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A BILL TO BE ENTITLED
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AN ACT
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relating to the sale of a cemetery plot; providing a criminal |
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penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 711.001, Health and Safety Code, is |
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amended by adding Subdivision (2-a) to read as follows: |
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(2-a) "Cemetery broker" means a person who sells the |
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exclusive right of sepulture for another person. The term does not |
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include a person who: |
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(A) is an officer, agent, or employee of the |
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cemetery organization in which the plot is located; or |
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(B) originally purchased the exclusive right of |
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sepulture for personal use. |
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SECTION 2. Section 711.012(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The Finance Commission of Texas may adopt rules to |
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enforce and administer: |
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(1) Sections 711.003, 711.008, 711.021-711.024, |
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711.032-711.035, 711.038, 711.0381, 711.040-711.042, 711.052, |
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711.061, and 711.062 relating to perpetual care cemeteries; and |
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(2) Subchapter C-1 relating to registration of |
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cemetery brokers. |
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SECTION 3. The heading to Section 711.038, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 711.038. SALE OF PLOTS BY CEMETERY ORGANIZATIONS. |
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SECTION 4. Section 711.038, Health and Safety Code, is |
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amended by amending Subsection (e) and adding Subsection (f) to |
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read as follows: |
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(e) A person who is an officer, agent, or employee of the |
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cemetery organization or its affiliate is not required to be |
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licensed to sell a plot in a dedicated cemetery. |
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(f) The Texas Department of Banking shall provide model |
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quitclaim agreements or other instruments of conveyance for use in |
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transferring the exclusive right of sepulture under this section. |
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A cemetery organization may modify the model forms to include |
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additional provisions considered necessary to conform to the |
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practices and policies of the cemetery organization in which the |
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plot is located. |
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SECTION 5. Subchapter C, Chapter 711, Health and Safety |
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Code, is amended by adding Section 711.0381 to read as follows: |
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Sec. 711.0381. RESALE OF PLOTS BY CERTAIN PERSONS. (a) A |
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person may not act as a cemetery broker in the resale of the |
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exclusive right of sepulture in a plot unless the person is a |
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registered cemetery broker or is exempt from registration under |
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Subchapter C-1. |
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(b) Resale of the exclusive right of sepulture in a plot is |
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subject to the rules of the cemetery organization and any |
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restrictions in the certificate of ownership, quitclaim agreement, |
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or other instrument of conveyance. A quitclaim agreement or other |
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instrument evidencing the conveyance of the exclusive right of |
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sepulture must be: |
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(1) in a form authorized by or otherwise acceptable to |
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the cemetery organization, subject to Subsection (c); |
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(2) signed by: |
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(A) the grantee named in the certificate of |
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ownership or other instrument of conveyance as filed and recorded |
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in the cemetery organization's office in accordance with Section |
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711.038, as the seller or transferor; |
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(B) the designated purchaser or transferee; and |
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(C) each cemetery broker or other agent assisting |
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in the transfer of the interment rights; and |
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(3) filed and recorded with the cemetery organization |
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not later than the third business day after the date of the sale. |
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(c) On request of a person acting as a cemetery broker, a |
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cemetery organization shall provide its rules, conveyance forms, |
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and written guidelines and procedures for brokered sales, if any. |
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(d) The sale of the exclusive right of sepulture in a group |
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of interment rights that were conveyed collectively may not be |
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divided without the consent of the cemetery organization. |
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(e) A person acting as a cemetery broker that sells the |
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right of sepulture in a plot shall collect and remit to the cemetery |
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organization: |
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(1) all fees required under Section 712.028; and |
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(2) any other fee required by the rules of the cemetery |
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organization subject to Subsection (f). |
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(f) A fee required by a rule of the cemetery organization |
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for the sale of the right of sepulture in a plot under this section |
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may not exceed the fee charged on the sale of the right of sepulture |
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in a plot by the cemetery organization under Section 711.038. |
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(g) A person acting as a cemetery broker must keep a record |
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of each sale under this section. The record must include: |
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(1) the name and address of the purchaser; |
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(2) the date of the purchase; |
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(3) a copy of the purchase agreement, with the name and |
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address of the cemetery; |
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(4) a specific description of the interment rights; |
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(5) the purchase price; |
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(6) the amount of fees collected and remitted in |
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accordance with Subsection (e); and |
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(7) information on the disposal of the purchase |
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agreement, including whether the agreement was conveyed, canceled, |
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or voided. |
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SECTION 6. Chapter 711, Health and Safety Code, is amended |
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by adding Subchapter C-1 to read as follows: |
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SUBCHAPTER C-1. CEMETERY BROKER REGISTRATION |
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Sec. 711.045. DEFINITIONS. In this subchapter: |
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(1) "Commission" means the Finance Commission of |
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Texas. |
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(2) "Commissioner" means the banking commissioner of |
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Texas. |
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(3) "Department" means the Texas Department of |
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Banking. |
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Sec. 711.046. CEMETERY BROKER REGISTRATION. (a) A person |
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may not act as a cemetery broker in the sale of the exclusive right |
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of sepulture in a plot unless the person is registered under this |
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subchapter as a cemetery broker or is exempt from registration |
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under Section 711.047. To register under this subchapter, a |
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cemetery broker shall file with the department a sworn, notarized |
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statement that contains: |
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(1) the name and address of the cemetery broker; |
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(2) the name, address, and telephone number of the |
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representative of the cemetery broker to be contacted regarding a |
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written complaint; and |
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(3) any Internet or other electronic mail address of |
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the cemetery broker. |
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(b) The registration of a cemetery broker is valid until |
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withdrawn or revoked. Periodic renewal of the registration is not |
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required. |
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(c) A registered cemetery broker shall update the |
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information contained in the registration statement not later than |
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the 60th day after the date the information changes. |
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(d) The department may charge a cemetery broker a reasonable |
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fee to cover the costs of filing and maintaining the registration |
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statement and administering this chapter. The administration fee |
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may not exceed $100 per year. |
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Sec. 711.047. EXEMPTIONS. This subchapter does not apply |
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to a person offering to sell or selling the exclusive right of |
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sepulture in a plot if the person is: |
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(1) an officer, agent, employee, or affiliate of the |
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cemetery organization in which the plot is located, acting at the |
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direction or under the control of the cemetery organization; |
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(2) an employee of a registered cemetery broker; |
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(3) with respect to the specific plot for sale: |
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(A) a grantee named in the certificate of |
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ownership or other instrument of conveyance for the plot as filed |
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and recorded in the cemetery organization's office under Section |
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711.038; |
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(B) a spouse or other heir of the named grantee as |
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described by Section 711.039; |
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(C) an executor, administrator, or guardian of |
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the named grantee appointed by court order; or |
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(D) an attorney-in-fact for the named grantee |
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under a durable power of attorney if the person is not otherwise |
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engaged in the business of a cemetery broker and does not solicit |
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appointment as attorney-in-fact for the purpose of offering to sell |
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or selling the exclusive right of sepulture of the named grantee; or |
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(4) otherwise exempt in accordance with rules adopted |
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by the commission as necessary to protect the public health and |
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safety. |
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Sec. 711.048. PUBLIC INFORMATION; COMPLAINTS. (a) The |
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department shall prepare a brochure with information of public |
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interest: |
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(1) explaining matters relating to the resale of plots |
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by a cemetery broker, including disclosure that the sale is not |
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complete until registered with the cemetery organization; and |
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(2) describing the department's procedures for filing |
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and resolving a complaint. |
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(b) The department shall: |
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(1) provide each registered cemetery broker with the |
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number of brochures the department considers appropriate for a fee |
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to recover the department's costs; and |
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(2) make the brochure available to the public and |
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appropriate state agencies. |
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(c) A cemetery broker shall provide the brochure on the |
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initial inquiry to the cemetery broker by a plot owner or the |
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representative of a plot owner regarding the potential resale of |
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the exclusive right of sepulture in the plot. |
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(d) A cemetery broker is subject to rules adopted under |
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Section 11.307, Finance Code, regarding the manner in which the |
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cemetery broker provides consumers with information on how to file |
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complaints with the department. The rules must be consistent with |
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the obligations imposed by this section. |
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(e) If the department receives a signed written complaint |
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from a person concerning a cemetery broker, the department shall |
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notify the cemetery broker's designated representative in writing |
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of the complaint not later than the 31st day after the date the |
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complaint was received and provide a copy of the complaint to the |
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representative. The department may: |
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(1) require the cemetery broker to resolve the |
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complaint or to provide the department with a response to the |
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complaint; or |
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(2) direct the cemetery broker in writing to take |
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specific action to resolve the complaint. |
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Sec. 711.049. TERMINATION OF REGISTRATION. (a) A cemetery |
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broker may withdraw the cemetery broker's registration at any time. |
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(b) After notice and hearing, the commissioner may revoke |
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the registration of a registered cemetery broker that: |
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(1) fails to pay the annual administration fee and |
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fails to cure the default not later than the 30th day after the date |
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written notice of the default is mailed by the department to the |
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cemetery broker; |
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(2) fails or refuses to comply with the department's |
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written request for a response to a complaint; or |
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(3) the commissioner concludes, after considering a |
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complaint filed under this chapter, has engaged in an intentional |
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course of conduct that: |
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(A) violates federal or state law; or |
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(B) constitutes improper, fraudulent, or |
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dishonest dealings. |
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(c) The commissioner shall state the basis of the decision |
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in an order revoking the registration of a cemetery broker. The |
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cemetery broker may appeal an order revoking registration in the |
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manner provided by Chapter 2001, Government Code. |
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SECTION 7. Section 711.052(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A person who is an individual, firm, association, |
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corporation, or municipality, or an officer, agent, or employee of |
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an individual, firm, association, corporation, or municipality, |
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commits an offense if the person: |
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(1) engages in a business for cemetery purposes in |
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this state other than through a corporation organized for that |
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purpose, if a corporation is required by law; |
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(2) fails or refuses to keep records of interment as |
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required by Sections 711.003 and 711.004; |
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(3) sells, offers to sell, or advertises for sale a |
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plot or the exclusive right of sepulture in a plot for purposes of |
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speculation or investment; [or] |
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(4) represents through advertising or printed |
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material that a retail department will be established for the |
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resale of the plots of plot purchasers, that specific improvements |
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will be made in the cemetery, or that specific merchandise or |
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services will be furnished to a plot owner, unless adequate funds or |
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reserves are created by the cemetery organization for the |
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represented purpose; |
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(5) offers or receives monetary inducement to solicit |
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business for a cemetery broker; |
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(6) fails or refuses to keep records of resales or to |
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collect and remit fees as required by Section 711.0381; or |
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(7) fails or refuses to register as a cemetery broker |
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as required by Subchapter C-1. |
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SECTION 8. (a) Except as provided by Subsections (b) and |
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(c) of this section, this Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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Except as provided by Subsections (b) and (c) of this section, if |
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this Act does not receive the vote necessary for immediate effect, |
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this Act takes effect September 1, 2009. |
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(b) Section 711.038(f), Health and Safety Code, as added by |
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this Act, takes effect September 1, 2010. |
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(c) Subchapter C-1, Chapter 711, Health and Safety Code, as |
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added by this Act, takes effect January 1, 2010, except that |
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Sections 711.048(a) through (c), Health and Safety Code, as added |
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by this Act, take effect September 1, 2010. |