Texas 2011 - 82nd Regular

Texas House Bill HB2495 Compare Versions

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1	1	By: Hernandez Luna (Senate Sponsor - Carona) H.B. No. 2495
2	2	(In the Senate - Received from the House April 29, 2011;
3	3	May 4, 2011, read first time and referred to Committee on Business
4	4	and Commerce; May 10, 2011, reported favorably by the following
5	5	vote: Yeas 9, Nays 0; May 10, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to cemeteries and perpetual care cemetery corporations;
11	11	providing a penalty.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 711.001(3), Health and Safety Code, is
14	14	amended to read as follows:
15	15	(3) "Cemetery organization" means:
16	16	(A) an unincorporated association of plot owners
17	17	not operated for profit that is authorized by its articles of
18	18	association to conduct a business for cemetery purposes; or
19	19	(B) a corporation, as defined by Section
20	20	712.001(b)(3) [either for profit or not for profit], that is
21	21	authorized by its certificate of formation or its registration
22	22	[articles of incorporation] to conduct a business for cemetery
23	23	purposes.
24	24	SECTION 2. Section 711.002, Health and Safety Code, is
25	25	amended by adding Subsection (a-1) to read as follows:
26	26	(a-1) If the person with the right to control the
27	27	disposition of the decedent's remains fails to make final
28	28	arrangements or appoint another person to make final arrangements
29	29	for the disposition before the earlier of the 6th day after the date
30	30	the person received notice of the decedent's death or the 10th day
31	31	after the date the decedent died, the person is presumed to be
32	32	unable or unwilling to control the disposition, and:
33	33	(1) the person's right to control the disposition is
34	34	terminated; and
35	35	(2) the right to control the disposition is passed to
36	36	the following persons in the following priority:
37	37	(A) any other person in the same priority class
38	38	under Subsection (a) as the person whose right was terminated; or
39	39	(B) a person in a different priority class, in
40	40	the priority listed in Subsection (a).
41	41	SECTION 3. Section 711.061, Health and Safety Code, is
42	42	amended to read as follows:
43	43	Sec. 711.061. REQUIREMENTS FOR LAWN CRYPTS. (a) A lawn
44	44	crypt may not be installed unless:
45	45	(1) the lawn crypt is constructed of concrete and
46	46	reinforced steel or other comparably durable material;
47	47	(2) the lawn crypt is installed on not less than six
48	48	inches of rock, gravel, or other drainage material;
49	49	(3) the lawn crypt provides a method to drain water out
50	50	of the lawn crypt;
51	51	(4) the outside top surface of the lawn crypt at the
52	52	time of installation is at least 1-1/2 feet below the surface of the
53	53	ground as required by Section 714.001(a)(2) and is capable of
54	54	withstanding the weight of the soil and sod above the top surface
55	55	and the weight of machinery and equipment normally used in the
56	56	maintenance of the cemetery;
57	57	(5) the lawn crypt is installed in a garden or other
58	58	section of the cemetery that has been dedicated for lawn crypt
59	59	interment purposes in accordance with Section 711.034; and
60	60	(6) [except as provided by Section 711.062,] the lawn
61	61	crypt is installed in multiple units of 10 or more or as prescribed
62	62	by Subsection (b).
63	63	(b) A lawn crypt that is part of a private estate may be
64	64	installed in fewer than 10 units. For purposes of this subsection,
65	65	a private estate is a small section of a cemetery that has the
66	66	following characteristics:
67	67	(1) is sold under a single contract;
68	68	(2) is usually offset from other burial sites;
69	69	(3) allows for interment of several members of the
70	70	same family or their designees; and
71	71	(4) is identified on the plat for cemetery property as
72	72	a private estate in accordance with Section 711.034.
73	73	SECTION 4. Subchapter E, Chapter 711, Health and Safety
74	74	Code, is amended by adding Sections 711.063 and 711.064 to read as
75	75	follows:
76	76	Sec. 711.063. CONSTRUCTION; DEFAULT. (a) A cemetery in
77	77	which undeveloped lawn crypt spaces are being sold or reserved for
78	78	sale shall begin construction on the lawn crypt section not later
79	79	than 48 months after the date of the first sale or reservation,
80	80	whichever is earlier, and must complete construction not later than
81	81	60 months after the date of the first sale or reservation, whichever
82	82	is earlier.
83	83	(b) If construction of a lawn crypt section described by
84	84	Subsection (a) does not begin or has not been completed by the dates
85	85	specified in Subsection (a), on the buyer's written request, the
86	86	cemetery shall refund the entire amount paid for the undeveloped
87	87	lawn crypt space not later than the 30th day after the date of the
88	88	buyer's request.
89	89	Sec. 711.064. CONTRACT DISCLOSURES. (a) A sales contract
90	90	for an undeveloped lawn crypt space must contain terms, whether in
91	91	English or Spanish, that inform the buyer:
92	92	(1) that the buyer may, after providing written
93	93	notice, cancel the contract for failure by the cemetery or
94	94	contractor to construct the lawn crypt space within the time limits
95	95	specified by Section 711.063(a) and receive a refund of the entire
96	96	amount paid under the contract for the undeveloped lawn crypt space
97	97	as described by Section 711.063(b); and
98	98	(2) of the options available under a fully paid
99	99	contract if the person to be interred in the undeveloped lawn crypt
100	100	space dies before completion of the related lawn crypt section,
101	101	including the option to:
102	102	(A) select a replacement lawn crypt space or
103	103	other interment acceptable to the buyer or the buyer's
104	104	representative;
105	105	(B) elect temporary interment of the human
106	106	remains or cremated remains in an existing mausoleum space until
107	107	the undeveloped lawn crypt space is completed, at which time the
108	108	cemetery shall disinter and reinter the human remains or cremated
109	109	remains at no additional charge to the buyer; or
110	110	(C) cancel the contract on written notice of the
111	111	buyer or the buyer's representative and receive a refund of the
112	112	entire amount paid under the contract for the undeveloped lawn
113	113	crypt space if:
114	114	(i) the cemetery does not offer a temporary
115	115	interment option; or
116	116	(ii) the buyer or the buyer's
117	117	representative does not accept a replacement lawn crypt or other
118	118	interment.
119	119	(b) A sales contract for undeveloped lawn crypt space must
120	120	comply with applicable regulations of the Federal Trade Commission,
121	121	including 16 C.F.R. Section 433.2, with respect to a contract
122	122	payable in installments.
123	123	(c) Each notice required by this section must be written in
124	124	plain language designed to be easily understood by the average
125	125	consumer and must be printed in an easily readable font and type
126	126	size.
127	127	SECTION 5. Section 712.001(b)(3), Health and Safety Code,
128	128	is amended to read as follows:
129	129	(3) "Corporation" means a filing entity or foreign
130	130	filing entity, as those terms are defined by Section 1.002,
131	131	Business Organizations Code, or an entity [corporation] that is
132	132	organized under this chapter, or any corresponding statute in
133	133	effect before September 1, 1993, to operate one or more perpetual
134	134	care cemeteries in this state.
135	135	SECTION 6. The heading to Section 712.003, Health and
136	136	Safety Code, is amended to read as follows:
137	137	Sec. 712.003. REGISTRATION [INCORPORATION] REQUIRED;
138	138	MINIMUM CAPITAL.
139	139	SECTION 7. Section 712.003(a), Health and Safety Code, is
140	140	amended to read as follows:
141	141	(a) A perpetual care cemetery may not be operated in this
142	142	state unless a certificate of formation for a domestic filing
143	143	entity or registration to transact business for a foreign filing
144	144	entity is [articles of incorporation are] filed with the secretary
145	145	of state showing:
146	146	(1) subscriptions and payments in cash for 100 percent
147	147	of the entity's ownership or membership interests [the
148	148	corporation's full capital stock];
149	149	(2) the location of its perpetual care cemetery; and
150	150	(3) a certificate showing the deposit in its fund of
151	151	the minimum amount required under Section 712.004.
152	152	SECTION 8. Subchapter A, Chapter 712, Health and Safety
153	153	Code, is amended by adding Sections 712.0032 through 712.00395 to
154	154	read as follows:
155	155	Sec. 712.0032. CERTIFICATE OF AUTHORITY REQUIREMENT. A
156	156	corporation must hold a certificate of authority issued under this
157	157	chapter to operate a perpetual care cemetery.
158	158	Sec. 712.0033. CERTIFICATE OF AUTHORITY APPLICATION; FEES.
159	159	(a) To obtain a certificate of authority to operate a perpetual care
160	160	cemetery, an applicant must, not later than the 30th day after the
161	161	date a corporation files its certificate of formation or
162	162	application for registration with the secretary of state:
163	163	(1) file an application, made under oath, on a form
164	164	prescribed by the department; and
165	165	(2) pay a filing fee in an amount set by the Finance
166	166	Commission of Texas under Section 712.008.
167	167	(b) If the corporation fails to comply with Subsection (a),
168	168	the commissioner may instruct the secretary of state to remove the
169	169	corporation from the secretary's active records or cancel the
170	170	corporation's registration. On an instruction from the
171	171	commissioner under this subsection, the secretary of state shall
172	172	remove the corporation from the secretary's active records or
173	173	cancel the corporation's registration and serve notice of the
174	174	cancellation on the corporation by registered or certified letter,
175	175	addressed to the corporation's address.
176	176	(c) A fee or cost paid under this chapter in connection with
177	177	an application or renewal is not refundable.
178	178	Sec. 712.0034. QUALIFICATIONS FOR CERTIFICATE OF
179	179	AUTHORITY; INVESTIGATION. (a) The commissioner may investigate an
180	180	applicant before issuing a certificate of authority.
181	181	(b) To qualify for a certificate of authority under this
182	182	chapter, an applicant must demonstrate to the satisfaction of the
183	183	commissioner that:
184	184	(1) the applicant's business ability, experience,
185	185	character, financial condition, and general fitness warrant the
186	186	public's confidence;
187	187	(2) the cemetery operations manager has at least two
188	188	years of experience in cemetery management;
189	189	(3) the issuance of the certificate of authority is in
190	190	the public interest;
191	191	(4) the applicant, a principal of the applicant, or a
192	192	person who controls the applicant does not owe the department a
193	193	delinquent fee, assessment, administrative penalty, or other
194	194	amount imposed under this chapter or a rule adopted or order issued
195	195	under this chapter; and
196	196	(5) the applicant corporation:
197	197	(A) is in good standing and statutory compliance
198	198	with this state;
199	199	(B) is authorized to engage in the perpetual care
200	200	cemetery business in this state; and
201	201	(C) does not owe any delinquent franchise or
202	202	other taxes to this state.
203	203	Sec. 712.0035. ISSUANCE OF CERTIFICATE OF AUTHORITY. (a)
204	204	The commissioner shall issue a certificate of authority if the
205	205	commissioner finds that:
206	206	(1) the applicant meets the qualifications listed in
207	207	Section 712.0034 and it is reasonable to believe that the
208	208	applicant's cemetery business will be conducted fairly and
209	209	lawfully, according to applicable state and federal law, and in a
210	210	manner commanding the public's trust and confidence;
211	211	(2) the issuance of the certificate of authority is in
212	212	the public interest;
213	213	(3) the documentation and forms required to be
214	214	submitted by the applicant are acceptable; and
215	215	(4) the applicant has satisfied all requirements for
216	216	issuance of a certificate of authority.
217	217	(b) The applicant is entitled, on request, to a hearing on a
218	218	denial of the application. The request must be filed with the
219	219	commissioner not later than the 30th day after the date the notice
220	220	of denial is mailed. The hearing must be held not later than the
221	221	60th day after the date of the request unless the administrative law
222	222	judge extends the period for good cause or the parties agree to a
223	223	later hearing date. The hearing is a contested case under Chapter
224	224	2001, Government Code.
225	225	Sec. 712.0036. TERM OF CERTIFICATE OF AUTHORITY. An
226	226	initial certificate of authority expires March 1 of the year after
227	227	the year the certificate is issued. The certificate must be renewed
228	228	at that time and by March 1 of each following year.
229	229	Sec. 712.0037. RENEWAL OF CERTIFICATE OF AUTHORITY. (a) As
230	230	a condition of renewal, a certificate holder must meet the
231	231	qualifications and satisfy the requirements that apply to an
232	232	applicant for a new certificate of authority. Additionally, not
233	233	later than the certificate's annual renewal date, a certificate
234	234	holder shall:
235	235	(1) pay an annual renewal fee in an amount established
236	236	by Finance Commission of Texas rule; and
237	237	(2) submit a renewal report under oath and in the form
238	238	and medium required by the commissioner that demonstrates that the
239	239	certificate holder meets the qualifications and requirements for
240	240	holding a certificate.
241	241	(b) If the department does not receive a certificate
242	242	holder's renewal fee and complete renewal report on or before the
243	243	certificate's renewal date, the commissioner:
244	244	(1) shall notify the certificate holder in writing
245	245	that the certificate holder must submit the renewal report and pay
246	246	the renewal fee not later than the 30th day after the certificate's
247	247	renewal date; and
248	248	(2) may require the certificate holder to pay a late
249	249	fee, in an amount established by Finance Commission of Texas rule
250	250	and not subject to appeal, for each business day after the
251	251	certificate's renewal date that the commissioner does not receive
252	252	the completed renewal report and renewal fee.
253	253	(c) On timely receipt of a certificate holder's complete
254	254	renewal report and renewal fee and any late fee, the department
255	255	shall review the report and the commissioner may:
256	256	(1) renew the certificate of authority; or
257	257	(2) refuse to renew the certificate of authority and
258	258	take other action the commissioner considers appropriate.
259	259	(d) The applicant on request is entitled to a hearing to
260	260	contest the commissioner's refusal to renew the certificate. The
261	261	request must be filed with the commissioner not later than the 30th
262	262	day after the date the notice of refusal to renew is mailed. The
263	263	hearing is a contested case under Chapter 2001, Government Code.
264	264	(e) The holder or principal of or the person in control of
265	265	the holder of an expired certificate of authority, or the holder or
266	266	principal of or person in control of the holder of a certificate of
267	267	authority surrendered under Section 712.00395, who wishes to
268	268	conduct activities for which a certificate of authority is required
269	269	under this chapter shall file a new application for a certificate of
270	270	authority and satisfy all requirements for the certificate that
271	271	apply at the time the new application is filed.
272	272	Sec. 712.0038. TRANSFER OR ASSIGNMENT PROHIBITED. A
273	273	certificate of authority issued under this chapter may not be
274	274	transferred or assigned.
275	275	Sec. 712.0039. TRANSFER OF BUSINESS OWNERSHIP; CHANGE OF
276	276	CONTROL. (a) A certificate holder shall notify the department in
277	277	writing of a transfer of ownership of the certificate holder's
278	278	business or a transfer of 25 percent or more of the stock or other
279	279	ownership or membership interest of the corporation as follows:
280	280	(1) in the case of a voluntary transfer, not later than
281	281	the seventh day after the date the contract for transfer is
282	282	executed; and
283	283	(2) in the case of an involuntary transfer, not later
284	284	than one business day after receiving notice of the impending
285	285	foreclosure or other involuntary transfer.
286	286	(b) If the proposed transferee is not a certificate holder,
287	287	the proposed transferee shall file any necessary documents with the
288	288	secretary of state and an application for a certificate of
289	289	authority with the department as required by this chapter. The
290	290	transfer of the perpetual care fund may not occur until after the
291	291	date a certificate of authority is issued to the transferee
292	292	applicant.
293	293	(c) If the commissioner denies the application, a hearing
294	294	may be requested and conducted according to the procedures in
295	295	Section 712.0035(b).
296	296	Sec. 712.00395. SURRENDER OF CERTIFICATE OF AUTHORITY; FEE.
297	297	(a) A certificate holder may apply to the commissioner for
298	298	permission to surrender the certificate of authority if the holder:
299	299	(1) is a cemetery that qualified for an exemption
300	300	under Section 711.021(g), but voluntarily elected to become a
301	301	perpetual care cemetery;
302	302	(2) has performed not more than 10 burials per year
303	303	during each of the last five years;
304	304	(3) is not larger than 10 acres; and
305	305	(4) has a perpetual care fund that is less than
306	306	$30,000.
307	307	(b) The application for permission to surrender a
308	308	certificate of authority must be sworn to and be on a form
309	309	prescribed by the department.
310	310	(c) The certificate holder shall publish a notice of
311	311	intention to surrender a certificate of authority to operate a
312	312	perpetual care cemetery one time in a newspaper of general
313	313	circulation in each county in which the cemetery is located. The
314	314	notice must:
315	315	(1) be in the form and include the information
316	316	required by the banking commissioner;
317	317	(2) state that:
318	318	(A) the certificate holder is applying to
319	319	surrender the holder's certificate of authority to operate a
320	320	perpetual care cemetery;
321	321	(B) a cemetery plot owner or cemetery plot
322	322	owner's heir may request a hearing to contest the surrender; and
323	323	(C) a request for a hearing must be filed with the
324	324	department not later than the 14th day after the date the notice is
325	325	published.
326	326	(d) The certificate holder shall submit, not later than the
327	327	seventh day after the date the notice is published, a publisher's
328	328	affidavit evidencing publication of the notice.
329	329	(e) If a request for hearing is timely filed by a plot owner
330	330	or plot owner's heir, the commissioner shall hold a hearing in
331	331	accordance with Chapter 2001, Government Code.
332	332	(f) If a request for a hearing is not timely filed by a plot
333	333	owner or plot owner's heir, the commissioner may approve or deny the
334	334	application.
335	335	(g) If an application is denied, and if a hearing is not held
336	336	before the denial, the applicant may request a hearing to appeal the
337	337	denial of the application. The applicant's request for a hearing
338	338	must be filed with the commissioner not later than the 30th day
339	339	after the date the notice of denial is mailed. The hearing is a
340	340	contested case under Chapter 2001, Government Code.
341	341	(h) An order approving the surrender of a certificate of
342	342	authority must impose four conditions that are not subject to
343	343	objection. Failure to satisfy any of these conditions constitutes
344	344	a violation of the commissioner's order, and the certificate holder
345	345	is subject to an enforcement action under this chapter. The order
346	346	approving the surrender must:
347	347	(1) require the perpetual care fund to remain in an
348	348	irrevocable trust, with the income to be used for perpetual care of
349	349	the cemetery in general and for those plots that were purchased
350	350	before the certificate was surrendered;
351	351	(2) require that the cemetery remove any signage or
352	352	other announcement stating that the cemetery is a perpetual care
353	353	cemetery;
354	354	(3) require each contract and other evidence of
355	355	ownership entered into after the date of the order to clearly state
356	356	that the cemetery is not regulated by the Texas Department of
357	357	Banking and may not use the term "perpetual care cemetery"; and
358	358	(4) state the location of cemetery records and require
359	359	the cemetery to:
360	360	(A) retain existing records regarding the
361	361	perpetual care fund for five years after the date of the order; and
362	362	(B) continue to comply with all recordkeeping
363	363	requirements of Chapter 711.
364	364	(i) Not later than the 10th day after the date an order
365	365	approving the surrender of a certificate of authority is signed,
366	366	the certificate holder shall deliver the original certificate of
367	367	authority to the commissioner along with a written notice of
368	368	surrender that includes the location of the certificate holder's
369	369	records and the name, address, telephone number, and other contact
370	370	information for an individual who is authorized to provide access
371	371	to the records.
372	372	(j) The surrender of a certificate of authority does not
373	373	reduce or eliminate a certificate holder's administrative, civil,
374	374	or criminal liability arising from any acts or omissions that occur
375	375	before the surrender of the certificate.
376	376	SECTION 9. Section 712.022, Health and Safety Code, is
377	377	amended to read as follows:
378	378	Sec. 712.022. OPERATION OF PERPETUAL CARE CEMETERY. A
379	379	corporation authorized by law to operate a perpetual care cemetery
380	380	but not doing so may do so if the corporation:
381	381	(1) complies with the requirements of this chapter for
382	382	obtaining a certificate of authority [notifies the commissioner];
383	383	and
384	384	(2) establishes a fund as provided by Section 712.021
385	385	in an amount equal to the larger of:
386	386	(A) the amount that would have been paid into the
387	387	fund if the cemetery operated as a perpetual care cemetery from the
388	388	date of the cemetery's first sale of plots; or
389	389	(B) the minimum amount provided by Section
390	390	712.004.
391	391	SECTION 10. Section 712.044(a), Health and Safety Code, is
392	392	amended to read as follows:
393	393	(a) The commissioner may examine on a periodic basis[,
394	394	annually or more often] as the commissioner reasonably considers
395	395	necessary or appropriate to protect the interest of plot owners and
396	396	efficiently administer and enforce this chapter:
397	397	(1) the books and records of a corporation relating to
398	398	its fund, including deposits to or withdrawals from the fund,
399	399	income of the fund, and uses and expenditures of that income;
400	400	(2) the books and records of a corporation relating to
401	401	sales of undeveloped mausoleum spaces and any preconstruction trust
402	402	established by the corporation as provided by Section 712.063,
403	403	including deposits to or withdrawals from the preconstruction
404	404	trust, income of the preconstruction trust, and uses and
405	405	expenditures of principal and income of the preconstruction trust;
406	406	and
407	407	(3) the consumer complaint files of a corporation
408	408	relating to the fund, sales of undeveloped mausoleum spaces, a
409	409	preconstruction trust, or to discharge of the corporation's
410	410	perpetual care responsibilities, minutes of the corporation's
411	411	board of directors, cemetery dedication statements and plat maps,
412	412	and mausoleum and lawn crypt construction contracts and
413	413	specifications.
414	414	SECTION 11. Section 712.0441, Health and Safety Code, is
415	415	amended by amending Subsection (f) and adding Subsection (f-1) to
416	416	read as follows:
417	417	(f) The commissioner may issue an order requiring
418	418	restitution by a person [corporation] to the cemetery's [its] fund
419	419	or to a preconstruction trust if, after notice and opportunity for
420	420	hearing held in accordance with the procedures for a contested case
421	421	hearing under Chapter 2001, Government Code [the Administrative
422	422	Procedure and Texas Register Act], the commissioner finds that the
423	423	corporation has not made a deposit in the fund as required by
424	424	Section 712.028 or in the preconstruction trust as required by
425	425	Section 712.063.
426	426	(f-1) The commissioner may issue an order requiring
427	427	restitution by a person if, after notice and opportunity for a
428	428	hearing held in accordance with the procedures for a contested case
429	429	hearing under Chapter 2001, Government Code, the commissioner finds
430	430	that the corporation has not ordered memorials, as defined by
431	431	Section 711.001(20-a), in compliance with the deadlines
432	432	established by rules adopted under this chapter.
433	433	SECTION 12. Section 712.0442(a), Health and Safety Code, is
434	434	amended to read as follows:
435	435	(a) If, after a hearing conducted as provided by Chapter
436	436	2001, Government Code, the trier of fact finds that a violation of
437	437	this chapter or a rule of the Finance Commission of Texas
438	438	establishes a pattern of wilful disregard for the requirements of
439	439	this chapter or rules of the finance commission, the trier of fact
440	440	may [shall] recommend to the commissioner that the maximum
441	441	administrative penalty permitted under Section 712.0441 be imposed
442	442	on the person committing the violation or that the commissioner
443	443	cancel or not renew the corporation's certificate of authority
444	444	[person's permit] under this chapter [Chapter 154, Finance Code,]
445	445	if the person holds such a certificate [permit].
446	446	SECTION 13. Subchapter C, Chapter 712, Health and Safety
447	447	Code, is amended by adding Sections 712.0443, 712.0444, and
448	448	712.0445 to read as follows:
449	449	Sec. 712.0443. CEASE AND DESIST ORDER. (a) The
450	450	commissioner may issue an order to cease and desist to a person if:
451	451	(1) the commissioner finds by examination or other
452	452	credible evidence that the person has violated a law of this state
453	453	relating to perpetual care cemeteries, including a violation of
454	454	this chapter, the commissioner's final order, or a Finance
455	455	Commission of Texas rule; and
456	456	(2) the violation was not corrected by the 31st day
457	457	after the date the person receives written notice of the violation
458	458	from the department.
459	459	(b) An order proposed under this section shall be served on
460	460	the person and must state the grounds for the proposed order with
461	461	reasonable certainty and the proposed effective date, which may not
462	462	be less than the 20th day after the date the order is mailed or
463	463	delivered. The order becomes effective on the proposed date unless
464	464	the person requests a hearing not later than the 19th day after the
465	465	date the order is mailed or delivered. If the person requests a
466	466	hearing, the hearing shall be conducted in accordance with the
467	467	procedures for a contested case hearing under Chapter 2001,
468	468	Government Code.
469	469	Sec. 712.0444. EMERGENCY ORDER. (a) The commissioner may
470	470	issue an emergency order that takes effect immediately if the
471	471	commissioner finds that immediate and irreparable harm is
472	472	threatened to the public or a plot owner, marker purchaser, or other
473	473	person whose interests are protected by this chapter.
474	474	(b) An emergency order remains in effect unless stayed by
475	475	the commissioner.
476	476	(c) The person named in the emergency order may request in
477	477	writing, not later than the 18th day after the date the order is
478	478	mailed, a hearing to show that the emergency order should be stayed.
479	479	On receipt of the request, the commissioner shall set a time for the
480	480	hearing not later than the 21st day after the date the commissioner
481	481	received the request, unless extended at the request of the person
482	482	named in the order.
483	483	(d) The hearing is an administrative hearing relating to the
484	484	validity of findings that support immediate effect of the order.
485	485	Sec. 712.0445. RECEIVERSHIP PROCEEDINGS. (a) In
486	486	conjunction with a proceeding to forfeit the right to do business in
487	487	this state brought by the attorney general, the attorney general
488	488	may seek the appointment of a receiver. This remedy is in addition
489	489	to other grounds for the appointment of a receiver.
490	490	(b) If the receiver is a private party, the receiver shall
491	491	be compensated from the corporation or, if the corporation has no
492	492	assets available to pay the receiver, from the income only of the
493	493	perpetual care fund. The receiver may not invade the principal of
494	494	the fund.
495	495	(c) The court may appoint a department employee as receiver.
496	496	If the receiver is a department employee, the employee may not
497	497	receive compensation for serving as receiver in addition to the
498	498	employee's regular salary. The department may receive
499	499	reimbursement from the corporation for the travel expenses and the
500	500	fully allocated personnel costs associated with the employee's
501	501	service as receiver.
502	502	(d) A department employee serving as receiver is not
503	503	personally liable for damages arising from the employee's official
504	504	act or omission unless the act or omission is corrupt or malicious.
505	505	The attorney general shall defend an action brought against an
506	506	employee serving as receiver because of an official act or omission
507	507	as receiver regardless of whether the employee has terminated
508	508	service with the department before the action commences.
509	509	SECTION 14. Section 712.048, Health and Safety Code, is
510	510	amended by adding Subsection (c) to read as follows:
511	511	(c) A person commits an offense if the person collects money
512	512	for the purchase of a memorial, as defined by Section 711.001, and
513	513	knowingly defalcates or misappropriates the funds. An offense
514	514	under this subsection is punishable as if it were an offense under
515	515	Section 32.45, Penal Code. This subsection does not prevent an
516	516	aggrieved party or the attorney general from maintaining a civil
517	517	action for the recovery of damages, or the commissioner from
518	518	maintaining an administrative action for restitution, caused by an
519	519	injury resulting from an offense under this subsection.
520	520	SECTION 15. Sections 711.062, 712.0031, and 712.0441(e),
521	521	Health and Safety Code, are repealed.
522	522	SECTION 16. A person who owns and operates a perpetual care
523	523	cemetery on September 1, 2011, that on that date complies with
524	524	Sections 712.003 and 712.0031, Health and Safety Code, as those
525	525	sections existed before amendment or repeal by this Act, is
526	526	automatically granted a certificate of authority. The certificate
527	527	of authority expires March 1, 2012, unless the certificate holder
528	528	renews the certificate in accordance with Section 712.0037, Health
529	529	and Safety Code, as added by this Act.
530	530	SECTION 17. This Act takes effect September 1, 2011.
531	531	* * * * *