Texas 2009 - 81st Regular

Texas House Bill HB2927 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	H.B. No. 2927
2	2
3	3
4	4	AN ACT
5	5	relating to the regulation of cemeteries by state and local
6	6	government.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 711.001, Health and Safety Code, is
9	9	amended by amending Subdivisions (2) and (14) and adding
10	10	Subdivisions (2-a) and (20-a) to read as follows:
11	11	(2) "Cemetery" means a place that is used or intended
12	12	to be used for interment, and includes a graveyard, burial park,
13	13	[or] mausoleum, or any other area containing one or more graves.
14	14	(2-a) "Cemetery element" means a grave, memorial,
15	15	crypt, mausoleum, columbarium, or other item that is associated
16	16	with the cemetery, including a fence, road, curb, wall, path, gate,
17	17	or bench and the lighting and landscaping.
18	18	(14) "Grave" means a space of ground that contains
19	19	interred human remains or is in a burial park and that is used or
20	20	intended to be used for interment of human remains in the ground.
21	21	(20-a) "Memorial" means a headstone, tombstone,
22	22	gravestone, monument, or other marker denoting a grave.
23	23	SECTION 2. Sections 711.004(c) and (h), Health and Safety
24	24	Code, are amended to read as follows:
25	25	(c) If the consent required by Subsection (a) cannot be
26	26	obtained, the remains may be removed by permission of a district
27	27	[the county] court of the county in which the cemetery is located.
28	28	Before the date of application to the court for permission to remove
29	29	remains under this subsection, notice must be given to:
30	30	(1) the cemetery organization operating the cemetery
31	31	in which the remains are interred or if the cemetery organization
32	32	cannot be located or does not exist, the Texas Historical
33	33	Commission;
34	34	(2) each person whose consent is required for removal
35	35	of the remains under Subsection (a); and
36	36	(3) any other person that the court requires to be
37	37	served.
38	38	(h) If the remains are not reinterred, the person who
39	39	removes the remains shall:
40	40	(1) make and keep a record of the disposition of the
41	41	remains; and
42	42	(2) not later than the 30th day after the date the
43	43	remains are removed, provide notice by certified mail to the Texas
44	44	Funeral Service Commission and the Department of State Health
45	45	Services of the person's intent not to reinter the remains and the
46	46	reason the remains will not be reinterred.
47	47	SECTION 3. Section 711.007, Health and Safety Code, is
48	48	amended by amending Subsection (a) and adding Subsections (e) and
49	49	(f) to read as follows:
50	50	(a) A district court of the county in which a cemetery is
51	51	located may, by order, abate the cemetery as a nuisance and enjoin
52	52	its continuance if the cemetery is:
53	53	(1) maintained, located, or used in violation of this
54	54	chapter or Chapter 712; or
55	55	(2) neglected so that it is offensive to the
56	56	inhabitants of the surrounding section.
57	57	(e) Notice of an action under this section must be provided
58	58	to the Texas Historical Commission and to the county historical
59	59	commission of the county in which the cemetery is located. The
60	60	Texas Historical Commission and the county historical commission
61	61	may intervene and become parties to the suit.
62	62	(f) In an action under this section, the court shall
63	63	determine:
64	64	(1) whether the cemetery nuisance must be abated by
65	65	repair and restoration or by removal of the cemetery; and
66	66	(2) the party or parties liable for the costs
67	67	associated with the abatement.
68	68	SECTION 4. Section 711.008, Health and Safety Code, is
69	69	amended by adding Subsection (c) to read as follows:
70	70	(c) Subsection (a) does not apply to a private family
71	71	cemetery established and operating on or before September 1, 2009.
72	72	SECTION 5. Sections 711.010(a) and (b), Health and Safety
73	73	Code, are amended to read as follows:
74	74	(a) The owner of property on which an unknown cemetery is
75	75	discovered or on which an abandoned cemetery is located may not
76	76	construct improvements on the property in a manner that would
77	77	further disturb the cemetery until the human remains interred in
78	78	the cemetery are removed under a written order issued by the state
79	79	registrar or the state registrar's designee under Section
80	80	711.004(f) and under an order of a district court as provided by
81	81	this section.
82	82	(b) On petition of the owner of the property, a district
83	83	court of the county in which an unknown cemetery is discovered or an
84	84	abandoned cemetery is located may order the removal of any
85	85	dedication for cemetery purposes that affects the property if the
86	86	court finds that the removal of the dedication is in the public
87	87	interest. If a court orders the removal of a dedication of a
88	88	cemetery and all human remains on the property have not previously
89	89	been removed, the court shall order the removal of the human remains
90	90	from the cemetery to a perpetual care cemetery.
91	91	SECTION 6. Subchapter A, Chapter 711, Health and Safety
92	92	Code, is amended by adding Section 711.0105 to read as follows:
93	93	Sec. 711.0105. METHOD OF REMOVAL OF REMAINS. (a) The
94	94	removal of remains authorized under this chapter shall be
95	95	supervised by a cemetery keeper, a licensed funeral director, a
96	96	medical examiner, a coroner, or a professional archeologist.
97	97	(b) The person removing the remains shall make a good faith
98	98	effort to locate and remove all human remains, any casket or other
99	99	covering of the remains, and any funerary objects associated with
100	100	the remains.
101	101	(c) Remains that have been moved must be reburied unless a
102	102	court, medical examiner, coroner, other authorized official, or
103	103	next of kin approves a different disposition of the remains.
104	104	SECTION 7. Section 711.011, Health and Safety Code, is
105	105	amended by amending Subsection (a) and adding Subsection (c) to
106	106	read as follows:
107	107	(a) A person who discovers an unknown or abandoned cemetery
108	108	shall file notice of the cemetery with the county clerk of the
109	109	county in which the cemetery is located not later than the 10th day
110	110	after the date of the discovery. The notice must contain a legal
111	111	description of the land on which the unknown or abandoned cemetery
112	112	was found and describe the approximate location of the cemetery and
113	113	the evidence of the cemetery that was discovered.
114	114	(c) The county clerk shall send a copy of the notice to the
115	115	Texas Historical Commission and file the notice in the deed records
116	116	of the county, with an index entry referencing the land on which the
117	117	cemetery was discovered.
118	118	SECTION 8. Section 711.012, Health and Safety Code, is
119	119	amended to read as follows:
120	120	Sec. 711.012. RULES. (a) The Finance Commission of Texas
121	121	may adopt rules to enforce and administer Sections 711.003,
122	122	711.004, 711.007, 711.008, 711.0105, 711.021-711.024,
123	123	711.032-711.036 [711.032-711.035], 711.038, 711.040-711.042,
124	124	711.052, 711.061, and 711.062 relating to perpetual care
125	125	cemeteries.
126	126	(b) The Texas Funeral Service Commission may adopt rules,
127	127	establish procedures, and prescribe forms to enforce and administer
128	128	Sections 711.003, 711.008, 711.0105, 711.021-711.034 [711.010,
129	129	711.011, 711.021-711.035], 711.038, 711.041, 711.042, 711.061, and
130	130	711.062 relating to cemeteries that are not perpetual care
131	131	cemeteries.
132	132	(c) The Texas Historical Commission may adopt rules to:
133	133	(1) enforce and administer Sections 711.010 and
134	134	711.011; and
135	135	(2) enforce and administer Sections 711.004, 711.007,
136	136	711.0105, 711.035, and 711.036 relating to cemeteries that are not
137	137	perpetual care cemeteries.
138	138	SECTION 9. Section 711.035, Health and Safety Code, is
139	139	amended by amending Subsection (d) and adding Subsection (g) to
140	140	read as follows:
141	141	(d) A railroad, street, road, alley, pipeline, telephone,
142	142	telegraph, electric line, wind turbine, cellular telephone tower,
143	143	or other public utility or thoroughfare may not be placed through,
144	144	over, or across a part of a dedicated cemetery without the consent
145	145	of:
146	146	(1) the directors of the cemetery organization that
147	147	owns or operates the cemetery; or
148	148	(2) at least two-thirds of the owners of plots in the
149	149	cemetery.
150	150	(g) Property is considered to be dedicated cemetery
151	151	property if:
152	152	(1) one or more human burials are present on the
153	153	property; or
154	154	(2) a dedication of the property for cemetery use is
155	155	recorded in the deed records of the county where the land is
156	156	located.
157	157	SECTION 10. Section 711.036, Health and Safety Code, is
158	158	amended by amending Subsection (b) and adding Subsection (c) to
159	159	read as follows:
160	160	(b) An owner of land adjacent to a cemetery for which a
161	161	cemetery organization or other governing body does not exist may
162	162	petition a district court of the county in which the cemetery is
163	163	located to remove any human remains and the dedication for all or
164	164	any portion of the cemetery. In addition to the notice required by
165	165	Section 711.004, notice of a petition filed under this subsection
166	166	must be given to the Texas Historical Commission and to the county
167	167	historical commission of the county in which the cemetery is
168	168	located. The Texas Historical Commission and the county historical
169	169	commission may intervene and become parties to the suit. Unknown
170	170	next of kin of deceased persons buried in the cemetery shall be
171	171	served by publication of a notice in a newspaper of general
172	172	circulation in the county in which the cemetery is located, or if
173	173	there is not a newspaper of general circulation in the county, in a
174	174	newspaper of general circulation in an adjacent county. A
175	175	reasonable good faith effort shall be made to remove all remains and
176	176	monuments from the cemetery or that portion of the cemetery for
177	177	which the dedication is to be removed.
178	178	(c) The court shall order the removal of the human remains
179	179	and the dedication on notice and proof satisfactory to the court
180	180	that the removal is in the public interest.
181	181	SECTION 11. Subchapter D, Chapter 711, Health and Safety
182	182	Code, is amended by adding Section 711.0515 to read as follows:
183	183	Sec. 711.0515. ENFORCEMENT BY ATTORNEY GENERAL; RULE OR
184	184	ORDER OF TEXAS FUNERAL SERVICE COMMISSION. On request of the Texas
185	185	Funeral Service Commission, the attorney general may seek to
186	186	enforce by injunction any rule or order adopted by the commission
187	187	under this chapter.
188	188	SECTION 12. Sections 713.009(b), (c), (d), and (e), Health
189	189	and Safety Code, are amended to read as follows:
190	190	(b) If a municipality does not take possession and control
191	191	of a cemetery under Subsection (a) or acts to take possession and
192	192	control but does not perform the work required by Subsections (d),
193	193	(e), and (f), a district court on petition of a resident of the
194	194	county in which the cemetery is located shall by order appoint a
195	195	willing nonprofit corporation organized under the Texas Non-Profit
196	196	Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
197	197	Statutes) to act in place of the municipality to protect the public
198	198	health, safety, comfort, and welfare. The district court and the
199	199	nonprofit corporation must comply with the requirements of Chapter
200	200	715 in assuming responsibility for the cemetery.
201	201	(c) In accordance with Chapter 715, a [A] district court
202	202	appointing a nonprofit corporation has continuing jurisdiction to
203	203	monitor and review the corporation's operation of the cemetery.
204	204	The court may, on its own motion, revoke the appointment and appoint
205	205	another willing nonprofit corporation without the necessity of
206	206	another petition. The court shall review the subsequent
207	207	appointment if a county resident petitions for review of the
208	208	appointment.
209	209	(d) A resolution of the municipality or an order of the
210	210	court under this section must specify that, not later than the 60th
211	211	day after the date of giving notice of a declaration of intent to
212	212	take possession and control, the municipality or corporation, as
213	213	appropriate, shall present a plan to:
214	214	(1) remove or repair any fences, walls, or other
215	215	improvements;
216	216	(2) straighten and reset any memorial stones or
217	217	embellishments that are a threat or danger to public health,
218	218	safety, comfort, or welfare; and
219	219	(3) take proper steps to restore and maintain the
220	220	premises in an orderly and decent condition.
221	221	(e) The notice must be given by mail to all persons shown by
222	222	the records in the county clerk's office to have an interest in the
223	223	cemetery, to the Texas Historical Commission, and to all interested
224	224	persons by publication in a newspaper of general circulation in the
225	225	municipality.
226	226	SECTION 13. Section 713.010, Health and Safety Code, is
227	227	amended to read as follows:
228	228	Sec. 713.010. PRIVATE CARE OF GRAVES. This subchapter does
229	229	not affect the right of a person who has an interest in a grave or
230	230	burial lot, or who is related within the fifth [third] degree by
231	231	affinity or consanguinity, as determined under Chapter 573,
232	232	Government Code, to, or is a direct descendant of, a decedent
233	233	interred in the cemetery, to beautify or maintain a grave or burial
234	234	lot individually or at the person's own expense in accordance with
235	235	reasonable municipal rules.
236	236	SECTION 14. Subchapter A, Chapter 713, Health and Safety
237	237	Code, is amended by adding Section 713.011 to read as follows:
238	238	Sec. 713.011. MAINTENANCE OF MUNICIPAL CEMETERIES. (a) A
239	239	municipality that operates or has jurisdiction over a public
240	240	cemetery shall maintain the cemetery in a condition that does not
241	241	endanger the public health, safety, comfort, or welfare.
242	242	(b) A municipality's responsibility to maintain a cemetery
243	243	under this section includes:
244	244	(1) repairing and maintaining any fences, walls,
245	245	buildings, roads, or other improvements;
246	246	(2) leveling or straightening markers or memorials;
247	247	(3) properly maintaining lawns, shrubbery, and other
248	248	plants;
249	249	(4) removing debris, including dead flowers and
250	250	deteriorated plastic ornaments; and
251	251	(5) promptly restoring gravesites following an
252	252	interment.
253	253	SECTION 15. Section 713.025, Health and Safety Code, is
254	254	amended to read as follows:
255	255	Sec. 713.025. PRIVATE CARE OF GRAVES. This subchapter does
256	256	not affect the right of a person to maintain a grave or burial lot in
257	257	a cemetery if the person:
258	258	(1) has an interest in the grave or burial lot; or
259	259	(2) is related within the fifth [third] degree by
260	260	affinity or consanguinity, as determined under Chapter 573,
261	261	Government Code, to, or is a direct descendant of, a decedent
262	262	interred in a cemetery maintained by a trustee under this
263	263	subchapter.
264	264	SECTION 16. Section 715.005(a), Health and Safety Code, is
265	265	amended to read as follows:
266	266	(a) The written plan accompanying the nonprofit
267	267	corporation's petition must include:
268	268	(1) a description of the actions to be taken by the
269	269	nonprofit corporation to restore, operate, and maintain the
270	270	historic cemetery, which must include:
271	271	(A) repair of any fences;
272	272	(B) straightening, leveling, and resetting of
273	273	memorials or embellishments in the cemetery that are a threat or
274	274	danger to the public health, safety, comfort, or welfare; [and]
275	275	(C) taking proper steps to restore and
276	276	continuously operate and maintain the cemetery in an orderly and
277	277	decent fashion that does not endanger the public health, safety,
278	278	comfort, or welfare;
279	279	(D) restoration of damaged memorials; and
280	280	(E) restoration and maintenance of cemetery
281	281	elements as defined by Section 711.001;
282	282	(2) the anticipated costs of the actions described
283	283	under Subdivision (1);
284	284	(3) the time that the actions described by Subdivision
285	285	(1) will be commenced and the time that it is anticipated the
286	286	actions will be completed;
287	287	(4) a description of the actions to be taken by the
288	288	nonprofit corporation for the proper conduct of its business and
289	289	for the protection of the cemetery and the principles, plans, and
290	290	ideals on which the cemetery was established;
291	291	(5) the percentage of the total purchase price of each
292	292	plot in the cemetery sold and conveyed by the nonprofit corporation
293	293	to be deposited in the trust fund established under Section
294	294	715.011, which must be at least 10 percent of the total purchase
295	295	price of the plot; and
296	296	(6) a description of the records to be maintained by
297	297	the nonprofit corporation, including records regarding:
298	298	(A) the sale of plots in the cemetery;
299	299	(B) the interments in the cemetery;
300	300	(C) the total purchase price received from the
301	301	sale of each plot in the cemetery;
302	302	(D) the percentage of the total purchase price of
303	303	each plot in the cemetery deposited in the trust fund established
304	304	under Section 715.011; and
305	305	(E) the income received by the nonprofit
306	306	corporation from the trust fund established under Section 715.011
307	307	and the manner in which the income is used by the nonprofit
308	308	corporation for the maintenance and care of the cemetery.
309	309	SECTION 17. This Act takes effect September 1, 2009.
310	310	______________________________ ______________________________
311	311	President of the Senate Speaker of the House
312	312	I certify that H.B. No. 2927 was passed by the House on May 5,
313	313	2009, by the following vote: Yeas 142, Nays 0, 1 present, not
314	314	voting.
315	315	______________________________
316	316	Chief Clerk of the House
317	317	I certify that H.B. No. 2927 was passed by the Senate on May
318	318	21, 2009, by the following vote: Yeas 31, Nays 0.
319	319	______________________________
320	320	Secretary of the Senate
321	321	APPROVED: _____________________
322	322	Date
323	323	_____________________
324	324	Governor