BILL ANALYSIS C.S.H.B. 814 By: Coleman 4-12-95 Committee Report (Substituted) BACKGROUND Older cemeteries, especially those in urban areas, are often neglected and in a state of disrepair. Although these cemeteries may contain the remains of prominent historical figures, for a multitude of reasons the cemeteries have been forgotten and neglected. Under current law only two avenues exist to remedy the problem. First, the cemetery may be declared a nuisance and its continued existence enjoined. The removal and relocation of the remains becomes a matter for the municipality to handle. Second, existing plot owners may organize a nonprofit corporation to manage the cemetery. Unfortunately, in the case of older cemeteries, there is often little hope of finding a sufficient number of current plot owners to take on responsibility of restoring and operating the cemetery. PURPOSE The proposed legislation adds a new entity to the list of persons who may take responsibility for restoring a neglected cemetery. The legislation allows for a group with an established relationship to the cemetery to form a nonprofit corporation and petition a local county court. The court may designate the corporation to restore, operate and preserve the cemetery after establishing: 1) its relationship to the cemetery; 2) the age of the cemetery; 3) that notice has been given to existing plot owners by publication; 4) that no viable organization of plot owners exists; and 5) that the cemetery is abandoned, or a nuisance under the law. The corporation would be allowed to 1) subdivide new plots and sell them to provide capital for the continued operation of the cemetery; 2) levy reasonable charges on existing plot owners who can be located; and 3) operate as any cemetery association with respect to all other functions. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle C, Title 8, Health and Safety Code by adding a new Section 715 as follows: Sec. 715.001 Sets out definitions for the bill. Sec. 715.002 Allows the organizers of the non-profit corporation to petition the court to take action to restore, operate, and maintain a historic cemetery. Sec. 715.003 Denotes the necessary parties to the action other than the organizers of the nonprofit. They include property owners, plot owners, and the Texas Historical Commission. Sec. 715.004 Defines the content of the petition. This includes a legal description of the cemetery property, proof that the nonprofit has a religious, ethnic, historic, or cultural relationship to the cemetery; proof that the cemetery is at least 75 years old; proof that no viable organization of plot owners exists; and that the cemetery threatens or endangers the public health, safety, comfort, or welfare. Sec. 715.005 Requires a written plan of action. The plan must include: a description of the action; the anticipated costs; the time frame; assurances of proper conduct of business; protection of the cemetery; the percentage of the total purchase price of each plot sold and conveyed to be deposited in the trust fund established in Sec. 715.011; and a description of records to be maintained. Sec. 715.006 Defines the process of notifying the interested parties, including record owners, plot owners, the Texas Historical Commission, and the county auditor. The interested parties will be notified by certified mail. If the address or identity of a plot owner is not known and cannot be found, a notice will be published at least 3 times in a newspaper in the county where the cemetery is located or, in a county not having a newspaper, in the newspaper of an adjoining county. Sec. 715.007 Requires that the court hold a hearing on the petition and that each of the parties listed in Sec. 715.003 be given an opportunity to be heard. Notice will be given by the nonprofit to the parties listed in Sec. 715.003 not later than the 30th day before the date of the hearing. Sec. 715.008 If the court approves the petition, an order shall be entered authorizing the nonprofit corporation to restore, operate, and maintain the cemetery. Sec. 715.009 States that plot owners and property owners are the members of the nonprofit corporation. Sec. 715.010 Requires the nonprofit to publish notice of the time and location of the organizational meeting. During the organizational meeting, a majority of the members present and voting shall elect a board of directors for the nonprofit. Sec. 715.011 Allows the nonprofit corporation to divide the cemetery into lots and subdivisions. Provides for the right to sell and convey the exclusive right of sepulture. States the requirements of the trustee fund. States that the principal of the trust fund may not be reduced. Provides for the replacement of the trust fund trustee if required. Protects the trustee from civil or criminal penalties due to acts made in good faith. Sec. 715.012 Restricts the nonprofit corporation from the construction or operation of a crematory on the cemetery grounds. Sec. 715.013 Prevents the expansion of the cemetery unless the expansion is operated under perpetual care laws; this insures that the entire cemetery will be cared for on a continuing basis. The nonprofit is also restricted from removing the cemetery dedication under any circumstances. Sec. 715.014 States that the historic cemetery must remain open to the public. Sec. 715.015 This chapter does not apply to perpetual care or family cemeteries. SECTION 2. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE CSHB814 places the proposed legislation in its own section of the Health and Safety Code. HB814 amended Chapter 711 of the Health and Safety Code. Because CSHB814 creates a new chapter, definitions had to be added. HB814 granted title of the land to the nonprofit corporation. CSHB814 does not. CSHB814 requires the proceeds from the sale of plots to be put into a trust fund for the perpetual care of the cemetery should the nonprofit disband. HB814 did not specify this. CSHB814 is more specific about notification of plot owners before any action is taken and guarantees plot owners membership in the nonprofit corporation. SUMMARY OF COMMITTEE ACTION HB 814 was considered by the House Committee on State, Federal, and International Relations in a public hearing on 5 April 1995. The bill was left pending. The bill was again considered by the committee in a public hearing on 12 April 1995. The committee considered a complete substitute for the bill. The substitute was adopted without objection. The bill was reported favorably as substituted with the recommendation that it do pass and be printed and be sent to the Committee on Local and Consent Calendars, by a record vote of 7 ayes, 0 nays, 0 pnv, and 2 absent.