81R9500 YDB-F

By: Flynn H.B. No. 2369

A BILL TO BE ENTITLED

AN ACT

relating to the sale of a cemetery plot; providing a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 711.001, Health and Safety Code, is amended by adding Subdivision (2-a) to read as follows:

(2-a) "Cemetery broker" means a person who sells the exclusive right of sepulture for another person. The term does not include a person who:

(A) is an officer, agent, or employee of the cemetery organization in which the plot is located; or

(B) originally purchased the exclusive right of sepulture for personal use.

SECTION 2. Section 711.012(a), Health and Safety Code, is amended to read as follows:

(a) The Finance Commission of Texas may adopt rules to enforce and administer Sections 711.003, 711.008, 711.021-711.024, 711.032-711.035, 711.038, 711.0381, 711.040-711.042, 711.052, 711.061, and 711.062 relating to perpetual care cemeteries.

SECTION 3. The heading to Section 711.038, Health and Safety Code, is amended to read as follows:

Sec. 711.038. SALE OF PLOTS BY CEMETERY ORGANIZATIONS.

SECTION 4. Section 711.038(e), Health and Safety Code, is amended to read as follows:

(e) A person who is an officer, agent, or employee of the cemetery organization or its affiliate is not required to be licensed to sell a plot in a dedicated cemetery.

SECTION 5. Subchapter C, Chapter 711, Health and Safety Code, is amended by adding Section 711.0381 to read as follows:

Sec. 711.0381. SALE OF PLOTS BY CERTAIN PERSONS. (a) A person who is not an officer, agent, or employee of the cemetery organization in which a plot is located may act as a cemetery broker in the sale of the exclusive right of sepulture in the plot:

(1) if the person is:

(A) the person named as grantee in the quitclaim agreement or other instrument of conveyance;

(B) an heir of the grantee as described by Section 711.039; or

(C) the grantee's agent who is registered with the commission;

(2) subject to the rules of the cemetery organization and the restrictions in the quitclaim agreement or other instrument of conveyance;

(3) after a quitclaim agreement or other instrument of conveyance that is acceptable to the cemetery organization is filed and recorded with the cemetery organization;

(4) after payment in full to the cemetery organization of any fees related to the transfer of ownership of the exclusive right of sepulture in the plot; and

(5) after payment in full of the purchase price of the exclusive right of sepulture in the plot.

(b) A quitclaim agreement or other instrument evidencing the conveyance of the exclusive right of sepulture must be filed with the cemetery organization not later than the third business day after the date of the sale, and must be signed by the person named in the original instrument of conveyance as the transferor or the transferee and by any agent assisting in the transfer of the interment rights.

(c) The sale of the exclusive right of sepulture in a group of interment rights that were conveyed collectively may not be divided without the consent of the cemetery organization.

(d) A person selling the right of sepulture in a plot shall collect and remit to the cemetery organization all fees required under Section 712.028.

(e) A person selling the right of sepulture in a plot must collect and remit all other fees as required by the rules of the cemetery organization. Fees required by the rules of the cemetery organization for the sale of the right of sepulture in a plot under this section may not exceed the fees charged on the sale of the right of sepulture in a plot by the cemetery organization under Section 711.038.

(f) A cemetery broker must keep a record of each sale under this section. The record must include:

(1) the name and address of the purchaser;

(2) the date of the purchase;

(3) a copy of the purchase agreement, with the name and address of the cemetery;

(4) a specific description of the interment rights;

(5) the purchase price;

(6) the amount of fees collected and remitted in accordance with Subsection (d); and

(7) information on the disposal of the purchase agreement, including whether the agreement was conveyed, canceled, or voided.

(g) A person acting as a cemetery broker may only use the quitclaim agreement or other instrument conveying ownership that is authorized by the cemetery organization in which the plot is located.

(h) A person who is not an officer, agent, or employee of the cemetery organization in which the plot is located must register with the Finance Commission of Texas to act as a cemetery broker in the sale of the exclusive right of sepulture in a plot.

SECTION 6. Section 711.052(a), Health and Safety Code, is amended to read as follows:

(a) A person who is an individual, firm, association, corporation, or municipality, or an officer, agent, or employee of an individual, firm, association, corporation, or municipality, commits an offense if the person:

(1) engages in a business for cemetery purposes in this state other than through a corporation organized for that purpose, if a corporation is required by law;

(2) fails or refuses to keep records of interment as required by Sections 711.003 and 711.004;

(3) sells, offers to sell, or advertises for sale a plot or the exclusive right of sepulture in a plot for purposes of speculation or investment; [or]

(4) represents through advertising or printed material that a retail department will be established for the resale of the plots of plot purchasers, that specific improvements will be made in the cemetery, or that specific merchandise or services will be furnished to a plot owner, unless adequate funds or reserves are created by the cemetery organization for the represented purpose; or

(5) fails or refuses to keep records of sales or fails or refuses to collect and remit fees as required by Section 711.0381.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.