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                               * * * * *