By: Carona  S.B. No. 661
         (In the Senate - Filed February 19, 2013; February 25, 2013,
  read first time and referred to Committee on Business and Commerce;
  March 6, 2013, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 9, Nays 0; March 6, 2013,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 661 By:  Carona
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to cemeteries and perpetual care cemetery corporations;
  creating an offense.
         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 (5-a) and amending Subdivisions (6)
  and (21) to read as follows:
               (5-a)  "Cremains receptacle" means a marker, boulder,
  bench, pedestal, pillar, or other aboveground vessel that contains
  niches for cremated remains.
               (6)  "Cremated remains" or "cremains" means the bone
  fragments remaining after the cremation process, which may include
  the residue of any foreign materials that were cremated with the
  human remains.
               (21)  "Niche" means a space in a columbarium or
  cremains receptacle used or intended to be used for the placement of
  cremated remains in an urn or other container.
         SECTION 2.  Subsections (a) and (b), Section 711.012, Health
  and Safety Code, are amended to read as follows:
         (a)  The Finance Commission of Texas may adopt rules to
  enforce and administer Sections 711.003, 711.004, 711.007,
  711.008, 711.0105, 711.021-711.024, 711.032-711.036, 711.038,
  711.040-711.042, 711.052, 711.061, 711.063, and 711.064 [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, 711.0105, 711.021-711.034, 711.038,
  711.0395, 711.041, 711.042, 711.052, 711.061, 711.063, and 711.064
  [711.062] relating to cemeteries that are not perpetual care
  cemeteries.
         SECTION 3.  Section 711.021, Health and Safety Code, is
  amended by amending Subsection (b) and adding Subsection (b-1) to
  read as follows:
         (b)  A corporation conducting a business for cemetery
  purposes, including the sale of plots, may be formed only as
  provided by this section. The corporation must be a filing entity
  or foreign filing entity, as those terms are defined by Section
  1.002, Business Organizations Code [either:
               [(1)     a nonprofit corporation organized in accordance
  with Section A or B, Article 3.01, Texas Non-Profit Corporation Act
  (Article 1396-3.01, Vernon's Texas Civil Statutes), or with Section
  711.022; or
               [(2)  a private corporation operated for profit].
         (b-1)  The formation and governance of a nonprofit
  corporation for cemetery purposes is subject to Sections 711.022
  and 711.023.
         SECTION 4.  Section 711.034, Health and Safety Code, is
  amended by amending Subsection (e) and adding Subsection (e-1) to
  read as follows:
         (e)  The certificate or declaration may contain a provision
  permitting the directors by order to resurvey and change the shape
  and size of the property for which the associated map or plat is
  filed if that change does not disturb any interred remains. Except
  as provided by Subsection (e-1), if [If] a change is made, the
  cemetery organization shall:
               (1)  file an amended map or plat not later than the last
  day of the next calendar quarter; and
               (2)  [shall] indicate any change in a specific unique
  number assigned to a plot, crypt, lawn crypt, or columbarium niche.
         (e-1)  A cemetery organization that holds a certificate of
  authority to operate a perpetual care cemetery under Chapter 712 is
  not required to file an amended map or plat if:
               (1)  the only change to the property is:
                     (A)  the placement of a cremains receptacle that
  contains not more than four niches on a plot; or
                     (B)  the alteration of an existing cremains
  receptacle on a plot; and
               (2)  the cemetery organization maintains records, as
  required by rules adopted by the Finance Commission of Texas, that
  specify the location of the cremains receptacle.
         SECTION 5.  Subsections (a) and (c), Section 711.051, Health
  and Safety Code, are amended to read as follows:
         (a)  A cemetery corporation that violates this chapter or
  Chapter 712 forfeits the corporation's charter and right to do
  business in this state unless the corporation corrects the
  violation before the 30th [91st] day after the date of receiving
  notice of the violation from the attorney general.
         (c)  If the violation is not corrected before the 30th [91st]
  day after the date of the notice, the attorney general shall bring
  suit or quo warranto proceedings for the forfeiture of the
  corporation's charter and dissolution of the corporation in a [the]
  district court of Travis County or of any county in which the
  violation occurred.
         SECTION 6.  Subsection (a) and (d), Section 711.052, Health
  and Safety Code, are 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;
               (5)  makes more than one interment in a plot in a
  cemetery operated by a cemetery organization other than as provided
  by Section 711.0395; or
               (6)  removes remains from a plot in a cemetery operated
  by a cemetery organization without complying with Section 711.004.
         (d)  Except as provided by this subsection, an [An] offense
  under this section is a Class A misdemeanor. An offense under
  Subsection (a)(5) or (6) is a felony of the second degree.
         SECTION 7.  Section 712.003, Health and Safety Code, is
  amended by amending Subsection (c) and adding Subsection (c-1) to
  read as follows:
         (c)  A corporation chartered on or after September 1, 1993,
  and before September 1, 2013, must have:
               (1)  a minimum capital of $75,000; and
               (2)  a minimum of $75,000 in capital for each
  certificate of authority to operate a perpetual care cemetery
  issued to the corporation on or after September 1, 2013.
         (c-1)  A corporation whose certificate of formation takes
  effect on or after September 1, 2013, must have a minimum of $75,000
  in capital for each certificate of authority to operate a perpetual
  care cemetery issued to the corporation.
         SECTION 8.  Subsection (b), Section 712.0039, Health and
  Safety Code, is amended to read as follows:
         (b)  If the proposed transferee would own more than 50
  percent of the stock or other ownership or membership interest of
  the corporation and is not a certificate holder, the proposed
  transferee shall file any necessary documents with the secretary of
  state and an application for a certificate of authority with the
  department as required by this chapter.  If the proposed transferee
  is required to apply for a certificate of authority under this
  subsection, the [The] transfer of the perpetual care fund may not
  occur until after the date a certificate of authority is issued to
  the transferee applicant.
         SECTION 9.  Subsection (g), Section 712.0441, Health and
  Safety Code, is amended to read as follows:
         (g)  If a violation described in Subsection (a) has not been
  corrected before the 31st day after the date the corporation
  receives [with 90 days after the receipt of] written notice [by the
  corporation] from the commissioner of the violation, the
  commissioner may report the violation to the attorney general, who
  shall bring suit or quo warranto proceedings for the forfeiture of
  the corporation's charter and dissolution of the corporation in a
  [the] district court of Travis County or of any county in which the
  corporation's [its] perpetual care cemetery is operated.
         SECTION 10.  Subsections (a) and (c), Section 711.051 and
  Subsection (g), Section 712.0441, Health and Safety Code, as
  amended by this Act, apply only to a violation that occurs on or
  after the effective date of this Act. A violation that occurs
  before the effective date of this Act is governed by the law
  applicable to the violation immediately before that date, and the
  former law is continued in effect for that purpose.
         SECTION 11.  This Act takes effect September 1, 2013.
 
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