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.