Bill Text: TX HB3265 | 2017-2018 | 85th Legislature | Comm Sub

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Bill Title: Relating to cemeteries.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2017-05-10 - Laid on the table subject to call [HB3265 Detail]

Download: Texas-2017-HB3265-Comm_Sub.html

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85R24390 DMS-F
By: Howard H.B. No. 3265
Substitute the following for H.B. No. 3265:
By: Gervin-Hawkins C.S.H.B. No. 3265

A BILL TO BE ENTITLED
AN ACT
relating to cemeteries.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 711.001, Health and Safety Code, is
amended to read as follows:
Sec. 711.001. DEFINITIONS. In this chapter:
(1) "Abandoned cemetery" means a cemetery, regardless
of whether it appears on a map or in deed records, that is not owned
or operated by a cemetery organization, does not have another
person legally responsible for its care, and is not maintained by
any person.
(2) [(1)] "Burial park" means a tract of land that is
used or intended to be used for interment in graves.
(3) [(1-a)] "Campus" means the area:
(A) within the boundaries of one or more adjacent
tracts, parcels, or lots under common ownership;
(B) on which the principal church building and
related structures and facilities of an organized religious society
or sect are located; and
(C) that may be subject to one or more easements
for street, utility, or pipeline purposes.
(4) [(2)] "Cemetery" means a place that is used or
intended to be used for interment, and includes a graveyard, burial
park, mausoleum, or any other area containing one or more graves.
(5) [(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.
(6) [(2-b)] "Cemetery broker" means a person who sells
the exclusive right of sepulture for another person. The term does
not include a person who:
(A) is an officer, agent, or employee of the
cemetery organization in which the plot is located and who is exempt
from registration under Subchapter C-1; or
(B) originally purchased the exclusive right of
sepulture for personal use.
(7) [(3)] "Cemetery organization" means:
(A) an unincorporated association of plot owners
not operated for profit that is authorized by its articles of
association to conduct a business for cemetery purposes; or
(B) a corporation, as defined by Section
712.001(b)(3), that is authorized by its certificate of formation
or its registration to conduct a business for cemetery purposes.
(8) [(4)] "Cemetery purpose" means a purpose
necessary or incidental to establishing, maintaining, managing,
operating, improving, or conducting a cemetery, interring remains,
or caring for, preserving, and embellishing cemetery property.
(9) [(5)] "Columbarium" means a durable, fireproof
structure, or a room or other space in a durable, fireproof
structure, containing niches and used or intended to be used to
contain cremated remains.
(10) [(5-a)] "Cremains receptacle" means a marker,
boulder, bench, pedestal, pillar, or other aboveground vessel that
contains niches for cremated remains.
(11) [(6)] "Cremated remains" or "cremains" means the
bone fragments remaining after the cremation process, which may
include the residue of any foreign materials that were cremated
with the human remains.
(12) [(7)] "Cremation" means the irreversible process
of reducing human remains to bone fragments through extreme heat
and evaporation, which may include the processing or the
pulverization of bone fragments.
(13) [(8)] "Crematory" means a structure containing a
furnace used or intended to be used for the cremation of human
remains.
(14) [(9)] "Crematory and columbarium" means a
durable, fireproof structure containing both a crematory and
columbarium.
(15) [(10)] "Crypt" means a chamber in a mausoleum of
sufficient size to inter human remains.
(16) [(11)] "Directors" means the governing body of a
cemetery organization.
(17) [(12)] "Entombment" means interment in a crypt.
(18) [(13)] "Funeral establishment" means a place of
business used in the care and preparation for interment or
transportation of human remains, or any place where one or more
persons, either as sole owner, in copartnership, or through
corporate status, are engaged or represent themselves to be engaged
in the business of embalming or funeral directing.
(19) [(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) [(15)] "Human remains" means the body of a
decedent.
(21) [(16)] "Interment" means the permanent
disposition of remains by entombment, burial, or placement in a
niche.
(22) [(17)] "Interment right" means the right to inter
the remains of one decedent in a plot.
(23) [(18)] "Inurnment" means the placement of
cremated remains in an urn.
(24) [(19)] "Lawn crypt" means a subsurface
receptacle installed in multiple units for ground burial of human
remains.
(25) [(20)] "Mausoleum" means a durable, fireproof
structure used or intended to be used for entombment.
(26) [(20-a)] "Memorial" means a headstone,
tombstone, gravestone, monument, or other marker denoting a grave.
(27) [(21)] "Niche" means a space in a columbarium or
cremains receptacle used or intended to be used for the placement of
cremated remains in an urn or other container.
(28) [(22)] "Nonperpetual care cemetery" means a
cemetery that is not a perpetual care cemetery.
(29) [(23)] "Perpetual care" or "endowment care"
means the maintenance, repair, and care of all places in the
cemetery.
(30) [(24)] "Perpetual care cemetery" or "endowment
care cemetery" means a cemetery for the benefit of which a perpetual
care trust fund is established as provided by Chapter 712.
(31) [(25)] "Plot" means space in a cemetery owned by
an individual or organization that is used or intended to be used
for interment, including a grave or adjoining graves, a crypt or
adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche
or adjoining niches.
(32) [(26)] "Plot owner" means a person:
(A) in whose name a plot is listed in a cemetery
organization's office as the owner of the exclusive right of
sepulture; or
(B) who holds, from a cemetery organization, a
certificate of ownership or other instrument of conveyance of the
exclusive right of sepulture in a particular plot in the
organization's cemetery.
(33) [(27)] "Prepaid funeral contract" means a
written contract providing for prearranged or prepaid funeral
services or funeral merchandise.
(34) [(28)] "Remains" means either human remains or
cremated remains.
(35) "Unidentified grave" means a grave that is not
marked in a manner that provides the identity of the interment.
(36) "Unknown cemetery" means an abandoned cemetery
evidenced by the presence of marked or unmarked graves that does not
appear on a map or in deed records.
(37) "Unmarked grave" means the immediate area where
one or more human interments are found that:
(A) is not in a recognized and maintained
cemetery;
(B) is not owned or operated by a cemetery
organization;
(C) is not marked by a tomb, monument,
gravestone, or other structure or thing placed or designated as a
memorial of the dead; or
(D) is located on land designated as
agricultural, timber, recreational, park, or scenic land under
Chapter 23, Tax Code.
(38) "Unverified cemetery" means a location having
some evidence of interment but in which the presence of one or more
unmarked graves has not been verified by a person described by
Section 711.0105(a) or by the Texas Historical Commission.
SECTION 2. Section 711.004, Health and Safety Code, is
amended by adding Subsection (f-1) to read as follows:
(f-1) For unmarked graves contained within an abandoned,
unknown, or unverified cemetery, a justice of the peace acting as
coroner or medical examiner under Chapter 49, Code of Criminal
Procedure, or a person described by Section 711.0105(a) may
investigate or remove remains without written order of the state
registrar or the state registrar's designee.
SECTION 3. The heading to Section 711.010, Health and
Safety Code, is amended to read as follows:
Sec. 711.010. ABANDONED, UNKNOWN, OR UNVERIFIED
[ABANDONED] CEMETERY.
SECTION 4. Section 711.010, Health and Safety Code, is
amended by amending Subsections (a) and (b) and adding Subsection
(d) 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, except as provided by Section 711.004(f-1).
(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 in that cemetery [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
or a municipal or county cemetery.
(d) The Texas Historical Commission, with consent of the
landowner, may investigate a suspected but unverified cemetery or
may delegate the investigation to a qualified person described by
Section 711.0105(a).
SECTION 5. The heading to Section 711.011, Health and
Safety Code, is amended to read as follows:
Sec. 711.011. FILING RECORD OF UNKNOWN OR ABANDONED
CEMETERY.
SECTION 6. Section 711.011(a), Health and Safety Code, is
amended to read as follows:
(a) A person who discovers an unknown or abandoned cemetery
shall file notice of the discovery of the cemetery with the county
clerk of the county in which the cemetery is located and
concurrently mail notice to the landowner on record in the county
appraisal district 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.
SECTION 7. Subchapter A, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0111 to read as follows:
Sec. 711.0111. NOTICE OF UNVERIFIED CEMETERY. (a) A person
who discovers an unverified cemetery shall file notice and evidence
of the discovery with the Texas Historical Commission on a form
provided by the Texas Historical Commission, and shall concurrently
provide a copy of the notice to the landowner on record in the
county appraisal district on whose land the unverified cemetery is
located.
(b) The landowner described by Subsection (a) may send a
response or comments to the Texas Historical Commission concerning
the notice not later than the 30th day after the date the notice is
filed.
(c) The Texas Historical Commission shall evaluate the
notice of the unverified cemetery, the evidence submitted with the
notice, and the response of the landowner, if any, and shall
determine whether there is sufficient evidence of the existence of
a cemetery.
(d) If the Texas Historical Commission determines
sufficient evidence supports the existence of a cemetery, the Texas
Historical Commission shall inform the landowner and may file
notice of the existence of the cemetery under Section 711.011.
(e) If the Texas Historical Commission determines
sufficient evidence supports a determination that a cemetery does
not exist, the Texas Historical Commission shall notify the
landowner on record in the appraisal district of its determination,
amend the notice to include the commission's determination, and
ensure any notice filed with a county clerk under Section 711.011 is
corrected.
SECTION 8. Section 711.041, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) This section does not apply to an unverified cemetery.
SECTION 9. Section 712.0441(f-1), Health and Safety Code,
is amended to read as follows:
(f-1) The commissioner may issue an order requiring
restitution by a person if, after notice and opportunity for a
hearing held in accordance with the procedures for a contested case
hearing under Chapter 2001, Government Code, the commissioner finds
that the corporation has not ordered memorials, as defined by
Section 711.001 [711.001(20-a)], in compliance with the deadlines
established by rules adopted under this chapter.
SECTION 10. This Act takes effect September 1, 2017.