74R8660 DLF-F
By Coleman, et al. H.B. No. 814
Substitute the following for H.B. No. 814:
By Dukes C.S.H.B. No. 814
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the restoration, operation, and maintenance of certain
1-3 historic cemeteries.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 8, Health and Safety Code, is
1-6 amended by adding Chapter 715 to read as follows:
1-7 CHAPTER 715. CERTAIN HISTORIC CEMETERIES
1-8 Sec. 715.001. DEFINITIONS. In this chapter:
1-9 (1) "Burial park," "cemetery purposes," "crematory,"
1-10 "mausoleum," and "plot" have the meanings assigned by Section
1-11 711.001.
1-12 (2) "Cemetery" means a place that is used for
1-13 interment, including a graveyard, burial park, or a mausoleum
1-14 located on the grounds of a graveyard or burial park.
1-15 (3) "Nonprofit corporation" means a corporation exempt
1-16 from federal income tax under Section 501(a) of the Internal
1-17 Revenue Code of 1986 by being listed as an exempt organization
1-18 under Section 501(c)(3).
1-19 Sec. 715.002. PETITION OF NONPROFIT CORPORATION. A
1-20 nonprofit corporation organized under this chapter to restore,
1-21 operate, and maintain a historic cemetery may petition the district
1-22 court of the county in which the cemetery is located to authorize
1-23 the nonprofit corporation to restore, operate, and maintain the
1-24 cemetery.
2-1 Sec. 715.003. PARTIES TO ACTION. An action commenced under
2-2 this chapter shall be brought by the incorporators of the nonprofit
2-3 corporation on behalf of the nonprofit corporation. The necessary
2-4 parties to the action on which citation shall be served under
2-5 Section 715.006 are:
2-6 (1) the record owners of the real property comprising
2-7 the historic cemetery;
2-8 (2) the owners of plots in the cemetery, who may be
2-9 designated as a class in the petition; and
2-10 (3) the Texas Historical Commission.
2-11 Sec. 715.004. CONTENTS OF PETITION. (a) A petition filed
2-12 by a nonprofit corporation under this chapter must contain a legal
2-13 description of the real property comprising the historic cemetery
2-14 and must aver to the court that:
2-15 (1) the nonprofit corporation, through its members and
2-16 incorporators, has a religious, ethnic, historic, or cultural
2-17 relationship to the cemetery;
2-18 (2) the cemetery was established more than 75 years
2-19 before the date the action was commenced;
2-20 (3) a viable organization of plot owners of the
2-21 cemetery does not exist; and
2-22 (4) the cemetery threatens or endangers the public
2-23 health, safety, comfort, or welfare.
2-24 (b) The petition must be accompanied by the written plan
2-25 described by Section 715.005.
2-26 Sec. 715.005. WRITTEN PLAN. (a) The written plan
2-27 accompanying the nonprofit corporation's petition must include:
3-1 (1) a description of the actions to be taken by the
3-2 nonprofit corporation to restore, operate, and maintain the
3-3 historic cemetery, which must include:
3-4 (A) repair of any fences;
3-5 (B) straightening and resetting of memorials or
3-6 embellishments in the cemetery that are a threat or danger to the
3-7 public health, safety, comfort, or welfare; and
3-8 (C) taking proper steps to restore and
3-9 continuously operate and maintain the cemetery in an orderly and
3-10 decent fashion that does not endanger the public health, safety,
3-11 comfort, or welfare;
3-12 (2) the anticipated costs of the actions described
3-13 under Subdivision (1);
3-14 (3) the time that the actions described by Subdivision
3-15 (1) will be commenced and the time that it is anticipated the
3-16 actions will be completed;
3-17 (4) a description of the actions to be taken by the
3-18 nonprofit corporation for the proper conduct of its business and
3-19 for the protection of the cemetery and the principles, plans, and
3-20 ideals on which the cemetery was established;
3-21 (5) the percentage of the total purchase price of each
3-22 plot in the cemetery sold and conveyed by the nonprofit corporation
3-23 to be deposited in the trust fund established under Section
3-24 715.011, which must be at least 10 percent of the total purchase
3-25 price of the plot; and
3-26 (6) a description of the records to be maintained by
3-27 the nonprofit corporation, including records regarding:
4-1 (A) the sale of plots in the cemetery;
4-2 (B) the interments in the cemetery;
4-3 (C) the total purchase price received from the
4-4 sale of each plot in the cemetery;
4-5 (D) the percentage of the total purchase price
4-6 of each plot in the cemetery deposited in the trust fund
4-7 established under Section 715.011; and
4-8 (E) the income received by the nonprofit
4-9 corporation from the trust fund established under Section 715.011
4-10 and the manner in which the income is used by the nonprofit
4-11 corporation for the maintenance and care of the cemetery.
4-12 (b) After the written plan is filed, the court may require
4-13 that the nonprofit corporation modify the plan to include other
4-14 matters specified by the court.
4-15 Sec. 715.006. SERVICE OF CITATION. (a) Before the 31st day
4-16 after the date an action is commenced by a nonprofit corporation
4-17 under this chapter, the nonprofit corporation shall cause citation
4-18 to be issued and served by certified mail, return receipt
4-19 requested, on:
4-20 (1) the record owners of the real property comprising
4-21 the cemetery at their last known addresses;
4-22 (2) the owners of plots in the cemetery at their last
4-23 known addresses;
4-24 (3) the Texas Historical Commission at its office in
4-25 Austin, Texas; and
4-26 (4) the county auditor of the county in which the
4-27 cemetery is located.
5-1 (b) The citation must be accompanied by a copy of the
5-2 petition.
5-3 (c) If the address or identity of a plot owner is not known
5-4 and cannot be ascertained with reasonable diligence, service by
5-5 publication shall be made on the plot owner by publishing notice at
5-6 least three times in a newspaper of general circulation in the
5-7 county in which the cemetery is located. If there is not a
5-8 newspaper of general circulation in the county in which the
5-9 cemetery is located, the notice may be published in a newspaper of
5-10 general circulation in an adjoining county.
5-11 Sec. 715.007. HEARING. (a) Not later than the 90th day
5-12 after the date the petition is filed, the court shall hold a
5-13 hearing on the petition.
5-14 (b) Notice of the hearing shall be given by the nonprofit
5-15 corporation to the parties listed in Section 715.003 not later than
5-16 the 30th day before the date of the hearing.
5-17 (c) The notice shall be given in the manner prescribed by
5-18 Section 715.006 for service of citation.
5-19 (d) At the hearing, each of the parties listed in Section
5-20 715.003 shall be given an opportunity to be heard by the court and
5-21 to answer the petition of the nonprofit corporation.
5-22 Sec. 715.008. COURT ORDER. (a) The court shall issue an
5-23 order authorizing the nonprofit corporation to restore, operate,
5-24 and maintain the cemetery if the court finds that:
5-25 (1) the facts stated in the petition filed by a
5-26 nonprofit corporation under this chapter are true and correct;
5-27 (2) the written plan accompanying the petition
6-1 demonstrates the nonprofit corporation's ability to restore,
6-2 operate, and maintain the historic cemetery in accordance with this
6-3 chapter; and
6-4 (3) authorizing the nonprofit corporation to restore,
6-5 operate, and maintain the cemetery is in the best interest of the
6-6 public.
6-7 (b) The written plan must be incorporated in the court's
6-8 order.
6-9 (c) The court's order is binding on all parties to the
6-10 action.
6-11 (d) The court retains continuing jurisdiction to monitor and
6-12 review compliance with the court's order.
6-13 Sec. 715.009. NONPROFIT CORPORATION. (a) The members of a
6-14 nonprofit corporation authorized to restore, operate, and maintain
6-15 a historic cemetery are the plot and property owners of the
6-16 cemetery.
6-17 (b) Each plot owner may exercise the rights and privileges
6-18 of a member of the nonprofit corporation without regard to whether
6-19 the plot owner acquired the plot before or after the nonprofit
6-20 corporation was organized.
6-21 Sec. 715.010. ORGANIZATIONAL MEETING. (a) A nonprofit
6-22 corporation authorized to restore, operate, and maintain a historic
6-23 cemetery shall, not later than the 10th day after the date of the
6-24 order of the court under Section 715.008:
6-25 (1) publish notice of the time and place of the
6-26 organizational meeting of the members of the nonprofit corporation
6-27 in a newspaper having general circulation in the county in which
7-1 the cemetery is located or, if there is no newspaper of general
7-2 circulation in the county in which the cemetery is located, in a
7-3 newspaper of general circulation in an adjoining county; and
7-4 (2) post written notice of the time and place of the
7-5 meeting at the cemetery.
7-6 (b) The notice published under Subsection (a)(1) must be
7-7 published not later than the 30th day before the date of the
7-8 meeting and repeated twice before the date of the meeting. The
7-9 notice may not be published more than once a week.
7-10 (c) The written notice posted under Subsection (a)(2) must
7-11 be posted not later than the 30th day before the date of the
7-12 hearing and must remain posted until the date of the hearing.
7-13 (d) At the organizational meeting of the members of a
7-14 nonprofit corporation authorized to restore, operate, and maintain
7-15 a historic cemetery, a majority of the members present and voting
7-16 at the meeting shall elect a board of directors of the nonprofit
7-17 corporation. Directors and officers are not required to be members
7-18 of the nonprofit corporation.
7-19 Sec. 715.011. POWERS AND DUTIES OF NONPROFIT CORPORATION;
7-20 TRUST FUND. (a) A nonprofit corporation authorized to restore,
7-21 operate, and maintain a historic cemetery may divide cemetery
7-22 property into lots and subdivisions for cemetery purposes and
7-23 charge reasonable assessments on the property for the purposes of
7-24 general improvement and maintenance of the cemetery.
7-25 (b) The nonprofit corporation may sell and convey the
7-26 exclusive right of sepulture in any unsold plot in the cemetery if,
7-27 before the sale and conveyance of any right of sepulture, the
8-1 nonprofit corporation establishes a trust fund to provide for the
8-2 perpetual maintenance of the cemetery.
8-3 (c) The county auditor of the county in which the cemetery
8-4 is located shall act as the trustee of the trust fund.
8-5 (d) The nonprofit corporation shall deposit in the trust
8-6 fund the amount required under the written plan incorporated in the
8-7 court's order not later than the 20th day after the last day of the
8-8 month in which the total purchase price of a plot has been paid in
8-9 full.
8-10 (e) The nonprofit corporation shall file a monthly statement
8-11 with the county auditor, signed by the president and secretary of
8-12 the nonprofit corporation, that verifies that all funds required to
8-13 be deposited in the trust fund during the preceding month have been
8-14 deposited in the trust fund and that any income disbursed from the
8-15 trust fund during the preceding month was used by the nonprofit
8-16 corporation for the maintenance and care of the cemetery.
8-17 (f) The principal of a trust fund established under this
8-18 section may not be reduced voluntarily, and it must remain
8-19 inviolable.
8-20 (g) The trust fund and the trustee are governed by Title 9,
8-21 Property Code.
8-22 (h) The trustee may receive and hold as part of the trust
8-23 fund any property contributed as a gift or grant to the trust fund
8-24 for the perpetual maintenance of the historic cemetery.
8-25 (i) The income of the trust fund may be applied in the
8-26 manner the directors of the nonprofit corporation determine to be
8-27 for the best interest of the cemetery and may be used only for the
9-1 maintenance and care of the cemetery.
9-2 (j) A district court of the county in which the historic
9-3 cemetery is located shall appoint a suitable successor trustee of a
9-4 trust fund established under this section if the county auditor
9-5 resigns the position of trustee of the trust fund or fails to act
9-6 as its trustee.
9-7 (k) The county auditor or other person who acts as the
9-8 trustee of a trust fund established under this section is not
9-9 civilly or criminally liable for acts performed in the good faith
9-10 administration of the trust fund.
9-11 Sec. 715.012. CREMATORY PROHIBITED. A nonprofit corporation
9-12 authorized to restore, operate, and maintain a cemetery under this
9-13 chapter may not construct, establish, or maintain a crematory.
9-14 Sec. 715.013. ADJACENT OR CONTIGUOUS CEMETERY. A nonprofit
9-15 corporation authorized to restore, operate, and maintain a historic
9-16 cemetery may not acquire land for cemetery purposes that is
9-17 adjacent or contiguous to the cemetery unless the adjacent or
9-18 contiguous land is operated as a perpetual care cemetery under
9-19 Chapter 712. The nonprofit corporation may not petition the
9-20 district court of the county in which the cemetery is located to
9-21 remove the dedication with respect to all or any portion of the
9-22 cemetery.
9-23 Sec. 715.014. CEMETERY OPEN TO PUBLIC. A historic cemetery
9-24 restored, operated, and maintained by a nonprofit corporation under
9-25 this chapter must remain open to the public.
9-26 Sec. 715.015. EXEMPTION. This chapter does not apply to:
9-27 (1) a perpetual care cemetery; or
10-1 (2) a family cemetery.
10-2 SECTION 2. The importance of this legislation and the
10-3 crowded condition of the calendars in both houses create an
10-4 emergency and an imperative public necessity that the
10-5 constitutional rule requiring bills to be read on three several
10-6 days in each house be suspended, and this rule is hereby suspended,
10-7 and that this Act take effect and be in force from and after its
10-8 passage, and it is so enacted.