81R7517 YDB-F

By: Howard of Travis H.B. No. 2927

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of cemeteries by state and local government.

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

SECTION 1. Section 711.001, Health and Safety Code, is amended by amending Subdivisions (2) and (14) and adding Subdivisions (2-a) and (20-a) to read as follows:

(2) "Cemetery" means a place that is used or intended to be used for interment, and includes a graveyard, burial park, [or] mausoleum, or any other area containing one or more graves.

(2-a) "Cemetery element" means a grave, memorial, crypt, mausoleum, columbarium, or other item that is associated with the cemetery, including a fence, road, curb, wall, path, gate, or bench and the lighting and landscaping.

(14) "Grave" means a space of ground that contains interred human remains or is in a burial park and that is used or intended to be used for interment of human remains in the ground.

(20-a) "Memorial" means a headstone, tombstone, gravestone, monument, or other marker denoting a grave.

SECTION 2. Sections 711.004(c) and (h), Health and Safety Code, are amended to read as follows:

(c) If the consent required by Subsection (a) cannot be obtained, the remains may be removed by permission of a district [the county] court of the county in which the cemetery is located. Before the date of application to the court for permission to remove remains under this subsection, notice must be given to:

(1) the cemetery organization operating the cemetery in which the remains are interred or if the cemetery organization cannot be located or does not exist, the Texas Historical Commission;

(2) each person whose consent is required for removal of the remains under Subsection (a); and

(3) any other person that the court requires to be served.

(h) If the remains are not reinterred, the person who removes the remains shall:

(1) make and keep a record of the disposition of the remains; and

(2) not later than the 30th day after the date the remains are removed, provide notice by certified mail to the Texas Funeral Service Commission of the person's intent not to reinter the remains and the reason the remains will not be reinterred.

SECTION 3. Section 711.007, Health and Safety Code, is amended by amending Subsection (a) and adding Subsections (e) and (f) to read as follows:

(a) A district court of the county in which a cemetery is located may, by order, abate the cemetery as a nuisance and enjoin its continuance if the cemetery is:

(1) maintained, located, or used in violation of this chapter or Chapter 712; or

(2) neglected so that it is offensive to the inhabitants of the surrounding section.

(e) Notice of an action under this section must be provided to the Texas Historical Commission and to the county historical commission of the county in which the cemetery is located. The Texas Historical Commission and the county historical commission may intervene and become parties to the suit.

(f) In an action under this section, the court shall determine whether the cemetery nuisance must be abated by repair and restoration or by removal of the cemetery.

SECTION 4. Sections 711.010(a) and (b), Health and Safety Code, are amended to read as follows:

(a) The owner of property on which an unknown cemetery is discovered or on which an abandoned cemetery is located may not construct improvements on the property in a manner that would further disturb the cemetery until the human remains interred in the cemetery are removed under a written order issued by the state registrar or the state registrar's designee under Section 711.004(f) and under an order of a district court as provided by this section.

(b) On petition of the owner of the property, a district court of the county in which an unknown cemetery is discovered or an abandoned cemetery is located may order the removal of any dedication for cemetery purposes that affects the property if the court finds that the removal of the dedication is in the public interest. If a court orders the removal of a dedication of a cemetery and all human remains on the property have not previously been removed, the court shall order the removal of the human remains from the cemetery to a perpetual care cemetery.

SECTION 5. Subchapter A, Chapter 711, Health and Safety Code, is amended by adding Section 711.0105 to read as follows:

Sec. 711.0105. METHOD OF REMOVAL OF REMAINS. (a) The removal of remains authorized under this chapter shall be supervised by a cemetery keeper, a licensed funeral director, a medical examiner, a coroner, or a professional archeologist.

(b) The person removing the remains shall locate and remove all human remains, any casket or other covering of the remains, and any funerary objects associated with the remains.

(c) Remains that have been moved must be reburied unless a court, medical examiner, coroner, or other appropriate official approves a different disposition of the remains.

SECTION 6. Section 711.011, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a) A person who discovers an unknown or abandoned cemetery shall file notice of the cemetery with the county clerk of the county in which the cemetery is located not later than the 10th day after the date of the discovery. The notice must contain a legal description of the land on which the unknown or abandoned cemetery was found and describe the approximate location of the cemetery and the evidence of the cemetery that was discovered.

(c) The county clerk shall 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.

SECTION 7. Section 711.012, Health and Safety Code, is amended to read as follows:

Sec. 711.012. RULES. (a) The Finance Commission of Texas may adopt rules to enforce and administer Sections 711.003, 711.008, 711.021-711.024, 711.032-711.034 [711.032-711.035], 711.038, 711.040-711.042, 711.052, 711.061, and 711.062 relating to perpetual care cemeteries.

(b) The Texas Funeral Service Commission may adopt rules, establish procedures, and prescribe forms to enforce and administer Sections 711.003, 711.008, 711.021-711.034 [711.010, 711.011, 711.021-711.035], 711.038, 711.041, 711.042, 711.061, and 711.062 relating to cemeteries that are not perpetual care cemeteries.

(c) The Texas Historical Commission may adopt rules to enforce and administer Sections 711.004, 711.007, 711.010, 711.011, 711.035, and 711.036.

SECTION 8. Section 711.035, Health and Safety Code, is amended by amending Subsection (d) and adding Subsection (g) to read as follows:

(d) A railroad, street, road, alley, pipeline, telephone, telegraph, electric line, wind turbine, or other public utility or thoroughfare may not be placed through, over, or across a part of a dedicated cemetery without the consent of:

(1) the directors of the cemetery organization that owns or operates the cemetery; or

(2) at least two-thirds of the owners of plots in the cemetery.

(g) Property is considered to be dedicated cemetery property if:

(1) one or more human burials are present on the property; or

(2) a dedication of the property for cemetery use is recorded in the deed records of the county where the land is located.

SECTION 9. Section 711.036, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b) An owner of land adjacent to a cemetery for which a cemetery organization does not exist may petition a district court of the county in which the cemetery is located to remove the dedication for all or any portion of the cemetery. In addition to the notice required by Section 711.004, notice of a petition filed under this subsection must be given to the Texas Historical Commission and to the county historical commission of the county in which the cemetery is located. The Texas Historical Commission and the county historical commission may intervene and become parties to the suit. Unknown next of kin of deceased persons buried in the cemetery shall 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. All remains and monuments must be removed from the cemetery or that portion of the cemetery for which the dedication is to be removed.

(c) The court shall order the removal of the dedication on notice and proof satisfactory to the court that the removal of the dedication is in the public interest.

SECTION 10. Sections 713.009(b), (c), (d), and (e), Health and Safety Code, are amended to read as follows:

(b) If a municipality does not take possession and control of a cemetery under Subsection (a) or acts to take possession and control but does not perform the work required by Subsections (d), (e), and (f), a district court on petition of a resident of the county in which the cemetery is located shall by order appoint a willing nonprofit corporation organized under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) to act in place of the municipality to protect the public health, safety, comfort, and welfare. The district court and the nonprofit corporation must comply with the requirements of Chapter 715 in assuming responsibility for the cemetery.

(c) In accordance with Chapter 715, a [A] district court appointing a nonprofit corporation has continuing jurisdiction to monitor and review the corporation's operation of the cemetery. The court may, on its own motion, revoke the appointment and appoint another willing nonprofit corporation without the necessity of another petition. The court shall review the subsequent appointment if a county resident petitions for review of the appointment.

(d) A resolution of the municipality or an order of the court under this section must specify that, not later than the 60th day after the date of giving notice of a declaration of intent to take possession and control, the municipality or corporation, as appropriate, shall present a plan to:

(1) remove or repair any fences, walls, or other improvements;

(2) straighten and reset any memorial stones or embellishments that are a threat or danger to public health, safety, comfort, or welfare; and

(3) take proper steps to restore and maintain the premises in an orderly and decent condition.

(e) The notice must be given by mail to all persons shown by the records in the county clerk's office to have an interest in the cemetery, to the Texas Historical Commission, and to all interested persons by publication in a newspaper of general circulation in the municipality.

SECTION 11. Section 713.010, Health and Safety Code, is amended to read as follows:

Sec. 713.010. PRIVATE CARE OF GRAVES. This subchapter does not affect the right of a person who has an interest in a grave or burial lot, or who is related within the fifth [third] degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a decedent interred in the cemetery, to beautify or maintain a grave or burial lot individually or at the person's own expense in accordance with reasonable municipal rules.

SECTION 12. Section 713.025, Health and Safety Code, is amended to read as follows:

Sec. 713.025. PRIVATE CARE OF GRAVES. This subchapter does not affect the right of a person to maintain a grave or burial lot in a cemetery if the person:

(1) has an interest in the grave or burial lot; or

(2) is related within the fifth [third] degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a decedent interred in a cemetery maintained by a trustee under this subchapter.

SECTION 13. Section 715.005(a), Health and Safety Code, is amended to read as follows:

(a) The written plan accompanying the nonprofit corporation's petition must include:

(1) a description of the actions to be taken by the nonprofit corporation to restore, operate, and maintain the historic cemetery, which must include:

(A) repair of any fences;

(B) straightening, leveling, and resetting of memorials or embellishments in the cemetery that are a threat or danger to the public health, safety, comfort, or welfare; [and]

(C) taking proper steps to restore and continuously operate and maintain the cemetery in an orderly and decent fashion that does not endanger the public health, safety, comfort, or welfare;

(D) restoration of damaged memorials; and

(E) restoration and maintenance of cemetery elements as defined by Section 711.001;

(2) the anticipated costs of the actions described under Subdivision (1);

(3) the time that the actions described by Subdivision (1) will be commenced and the time that it is anticipated the actions will be completed;

(4) a description of the actions to be taken by the nonprofit corporation for the proper conduct of its business and for the protection of the cemetery and the principles, plans, and ideals on which the cemetery was established;

(5) the percentage of the total purchase price of each plot in the cemetery sold and conveyed by the nonprofit corporation to be deposited in the trust fund established under Section 715.011, which must be at least 10 percent of the total purchase price of the plot; and

(6) a description of the records to be maintained by the nonprofit corporation, including records regarding:

(A) the sale of plots in the cemetery;

(B) the interments in the cemetery;

(C) the total purchase price received from the sale of each plot in the cemetery;

(D) the percentage of the total purchase price of each plot in the cemetery deposited in the trust fund established under Section 715.011; and

(E) the income received by the nonprofit corporation from the trust fund established under Section 715.011 and the manner in which the income is used by the nonprofit corporation for the maintenance and care of the cemetery.

SECTION 14. This Act takes effect September 1, 2009.