1-1 By: Coleman, et al. (Senate Sponsor - Ellis) H.B. No. 814 1-2 (In the Senate - Received from the House May 1, 1995; 1-3 May 2, 1995, read first time and referred to Committee on 1-4 Intergovernmental Relations; May 10, 1995, reported adversely, with 1-5 favorable Committee Substitute by the following vote: Yeas 8, Nays 1-6 0; May 10, 1995, sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 814 By: Ellis 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the restoration, operation, and maintenance of certain 1-11 historic cemeteries. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Subtitle C, Title 8, Health and Safety Code, is 1-14 amended by adding Chapter 715 to read as follows: 1-15 CHAPTER 715. CERTAIN HISTORIC CEMETERIES 1-16 Sec. 715.001. DEFINITIONS. In this chapter: 1-17 (1) "Burial park," "cemetery purposes," "crematory," 1-18 "mausoleum," and "plot" have the meanings assigned by Section 1-19 711.001. 1-20 (2) "Cemetery" means a place that is used for 1-21 interment, including a graveyard, a burial park, or a mausoleum 1-22 located on the grounds of a graveyard or burial park. 1-23 (3) "Nonprofit corporation" means a corporation not 1-24 for profit subject to the provisions of the Texas Non-Profit 1-25 Corporation Act, Art. 1396-101. et. seq. 1-26 Sec. 715.002. PETITION OF NONPROFIT CORPORATION. A 1-27 nonprofit corporation organized under this chapter to restore, 1-28 operate, and maintain a historic cemetery may petition the district 1-29 court of the county in which the cemetery is located to authorize 1-30 the nonprofit corporation to restore, operate, and maintain the 1-31 cemetery. 1-32 Sec. 715.003. PARTIES TO ACTION. An action commenced under 1-33 this chapter shall be brought by the incorporators of the nonprofit 1-34 corporation on behalf of the nonprofit corporation. The necessary 1-35 parties to the action on which citation shall be served under 1-36 Section 715.006 are: 1-37 (1) the record owners of the real property comprising 1-38 the historic cemetery; 1-39 (2) the owners of plots in the cemetery, who may be 1-40 designated as a class in the petition; and 1-41 (3) the Texas Historical Commission. 1-42 Sec. 715.004. CONTENTS OF PETITION. (a) A petition filed 1-43 by a nonprofit corporation under this chapter must contain a legal 1-44 description of the real property comprising the historic cemetery 1-45 and must aver to the court that: 1-46 (1) the nonprofit corporation, through its members and 1-47 incorporators, has a religious, ethnic, historic, or cultural 1-48 relationship to the cemetery; 1-49 (2) the cemetery was established more than 75 years 1-50 before the date the action was commenced; 1-51 (3) a viable organization of plot owners of the 1-52 cemetery does not exist; and 1-53 (4) the cemetery threatens or endangers the public 1-54 health, safety, comfort, or welfare. 1-55 (b) The petition must be accompanied by the written plan 1-56 described by Section 715.005. 1-57 Sec. 715.005. WRITTEN PLAN. (a) The written plan 1-58 accompanying the nonprofit corporation's petition must include: 1-59 (1) a description of the actions to be taken by the 1-60 nonprofit corporation to restore, operate, and maintain the 1-61 historic cemetery, which must include: 1-62 (A) repair of any fences; 1-63 (B) straightening and resetting of memorials or 1-64 embellishments in the cemetery that are a threat or danger to the 1-65 public health, safety, comfort, or welfare; and 1-66 (C) taking of proper steps to restore and 1-67 continuously operate and maintain the cemetery in an orderly and 1-68 decent fashion that does not endanger the public health, safety, 2-1 comfort, or welfare; 2-2 (2) the anticipated costs of the actions described 2-3 under Subdivision (1); 2-4 (3) the time that the actions described by Subdivision 2-5 (1) will be commenced and the time that it is anticipated the 2-6 actions will be completed; 2-7 (4) a description of the actions to be taken by the 2-8 nonprofit corporation for the proper conduct of its business and 2-9 for the protection of the cemetery and the principles, plans, and 2-10 ideals on which the cemetery was established; 2-11 (5) the percentage of the total purchase price of each 2-12 plot in the cemetery sold and conveyed by the nonprofit corporation 2-13 to be deposited in the trust fund established under Section 2-14 715.011, which must be at least 10 percent of the total purchase 2-15 price of the plot; and 2-16 (6) a description of the records to be maintained by 2-17 the nonprofit corporation, including records regarding: 2-18 (A) the sale of plots in the cemetery; 2-19 (B) the interments in the cemetery; 2-20 (C) the total purchase price received from the 2-21 sale of each plot in the cemetery; 2-22 (D) the percentage of the total purchase price 2-23 of each plot in the cemetery deposited in the trust fund 2-24 established under Section 715.011; and 2-25 (E) the income received by the nonprofit 2-26 corporation from the trust fund established under Section 715.011 2-27 and the manner in which the income is used by the nonprofit 2-28 corporation for the maintenance and care of the cemetery. 2-29 (b) After the written plan is filed, the court may require 2-30 that the, nonprofit corporation modify the plan to include other 2-31 matters specified by the court. 2-32 Sec. 715.006. SERVICE OF CITATION. (a) Before the 31st day 2-33 after the date an action is commenced by a nonprofit corporation 2-34 under this chapter, the nonprofit corporation shall cause citation 2-35 to be issued and served by certified mail, return receipt 2-36 requested, on: 2-37 (1) the record owners of the real property comprising 2-38 the cemetery at their last known addresses; 2-39 (2) the owners of plots in the cemetery at their last 2-40 known addresses; 2-41 (3) the Texas Historical Commission at its office in 2-42 Austin, Texas; and 2-43 (4) the county auditor of the county in which the 2-44 cemetery is located. 2-45 (b) The citation must be accompanied by a copy of the 2-46 petition. 2-47 (c) If the address or identity of a plot owner is not known 2-48 and cannot be ascertained with reasonable diligence, service by 2-49 publication shall be made on the plot owner by publishing notice at 2-50 least three times in a newspaper of general circulation in the 2-51 county in which the cemetery is located. If there is not a 2-52 newspaper of general circulation in the county in which the 2-53 cemetery is located, the notice may be published in a newspaper of 2-54 general circulation in an adjoining county. 2-55 Sec. 715.007. HEARING. (a) Not later than the 90th day 2-56 after the date the petition is filed, the court shall hold a 2-57 hearing on the petition. 2-58 (b) Notice of the hearing shall be given by the nonprofit 2-59 corporation to the parties listed in Section 715.003 not later than 2-60 the 30th day before the date of the hearing. 2-61 (c) The notice shall be given in the manner prescribed by 2-62 Section 715.006 for service of citation. 2-63 (d) At the hearing, each of the parties listed in Section 2-64 715.003 shall be given an opportunity to be heard by the court and 2-65 to answer the petition of the nonprofit corporation. 2-66 Sec. 715.008. COURT ORDER. (a) The court shall issue an 2-67 order authorizing the nonprofit corporation to restore, operate, 2-68 and maintain the cemetery if the court finds that: 2-69 (1) the facts stated in the petition filed by a 2-70 nonprofit corporation under this chapter are true and correct; 3-1 (2) the written plan accompanying the petition 3-2 demonstrates the nonprofit corporation's ability to restore, 3-3 operate, and maintain the historic cemetery in accordance with this 3-4 chapter; and 3-5 (3) authorizing the nonprofit corporation to restore, 3-6 operate, and maintain the cemetery is in the best interest of the 3-7 public. 3-8 (b) The written plan must be incorporated in the court's 3-9 order. 3-10 (c) The court's order is binding on all parties to the 3-11 action. 3-12 (d) The court retains continuing jurisdiction to monitor and 3-13 review compliance with the court's order. 3-14 Sec. 715.009. NONPROFIT CORPORATION. (a) The members of a 3-15 nonprofit corporation authorized to restore, operate, and maintain 3-16 a historic cemetery are the plot and property owners of the 3-17 cemetery. 3-18 (b) Each plot owner may exercise the rights and privileges 3-19 of a member of the nonprofit corporation without regard to whether 3-20 the plot owner acquired the plot before or after the nonprofit 3-21 corporation was organized. 3-22 Sec. 715.010. ORGANIZATIONAL MEETING. (a) A nonprofit 3-23 corporation authorized to restore, operate, and maintain a historic 3-24 cemetery shall, not later than the 10th day after the date of the 3-25 order of the court under Section 715.008: 3-26 (1) publish notice of the time and place of the 3-27 organizational meeting of the members of the nonprofit corporation 3-28 in a newspaper having general circulation in the county in which 3-29 the cemetery is located or, if there is no newspaper of general 3-30 circulation in the county in which the cemetery is located, in a 3-31 newspaper of general circulation in an adjoining county; and 3-32 (2) post written notice of the time and place of the 3-33 meeting at the cemetery. 3-34 (b) The notice published under Subsection (a)(1) must be 3-35 published not later than the 30th day before the date of the 3-36 meeting and repeated twice before the date of the meeting. The 3-37 notice may not be published more than once a week. 3-38 (c) The written notice posted under Subsection (a)(2) must 3-39 be posted not later than the 30th day before the date of the 3-40 hearing and must remain posted until the date of the hearing. 3-41 (d) At the organizational meeting of the members of a 3-42 nonprofit corporation authorized to restore, operate, and maintain 3-43 a historic cemetery, a majority of the members present and voting 3-44 at the meeting shall elect a board of directors of the nonprofit 3-45 corporation. Directors and officers are not required to be members 3-46 of the nonprofit corporation. 3-47 Sec. 715.011. POWERS AND DUTIES OF NONPROFIT CORPORATION; 3-48 TRUST FUND. (a) A nonprofit corporation authorized to restore, 3-49 operate, and maintain a historic cemetery may divide cemetery 3-50 property into lots and subdivisions for cemetery purposes and 3-51 charge reasonable assessments on the property for the purposes of 3-52 general improvement and maintenance of the cemetery. 3-53 (b) The nonprofit corporation may sell and convey the 3-54 exclusive right of sepulture in any unsold plot in the cemetery if, 3-55 before the sale and conveyance of any right of sepulture, the 3-56 nonprofit corporation establishes a trust fund to provide for the 3-57 perpetual maintenance of the cemetery. 3-58 (c) The county auditor of the county in which the cemetery 3-59 is located shall act as the trustee of the trust fund. 3-60 (d) The nonprofit corporation shall deposit in the trust 3-61 fund the amount required under the written plan incorporated in the 3-62 court's order not later than the 20th day after the last day of the 3-63 month in which the total purchase price of a plot has been paid in 3-64 full. 3-65 (e) The nonprofit corporation shall file a monthly statement 3-66 with the county auditor, signed by the president and secretary of 3-67 the nonprofit corporation, that verifies that all funds required to 3-68 be deposited in the trust fund during the preceding month have been 3-69 deposited in the trust fund and that any income disbursed from the 3-70 trust fund during the preceding month was used by the nonprofit 4-1 corporation for the maintenance and care of the cemetery. 4-2 (f) The principal of a trust fund established under this 4-3 section may not be reduced voluntarily, and it must remain 4-4 inviolable. 4-5 (g) The trust fund and the trustee are governed by Title 9, 4-6 Property Code. 4-7 (h) The trustee may receive and hold as part of the trust 4-8 fund any property contributed as a gift or grant to the trust fund 4-9 for the perpetual maintenance of the historic cemetery. 4-10 (i) The income of the trust fund may be applied in the 4-11 manner the directors of the nonprofit corporation determine to be 4-12 for the best interest of the cemetery and may be used only for the 4-13 maintenance and care of the cemetery. 4-14 (j) A district court of the county in which the historic 4-15 cemetery is located shall appoint a suitable successor trustee of a 4-16 trust fund established under this section if the county auditor 4-17 resigns the position of trustee of the trust fund or fails to act 4-18 as its trustee. 4-19 (k) The county auditor or other person who acts as the 4-20 trustee of a trust fund established under this section is not 4-21 civilly or criminally liable for acts performed in the good faith 4-22 administration of the trust fund. 4-23 Sec. 715.012. CREMATORY PROHIBITED. A nonprofit corporation 4-24 authorized to restore, operate, and maintain a cemetery under this 4-25 chapter may not construct, establish, or maintain a crematory. 4-26 Sec. 715.013. ADJACENT OR CONTIGUOUS CEMETERY. A nonprofit 4-27 corporation authorized to restore, operate, and maintain a historic 4-28 cemetery may not acquire land for cemetery purposes that is 4-29 adjacent or contiguous to the cemetery unless the adjacent or 4-30 contiguous land is operated as a perpetual care cemetery under 4-31 Chapter 712. The nonprofit corporation may not petition the 4-32 district court of the county in which the cemetery is located to 4-33 remove the dedication with respect to all or any portion of the 4-34 cemetery. 4-35 Sec. 715.014. CEMETERY OPEN TO PUBLIC. A historic cemetery 4-36 restored, operated, and maintained by a nonprofit corporation under 4-37 this chapter must remain open to the public. 4-38 Sec. 715.015. EXEMPTION. This chapter does not apply to: 4-39 (1) a perpetual care cemetery; or 4-40 (2) a family cemetery. 4-41 SECTION 2. Section 713.008, Health and Safety Code, is 4-42 amended to read as follows: 4-43 Sec. 713.008. TERMINATION OF MUNICIPAL TRUSTS BY CERTAIN 4-44 MUNICIPALITIES 4-45 (a) The governing body of a municipality in county with a 4-46 population of at least 122,000 but not more than 128,000 may 4-47 abolish the municipality's perpetual trust fund for a cemetery and 4-48 use the fund, including both principal and interest, for permanent 4-49 improvements to the cemetery. 4-50 (b) The governing body of a municipality with a population 4-51 of at least 185,000 but not more than 187,000, according to the 4-52 1990 Federal Census, may abolish the municipality's perpetual trust 4-53 fund for a cemetery or assign such perpetual trust fund to another. 4-54 SECTION 3. The importance of this legislation and the 4-55 crowded condition of the calendars in both houses create an 4-56 emergency and an imperative public necessity that the 4-57 constitutional rule requiring bills to be read on three several 4-58 days in each house be suspended, and this rule is hereby suspended, 4-59 and that this Act take effect and be in force from and after its 4-60 passage, and it is so enacted. 4-61 * * * * *