BILL ANALYSIS

C.S.H.B. 2927

By: Howard, Donna

Public Health

Committee Report (Substituted)

BACKGROUND AND PURPOSE

During the 80th Legislative Interim, members of the House Culture, Recreation & Tourism Committee began hearing concerns about the Texas Ranger Museum expansion project in Waco, which reportedly caused disturbance to hundreds of burial sites at an adjacent historic cemetery.  A series of articles on the subject published in the Waco Tribune-Herald raised more questions.  On September 4, 2008, Chairman Harvey Hilderbran appointed the Texas Cemeteries Subcommittee to look into allegations of state and federal law violations at the Texas Ranger Museum site.   The subcommittee held a hearing on those and other related issues throughout the state. 

The subcommittee concluded that state statutes regulating cemeteries are disjointed, unclear, and sometimes contradictory.  The subcommittee members requested the attorney general's office to work with the Texas Funeral Service Commission and the Texas Historical Commission to recommend language to reconcile these statutes. This bill is an effort to clarify which state agencies have jurisdiction over cemeteries, especially historic cemeteries, and to clarify legislative intent about known and unknown burials throughout the state, while crafting a more efficient reporting process for local governments and individuals that encounter such burials.

C.S.H.B. 2927 clarifies provisions relating to the regulation of cemeteries by state and local government.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the Finance Commission of Texas and the Texas Historical Commission in SECTION 8 of this bill.

It is the committee's opinion that rulemaking authority previously granted to the Texas Funeral Service Commission and to the Finance Commission of Texas is transferred to the Texas Historical Commission in SECTION 8 of this bill.

ANALYSIS

C.S.H.B. 2927 amends the Health and Safety Code to authorize the removal of remains interred in a cemetery by permission of a district court of the county, rather than the county court of the county, if written consent cannot be obtained from the current plot owner or owners and certain relatives of the decedent. The bill clarifies that notice about the removal of remains must be given to the Texas Historical Commission before the date of application to the court for permission to remove remains if the cemetery organization operating the cemetery in which the remains are interred cannot be located or does not exist.  The bill adds the requirement that the person who removes remains, if the remains are not reinterred, provide notice by certified mail to the Texas Funeral Service Commission and the Department of State Health Services of the person's intent not to reinter the remains and the reason the remains will not be reinterred. The bill requires the notice to be provided not later than the 30th day after the date the remains are removed.

C.S.H.B. 2927 clarifies that a district court of the county, rather than the court of the county, is authorized to abate the cemetery as a nuisance and enjoin its continuance by order under certain conditions. The bill requires notice of such an action by a district court to be provided to the Texas Historical Commission and to the county historical commission of the county in which the cemetery is located. The bill authorizes the Texas Historical Commission and the county historical commission to intervene and become parties to the suit. The bill requires the court to determine whether the cemetery nuisance must be abated by repair and restoration or by removal of the cemetery, and to determine the party or parties liable for the costs associated with the abatement.

C.S.H.B. 2927 specifies that provisions prohibiting the establishment or operation of a cemetery within specified distances of certain municipalities do not apply to a private family cemetery established and operating on or before September 1, 2009.

C.S.H.B. 2927 makes a technical clarification relating to the order of a district court for the removal of remains from property on which an unknown cemetery is discovered or an abandoned cemetery is located. The bill adds the condition that a district court find that the removal of a dedication is in the public interest for the court to be authorized to order the removal of any dedication for cemetery purposes that affects the property on which an unknown cemetery is discovered or an abandoned cemetery is located.

C.S.H.B. 2927 requires the removal of remains authorized by provisions of law relating to cemeteries to be supervised by a cemetery keeper, a licensed funeral director, a medical examiner, a coroner, or a professional archeologist. The bill requires the person removing the remains to make a good faith effort to locate and remove all human remains, any casket or other covering of the remains, and any funerary objects associated with the remains. The bill requires remains that have been moved to be reburied unless a court, medical examiner, coroner, other authorized official, or next of kin approves a different disposition.

C.S.H.B. 2927 clarifies that notice required to be filed with the county clerk by a person who discovers an unknown or abandoned cemetery is required to be filed not later than the 10th day after the date of the discovery. The bill requires the county clerk to send a copy of the notice to the Texas Historical Commission and file the notice in the deed records of the county, with an index entry referencing the land on which the cemetery was discovered.

C.S.H.B. 2927 transfers certain rulemaking authority from the Texas Funeral Service Commission to the Texas Historical Commission, authorizing the Texas Historical Commission to adopt rules to enforce and administer provisions of law relating to an unknown or abandoned cemetery, filing record of an unknown cemetery, and, in relation to a cemetery that is not a perpetual care cemetery, the effect of dedication of property for cemetery purposes.  The bill authorizes the Texas Historical Commission to adopt rules to enforce and administer provisions of law relating to the method of removal of remains and to adopt rules to enforce and administer provisions of law relating to the removal of remains, abatement of a nuisance cemetery, and removal of dedication relating to cemeteries that are not perpetual care cemeteries.  The bill authorizes the Finance Commission of Texas to adopt rules to enforce and administer, in addition to other provisions of law, provisions of law relating to the removal of remains, abatement of a nuisance cemetery, and removal of dedication relating to perpetual care cemeteries. The bill revises the Texas Funeral Service Commission rulemaking authority to reflect the transfer of rulemaking to the Texas Historical Commission.

C.S.H.B. 2927 adds a wind turbine and a cellular telephone tower to the public utilities or thoroughfares prohibited from being placed through, over, or across a part of a dedicated cemetery without consent. The bill establishes that property is considered to be dedicated cemetery property if one or more human burials are present on the property or a dedication of the property for cemetery use is recorded in the deed records of the county where the land is located.

C.S.H.B. 2927 authorizes an owner of land adjacent to a cemetery for which a cemetery organization or other governing body does not exist to petition a district court of the county in which the cemetery is located to remove any human remains and the dedication for all or any portion of the cemetery. The bill requires notice of the petition to be given to the Texas Historical Commission in addition to notice relating to the removal of remains and to the county historical commission of the county in which the cemetery is located. The bill authorizes the Texas Historical Commission and the county historical commission to intervene and become parties to the suit. The bill requires unknown next of kin of deceased persons in the cemetery to be served by publication of a notice in a newspaper of general circulation in the county in which the cemetery is located, or if there is not a newspaper of general circulation in the county, in a newspaper of general circulation in an adjacent county. The bill requires a good faith effort to be made to remove all remains and monuments from the cemetery or that portion of the cemetery for which the dedication is to be removed. The bill clarifies that the order of removal of the human remains and dedication is made on notice and proof satisfactory to the court that the removal is in the public interest.

C.S.H.B. 2927 authorizes the attorney general, on request of the Texas Funeral Service Commission, to seek to enforce by injunction any rule or order relating to cemeteries adopted by the commission.

C.S.H.B. 2927 clarifies that a district court and a nonprofit corporation appointed to act in the place of a municipality are required to comply with requirements relating to historic cemeteries in cases where a municipality does not take possession and control of an unkept or abandoned cemetery. The bill clarifies that a resolution of the municipality or an order of the court relating to local possession and control of an unkept or abandoned cemetery is required to specify that the municipality or corporation, as appropriate, is required to present a plan for the care of the cemetery. The bill clarifies that the notice required to be given to all persons shown by the records in the county clerk's office to have an interest in the cemetery be given to the Texas Historical Commission in addition to those interested persons.

C.S.H.B. 2927 changes from the third degree to the fifth degree by affinity or consanguinity the degree of relation of a person to a decedent whose rights are not affected by provisions relating to local regulation of cemeteries for purposes of private care of graves, and specifies that the rights of a direct descendant of a decedent also remain unaffected.

C.S.H.B. 2927 requires a municipality that operates or has jurisdiction over a public cemetery to maintain the cemetery in a condition that does not endanger the public health, safety, comfort, or welfare.  The bill establishes that a municipality's responsibility to maintain a cemetery includes: repairing and maintaining any fences, walls, buildings, roads, or other improvements; leveling or straightening markers or memorials; properly maintaining lawns, shrubbery, and other plants; removing debris, including dead flowers and deteriorated plastic ornaments; and promptly restoring gravesites following an interment.

C.S.H.B. 2927 adds leveling of memorials or embellishments, restoration of damaged memorials, and restoration and maintenance of cemetery elements to the actions required to be described in a nonprofit corporation's written plan for the restoration, operation, and maintenance of a historic cemetery. The bill defines "cemetery element" and "memorial" and redefines "cemetery" and "grave."

EFFECTIVE DATE

September 1, 2009.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 2927 differs from the original by adding the Department of State Health Services to the entities that must be notified by certified mail of a person's intent and reasons for not reinterring human remains removed from a cemetery.  The substitute adds a provision not in the original requiring a district court to determine the party or parties liable for the costs associated with a cemetery nuisance abatement.  The substitute adds a provision not in the original to make provisions prohibiting the establishment or operation of a cemetery within specified distances of certain municipalities inapplicable to a private family cemetery established and operating on or before September 1, 2009.  The substitute differs from the original by requiring a person removing human remains from a cemetery to make a good faith effort to locate and remove all remains, caskets and funerary objects, whereas the original requires the location and removal of all such remains and objects.  The substitute differs from the original by adding the next of kin to those who may approve a disposition of removed remains by a means other than reburial, whereas the original does not extend such authority to the next of kin. 

C.S.H.B. 2927 adds language not in the original making such rulemaking authority applicable to cemeteries that are not perpetual care cemeteries.  The substitute adds a provision not in the original authorizing the Finance Commission of Texas to adopt rules to enforce and administer provisions of law relating to the removal of remains, abatement of a nuisance cemetery, and the removal of dedication relating to perpetual care cemeteries.  The substitute authorizes the Texas Historical Commission to adopt rules to enforce and administer provisions relating to an unknown or abandoned cemetery, the method of removal of remains, and filing record of an unknown cemetery, and to adopt rules to enforce and administer certain provisions relating to cemeteries that are not perpetual care cemeteries, whereas the original does not make such a distinction, authorizing the commission to adopt rules to enforce and administer all of the above provisions.

C.S.H.B. 2927 differs from the original by including a cellular telephone tower among the public utilities and thoroughfares that are prohibited from being placed through, over, or across a cemetery, whereas the original adds only a wind turbine to those utilities and thoroughfares.  The substitute authorizes an owner of land adjacent to a cemetery for which a cemetery organization or other governing body does not exist to petition a district court to remove any human remains and the dedication for all or any portion of the cemetery, whereas the original authorizes an owner of land adjacent to a cemetery for which a cemetery organization does not exist to petition a district court to remove the dedication for all or a portion of the cemetery. The substitute adds a provision not in the original to authorize the attorney general to seek to enforce by injunction any rule or order adopted by the Texas Funeral Service Commission relating to cemeteries.  The substitute adds a provision not in the original to specify that a direct descendant of a decedent is exempted from provisions relating to local regulation of cemeteries for purposes of private care of graves. The substitute adds provisions not in the original relating to the maintenance of municipal cemeteries.