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  -------------------------------------------------------------------