1-1 By: Gutierrez, Naishtat, et al. H.B. No. 1213
1-2 (Senate Sponsor - Parker)
1-3 (In the Senate - Received from the House May 10, 1993;
1-4 May 11, 1993, read first time and referred to Committee on Economic
1-5 Development; May 19, 1993, reported favorably by the following
1-6 vote: Yeas 9, Nays 0; May 19, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Parker x
1-10 Lucio x
1-11 Ellis x
1-12 Haley x
1-13 Harris of Dallas x
1-14 Harris of Tarrant x
1-15 Leedom x
1-16 Madla x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 A BILL TO BE ENTITLED
1-21 AN ACT
1-22 relating to the laws governing cemeteries and perpetual care
1-23 cemeteries; providing civil and criminal penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Section 711.001, Health and Safety Code, is
1-26 amended to read as follows:
1-27 Sec. 711.001. Definitions. In this chapter:
1-28 (1) "Burial park" means a tract of land that is
1-29 <dedicated to and is> used or intended to be used for interment in
1-30 graves.
1-31 (2) "Cemetery" means a place that is <dedicated to and
1-32 that is> used or intended to be used for interment, and includes a
1-33 graveyard, burial park, or mausoleum.
1-34 (3) "Cemetery organization <association>" means <an
1-35 organization that is>:
1-36 (A) an unincorporated association of plot owners
1-37 not operated for profit that is authorized by its articles of
1-38 association to conduct a business for cemetery purposes; or
1-39 (B) <or> a corporation, either for profit or not
1-40 for profit, that is<; and>
1-41 <(B)> authorized by its articles of
1-42 incorporation to conduct a business for cemetery purposes.
1-43 (4) "Cemetery purpose" means a purpose necessary or
1-44 incidental to establishing, maintaining, managing, operating,
1-45 improving, or conducting a cemetery, interring remains, or caring
1-46 for, preserving, and embellishing cemetery property.
1-47 (5) "Columbarium" means a durable, fireproof
1-48 structure, or a room or other space in a durable, fireproof
1-49 structure, containing niches and used or intended to be used to
1-50 contain cremated remains.
1-51 (6) "Cremated remains" means the bone fragments
1-52 remaining after the cremation process, which may include the
1-53 residue of any foreign materials that were cremated with the human
1-54 remains <remains after incineration in a crematory>.
1-55 (7) "Cremation" means the irreversible process of
1-56 reducing human remains to bone fragments through extreme heat and
1-57 evaporation, which may include the processing or the pulverization
1-58 of bone fragments <reduction of remains to cremated remains>.
1-59 (8) "Crematory" means a structure containing a furnace
1-60 used or intended to be used for the cremation <incineration> of
1-61 human remains.
1-62 (9) "Crematory and columbarium" means a durable,
1-63 fireproof structure containing both a crematory and columbarium.
1-64 (10) "Crypt" means a chamber in a mausoleum of
1-65 sufficient size to inter human <uncremated> remains.
1-66 (11) "Directors" means the governing body of a
1-67 cemetery organization <association>.
1-68 (12) "Entombment" means interment in a crypt.
2-1 (13) "Funeral establishment" means a place of business
2-2 used in the care and preparation for interment or transportation of
2-3 human remains, or any place where one or more persons, either as
2-4 sole owner, in copartnership, or through corporate status, are
2-5 engaged or represent themselves to be engaged in the business of
2-6 embalming or funeral directing.
2-7 (14) "Grave" means a space of ground that is in a
2-8 burial park and that is used or intended to be used for interment
2-9 in the ground.
2-10 (15) "Human remains" means the body of a decedent.
2-11 (16) <(14)> "Interment" means the permanent
2-12 disposition of remains by entombment, <or> burial, or placement in
2-13 a niche.
2-14 (17) "Interment right" means the right to inter the
2-15 remains of one decedent in a plot.
2-16 (18) <(15)> "Inurnment" means the placement of
2-17 cremated remains in an urn.
2-18 (19) <(16)> "Lawn crypt" means a subsurface concrete
2-19 and reinforced steel receptacle installed in multiple units for
2-20 burial of human remains <in a coffin>.
2-21 (20) <(17)> "Mausoleum" means a durable, fireproof
2-22 structure used or intended to be used for entombment.
2-23 (21) <(18)> "Niche" means a space in a columbarium
2-24 used or intended to be used for the placement of cremated remains
2-25 in an urn or other container.
2-26 (22) <(19)> "Nonperpetual care cemetery" means a
2-27 cemetery that is not a perpetual care cemetery.
2-28 (23) <(20)> "Perpetual care" or "endowment care" means
2-29 the maintenance, repair, and care of all <in proper order of the
2-30 sod, foliage, and> places in the cemetery <in which interments have
2-31 been made>.
2-32 (24) <(21)> "Perpetual care cemetery" or "endowment
2-33 care cemetery" means a cemetery for the benefit of which a
2-34 perpetual care trust fund is established as provided by Chapter
2-35 712.
2-36 (25) <(22)> "Plot" means space in a cemetery owned by
2-37 an individual or organization that is used or intended to be used
2-38 for interment, including a grave or adjoining graves, a crypt or
2-39 adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche
2-40 or adjoining niches.
2-41 (26) <(23)> "Plot owner" means a person:
2-42 (A) in whose name a plot is listed in a cemetery
2-43 organization's <association> office as the owner of the exclusive
2-44 right of sepulture; or
2-45 (B) who holds, from a cemetery organization
2-46 <association>, a <conveyance or a> certificate of ownership or
2-47 other instrument of conveyance of the exclusive right of sepulture
2-48 in a particular plot in the organization's <association's>
2-49 cemetery.
2-50 (27) "Prepaid funeral contract" means a written
2-51 contract providing for prearranged or prepaid funeral services or
2-52 funeral merchandise.
2-53 (28) <(24)> "Remains" means either human remains or
2-54 cremated remains <the body of a decedent>.
2-55 SECTION 2. Section 711.002, Health and Safety Code, is
2-56 amended to read as follows:
2-57 Sec. 711.002. Disposition of Remains; Duty to Inter.
2-58 (a) Unless a decedent has left <other> directions in writing for
2-59 the disposition of the decedent's remains as provided in Subsection
2-60 (g), the following persons, in the priority listed, have the right
2-61 to control the disposition, including cremation, of the decedent's
2-62 <person's> remains, shall inter the remains, and are liable for the
2-63 reasonable cost of interment:
2-64 (1) the person designated in a written instrument
2-65 signed by the decedent;
2-66 (2) the decedent's surviving spouse;
2-67 (3) any one of <(2)> the decedent's surviving adult
2-68 children;
2-69 (4) either one of <(3)> the decedent's surviving
2-70 parents;
3-1 (5) any one of <(4)> the decedent's surviving adult
3-2 siblings; or
3-3 (6) any <(5) the> adult person in the next degree of
3-4 kinship in the order named by law to inherit the estate of the
3-5 decedent <deceased>.
3-6 (b) The written instrument referred to in Subsection (a)(1)
3-7 shall be in substantially the following form:
3-8 APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
3-9 I,___________________________________________________________,
3-10 (your name and address)
3-11 being of sound mind, willfully and voluntarily make known my desire
3-12 that, upon my death, the disposition of my remains shall be
3-13 controlled by __________________________________ in accordance with
3-14 (name of agent)
3-15 Section 711.002 of the Health and Safety Code and, with respect to
3-16 that subject only, I hereby appoint such person as my agent
3-17 (attorney-in-fact).
3-18 All decisions made by my agent with respect to the
3-19 disposition of my remains, including cremation, shall be binding.
3-20 SPECIAL DIRECTIONS:
3-21 Set forth below are any special directions limiting the power
3-22 granted to my agent:
3-23 ___________________________________________________________________
3-24 ___________________________________________________________________
3-25 ___________________________________________________________________
3-26 ___________________________________________________________________
3-27 ___________________________________________________________________
3-28 AGENT:
3-29 Name:________________________________________________________
3-30 Address:_____________________________________________________
3-31 Telephone Number:____________________________________________
3-32 Acceptance of Appointment:___________________________________
3-33 (signature of agent)
3-34 Date of Signature:___________________________________________
3-35 SUCCESSORS:
3-36 If my agent dies, becomes legally disabled, resigns, or
3-37 refuses to act, I hereby appoint the following persons (each to act
3-38 alone and successively, in the order named) to serve as my agent
3-39 (attorney-in-fact) to control the disposition of my remains as
3-40 authorized by this document:
3-41 1. First Successor
3-42 Name:____________________________________________________
3-43 Address:_________________________________________________
3-44 Telephone Number:________________________________________
3-45 Acceptance of Appointment:_______________________________
3-46 (signature of first successor)
3-47 Date of Signature:_______________________________________
3-48 2. Second Successor
3-49 Name:____________________________________________________
3-50 Address:_________________________________________________
3-51 Telephone Number:________________________________________
3-52 Acceptance of Appointment:_______________________________
3-53 (signature of second successor)
3-54 Date of
3-55 Signature:_______________________________________
3-56 DURATION:
3-57 This appointment becomes effective upon my death.
3-58 PRIOR APPOINTMENTS REVOKED:
3-59 I hereby revoke any prior appointment of any person to
3-60 control the disposition of my remains.
3-61 RELIANCE:
3-62 I hereby agree that any cemetery organization, business
3-63 operating a crematory or columbarium or both, funeral director or
3-64 embalmer, or funeral establishment who receives a copy of this
3-65 document may act under it. Any modification or revocation of this
3-66 document is not effective as to any such party until that party
3-67 receives actual notice of the modification or revocation. No such
3-68 party shall be liable because of reliance on a copy of this
3-69 document.
3-70 ASSUMPTION:
4-1 THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS
4-2 APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY
4-3 THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND SAFETY CODE.
4-4 Signed this ____________ day of _____________________, 19___.
4-5 __________________________________
4-6 (your signature)
4-7 State of ____________________
4-8 County of ___________________
4-9 This document was acknowledged before me on _________________
4-10 (date)
4-11 by _____________________________.
4-12 (name of principal)
4-13 _________________________________
4-14 (signature of notarial officer)
4-15 (Seal, if any, of notary) _________________________________
4-16 (printed name)
4-17 My commission expires: _________
4-18 (c) A written instrument is legally sufficient under
4-19 Subsection (a)(1) if the wording of the instrument complies
4-20 substantially with Subsection (b), the instrument is properly
4-21 completed, the instrument is signed by the decedent, the agent, and
4-22 each successor agent, and the signature of the decedent is
4-23 acknowledged. Such written instrument may be modified or revoked
4-24 only by a subsequent written instrument that complies with this
4-25 subsection.
4-26 (d) A person listed in Subsection (a) has the right, duty,
4-27 and liability provided by that subsection only if there is no
4-28 person in a priority listed before the person.
4-29 (e) <(c)> If there is no person with the duty to inter under
4-30 Subsection (a) and:
4-31 (1) an inquest is held, the person conducting the
4-32 inquest shall inter the remains; and
4-33 (2) an inquest is not held, the county in which the
4-34 death occurred shall inter the remains.
4-35 (f) A person <(d) An individual> who represents that the
4-36 person <individual> knows the identity of a <the> decedent and, in
4-37 order to procure the disposition, including cremation, of the
4-38 decedent's remains <interment>, signs an order or statement, other
4-39 than a death certificate, warrants the identity of the decedent and
4-40 is liable for all damages <damage> that result <results>, directly
4-41 or indirectly, from that warrant.
4-42 (g) <(e)> A person may provide written directions for the
4-43 disposition <instructions to direct the preparation for and type or
4-44 place of interment> of the person's remains in a will, a prepaid
4-45 funeral contract, or a written instrument signed and acknowledged
4-46 by such person. The directions <instructions> may be modified or
4-47 revoked only by a subsequent writing signed and acknowledged by
4-48 such person <in writing>. The person <or persons> otherwise
4-49 entitled to control the disposition of a decedent's <the> remains
4-50 under this section shall faithfully carry out the directions
4-51 <instructions> of the decedent to the extent that the decedent's
4-52 estate or the person controlling the disposition are financially
4-53 able to do so.
4-54 (h) <(f)> If the directions <instructions> are in a will,
4-55 they shall be carried out immediately without the necessity of
4-56 probate. If the will is not probated or is declared invalid for
4-57 testamentary purposes, the directions <instructions> are valid to
4-58 the extent to which they have been acted on in good faith.
4-59 (i) <(g)> A cemetery organization, a business operating a
4-60 crematory or columbarium or both, a funeral director or an
4-61 embalmer, or a funeral establishment shall <association is> not be
4-62 liable for carrying out the written directions <instructions> of a
4-63 <the> decedent or the directions of any person who represents that
4-64 the person is entitled to control the disposition of the decedent's
4-65 remains <unless it has actual notice that the representation is
4-66 untrue>.
4-67 (j) Any dispute among any of the persons listed in
4-68 Subsection (a) concerning their right to control the disposition,
4-69 including cremation, of a decedent's remains shall be resolved by a
4-70 court of competent jurisdiction. A cemetery organization or
5-1 funeral establishment shall not be liable for refusing to accept
5-2 the decedent's remains, or to inter or otherwise dispose of the
5-3 decedent's remains, until it receives a court order or other
5-4 suitable confirmation that the dispute has been resolved or
5-5 settled.
5-6 SECTION 3. Section 711.003, Health and Safety Code, is
5-7 amended to read as follows:
5-8 Sec. 711.003. Records of Interment. A record shall be kept
5-9 of each interment in a cemetery. The record must include:
5-10 (1) the date the remains are received;
5-11 (2) the date the remains are interred;
5-12 (3) the name and age of the person interred if those
5-13 facts can be conveniently obtained; and
5-14 (4) the identity of the plot<, and grave, niche, or
5-15 crypt> in which the remains are interred.
5-16 SECTION 4. Section 711.004, Health and Safety Code, is
5-17 amended to read as follows:
5-18 Sec. 711.004. Removal of Remains. (a) Remains<, including
5-19 cremated remains,> interred in a cemetery may be removed from the
5-20 cemetery with the written consent of the cemetery organization
5-21 <association> operating the cemetery and the written consent of the
5-22 current plot owner or owners and the following persons, in the
5-23 priority listed:
5-24 (1) the decedent's surviving spouse;
5-25 (2) the decedent's surviving adult children;
5-26 (3) the decedent's surviving parents;
5-27 (4) the decedent's adult siblings; or
5-28 (5) the adult person in the next degree of kinship in
5-29 the order named by law to inherit the estate of the decedent.
5-30 (b) A person listed in Subsection (a) may consent to the
5-31 removal only if there is no person in a priority listed before that
5-32 <the> person.
5-33 (c) If the consent required by Subsection (a) cannot be
5-34 obtained, the remains may be removed by permission of the county
5-35 court of the county in which the cemetery is located. Before the
5-36 date of application to the court for permission to remove remains
5-37 under this subsection, notice must be given to:
5-38 (1) the cemetery organization <association> operating
5-39 the cemetery in which the remains are interred;
5-40 (2) <the plot owner or owners;>
5-41 <(3)> each person whose consent is required for
5-42 removal of the remains under Subsection (a) <who does not consent
5-43 to the removal>; and
5-44 (3) <(4)> any other person that the court requires to
5-45 be served.
5-46 (d) For the purposes of Subsection (c), personal notice must
5-47 be given not later than the 11th day before the date of application
5-48 to the court for permission to remove the remains, or notice by
5-49 certified or registered mail must be given not later than the 16th
5-50 day before the date of application.
5-51 (e) Subsections (a)-(d) do not apply to the removal of
5-52 remains:
5-53 (1) from one plot to another plot in the same
5-54 cemetery;
5-55 (2) by the cemetery organization <association> from a
5-56 plot for which the purchase price is past due and unpaid, to
5-57 another suitable place; or
5-58 (3) on the order of a court or person who conducts
5-59 inquests.
5-60 (f) Except as is authorized for a justice of the peace
5-61 acting as coroner or medical examiner under Chapter 49, Code of
5-62 Criminal Procedure, remains may not be removed from a cemetery
5-63 except on the written order of the state registrar or the state
5-64 registrar's designee. The cemetery organization shall keep a
5-65 duplicate copy of the order as part of its records. The Texas
5-66 Board of Health may adopt rules to implement this subsection.
5-67 (g) A person who removes remains from a cemetery shall keep
5-68 a record of the removal that includes:
5-69 (1) the date the remains are removed;
5-70 (2) the name and age at death of the decedent if those
6-1 facts can be conveniently obtained;
6-2 (3) the place to which the remains are removed; and
6-3 (4) the cemetery and plot from which the remains are
6-4 removed.
6-5 (h) If the remains are not reinterred, the person who
6-6 removes the remains shall make and keep a record of the disposition
6-7 of the remains.
6-8 (i) A person who removes remains from a cemetery shall give
6-9 the cemetery organization <association> operating the cemetery a
6-10 copy of the record made as required by Subsections (g) and (h).
6-11 SECTION 5. Section 711.006, Health and Safety Code, is
6-12 amended to read as follows:
6-13 Sec. 711.006. Limitations on Crematory Construction and
6-14 Operation. (a) A crematory may be constructed, established, or
6-15 maintained only in a burial park having a columbarium, plot, or
6-16 mausoleum <amply> equipped for the interment of cremated remains
6-17 <cremated at that crematory>.
6-18 (b) The crematory may be in the same fireproof structure as
6-19 the columbarium, plot, or mausoleum, or in a separate fireproof
6-20 building in the same <cemetery or> burial park as the columbarium,
6-21 plot, or mausoleum.
6-22 (c) A crematory that cremates a decedent's human remains
6-23 shall dispose of the cremated remains by:
6-24 (1) delivering the cremated remains to or as directed
6-25 by the funeral establishment that contracted to provide for the
6-26 cremation;
6-27 (2) delivering the cremated remains as directed by the
6-28 person who contracted for the cremation; or
6-29 (3) if not delivered as provided by Subdivision (1) or
6-30 (2), by permanent interment of the cremated remains in a plot.
6-31 (d) Not later than the 90th day after the cremation, the
6-32 crematory shall send a written notice by registered or certified
6-33 mail to the funeral establishment or person who contracted for the
6-34 cremation stating that the cremated remains will be interred under
6-35 Subsection (c)(3) unless the notified funeral establishment or
6-36 person, or other person authorized by the notified funeral
6-37 establishment or person, claims and removes the cremated remains
6-38 not later than the 60th day after the date of the notice.
6-39 (e) A crematory is not liable for any actions taken by the
6-40 crematory in accordance with Subsection (c) or (d) <Cremated
6-41 remains not removed from the crematory for permanent deposit
6-42 elsewhere shall be permanently interred in a grave, crypt, or niche
6-43 not later than the 30th day after the date of cremation>.
6-44 SECTION 6. Section 711.007, Health and Safety Code, is
6-45 amended to read as follows:
6-46 Sec. 711.007. <Nonconforming or Abandoned Cemetery as a>
6-47 NUISANCE; ABATEMENT AND INJUNCTION. (a) A court of the county in
6-48 which a cemetery is located may, by order, abate the cemetery as a
6-49 nuisance and enjoin its continuance if the cemetery is:
6-50 (1) maintained, located, or used in violation of this
6-51 chapter or Chapter 712; or
6-52 (2) neglected so that it is offensive to the
6-53 inhabitants of the surrounding section <and has no perpetual care
6-54 fund regularly and legally established>.
6-55 (b) The proceeding may be brought by:
6-56 (1) the attorney general;
6-57 (2) the Banking Commissioner of Texas;
6-58 (3) the governing body of a municipality with a
6-59 population of more than 25,000, if the cemetery is located in the
6-60 municipality or not farther than five miles from the municipality;
6-61 (4) <(2)> the district attorney of the county, if the
6-62 cemetery is located in an area of the county not described by
6-63 Subdivision (3) <(1)>; <or>
6-64 (5) <(3)> the owner of a residence:
6-65 (A) in or near the municipality in which the
6-66 cemetery is located; or
6-67 (B) in the area proscribed for the location of a
6-68 cemetery by Section 711.008; or
6-69 (6) the owner of a plot in the cemetery.
6-70 (c) The court shall grant a permanent injunction against
7-1 each person responsible for the nuisance if a cemetery nuisance
7-2 exists or is threatened.
7-3 (d) If a cemetery nuisance under Subsection (a)(2) is
7-4 located in a municipality, the governing body of the municipality
7-5 may authorize the removal of all bodies, monuments, tombs, or other
7-6 similar items from the cemetery to a perpetual care cemetery.
7-7 SECTION 7. Section 711.008, Health and Safety Code, is
7-8 amended to read as follows:
7-9 Sec. 711.008. Location of Cemetery. (a) Except as provided
7-10 by Subsections (b) and<,> (c), <and (e),> an individual,
7-11 corporation, partnership, firm, trust, or association may not
7-12 establish or operate a cemetery, or use any land for the interment
7-13 of remains, <inter remains in a cemetery> located:
7-14 (1) in or within one mile of the boundaries of a
7-15 municipality with a population of 5,000 to 25,000;
7-16 (2) in or within two miles of the boundaries of a
7-17 municipality with a population of 25,000 to 50,000;
7-18 (3) in or within three miles of the boundaries of a
7-19 municipality with a population of 50,000 to 100,000;
7-20 (4) in or within four miles of the boundaries of a
7-21 municipality with a population of 100,000 to 200,000; or
7-22 (5) in or within five miles of the boundaries of a
7-23 municipality with a population of at least 200,000.
7-24 (b) Subsection (a) does not apply to:
7-25 (1) a cemetery heretofore established and operating;
7-26 or
7-27 (2) the establishment and use of a columbarium by an
7-28 organized religious society or sect as part of or attached to the
7-29 principal church building owned by the society or sect.
7-30 (c) A cemetery organization <association> operating a
7-31 cemetery that heretofore was used and maintained inside the limits
7-32 prescribed by Subsection (a) may acquire land that is adjacent but
7-33 not necessarily contiguous to the cemetery for cemetery purposes if
7-34 additional land is required. That land may be used as an addition
7-35 to the cemetery.
7-36 (d) Subsection (a) does not apply to a cemetery established
7-37 and operating before September 1, 1995, in a county with a
7-38 population of more than 217,250 and less than 217,450 that borders
7-39 the Gulf of Mexico. <Subsections (e)-(i) apply to the
7-40 establishment or use of a cemetery in a county with a population of
7-41 less than 235,000 that borders the Gulf of Mexico.>
7-42 (e) <Not later than August 31, 1990, a person who desires to
7-43 establish or use a cemetery may file a written application to
7-44 establish or use the cemetery if the cemetery is located inside a
7-45 municipality and 80 percent or more of the municipality's
7-46 boundaries are contiguous with the boundaries or extraterritorial
7-47 jurisdiction of another municipality or if the cemetery is located
7-48 outside a municipality but within the distance prohibited by
7-49 Subsection (a) for the municipality. The application must be filed
7-50 with the governing body of the municipality.>
7-51 <(f) If the location of the proposed cemetery is inside the
7-52 prohibited distance from more than one municipality, the person
7-53 must file a written application with the governing body of each
7-54 municipality.>
7-55 <(g) The governing body of a municipality by ordinance shall
7-56 prescribe the information required in an application submitted
7-57 under this subsection or Subsection (e).>
7-58 <(h) The governing body may grant the application if it
7-59 determines that the establishment or use of the cemetery does not
7-60 adversely affect public health, safety, and welfare.>
7-61 <(i) Before the person may establish or use the cemetery,
7-62 the application must be granted by each municipality required to
7-63 receive an application under this section.>
7-64 <(j)> For the purpose of determining where a cemetery may be
7-65 located under Subsection (a), the boundary of an area annexed by a
7-66 municipality is not considered to be a boundary of the municipality
7-67 if no more than 10 percent of the boundary of the annexed area is
7-68 composed of a part of the boundary of the annexing municipality as
7-69 it existed immediately before the annexation.
7-70 SECTION 8. Section 711.009, Health and Safety Code, is
8-1 amended to read as follows:
8-2 Sec. 711.009. Authority of Cemetery Keeper. (a) The
8-3 superintendent, sexton, or other person in charge of a cemetery has
8-4 the same powers, <and> duties, and immunities granted by law to:
8-5 (1) a police officer in the municipality in which the
8-6 cemetery is located; or
8-7 (2) a constable or sheriff of the county in which the
8-8 cemetery is located if the cemetery is outside a municipality.
8-9 (b) A person who is granted authority under Subsection (a)
8-10 shall maintain order and enforce the cemetery organization's
8-11 <association> rules, state law, and municipal ordinances in the
8-12 cemetery over which that person has charge and as near the cemetery
8-13 as necessary to protect cemetery property.
8-14 SECTION 9. Section 711.021, Health and Safety Code, is
8-15 amended to read as follows:
8-16 Sec. 711.021. Formation of Corporation to Maintain and
8-17 Operate Cemetery. (a) An individual, corporation, partnership,
8-18 firm, trust, or association may not engage in a business for
8-19 cemetery purposes in this state unless the person is a corporation
8-20 organized for those purposes.
8-21 (b) A corporation conducting a business for cemetery
8-22 purposes, including the sale of plots, may be formed only as
8-23 provided by this section. The corporation must be either:
8-24 (1) a nonprofit corporation organized in accordance
8-25 with Section A or B, Article 3.01, Texas Non-Profit Corporation Act
8-26 (Article 1396-3.01, Vernon's Texas Civil Statutes), or with Section
8-27 711.022; or
8-28 (2) a private corporation operated for profit.
8-29 (c) The charter of a cemetery corporation formed after May
8-30 15, 1947, but before September 1, 1993, must state whether the
8-31 corporation:
8-32 (1) is operated for profit or not for profit; and
8-33 (2) is operating a perpetual care cemetery or a
8-34 nonperpetual care cemetery.
8-35 (d) A corporation formed before September 3, 1945, under
8-36 statutory authority other than Section 5, Chapter 340, Acts of the
8-37 49th Legislature, Regular Session, 1945 (Article 912a-5, Vernon's
8-38 Texas Civil Statutes), to maintain and operate a cemetery is
8-39 governed by this chapter only to the extent that this chapter does
8-40 not conflict with the charter or articles of incorporation of the
8-41 corporation.
8-42 (e) This section does not apply to a corporation chartered
8-43 by the state before September 3, 1945, that, under its charter,
8-44 bylaws, or dedication, created a perpetual care trust fund and
8-45 maintains that fund in accordance with the corporation's trust
8-46 agreement, Chapter 712, and this chapter. The corporation may
8-47 operate a perpetual care cemetery without amending the
8-48 corporation's charter as if it had been incorporated under this
8-49 section.
8-50 (f) Any cemetery that begins its initial operations on or
8-51 after September 1, 1993, shall be operated as a perpetual care
8-52 cemetery in accordance with Chapter 712.
8-53 (g) This section does not apply to:
8-54 (1) a family, fraternal, or community cemetery that is
8-55 not larger than 10 acres;
8-56 (2) an unincorporated association of plot owners not
8-57 operated for profit;
8-58 (3) a church, a religious society or denomination, or
8-59 an entity <a corporation> solely administering the temporalities of
8-60 a church or religious society or denomination; or
8-61 (4) a public cemetery belonging to this state or a
8-62 county or municipality.
8-63 SECTION 10. The heading to Subchapter C, Chapter 711, Health
8-64 and Safety Code, is amended to read as follows:
8-65 SUBCHAPTER C. CEMETERY ORGANIZATIONS <ASSOCIATIONS>
8-66 SECTION 11. Section 711.031, Health and Safety Code, is
8-67 amended to read as follows:
8-68 Sec. 711.031. Rules; Civil Penalty. (a) A cemetery
8-69 organization <association> may adopt and enforce rules:
8-70 (1) concerning the use, care, control, management,
9-1 restriction, and protection of the cemetery operated by the
9-2 cemetery organization <association>;
9-3 (2) to restrict the use of cemetery property;
9-4 (3) to regulate the placement, uniformity, class, and
9-5 kind of markers, monuments, effigies, and other structures in any
9-6 part of the cemetery;
9-7 (4) to regulate the planting and care of plants in the
9-8 cemetery;
9-9 (5) to prevent the interment of remains not entitled
9-10 to be interred in the cemetery;
9-11 (6) to prevent the use of a plot for a purpose that
9-12 violates the cemetery organization's <association> restrictions;
9-13 (7) to regulate the conduct of persons on cemetery
9-14 property and to prevent improper meetings at the cemetery; and
9-15 (8) for other purposes the directors consider
9-16 necessary for the proper conduct of the cemetery organization's
9-17 <association> business, and for the protection of the premises and
9-18 the principles, plans, and ideals on which the cemetery was
9-19 organized.
9-20 (b) Rules adopted under this section must be plainly printed
9-21 or typed and maintained for inspection in the cemetery
9-22 organization's <association's> office or another place in the
9-23 cemetery prescribed by the directors.
9-24 (c) The directors may prescribe a penalty for the violation
9-25 of a rule adopted under this section. The cemetery organization
9-26 <association> may recover the amount of the penalty in a civil
9-27 action.
9-28 SECTION 12. Subchapter C, Chapter 711, Health and Safety
9-29 Code, is amended by adding Section 711.0311 to read as follows:
9-30 Sec. 711.0311. DESECRATION OF CEMETERY. (a) A person
9-31 commits an offense if the person acts without proper legal
9-32 authority and knowingly:
9-33 (1) destroys or damages the remains of a decedent;
9-34 (2) removes any portion of the remains of a decedent
9-35 from a plot or other repository of remains;
9-36 (3) desecrates remains; or
9-37 (4) obliterates, vandalizes, or desecrates a plot or
9-38 other repository of remains.
9-39 (b) An offense under Subsection (a) is a felony of the third
9-40 degree. The person found guilty of committing the offense shall
9-41 provide restitution to the cemetery organization for any damage
9-42 caused by the person.
9-43 (c) A person commits an offense if the person acts without
9-44 proper legal authority and knowingly:
9-45 (1) defaces, vandalizes, injures, or removes a
9-46 gravestone, monument, or other structure commemorating a deceased
9-47 person or group of persons, whether located within or outside of a
9-48 cemetery;
9-49 (2) obliterates, vandalizes, or desecrates a park or
9-50 other area clearly designated to preserve and perpetuate the memory
9-51 of a deceased person or group of persons;
9-52 (3) obliterates, vandalizes, or desecrates plants,
9-53 trees, shrubs, or flowers located on or around a cemetery; or
9-54 (4) obliterates, vandalizes, or desecrates a fence,
9-55 rail, curb, or other structure of a similar nature intended for the
9-56 protection or for the ornamentation of any plot, gravestone,
9-57 monument, or other structure of similar character.
9-58 (d) An offense under Subsection (c) is a Class C
9-59 misdemeanor. The person found guilty of committing the offense
9-60 shall provide restitution to the cemetery organization for the
9-61 amount of any damage caused by the person.
9-62 (e) Subsections (a)-(d) do not apply to the removal or
9-63 unavoidable breakage or injury by a cemetery organization of
9-64 anything placed in or on any portion of its cemetery in violation
9-65 of any of the rules of the cemetery organization, to the removal of
9-66 anything placed in the cemetery in violation of any of the rules of
9-67 the cemetery organization, or to the removal of anything placed in
9-68 the cemetery by or with the consent of the cemetery organization
9-69 that in its judgment has become wrecked, unsightly, or dilapidated.
9-70 (f) If an unemancipated minor is found guilty of violating
10-1 Subsection (a) or (c) and is unable to provide restitution to the
10-2 cemetery organization, the minor may be required to spend that
10-3 amount of time in service to the community as is determined by the
10-4 court or the parents or legal guardians of the minor may be
10-5 required to provide restitution to the cemetery organization for
10-6 the amount of any damage caused by the offense, up to the total
10-7 amount allowed under law.
10-8 (g) A person commits an offense if the person knowingly
10-9 enters or knowingly remains on the premises of a cemetery without
10-10 authorization during hours that the cemetery is posted as closed to
10-11 the public. An offense under this subsection is a Class C
10-12 misdemeanor.
10-13 (h) This section does not prevent a cemetery organization or
10-14 the owner of a plot, gravestone, monument, or other structure of
10-15 similar character from maintaining a civil action for the recovery
10-16 of damages caused by any injury resulting from a violation of this
10-17 section.
10-18 SECTION 13. Section 711.032, Health and Safety Code, is
10-19 amended to read as follows:
10-20 Sec. 711.032. Discrimination by Race, Color, or National
10-21 Origin Prohibited. (a) A cemetery organization <association> may
10-22 not adopt or enforce a rule that prohibits interment because of the
10-23 race, color, or national origin of a decedent.
10-24 (b) A provision of a contract entered into by a cemetery
10-25 organization <association> or of a <deed or> certificate of
10-26 ownership or other instrument of conveyance <granted or> issued by
10-27 a cemetery organization <association> that prohibits interment in
10-28 a cemetery because of the race, color, or national origin of a
10-29 decedent is void.
10-30 SECTION 14. Section 711.033, Health and Safety Code, is
10-31 amended to read as follows:
10-32 Sec. 711.033. PROPERTY ACQUISITION BY CEMETERY ORGANIZATION
10-33 <ASSOCIATION>; RECORDING TITLE. (a) A cemetery organization
10-34 <association> may acquire by purchase, donation, or devise property
10-35 consisting of land, a mausoleum, a crematory and columbarium, or
10-36 other property in which remains may be interred under law.
10-37 (b) A cemetery organization <association> that acquires
10-38 property may record <the association's> title to its <the> property
10-39 with the county clerk of the county in which the property is
10-40 located if its <the association> president and secretary or other
10-41 authorized officer acknowledge a declaration executed by the
10-42 cemetery organization <association> that describes the property and
10-43 declares the cemetery organization's <association's> intention to
10-44 use the property or a part of the property for interment purposes.
10-45 (c) Filing under Subsection (b) is constructive notice as of
10-46 the date of the filing of the use of the property for interment.
10-47 (d) A cemetery organization <association> may by
10-48 condemnation acquire property in which remains may be interred, and
10-49 the acquisition of that property is for a public purpose.
10-50 SECTION 15. Section 711.034, Health and Safety Code, is
10-51 amended to read as follows:
10-52 Sec. 711.034. Dedication. (a) A cemetery organization
10-53 <association> that acquires property for interment purposes shall:
10-54 (1) in the case of land, survey and subdivide the
10-55 property into gardens or sections, with descriptive names or
10-56 numbers <blocks, lots, avenues, walks, or other subdivisions>, and
10-57 make a map or plat of the property showing the plots contained
10-58 within the perimeter boundary <subdivisions, with descriptive names
10-59 or numbers>; or
10-60 (2) in the case of a mausoleum or a crematory and
10-61 columbarium, make a map or plat of the property<,> delineating
10-62 sections or other divisions<, halls, rooms, corridors, elevators,
10-63 or other divisions of the property,> with descriptive names and
10-64 numbers.
10-65 (b) The cemetery organization <association> shall file the
10-66 map or plat with the county clerk of each county in which the
10-67 property or any part of the property is located.
10-68 (c) The cemetery organization <association> shall file with
10-69 the map or plat a written certificate or declaration of dedication
10-70 of the property delineated by the map or plat, dedicating the
11-1 property exclusively to cemetery purposes. The certificate or
11-2 declaration must be:
11-3 (1) in a form prescribed by the directors or
11-4 <association> officers of the cemetery organization;
11-5 (2) signed by the <association> president or
11-6 vice-president and <by> the secretary of the cemetery organization
11-7 <association>, or by another person authorized by the directors;
11-8 and
11-9 (3) acknowledged.
11-10 (d) Filing a map or plat and a certificate or declaration
11-11 under this section dedicates the property for cemetery purposes and
11-12 is constructive notice of that dedication.
11-13 (e) The certificate or declaration may contain a provision
11-14 permitting the directors by order to resurvey and change the shape
11-15 and size of the property for which the associated map or plat is
11-16 filed if that change does not disturb any interred remains. If a
11-17 change is made, the cemetery organization <association> shall file
11-18 an amended map or plat.
11-19 (f) The county clerk shall number and file the map or plat
11-20 and record the certificate or declaration in the county deed
11-21 records.
11-22 SECTION 16. Section 711.035, Health and Safety Code, is
11-23 amended to read as follows:
11-24 Sec. 711.035. Effect of Dedication. (a) Property may be
11-25 dedicated for cemetery purposes, and the dedication is permitted in
11-26 respect for the dead, for the disposition of remains, and in
11-27 fulfillment of a duty to and for the benefit of the public.
11-28 (b) Dedication of cemetery property and title to the
11-29 exclusive right of sepulture of a plot owner are not affected by
11-30 the dissolution of the cemetery organization <association>, nonuse
11-31 by the cemetery organization <association>, alienation,
11-32 encumbrance, or forced sale of the property.
11-33 (c) Dedication of cemetery property may not be invalidated
11-34 because of a violation of the law against perpetuities or the law
11-35 against the suspension of the power of alienation of title to or
11-36 use of property.
11-37 (d) A railroad, street, road, alley, pipeline, telephone,
11-38 telegraph, electric line, or other public utility or thoroughfare
11-39 may not be placed through, over, or across a part of a dedicated
11-40 cemetery without the consent of:
11-41 (1) the directors of the cemetery organization
11-42 <association> that owns or operates the cemetery; or
11-43 (2) at least two-thirds of the owners of plots in the
11-44 cemetery.
11-45 (e) All property of a dedicated cemetery, including a road,
11-46 alley, or walk in the cemetery:
11-47 (1) is exempt from public improvements assessments,
11-48 fees, and public taxation; and
11-49 (2) may not be sold on execution or applied in payment
11-50 of debts due from individual owners and plots.
11-51 (f) Dedicated cemetery property shall be used exclusively
11-52 for cemetery purposes until the dedication is removed by court
11-53 order or until the maintenance of the cemetery is enjoined or
11-54 abated as a nuisance under Section 711.007.
11-55 SECTION 17. Section 711.036, Health and Safety Code, is
11-56 amended to read as follows:
11-57 Sec. 711.036. Removal of Dedication. (a) A cemetery
11-58 organization may petition a district court of the county in which
11-59 its <a> dedicated cemetery is located to <may, by order,> remove
11-60 the dedication with respect to all or any portion of the cemetery
11-61 if:
11-62 (1) all the remains have been removed from that
11-63 portion of the cemetery where the dedication is to be removed; or
11-64 (2) no interments were made in that portion of the
11-65 cemetery where the dedication is to be removed and that portion of
11-66 the cemetery is not used or necessary for interment purposes.
11-67 (b) <A proceeding may be brought by:>
11-68 <(1) the governing body of a municipality with a
11-69 population of more than 25,000, if the cemetery is located in the
11-70 municipality or not farther than five miles from the municipality;>
12-1 <(2) the district attorney of the county, if the
12-2 cemetery is located in an area of the county not described by
12-3 Subdivision (1); or>
12-4 <(3) the owner of property situated so that its value
12-5 is affected by the cemetery.>
12-6 <(c)> The court shall <may> order the removal of the
12-7 dedication <of a cemetery> on notice and proof satisfactory to the
12-8 court.
12-9 <(d) The district court in a county in which a dedicated
12-10 cemetery is located may, in a proceeding brought by the affected
12-11 political subdivision, remove the dedication from property lying in
12-12 the path of proposed construction of or on a highway, thoroughfare,
12-13 road, or street if:>
12-14 <(1) the United States, this state, a county, a
12-15 municipality, or another governmental subdivision of this state
12-16 determines that a new highway, thoroughfare, road, or street will
12-17 be constructed along a proposed route or that an existing highway,
12-18 thoroughfare, road, or street will be widened;>
12-19 <(2) the determination is a matter of public record;
12-20 and>
12-21 <(3) after the determination, property lying in the
12-22 path of the proposed route is dedicated for cemetery purposes.>
12-23 <(e) Dedication of property for cemetery purposes under the
12-24 circumstances described by Subsection (d) is presumed to be made in
12-25 fraud of the rights of the public and for the sole purpose of
12-26 enhancing the value of property to be condemned.>
12-27 SECTION 18. Section 711.037, Health and Safety Code, is
12-28 amended to read as follows:
12-29 Sec. 711.037. Lien Against Cemetery Property. (a) A
12-30 cemetery organization <association> by contract may incur
12-31 indebtedness as required to conduct its <the association's>
12-32 business and may secure the indebtedness by mortgage, deed of
12-33 trust, or other lien against its <association> property.
12-34 (b) A mortgage, deed of trust, or other lien placed on
12-35 dedicated cemetery property, or on cemetery property that is later
12-36 dedicated with the consent of the holder of the lien, does not
12-37 affect the dedication and is subject to the dedication. A sale on
12-38 foreclosure of the lien is subject to the dedication of the
12-39 property for cemetery purposes.
12-40 SECTION 19. Section 711.038, Health and Safety Code, is
12-41 amended to read as follows:
12-42 Sec. 711.038. Sale of Plots. (a) A cemetery organization
12-43 <association> may sell and convey the exclusive right of sepulture
12-44 in a plot:
12-45 (1) after a map or plat and a certificate or
12-46 declaration of dedication are filed as provided by Section 711.034;
12-47 <and>
12-48 (2) subject to the rules of the cemetery organization
12-49 <association> and the restrictions in the certificate of ownership
12-50 or other instrument of conveyance; and
12-51 (3) after payment in full of the purchase price of the
12-52 plot.
12-53 (b) A certificate of ownership or other instrument
12-54 evidencing the conveyance of the exclusive right of sepulture by a
12-55 cemetery organization <association> must be signed by the
12-56 <association> president or vice-president and the <association>
12-57 secretary or other officers authorized by the cemetery organization
12-58 <association>.
12-59 (c) A conveyance of the exclusive right of sepulture must be
12-60 filed and recorded in the cemetery organization's <association's>
12-61 office.
12-62 (d) A plot or a part of a plot that is conveyed as a
12-63 separate plot by a certificate of ownership or other instrument may
12-64 not be divided without the consent of the cemetery organization
12-65 <association>.
12-66 (e) A person is not required to be licensed to sell a plot
12-67 in a dedicated cemetery.
12-68 SECTION 20. Section 711.039, Health and Safety Code, is
12-69 amended to read as follows:
12-70 Sec. 711.039. Rights of Interment in Plot. (a) A plot in
13-1 which the exclusive right of sepulture is conveyed is presumed to
13-2 be the separate property of the person named as grantee in the
13-3 certificate of ownership or other instrument of conveyance.
13-4 (b) The spouse of a person to whom the exclusive right of
13-5 sepulture in a plot is conveyed has a vested right of interment of
13-6 the spouse's remains in the plot while the spouse is married to the
13-7 plot owner or if the spouse is married to the plot owner at the
13-8 time of the owner's death.
13-9 (c) An attempted conveyance or other action without the
13-10 joinder or written, attached consent of the spouse of the plot
13-11 owner does not divest the spouse of the vested right of interment.
13-12 (d) The vested right of interment is terminated:
13-13 (1) on the final decree of divorce between the plot
13-14 owner and the owner's former spouse unless the decree provides
13-15 otherwise; or
13-16 (2) when the remains of the person having the vested
13-17 right are interred elsewhere.
13-18 (e) Unless a plot owner who has the exclusive right of
13-19 sepulture in a plot and who is interred in that plot has made a
13-20 specific disposition of the plot by express reference to the plot
13-21 in the owner's will or by written declaration filed and recorded in
13-22 the office of the cemetery organization <association>:
13-23 (1) a grave, niche, or crypt in the plot shall be
13-24 reserved for the surviving spouse of the plot owner; and
13-25 (2) the owner's children, in order of need, may be
13-26 interred in any remaining graves, niches, or crypts of the plot
13-27 without the consent of a person claiming an interest in the plot.
13-28 (f) The surviving spouse or a child of an interred plot
13-29 owner may each waive his right of interment in the plot in favor of
13-30 a relative of the owner or relative of the owner's spouse. The
13-31 person in whose favor the waiver is made may be interred in the
13-32 plot.
13-33 (g) The exclusive right of sepulture in an unused grave,
13-34 niche, or crypt of a plot in which the plot owner has been interred
13-35 may be conveyed only by:
13-36 (1) specific disposition of the unused grave, niche,
13-37 or crypt by express reference to it in a will or by written
13-38 declaration of the plot owner filed and recorded in the office of
13-39 the cemetery organization;
13-40 (2) the surviving spouse, if any, and children of the
13-41 owner; or
13-42 (3) <(2)> the surviving spouse, if any, and the
13-43 heirs-at-law of the owner, if there is no surviving child of the
13-44 owner.
13-45 (h) Unless a deceased plot owner who has the exclusive right
13-46 of sepulture in a plot and who is not interred in the plot has
13-47 otherwise made specific disposition of the plot <by express
13-48 reference to the plot in a will or by written declaration filed and
13-49 recorded in the office of the cemetery association>, the exclusive
13-50 right of sepulture in the plot, except the one grave, niche, or
13-51 crypt reserved for the surviving spouse, if any, vests on the death
13-52 of the owner in the owner's heirs-at-law and may be conveyed by
13-53 them.
13-54 SECTION 21. Section 711.040, Health and Safety Code, is
13-55 amended to read as follows:
13-56 Sec. 711.040. Multiple Owners of Plot. Two or more owners
13-57 of a plot may designate a person to represent the plot and file
13-58 with the cemetery organization <association> written notice of the
13-59 designation. If notice is not filed, the cemetery organization
13-60 <association> may inter or permit an interment in the plot at the
13-61 request or direction of a registered co-owner of the plot.
13-62 SECTION 22. Subchapter C, Chapter 711, Health and Safety
13-63 Code, is amended by adding Section 711.041 to read as follows:
13-64 Sec. 711.041. ACCESS TO CEMETERY. (a) Any person who
13-65 wishes to visit a cemetery or private burial grounds for which no
13-66 public ingress or egress is available shall have the right to
13-67 reasonable ingress and egress for the purpose of visiting the
13-68 cemetery or private burial grounds. This right of access extends
13-69 only to visitation during reasonable hours and only for purposes
13-70 usually associated with cemetery visits.
14-1 (b) The owner or owners of the lands surrounding the
14-2 cemetery or private burial grounds may designate the routes of
14-3 reasonable ingress and egress.
14-4 SECTION 23. Section 711.052, Health and Safety Code, is
14-5 amended to read as follows:
14-6 Sec. 711.052. Criminal Penalties. (a) A person who is an
14-7 individual, firm, association, corporation, or municipality, or an
14-8 officer, agent, or employee of an individual, firm, association,
14-9 corporation, or municipality, commits an offense if the person:
14-10 (1) engages in a business for cemetery purposes in
14-11 this state other than through a corporation organized for that
14-12 purpose, if a corporation is required by law;
14-13 (2) fails or refuses to keep records of interment as
14-14 required by Sections 711.003 and 711.004;
14-15 (3) sells, offers to sell, or advertises for sale a
14-16 plot or the exclusive right of sepulture in a plot for purposes of
14-17 speculation or investment; or
14-18 (4) represents through advertising or printed material
14-19 that a retail department will be established for the resale of the
14-20 plots of plot purchasers, that specific improvements will be made
14-21 in the cemetery, or that specific merchandise or services will be
14-22 furnished to a plot owner, unless adequate funds or reserves are
14-23 created by the cemetery organization <operator> for the represented
14-24 purpose.
14-25 (b) A cemetery organization or an officer, agent, or
14-26 employee of the cemetery organization commits an offense if the
14-27 cemetery organization, officer, agent, or employee offers any
14-28 inducement, pecuniary or otherwise, to any person or entity for the
14-29 purpose of securing or attempting to secure business for that
14-30 cemetery organization. This subsection does not prohibit the
14-31 offering or payment by a cemetery organization of any such
14-32 inducement, pecuniary or otherwise, to an officer, employee, agent,
14-33 subcontractor, or representative of the cemetery organization. <An
14-34 officer, agent, or employee of a cemetery or cemetery association
14-35 commits an offense if the officer, agent, or employee pays or
14-36 offers to pay a commission, rebate, or gratuity to a funeral
14-37 director or the funeral director's employee>.
14-38 (c) A cemetery organization or an officer, agent, or
14-39 employee of the cemetery organization <association or an officer or
14-40 employee of the association> commits an offense if the cemetery
14-41 organization, officer, agent, or employee of a cemetery
14-42 organization <association, officer, or employee> offers a free plot
14-43 in a drawing, in a lottery, or in another manner, unless the offer
14-44 is for the immediate burial of an indigent person.
14-45 (d) An offense under this section is a Class A misdemeanor
14-46 <punishable by:>
14-47 <(1) a fine not to exceed $500; or>
14-48 <(2) if the defendant is an individual, by a fine not
14-49 to exceed $500, confinement in the county jail for a term not to
14-50 exceed six months, or both>.
14-51 SECTION 24. Section 712.001, Health and Safety Code, is
14-52 amended to read as follows:
14-53 Sec. 712.001. Definitions. (a) The definitions provided by
14-54 Section 711.001 apply to this chapter.
14-55 (b) In this chapter:
14-56 (1) "Banking department" means the Banking Department
14-57 of Texas.
14-58 (2) "Commissioner" means the Banking Commissioner of
14-59 Texas.
14-60 (3) "Corporation" means a corporation that is
14-61 organized under this chapter, or any corresponding statute in
14-62 effect before September 1, 1993, to operate one or more perpetual
14-63 care cemeteries in this state.
14-64 (4) "Fund" means a <cemetery> perpetual care trust
14-65 fund established by one or more corporations under this chapter or
14-66 any corresponding statute in effect before September 1, 1993.
14-67 (5) <(4)> "Trustee" means the trustee of a cemetery
14-68 perpetual care trust fund.
14-69 SECTION 25. Section 712.002, Health and Safety Code, is
14-70 amended to read as follows:
15-1 Sec. 712.002. Exemptions From Chapter. This chapter does
15-2 not apply to:
15-3 (1) a family, fraternal, or community cemetery;
15-4 (2) an unincorporated association of plot owners not
15-5 operated for profit;
15-6 (3) a nonprofit corporation organized by plot owners;
15-7 or
15-8 (4) a church, a religious society or denomination, or
15-9 an entity <a corporation> solely administering the temporalities of
15-10 a church or religious society or denomination.
15-11 SECTION 26. Section 712.003, Health and Safety Code, is
15-12 amended to read as follows:
15-13 Sec. 712.003. Incorporation Required; Minimum Capital.
15-14 (a) A perpetual care cemetery may not be operated in this state
15-15 unless articles of incorporation are filed <organized unless the
15-16 cemetery files> with the secretary of state <articles of
15-17 incorporation> showing:
15-18 (1) subscriptions and payments <payment> in cash for
15-19 the corporation's <of the cemetery's> full capital stock;
15-20 (2) the location of its perpetual care <the> cemetery
15-21 <property>; and
15-22 (3) a certificate showing the deposit in its fund of
15-23 the minimum amount required under <of the cemetery's perpetual care
15-24 and maintenance guarantee fund in accordance with> Section 712.004.
15-25 (b) A corporation chartered on or after September 5, 1955,
15-26 and before September 1, 1993, <perpetual care cemetery> must have a
15-27 minimum capital of:
15-28 (1) $15,000, if the cemetery serves a municipality
15-29 with a population of less than 15,000;
15-30 (2) $30,000, if the cemetery serves a municipality
15-31 with a population of 15,000 to 25,000; or
15-32 (3) $50,000, if the cemetery serves a municipality
15-33 with a population of at least 25,000.
15-34 (c) A corporation chartered on or after September 1, 1993,
15-35 must have a minimum capital of $75,000 <This section does not
15-36 apply to a cemetery corporation chartered before September 5, 1955,
15-37 except that a corporation that amends its charter must comply with
15-38 the minimum requirements of this section>.
15-39 (d) A nonprofit <cemetery> association or corporation
15-40 operated solely for the benefit of plot owners <its members>
15-41 seeking to convert a <permanent care> cemetery to a perpetual care
15-42 cemetery under this chapter <Section 712.004 and Subchapter B> is
15-43 not required to <issue capital stock to> meet the <minimum capital>
15-44 requirements prescribed by this section and Section 712.004 if the
15-45 cemetery has existed for at least 75 years and the association or
15-46 corporation has operated the cemetery for the preceding 10 years.
15-47 SECTION 27. Subchapter A, Chapter 712, Health and Safety
15-48 Code, is amended by adding Section 712.0031 to read as follows:
15-49 Sec. 712.0031. NOTICES TO BANKING DEPARTMENT. (a) Not
15-50 later than the 30th day after the date a corporation files its
15-51 articles of incorporation with the secretary of state, the
15-52 corporation shall notify the banking department in writing of its
15-53 intent to operate a perpetual care cemetery in this state. The
15-54 notice shall be accompanied by a filing fee of $500, shall be sworn
15-55 to and verified under oath by all persons subscribing to the
15-56 capital stock of the corporation, and shall contain:
15-57 (1) the information required to be provided to the
15-58 secretary of state under Section 712.003;
15-59 (2) the names and addresses of any other persons or
15-60 entities who are or will be beneficial owners of the capital stock
15-61 of the corporation or otherwise share an interest in the ownership
15-62 of the corporation's capital stock, or who have paid or will pay
15-63 any portion of the consideration therefor;
15-64 (3) the name and address of any person or entity to
15-65 whom the capital stock or assets of the corporation are or will be
15-66 pledged as security for any loan; and
15-67 (4) the name and address of the person who will
15-68 actively manage the cemetery operations of the corporation along
15-69 with a brief statement of that person's working experience in the
15-70 cemetery industry.
16-1 (b) A cemetery operations manager must have at least two
16-2 years of experience in cemetery management.
16-3 (c) If the corporation fails to provide to the banking
16-4 department the information prescribed by Subsection (a), the
16-5 commissioner may instruct the secretary of state to cancel the
16-6 corporation's charter and serve notice of the cancellation on the
16-7 corporation by registered or certified letter, addressed to the
16-8 corporation's address.
16-9 (d) A corporation shall notify the commissioner in writing
16-10 of any change in the controlling ownership interest of the capital
16-11 stock of the corporation not later than the 30th day following the
16-12 change of controlling ownership interest.
16-13 SECTION 28. Section 712.004, Health and Safety Code, is
16-14 amended to read as follows:
16-15 Sec. 712.004. PERPETUAL CARE TRUST <AND MAINTENANCE
16-16 GUARANTEE> FUND REQUIRED. (a) Before obtaining a corporate
16-17 charter, the incorporators of a corporation chartered on or after
16-18 September 3, 1945, and before September 1, 1993, <a perpetual care
16-19 cemetery> must establish a <minimum perpetual care and maintenance
16-20 guarantee> fund by permanently depositing in cash with the trustee
16-21 of the fund:
16-22 (1) $15,000, if the corporation <cemetery> has capital
16-23 stock of $15,000;
16-24 (2) $30,000, if the corporation <cemetery> has capital
16-25 stock of $30,000; or
16-26 (3) $50,000, if the corporation <cemetery> has capital
16-27 stock of $50,000 or more.
16-28 (b) Before obtaining a corporate charter, the incorporators
16-29 of a corporation chartered on or after September 1, 1993, must
16-30 establish a fund by permanently depositing in cash with the trustee
16-31 of the fund an amount of not less than $50,000 for each perpetual
16-32 care cemetery operated in this state.
16-33 (c) The <guarantee> fund shall be permanently set aside and
16-34 deposited in trust with the trustee in accordance with Subchapter
16-35 B.
16-36 <(c) The amount of deposit required by law to be placed in
16-37 trust for the perpetual care and maintenance of the cemetery from
16-38 the receipts for the sale of a plot may, on the sale, be credited
16-39 against the original perpetual care and maintenance guarantee fund
16-40 until the amount of the credits equals the amount of the original
16-41 deposit. After credits for that amount have been taken, the
16-42 corporation shall deposit in the perpetual care trust fund the
16-43 minimum amount required by law and any additional amount required
16-44 by the rules, trust agreement, or contract of the cemetery
16-45 association for the cemetery's perpetual care and maintenance.>
16-46 <(d) This section does not apply to a cemetery corporation
16-47 chartered before September 3, 1945, except that a corporation that
16-48 amends its charter must comply with the minimum requirements of
16-49 this section.>
16-50 SECTION 29. Section 712.005, Health and Safety Code, is
16-51 amended to read as follows:
16-52 Sec. 712.005. Cancellation of Charter for Failure to Begin
16-53 Operation of Perpetual Care Cemetery <CORPORATION>. (a) If a
16-54 corporation chartered under Section 712.003 does not begin actual
16-55 operation of its perpetual care cemetery <under the charter> for
16-56 six months after the charter is granted and delivered, the
16-57 commissioner may instruct the secretary of state to <shall> cancel
16-58 the charter and serve notice of the cancellation on the corporation
16-59 <association> by registered or certified letter, addressed to the
16-60 corporation's <association's> address.
16-61 (b) The commissioner may rescind the order of cancellation
16-62 on:
16-63 (1) the application of the directors;
16-64 (2) the payment to the commissioner of a penalty set
16-65 by the commissioner in an amount not to exceed $500;
16-66 (3) the execution and delivery to the commissioner of
16-67 an agreement to begin actual operation of the perpetual care
16-68 cemetery not later than one month after the date of the agreement;
16-69 and
16-70 (4) a proper showing by the trustee that the <money of
17-1 the> fund is on deposit.
17-2 (c) If the corporation does not begin actual <active>
17-3 operation as agreed, the commissioner by order may <shall> set
17-4 aside the order of rescission and the cancellation is final. The
17-5 commissioner shall make a full report of the cancellation to the
17-6 attorney general for liquidation of the corporation, if liquidation
17-7 is necessary.
17-8 (d) If no sale of the dedicated cemetery property of the
17-9 corporation is made, a certified copy of the order of cancellation
17-10 authorizes the trustee to refund the fund to the incorporators who
17-11 signed the corporation's articles of incorporation.
17-12 SECTION 30. Section 712.007, Health and Safety Code, is
17-13 amended to read as follows:
17-14 Sec. 712.007. Notice of Perpetual Care Required. (a) A
17-15 corporation <perpetual care cemetery> shall post a sign <in a
17-16 conspicuous place in all offices in which sales are conducted or,
17-17 if there is no office,> at or near a <the> cemetery entrance or
17-18 administration building and readily accessible to the public.
17-19 (b) The sign must contain the following<, in the manner and
17-20 order stated>:
17-21 (1) "Perpetual Care Cemetery," or "Endowment Care
17-22 Cemetery" <in a minimum of 48-point black type>;
17-23 (2) the names and telephone numbers of two of the
17-24 corporation's <cemetery> officers or <and> directors; and
17-25 (3) the name of each <the> bank or trust company
17-26 entrusted with the fund.
17-27 (c) A corporation <perpetual care cemetery> must include the
17-28 following statement in each sales contract, certificate of
17-29 ownership, <sales contract,> or other instrument of conveyance of
17-30 the exclusive right of sepulture:
17-31 "This cemetery is operated as a perpetual care
17-32 cemetery, which means that a perpetual care fund for
17-33 its maintenance has been established in conformity with
17-34 the laws of the State of Texas. Perpetual care means
17-35 to maintain, <keep the sod in> repair, and care for the
17-36 cemetery <all places where interments have been made in
17-37 order and to care for trees and shrubs planted by the
17-38 cemetery>."
17-39 (d) The term "endowment care" may be substituted for the
17-40 term "perpetual care" in the statement required by Subsection (c).
17-41 SECTION 31. Section 712.021, Health and Safety Code, is
17-42 amended to read as follows:
17-43 Sec. 712.021. Establishment and Purposes of Fund. (a) A
17-44 corporation <cemetery association> that <maintains,> operates<, or
17-45 conducts> a perpetual care cemetery in this state<, including a
17-46 permanent maintenance or free-care cemetery,> shall have a
17-47 <perpetual care trust> fund established with a trust company or a
17-48 bank with trust powers that is located in this state. The trust
17-49 company or bank may not have more than one director who is also a
17-50 director of the corporation <cemetery association>.
17-51 (b) <If there is no trust company or bank with trust powers
17-52 that is qualified and willing to accept the trust funds at the
17-53 regular fees established by the Texas Trust Code (Section 111.001
17-54 et seq., Property Code) and that is located in the county in which
17-55 the cemetery association is located, the fund may be established
17-56 with a board of trustees composed of three or more persons, no two
17-57 trustees of which are also directors.>
17-58 <(c)> The principal of the fund may not be reduced
17-59 voluntarily, and it must remain inviolable. The trustee shall
17-60 maintain the principal of the fund separate from all operating
17-61 <other> funds of the corporation.
17-62 (c) <(d)> In establishing a fund, the corporation
17-63 <association> may adopt plans for the general care, maintenance,
17-64 and embellishment of its perpetual care <the> cemetery.
17-65 (d) <(e)> The fund and the trustee are governed by the Texas
17-66 Trust Code (Section 111.001 et seq., Property Code).
17-67 (e) <(f)> A corporation <cemetery association> that
17-68 establishes a fund may receive and hold for the fund and as a part
17-69 of the fund or as an incident to the fund any property contributed
17-70 to the fund.
18-1 (f) <(g)> The fund and contributions to the fund are for
18-2 charitable purposes. The perpetual care financed by the fund is:
18-3 (1) the discharge of a duty due from the corporation
18-4 <person contributing to the fund> to persons interred and to be
18-5 interred in its perpetual care <the> cemetery; and
18-6 (2) for the benefit and protection of the public by
18-7 preserving and keeping the perpetual care cemetery from becoming a
18-8 place of disorder, reproach, and desolation in the community in
18-9 which the perpetual care cemetery is located.
18-10 (g) The trustors of two or more perpetual care trust funds
18-11 may establish a common trust fund in which deposits required by
18-12 this chapter are made, provided that separate records of principal
18-13 and income are maintained for each perpetual care cemetery for the
18-14 benefit of which the common trust fund is established, and further
18-15 provided that the income attributable to each perpetual care
18-16 cemetery is used only for the perpetual care of that cemetery.
18-17 SECTION 32. Section 712.022, Health and Safety Code, is
18-18 amended to read as follows:
18-19 Sec. 712.022. Operation of Perpetual <Establishment of Fund
18-20 by Nonperpetual> Care Cemetery. <(a)> A corporation <cemetery
18-21 association> authorized by law to operate a <cemetery as a>
18-22 perpetual care cemetery but not doing so may do so if the
18-23 corporation <association>:
18-24 (1) notifies the commissioner; and
18-25 (2) establishes a fund as provided by Section 712.021
18-26 in an <the> amount equal to the larger of:
18-27 (A) the amount that would have been paid into
18-28 the fund if the cemetery operated as a perpetual care cemetery from
18-29 the date of the cemetery's first sale of plots <burial space>; or
18-30 (B) the minimum amount provided by Section
18-31 712.004.
18-32 <(b) If the amount of the fund is the minimum amount
18-33 provided by Section 712.004, the cemetery association is entitled
18-34 to a credit against amounts required by this chapter to be paid by
18-35 the association into the fund. The amount of the total credits
18-36 permitted is equal to the difference between the amount computed
18-37 under Subsection (a)(2)(A) and the amount computed under Subsection
18-38 (a)(2)(B).>
18-39 SECTION 33. Section 712.023, Health and Safety Code, is
18-40 amended to read as follows:
18-41 Sec. 712.023. Validity of Contributions. A contribution to
18-42 a fund for <general> perpetual care is not invalid because of:
18-43 (1) indefiniteness or uncertainty of the person
18-44 designated as beneficiary in the instrument establishing the fund
18-45 <creating the trust>; or
18-46 (2) a violation of the law against perpetuities or the
18-47 law against the suspension of the power of alienation of title to
18-48 or use of property.
18-49 SECTION 34. Section 712.024, Health and Safety Code, is
18-50 amended to read as follows:
18-51 Sec. 712.024. Amendment of Trust Instrument <Agreement>. A
18-52 corporation <cemetery association> and the trustee of a <the> fund
18-53 <providing perpetual care for the association's cemetery> may, by
18-54 agreement, amend the instrument that established the fund
18-55 <perpetual care trust agreement> to include any provision that is
18-56 consistent with this chapter.
18-57 SECTION 35. Section 712.025, Health and Safety Code, is
18-58 amended to read as follows:
18-59 Sec. 712.025. Use of Fund Income. <(a)> Fund income may be
18-60 applied in the manner the directors of a corporation determine to
18-61 be for the best interest of the corporation's perpetual care
18-62 cemetery and may be used only for the perpetual care described by
18-63 resolution, bylaw, or other action or instrument that established
18-64 the fund, including the general care and maintenance of the
18-65 property entitled to perpetual care in the perpetual care cemetery.
18-66 <(b) Fund income may not be used for improvement or
18-67 embellishment of unsold property to be offered for sale.>
18-68 SECTION 36. Section 712.026, Health and Safety Code, is
18-69 amended to read as follows:
18-70 Sec. 712.026. Suit by Plot Owners to Maintain Perpetual
19-1 Care. (a) If the directors of a corporation do not generally care
19-2 for and maintain the corporation's perpetual care <part of the>
19-3 cemetery <entitled to perpetual care>, the district court of the
19-4 county in which the perpetual care cemetery is located may:
19-5 (1) by injunction compel the directors to expend the
19-6 net <fund> income of the corporation's fund as required by this
19-7 chapter; or
19-8 (2) appoint a receiver to take charge of the fund and
19-9 expend the net <fund> income of the fund as required by this
19-10 chapter.
19-11 (b) The suit for relief under this section must be brought
19-12 by at least five <plot> owners of <whose> plots located in the
19-13 perpetual care cemetery <are entitled to perpetual care>.
19-14 SECTION 37. Section 712.027, Health and Safety Code, is
19-15 amended to read as follows:
19-16 Sec. 712.027. Investment of Fund. (a) A trustee shall
19-17 invest and manage the investment of the <fund> principal of a fund
19-18 in accordance with the Texas Trust Code (Section 111.001 et seq.,
19-19 Property Code).
19-20 (b) <The fund may not be invested without the written
19-21 approval of an active officer of the cemetery association or a
19-22 majority of its directors.> An investment must be made at not
19-23 more than the prevailing market value of the securities at the time
19-24 of acquisition.
19-25 SECTION 38. Section 712.028, Health and Safety Code, is
19-26 amended to read as follows:
19-27 Sec. 712.028. Amount of Fund Deposits from Sales. (a) A
19-28 corporation <perpetual care cemetery> shall deposit in its <the>
19-29 fund an amount that is at least:
19-30 (1) the greater of:
19-31 (A) $1.50 a square foot of ground area conveyed
19-32 <disposed of or sold> as perpetual care property; or
19-33 (B) 10 percent of the total purchase price of
19-34 that ground area;
19-35 (2) the greater of:
19-36 (A) $90 for each crypt interment right for
19-37 mausoleum interment or lawn crypt interment conveyed <disposed of
19-38 or sold> as perpetual care property, or $50 for each crypt
19-39 interment right if that crypt is accessible only through another
19-40 crypt; or
19-41 (B) five percent of the total purchase price of
19-42 that crypt interment right; and
19-43 (3) the greater of:
19-44 (A) $30 for each niche interment right for
19-45 columbarium interment conveyed; or
19-46 (B) 10 percent of the total purchase price of
19-47 that niche interment right <disposed of or sold>.
19-48 (b) Subsection (a) does not apply to deposits from sales
19-49 required to be made by a corporation in its fund before September
19-50 1, 1993, under a corresponding statute in effect before that date.
19-51 (c) If a plot owner exchanges a plot for another plot in a
19-52 corporation's perpetual care cemetery, the amount to be deposited
19-53 in the corporation's fund in respect of the plot received by the
19-54 plot owner in the exchange may be reduced by the amount deposited
19-55 in the fund in respect of the plot contributed by the plot owner in
19-56 the exchange <A cemetery may not operate as a perpetual care
19-57 cemetery, including a permanent maintenance or free care cemetery,
19-58 unless the cemetery complies with this section and Section
19-59 712.029>.
19-60 SECTION 39. Section 712.029, Health and Safety Code, is
19-61 amended to read as follows:
19-62 Sec. 712.029. Accounting For and Depositing Amounts<; Civil
19-63 Penalty>. (a) The part of the purchase price of a plot in a
19-64 perpetual care cemetery that is to be deposited in a fund must be
19-65 shown separately on the original purchase agreement from the total
19-66 purchase price. A copy of the agreement shall be delivered to the
19-67 purchaser of the plot.
19-68 (b) On the sale of a plot <burial space>, a commission may
19-69 not be paid to a broker or salesman on the amount to be deposited
19-70 in the fund.
20-1 (c) <If the purchase price is payable in installments, each
20-2 amount paid must be applied first to the balance not required to be
20-3 deposited in the fund, and the remainder, on receipt by the seller,
20-4 shall be deposited in the fund.>
20-5 <(d)> A corporation <seller of a plot> shall deposit in its
20-6 <the> fund the <required> amount required under Section 712.028 not
20-7 later than the 20th day after the end of the month in which the
20-8 original purchase agreement has been paid in full. A corporation
20-9 may prepay funds into its fund at any time and, if a surplus exists
20-10 in the fund from the prepayments, may credit against the surplus
20-11 the amounts otherwise required to be deposited in the fund under
20-12 Section 712.028 until the surplus has been depleted. In
20-13 determining whether a surplus exists from prepayments, no part of
20-14 the fund resulting from gifts to the fund under Section 712.030 may
20-15 be considered <amount is received>.
20-16 <(e) A seller who violates Subsection (d) is liable for a
20-17 penalty of $10 a day for each day of violation. The commissioner
20-18 shall collect the penalty.>
20-19 <(f) If the seller refuses to pay the penalty, the
20-20 commissioner shall report the refusal to the attorney general, who
20-21 shall bring suit to recover the penalty, costs, and other relief
20-22 requested by the attorney general as proper and necessary.>
20-23 SECTION 40. Section 712.030, Health and Safety Code, is
20-24 amended to read as follows:
20-25 Sec. 712.030. USE OF GIFT FOR SPECIAL CARE OF PLOT <BURIAL
20-26 SPACE> IN PERPETUAL CARE CEMETERY. <(a)> A trustee may take and
20-27 hold property transferred to the trustee in trust in order to apply
20-28 the principal, proceeds, or income of the property for any purpose
20-29 consistent with the purpose of a corporation's perpetual care <the>
20-30 cemetery, including:
20-31 (1) the improvement or embellishment of any part of
20-32 the perpetual care cemetery;
20-33 (2) the erection, renewal, repair, or preservation of
20-34 a monument, fence, building, or other structure in the perpetual
20-35 care cemetery;
20-36 (3) planting or cultivating plants in or around the
20-37 perpetual care cemetery; or
20-38 (4) taking special care of or embellishing a <burial>
20-39 plot, section, or building in the perpetual care cemetery.
20-40 <(b) Not more than 75 percent of the property's proceeds or
20-41 income may be devoted to maintaining and beautifying the private
20-42 block, plot, or structure for which the transfer is made.>
20-43 <(c) At least 25 percent of the property's proceeds or
20-44 income must be devoted generally to maintaining and beautifying the
20-45 cemetery in which the block, plot, or structure is located.>
20-46 SECTION 41. Section 712.041, Health and Safety Code, is
20-47 amended to read as follows:
20-48 Sec. 712.041. ANNUAL STATEMENT OF FUNDS. (a) A corporation
20-49 <perpetual care cemetery> shall file in its <the cemetery's> office
20-50 and with the commissioner a statement for each perpetual care
20-51 cemetery operated in this state in duplicate that shows:
20-52 (1) the principal amount of its fund;
20-53 (2) the amount of the fund invested in bonds and other
20-54 securities;
20-55 (3) the amount of <fund> cash on hand in the fund;
20-56 (4) any other item that shows the financial condition
20-57 of the fund;
20-58 (5) the number of crypts, niches, and square feet of
20-59 ground area conveyed <grave space sold or disposed of> under
20-60 perpetual care before and after March 15, 1934, listed separately;
20-61 and
20-62 (6) the number of crypts, niches, and square feet of
20-63 ground area conveyed <grave space sold or disposed of> under
20-64 perpetual care after March 15, 1934, for which the minimum deposits
20-65 required for perpetual care have not been paid to the fund.
20-66 (b) The corporation's <association> president and secretary,
20-67 or two principal officers, shall verify the information on the
20-68 statement.
20-69 (c) The corporation <association> shall revise and post and
20-70 file the statement on or before March 1 of each year.
21-1 (d) A <Not later than the 30th day after the date on which
21-2 the statement is filed with the commissioner, a> copy of the
21-3 statement shall be available to the public upon request <published
21-4 in at least one newspaper of general circulation in the county in
21-5 which the cemetery is located>.
21-6 SECTION 42. Section 712.042, Health and Safety Code, is
21-7 amended to read as follows:
21-8 Sec. 712.042. Fees. (a) On filing a <the> statement of
21-9 funds under Section 712.041, a corporation <the cemetery> shall pay
21-10 the commissioner a reasonable and necessary fee set annually by the
21-11 commissioner to defray the cost of administering this chapter.<:>
21-12 <(1) $100, if the cemetery serves a municipality with
21-13 a population of 25,000 or less; or>
21-14 <(2) $200, if the cemetery serves a municipality with
21-15 a population of more than 25,000.>
21-16 (b) The banking department shall receive and disburse
21-17 revenues collected under this chapter in accordance with Article
21-18 12, Chapter I, The Texas Banking Code of 1943 (Article 342-112,
21-19 Vernon's Texas Civil Statutes)<, for:>
21-20 <(1) the administration and enforcement of the law
21-21 relating to the operation of funds; and>
21-22 <(2) investigations on department initiative, or on
21-23 complaints made by others, regarding the operation of a perpetual
21-24 care cemetery and the creation, investment, and expenditure of
21-25 funds.>
21-26 <(c) A reasonable part of the amount that the banking
21-27 department transfers each year of the biennium to the general
21-28 revenue fund to cover the cost of government services rendered by
21-29 other departments may consist of revenues collected under this
21-30 chapter>.
21-31 SECTION 43. Section 712.043, Health and Safety Code, is
21-32 amended to read as follows:
21-33 Sec. 712.043. Additional Fund Report. The commissioner may
21-34 require, as often as the commissioner determines necessary, the
21-35 trustee of a corporation's fund <a trustee> to make under oath a
21-36 detailed report of the condition of the fund. The report must
21-37 include:
21-38 (1) a detailed description of the assets of the fund
21-39 <assets>;
21-40 (2) a description of securities held by the fund;
21-41 (3) if a security held by the fund is a lien, a
21-42 description of the property against which the lien is taken;
21-43 (4) each security's acquisition cost;
21-44 (5) each security's market value at the time of
21-45 acquisition;
21-46 (6) each security's current market value;
21-47 (7) each security's status with reference to default;
21-48 (8) a statement that a security is not encumbered by
21-49 debt; and
21-50 (9) <a statement that none of the fund assets are
21-51 loans to the cemetery for which the fund is established or to an
21-52 officer or director of the cemetery; and>
21-53 <(10)> any other information the commissioner
21-54 determines is pertinent.
21-55 SECTION 44. Section 712.044, Health and Safety Code, is
21-56 amended to read as follows:
21-57 Sec. 712.044. EXAMINATION <AUDIT> OF FUND RECORDS;
21-58 EXAMINATION <AUDIT> FEES AND EXPENSES. (a) The books and records
21-59 of a corporation relating to its fund shall be examined annually or
21-60 as often as necessary by the commissioner. The examination shall
21-61 cover the period of time from the date of the last examination of
21-62 the corporation's books and records relating to its fund <The
21-63 commissioner shall examine the records of a perpetual care cemetery
21-64 association annually or as often as necessary>.
21-65 (b) A corporation <An association> that is examined under
21-66 this section shall make its books and records relating to its fund
21-67 available for examination by the banking department upon reasonable
21-68 notice to the corporation and shall pay to the commissioner for the
21-69 <regular> examination a reasonable and necessary fee set annually
21-70 by the commissioner to defray the cost of administering this
22-1 chapter.<:>
22-2 <(1) not more than $100 a day or part of a day for
22-3 each examiner or not more than a total of $400 for the entire
22-4 examination, if the associations annual deposits to the
22-5 association's fund as required by law are less than $7,500; or>
22-6 <(2) not more than $200 a day or part of a day for
22-7 each examiner or not more than a total of $800 for the entire
22-8 examination, if the association's annual deposit to the
22-9 association's fund as required by law are $7,500 or more.>
22-10 <(c) If the examiner determines that the conditions of the
22-11 association necessitate additional examination or a prolonged audit
22-12 to ascertain the association's status, the association shall pay
22-13 the total expense of the additional examination or audit.>
22-14 SECTION 45. Subchapter C, Chapter 712, Health and Safety
22-15 Code, is amended by adding Section 712.0441 to read as follows:
22-16 Sec. 712.0441. ENFORCEMENT. (a) A corporation shall be
22-17 subject to a civil penalty upon the occurrence of any of the
22-18 following violations:
22-19 (1) the corporation does not make a deposit in its
22-20 fund as required by Section 712.028;
22-21 (2) the corporation does not file a statement of funds
22-22 as required by Section 712.041; or
22-23 (3) the corporation does not pay the filing fee as
22-24 required by Section 712.042.
22-25 (b) The trustee of a fund shall be subject to a civil
22-26 penalty upon the occurrence of either of the following violations:
22-27 (1) the trustee does not file a report required by the
22-28 commissioner under Section 712.043 within 30 days after the date of
22-29 the commissioner's request; or
22-30 (2) the fund does not comply with this chapter.
22-31 (c) The civil penalty that may be imposed under Subsection
22-32 (a) or (b) shall not exceed $250 per violation for each day that
22-33 the violation persists, provided, that the aggregate civil penalty
22-34 for all violations shall not exceed $500 per day. A corporation or
22-35 trustee shall have no civil penalty liability if within 30 days
22-36 after receiving written notice from the commissioner of the
22-37 violation the corporation or trustee corrects such violation by
22-38 performing the required duty or act. Any such civil penalty may be
22-39 imposed by the commissioner after notice and opportunity for
22-40 hearing in accordance with the procedures for a contested case
22-41 hearing under the Administrative Procedure and Texas Register Act.
22-42 In determining the amount of the penalty, the commissioner shall
22-43 consider the seriousness of the violation and the good faith of the
22-44 corporation or trustee in its attempts to achieve compliance. The
22-45 amount of such penalty may be collected by the commissioner in the
22-46 same manner that money judgments are enforced in the district
22-47 courts of this state.
22-48 (d) In addition to any penalty that may be imposed under
22-49 Subsection (a), the commissioner may bring a civil action against a
22-50 corporation to enjoin a violation described in Subsection (a) that
22-51 has not been corrected within 30 days after the receipt by the
22-52 corporation of written notice from the commissioner of the
22-53 violation. Any such civil action may be brought in the district
22-54 court of the county in which the corporation's perpetual care
22-55 cemetery is operated.
22-56 (e) The commissioner may issue an order to cease and desist
22-57 if a violation described in Subsection (a) has not been corrected
22-58 within 30 days after the receipt by the corporation of written
22-59 notice from the commissioner of the violation. Any order proposed
22-60 under this subsection shall be served upon the corporation, shall
22-61 state the grounds for the proposed order with reasonable certainty,
22-62 and shall state the proposed effective date, which shall not be
22-63 less than 15 days after receipt by the corporation. Unless the
22-64 corporation shall request a hearing within 15 days after such
22-65 receipt, the order shall become effective as proposed. If the
22-66 corporation requests a hearing, it shall be conducted in accordance
22-67 with the procedures for a contested case hearing under the
22-68 Administrative Procedure and Texas Register Act.
22-69 (f) The commissioner may issue an order requiring
22-70 restitution by a corporation to its fund if, after notice and
23-1 opportunity for hearing held in accordance with the procedures for
23-2 a contested case hearing under the Administrative Procedure and
23-3 Texas Register Act, the commissioner finds that the corporation has
23-4 not made a deposit in the fund as required by Section 712.028.
23-5 (g) If a violation described in Subsection (a) has not been
23-6 corrected with 90 days after the receipt of written notice by the
23-7 corporation from the commissioner of the violation, the
23-8 commissioner may report the violation to the attorney general, who
23-9 shall bring suit or quo warranto proceedings for the forfeiture of
23-10 the corporation's charter and dissolution of the corporation in the
23-11 district court of any county in which its perpetual care cemetery
23-12 is operated.
23-13 (h) If a fund is misappropriated by its trustee or is not
23-14 otherwise handled as required by this chapter, the commissioner may
23-15 take action against the trustee as provided in Articles 342-1104
23-16 and 342-1105 of The Texas Banking Code.
23-17 SECTION 46. Section 712.048, Health and Safety Code, is
23-18 amended to read as follows:
23-19 Sec. 712.048. Criminal Penalties. (a) A person who is an
23-20 individual, firm, association, corporation, or municipality, or an
23-21 officer, agent, or employee of an individual, firm, association,
23-22 corporation, or municipality, commits an offense if the person<:>
23-23 <(1)> sells, offers to sell, or advertises for sale an
23-24 interment right in a plot <or the exclusive right of sepulture in a
23-25 plot> and, before a fund is established for the cemetery in which
23-26 the plot is located as provided by this chapter <subtitle>,
23-27 represents that the plot is under perpetual care. An offense under
23-28 this subsection is a Class A misdemeanor. This subsection does not
23-29 prevent an aggrieved party or the attorney general from maintaining
23-30 a civil action for the recovery of damages caused by an injury
23-31 resulting from an offense under this subsection.
23-32 (b) A person who is an individual, firm, association,
23-33 corporation, or municipality, or an officer, agent, or employee of
23-34 an individual, firm, association, corporation, or municipality,
23-35 commits an offense if the person knowingly defalcates or
23-36 misappropriates assets of a fund. An offense under this subsection
23-37 is punishable as if it were an offense under Section 32.45, Penal
23-38 Code<;>
23-39 <(2) violates Section 712.041;>
23-40 <(3) invests funds in violation of Section 712.027; or>
23-41 <(4) does not post notice as required by Section
23-42 712.007.>
23-43 <(b) An offense under this section is a misdemeanor
23-44 punishable by:>
23-45 <(1) a fine not to exceed $500; or>
23-46 <(2) if the defendant is an individual, by a fine not
23-47 to exceed $500, confinement in the county jail for a term not to
23-48 exceed six months, or both>.
23-49 SECTION 47. Section 713.001, Health and Safety Code, is
23-50 amended to read as follows:
23-51 Sec. 713.001. MUNICIPAL CEMETERY AUTHORIZED. The governing
23-52 body of a <Type A general law> municipality may:
23-53 (1) purchase, establish, and regulate a cemetery; and
23-54 (2) enclose and improve a cemetery owned by the
23-55 municipality.
23-56 SECTION 48. Sections 711.005, 712.006, 712.045, 712.046, and
23-57 712.047, Health and Safety Code, are repealed.
23-58 SECTION 51. This Act takes effect September 1, 1993, except
23-59 for Section 712.007, which becomes effective March 1, 1994.
23-60 SECTION 52. The importance of this legislation and the
23-61 crowded condition of the calendars in both houses create an
23-62 emergency and an imperative public necessity that the
23-63 constitutional rule requiring bills to be read on three several
23-64 days in each house be suspended, and this rule is hereby suspended.
23-65 * * * * *
23-66 Austin,
23-67 Texas
23-68 May 19, 1993
23-69 Hon. Bob Bullock
23-70 President of the Senate
24-1 Sir:
24-2 We, your Committee on Economic Development to which was referred
24-3 H.B. No. 1213, have had the same under consideration, and I am
24-4 instructed to report it back to the Senate with the recommendation
24-5 that it do pass and be printed.
24-6 Parker,
24-7 Chairman
24-8 * * * * *
24-9 WITNESSES
24-10 FOR AGAINST ON
24-11 ___________________________________________________________________
24-12 Name: Robert D. Gordon x
24-13 Representing: Texas Cemeteries Assn.
24-14 City: Arlington
24-15 -------------------------------------------------------------------
24-16 Name: Brian Davis x
24-17 Representing: Directors Investment Group
24-18 City: Austin
24-19 -------------------------------------------------------------------