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