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 * * * * *