By: Parker S.B. No. 1076
73R3560 KLL-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the laws governing cemeteries and perpetual care
1-3 cemeteries; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 711.001, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 711.001. Definitions. In this chapter:
1-8 (1) "Burial park" means a tract of land that is
1-9 <dedicated to and is> used or intended to be used for interment in
1-10 graves.
1-11 (2) "Cemetery" means a place that is <dedicated to and
1-12 that is> used or intended to be used for interment, and includes a
1-13 graveyard, burial park, or mausoleum.
1-14 (3) "Cemetery organization <association>" means <an
1-15 organization that is>:
1-16 (A) an unincorporated association of plot owners
1-17 not operated for profit that is authorized by its articles of
1-18 association to conduct a business for cemetery purposes; or
1-19 (B) <or> a corporation, either for profit or not
1-20 for profit, that is<; and>
1-21 <(B)> authorized by its articles of
1-22 incorporation to conduct a business for cemetery purposes.
1-23 (4) "Cemetery purpose" means a purpose necessary or
1-24 incidental to establishing, maintaining, managing, operating,
2-1 improving, or conducting a cemetery, interring remains, or caring
2-2 for, preserving, and embellishing cemetery property.
2-3 (5) "Columbarium" means a durable, fireproof
2-4 structure, or a room or other space in a durable, fireproof
2-5 structure, containing niches and used or intended to be used to
2-6 contain cremated remains.
2-7 (6) "Cremated remains" means the bone fragments
2-8 remaining after the cremation process, which may include the
2-9 residue of any foreign materials that were cremated with the human
2-10 remains <remains after incineration in a crematory>.
2-11 (7) "Cremation" means the irreversible process of
2-12 reducing human remains to bone fragments through extreme heat and
2-13 evaporation, which may include the processing or the pulverization
2-14 of bone fragments <reduction of remains to cremated remains>.
2-15 (8) "Crematory" means a structure containing a furnace
2-16 used or intended to be used for the cremation <incineration> of
2-17 human remains.
2-18 (9) "Crematory and columbarium" means a durable,
2-19 fireproof structure containing both a crematory and columbarium.
2-20 (10) "Crypt" means a chamber in a mausoleum of
2-21 sufficient size to inter human <uncremated> remains.
2-22 (11) "Directors" means the governing body of a
2-23 cemetery organization <association>.
2-24 (12) "Entombment" means interment in a crypt.
2-25 (13) "Funeral establishment" means a place of business
2-26 used in the care and preparation for interment or transportation of
2-27 human remains, or any place where one or more persons, either as
3-1 sole owner, in copartnership, or through corporate status, are
3-2 engaged or represent themselves to be engaged in the business of
3-3 embalming or funeral directing.
3-4 (14) "Grave" means a space of ground that is in a
3-5 burial park and that is used or intended to be used for interment
3-6 in the ground.
3-7 (15) "Human remains" means the body of a decedent.
3-8 (16) <(14)> "Interment" means the permanent
3-9 disposition of remains by entombment, <or> burial, or placement in
3-10 a niche.
3-11 (17) "Interment right" means the right to inter the
3-12 remains of one decedent in a plot.
3-13 (18) <(15)> "Inurnment" means the placement of
3-14 cremated remains in an urn.
3-15 (19) <(16)> "Lawn crypt" means a subsurface concrete
3-16 and reinforced steel receptacle installed in multiple units for
3-17 burial of human remains <in a coffin>.
3-18 (20) <(17)> "Mausoleum" means a durable, fireproof
3-19 structure used or intended to be used for entombment.
3-20 (21) <(18)> "Niche" means a space in a columbarium
3-21 used or intended to be used for the placement of cremated remains
3-22 in an urn or other container.
3-23 (22) <(19)> "Nonperpetual care cemetery" means a
3-24 cemetery that is not a perpetual care cemetery.
3-25 (23) <(20)> "Perpetual care" or "endowment care" means
3-26 the maintenance, repair, and care of all <in proper order of the
3-27 sod, foliage, and> places where <in which> interments have been
4-1 made.
4-2 (24) <(21)> "Perpetual care cemetery" or "endowment
4-3 care cemetery" means a cemetery for the benefit of which a
4-4 perpetual care trust fund is established as provided by Chapter
4-5 712.
4-6 (25) <(22)> "Plot" means space in a cemetery owned by
4-7 an individual or organization that is used or intended to be used
4-8 for interment, including a grave or adjoining graves, a crypt or
4-9 adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche
4-10 or adjoining niches.
4-11 (26) <(23)> "Plot owner" means a person:
4-12 (A) in whose name a plot is listed in a cemetery
4-13 organization's <association> office as the owner of the exclusive
4-14 right of sepulture; or
4-15 (B) who holds, from a cemetery organization
4-16 <association>, a <conveyance or a> certificate of ownership or
4-17 other instrument of conveyance of the exclusive right of sepulture
4-18 in a particular plot in the organization's <association's>
4-19 cemetery.
4-20 (27) "Prepaid funeral contract" means a written
4-21 contract providing for prearranged or prepaid funeral services or
4-22 funeral merchandise.
4-23 (28) <(24)> "Remains" means either human remains or
4-24 cremated remains <the body of a decedent>.
4-25 SECTION 2. Section 711.002, Health and Safety Code, is
4-26 amended to read as follows:
4-27 Sec. 711.002. Disposition of Remains; Duty to Inter.
5-1 (a) Unless a decedent has left other directions in writing for the
5-2 disposition of the decedent's remains, the following persons, in
5-3 the priority listed, have the right to control the disposition,
5-4 including cremation, of the decedent's <person's> remains, shall
5-5 inter the remains, and are liable for the reasonable cost of
5-6 interment:
5-7 (1) the decedent's surviving spouse;
5-8 (2) any one of the decedent's surviving adult
5-9 children;
5-10 (3) either one of the decedent's surviving parents;
5-11 (4) any one of the decedent's surviving adult
5-12 siblings; or
5-13 (5) any <the> adult person in the next degree of
5-14 kinship in the order named by law to inherit the estate of the
5-15 decedent <deceased>.
5-16 (b) A person listed in Subsection (a) has the right, duty,
5-17 and liability provided by that subsection only if there is no
5-18 person in a priority listed before that <the> person.
5-19 (c) If there is no person with the duty to inter under
5-20 Subsection (a) and:
5-21 (1) an inquest is held, the person conducting the
5-22 inquest shall inter the remains; and
5-23 (2) an inquest is not held, the county in which the
5-24 death occurred shall inter the remains.
5-25 (d) A person <An individual> who represents that the person
5-26 <individual> knows the identity of a <the> decedent and, in order
5-27 to procure the disposition, including cremation, of the decedent's
6-1 remains <interment>, signs an order or statement, other than a
6-2 death certificate, warrants the identity of the decedent and is
6-3 liable for all damages <damage> that result <results>, directly or
6-4 indirectly, from that warrant.
6-5 (e) A person may provide written directions for the
6-6 disposition <instructions to direct the preparation for and type or
6-7 place of interment> of the person's remains in a will, a prepaid
6-8 funeral contract, or an instrument filed and recorded with a
6-9 cemetery organization or funeral establishment. The directions
6-10 <instructions> may be modified only in writing. The person or
6-11 persons otherwise entitled to control the disposition of a
6-12 decedent's <the> remains under this section shall faithfully carry
6-13 out the directions <instructions> of the decedent to the extent
6-14 that the decedent's estate or the person controlling the
6-15 disposition is financially able to do so.
6-16 (f) If the directions <instructions> are in a will, they
6-17 shall be carried out immediately without the necessity of probate.
6-18 If the will is not probated or is declared invalid for testamentary
6-19 purposes, the directions <instructions> are valid to the extent to
6-20 which they have been acted on in good faith.
6-21 (g) A cemetery organization or funeral establishment
6-22 <association> is not liable for carrying out the written directions
6-23 <instructions> of the decedent, or the directions of any person who
6-24 represents that the person is entitled to control the disposition
6-25 of the decedent's remains, in accordance with this section.
6-26 (h) Any dispute among the next of kin of a decedent
6-27 concerning their right to control the disposition, including
7-1 cremation, of the decedent's remains under this section shall be
7-2 resolved by a court of competent jurisdiction. A cemetery
7-3 organization or funeral establishment is not liable for refusing to
7-4 accept the decedent's remains or to inter or otherwise dispose of
7-5 the decedent's remains until it receives a court order or other
7-6 suitable confirmation that the dispute has been resolved or settled
7-7 <unless it has actual notice that the representation is untrue>.
7-8 SECTION 3. Section 711.003, Health and Safety Code, is
7-9 amended to read as follows:
7-10 Sec. 711.003. Records of Interment. A record shall be kept
7-11 of each interment in a cemetery. The record must include:
7-12 (1) the date the remains are received;
7-13 (2) the date the remains are interred;
7-14 (3) the name and age of the person interred if those
7-15 facts can be conveniently obtained; and
7-16 (4) the identity of the plot<, and grave, niche, or
7-17 crypt> in which the remains are interred.
7-18 SECTION 4. Section 711.004, Health and Safety Code, is
7-19 amended to read as follows:
7-20 Sec. 711.004. Removal of Remains. (a) Remains<, including
7-21 cremated remains,> interred in a cemetery may be removed from the
7-22 cemetery with the written consent of the cemetery organization
7-23 <association> operating the cemetery and the written consent of the
7-24 current plot owner or owners and the following persons, in the
7-25 priority listed:
7-26 (1) the decedent's surviving spouse;
7-27 (2) the decedent's surviving adult children;
8-1 (3) the decedent's surviving parents;
8-2 (4) the decedent's adult siblings; or
8-3 (5) the adult person in the next degree of kinship in
8-4 the order named by law to inherit the estate of the decedent.
8-5 (b) A person listed in Subsection (a) may consent to the
8-6 removal only if there is no person in a priority listed before that
8-7 <the> person.
8-8 (c) If the consent required by Subsection (a) cannot be
8-9 obtained, the remains may be removed by permission of the county
8-10 court of the county in which the cemetery is located. Before the
8-11 date of application to the court for permission to remove remains
8-12 under this subsection, notice must be given to:
8-13 (1) the cemetery organization <association> operating
8-14 the cemetery in which the remains are interred;
8-15 (2) <the plot owner or owners;>
8-16 <(3)> each person whose consent is required for
8-17 removal of the remains under Subsection (a) <who does not consent
8-18 to the removal>; and
8-19 (3) <(4)> any other person that the court requires to
8-20 be served.
8-21 (d) For the purposes of Subsection (c), personal notice must
8-22 be given not later than the 11th day before the date of application
8-23 to the court for permission to remove the remains, or notice by
8-24 certified or registered mail must be given not later than the 16th
8-25 day before the date of application.
8-26 (e) Subsections (a)-(d) do not apply to the removal of
8-27 remains:
9-1 (1) from one plot to another plot in the same
9-2 cemetery;
9-3 (2) by the cemetery organization <association> from a
9-4 plot for which the purchase price is past due and unpaid, to
9-5 another suitable place; or
9-6 (3) on the order of a court or person who conducts
9-7 inquests.
9-8 (f) Except as is authorized for a justice of the peace
9-9 acting as coroner or medical examiner under Chapter 49, Code of
9-10 Criminal Procedure, remains may not be removed from a cemetery
9-11 except on the written order of the state registrar or the state
9-12 registrar's designee. The cemetery organization shall keep a
9-13 duplicate copy of the order as part of its records. The Texas
9-14 Board of Health may adopt rules to implement this subsection.
9-15 (g) A person who removes remains from a cemetery shall keep
9-16 a record of the removal that includes:
9-17 (1) the date the remains are removed;
9-18 (2) the name and age at death of the decedent if those
9-19 facts can be conveniently obtained;
9-20 (3) the place to which the remains are removed; and
9-21 (4) the cemetery and plot from which the remains are
9-22 removed.
9-23 (h) If the remains are not reinterred, the person who
9-24 removes the remains shall make and keep a record of the disposition
9-25 of the remains.
9-26 (i) A person who removes remains from a cemetery shall give
9-27 the cemetery organization <association> operating the cemetery a
10-1 copy of the record made as required by Subsections (g) and (h).
10-2 SECTION 5. Section 711.006, Health and Safety Code, is
10-3 amended to read as follows:
10-4 Sec. 711.006. Limitations on Crematory Construction and
10-5 Operation. (a) A crematory may be constructed, established, or
10-6 maintained only in a burial park having a columbarium, plot, or
10-7 mausoleum <amply> equipped for the interment of cremated remains
10-8 <cremated at that crematory>.
10-9 (b) The crematory may be in the same fireproof structure as
10-10 the columbarium, plot, or mausoleum, or in a separate fireproof
10-11 building in the same <cemetery or> burial park as the columbarium,
10-12 plot, or mausoleum.
10-13 (c) A crematory that cremates a decedent's human remains
10-14 shall dispose of the cremated remains by:
10-15 (1) delivering the cremated remains to or as directed
10-16 by the funeral establishment that contracted to provide for the
10-17 cremation;
10-18 (2) delivering the cremated remains as directed by the
10-19 person who contracted for the cremation; or
10-20 (3) if not delivered as provided by Subdivision (1) or
10-21 (2), by permanent interment of the cremated remains in a plot.
10-22 (d) Not later than the 90th day after the cremation, the
10-23 crematory shall send a written notice by registered or certified
10-24 mail to the funeral establishment or person who contracted for the
10-25 cremation stating that the cremated remains will be interred under
10-26 Subsection (c)(3) unless the notified funeral establishment or
10-27 person, or other person authorized by the notified funeral
11-1 establishment or person, claims and removes the cremated remains
11-2 not later than the 60th day after the date of the notice.
11-3 (e) A crematory is not liable for any actions taken by the
11-4 crematory in accordance with Subsection (c) or (d) <Cremated
11-5 remains not removed from the crematory for permanent deposit
11-6 elsewhere shall be permanently interred in a grave, crypt, or niche
11-7 not later than the 30th day after the date of cremation>.
11-8 SECTION 6. Section 711.007, Health and Safety Code, is
11-9 amended to read as follows:
11-10 Sec. 711.007. <Nonconforming or Abandoned Cemetery as a>
11-11 Nuisance; Abatement and Injunction. (a) A court of the county in
11-12 which a cemetery is located may, by order, abate the cemetery as a
11-13 nuisance and enjoin its continuance if the cemetery is:
11-14 (1) maintained, located, or used in violation of this
11-15 chapter or Chapter 712; or
11-16 (2) neglected so that it is offensive to the
11-17 inhabitants of the surrounding section <and has no perpetual care
11-18 fund regularly and legally established>.
11-19 (b) The proceeding may be brought by:
11-20 (1) the attorney general;
11-21 (2) the governing body of a municipality with a
11-22 population of more than 25,000, if the cemetery is located in the
11-23 municipality or not farther than five miles from the municipality;
11-24 (3) <(2)> the district attorney of the county, if the
11-25 cemetery is located in an area of the county not described by
11-26 Subdivision (2) <(1)>; <or>
11-27 (4) <(3)> the owner of a residence:
12-1 (A) in or near the municipality in which the
12-2 cemetery is located; or
12-3 (B) in the area proscribed for the location of a
12-4 cemetery by Section 711.008; or
12-5 (5) the owner of a plot in the cemetery.
12-6 (c) The court shall grant a permanent injunction against
12-7 each person responsible for the nuisance if a cemetery nuisance
12-8 exists or is threatened.
12-9 (d) If a cemetery nuisance under Subsection (a)(2) is
12-10 located in a municipality, the governing body of the municipality
12-11 may authorize the removal of all bodies, monuments, tombs, or other
12-12 similar items from the cemetery to a perpetual care cemetery.
12-13 SECTION 7. Section 711.008, Health and Safety Code, is
12-14 amended to read as follows:
12-15 Sec. 711.008. Location of Cemetery. (a) Except as provided
12-16 by Subsections (b) and<,> (c), <and (e),> an individual,
12-17 corporation, partnership, firm, trust, or association may not
12-18 establish or operate a cemetery, or use any land for the interment
12-19 of remains, <inter remains in a cemetery> located:
12-20 (1) in or within one mile of the boundaries of a
12-21 municipality with a population of 5,000 to 25,000;
12-22 (2) in or within two miles of the boundaries of a
12-23 municipality with a population of 25,000 to 50,000;
12-24 (3) in or within three miles of the boundaries of a
12-25 municipality with a population of 50,000 to 100,000;
12-26 (4) in or within four miles of the boundaries of a
12-27 municipality with a population of 100,000 to 200,000; or
13-1 (5) in or within five miles of the boundaries of a
13-2 municipality with a population of at least 200,000.
13-3 (b) Subsection (a) does not apply to:
13-4 (1) a cemetery heretofore established and operating;
13-5 or
13-6 (2) the establishment and use of a columbarium by an
13-7 organized religious society or sect as part of or attached to the
13-8 principal church building owned by the society or sect.
13-9 (c) A cemetery organization <association> operating a
13-10 cemetery that heretofore was used and maintained inside the limits
13-11 prescribed by Subsection (a) may acquire land that is adjacent but
13-12 not necessarily contiguous to the cemetery for cemetery purposes if
13-13 additional land is required. That land may be used as an addition
13-14 to the cemetery.
13-15 (d) <Subsections (e)-(i) apply to the establishment or use
13-16 of a cemetery in a county with a population of less than 235,000
13-17 that borders the Gulf of Mexico.>
13-18 <(e) Not later than August 31, 1990, a person who desires to
13-19 establish or use a cemetery may file a written application to
13-20 establish or use the cemetery if the cemetery is located inside a
13-21 municipality and 80 percent or more of the municipality's
13-22 boundaries are contiguous with the boundaries or extraterritorial
13-23 jurisdiction of another municipality or if the cemetery is located
13-24 outside a municipality but within the distance prohibited by
13-25 Subsection (a) for the municipality. The application must be filed
13-26 with the governing body of the municipality.>
13-27 <(f) If the location of the proposed cemetery is inside the
14-1 prohibited distance from more than one municipality, the person
14-2 must file a written application with the governing body of each
14-3 municipality.>
14-4 <(g) The governing body of a municipality by ordinance shall
14-5 prescribe the information required in an application submitted
14-6 under this subsection or Subsection (e).>
14-7 <(h) The governing body may grant the application if it
14-8 determines that the establishment or use of the cemetery does not
14-9 adversely affect public health, safety, and welfare.>
14-10 <(i) Before the person may establish or use the cemetery,
14-11 the application must be granted by each municipality required to
14-12 receive an application under this section.>
14-13 <(j)> For the purpose of determining where a cemetery may be
14-14 located under Subsection (a), the boundary of an area annexed by a
14-15 municipality is not considered to be a boundary of the municipality
14-16 if no more than 10 percent of the boundary of the annexed area is
14-17 composed of a part of the boundary of the annexing municipality as
14-18 it existed immediately before the annexation.
14-19 SECTION 8. Section 711.009, Health and Safety Code, is
14-20 amended to read as follows:
14-21 Sec. 711.009. Authority of Cemetery Keeper. (a) The
14-22 superintendent, sexton, or other person in charge of a cemetery has
14-23 the same powers, <and> duties, and immunities granted by law to:
14-24 (1) a police officer in the municipality in which the
14-25 cemetery is located; or
14-26 (2) a constable or sheriff of the county in which the
14-27 cemetery is located if the cemetery is outside a municipality.
15-1 (b) A person who is granted authority under Subsection (a)
15-2 shall maintain order and enforce the cemetery organization's
15-3 <association> rules, state law, and municipal ordinances in the
15-4 cemetery over which that person has charge and as near the cemetery
15-5 as necessary to protect cemetery property.
15-6 SECTION 9. Section 711.021, Health and Safety Code, is
15-7 amended to read as follows:
15-8 Sec. 711.021. Formation of Corporation to Maintain and
15-9 Operate Cemetery. (a) An individual, corporation, partnership,
15-10 firm, trust, or association may not engage in a business for
15-11 cemetery purposes in this state unless the person is a corporation
15-12 organized for those purposes.
15-13 (b) A corporation conducting a business for cemetery
15-14 purposes, including the sale of plots, may be formed only as
15-15 provided by this section. The corporation must be either:
15-16 (1) a nonprofit corporation organized in accordance
15-17 with Section A or B, Article 3.01, Texas Non-Profit Corporation Act
15-18 (Article 1396-3.01, Vernon's Texas Civil Statutes), or with Section
15-19 711.022; or
15-20 (2) a private corporation operated for profit.
15-21 (c) The charter of a cemetery corporation formed after May
15-22 15, 1947, but before September 1, 1993, must state whether the
15-23 corporation:
15-24 (1) is operated for profit or not for profit; and
15-25 (2) is operating a perpetual care cemetery or a
15-26 nonperpetual care cemetery.
15-27 (d) A corporation formed before September 3, 1945, under
16-1 statutory authority other than Section 5, Chapter 340, Acts of the
16-2 49th Legislature, Regular Session, 1945 (Article 912a-5, Vernon's
16-3 Texas Civil Statutes), to maintain and operate a cemetery is
16-4 governed by this chapter only to the extent that this chapter does
16-5 not conflict with the charter or articles of incorporation of the
16-6 corporation.
16-7 (e) This section does not apply to a corporation chartered
16-8 by the state before September 3, 1945, that, under its charter,
16-9 bylaws, or dedication, created a perpetual care trust fund and
16-10 maintains that fund in accordance with the corporation's trust
16-11 agreement, Chapter 712, and this chapter. The corporation may
16-12 operate a perpetual care cemetery without amending the
16-13 corporation's charter as if it had been incorporated under this
16-14 section.
16-15 (f) Any cemetery that begins its initial operations on or
16-16 after September 1, 1993, shall be operated as a perpetual care
16-17 cemetery in accordance with Chapter 712.
16-18 (g) This section does not apply to:
16-19 (1) a family, fraternal, or community cemetery that is
16-20 not larger than 10 acres;
16-21 (2) an unincorporated association of plot owners not
16-22 operated for profit;
16-23 (3) a church, a religious society or denomination, or
16-24 an entity <a corporation> solely administering the temporalities of
16-25 a church or religious society or denomination; or
16-26 (4) a public cemetery belonging to this state or a
16-27 county or municipality.
17-1 SECTION 10. The heading to Subchapter C, Chapter 711, Health
17-2 and Safety Code, is amended to read as follows:
17-3 SUBCHAPTER C. CEMETERY ORGANIZATIONS <ASSOCIATIONS>
17-4 SECTION 11. Section 711.031, Health and Safety Code, is
17-5 amended to read as follows:
17-6 Sec. 711.031. Rules; Civil Penalty. (a) A cemetery
17-7 organization <association> may adopt and enforce rules:
17-8 (1) concerning the use, care, control, management,
17-9 restriction, and protection of the cemetery operated by the
17-10 cemetery organization <association>;
17-11 (2) to restrict the use of cemetery property;
17-12 (3) to regulate the placement, uniformity, class, and
17-13 kind of markers, monuments, effigies, and other structures in any
17-14 part of the cemetery;
17-15 (4) to regulate the planting and care of plants in the
17-16 cemetery;
17-17 (5) to prevent the interment of remains not entitled
17-18 to be interred in the cemetery;
17-19 (6) to prevent the use of a plot for a purpose that
17-20 violates the cemetery organization's <association> restrictions;
17-21 (7) to regulate the conduct of persons on cemetery
17-22 property and to prevent improper meetings at the cemetery; and
17-23 (8) for other purposes the directors consider
17-24 necessary for the proper conduct of the cemetery organization's
17-25 <association> business, and for the protection of the premises and
17-26 the principles, plans, and ideals on which the cemetery was
17-27 organized.
18-1 (b) Rules adopted under this section must be plainly printed
18-2 or typed and maintained for inspection in the cemetery
18-3 organization's <association's> office or another place in the
18-4 cemetery prescribed by the directors.
18-5 (c) The directors may prescribe a penalty for the violation
18-6 of a rule adopted under this section. The cemetery organization
18-7 <association> may recover the amount of the penalty in a civil
18-8 action.
18-9 SECTION 12. Subchapter C, Chapter 711, Health and Safety
18-10 Code, is amended by adding Section 711.0311 to read as follows:
18-11 Sec. 711.0311. DESECRATION OF CEMETERY. (a) A person
18-12 commits an offense if the person acts without proper legal
18-13 authority and knowingly:
18-14 (1) destroys or damages the remains of a decedent;
18-15 (2) removes any portion of the remains of a decedent
18-16 from a plot or other repository of remains;
18-17 (3) desecrates remains; or
18-18 (4) obliterates, vandalizes, or desecrates a plot or
18-19 other repository of remains.
18-20 (b) An offense under Subsection (a) is a felony of the third
18-21 degree. The person found guilty of committing the offense shall
18-22 provide restitution to the cemetery organization for any damage
18-23 caused by the person.
18-24 (c) A person commits an offense if the person acts without
18-25 proper legal authority and knowingly:
18-26 (1) defaces, vandalizes, injures, or removes a
18-27 gravestone, monument, or other structure commemorating a deceased
19-1 person or group of persons, whether located within or outside of a
19-2 cemetery;
19-3 (2) obliterates, vandalizes, or desecrates a park or
19-4 other area clearly designated to preserve and perpetuate the memory
19-5 of a deceased person or group of persons;
19-6 (3) obliterates, vandalizes, or desecrates plants,
19-7 trees, shrubs, or flowers located on or around a cemetery; or
19-8 (4) obliterates, vandalizes, or desecrates a fence,
19-9 rail, curb, or other structure of a similar nature intended for the
19-10 protection or for the ornamentation of any plot, gravestone,
19-11 monument, or other structure of similar character.
19-12 (d) An offense under Subsection (c) is a Class C
19-13 misdemeanor. The person found guilty of committing the offense
19-14 shall provide restitution to the cemetery organization for the
19-15 amount of any damage caused by the person.
19-16 (e) Subsections (a)-(d) do not apply to the removal or
19-17 unavoidable breakage or injury by a cemetery organization of
19-18 anything placed in or on any portion of its cemetery in violation
19-19 of any of the rules of the cemetery organization, to the removal of
19-20 anything placed in the cemetery in violation of any of the rules of
19-21 the cemetery organization, or to the removal of anything placed in
19-22 the cemetery by or with the consent of the cemetery organization
19-23 that in its judgment has become wrecked, unsightly, or dilapidated.
19-24 (f) If an unemancipated minor is found guilty of violating
19-25 Subsection (a) or (c) and is unable to provide restitution to the
19-26 cemetery organization, the parents or legal guardians of that minor
19-27 shall provide restitution to the cemetery organization for the
20-1 amount of any damage caused by the offense, up to the total amount
20-2 allowed under law.
20-3 (g) A person commits an offense if the person knowingly
20-4 enters or knowingly remains on the premises of a cemetery without
20-5 authorization during hours that the cemetery is posted as closed to
20-6 the public. An offense under this subsection is a Class C
20-7 misdemeanor.
20-8 (h) A fine when recovered shall be paid by the court or
20-9 officer receiving the fine to the cemetery organization and be
20-10 applied, as far as possible, in repairing any damage caused by the
20-11 person found guilty of committing the offense.
20-12 (i) This section does not prevent a cemetery organization or
20-13 the owner of a plot, gravestone, monument, or other structure of
20-14 similar character from maintaining a civil action for the recovery
20-15 of damages caused by any injury resulting from a violation of this
20-16 section.
20-17 SECTION 13. Section 711.032, Health and Safety Code, is
20-18 amended to read as follows:
20-19 Sec. 711.032. Discrimination by Race, Color, or National
20-20 Origin Prohibited. (a) A cemetery organization <association> may
20-21 not adopt or enforce a rule that prohibits interment because of the
20-22 race, color, or national origin of a decedent.
20-23 (b) A provision of a contract entered into by a cemetery
20-24 organization <association> or of a <deed or> certificate of
20-25 ownership or other instrument of conveyance <granted or> issued by
20-26 a cemetery organization <association> that prohibits interment in a
20-27 cemetery because of the race, color, or national origin of a
21-1 decedent is void.
21-2 SECTION 14. Section 711.033, Health and Safety Code, is
21-3 amended to read as follows:
21-4 Sec. 711.033. Property Acquisition by Cemetery ORGANIZATION
21-5 <Association>; Recording Title. (a) A cemetery organization
21-6 <association> may acquire by purchase, donation, or devise property
21-7 consisting of land, a mausoleum, a crematory and columbarium, or
21-8 other property in which remains may be interred under law.
21-9 (b) A cemetery organization <association> that acquires
21-10 property may record <the association's> title to its <the> property
21-11 with the county clerk of the county in which the property is
21-12 located if its <the association> president and secretary or other
21-13 authorized officer acknowledge a declaration executed by the
21-14 cemetery organization <association> that describes the property and
21-15 declares the cemetery organization's <association's> intention to
21-16 use the property or a part of the property for interment purposes.
21-17 (c) Filing under Subsection (b) is constructive notice as of
21-18 the date of the filing of the use of the property for interment.
21-19 (d) A cemetery organization <association> may by
21-20 condemnation acquire property in which remains may be interred, and
21-21 the acquisition of that property is for a public purpose.
21-22 SECTION 15. Section 711.034, Health and Safety Code, is
21-23 amended to read as follows:
21-24 Sec. 711.034. Dedication. (a) A cemetery organization
21-25 <association> that acquires property for interment purposes shall:
21-26 (1) in the case of land, survey and subdivide the
21-27 property into gardens or sections, with descriptive names or
22-1 numbers <blocks, lots, avenues, walks, or other subdivisions>, and
22-2 make a map or plat of the property showing the plots contained
22-3 within the perimeter boundary <subdivisions, with descriptive names
22-4 or numbers>; or
22-5 (2) in the case of a mausoleum or a crematory and
22-6 columbarium, make a map or plat of the property<,> delineating
22-7 sections<, halls, rooms, corridors, elevators, or other divisions
22-8 of the property,> with descriptive names and numbers.
22-9 (b) The cemetery organization <association> shall file the
22-10 map or plat with the county clerk of each county in which the
22-11 property or any part of the property is located.
22-12 (c) The cemetery organization <association> shall file with
22-13 the map or plat a written certificate or declaration of dedication
22-14 of the property delineated by the map or plat, dedicating the
22-15 property exclusively to cemetery purposes. The certificate or
22-16 declaration must be:
22-17 (1) in a form prescribed by the directors or
22-18 <association> officers of the cemetery organization;
22-19 (2) signed by the <association> president or
22-20 vice-president and <by> the secretary of the cemetery organization
22-21 <association>, or by another person authorized by the directors;
22-22 and
22-23 (3) acknowledged.
22-24 (d) Filing a map or plat and a certificate or declaration
22-25 under this section dedicates the property for cemetery purposes and
22-26 is constructive notice of that dedication.
22-27 (e) The certificate or declaration may contain a provision
23-1 permitting the directors by order to resurvey and change the shape
23-2 and size of the property for which the associated map or plat is
23-3 filed if that change does not disturb any interred remains. If a
23-4 change is made, the cemetery organization <association> shall file
23-5 an amended map or plat.
23-6 (f) The county clerk shall number and file the map or plat
23-7 and record the certificate or declaration in the county deed
23-8 records.
23-9 SECTION 16. Section 711.035, Health and Safety Code, is
23-10 amended to read as follows:
23-11 Sec. 711.035. Effect of Dedication. (a) Property may be
23-12 dedicated for cemetery purposes, and the dedication is permitted in
23-13 respect for the dead, for the disposition of remains, and in
23-14 fulfillment of a duty to and for the benefit of the public.
23-15 (b) Dedication of cemetery property and title to the
23-16 exclusive right of sepulture of a plot owner are not affected by
23-17 the dissolution of the cemetery organization <association>, nonuse
23-18 by the cemetery organization <association>, alienation,
23-19 encumbrance, or forced sale of the property.
23-20 (c) Dedication of cemetery property may not be invalidated
23-21 because of a violation of the law against perpetuities or the law
23-22 against the suspension of the power of alienation of title to or
23-23 use of property.
23-24 (d) A railroad, street, road, alley, pipeline, telephone,
23-25 telegraph, electric line, or other public utility or thoroughfare
23-26 may not be placed through, over, or across a part of a dedicated
23-27 cemetery without the consent of:
24-1 (1) the directors of the cemetery organization
24-2 <association> that owns or operates the cemetery; or
24-3 (2) at least two-thirds of the owners of plots in the
24-4 cemetery.
24-5 (e) All property of a dedicated cemetery, including a road,
24-6 alley, or walk in the cemetery:
24-7 (1) is exempt from public improvements assessments,
24-8 fees, and public taxation; and
24-9 (2) may not be sold on execution or applied in payment
24-10 of debts due from individual owners and plots.
24-11 (f) Dedicated cemetery property shall be used exclusively
24-12 for cemetery purposes until the dedication is removed by court
24-13 order or until the maintenance of the cemetery is enjoined or
24-14 abated as a nuisance under Section 711.007.
24-15 SECTION 17. Section 711.036, Health and Safety Code, is
24-16 amended to read as follows:
24-17 Sec. 711.036. Removal of Dedication. (a) A cemetery
24-18 organization may petition a district court of the county in which
24-19 its <a> dedicated cemetery is located to <may, by order,> remove
24-20 the dedication with respect to all or any portion of the cemetery
24-21 if:
24-22 (1) all the remains have been removed from that
24-23 portion of the cemetery where the dedication is to be removed; or
24-24 (2) no interments were made in that portion of the
24-25 cemetery where the dedication is to be removed and that portion of
24-26 the cemetery is not used or necessary for interment purposes.
24-27 (b) <A proceeding may be brought by:>
25-1 <(1) the governing body of a municipality with a
25-2 population of more than 25,000, if the cemetery is located in the
25-3 municipality or not farther than five miles from the municipality;>
25-4 <(2) the district attorney of the county, if the
25-5 cemetery is located in an area of the county not described by
25-6 Subdivision (1); or>
25-7 <(3) the owner of property situated so that its value
25-8 is affected by the cemetery.>
25-9 <(c)> The court shall <may> order the removal of the
25-10 dedication <of a cemetery> on notice and proof satisfactory to the
25-11 court.
25-12 <(d) The district court in a county in which a dedicated
25-13 cemetery is located may, in a proceeding brought by the affected
25-14 political subdivision, remove the dedication from property lying in
25-15 the path of proposed construction of or on a highway, thoroughfare,
25-16 road, or street if:>
25-17 <(1) the United States, this state, a county, a
25-18 municipality, or another governmental subdivision of this state
25-19 determines that a new highway, thoroughfare, road, or street will
25-20 be constructed along a proposed route or that an existing highway,
25-21 thoroughfare, road, or street will be widened;>
25-22 <(2) the determination is a matter of public record;
25-23 and>
25-24 <(3) after the determination, property lying in the
25-25 path of the proposed route is dedicated for cemetery purposes.>
25-26 <(e) Dedication of property for cemetery purposes under the
25-27 circumstances described by Subsection (d) is presumed to be made in
26-1 fraud of the rights of the public and for the sole purpose of
26-2 enhancing the value of property to be condemned.>
26-3 SECTION 18. Section 711.037, Health and Safety Code, is
26-4 amended to read as follows:
26-5 Sec. 711.037. Lien Against Cemetery Property. (a) A
26-6 cemetery organization <association> by contract may incur
26-7 indebtedness as required to conduct its <the association's>
26-8 business and may secure the indebtedness by mortgage, deed of
26-9 trust, or other lien against its <association> property.
26-10 (b) A mortgage, deed of trust, or other lien placed on
26-11 dedicated cemetery property, or on cemetery property that is later
26-12 dedicated with the consent of the holder of the lien, does not
26-13 affect the dedication and is subject to the dedication. A sale on
26-14 foreclosure of the lien is subject to the dedication of the
26-15 property for cemetery purposes.
26-16 SECTION 19. Section 711.038, Health and Safety Code, is
26-17 amended to read as follows:
26-18 Sec. 711.038. Sale of Plots. (a) A cemetery organization
26-19 <association> may sell and convey the exclusive right of sepulture
26-20 in a plot:
26-21 (1) after a map or plat and a certificate or
26-22 declaration of dedication are filed as provided by Section 711.034;
26-23 <and>
26-24 (2) subject to the rules of the cemetery organization
26-25 <association> and the restrictions in the certificate of ownership
26-26 or other instrument of conveyance; and
26-27 (3) after payment in full of the purchase price of the
27-1 plot.
27-2 (b) A certificate of ownership or other instrument
27-3 evidencing the conveyance of the exclusive right of sepulture by a
27-4 cemetery organization <association> must be signed by the
27-5 <association> president or vice-president and the <association>
27-6 secretary or other officers authorized by the cemetery organization
27-7 <association>.
27-8 (c) A conveyance of the exclusive right of sepulture must be
27-9 filed and recorded in the cemetery organization's <association's>
27-10 office.
27-11 (d) A plot or a part of a plot that is conveyed as a
27-12 separate plot by a certificate of ownership or other instrument may
27-13 not be divided without the consent of the cemetery organization
27-14 <association>.
27-15 (e) A person is not required to be licensed to sell a plot
27-16 in a dedicated cemetery.
27-17 SECTION 20. Section 711.039, Health and Safety Code, is
27-18 amended to read as follows:
27-19 Sec. 711.039. Rights of Interment in Plot. (a) A plot in
27-20 which the exclusive right of sepulture is conveyed is presumed to
27-21 be the separate property of the person named as grantee in the
27-22 certificate of ownership or other instrument of conveyance.
27-23 (b) The spouse of a person to whom the exclusive right of
27-24 sepulture in a plot is conveyed has a vested right of interment of
27-25 the spouse's remains in the plot while the spouse is married to the
27-26 plot owner or if the spouse is married to the plot owner at the
27-27 time of the owner's death.
28-1 (c) An attempted conveyance or other action without the
28-2 joinder or written, attached consent of the spouse of the plot
28-3 owner does not divest the spouse of the vested right of interment.
28-4 (d) The vested right of interment is terminated:
28-5 (1) on the final decree of divorce between the plot
28-6 owner and the owner's former spouse unless the decree provides
28-7 otherwise; or
28-8 (2) when the remains of the person having the vested
28-9 right are interred elsewhere.
28-10 (e) Unless a plot owner who has the exclusive right of
28-11 sepulture in a plot and who is interred in that plot has made a
28-12 specific disposition of the plot by express reference to the plot
28-13 in the owner's will or by written declaration filed and recorded in
28-14 the office of the cemetery organization <association>:
28-15 (1) a grave, niche, or crypt in the plot shall be
28-16 reserved for the surviving spouse of the plot owner; and
28-17 (2) the owner's children, in order of need, may be
28-18 interred in any remaining graves, niches, or crypts of the plot
28-19 without the consent of a person claiming an interest in the plot.
28-20 (f) The surviving spouse or a child of an interred plot
28-21 owner may each waive his right of interment in the plot in favor of
28-22 a relative of the owner or relative of the owner's spouse. The
28-23 person in whose favor the waiver is made may be interred in the
28-24 plot.
28-25 (g) The exclusive right of sepulture in an unused grave,
28-26 niche, or crypt of a plot in which the plot owner has been interred
28-27 may be conveyed only by:
29-1 (1) specific disposition of the unused grave, niche,
29-2 or crypt by express reference to it in a will or by written
29-3 declaration of the plot owner filed and recorded in the office of
29-4 the cemetery organization;
29-5 (2) the surviving spouse, if any, and children of the
29-6 owner; or
29-7 (3) <(2)> the surviving spouse, if any, and the
29-8 heirs-at-law of the owner, if there is no surviving child of the
29-9 owner.
29-10 (h) Unless a deceased plot owner who has the exclusive right
29-11 of sepulture in a plot and who is not interred in the plot has
29-12 otherwise made specific disposition of the plot <by express
29-13 reference to the plot in a will or by written declaration filed and
29-14 recorded in the office of the cemetery association>, the exclusive
29-15 right of sepulture in the plot, except the one grave, niche, or
29-16 crypt reserved for the surviving spouse, if any, vests on the death
29-17 of the owner in the owner's heirs-at-law and may be conveyed by
29-18 them.
29-19 SECTION 21. Section 711.040, Health and Safety Code, is
29-20 amended to read as follows:
29-21 Sec. 711.040. Multiple Owners of Plot. Two or more owners
29-22 of a plot may designate a person to represent the plot and file
29-23 with the cemetery organization <association> written notice of the
29-24 designation. If notice is not filed, the cemetery organization
29-25 <association> may inter or permit an interment in the plot at the
29-26 request or direction of a registered co-owner of the plot.
29-27 SECTION 22. Subchapter C, Chapter 711, Health and Safety
30-1 Code, is amended by adding Section 711.041 to read as follows:
30-2 Sec. 711.041. ACCESS TO CEMETERY. (a) Any person who
30-3 wishes to visit a cemetery or private burial grounds for which no
30-4 public ingress or egress is available shall have the right to
30-5 reasonable ingress and egress for the purpose of visiting the
30-6 cemetery or private burial grounds. This right of access extends
30-7 only to visitation during reasonable hours and only for purposes
30-8 usually associated with cemetery visits.
30-9 (b) The owner or owners of the lands surrounding the
30-10 cemetery or private burial grounds may designate the routes of
30-11 reasonable ingress and egress.
30-12 SECTION 23. Section 711.052, Health and Safety Code, is
30-13 amended to read as follows:
30-14 Sec. 711.052. Criminal Penalties. (a) A person who is an
30-15 individual, firm, association, corporation, or municipality, or an
30-16 officer, agent, or employee of an individual, firm, association,
30-17 corporation, or municipality, commits an offense if the person:
30-18 (1) engages in a business for cemetery purposes in
30-19 this state other than through a corporation organized for that
30-20 purpose, if a corporation is required by law;
30-21 (2) fails or refuses to keep records of interment as
30-22 required by Sections 711.003 and 711.004;
30-23 (3) sells, offers to sell, or advertises for sale a
30-24 plot or the exclusive right of sepulture in a plot for purposes of
30-25 speculation or investment; or
30-26 (4) represents through advertising or printed material
30-27 that a retail department will be established for the resale of the
31-1 plots of plot purchasers, that specific improvements will be made
31-2 in the cemetery, or that specific merchandise or services will be
31-3 furnished to a plot owner, unless adequate funds or reserves are
31-4 created by the cemetery organization <operator> for the represented
31-5 purpose.
31-6 (b) A cemetery organization commits an offense if it offers
31-7 any inducement, pecuniary or otherwise, to any person or entity
31-8 other than its officers, employees, agents, subcontractors, or
31-9 representatives for the purpose of securing or attempting to secure
31-10 business for that cemetery organization <An officer, agent, or
31-11 employee of a cemetery or cemetery association commits an offense
31-12 if the officer, agent, or employee pays or offers to pay a
31-13 commission, rebate, or gratuity to a funeral director or the
31-14 funeral director's employee>.
31-15 (c) A cemetery organization <association or an officer or
31-16 employee of the association> commits an offense if the cemetery
31-17 organization <association, officer, or employee> offers a free plot
31-18 in a drawing, in a lottery, or in another manner, unless the offer
31-19 is for the immediate burial of an indigent person.
31-20 (d) An offense under this section is a Class A misdemeanor
31-21 <punishable by:>
31-22 <(1) a fine not to exceed $500; or>
31-23 <(2) if the defendant is an individual, by a fine not
31-24 to exceed $500, confinement in the county jail for a term not to
31-25 exceed six months, or both>.
31-26 SECTION 24. Section 712.001, Health and Safety Code, is
31-27 amended to read as follows:
32-1 Sec. 712.001. Definitions. (a) The definitions provided by
32-2 Section 711.001 apply to this chapter.
32-3 (b) In this chapter:
32-4 (1) "Banking department" means the Banking Department
32-5 of Texas.
32-6 (2) "Commissioner" means the Banking Commissioner of
32-7 Texas.
32-8 (3) "Corporation" means a corporation that is
32-9 organized under this chapter, or any corresponding statute in
32-10 effect before September 1, 1993, to operate one or more perpetual
32-11 care cemeteries in this state.
32-12 (4) "Fund" means a <cemetery> perpetual care trust
32-13 fund established by one or more corporations under this chapter or
32-14 any corresponding statute in effect before September 1, 1993.
32-15 (5) <(4)> "Trustee" means the trustee of a cemetery
32-16 perpetual care trust fund.
32-17 SECTION 25. Section 712.002, Health and Safety Code, is
32-18 amended to read as follows:
32-19 Sec. 712.002. Exemptions From Chapter. This chapter does
32-20 not apply to:
32-21 (1) a family, fraternal, or community cemetery;
32-22 (2) an unincorporated association of plot owners not
32-23 operated for profit;
32-24 (3) a nonprofit corporation organized by plot owners;
32-25 or
32-26 (4) a church, a religious society or denomination, or
32-27 an entity <a corporation> solely administering the temporalities of
33-1 a church or religious society or denomination.
33-2 SECTION 26. Section 712.003, Health and Safety Code, is
33-3 amended to read as follows:
33-4 Sec. 712.003. Incorporation Required; Minimum Capital.
33-5 (a) A perpetual care cemetery may not be operated in this state
33-6 unless articles of incorporation are filed <organized unless the
33-7 cemetery files> with the secretary of state <articles of
33-8 incorporation> showing:
33-9 (1) subscriptions and payments <payment> in cash for
33-10 the corporation's <of the cemetery's> full capital stock;
33-11 (2) the location of its perpetual care <the> cemetery
33-12 <property>; and
33-13 (3) a certificate showing the deposit in its fund of
33-14 the minimum amount required under <of the cemetery's perpetual care
33-15 and maintenance guarantee fund in accordance with> Section 712.004.
33-16 (b) A corporation chartered on or after September 5, 1955,
33-17 and before September 1, 1993, <perpetual care cemetery> must have a
33-18 minimum capital of:
33-19 (1) $15,000, if the cemetery serves a municipality
33-20 with a population of less than 15,000;
33-21 (2) $30,000, if the cemetery serves a municipality
33-22 with a population of 15,000 to 25,000; or
33-23 (3) $50,000, if the cemetery serves a municipality
33-24 with a population of at least 25,000.
33-25 (c) A corporation chartered on or after September 1, 1993,
33-26 must have a minimum capital of $25,000 <This section does not apply
33-27 to a cemetery corporation chartered before September 5, 1955,
34-1 except that a corporation that amends its charter must comply with
34-2 the minimum requirements of this section>.
34-3 (d) A nonprofit <cemetery> association or corporation
34-4 operated solely for the benefit of plot owners <its members>
34-5 seeking to convert a <permanent care> cemetery to a perpetual care
34-6 cemetery under this chapter <Section 712.004 and Subchapter B> is
34-7 not required to <issue capital stock to> meet the <minimum capital>
34-8 requirements prescribed by this section and Section 712.004 if the
34-9 cemetery has existed for at least 75 years and the association or
34-10 corporation has operated the cemetery for the preceding 10 years.
34-11 SECTION 27. Subchapter A, Chapter 712, Health and Safety
34-12 Code, is amended by adding Section 712.0031 to read as follows:
34-13 Sec. 712.0031. NOTICES TO BANKING DEPARTMENT. (a) Not
34-14 later than the 30th day after the date a corporation files its
34-15 articles of incorporation with the secretary of state, the
34-16 corporation shall notify the banking department in writing of its
34-17 intent to operate a perpetual care cemetery in this state. The
34-18 notice shall be accompanied by a filing fee of $500, shall be sworn
34-19 to and verified under oath by all persons subscribing to the
34-20 capital stock of the corporation, and shall contain:
34-21 (1) the information required to be provided to the
34-22 secretary of state under Section 712.003;
34-23 (2) the names and addresses of any other persons or
34-24 entities who are or will be beneficial owners of the capital stock
34-25 of the corporation or otherwise share an interest in the ownership
34-26 of the corporation's capital stock, or who have paid or will pay
34-27 any portion of the consideration therefor;
35-1 (3) the name and address of any person or entity to
35-2 whom the capital stock or assets of the corporation are or will be
35-3 pledged as security for any loan; and
35-4 (4) the name and address of the person who will
35-5 actively manage the cemetery operations of the corporation along
35-6 with a brief statement of that person's working experience in the
35-7 cemetery industry.
35-8 (b) A cemetery operations manager must have at least two
35-9 years of experience in cemetery management.
35-10 (c) If the corporation fails to provide to the banking
35-11 department the information prescribed by Subsection (a), the
35-12 commissioner may instruct the secretary of state to cancel the
35-13 corporation's charter and serve notice of the cancellation on the
35-14 corporation by registered or certified letter, addressed to the
35-15 corporation's address.
35-16 (d) A corporation shall notify the commissioner in writing
35-17 of any change in the controlling ownership interest of the capital
35-18 stock of the corporation not later than the 30th day following the
35-19 change of controlling ownership interest.
35-20 SECTION 28. Section 712.004, Health and Safety Code, is
35-21 amended to read as follows:
35-22 Sec. 712.004. PERPETUAL CARE TRUST <AND MAINTENANCE
35-23 GUARANTEE> FUND REQUIRED. (a) Before obtaining a corporate
35-24 charter, the incorporators of a corporation chartered on or after
35-25 September 3, 1945, and before September 1, 1993, <a perpetual care
35-26 cemetery> must establish a <minimum perpetual care and maintenance
35-27 guarantee> fund by permanently depositing in cash with the trustee
36-1 of the fund:
36-2 (1) $15,000, if the corporation <cemetery> has capital
36-3 stock of $15,000;
36-4 (2) $30,000, if the corporation <cemetery> has capital
36-5 stock of $30,000; or
36-6 (3) $50,000, if the corporation <cemetery> has capital
36-7 stock of $50,000 or more.
36-8 (b) Before obtaining a corporate charter, the incorporators
36-9 of a corporation chartered on or after September 1, 1993, must
36-10 establish a fund by permanently depositing in cash with the trustee
36-11 of the fund an amount of not less than $50,000.
36-12 (c) The <guarantee> fund shall be permanently set aside and
36-13 deposited in trust with the trustee in accordance with Subchapter
36-14 B.
36-15 <(c) The amount of deposit required by law to be placed in
36-16 trust for the perpetual care and maintenance of the cemetery from
36-17 the receipts for the sale of a plot may, on the sale, be credited
36-18 against the original perpetual care and maintenance guarantee fund
36-19 until the amount of the credits equals the amount of the original
36-20 deposit. After credits for that amount have been taken, the
36-21 corporation shall deposit in the perpetual care trust fund the
36-22 minimum amount required by law and any additional amount required
36-23 by the rules, trust agreement, or contract of the cemetery
36-24 association for the cemetery's perpetual care and maintenance.>
36-25 <(d) This section does not apply to a cemetery corporation
36-26 chartered before September 3, 1945, except that a corporation that
36-27 amends its charter must comply with the minimum requirements of
37-1 this section.>
37-2 SECTION 29. Section 712.005, Health and Safety Code, is
37-3 amended to read as follows:
37-4 Sec. 712.005. Cancellation of Charter for Failure to Begin
37-5 Operation of Perpetual Care Cemetery <Corporation>. (a) If a
37-6 corporation chartered under Section 712.003 does not begin actual
37-7 operation of its perpetual care cemetery <under the charter> for
37-8 six months after the charter is granted and delivered, the
37-9 commissioner may instruct the secretary of state to <shall> cancel
37-10 the charter and serve notice of the cancellation on the corporation
37-11 <association> by registered or certified letter, addressed to the
37-12 corporation's <association's> address.
37-13 (b) The commissioner may rescind the order of cancellation
37-14 on:
37-15 (1) the application of the directors;
37-16 (2) the payment to the commissioner of a penalty set
37-17 by the commissioner in an amount not to exceed $500;
37-18 (3) the execution and delivery to the commissioner of
37-19 an agreement to begin actual operation of the perpetual care
37-20 cemetery not later than one month after the date of the agreement;
37-21 and
37-22 (4) a proper showing by the trustee that the <money of
37-23 the> fund is on deposit.
37-24 (c) If the corporation does not begin actual <active>
37-25 operation as agreed, the commissioner by order may <shall> set
37-26 aside the order of rescission and the cancellation is final. The
37-27 commissioner shall make a full report of the cancellation to the
38-1 attorney general for liquidation of the corporation, if liquidation
38-2 is necessary.
38-3 (d) If no sale of the dedicated cemetery property of the
38-4 corporation is made, a certified copy of the order of cancellation
38-5 authorizes the trustee to refund the fund to the incorporators who
38-6 signed the corporation's articles of incorporation.
38-7 SECTION 30. Section 712.007, Health and Safety Code, is
38-8 amended to read as follows:
38-9 Sec. 712.007. Notice of Perpetual Care Required. (a) A
38-10 corporation <perpetual care cemetery> shall post a sign in a
38-11 conspicuous place in an office of the corporation <all offices> in
38-12 which sales are conducted or, if there is no office, at or near the
38-13 cemetery entrance or administration building and readily accessible
38-14 to the public.
38-15 (b) The sign must contain substantially the following<, in
38-16 the manner and order stated>:
38-17 (1) "Perpetual Care Cemetery," or "Endowment Care
38-18 Cemetery;" <in a minimum of 48-point black type;>
38-19 (2) the names of the corporation's <cemetery> officers
38-20 and directors; and
38-21 (3) the name of each <the> bank or trust company
38-22 entrusted with the fund.
38-23 (c) A corporation <perpetual care cemetery> must include
38-24 substantially the following statement in each sales contract,
38-25 certificate of ownership, <sales contract,> or other instrument of
38-26 conveyance of the exclusive right of sepulture:
38-27 "This cemetery is operated as a perpetual care
39-1 cemetery, which means that a perpetual care fund for
39-2 its maintenance has been established in conformity with
39-3 the laws of the State of Texas. Perpetual care means
39-4 to maintain, <keep the sod in> repair, and care for all
39-5 places where interments have been made <in order and to
39-6 care for trees and shrubs planted by the cemetery>."
39-7 (d) The term "endowment care" may be substituted for the
39-8 term "perpetual care" in the statement required by Subsection (c).
39-9 SECTION 31. Section 712.021, Health and Safety Code, is
39-10 amended to read as follows:
39-11 Sec. 712.021. Establishment and Purposes of Fund. (a) A
39-12 corporation <cemetery association> that <maintains,> operates<, or
39-13 conducts> a perpetual care cemetery in this state<, including a
39-14 permanent maintenance or free care cemetery,> shall have a
39-15 <perpetual care trust> fund established with a trust company or a
39-16 bank with trust powers that is located in this state. The trust
39-17 company or bank may not have more than one director who is also a
39-18 director of the corporation <cemetery association>.
39-19 (b) <If there is no trust company or bank with trust powers
39-20 that is qualified and willing to accept the trust funds at the
39-21 regular fees established by the Texas Trust Code (Section 111.001
39-22 et seq., Property Code) and that is located in the county in which
39-23 the cemetery association is located, the fund may be established
39-24 with a board of trustees composed of three or more persons, no two
39-25 trustees of which are also directors.>
39-26 <(c)> The principal of the fund may not be reduced
39-27 voluntarily, and it must remain inviolable. The trustee shall
40-1 maintain the principal of the fund separate from all operating
40-2 <other> funds of the corporation.
40-3 (c) <(d)> In establishing a fund, the corporation
40-4 <association> may adopt plans for the general care, maintenance,
40-5 and embellishment of its perpetual care <the> cemetery.
40-6 (d) <(e)> The fund and the trustee are governed by the Texas
40-7 Trust Code (Section 111.001 et seq., Property Code).
40-8 (e) <(f)> A corporation <cemetery association> that
40-9 establishes a fund may receive and hold for the fund and as a part
40-10 of the fund or as an incident to the fund any property contributed
40-11 to the fund.
40-12 (f) <(g)> The fund and contributions to the fund are for
40-13 charitable purposes. The perpetual care financed by the fund is:
40-14 (1) the discharge of a duty due from the corporation
40-15 <person contributing to the fund> to persons interred and to be
40-16 interred in its perpetual care <the> cemetery; and
40-17 (2) for the benefit and protection of the public by
40-18 preserving and keeping the perpetual care cemetery from becoming a
40-19 place of disorder, reproach, and desolation in the community in
40-20 which the perpetual care cemetery is located.
40-21 SECTION 32. Section 712.022, Health and Safety Code, is
40-22 amended to read as follows:
40-23 Sec. 712.022. OPERATION OF PERPETUAL <ESTABLISHMENT OF FUND
40-24 BY NONPERPETUAL> CARE CEMETERY. <(a)> A corporation <cemetery
40-25 association> authorized by law to operate a <cemetery as a>
40-26 perpetual care cemetery but not doing so may do so if the
40-27 corporation <association>:
41-1 (1) notifies the commissioner; and
41-2 (2) establishes a fund as provided by Section 712.021
41-3 in an <the> amount equal to the larger of:
41-4 (A) the amount that would have been paid into
41-5 the fund if the cemetery operated as a perpetual care cemetery from
41-6 the date of the cemetery's first sale of plots <burial space>; or
41-7 (B) the minimum amount provided by Section
41-8 712.004.
41-9 <(b) If the amount of the fund is the minimum amount
41-10 provided by Section 712.004, the cemetery association is entitled
41-11 to a credit against amounts required by this chapter to be paid by
41-12 the association into the fund. The amount of the total credits
41-13 permitted is equal to the difference between the amount computed
41-14 under Subsection (a)(2)(A) and the amount computed under Subsection
41-15 (a)(2)(B).>
41-16 SECTION 33. Section 712.023, Health and Safety Code, is
41-17 amended to read as follows:
41-18 Sec. 712.023. Validity of Contributions. A contribution to
41-19 a fund for <general> perpetual care is not invalid because of:
41-20 (1) indefiniteness or uncertainty of the person
41-21 designated as beneficiary in the instrument establishing the fund
41-22 <creating the trust>; or
41-23 (2) a violation of the law against perpetuities or the
41-24 law against the suspension of the power of alienation of title to
41-25 or use of property.
41-26 SECTION 34. Section 712.024, Health and Safety Code, is
41-27 amended to read as follows:
42-1 Sec. 712.024. AMENDMENT OF TRUST INSTRUMENT <AGREEMENT>. A
42-2 corporation <cemetery association> and the trustee of a <the> fund
42-3 <providing perpetual care for the association's cemetery> may, by
42-4 agreement, amend the instrument that established the fund
42-5 <perpetual care trust agreement> to include any provision that is
42-6 consistent with this chapter.
42-7 SECTION 35. Section 712.025, Health and Safety Code, is
42-8 amended to read as follows:
42-9 Sec. 712.025. Use of Fund Income. <(a)> Fund income may be
42-10 applied in the manner the directors of a corporation determine to
42-11 be for the best interest of the corporation's perpetual care
42-12 cemetery and may be used only for the perpetual care described by
42-13 resolution, bylaw, or other action or instrument that established
42-14 the fund, including the general care and maintenance of the
42-15 property entitled to perpetual care in the perpetual care cemetery.
42-16 <(b) Fund income may not be used for improvement or
42-17 embellishment of unsold property to be offered for sale.>
42-18 SECTION 36. Section 712.026, Health and Safety Code, is
42-19 amended to read as follows:
42-20 Sec. 712.026. Suit by Plot Owners to Maintain Perpetual
42-21 Care. (a) If the directors of a corporation do not generally care
42-22 for and maintain the corporation's perpetual care <part of the>
42-23 cemetery <entitled to perpetual care>, the district court of the
42-24 county in which the perpetual care cemetery is located may:
42-25 (1) by injunction compel the directors to expend the
42-26 net <fund> income of the corporation's fund as required by this
42-27 chapter; or
43-1 (2) appoint a receiver to take charge of the fund and
43-2 expend the net <fund> income of the fund as required by this
43-3 chapter.
43-4 (b) The suit for relief under this section must be brought
43-5 by at least five <plot> owners of <whose> plots located in the
43-6 perpetual care cemetery <are entitled to perpetual care>.
43-7 SECTION 37. Section 712.027, Health and Safety Code, is
43-8 amended to read as follows:
43-9 Sec. 712.027. Investment of Fund. (a) A trustee shall
43-10 invest and manage the investment of the <fund> principal of a fund
43-11 in accordance with the Texas Trust Code (Section 111.001 et seq.,
43-12 Property Code).
43-13 (b) <The fund may not be invested without the written
43-14 approval of an active officer of the cemetery association or a
43-15 majority of its directors.> An investment must be made at not
43-16 more than the prevailing market value of the securities at the time
43-17 of acquisition.
43-18 SECTION 38. Section 712.028, Health and Safety Code, is
43-19 amended to read as follows:
43-20 Sec. 712.028. Amount of Fund Deposits from Sales. (a) A
43-21 corporation <perpetual care cemetery> shall deposit in its <the>
43-22 fund an amount that is at least:
43-23 (1) the greater of:
43-24 (A) $1.50 a square foot of ground area conveyed
43-25 <disposed of or sold> as perpetual care property; or
43-26 (B) 10 percent of the total purchase price of
43-27 that ground area;
44-1 (2) the greater of:
44-2 (A) $90 for each crypt interment right for
44-3 mausoleum interment or lawn crypt interment conveyed <disposed of
44-4 or sold> as perpetual care property, or $50 for each crypt
44-5 interment right if that crypt is accessible only through another
44-6 crypt; or
44-7 (B) five percent of the total purchase price of
44-8 that crypt interment right; and
44-9 (3) the greater of:
44-10 (A) $30 for each niche interment right for
44-11 columbarium interment conveyed; or
44-12 (B) 10 percent of the total purchase price of
44-13 that niche interment right <disposed of or sold>.
44-14 (b) Subsection (a) does not apply to deposits from sales
44-15 required to be made by a corporation in its fund before September
44-16 1, 1993, under a corresponding statute in effect before that date.
44-17 (c) If a plot owner exchanges a plot for another plot in a
44-18 corporation's perpetual care cemetery, the amount to be deposited
44-19 in the corporation's fund in respect of the plot received by the
44-20 plot owner in the exchange may be reduced by the amount deposited
44-21 in the fund in respect of the plot contributed by the plot owner in
44-22 the exchange <A cemetery may not operate as a perpetual care
44-23 cemetery, including a permanent maintenance or free care cemetery,
44-24 unless the cemetery complies with this section and Section
44-25 712.029>.
44-26 SECTION 39. Section 712.029, Health and Safety Code, is
44-27 amended to read as follows:
45-1 Sec. 712.029. Accounting For and Depositing Amounts; Civil
45-2 Penalty. (a) The part of the purchase price of a plot in a
45-3 perpetual care cemetery that is to be deposited in a fund must be
45-4 shown separately on the original purchase agreement from the total
45-5 purchase price. A copy of the agreement shall be delivered to the
45-6 purchaser of the plot.
45-7 (b) On the sale of a plot <burial space>, a commission may
45-8 not be paid to a broker or salesman on the amount to be deposited
45-9 in the fund.
45-10 (c) <If the purchase price is payable in installments, each
45-11 amount paid must be applied first to the balance not required to be
45-12 deposited in the fund, and the remainder, on receipt by the seller,
45-13 shall be deposited in the fund.>
45-14 <(d)> A corporation <seller of a plot> shall deposit in its
45-15 <the> fund the <required> amount required under Section 712.028 not
45-16 later than the 20th day after the end of the month in which the
45-17 original purchase agreement has been paid in full. A corporation
45-18 may prepay funds into its fund at any time and, if a surplus exists
45-19 in the fund from the prepayments, may credit against the surplus
45-20 the amounts otherwise required to be deposited in the fund under
45-21 Section 712.028 until the surplus has been depleted. In
45-22 determining whether a surplus exists from prepayments, no part of
45-23 the fund resulting from gifts to the fund under Section 712.030 may
45-24 be considered <amount is received>.
45-25 (d) <(e)> A corporation that <seller who> violates
45-26 Subsection (c) <(d)> is liable for a penalty of $10 a day for each
45-27 day the violation continues <of violation>. The commissioner shall
46-1 collect the penalty.
46-2 (e) <(f)> If the corporation <seller> refuses to pay the
46-3 penalty, the commissioner may <shall> report the refusal to the
46-4 attorney general, who shall bring suit to recover the penalty,
46-5 costs, and other relief requested by the attorney general as proper
46-6 and necessary.
46-7 SECTION 40. Section 712.030, Health and Safety Code, is
46-8 amended to read as follows:
46-9 Sec. 712.030. USE OF GIFT FOR SPECIAL CARE OF PLOT <BURIAL
46-10 SPACE> IN PERPETUAL CARE CEMETERY. <(a)> A trustee may take and
46-11 hold property transferred to the trustee in trust in order to apply
46-12 the principal, proceeds, or income of the property for any purpose
46-13 consistent with the purpose of a corporation's perpetual care <the>
46-14 cemetery, including:
46-15 (1) the improvement or embellishment of any part of
46-16 the perpetual care cemetery;
46-17 (2) the erection, renewal, repair, or preservation of
46-18 a monument, fence, building, or other structure in the perpetual
46-19 care cemetery;
46-20 (3) planting or cultivating plants in or around the
46-21 perpetual care cemetery; or
46-22 (4) taking special care of or embellishing a <burial>
46-23 plot, section, or building in the perpetual care cemetery.
46-24 <(b) Not more than 75 percent of the property's proceeds or
46-25 income may be devoted to maintaining and beautifying the private
46-26 block, plot, or structure for which the transfer is made.>
46-27 <(c) At least 25 percent of the property's proceeds or
47-1 income must be devoted generally to maintaining and beautifying the
47-2 cemetery in which the block, plot, or structure is located.>
47-3 SECTION 41. Section 712.041, Health and Safety Code, is
47-4 amended to read as follows:
47-5 Sec. 712.041. ANNUAL STATEMENT OF FUNDS. (a) A corporation
47-6 <perpetual care cemetery> shall file in its <the cemetery's> office
47-7 and with the commissioner a statement in duplicate that shows:
47-8 (1) the principal amount of its fund;
47-9 (2) the amount of the fund invested in bonds and other
47-10 securities;
47-11 (3) the amount of <fund> cash on hand in the fund;
47-12 (4) any other item that shows the financial condition
47-13 of the fund;
47-14 (5) the number of crypts, niches, and square feet of
47-15 ground area conveyed <grave space sold or disposed of> under
47-16 perpetual care before and after March 15, 1934, listed separately;
47-17 and
47-18 (6) the number of crypts, niches, and square feet of
47-19 ground area conveyed <grave space sold or disposed of> under
47-20 perpetual care after March 15, 1934, for which the minimum deposits
47-21 required for perpetual care have not been paid to the fund.
47-22 (b) The corporation's <association> president and secretary,
47-23 or two principal officers, shall verify the information on the
47-24 statement.
47-25 (c) The corporation <association> shall revise and post and
47-26 file the statement on or before March 1 of each year.
47-27 (d) Not later than the 30th day after the date on which the
48-1 statement is filed with the commissioner, a copy of the statement
48-2 shall be published in at least one newspaper of general circulation
48-3 in the county in which the corporation's perpetual care cemetery is
48-4 located.
48-5 SECTION 42. Section 712.042, Health and Safety Code, is
48-6 amended to read as follows:
48-7 Sec. 712.042. Fees. (a) On filing a <the> statement of
48-8 funds under Section 712.041, a corporation <the cemetery> shall pay
48-9 the commissioner:
48-10 (1) $200, if the corporation's perpetual care <$100,
48-11 if the> cemetery serves a municipality with a population of 25,000
48-12 or less; or
48-13 (2) $400, if the corporation's perpetual care <$200,
48-14 if the> cemetery serves a municipality with a population of more
48-15 than 25,000.
48-16 (b) The banking department shall receive and disburse
48-17 revenues collected under this chapter in accordance with Article
48-18 12, Chapter I, The Texas Banking Code of 1943 (Article 342-112,
48-19 Vernon's Texas Civil Statutes)<, for:>
48-20 <(1) the administration and enforcement of the law
48-21 relating to the operation of funds; and>
48-22 <(2) investigations on department initiative, or on
48-23 complaints made by others, regarding the operation of a perpetual
48-24 care cemetery and the creation, investment, and expenditure of
48-25 funds.>
48-26 <(c) A reasonable part of the amount that the banking
48-27 department transfers each year of the biennium to the general
49-1 revenue fund to cover the cost of government services rendered by
49-2 other departments may consist of revenues collected under this
49-3 chapter>.
49-4 SECTION 43. Section 712.043, Health and Safety Code, is
49-5 amended to read as follows:
49-6 Sec. 712.043. Additional Fund Report. The commissioner may
49-7 require, as often as the commissioner determines necessary, the
49-8 trustee of a corporation's fund <a trustee> to make under oath a
49-9 detailed report of the condition of the fund. The report must
49-10 include:
49-11 (1) a detailed description of the assets of the fund
49-12 <assets>;
49-13 (2) a description of securities held by the fund;
49-14 (3) if a security held by the fund is a lien, a
49-15 description of the property against which the lien is taken;
49-16 (4) each security's acquisition cost;
49-17 (5) each security's market value at the time of
49-18 acquisition;
49-19 (6) each security's current market value;
49-20 (7) each security's status with reference to default;
49-21 (8) a statement that a security is not encumbered by
49-22 debt; and
49-23 (9) <a statement that none of the fund assets are
49-24 loans to the cemetery for which the fund is established or to an
49-25 officer or director of the cemetery; and>
49-26 <(10)> any other information the commissioner
49-27 determines is pertinent.
50-1 SECTION 44. Section 712.044, Health and Safety Code, is
50-2 amended to read as follows:
50-3 Sec. 712.044. EXAMINATION <AUDIT> OF FUND RECORDS;
50-4 EXAMINATION <AUDIT> FEES AND EXPENSES. (a) The books and records
50-5 of a corporation relating to its fund shall be examined biennially
50-6 by the commissioner. The biennial examination shall cover the
50-7 two-year or lesser period of time from the date of the last
50-8 examination of the corporation's books and records relating to its
50-9 fund <The commissioner shall examine the records of a perpetual
50-10 care cemetery association annually or as often as necessary>.
50-11 (b) A corporation <An association> that is examined under
50-12 this section shall make its books and records relating to its fund
50-13 available for examination by the banking department upon reasonable
50-14 notice to the corporation and shall pay to the commissioner for the
50-15 regular biennial examination:
50-16 (1) not more than $100 a day or part of a day for each
50-17 examiner or not more than a total of $400 for the entire
50-18 examination, if the corporation's <association's> annual deposits
50-19 to its <the association's> fund as required by law are less than
50-20 $7,500; or
50-21 (2) not more than $200 a day or part of a day for each
50-22 examiner or not more than a total of $800 for the entire
50-23 examination, if the corporation's <association's> annual deposits
50-24 to its <the association's> fund as required by law are $7,500 or
50-25 more.
50-26 <(c) If the examiner determines that the conditions of the
50-27 association necessitate additional examination or a prolonged audit
51-1 to ascertain the association's status, the association shall pay
51-2 the total expense of the additional examination or audit.>
51-3 SECTION 45. Section 712.045, Health and Safety Code, is
51-4 amended to read as follows:
51-5 Sec. 712.045. Failure to File Statement; Civil Penalty.
51-6 (a) A corporation <cemetery association> that does not file a
51-7 statement of funds and publish <a publication of> the statement
51-8 <with the commissioner> as required by Section 712.041 is liable
51-9 for a penalty of $5 a day for each day of failure. The
51-10 commissioner shall collect the penalty.
51-11 (b) If the corporation <association> does not pay the
51-12 penalty, the commissioner shall notify the attorney general, who
51-13 shall bring suit to recover the penalty and for other relief
51-14 requested by the attorney general as proper and necessary.
51-15 SECTION 46. Section 712.046, Health and Safety Code, is
51-16 amended to read as follows:
51-17 Sec. 712.046. Proceedings to Forfeit Charter for
51-18 Noncompliance. (a) If a <cemetery> corporation does not file with
51-19 the commissioner a statement of funds on or before March 1 or pay
51-20 the filing fee required by Section 712.042 <this chapter>, the
51-21 commissioner shall notify the attorney general. <The failure to
51-22 report is prima facie evidence that the fund does not comply with
51-23 the law.>
51-24 (b) If the commissioner finds that a fund does not comply
51-25 with the law or if a trustee does not file a report required by the
51-26 commissioner under Section 712.043 within 30 days after the date of
51-27 the request, the commissioner shall notify the <trustee and the
52-1 cemetery for which the fund was established, in addition to the>
52-2 attorney general.
52-3 (c) The commissioner shall provide a copy of any notice
52-4 given to the attorney general under Subsection (a) or (b) to the
52-5 corporation and the trustee of the fund.
52-6 (d) If within 90 days after the date of any <the> notice
52-7 given by the commissioner to the attorney general under Subsection
52-8 (a) or (b), the <attorney general is not notified by the>
52-9 commissioner notifies the attorney general that the violation has
52-10 not been corrected, the attorney general shall bring suit or quo
52-11 warranto proceedings for the forfeiture of the corporation's
52-12 charter and dissolution of the corporation in the district court of
52-13 any county in which its perpetual care <the> cemetery is operated.
52-14 SECTION 47. Section 712.047, Health and Safety Code, is
52-15 amended to read as follows:
52-16 Sec. 712.047. Receivership; Appointment and Duties of
52-17 Receiver. (a) If a trustee of a corporation's fund does not
52-18 comply with this chapter, the attorney general may <shall> apply to
52-19 the district court of the county in which the corporation's
52-20 perpetual care cemetery is operated for proper legal writs to
52-21 require a report of the fund.
52-22 (b) If a <the> fund is misappropriated by its <the> trustee
52-23 and is not handled as required by law, the attorney general shall
52-24 apply to the court for the appointment by the court of a receiver
52-25 to take custody of the fund for the benefit of the cestui que
52-26 trust.
52-27 (c) The receiver may bring suit against the defaulting
53-1 trustee as necessary to require a full accounting and restoration
53-2 of the fund.
53-3 (d) If a corporation <perpetual care cemetery> is placed in
53-4 receivership, the receiver shall make deposits in its <the> fund
53-5 from the proceeds of the liquidation of the corporation <cemetery>
53-6 to meet the minimum deposit amounts required by law for the fund.
53-7 A deficit in the fund below the minimum requirements is a
53-8 preferred claim against any of the corporation's <cemetery> assets
53-9 in the receiver's possession and takes precedence over all claims
53-10 except vendor's liens on the corporation's perpetual care cemetery
53-11 property.
53-12 (e) The receiver may deliver any residue to a trustee
53-13 selected by the <cemetery> corporation in accordance with this
53-14 chapter.
53-15 SECTION 48. Section 712.048, Health and Safety Code, is
53-16 amended to read as follows:
53-17 Sec. 712.048. Criminal Penalties. (a) A person who is an
53-18 individual, firm, association, corporation, or municipality, or an
53-19 officer, agent, or employee of an individual, firm, association,
53-20 corporation, or municipality, commits an offense if the person<:>
53-21 <(1)> sells, offers to sell, or advertises for sale an
53-22 interment right in a plot <or the exclusive right of sepulture in a
53-23 plot> and, before a fund is established for the cemetery in which
53-24 the plot is located as provided by this chapter <subtitle>,
53-25 represents that the plot is under perpetual care. An offense under
53-26 this subsection is a Class A misdemeanor. This subsection does not
53-27 prevent an aggrieved party or the attorney general from maintaining
54-1 a civil action for the recovery of damages caused by an injury
54-2 resulting from an offense under this subsection.
54-3 (b) A person who is an individual, firm, association,
54-4 corporation, or municipality, or an officer, agent, or employee of
54-5 an individual, firm, association, corporation, or municipality,
54-6 commits an offense if the person knowingly defalcates or
54-7 misappropriates assets of a fund. An offense under this subsection
54-8 is punishable as if it were an offense under Section 32.45, Penal
54-9 Code<;>
54-10 <(2) violates Section 712.041;>
54-11 <(3) invests funds in violation of Section 712.027; or>
54-12 <(4) does not post notice as required by Section
54-13 712.007.>
54-14 <(b) An offense under this section is a misdemeanor
54-15 punishable by:>
54-16 <(1) a fine not to exceed $500; or>
54-17 <(2) if the defendant is an individual, by a fine not
54-18 to exceed $500, confinement in the county jail for a term not to
54-19 exceed six months, or both>.
54-20 SECTION 49. Sections 711.005 and 712.006, Health and Safety
54-21 Code, are repealed.
54-22 SECTION 50. This Act takes effect September 1, 1993.
54-23 SECTION 51. The importance of this legislation and the
54-24 crowded condition of the calendars in both houses create an
54-25 emergency and an imperative public necessity that the
54-26 constitutional rule requiring bills to be read on three several
54-27 days in each house be suspended, and this rule is hereby suspended.