Texas 2017 - 85th Regular

Texas House Bill HB3265 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	85R24390 DMS-F
2	2	By: Howard H.B. No. 3265
3	3	Substitute the following for H.B. No. 3265:
4	4	By: Gervin-Hawkins C.S.H.B. No. 3265
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to cemeteries.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 711.001, Health and Safety Code, is
12	12	amended to read as follows:
13	13	Sec. 711.001. DEFINITIONS. In this chapter:
14	14	(1) "Abandoned cemetery" means a cemetery, regardless
15	15	of whether it appears on a map or in deed records, that is not owned
16	16	or operated by a cemetery organization, does not have another
17	17	person legally responsible for its care, and is not maintained by
18	18	any person.
19	19	(2) [(1)] "Burial park" means a tract of land that is
20	20	used or intended to be used for interment in graves.
21	21	(3) [(1-a)] "Campus" means the area:
22	22	(A) within the boundaries of one or more adjacent
23	23	tracts, parcels, or lots under common ownership;
24	24	(B) on which the principal church building and
25	25	related structures and facilities of an organized religious society
26	26	or sect are located; and
27	27	(C) that may be subject to one or more easements
28	28	for street, utility, or pipeline purposes.
29	29	(4) [(2)] "Cemetery" means a place that is used or
30	30	intended to be used for interment, and includes a graveyard, burial
31	31	park, mausoleum, or any other area containing one or more graves.
32	32	(5) [(2-a)] "Cemetery element" means a grave,
33	33	memorial, crypt, mausoleum, columbarium, or other item that is
34	34	associated with the cemetery, including a fence, road, curb, wall,
35	35	path, gate, or bench and the lighting and landscaping.
36	36	(6) [(2-b)] "Cemetery broker" means a person who sells
37	37	the exclusive right of sepulture for another person. The term does
38	38	not include a person who:
39	39	(A) is an officer, agent, or employee of the
40	40	cemetery organization in which the plot is located and who is exempt
41	41	from registration under Subchapter C-1; or
42	42	(B) originally purchased the exclusive right of
43	43	sepulture for personal use.
44	44	(7) [(3)] "Cemetery organization" means:
45	45	(A) an unincorporated association of plot owners
46	46	not operated for profit that is authorized by its articles of
47	47	association to conduct a business for cemetery purposes; or
48	48	(B) a corporation, as defined by Section
49	49	712.001(b)(3), that is authorized by its certificate of formation
50	50	or its registration to conduct a business for cemetery purposes.
51	51	(8) [(4)] "Cemetery purpose" means a purpose
52	52	necessary or incidental to establishing, maintaining, managing,
53	53	operating, improving, or conducting a cemetery, interring remains,
54	54	or caring for, preserving, and embellishing cemetery property.
55	55	(9) [(5)] "Columbarium" means a durable, fireproof
56	56	structure, or a room or other space in a durable, fireproof
57	57	structure, containing niches and used or intended to be used to
58	58	contain cremated remains.
59	59	(10) [(5-a)] "Cremains receptacle" means a marker,
60	60	boulder, bench, pedestal, pillar, or other aboveground vessel that
61	61	contains niches for cremated remains.
62	62	(11) [(6)] "Cremated remains" or "cremains" means the
63	63	bone fragments remaining after the cremation process, which may
64	64	include the residue of any foreign materials that were cremated
65	65	with the human remains.
66	66	(12) [(7)] "Cremation" means the irreversible process
67	67	of reducing human remains to bone fragments through extreme heat
68	68	and evaporation, which may include the processing or the
69	69	pulverization of bone fragments.
70	70	(13) [(8)] "Crematory" means a structure containing a
71	71	furnace used or intended to be used for the cremation of human
72	72	remains.
73	73	(14) [(9)] "Crematory and columbarium" means a
74	74	durable, fireproof structure containing both a crematory and
75	75	columbarium.
76	76	(15) [(10)] "Crypt" means a chamber in a mausoleum of
77	77	sufficient size to inter human remains.
78	78	(16) [(11)] "Directors" means the governing body of a
79	79	cemetery organization.
80	80	(17) [(12)] "Entombment" means interment in a crypt.
81	81	(18) [(13)] "Funeral establishment" means a place of
82	82	business used in the care and preparation for interment or
83	83	transportation of human remains, or any place where one or more
84	84	persons, either as sole owner, in copartnership, or through
85	85	corporate status, are engaged or represent themselves to be engaged
86	86	in the business of embalming or funeral directing.
87	87	(19) [(14)] "Grave" means a space of ground that
88	88	contains interred human remains or is in a burial park and that is
89	89	used or intended to be used for interment of human remains in the
90	90	ground.
91	91	(20) [(15)] "Human remains" means the body of a
92	92	decedent.
93	93	(21) [(16)] "Interment" means the permanent
94	94	disposition of remains by entombment, burial, or placement in a
95	95	niche.
96	96	(22) [(17)] "Interment right" means the right to inter
97	97	the remains of one decedent in a plot.
98	98	(23) [(18)] "Inurnment" means the placement of
99	99	cremated remains in an urn.
100	100	(24) [(19)] "Lawn crypt" means a subsurface
101	101	receptacle installed in multiple units for ground burial of human
102	102	remains.
103	103	(25) [(20)] "Mausoleum" means a durable, fireproof
104	104	structure used or intended to be used for entombment.
105	105	(26) [(20-a)] "Memorial" means a headstone,
106	106	tombstone, gravestone, monument, or other marker denoting a grave.
107	107	(27) [(21)] "Niche" means a space in a columbarium or
108	108	cremains receptacle used or intended to be used for the placement of
109	109	cremated remains in an urn or other container.
110	110	(28) [(22)] "Nonperpetual care cemetery" means a
111	111	cemetery that is not a perpetual care cemetery.
112	112	(29) [(23)] "Perpetual care" or "endowment care"
113	113	means the maintenance, repair, and care of all places in the
114	114	cemetery.
115	115	(30) [(24)] "Perpetual care cemetery" or "endowment
116	116	care cemetery" means a cemetery for the benefit of which a perpetual
117	117	care trust fund is established as provided by Chapter 712.
118	118	(31) [(25)] "Plot" means space in a cemetery owned by
119	119	an individual or organization that is used or intended to be used
120	120	for interment, including a grave or adjoining graves, a crypt or
121	121	adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche
122	122	or adjoining niches.
123	123	(32) [(26)] "Plot owner" means a person:
124	124	(A) in whose name a plot is listed in a cemetery
125	125	organization's office as the owner of the exclusive right of
126	126	sepulture; or
127	127	(B) who holds, from a cemetery organization, a
128	128	certificate of ownership or other instrument of conveyance of the
129	129	exclusive right of sepulture in a particular plot in the
130	130	organization's cemetery.
131	131	(33) [(27)] "Prepaid funeral contract" means a
132	132	written contract providing for prearranged or prepaid funeral
133	133	services or funeral merchandise.
134	134	(34) [(28)] "Remains" means either human remains or
135	135	cremated remains.
136	136	(35) "Unidentified grave" means a grave that is not
137	137	marked in a manner that provides the identity of the interment.
138	138	(36) "Unknown cemetery" means an abandoned cemetery
139	139	evidenced by the presence of marked or unmarked graves that does not
140	140	appear on a map or in deed records.
141	141	(37) "Unmarked grave" means the immediate area where
142	142	one or more human interments are found that:
143	143	(A) is not in a recognized and maintained
144	144	cemetery;
145	145	(B) is not owned or operated by a cemetery
146	146	organization;
147	147	(C) is not marked by a tomb, monument,
148	148	gravestone, or other structure or thing placed or designated as a
149	149	memorial of the dead; or
150	150	(D) is located on land designated as
151	151	agricultural, timber, recreational, park, or scenic land under
152	152	Chapter 23, Tax Code.
153	153	(38) "Unverified cemetery" means a location having
154	154	some evidence of interment but in which the presence of one or more
155	155	unmarked graves has not been verified by a person described by
156	156	Section 711.0105(a) or by the Texas Historical Commission.
157	157	SECTION 2. Section 711.004, Health and Safety Code, is
158	158	amended by adding Subsection (f-1) to read as follows:
159	159	(f-1) For unmarked graves contained within an abandoned,
160	160	unknown, or unverified cemetery, a justice of the peace acting as
161	161	coroner or medical examiner under Chapter 49, Code of Criminal
162	162	Procedure, or a person described by Section 711.0105(a) may
163	163	investigate or remove remains without written order of the state
164	164	registrar or the state registrar's designee.
165	165	SECTION 3. The heading to Section 711.010, Health and
166	166	Safety Code, is amended to read as follows:
167	167	Sec. 711.010. ABANDONED, UNKNOWN, OR UNVERIFIED
168	168	[ABANDONED] CEMETERY.
169	169	SECTION 4. Section 711.010, Health and Safety Code, is
170	170	amended by amending Subsections (a) and (b) and adding Subsection
171	171	(d) to read as follows:
172	172	(a) The owner of property on which an unknown cemetery is
173	173	discovered or on which an abandoned cemetery is located may not
174	174	construct improvements on the property in a manner that would
175	175	[further] disturb the cemetery until the human remains interred in
176	176	the cemetery are removed under a written order issued by the state
177	177	registrar or the state registrar's designee under Section
178	178	711.004(f) and under an order of a district court as provided by
179	179	this section, except as provided by Section 711.004(f-1).
180	180	(b) On petition of the owner of the property, a district
181	181	court of the county in which an unknown cemetery is discovered or an
182	182	abandoned cemetery is located may order the removal of any
183	183	dedication for cemetery purposes that affects the property if the
184	184	court finds that the removal of the dedication is in the public
185	185	interest. If a court orders the removal of a dedication of a
186	186	cemetery and all human remains in that cemetery [on the property]
187	187	have not previously been removed, the court shall order the removal
188	188	of the human remains from the cemetery to a perpetual care cemetery
189	189	or a municipal or county cemetery.
190	190	(d) The Texas Historical Commission, with consent of the
191	191	landowner, may investigate a suspected but unverified cemetery or
192	192	may delegate the investigation to a qualified person described by
193	193	Section 711.0105(a).
194	194	SECTION 5. The heading to Section 711.011, Health and
195	195	Safety Code, is amended to read as follows:
196	196	Sec. 711.011. FILING RECORD OF UNKNOWN OR ABANDONED
197	197	CEMETERY.
198	198	SECTION 6. Section 711.011(a), Health and Safety Code, is
199	199	amended to read as follows:
200	200	(a) A person who discovers an unknown or abandoned cemetery
201	201	shall file notice of the discovery of the cemetery with the county
202	202	clerk of the county in which the cemetery is located and
203	203	concurrently mail notice to the landowner on record in the county
204	204	appraisal district not later than the 10th day after the date of the
205	205	discovery. The notice must contain a legal description of the land
206	206	on which the unknown or abandoned cemetery was found and describe
207	207	the approximate location of the cemetery and the evidence of the
208	208	cemetery that was discovered.
209	209	SECTION 7. Subchapter A, Chapter 711, Health and Safety
210	210	Code, is amended by adding Section 711.0111 to read as follows:
211	211	Sec. 711.0111. NOTICE OF UNVERIFIED CEMETERY. (a) A person
212	212	who discovers an unverified cemetery shall file notice and evidence
213	213	of the discovery with the Texas Historical Commission on a form
214	214	provided by the Texas Historical Commission, and shall concurrently
215	215	provide a copy of the notice to the landowner on record in the
216	216	county appraisal district on whose land the unverified cemetery is
217	217	located.
218	218	(b) The landowner described by Subsection (a) may send a
219	219	response or comments to the Texas Historical Commission concerning
220	220	the notice not later than the 30th day after the date the notice is
221	221	filed.
222	222	(c) The Texas Historical Commission shall evaluate the
223	223	notice of the unverified cemetery, the evidence submitted with the
224	224	notice, and the response of the landowner, if any, and shall
225	225	determine whether there is sufficient evidence of the existence of
226	226	a cemetery.
227	227	(d) If the Texas Historical Commission determines
228	228	sufficient evidence supports the existence of a cemetery, the Texas
229	229	Historical Commission shall inform the landowner and may file
230	230	notice of the existence of the cemetery under Section 711.011.
231	231	(e) If the Texas Historical Commission determines
232	232	sufficient evidence supports a determination that a cemetery does
233	233	not exist, the Texas Historical Commission shall notify the
234	234	landowner on record in the appraisal district of its determination,
235	235	amend the notice to include the commission's determination, and
236	236	ensure any notice filed with a county clerk under Section 711.011 is
237	237	corrected.
238	238	SECTION 8. Section 711.041, Health and Safety Code, is
239	239	amended by adding Subsection (d) to read as follows:
240	240	(d) This section does not apply to an unverified cemetery.
241	241	SECTION 9. Section 712.0441(f-1), Health and Safety Code,
242	242	is amended to read as follows:
243	243	(f-1) The commissioner may issue an order requiring
244	244	restitution by a person if, after notice and opportunity for a
245	245	hearing held in accordance with the procedures for a contested case
246	246	hearing under Chapter 2001, Government Code, the commissioner finds
247	247	that the corporation has not ordered memorials, as defined by
248	248	Section 711.001 [711.001(20-a)], in compliance with the deadlines
249	249	established by rules adopted under this chapter.
250	250	SECTION 10. This Act takes effect September 1, 2017.