Texas 2013 - 83rd Regular

Texas Senate Bill SB661 Compare Versions

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1	1	By: Carona S.B. No. 661
2	2	(Laubenberg)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to cemeteries and perpetual care cemetery corporations;
8	8	creating an offense.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 711.001, Health and Safety Code, is
11	11	amended by adding Subdivision (5-a) and amending Subdivisions (6)
12	12	and (21) to read as follows:
13	13	(5-a) "Cremains receptacle" means a marker, boulder,
14	14	bench, pedestal, pillar, or other aboveground vessel that contains
15	15	niches for cremated remains.
16	16	(6) "Cremated remains" or "cremains" means the bone
17	17	fragments remaining after the cremation process, which may include
18	18	the residue of any foreign materials that were cremated with the
19	19	human remains.
20	20	(21) "Niche" means a space in a columbarium or
21	21	cremains receptacle used or intended to be used for the placement of
22	22	cremated remains in an urn or other container.
23	23	SECTION 2. Subsections (a) and (b), Section 711.012, Health
24	24	and Safety Code, are amended to read as follows:
25	25	(a) The Finance Commission of Texas may adopt rules to
26	26	enforce and administer Sections 711.003, 711.004, 711.007,
27	27	711.008, 711.0105, 711.021-711.024, 711.032-711.036, 711.038,
28	28	711.040-711.042, 711.052, 711.061, 711.063, and 711.064 [711.062]
29	29	relating to perpetual care cemeteries.
30	30	(b) The Texas Funeral Service Commission may adopt rules,
31	31	establish procedures, and prescribe forms to enforce and administer
32	32	Sections 711.003, 711.008, 711.0105, 711.021-711.034, 711.038,
33	33	711.0395, 711.041, 711.042, 711.052, 711.061, 711.063, and 711.064
34	34	[711.062] relating to cemeteries that are not perpetual care
35	35	cemeteries.
36	36	SECTION 3. Section 711.021, Health and Safety Code, is
37	37	amended by amending Subsection (b) and adding Subsection (b-1) to
38	38	read as follows:
39	39	(b) A corporation conducting a business for cemetery
40	40	purposes, including the sale of plots, may be formed only as
41	41	provided by this section. The corporation must be a filing entity
42	42	or foreign filing entity, as those terms are defined by Section
43	43	1.002, Business Organizations Code [either:
44	44	[(1) a nonprofit corporation organized in accordance
45	45	with Section A or B, Article 3.01, Texas Non-Profit Corporation Act
46	46	(Article 1396-3.01, Vernon's Texas Civil Statutes), or with Section
47	47	711.022; or
48	48	[(2) a private corporation operated for profit].
49	49	(b-1) The formation and governance of a nonprofit
50	50	corporation for cemetery purposes is subject to Sections 711.022
51	51	and 711.023.
52	52	SECTION 4. Section 711.034, Health and Safety Code, is
53	53	amended by amending Subsection (e) and adding Subsection (e-1) to
54	54	read as follows:
55	55	(e) The certificate or declaration may contain a provision
56	56	permitting the directors by order to resurvey and change the shape
57	57	and size of the property for which the associated map or plat is
58	58	filed if that change does not disturb any interred remains. Except
59	59	as provided by Subsection (e-1), if [If] a change is made, the
60	60	cemetery organization shall:
61	61	(1) file an amended map or plat not later than the last
62	62	day of the next calendar quarter; and
63	63	(2) [shall] indicate any change in a specific unique
64	64	number assigned to a plot, crypt, lawn crypt, or columbarium niche.
65	65	(e-1) A cemetery organization that holds a certificate of
66	66	authority to operate a perpetual care cemetery under Chapter 712 is
67	67	not required to file an amended map or plat if:
68	68	(1) the only change to the property is:
69	69	(A) the placement of a cremains receptacle that
70	70	contains not more than four niches on a plot; or
71	71	(B) the alteration of an existing cremains
72	72	receptacle on a plot; and
73	73	(2) the cemetery organization maintains records, as
74	74	required by rules adopted by the Finance Commission of Texas, that
75	75	specify the location of the cremains receptacle.
76	76	SECTION 5. Subsections (a) and (c), Section 711.051, Health
77	77	and Safety Code, are amended to read as follows:
78	78	(a) A cemetery corporation that violates this chapter or
79	79	Chapter 712 forfeits the corporation's charter and right to do
80	80	business in this state unless the corporation corrects the
81	81	violation before the 30th [91st] day after the date of receiving
82	82	notice of the violation from the attorney general.
83	83	(c) If the violation is not corrected before the 30th [91st]
84	84	day after the date of the notice, the attorney general shall bring
85	85	suit or quo warranto proceedings for the forfeiture of the
86	86	corporation's charter and dissolution of the corporation in a [the]
87	87	district court of Travis County or of any county in which the
88	88	violation occurred.
89	89	SECTION 6. Subsections (a) and (d), Section 711.052, Health
90	90	and Safety Code, are amended to read as follows:
91	91	(a) A person who is an individual, firm, association,
92	92	corporation, or municipality, or an officer, agent, or employee of
93	93	an individual, firm, association, corporation, or municipality,
94	94	commits an offense if the person:
95	95	(1) engages in a business for cemetery purposes in
96	96	this state other than through a corporation organized for that
97	97	purpose, if a corporation is required by law;
98	98	(2) fails or refuses to keep records of interment as
99	99	required by Sections 711.003 and 711.004;
100	100	(3) sells, offers to sell, or advertises for sale a
101	101	plot or the exclusive right of sepulture in a plot for purposes of
102	102	speculation or investment; [or]
103	103	(4) represents through advertising or printed
104	104	material that a retail department will be established for the
105	105	resale of the plots of plot purchasers, that specific improvements
106	106	will be made in the cemetery, or that specific merchandise or
107	107	services will be furnished to a plot owner, unless adequate funds or
108	108	reserves are created by the cemetery organization for the
109	109	represented purpose;
110	110	(5) makes more than one interment in a plot in a
111	111	cemetery operated by a cemetery organization other than as provided
112	112	by Section 711.0395; or
113	113	(6) removes remains from a plot in a cemetery operated
114	114	by a cemetery organization without complying with Section 711.004.
115	115	(d) Except as provided by this subsection, an [An] offense
116	116	under this section is a Class A misdemeanor. An offense under
117	117	Subsection (a)(5) or (6) is a felony of the second degree.
118	118	SECTION 7. Section 712.003, Health and Safety Code, is
119	119	amended by amending Subsection (c) and adding Subsection (c-1) to
120	120	read as follows:
121	121	(c) A corporation chartered on or after September 1, 1993,
122	122	and before September 1, 2013, must have:
123	123	(1) a minimum capital of $75,000; and
124	124	(2) a minimum of $75,000 in capital for each
125	125	certificate of authority to operate a perpetual care cemetery
126	126	issued to the corporation on or after September 1, 2013.
127	127	(c-1) A corporation whose certificate of formation takes
128	128	effect on or after September 1, 2013, must have a minimum of $75,000
129	129	in capital for each certificate of authority to operate a perpetual
130	130	care cemetery issued to the corporation.
131	131	SECTION 8. Subsection (b), Section 712.0039, Health and
132	132	Safety Code, is amended to read as follows:
133	133	(b) If the proposed transferee would own more than 50
134	134	percent of the stock or other ownership or membership interest of
135	135	the corporation and is not a certificate holder, the proposed
136	136	transferee shall file any necessary documents with the secretary of
137	137	state and an application for a certificate of authority with the
138	138	department as required by this chapter. If the proposed transferee
139	139	is required to apply for a certificate of authority under this
140	140	subsection, the [The] transfer of the perpetual care fund may not
141	141	occur until after the date a certificate of authority is issued to
142	142	the transferee applicant.
143	143	SECTION 9. Subsection (g), Section 712.0441, Health and
144	144	Safety Code, is amended to read as follows:
145	145	(g) If a violation described in Subsection (a) has not been
146	146	corrected before the 31st day after the date the corporation
147	147	receives [with 90 days after the receipt of] written notice [by the
148	148	corporation] from the commissioner of the violation, the
149	149	commissioner may report the violation to the attorney general, who
150	150	shall bring suit or quo warranto proceedings for the forfeiture of
151	151	the corporation's charter and dissolution of the corporation in a
152	152	[the] district court of Travis County or of any county in which the
153	153	corporation's [its] perpetual care cemetery is operated.
154	154	SECTION 10. Subsections (a) and (c), Section 711.051, and
155	155	Subsection (g), Section 712.0441, Health and Safety Code, as
156	156	amended by this Act, apply only to a violation that occurs on or
157	157	after the effective date of this Act. A violation that occurs
158	158	before the effective date of this Act is governed by the law
159	159	applicable to the violation immediately before that date, and the
160	160	former law is continued in effect for that purpose.
161	161	SECTION 11. This Act takes effect September 1, 2013.