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.