-5, Vernon's
19-23 Texas Civil Statutes), to maintain and operate a cemetery is
19-24 governed by this chapter only to the extent that this chapter does
19-25 not conflict with the charter or articles of incorporation of the
19-26 corporation.
19-27 (e) This section does not apply to a corporation chartered
20-1 by the state before September 3, 1945, that, under its charter,
20-2 bylaws, or dedication, created a perpetual care trust fund and
20-3 maintains that fund in accordance with the corporation's trust
20-4 agreement, Chapter 712, and this chapter. The corporation may
20-5 operate a perpetual care cemetery without amending the
20-6 corporation's charter as if it had been incorporated under this
20-7 section.
20-8 (f) Any cemetery that begins its initial operations on or
20-9 after September 1, 1993, shall be operated as a perpetual care
20-10 cemetery in accordance with Chapter 712.
20-11 (g) This section does not apply to:
20-12 (1) a family, fraternal, or community cemetery that is
20-13 not larger than 10 acres;
20-14 (2) an unincorporated association of plot owners not
20-15 operated for profit;
20-16 (3) a church, a religious society or denomination, or
20-17 an entity <a corporation> solely administering the temporalities of
20-18 a church or religious society or denomination; or
20-19 (4) a public cemetery belonging to this state or a
20-20 county or municipality.
20-21 SECTION 10. The heading to Subchapter C, Chapter 711, Health
20-22 and Safety Code, is amended to read as follows:
20-23 SUBCHAPTER C. CEMETERY ORGANIZATIONS <ASSOCIATIONS>
20-24 SECTION 11. Section 711.031, Health and Safety Code, is
20-25 amended to read as follows:
20-26 Sec. 711.031. Rules; Civil Penalty. (a) A cemetery
20-27 organization <association> may adopt and enforce rules:
21-1 (1) concerning the use, care, control, management,
21-2 restriction, and protection of the cemetery operated by the
21-3 cemetery organization <association>;
21-4 (2) to restrict the use of cemetery property;
21-5 (3) to regulate the placement, uniformity, class, and
21-6 kind of markers, monuments, effigies, and other structures in any
21-7 part of the cemetery;
21-8 (4) to regulate the planting and care of plants in the
21-9 cemetery;
21-10 (5) to prevent the interment of remains not entitled
21-11 to be interred in the cemetery;
21-12 (6) to prevent the use of a plot for a purpose that
21-13 violates the cemetery organization's <association> restrictions;
21-14 (7) to regulate the conduct of persons on cemetery
21-15 property and to prevent improper meetings at the cemetery; and
21-16 (8) for other purposes the directors consider
21-17 necessary for the proper conduct of the cemetery organization's
21-18 <association> business, and for the protection of the premises and
21-19 the principles, plans, and ideals on which the cemetery was
21-20 organized.
21-21 (b) Rules adopted under this section must be plainly printed
21-22 or typed and maintained for inspection in the cemetery
21-23 organization's <association's> office or another place in the
21-24 cemetery prescribed by the directors.
21-25 (c) The directors may prescribe a penalty for the violation
21-26 of a rule adopted under this section. The cemetery organization
21-27 <association> may recover the amount of the penalty in a civil
22-1 action.
22-2 SECTION 12. Subchapter C, Chapter 711, Health and Safety
22-3 Code, is amended by adding Section 711.0311 to read as follows:
22-4 Sec. 711.0311. DESECRATION OF CEMETERY. (a) A person
22-5 commits an offense if the person acts without proper legal
22-6 authority and knowingly:
22-7 (1) destroys or damages the remains of a decedent;
22-8 (2) removes any portion of the remains of a decedent
22-9 from a plot or other repository of remains;
22-10 (3) desecrates remains; or
22-11 (4) obliterates, vandalizes, or desecrates a plot or
22-12 other repository of remains.
22-13 (b) An offense under Subsection (a) is a felony of the third
22-14 degree. The person found guilty of committing the offense shall
22-15 provide restitution to the cemetery organization for any damage
22-16 caused by the person.
22-17 (c) A person commits an offense if the person acts without
22-18 proper legal authority and knowingly:
22-19 (1) defaces, vandalizes, injures, or removes a
22-20 gravestone, monument, or other structure commemorating a deceased
22-21 person or group of persons, whether located within or outside of a
22-22 cemetery;
22-23 (2) obliterates, vandalizes, or desecrates a park or
22-24 other area clearly designated to preserve and perpetuate the memory
22-25 of a deceased person or group of persons;
22-26 (3) obliterates, vandalizes, or desecrates plants,
22-27 trees, shrubs, or flowers located on or around a cemetery; or
23-1 (4) obliterates, vandalizes, or desecrates a fence,
23-2 rail, curb, or other structure of a similar nature intended for the
23-3 protection or for the ornamentation of any plot, gravestone,
23-4 monument, or other structure of similar character.
23-5 (d) An offense under Subsection (c) is a Class C
23-6 misdemeanor. The person found guilty of committing the offense
23-7 shall provide restitution to the cemetery organization for the
23-8 amount of any damage caused by the person.
23-9 (e) Subsections (a)-(d) do not apply to the removal or
23-10 unavoidable breakage or injury by a cemetery organization of
23-11 anything placed in or on any portion of its cemetery in violation
23-12 of any of the rules of the cemetery organization, to the removal of
23-13 anything placed in the cemetery in violation of any of the rules of
23-14 the cemetery organization, or to the removal of anything placed in
23-15 the cemetery by or with the consent of the cemetery organization
23-16 that in its judgment has become wrecked, unsightly, or dilapidated.
23-17 (f) If an unemancipated minor is found guilty of violating
23-18 Subsection (a) or (c) and is unable to provide restitution to the
23-19 cemetery organization, the minor may be required to spend that
23-20 amount of time in service to the community as is determined by the
23-21 court or the parents or legal guardians of the minor may be
23-22 required to provide restitution to the cemetery organization for
23-23 the amount of any damage caused by the offense, up to the total
23-24 amount allowed under law.
23-25 (g) A person commits an offense if the person knowingly
23-26 enters or knowingly remains on the premises of a cemetery without
23-27 authorization during hours that the cemetery is posted as closed to
24-1 the public. An offense under this subsection is a Class C
24-2 misdemeanor.
24-3 (h) This section does not prevent a cemetery organization or
24-4 the owner of a plot, gravestone, monument, or other structure of
24-5 similar character from maintaining a civil action for the recovery
24-6 of damages caused by any injury resulting from a violation of this
24-7 section.
24-8 SECTION 13. Section 711.032, Health and Safety Code, is
24-9 amended to read as follows:
24-10 Sec. 711.032. Discrimination by Race, Color, or National
24-11 Origin Prohibited. (a) A cemetery organization <association> may
24-12 not adopt or enforce a rule that prohibits interment because of the
24-13 race, color, or national origin of a decedent.
24-14 (b) A provision of a contract entered into by a cemetery
24-15 organization <association> or of a <deed or> certificate of
24-16 ownership or other instrument of conveyance <granted or> issued by
24-17 a cemetery organization <association> that prohibits interment in
24-18 a cemetery because of the race, color, or national origin of a
24-19 decedent is void.
24-20 SECTION 14. Section 711.033, Health and Safety Code, is
24-21 amended to read as follows:
24-22 Sec. 711.033. PROPERTY ACQUISITION BY CEMETERY ORGANIZATION
24-23 <ASSOCIATION>; RECORDING TITLE. (a) A cemetery organization
24-24 <association> may acquire by purchase, donation, or devise property
24-25 consisting of land, a mausoleum, a crematory and columbarium, or
24-26 other property in which remains may be interred under law.
24-27 (b) A cemetery organization <association> that acquires
25-1 property may record <the association's> title to its <the> property
25-2 with the county clerk of the county in which the property is
25-3 located if its <the association> president and secretary or other
25-4 authorized officer acknowledge a declaration executed by the
25-5 cemetery organization <association> that describes the property and
25-6 declares the cemetery organization's <association's> intention to
25-7 use the property or a part of the property for interment purposes.
25-8 (c) Filing under Subsection (b) is constructive notice as of
25-9 the date of the filing of the use of the property for interment.
25-10 (d) A cemetery organization <association> may by
25-11 condemnation acquire property in which remains may be interred, and
25-12 the acquisition of that property is for a public purpose.
25-13 SECTION 15. Section 711.034, Health and Safety Code, is
25-14 amended to read as follows:
25-15 Sec. 711.034. Dedication. (a) A cemetery organization
25-16 <association> that acquires property for interment purposes shall:
25-17 (1) in the case of land, survey and subdivide the
25-18 property into gardens or sections, with descriptive names or
25-19 numbers <blocks, lots, avenues, walks, or other subdivisions>, and
25-20 make a map or plat of the property showing the plots contained
25-21 within the perimeter boundary <subdivisions, with descriptive names
25-22 or numbers>; or
25-23 (2) in the case of a mausoleum or a crematory and
25-24 columbarium, make a map or plat of the property<,> delineating
25-25 sections or other divisions<, halls, rooms, corridors, elevators,
25-26 or other divisions of the property,> with descriptive names and
25-27 numbers.
26-1 (b) The cemetery organization <association> shall file the
26-2 map or plat with the county clerk of each county in which the
26-3 property or any part of the property is located.
26-4 (c) The cemetery organization <association> shall file with
26-5 the map or plat a written certificate or declaration of dedication
26-6 of the property delineated by the map or plat, dedicating the
26-7 property exclusively to cemetery purposes. The certificate or
26-8 declaration must be:
26-9 (1) in a form prescribed by the directors or
26-10 <association> officers of the cemetery organization;
26-11 (2) signed by the <association> president or
26-12 vice-president and <by> the secretary of the cemetery organization
26-13 <association>, or by another person authorized by the directors;
26-14 and
26-15 (3) acknowledged.
26-16 (d) Filing a map or plat and a certificate or declaration
26-17 under this section dedicates the property for cemetery purposes and
26-18 is constructive notice of that dedication.
26-19 (e) The certificate or declaration may contain a provision
26-20 permitting the directors by order to resurvey and change the shape
26-21 and size of the property for which the associated map or plat is
26-22 filed if that change does not disturb any interred remains. If a
26-23 change is made, the cemetery organization <association> shall file
26-24 an amended map or plat.
26-25 (f) The county clerk shall number and file the map or plat
26-26 and record the certificate or declaration in the county deed
26-27 records.
27-1 SECTION 16. Section 711.035, Health and Safety Code, is
27-2 amended to read as follows:
27-3 Sec. 711.035. Effect of Dedication. (a) Property may be
27-4 dedicated for cemetery purposes, and the dedication is permitted in
27-5 respect for the dead, for the disposition of remains, and in
27-6 fulfillment of a duty to and for the benefit of the public.
27-7 (b) Dedication of cemetery property and title to the
27-8 exclusive right of sepulture of a plot owner are not affected by
27-9 the dissolution of the cemetery organization <association>, nonuse
27-10 by the cemetery organization <association>, alienation,
27-11 encumbrance, or forced sale of the property.
27-12 (c) Dedication of cemetery property may not be invalidated
27-13 because of a violation of the law against perpetuities or the law
27-14 against the suspension of the power of alienation of title to or
27-15 use of property.
27-16 (d) A railroad, street, road, alley, pipeline, telephone,
27-17 telegraph, electric line, or other public utility or thoroughfare
27-18 may not be placed through, over, or across a part of a dedicated
27-19 cemetery without the consent of:
27-20 (1) the directors of the cemetery organization
27-21 <association> that owns or operates the cemetery; or
27-22 (2) at least two-thirds of the owners of plots in the
27-23 cemetery.
27-24 (e) All property of a dedicated cemetery, including a road,
27-25 alley, or walk in the cemetery:
27-26 (1) is exempt from public improvements assessments,
27-27 fees, and public taxation; and
28-1 (2) may not be sold on execution or applied in payment
28-2 of debts due from individual owners and plots.
28-3 (f) Dedicated cemetery property shall be used exclusively
28-4 for cemetery purposes until the dedication is removed by court
28-5 order or until the maintenance of the cemetery is enjoined or
28-6 abated as a nuisance under Section 711.007.
28-7 SECTION 17. Section 711.036, Health and Safety Code, is
28-8 amended to read as follows:
28-9 Sec. 711.036. Removal of Dedication. (a) A cemetery
28-10 organization may petition a district court of the county in which
28-11 its <a> dedicated cemetery is located to <may, by order,> remove
28-12 the dedication with respect to all or any portion of the cemetery
28-13 if:
28-14 (1) all the remains have been removed from that
28-15 portion of the cemetery where the dedication is to be removed; or
28-16 (2) no interments were made in that portion of the
28-17 cemetery where the dedication is to be removed and that portion of
28-18 the cemetery is not used or necessary for interment purposes.
28-19 (b) <A proceeding may be brought by:>
28-20 <(1) the governing body of a municipality with a
28-21 population of more than 25,000, if the cemetery is located in the
28-22 municipality or not farther than five miles from the municipality;>
28-23 <(2) the district attorney of the county, if the
28-24 cemetery is located in an area of the county not described by
28-25 Subdivision (1); or>
28-26 <(3) the owner of property situated so that its value
28-27 is affected by the cemetery.>
29-1 <(c)> The court shall <may> order the removal of the
29-2 dedication <of a cemetery> on notice and proof satisfactory to the
29-3 court.
29-4 <(d) The district court in a county in which a dedicated
29-5 cemetery is located may, in a proceeding brought by the affected
29-6 political subdivision, remove the dedication from property lying in
29-7 the path of proposed construction of or on a highway, thoroughfare,
29-8 road, or street if:>
29-9 <(1) the United States, this state, a county, a
29-10 municipality, or another governmental subdivision of this state
29-11 determines that a new highway, thoroughfare, road, or street will
29-12 be constructed along a proposed route or that an existing highway,
29-13 thoroughfare, road, or street will be widened;>
29-14 <(2) the determination is a matter of public record;
29-15 and>
29-16 <(3) after the determination, property lying in the
29-17 path of the proposed route is dedicated for cemetery purposes.>
29-18 <(e) Dedication of property for cemetery purposes under the
29-19 circumstances described by Subsection (d) is presumed to be made in
29-20 fraud of the rights of the public and for the sole purpose of
29-21 enhancing the value of property to be condemned.>
29-22 SECTION 18. Section 711.037, Health and Safety Code, is
29-23 amended to read as follows:
29-24 Sec. 711.037. Lien Against Cemetery Property. (a) A
29-25 cemetery organization <association> by contract may incur
29-26 indebtedness as required to conduct its <the association's>
29-27 business and may secure the indebtedness by mortgage, deed of
30-1 trust, or other lien against its <association> property.
30-2 (b) A mortgage, deed of trust, or other lien placed on
30-3 dedicated cemetery property, or on cemetery property that is later
30-4 dedicated with the consent of the holder of the lien, does not
30-5 affect the dedication and is subject to the dedication. A sale on
30-6 foreclosure of the lien is subject to the dedication of the
30-7 property for cemetery purposes.
30-8 SECTION 19. Section 711.038, Health and Safety Code, is
30-9 amended to read as follows:
30-10 Sec. 711.038. Sale of Plots. (a) A cemetery organization
30-11 <association> may sell and convey the exclusive right of sepulture
30-12 in a plot:
30-13 (1) after a map or plat and a certificate or
30-14 declaration of dedication are filed as provided by Section 711.034;
30-15 <and>
30-16 (2) subject to the rules of the cemetery organization
30-17 <association> and the restrictions in the certificate of ownership
30-18 or other instrument of conveyance; and
30-19 (3) after payment in full of the purchase price of the
30-20 plot.
30-21 (b) A certificate of ownership or other instrument
30-22 evidencing the conveyance of the exclusive right of sepulture by a
30-23 cemetery organization <association> must be signed by the
30-24 <association> president or vice-president and the <association>
30-25 secretary or other officers authorized by the cemetery organization
30-26 <association>.
30-27 (c) A conveyance of the exclusive right of sepulture must be
31-1 filed and recorded in the cemetery organization's <association's>
31-2 office.
31-3 (d) A plot or a part of a plot that is conveyed as a
31-4 separate plot by a certificate of ownership or other instrument may
31-5 not be divided without the consent of the cemetery organization
31-6 <association>.
31-7 (e) A person is not required to be licensed to sell a plot
31-8 in a dedicated cemetery.
31-9 SECTION 20. Section 711.039, Health and Safety Code, is
31-10 amended to read as follows:
31-11 Sec. 711.039. Rights of Interment in Plot. (a) A plot in
31-12 which the exclusive right of sepulture is conveyed is presumed to
31-13 be the separate property of the person named as grantee in the
31-14 certificate of ownership or other instrument of conveyance.
31-15 (b) The spouse of a person to whom the exclusive right of
31-16 sepulture in a plot is conveyed has a vested right of interment of
31-17 the spouse's remains in the plot while the spouse is married to the
31-18 plot owner or if the spouse is married to the plot owner at the
31-19 time of the owner's death.
31-20 (c) An attempted conveyance or other action without the
31-21 joinder or written, attached consent of the spouse of the plot
31-22 owner does not divest the spouse of the vested right of interment.
31-23 (d) The vested right of interment is terminated:
31-24 (1) on the final decree of divorce between the plot
31-25 owner and the owner's former spouse unless the decree provides
31-26 otherwise; or
31-27 (2) when the remains of the person having the vested
32-1 right are interred elsewhere.
32-2 (e) Unless a plot owner who has the exclusive right of
32-3 sepulture in a plot and who is interred in that plot has made a
32-4 specific disposition of the plot by express reference to the plot
32-5 in the owner's will or by written declaration filed and recorded in
32-6 the office of the cemetery organization <association>:
32-7 (1) a grave, niche, or crypt in the plot shall be
32-8 reserved for the surviving spouse of the plot owner; and
32-9 (2) the owner's children, in order of need, may be
32-10 interred in any remaining graves, niches, or crypts of the plot
32-11 without the consent of a person claiming an interest in the plot.
32-12 (f) The surviving spouse or a child of an interred plot
32-13 owner may each waive his right of interment in the plot in favor of
32-14 a relative of the owner or relative of the owner's spouse. The
32-15 person in whose favor the waiver is made may be interred in the
32-16 plot.
32-17 (g) The exclusive right of sepulture in an unused grave,
32-18 niche, or crypt of a plot in which the plot owner has been interred
32-19 may be conveyed only by:
32-20 (1) specific disposition of the unused grave, niche,
32-21 or crypt by express reference to it in a will or by written
32-22 declaration of the plot owner filed and recorded in the office of
32-23 the cemetery organization;
32-24 (2) the surviving spouse, if any, and children of the
32-25 owner; or
32-26 (3) <(2)> the surviving spouse, if any, and the
32-27 heirs-at-law of the owner, if there is no surviving child of the
33-1 owner.
33-2 (h) Unless a deceased plot owner who has the exclusive right
33-3 of sepulture in a plot and who is not interred in the plot has
33-4 otherwise made specific disposition of the plot <by express
33-5 reference to the plot in a will or by written declaration filed and
33-6 recorded in the office of the cemetery association>, the exclusive
33-7 right of sepulture in the plot, except the one grave, niche, or
33-8 crypt reserved for the surviving spouse, if any, vests on the death
33-9 of the owner in the owner's heirs-at-law and may be conveyed by
33-10 them.
33-11 SECTION 21. Section 711.040, Health and Safety Code, is
33-12 amended to read as follows:
33-13 Sec. 711.040. Multiple Owners of Plot. Two or more owners
33-14 of a plot may designate a person to represent the plot and file
33-15 with the cemetery organization <association> written notice of the
33-16 designation. If notice is not filed, the cemetery organization
33-17 <association> may inter or permit an interment in the plot at the
33-18 request or direction of a registered co-owner of the plot.
33-19 SECTION 22. Subchapter C, Chapter 711, Health and Safety
33-20 Code, is amended by adding Section 711.041 to read as follows:
33-21 Sec. 711.041. ACCESS TO CEMETERY. (a) Any person who
33-22 wishes to visit a cemetery or private burial grounds for which no
33-23 public ingress or egress is available shall have the right to
33-24 reasonable ingress and egress for the purpose of visiting the
33-25 cemetery or private burial grounds. This right of access extends
33-26 only to visitation during reasonable hours and only for purposes
33-27 usually associated with cemetery visits.
34-1 (b) The owner or owners of the lands surrounding the
34-2 cemetery or private burial grounds may designate the routes of
34-3 reasonable ingress and egress.
34-4 SECTION 23. Section 711.052, Health and Safety Code, is
34-5 amended to read as follows:
34-6 Sec. 711.052. Criminal Penalties. (a) A person who is an
34-7 individual, firm, association, corporation, or municipality, or an
34-8 officer, agent, or employee of an individual, firm, association,
34-9 corporation, or municipality, commits an offense if the person:
34-10 (1) engages in a business for cemetery purposes in
34-11 this state other than through a corporation organized for that
34-12 purpose, if a corporation is required by law;
34-13 (2) fails or refuses to keep records of interment as
34-14 required by Sections 711.003 and 711.004;
34-15 (3) sells, offers to sell, or advertises for sale a
34-16 plot or the exclusive right of sepulture in a plot for purposes of
34-17 speculation or investment; or
34-18 (4) represents through advertising or printed material
34-19 that a retail department will be established for the resale of the
34-20 plots of plot purchasers, that specific improvements will be made
34-21 in the cemetery, or that specific merchandise or services will be
34-22 furnished to a plot owner, unless adequate funds or reserves are
34-23 created by the cemetery organization <operator> for the represented
34-24 purpose.
34-25 (b) A cemetery organization or an officer, agent, or
34-26 employee of the cemetery organization commits an offense if the
34-27 cemetery organization, officer, agent, or employee offers any
35-1 inducement, pecuniary or otherwise, to any person or entity for the
35-2 purpose of securing or attempting to secure business for that
35-3 cemetery organization. This subsection does not prohibit the
35-4 offering or payment by a cemetery organization of any such
35-5 inducement, pecuniary or otherwise, to an officer, employee, agent,
35-6 subcontractor, or representative of the cemetery organization. <An
35-7 officer, agent, or employee of a cemetery or cemetery association
35-8 commits an offense if the officer, agent, or employee pays or
35-9 offers to pay a commission, rebate, or gratuity to a funeral
35-10 director or the funeral director's employee>.
35-11 (c) A cemetery organization or an officer, agent, or
35-12 employee of the cemetery organization <association or an officer or
35-13 employee of the association> commits an offense if the cemetery
35-14 organization, officer, agent, or employee of a cemetery
35-15 organization <association, officer, or employee> offers a free plot
35-16 in a drawing, in a lottery, or in another manner, unless the offer
35-17 is for the immediate burial of an indigent person.
35-18 (d) An offense under this section is a Class A misdemeanor
35-19 <punishable by:>
35-20 <(1) a fine not to exceed $500; or>
35-21 <(2) if the defendant is an individual, by a fine not
35-22 to exceed $500, confinement in the county jail for a term not to
35-23 exceed six months, or both>.
35-24 SECTION 24. Section 712.001, Health and Safety Code, is
35-25 amended to read as follows:
35-26 Sec. 712.001. Definitions. (a) The definitions provided by
35-27 Section 711.001 apply to this chapter.
36-1 (b) In this chapter:
36-2 (1) "Banking department" means the Banking Department
36-3 of Texas.
36-4 (2) "Commissioner" means the Banking Commissioner of
36-5 Texas.
36-6 (3) "Corporation" means a corporation that is
36-7 organized under this chapter, or any corresponding statute in
36-8 effect before September 1, 1993, to operate one or more perpetual
36-9 care cemeteries in this state.
36-10 (4) "Fund" means a <cemetery> perpetual care trust
36-11 fund established by one or more corporations under this chapter or
36-12 any corresponding statute in effect before September 1, 1993.
36-13 (5) <(4)> "Trustee" means the trustee of a cemetery
36-14 perpetual care trust fund.
36-15 SECTION 25. Section 712.002, Health and Safety Code, is
36-16 amended to read as follows:
36-17 Sec. 712.002. Exemptions From Chapter. This chapter does
36-18 not apply to:
36-19 (1) a family, fraternal, or community cemetery;
36-20 (2) an unincorporated association of plot owners not
36-21 operated for profit;
36-22 (3) a nonprofit corporation organized by plot owners;
36-23 or
36-24 (4) a church, a religious society or denomination, or
36-25 an entity <a corporation> solely administering the temporalities of
36-26 a church or religious society or denomination.
36-27 SECTION 26. Section 712.003, Health and Safety Code, is
37-1 amended to read as follows:
37-2 Sec. 712.003. Incorporation Required; Minimum Capital.
37-3 (a) A perpetual care cemetery may not be operated in this state
37-4 unless articles of incorporation are filed <organized unless the
37-5 cemetery files> with the secretary of state <articles of
37-6 incorporation> showing:
37-7 (1) subscriptions and payments <payment> in cash for
37-8 the corporation's <of the cemetery's> full capital stock;
37-9 (2) the location of its perpetual care <the> cemetery
37-10 <property>; and
37-11 (3) a certificate showing the deposit in its fund of
37-12 the minimum amount required under <of the cemetery's perpetual care
37-13 and maintenance guarantee fund in accordance with> Section 712.004.
37-14 (b) A corporation chartered on or after September 5, 1955,
37-15 and before September 1, 1993, <perpetual care cemetery> must have a
37-16 minimum capital of:
37-17 (1) $15,000, if the cemetery serves a municipality
37-18 with a population of less than 15,000;
37-19 (2) $30,000, if the cemetery serves a municipality
37-20 with a population of 15,000 to 25,000; or
37-21 (3) $50,000, if the cemetery serves a municipality
37-22 with a population of at least 25,000.
37-23 (c) A corporation chartered on or after September 1, 1993,
37-24 must have a minimum capital of $75,000 <This section does not
37-25 apply to a cemetery corporation chartered before September 5, 1955,
37-26 except that a corporation that amends its charter must comply with
37-27 the minimum requirements of this section>.
38-1 (d) A nonprofit <cemetery> association or corporation
38-2 operated solely for the benefit of plot owners <its members>
38-3 seeking to convert a <permanent care> cemetery to a perpetual care
38-4 cemetery under this chapter <Section 712.004 and Subchapter B> is
38-5 not required to <issue capital stock to> meet the <minimum capital>
38-6 requirements prescribed by this section and Section 712.004 if the
38-7 cemetery has existed for at least 75 years and the association or
38-8 corporation has operated the cemetery for the preceding 10 years.
38-9 SECTION 27. Subchapter A, Chapter 712, Health and Safety
38-10 Code, is amended by adding Section 712.0031 to read as follows:
38-11 Sec. 712.0031. NOTICES TO BANKING DEPARTMENT. (a) Not
38-12 later than the 30th day after the date a corporation files its
38-13 articles of incorporation with the secretary of state, the
38-14 corporation shall notify the banking department in writing of its
38-15 intent to operate a perpetual care cemetery in this state. The
38-16 notice shall be accompanied by a filing fee of $500, shall be sworn
38-17 to and verified under oath by all persons subscribing to the
38-18 capital stock of the corporation, and shall contain:
38-19 (1) the information required to be provided to the
38-20 secretary of state under Section 712.003;
38-21 (2) the names and addresses of any other persons or
38-22 entities who are or will be beneficial owners of the capital stock
38-23 of the corporation or otherwise share an interest in the ownership
38-24 of the corporation's capital stock, or who have paid or will pay
38-25 any portion of the consideration therefor;
38-26 (3) the name and address of any person or entity to
38-27 whom the capital stock or assets of the corporation are or will be
39-1 pledged as security for any loan; and
39-2 (4) the name and address of the person who will
39-3 actively manage the cemetery operations of the corporation along
39-4 with a brief statement of that person's working experience in the
39-5 cemetery industry.
39-6 (b) A cemetery operations manager must have at least two
39-7 years of experience in cemetery management.
39-8 (c) If the corporation fails to provide to the banking
39-9 department the information prescribed by Subsection (a), the
39-10 commissioner may instruct the secretary of state to cancel the
39-11 corporation's charter and serve notice of the cancellation on the
39-12 corporation by registered or certified letter, addressed to the
39-13 corporation's address.
39-14 (d) A corporation shall notify the commissioner in writing
39-15 of any change in the controlling ownership interest of the capital
39-16 stock of the corporation not later than the 30th day following the
39-17 change of controlling ownership interest.
39-18 SECTION 28. Section 712.004, Health and Safety Code, is
39-19 amended to read as follows:
39-20 Sec. 712.004. PERPETUAL CARE TRUST <AND MAINTENANCE
39-21 GUARANTEE> FUND REQUIRED. (a) Before obtaining a corporate
39-22 charter, the incorporators of a corporation chartered on or after
39-23 September 3, 1945, and before September 1, 1993, <a perpetual care
39-24 cemetery> must establish a <minimum perpetual care and maintenance
39-25 guarantee> fund by permanently depositing in cash with the trustee
39-26 of the fund:
39-27 (1) $15,000, if the corporation <cemetery> has capital
40-1 stock of $15,000;
40-2 (2) $30,000, if the corporation <cemetery> has capital
40-3 stock of $30,000; or
40-4 (3) $50,000, if the corporation <cemetery> has capital
40-5 stock of $50,000 or more.
40-6 (b) Before obtaining a corporate charter, the incorporators
40-7 of a corporation chartered on or after September 1, 1993, must
40-8 establish a fund by permanently depositing in cash with the trustee
40-9 of the fund an amount of not less than $50,000 for each perpetual
40-10 care cemetery operated in this state.
40-11 (c) The <guarantee> fund shall be permanently set aside and
40-12 deposited in trust with the trustee in accordance with Subchapter
40-13 B.
40-14 <(c) The amount of deposit required by law to be placed in
40-15 trust for the perpetual care and maintenance of the cemetery from
40-16 the receipts for the sale of a plot may, on the sale, be credited
40-17 against the original perpetual care and maintenance guarantee fund
40-18 until the amount of the credits equals the amount of the original
40-19 deposit. After credits for that amount have been taken, the
40-20 corporation shall deposit in the perpetual care trust fund the
40-21 minimum amount required by law and any additional amount required
40-22 by the rules, trust agreement, or contract of the cemetery
40-23 association for the cemetery's perpetual care and maintenance.>
40-24 <(d) This section does not apply to a cemetery corporation
40-25 chartered before September 3, 1945, except that a corporation that
40-26 amends its charter must comply with the minimum requirements of
40-27 this section.>
41-1 SECTION 29. Section 712.005, Health and Safety Code, is
41-2 amended to read as follows:
41-3 Sec. 712.005. Cancellation of Charter for Failure to Begin
41-4 Operation of Perpetual Care Cemetery <CORPORATION>. (a) If a
41-5 corporation chartered under Section 712.003 does not begin actual
41-6 operation of its perpetual care cemetery <under the charter> for
41-7 six months after the charter is granted and delivered, the
41-8 commissioner may instruct the secretary of state to <shall> cancel
41-9 the charter and serve notice of the cancellation on the corporation
41-10 <association> by registered or certified letter, addressed to the
41-11 corporation's <association's> address.
41-12 (b) The commissioner may rescind the order of cancellation
41-13 on:
41-14 (1) the application of the directors;
41-15 (2) the payment to the commissioner of a penalty set
41-16 by the commissioner in an amount not to exceed $500;
41-17 (3) the execution and delivery to the commissioner of
41-18 an agreement to begin actual operation of the perpetual care
41-19 cemetery not later than one month after the date of the agreement;
41-20 and
41-21 (4) a proper showing by the trustee that the <money of
41-22 the> fund is on deposit.
41-23 (c) If the corporation does not begin actual <active>
41-24 operation as agreed, the commissioner by order may <shall> set
41-25 aside the order of rescission and the cancellation is final. The
41-26 commissioner shall make a full report of the cancellation to the
41-27 attorney general for liquidation of the corporation, if liquidation
42-1 is necessary.
42-2 (d) If no sale of the dedicated cemetery property of the
42-3 corporation is made, a certified copy of the order of cancellation
42-4 authorizes the trustee to refund the fund to the incorporators who
42-5 signed the corporation's articles of incorporation.
42-6 SECTION 30. Section 712.007, Health and Safety Code, is
42-7 amended to read as follows:
42-8 Sec. 712.007. Notice of Perpetual Care Required. (a) A
42-9 corporation <perpetual care cemetery> shall post a sign <in a
42-10 conspicuous place in all offices in which sales are conducted or,
42-11 if there is no office,> at or near a <the> cemetery entrance or
42-12 administration building and readily accessible to the public.
42-13 (b) The sign must contain the following<, in the manner and
42-14 order stated>:
42-15 (1) "Perpetual Care Cemetery," or "Endowment Care
42-16 Cemetery" <in a minimum of 48-point black type>;
42-17 (2) the names and telephone numbers of two of the
42-18 corporation's <cemetery> officers or <and> directors; and
42-19 (3) the name of each <the> bank or trust company
42-20 entrusted with the fund.
42-21 (c) A corporation <perpetual care cemetery> must include the
42-22 following statement in each sales contract, certificate of
42-23 ownership, <sales contract,> or other instrument of conveyance of
42-24 the exclusive right of sepulture:
42-25 "This cemetery is operated as a perpetual care
42-26 cemetery, which means that a perpetual care fund for
42-27 its maintenance has been established in conformity with
43-1 the laws of the State of Texas. Perpetual care means
43-2 to maintain, <keep the sod in> repair, and care for the
43-3 cemetery <all places where interments have been made in
43-4 order and to care for trees and shrubs planted by the
43-5 cemetery>."
43-6 (d) The term "endowment care" may be substituted for the
43-7 term "perpetual care" in the statement required by Subsection (c).
43-8 SECTION 31. Section 712.021, Health and Safety Code, is
43-9 amended to read as follows:
43-10 Sec. 712.021. Establishment and Purposes of Fund. (a) A
43-11 corporation <cemetery association> that <maintains,> operates<, or
43-12 conducts> a perpetual care cemetery in this state<, including a
43-13 permanent maintenance or free-care cemetery,> shall have a
43-14 <perpetual care trust> fund established with a trust company or a
43-15 bank with trust powers that is located in this state. The trust
43-16 company or bank may not have more than one director who is also a
43-17 director of the corporation <cemetery association>.
43-18 (b) <If there is no trust company or bank with trust powers
43-19 that is qualified and willing to accept the trust funds at the
43-20 regular fees established by the Texas Trust Code (Section 111.001
43-21 et seq., Property Code) and that is located in the county in which
43-22 the cemetery association is located, the fund may be established
43-23 with a board of trustees composed of three or more persons, no two
43-24 trustees of which are also directors.>
43-25 <(c)> The principal of the fund may not be reduced
43-26 voluntarily, and it must remain inviolable. The trustee shall
43-27 maintain the principal of the fund separate from all operating
44-1 <other> funds of the corporation.
44-2 (c) <(d)> In establishing a fund, the corporation
44-3 <association> may adopt plans for the general care, maintenance,
44-4 and embellishment of its perpetual care <the> cemetery.
44-5 (d) <(e)> The fund and the trustee are governed by the Texas
44-6 Trust Code (Section 111.001 et seq., Property Code).
44-7 (e) <(f)> A corporation <cemetery association> that
44-8 establishes a fund may receive and hold for the fund and as a part
44-9 of the fund or as an incident to the fund any property contributed
44-10 to the fund.
44-11 (f) <(g)> The fund and contributions to the fund are for
44-12 charitable purposes. The perpetual care financed by the fund is:
44-13 (1) the discharge of a duty due from the corporation
44-14 <person contributing to the fund> to persons interred and to be
44-15 interred in its perpetual care <the> cemetery; and
44-16 (2) for the benefit and protection of the public by
44-17 preserving and keeping the perpetual care cemetery from becoming a
44-18 place of disorder, reproach, and desolation in the community in
44-19 which the perpetual care cemetery is located.
44-20 (g) The trustors of two or more perpetual care trust funds
44-21 may establish a common trust fund in which deposits required by
44-22 this chapter are made, provided that separate records of principal
44-23 and income are maintained for each perpetual care cemetery for the
44-24 benefit of which the common trust fund is established, and further
44-25 provided that the income attributable to each perpetual care
44-26 cemetery is used only for the perpetual care of that cemetery.
44-27 SECTION 32. Section 712.022, Health and Safety Code, is
45-1 amended to read as follows:
45-2 Sec. 712.022. Operation of Perpetual <Establishment of Fund
45-3 by Nonperpetual> Care Cemetery. <(a)> A corporation <cemetery
45-4 association> authorized by law to operate a <cemetery as a>
45-5 perpetual care cemetery but not doing so may do so if the
45-6 corporation <association>:
45-7 (1) notifies the commissioner; and
45-8 (2) establishes a fund as provided by Section 712.021
45-9 in an <the> amount equal to the larger of:
45-10 (A) the amount that would have been paid into
45-11 the fund if the cemetery operated as a perpetual care cemetery from
45-12 the date of the cemetery's first sale of plots <burial space>; or
45-13 (B) the minimum amount provided by Section
45-14 712.004.
45-15 <(b) If the amount of the fund is the minimum amount
45-16 provided by Section 712.004, the cemetery association is entitled
45-17 to a credit against amounts required by this chapter to be paid by
45-18 the association into the fund. The amount of the total credits
45-19 permitted is equal to the difference between the amount computed
45-20 under Subsection (a)(2)(A) and the amount computed under Subsection
45-21 (a)(2)(B).>
45-22 SECTION 33. Section 712.023, Health and Safety Code, is
45-23 amended to read as follows:
45-24 Sec. 712.023. Validity of Contributions. A contribution to
45-25 a fund for <general> perpetual care is not invalid because of:
45-26 (1) indefiniteness or uncertainty of the person
45-27 designated as beneficiary in the instrument establishing the fund
46-1 <creating the trust>; or
46-2 (2) a violation of the law against perpetuities or the
46-3 law against the suspension of the power of alienation of title to
46-4 or use of property.
46-5 SECTION 34. Section 712.024, Health and Safety Code, is
46-6 amended to read as follows:
46-7 Sec. 712.024. Amendment of Trust Instrument <Agreement>. A
46-8 corporation <cemetery association> and the trustee of a <the> fund
46-9 <providing perpetual care for the association's cemetery> may, by
46-10 agreement, amend the instrument that established the fund
46-11 <perpetual care trust agreement> to include any provision that is
46-12 consistent with this chapter.
46-13 SECTION 35. Section 712.025, Health and Safety Code, is
46-14 amended to read as follows:
46-15 Sec. 712.025. Use of Fund Income. <(a)> Fund income may be
46-16 applied in the manner the directors of a corporation determine to
46-17 be for the best interest of the corporation's perpetual care
46-18 cemetery and may be used only for the perpetual care described by
46-19 resolution, bylaw, or other action or instrument that established
46-20 the fund, including the general care and maintenance of the
46-21 property entitled to perpetual care in the perpetual care cemetery.
46-22 <(b) Fund income may not be used for improvement or
46-23 embellishment of unsold property to be offered for sale.>
46-24 SECTION 36. Section 712.026, Health and Safety Code, is
46-25 amended to read as follows:
46-26 Sec. 712.026. Suit by Plot Owners to Maintain Perpetual
46-27 Care. (a) If the directors of a corporation do not generally care
47-1 for and maintain the corporation's perpetual care <part of the>
47-2 cemetery <entitled to perpetual care>, the district court of the
47-3 county in which the perpetual care cemetery is located may:
47-4 (1) by injunction compel the directors to expend the
47-5 net <fund> income of the corporation's fund as required by this
47-6 chapter; or
47-7 (2) appoint a receiver to take charge of the fund and
47-8 expend the net <fund> income of the fund as required by this
47-9 chapter.
47-10 (b) The suit for relief under this section must be brought
47-11 by at least five <plot> owners of <whose> plots located in the
47-12 perpetual care cemetery <are entitled to perpetual care>.
47-13 SECTION 37. Section 712.027, Health and Safety Code, is
47-14 amended to read as follows:
47-15 Sec. 712.027. Investment of Fund. (a) A trustee shall
47-16 invest and manage the investment of the <fund> principal of a fund
47-17 in accordance with the Texas Trust Code (Section 111.001 et seq.,
47-18 Property Code).
47-19 (b) <The fund may not be invested without the written
47-20 approval of an active officer of the cemetery association or a
47-21 majority of its directors.> An investment must be made at not
47-22 more than the prevailing market value of the securities at the time
47-23 of acquisition.
47-24 SECTION 38. Section 712.028, Health and Safety Code, is
47-25 amended to read as follows:
47-26 Sec. 712.028. Amount of Fund Deposits from Sales. (a) A
47-27 corporation <perpetual care cemetery> shall deposit in its <the>
48-1 fund an amount that is at least:
48-2 (1) the greater of:
48-3 (A) $1.50 a square foot of ground area conveyed
48-4 <disposed of or sold> as perpetual care property; or
48-5 (B) 10 percent of the total purchase price of
48-6 that ground area;
48-7 (2) the greater of:
48-8 (A) $90 for each crypt interment right for
48-9 mausoleum interment or lawn crypt interment conveyed <disposed of
48-10 or sold> as perpetual care property, or $50 for each crypt
48-11 interment right if that crypt is accessible only through another
48-12 crypt; or
48-13 (B) five percent of the total purchase price of
48-14 that crypt interment right; and
48-15 (3) the greater of:
48-16 (A) $30 for each niche interment right for
48-17 columbarium interment conveyed; or
48-18 (B) 10 percent of the total purchase price of
48-19 that niche interment right <disposed of or sold>.
48-20 (b) Subsection (a) does not apply to deposits from sales
48-21 required to be made by a corporation in its fund before September
48-22 1, 1993, under a corresponding statute in effect before that date.
48-23 (c) If a plot owner exchanges a plot for another plot in a
48-24 corporation's perpetual care cemetery, the amount to be deposited
48-25 in the corporation's fund in respect of the plot received by the
48-26 plot owner in the exchange may be reduced by the amount deposited
48-27 in the fund in respect of the plot contributed by the plot owner in
49-1 the exchange <A cemetery may not operate as a perpetual care
49-2 cemetery, including a permanent maintenance or free care cemetery,
49-3 unless the cemetery complies with this section and Section
49-4 712.029>.
49-5 SECTION 39. Section 712.029, Health and Safety Code, is
49-6 amended to read as follows:
49-7 Sec. 712.029. Accounting For and Depositing Amounts<; Civil
49-8 Penalty>. (a) The part of the purchase price of a plot in a
49-9 perpetual care cemetery that is to be deposited in a fund must be
49-10 shown separately on the original purchase agreement from the total
49-11 purchase price. A copy of the agreement shall be delivered to the
49-12 purchaser of the plot.
49-13 (b) On the sale of a plot <burial space>, a commission may
49-14 not be paid to a broker or salesman on the amount to be deposited
49-15 in the fund.
49-16 (c) <If the purchase price is payable in installments, each
49-17 amount paid must be applied first to the balance not required to be
49-18 deposited in the fund, and the remainder, on receipt by the seller,
49-19 shall be deposited in the fund.>
49-20 <(d)> A corporation <seller of a plot> shall deposit in its
49-21 <the> fund the <required> amount required under Section 712.028 not
49-22 later than the 20th day after the end of the month in which the
49-23 original purchase agreement has been paid in full. A corporation
49-24 may prepay funds into its fund at any time and, if a surplus exists
49-25 in the fund from the prepayments, may credit against the surplus
49-26 the amounts otherwise required to be deposited in the fund under
49-27 Section 712.028 until the surplus has been depleted. In
50-1 determining whether a surplus exists from prepayments, no part of
50-2 the fund resulting from gifts to the fund under Section 712.030 may
50-3 be considered <amount is received>.
50-4 <(e) A seller who violates Subsection (d) is liable for a
50-5 penalty of $10 a day for each day of violation. The commissioner
50-6 shall collect the penalty.>
50-7 <(f) If the seller refuses to pay the penalty, the
50-8 commissioner shall report the refusal to the attorney general, who
50-9 shall bring suit to recover the penalty, costs, and other relief
50-10 requested by the attorney general as proper and necessary.>
50-11 SECTION 40. Section 712.030, Health and Safety Code, is
50-12 amended to read as follows:
50-13 Sec. 712.030. USE OF GIFT FOR SPECIAL CARE OF PLOT <BURIAL
50-14 SPACE> IN PERPETUAL CARE CEMETERY. <(a)> A trustee may take and
50-15 hold property transferred to the trustee in trust in order to apply
50-16 the principal, proceeds, or income of the property for any purpose
50-17 consistent with the purpose of a corporation's perpetual care <the>
50-18 cemetery, including:
50-19 (1) the improvement or embellishment of any part of
50-20 the perpetual care cemetery;
50-21 (2) the erection, renewal, repair, or preservation of
50-22 a monument, fence, building, or other structure in the perpetual
50-23 care cemetery;
50-24 (3) planting or cultivating plants in or around the
50-25 perpetual care cemetery; or
50-26 (4) taking special care of or embellishing a <burial>
50-27 plot, section, or building in the perpetual care cemetery.
51-1 <(b) Not more than 75 percent of the property's proceeds or
51-2 income may be devoted to maintaining and beautifying the private
51-3 block, plot, or structure for which the transfer is made.>
51-4 <(c) At least 25 percent of the property's proceeds or
51-5 income must be devoted generally to maintaining and beautifying the
51-6 cemetery in which the block, plot, or structure is located.>
51-7 SECTION 41. Section 712.041, Health and Safety Code, is
51-8 amended to read as follows:
51-9 Sec. 712.041. ANNUAL STATEMENT OF FUNDS. (a) A corporation
51-10 <perpetual care cemetery> shall file in its <the cemetery's> office
51-11 and with the commissioner a statement for each perpetual care
51-12 cemetery operated in this state in duplicate that shows:
51-13 (1) the principal amount of its fund;
51-14 (2) the amount of the fund invested in bonds and other
51-15 securities;
51-16 (3) the amount of <fund> cash on hand in the fund;
51-17 (4) any other item that shows the financial condition
51-18 of the fund;
51-19 (5) the number of crypts, niches, and square feet of
51-20 ground area conveyed <grave space sold or disposed of> under
51-21 perpetual care before and after March 15, 1934, listed separately;
51-22 and
51-23 (6) the number of crypts, niches, and square feet of
51-24 ground area conveyed <grave space sold or disposed of> under
51-25 perpetual care after March 15, 1934, for which the minimum deposits
51-26 required for perpetual care have not been paid to the fund.
51-27 (b) The corporation's <association> president and secretary,
52-1 or two principal officers, shall verify the information on the
52-2 statement.
52-3 (c) The corporation <association> shall revise and post and
52-4 file the statement on or before March 1 of each year.
52-5 (d) A <Not later than the 30th day after the date on which
52-6 the statement is filed with the commissioner, a> copy of the
52-7 statement shall be available to the public upon request <published
52-8 in at least one newspaper of general circulation in the county in
52-9 which the cemetery is located>.
52-10 SECTION 42. Section 712.042, Health and Safety Code, is
52-11 amended to read as follows:
52-12 Sec. 712.042. Fees. (a) On filing a <the> statement of
52-13 funds under Section 712.041, a corporation <the cemetery> shall pay
52-14 the commissioner a reasonable and necessary fee set annually by the
52-15 commissioner to defray the cost of administering this chapter.<:>
52-16 <(1) $100, if the cemetery serves a municipality with
52-17 a population of 25,000 or less; or>
52-18 <(2) $200, if the cemetery serves a municipality with
52-19 a population of more than 25,000.>
52-20 (b) The banking department shall receive and disburse
52-21 revenues collected under this chapter in accordance with Article
52-22 12, Chapter I, The Texas Banking Code of 1943 (Article 342-112,
52-23 Vernon's Texas Civil Statutes)<, for:>
52-24 <(1) the administration and enforcement of the law
52-25 relating to the operation of funds; and>
52-26 <(2) investigations on department initiative, or on
52-27 complaints made by others, regarding the operation of a perpetual
53-1 care cemetery and the creation, investment, and expenditure of
53-2 funds.>
53-3 <(c) A reasonable part of the amount that the banking
53-4 department transfers each year of the biennium to the general
53-5 revenue fund to cover the cost of government services rendered by
53-6 other departments may consist of revenues collected under this
53-7 chapter>.
53-8 SECTION 43. Section 712.043, Health and Safety Code, is
53-9 amended to read as follows:
53-10 Sec. 712.043. Additional Fund Report. The commissioner may
53-11 require, as often as the commissioner determines necessary, the
53-12 trustee of a corporation's fund <a trustee> to make under oath a
53-13 detailed report of the condition of the fund. The report must
53-14 include:
53-15 (1) a detailed description of the assets of the fund
53-16 <assets>;
53-17 (2) a description of securities held by the fund;
53-18 (3) if a security held by the fund is a lien, a
53-19 description of the property against which the lien is taken;
53-20 (4) each security's acquisition cost;
53-21 (5) each security's market value at the time of
53-22 acquisition;
53-23 (6) each security's current market value;
53-24 (7) each security's status with reference to default;
53-25 (8) a statement that a security is not encumbered by
53-26 debt; and
53-27 (9) <a statement that none of the fund assets are
54-1 loans to the cemetery for which the fund is established or to an
54-2 officer or director of the cemetery; and>
54-3 <(10)> any other information the commissioner
54-4 determines is pertinent.
54-5 SECTION 44. Section 712.044, Health and Safety Code, is
54-6 amended to read as follows:
54-7 Sec. 712.044. EXAMINATION <AUDIT> OF FUND RECORDS;
54-8 EXAMINATION <AUDIT> FEES AND EXPENSES. (a) The books and records
54-9 of a corporation relating to its fund shall be examined annually or
54-10 as often as necessary by the commissioner. The examination shall
54-11 cover the period of time from the date of the last examination of
54-12 the corporation's books and records relating to its fund <The
54-13 commissioner shall examine the records of a perpetual care cemetery
54-14 association annually or as often as necessary>.
54-15 (b) A corporation <An association> that is examined under
54-16 this section shall make its books and records relating to its fund
54-17 available for examination by the banking department upon reasonable
54-18 notice to the corporation and shall pay to the commissioner for the
54-19 <regular> examination a reasonable and necessary fee set annually
54-20 by the commissioner to defray the cost of administering this
54-21 chapter.<:>
54-22 <(1) not more than $100 a day or part of a day for
54-23 each examiner or not more than a total of $400 for the entire
54-24 examination, if the associations annual deposits to the
54-25 association's fund as required by law are less than $7,500; or>
54-26 <(2) not more than $200 a day or part of a day for
54-27 each examiner or not more than a total of $800 for the entire
55-1 examination, if the association's annual deposit to the
55-2 association's fund as required by law are $7,500 or more.>
55-3 <(c) If the examiner determines that the conditions of the
55-4 association necessitate additional examination or a prolonged audit
55-5 to ascertain the association's status, the association shall pay
55-6 the total expense of the additional examination or audit.>
55-7 SECTION 45. Subchapter C, Chapter 712, Health and Safety
55-8 Code, is amended by adding Section 712.0441 to read as follows:
55-9 Sec. 712.0441. ENFORCEMENT. (a) A corporation shall be
55-10 subject to a civil penalty upon the occurrence of any of the
55-11 following violations:
55-12 (1) the corporation does not make a deposit in its
55-13 fund as required by Section 712.028;
55-14 (2) the corporation does not file a statement of funds
55-15 as required by Section 712.041; or
55-16 (3) the corporation does not pay the filing fee as
55-17 required by Section 712.042.
55-18 (b) The trustee of a fund shall be subject to a civil
55-19 penalty upon the occurrence of either of the following violations:
55-20 (1) the trustee does not file a report required by the
55-21 commissioner under Section 712.043 within 30 days after the date of
55-22 the commissioner's request; or
55-23 (2) the fund does not comply with this chapter.
55-24 (c) The civil penalty that may be imposed under Subsection
55-25 (a) or (b) shall not exceed $250 per violation for each day that
55-26 the violation persists, provided, that the aggregate civil penalty
55-27 for all violations shall not exceed $500 per day. A corporation or
56-1 trustee shall have no civil penalty liability if within 30 days
56-2 after receiving written notice from the commissioner of the
56-3 violation the corporation or trustee corrects such violation by
56-4 performing the required duty or act. Any such civil penalty may be
56-5 imposed by the commissioner after notice and opportunity for
56-6 hearing in accordance with the procedures for a contested case
56-7 hearing under the Administrative Procedure and Texas Register Act.
56-8 In determining the amount of the penalty, the commissioner shall
56-9 consider the seriousness of the violation and the good faith of the
56-10 corporation or trustee in its attempts to achieve compliance. The
56-11 amount of such penalty may be collected by the commissioner in the
56-12 same manner that money judgments are enforced in the district
56-13 courts of this state.
56-14 (d) In addition to any penalty that may be imposed under
56-15 Subsection (a), the commissioner may bring a civil action against a
56-16 corporation to enjoin a violation described in Subsection (a) that
56-17 has not been corrected within 30 days after the receipt by the
56-18 corporation of written notice from the commissioner of the
56-19 violation. Any such civil action may be brought in the district
56-20 court of the county in which the corporation's perpetual care
56-21 cemetery is operated.
56-22 (e) The commissioner may issue an order to cease and desist
56-23 if a violation described in Subsection (a) has not been corrected
56-24 within 30 days after the receipt by the corporation of written
56-25 notice from the commissioner of the violation. Any order proposed
56-26 under this subsection shall be served upon the corporation, shall
56-27 state the grounds for the proposed order with reasonable certainty,
57-1 and shall state the proposed effective date, which shall not be
57-2 less than 15 days after receipt by the corporation. Unless the
57-3 corporation shall request a hearing within 15 days after such
57-4 receipt, the order shall become effective as proposed. If the
57-5 corporation requests a hearing, it shall be conducted in accordance
57-6 with the procedures for a contested case hearing under the
57-7 Administrative Procedure and Texas Register Act.
57-8 (f) The commissioner may issue an order requiring
57-9 restitution by a corporation to its fund if, after notice and
57-10 opportunity for hearing held in accordance with the procedures for
57-11 a contested case hearing under the Administrative Procedure and
57-12 Texas Register Act, the commissioner finds that the corporation has
57-13 not made a deposit in the fund as required by Section 712.028.
57-14 (g) If a violation described in Subsection (a) has not been
57-15 corrected with 90 days after the receipt of written notice by the
57-16 corporation from the commissioner of the violation, the
57-17 commissioner may report the violation to the attorney general, who
57-18 shall bring suit or quo warranto proceedings for the forfeiture of
57-19 the corporation's charter and dissolution of the corporation in the
57-20 district court of any county in which its perpetual care cemetery
57-21 is operated.
57-22 (h) If a fund is misappropriated by its trustee or is not
57-23 otherwise handled as required by this chapter, the commissioner may
57-24 take action against the trustee as provided in Articles 342-1104
57-25 and 342-1105 of The Texas Banking Code.
57-26 SECTION 46. Section 712.048, Health and Safety Code, is
57-27 amended to read as follows:
58-1 Sec. 712.048. Criminal Penalties. (a) A person who is an
58-2 individual, firm, association, corporation, or municipality, or an
58-3 officer, agent, or employee of an individual, firm, association,
58-4 corporation, or municipality, commits an offense if the person<:>
58-5 <(1)> sells, offers to sell, or advertises for sale an
58-6 interment right in a plot <or the exclusive right of sepulture in a
58-7 plot> and, before a fund is established for the cemetery in which
58-8 the plot is located as provided by this chapter <subtitle>,
58-9 represents that the plot is under perpetual care. An offense under
58-10 this subsection is a Class A misdemeanor. This subsection does not
58-11 prevent an aggrieved party or the attorney general from maintaining
58-12 a civil action for the recovery of damages caused by an injury
58-13 resulting from an offense under this subsection.
58-14 (b) A person who is an individual, firm, association,
58-15 corporation, or municipality, or an officer, agent, or employee of
58-16 an individual, firm, association, corporation, or municipality,
58-17 commits an offense if the person knowingly defalcates or
58-18 misappropriates assets of a fund. An offense under this subsection
58-19 is punishable as if it were an offense under Section 32.45, Penal
58-20 Code<;>
58-21 <(2) violates Section 712.041;>
58-22 <(3) invests funds in violation of Section 712.027; or>
58-23 <(4) does not post notice as required by Section
58-24 712.007.>
58-25 <(b) An offense under this section is a misdemeanor
58-26 punishable by:>
58-27 <(1) a fine not to exceed $500; or>
59-1 <(2) if the defendant is an individual, by a fine not
59-2 to exceed $500, confinement in the county jail for a term not to
59-3 exceed six months, or both>.
59-4 SECTION 47. Section 713.001, Health and Safety Code, is
59-5 amended to read as follows:
59-6 Sec. 713.001. MUNICIPAL CEMETERY AUTHORIZED. The governing
59-7 body of a <Type A general law> municipality may:
59-8 (1) purchase, establish, and regulate a cemetery; and
59-9 (2) enclose and improve a cemetery owned by the
59-10 municipality.
59-11 SECTION 48. Sections 711.005, 712.006, 712.045, 712.046, and
59-12 712.047, Health and Safety Code, are repealed.
59-13 SECTION 49. This Act takes effect September 1, 1993, except
59-14 for Section 712.007, which becomes effective March 1, 1994.
59-15 SECTION 50. The importance of this legislation and the
59-16 crowded condition of the calendars in both houses create an
59-17 emergency and an imperative public necessity that the
59-18 constitutional rule requiring bills to be read on three several
59-19 days in each house be suspended, and this rule is hereby suspended.