H.B. No. 2927
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 and the Department of State Health
Services 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:
(1) whether the cemetery nuisance must be abated by
repair and restoration or by removal of the cemetery; and
(2) the party or parties liable for the costs
associated with the abatement.
SECTION 4. Section 711.008, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) Subsection (a) does not apply to a private family
cemetery established and operating on or before September 1, 2009.
SECTION 5. 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 6. 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 make a good faith
effort to 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, other authorized official, or
next of kin approves a different disposition of the remains.
SECTION 7. 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 8. 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,
711.004, 711.007, 711.008, 711.0105, 711.021-711.024,
711.032-711.036 [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, 711.0105, 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:
(1) enforce and administer Sections 711.010 and
711.011; and
(2) enforce and administer Sections 711.004, 711.007,
711.0105, 711.035, and 711.036 relating to cemeteries that are not
perpetual care cemeteries.
SECTION 9. 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, cellular telephone tower,
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 10. 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 or other governing body does not exist may
petition a district court of the county in which the cemetery is
located to remove any human remains and 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. A
reasonable good faith effort shall be made to remove all remains and
monuments 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 human remains
and the dedication on notice and proof satisfactory to the court
that the removal is in the public interest.
SECTION 11. Subchapter D, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0515 to read as follows:
Sec. 711.0515. ENFORCEMENT BY ATTORNEY GENERAL; RULE OR
ORDER OF TEXAS FUNERAL SERVICE COMMISSION. On request of the Texas
Funeral Service Commission, the attorney general may seek to
enforce by injunction any rule or order adopted by the commission
under this chapter.
SECTION 12. 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 13. 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, or is a direct descendant of, 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 14. Subchapter A, Chapter 713, Health and Safety
Code, is amended by adding Section 713.011 to read as follows:
Sec. 713.011. MAINTENANCE OF MUNICIPAL CEMETERIES. (a) A
municipality that operates or has jurisdiction over a public
cemetery shall maintain the cemetery in a condition that does not
endanger the public health, safety, comfort, or welfare.
(b) A municipality's responsibility to maintain a cemetery
under this section includes:
(1) repairing and maintaining any fences, walls,
buildings, roads, or other improvements;
(2) leveling or straightening markers or memorials;
(3) properly maintaining lawns, shrubbery, and other
plants;
(4) removing debris, including dead flowers and
deteriorated plastic ornaments; and
(5) promptly restoring gravesites following an
interment.
SECTION 15. 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, or is a direct descendant of, a decedent
interred in a cemetery maintained by a trustee under this
subchapter.
SECTION 16. 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 17. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2927 was passed by the House on May 5,
2009, by the following vote: Yeas 142, Nays 0, 1 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2927 was passed by the Senate on May
21, 2009, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor