BILL ANALYSIS C.S.H.B. 814 By: Coleman (Ellis) Intergovernmental Relations 05-11-95 Senate 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, plot owners may organize a nonprofit corporation to manage the cemetery. Unfortunately, in the case of older cemeteries, it is often difficult to find a sufficient number of living plot owners to take on the responsibility of restoring and operating the cemetery. PURPOSE As proposed, C.S.H.B. 814 sets forth provisions relating to the restoration, operation, and maintenance of certain historic cemeteries. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Title 8C, Health and Safety Code, by adding Chapter 715, as follows: CHAPTER 715. CERTAIN HISTORIC CEMETERIES Sec. 715.001. DEFINITIONS. Defines "burial park," "cemetery purposes," "crematory," "mausoleum," "plot," "cemetery," and "nonprofit corporation." Sec. 715.002. PETITION OF NONPROFIT CORPORATION. Provides that a nonprofit corporation organized under this chapter to restore, operate, and maintain a historic cemetery may petition the district court of the county in which the cemetery is located to authorize the nonprofit corporation to restore, operate, and maintain the cemetery. Sec. 715.003. PARTIES TO ACTION. Requires an action commenced under this chapter to be brought by the incorporators of the nonprofit corporation on behalf of the nonprofit corporation. Sets forth the necessary parties to the action on which citation shall be served under Section 715.006. Sec. 715.004. CONTENTS OF PETITION. (a) Requires a petition filed by a nonprofit corporation under this chapter to contain a legal description of the real property comprising the historic cemetery and to aver to the court that certain conditions apply. (b) Requires the petition to be accompanied by the written plan described by Section 715.005. Sec. 715.005. WRITTEN PLAN. (a) Requires the written plan accompanying the nonprofit corporation's petition to include descriptions of certain actions, costs, and records. (b) Authorizes the court to require that the nonprofit corporation modify the plan to include other matters specified by the court after the written plan is filed. Sec. 715.006. SERVICE OF CITATION. (a) Requires a nonprofit corporation to cause citation to be issued and served by certified mail, return receipt requested, on cemetery record owners, owners of cemetery plots, the Texas Historical Commission, and the county auditor. (b) Requires the citation to be accompanied by a copy of the petition. (c) Requires service by publication to be made on the plot owner by publishing notice at least three times in a newspaper of general circulation in the county in which the cemetery is located, if the address or identity of a plot owner is not known and cannot be ascertained with reasonable diligence. Authorizes the notice to be published in a newspaper of general circulation in an adjoining county if there is not a newspaper of general circulation in the county in which the cemetery is located. Sec. 715.007. HEARING. (a) Requires the court to hold a hearing on the petition not later than the 90th day after the date the petition is filed. (b) Requires notice of the hearing to be given by the nonprofit corporation to the parties listed in Section 715.003 not later than the 30th day before the date of the hearing. (c) Requires the notice to be given in the manner prescribed by Section 715.006 for service of citation. (d) Requires each of the parties listed in Section 715.003 to be given an opportunity to be heard by the court and to answer the petition of the nonprofit corporation at the hearing. Sec. 715.008. COURT ORDER. (a) Requires the court to issue an order authorizing the nonprofit corporation to restore, operate, and maintain the cemetery if the court finds certain conditions apply. (b) Requires the written plan to be incorporated in the court's order. (c) Provides that the court's order is binding on all parties to the action. (d) Provides that the court retains continuing jurisdiction to monitor and review compliance with the court's order. Sec. 715.009. NONPROFIT CORPORATION. (a) Provides that members of a nonprofit corporation authorized to restore, operate, and maintain a historic cemetery are the plot and property owners of the cemetery. (b) Authorizes each plot owner to exercise the rights and privileges of a member of the nonprofit corporation without regard to whether the plot owner acquired the plot before or after the nonprofit corporation was organized. Sec. 715.010. ORGANIZATIONAL MEETING. (a) Requires a nonprofit corporation authorized to restore, operate, and maintain a historic cemetery to publish and post written notice of the organizational meeting in a prescribed manner by a certain date. (b) Requires the notice published under Subsection (a)(1) to be published not later than the 30th day before the date of the meeting and repeated twice before the date of the meeting. Prohibits the notice from being published more than once a week. (c) Requires the written notice posted under Subsection (a)(2) to be posted not later than the 30th day before the date of the hearing and to remain posted until the date of the hearing. (d) Requires a majority of the members present and voting at the organizational meeting to elect a board of directors of the nonprofit corporation. Provides that directors are not required to be members of the nonprofit corporation. Sec. 715.011. POWERS AND DUTIES OF NONPROFIT CORPORATION; TRUST FUND. (a) Authorizes a nonprofit corporation authorized to restore, operate, and maintain a historic cemetery to divide cemetery property into lots and subdivisions for cemetery purposes and charge reasonable assessments on the property for the purposes of general improvement and maintenance of the cemetery. (b) Authorizes the nonprofit corporation to sell and convey the exclusive right of sepultre in any unsold plot in the cemetery if, before the sale and conveyance of any right of sepultre, the nonprofit corporation established a trust fund to provide for the perpetual maintenance of the cemetery. (c) Requires the county auditor of the county in which the cemetery is located to act as the trustee of the trust fund. (d) Requires the nonprofit corporation to deposit in the trust fund the amount required under the written plan incorporated in the court's order within a certain period. (e) Requires the nonprofit corporation to file a monthly statement with the county auditor, signed by the president and secretary of the nonprofit corporation, that verifies that all funds required to be deposited in the trust fund during the preceding month have been deposited in the trust fund and that any income disbursed from the trust fund during the preceding month was used by the nonprofit corporation for the maintenance and care of the cemetery. (f) Prohibits the principal of a trust fund established under this section from being reduced voluntarily, and requires that it remain inviolable. (g) Provides that the trust fund and the trustee are governed by Title 9, Property Code. (h) Authorizes the trustee to receive and hold as part of the trust fund any property contributed as a gift or grant to the trust fund for the perpetual maintenance of the historic cemetery. (i) Authorizes the income of the trust fund to be applied in the manner the directors of the nonprofit corporation determine to be for the best interest of the cemetery and to be used only for the maintenance and care of the cemetery. (j) Requires the district court of the county in which the historic cemetery is located to appoint a suitable successor trustee of a trust fund established under this section if the county auditor resigns the position of trustee of the trust fund or fails to act as its trustee. (k) Provides that the county auditor or other person who acts as the trustee of a trust fund established under this section is not civilly or criminally liable for acts performed in the good faith administration of the trust fund. Sec. 715.012. CREMATORY PROHIBITED. Prohibits a nonprofit corporation authorized to restore, operate, and maintain a cemetery under this chapter from constructing, establishing, or maintain a crematory. Sec. 715.013. ADJACENT OR CONTIGUOUS CEMETERY. Prohibits a nonprofit corporation authorized to restore, operate, and maintain a historic cemetery from acquiring land for cemetery purposes that is adjacent or contiguous to the cemetery unless the adjacent or contiguous land is operated as a perpetual care cemetery under Chapter 712. Prohibits the nonprofit corporation from petitioning the district court of the county in which the cemetery is located to remove the dedication with respect to all or any portion of the cemetery. Sec. 715.014. CEMETERY OPEN TO PUBLIC. Requires a historic cemetery restored, operated, and maintained by a nonprofit corporation under this chapter to remain open to the public. Sec. 715.015. EXEMPTION. Provides that this chapter does not apply to a perpetual care cemetery or a family cemetery. SECTION 2. Amends Section 713.008, Health and Safety Code, as follows: Sec. 713.008. New heading: TERMINATION OF MUNICIPAL TRUSTS BY CERTAIN MUNICIPALITIES. (a) Created from existing text. (b) Authorizes the governing body of a municipality with a population of at least 185,000 but not more than 187,000, to abolish the municipality's perpetual trust fund for a cemetery or assign such perpetual trust fund to another. SECTION 3. Emergency clause. Effective date: upon passage.