81R27960 YDB-F
By: Flynn H.B. No. 2369
Substitute the following for H.B. No. 2369:
By: Coleman C.S.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:
(1) 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; and
(2) Subchapter C-1 relating to registration of
cemetery brokers.
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, Health and Safety Code, is
amended by amending Subsection (e) and adding Subsection (f) 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.
(f) The Texas Department of Banking shall provide model
quitclaim agreements or other instruments of conveyance for use in
transferring the exclusive right of sepulture under this section.
A cemetery organization may modify the model forms to include
additional provisions considered necessary to conform to the
practices and policies of the cemetery organization in which the
plot is located.
SECTION 5. Subchapter C, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0381 to read as follows:
Sec. 711.0381. RESALE OF PLOTS BY CERTAIN PERSONS. (a) A
person may not act as a cemetery broker in the resale of the
exclusive right of sepulture in a plot unless the person is a
registered cemetery broker or is exempt from registration under
Subchapter C-1.
(b) Resale of the exclusive right of sepulture in a plot is
subject to the rules of the cemetery organization and any
restrictions in the certificate of ownership, quitclaim agreement,
or other instrument of conveyance. A quitclaim agreement or other
instrument evidencing the conveyance of the exclusive right of
sepulture must be:
(1) in a form authorized by or otherwise acceptable to
the cemetery organization, subject to Subsection (c);
(2) signed by:
(A) the grantee named in the certificate of
ownership or other instrument of conveyance as filed and recorded
in the cemetery organization's office in accordance with Section
711.038, as the seller or transferor;
(B) the designated purchaser or transferee; and
(C) each cemetery broker or other agent assisting
in the transfer of the interment rights; and
(3) filed and recorded with the cemetery organization
not later than the third business day after the date of the sale.
(c) On request of a person acting as a cemetery broker, a
cemetery organization shall provide its rules, conveyance forms,
and written guidelines and procedures for brokered sales, if any.
(d) 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.
(e) A person acting as a cemetery broker that sells the
right of sepulture in a plot shall collect and remit to the cemetery
organization:
(1) all fees required under Section 712.028; and
(2) any other fee required by the rules of the cemetery
organization subject to Subsection (f).
(f) A fee required by a rule of the cemetery organization
for the sale of the right of sepulture in a plot under this section
may not exceed the fee charged on the sale of the right of sepulture
in a plot by the cemetery organization under Section 711.038.
(g) A person acting as 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 (e); and
(7) information on the disposal of the purchase
agreement, including whether the agreement was conveyed, canceled,
or voided.
SECTION 6. Chapter 711, Health and Safety Code, is amended
by adding Subchapter C-1 to read as follows:
SUBCHAPTER C-1. CEMETERY BROKER REGISTRATION
Sec. 711.045. DEFINITIONS. In this subchapter:
(1) "Commission" means the Finance Commission of
Texas.
(2) "Commissioner" means the banking commissioner of
Texas.
(3) "Department" means the Texas Department of
Banking.
Sec. 711.046. CEMETERY BROKER REGISTRATION. (a) A person
may not act as a cemetery broker in the sale of the exclusive right
of sepulture in a plot unless the person is registered under this
subchapter as a cemetery broker or is exempt from registration
under Section 711.047. To register under this subchapter, a
cemetery broker shall file with the department a sworn, notarized
statement that contains:
(1) the name and address of the cemetery broker;
(2) the name, address, and telephone number of the
representative of the cemetery broker to be contacted regarding a
written complaint; and
(3) any Internet or other electronic mail address of
the cemetery broker.
(b) The registration of a cemetery broker is valid until
withdrawn or revoked. Periodic renewal of the registration is not
required.
(c) A registered cemetery broker shall update the
information contained in the registration statement not later than
the 60th day after the date the information changes.
(d) The department may charge a cemetery broker a reasonable
fee to cover the costs of filing and maintaining the registration
statement and administering this chapter. The administration fee
may not exceed $100 per year.
Sec. 711.047. EXEMPTIONS. This subchapter does not apply
to a person offering to sell or selling the exclusive right of
sepulture in a plot if the person is:
(1) an officer, agent, employee, or affiliate of the
cemetery organization in which the plot is located, acting at the
direction or under the control of the cemetery organization;
(2) an employee of a registered cemetery broker;
(3) with respect to the specific plot for sale:
(A) a grantee named in the certificate of
ownership or other instrument of conveyance for the plot as filed
and recorded in the cemetery organization's office under Section
711.038;
(B) a spouse or other heir of the named grantee as
described by Section 711.039;
(C) an executor, administrator, or guardian of
the named grantee appointed by court order; or
(D) an attorney-in-fact for the named grantee
under a durable power of attorney if the person is not otherwise
engaged in the business of a cemetery broker and does not solicit
appointment as attorney-in-fact for the purpose of offering to sell
or selling the exclusive right of sepulture of the named grantee; or
(4) otherwise exempt in accordance with rules adopted
by the commission as necessary to protect the public health and
safety.
Sec. 711.048. PUBLIC INFORMATION; COMPLAINTS. (a) The
department shall prepare a brochure with information of public
interest:
(1) explaining matters relating to the resale of plots
by a cemetery broker, including disclosure that the sale is not
complete until registered with the cemetery organization; and
(2) describing the department's procedures for filing
and resolving a complaint.
(b) The department shall:
(1) provide each registered cemetery broker with the
number of brochures the department considers appropriate for a fee
to recover the department's costs; and
(2) make the brochure available to the public and
appropriate state agencies.
(c) A cemetery broker shall provide the brochure on the
initial inquiry to the cemetery broker by a plot owner or the
representative of a plot owner regarding the potential resale of
the exclusive right of sepulture in the plot.
(d) A cemetery broker is subject to rules adopted under
Section 11.307, Finance Code, regarding the manner in which the
cemetery broker provides consumers with information on how to file
complaints with the department. The rules must be consistent with
the obligations imposed by this section.
(e) If the department receives a signed written complaint
from a person concerning a cemetery broker, the department shall
notify the cemetery broker's designated representative in writing
of the complaint not later than the 31st day after the date the
complaint was received and provide a copy of the complaint to the
representative. The department may:
(1) require the cemetery broker to resolve the
complaint or to provide the department with a response to the
complaint; or
(2) direct the cemetery broker in writing to take
specific action to resolve the complaint.
Sec. 711.049. TERMINATION OF REGISTRATION. (a) A cemetery
broker may withdraw the cemetery broker's registration at any time.
(b) After notice and hearing, the commissioner may revoke
the registration of a registered cemetery broker that:
(1) fails to pay the annual administration fee and
fails to cure the default not later than the 30th day after the date
written notice of the default is mailed by the department to the
cemetery broker;
(2) fails or refuses to comply with the department's
written request for a response to a complaint; or
(3) the commissioner concludes, after considering a
complaint filed under this chapter, has engaged in an intentional
course of conduct that:
(A) violates federal or state law; or
(B) constitutes improper, fraudulent, or
dishonest dealings.
(c) The commissioner shall state the basis of the decision
in an order revoking the registration of a cemetery broker. The
cemetery broker may appeal an order revoking registration in the
manner provided by Chapter 2001, Government Code.
SECTION 7. 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;
(5) offers or receives monetary inducement to solicit
business for a cemetery broker;
(6) fails or refuses to keep records of resales or to
collect and remit fees as required by Section 711.0381; or
(7) fails or refuses to register as a cemetery broker
as required by Subchapter C-1.
SECTION 8. (a) Except as provided by Subsections (b) and
(c) of this section, 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.
Except as provided by Subsections (b) and (c) of this section, if
this Act does not receive the vote necessary for immediate effect,
this Act takes effect September 1, 2009.
(b) Section 711.038(f), Health and Safety Code, as added by
this Act, takes effect September 1, 2010.
(c) Subchapter C-1, Chapter 711, Health and Safety Code, as
added by this Act, takes effect January 1, 2010, except that
Sections 711.048(a) through (c), Health and Safety Code, as added
by this Act, take effect September 1, 2010.