Bill Text: TX HB52 | 2013-2014 | 83rd Legislature | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the sale of a cemetery plot; providing penalties; authorizing a fee.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2013-06-14 - See remarks for effective date [HB52 Detail]
Download: Texas-2013-HB52-Engrossed.html
Bill Title: Relating to the sale of a cemetery plot; providing penalties; authorizing a fee.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2013-06-14 - See remarks for effective date [HB52 Detail]
Download: Texas-2013-HB52-Engrossed.html
83R15914 AED-D | ||
By: Flynn | H.B. No. 52 |
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relating to the sale of a cemetery plot; providing penalties; | ||
authorizing a fee. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 711.001, Health and Safety Code, is | ||
amended by adding Subdivision (2-b) to read as follows: | ||
(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. | ||
SECTION 2. Section 711.012(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) The Finance Commission of Texas may adopt rules to | ||
enforce and administer Subchapter C-1 and Sections 711.003, | ||
711.004, 711.007, 711.008, 711.0105, 711.021-711.024, | ||
711.032-711.036, 711.038, 711.0381, 711.040-711.042, 711.052, and | ||
711.061[ |
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SECTION 3. The heading to Section 711.038, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 711.038. SALE OF PLOTS BY CEMETERY ORGANIZATIONS. | ||
SECTION 4. Section 711.038(e), Health and Safety Code, is | ||
amended to read as follows: | ||
(e) A person who is an officer, agent, or employee of the | ||
cemetery organization or its affiliate and who is exempt from | ||
registration under Subchapter C-1 is not required to be licensed or | ||
registered to sell a plot in a dedicated cemetery. | ||
SECTION 5. Subchapter C, Chapter 711, Health and Safety | ||
Code, is amended by adding Section 711.0381 to read as follows: | ||
Sec. 711.0381. SALE OR RESALE OF PLOTS BY CERTAIN PERSONS. | ||
(a) A person may not act as a cemetery broker in the sale or resale | ||
of the exclusive right of sepulture in a plot unless the person is | ||
registered as a cemetery broker under Subchapter C-1 or is exempt | ||
from registration under Subchapter C-1. | ||
(b) Resale of the exclusive right of sepulture in a plot is | ||
subject to the rules of the cemetery organization and any | ||
restrictions in the certificate of ownership, quitclaim agreement, | ||
or other instrument of conveyance. A quitclaim agreement or other | ||
instrument evidencing the conveyance of the exclusive right of | ||
sepulture must be: | ||
(1) in a form authorized by or otherwise acceptable to | ||
the cemetery organization, subject to Subsection (c); | ||
(2) signed by: | ||
(A) the grantee named in the certificate of | ||
ownership or other instrument of conveyance as filed and recorded | ||
in the cemetery organization's office in accordance with Section | ||
711.038 or 711.039(g)(2), as the seller or transferor; | ||
(B) the designated purchaser or transferee; and | ||
(C) each cemetery broker or other agent assisting | ||
in the transfer of the interment rights; and | ||
(3) filed and recorded with the cemetery organization | ||
not later than the third business day after the date of the sale. | ||
(c) On request of a person acting as a cemetery broker, a | ||
cemetery organization shall provide its rules, conveyance forms, | ||
and written guidelines and procedures for brokered sales, if any. | ||
(d) The resale of the exclusive right of sepulture in a | ||
group of interment rights that were conveyed collectively may not | ||
be divided without the consent of the cemetery organization. | ||
(e) A person acting as a cemetery broker that sells or | ||
resells the right of sepulture in a plot shall collect and remit to | ||
the cemetery organization: | ||
(1) all fees required by law; and | ||
(2) any other fee required by the rules of the cemetery | ||
organization, subject to Subsection (f). | ||
(f) A fee required by a rule of the cemetery organization | ||
for the sale or resale of the right of sepulture in a plot under this | ||
section may not exceed the fee charged by the cemetery organization | ||
on the sale of the right of sepulture in a plot under Section | ||
711.038. | ||
(g) A person acting as a cemetery broker must keep a record | ||
of each sale or resale under this section. The record must include: | ||
(1) the name and address of the purchaser; | ||
(2) the date of the purchase; | ||
(3) a copy of the purchase agreement, with the name and | ||
address of the cemetery; | ||
(4) a specific description of the interment rights; | ||
(5) the purchase price; | ||
(6) the amount of fees collected and remitted in | ||
accordance with Subsection (e); and | ||
(7) information on the disposal of the purchase | ||
agreement, including whether the agreement was conveyed, canceled, | ||
or voided. | ||
SECTION 6. Chapter 711, Health and Safety Code, is amended | ||
by adding Subchapter C-1 to read as follows: | ||
SUBCHAPTER C-1. CEMETERY BROKER REGISTRATION | ||
Sec. 711.045. DEFINITIONS. In this subchapter: | ||
(1) "Commission" means the Finance Commission of | ||
Texas. | ||
(2) "Commissioner" means the banking commissioner of | ||
Texas. | ||
(3) "Department" means the Texas Department of | ||
Banking. | ||
Sec. 711.046. CEMETERY BROKER REGISTRATION. (a) To register | ||
under this subchapter, a cemetery broker shall file with the | ||
department a sworn, notarized statement that contains: | ||
(1) the name and street address of the cemetery | ||
broker; | ||
(2) the name, street address, and telephone number of | ||
the representative of the cemetery broker to be contacted regarding | ||
a written complaint; and | ||
(3) any Internet or other electronic mail address of | ||
the cemetery broker. | ||
(b) The registration of a cemetery broker is valid until | ||
withdrawn or revoked. Periodic renewal of the registration is not | ||
required. | ||
(c) A registered cemetery broker shall update the | ||
information contained in the registration statement not later than | ||
the 60th day after the date the information changes. | ||
(d) The department may charge a cemetery broker a reasonable | ||
fee to cover the costs of filing and maintaining the registration | ||
statement and administering this chapter. The administration fee | ||
may not exceed $100 per year. | ||
Sec. 711.047. EXEMPTIONS. This subchapter does not apply | ||
to a person offering to sell or selling the exclusive right of | ||
sepulture in a plot if the person is: | ||
(1) an officer, agent, employee, or affiliate of the | ||
cemetery organization in which the plot is located, acting at the | ||
direction or under the control of the cemetery organization; | ||
(2) an employee of a registered cemetery broker; | ||
(3) with respect to the specific plot for sale: | ||
(A) a grantee named in the certificate of | ||
ownership or other instrument of conveyance for the plot as filed | ||
and recorded in the cemetery organization's office under Section | ||
711.038; | ||
(B) a spouse or other heir of the named grantee as | ||
described by Section 711.039; | ||
(C) an executor, administrator, or guardian of | ||
the named grantee appointed by court order; or | ||
(D) an attorney-in-fact for the named grantee | ||
under a durable power of attorney if the person is not otherwise | ||
engaged in the business of a cemetery broker and does not solicit | ||
appointment as attorney-in-fact for the purpose of offering to sell | ||
or selling the exclusive right of sepulture of the named grantee; or | ||
(4) otherwise exempt in accordance with rules adopted | ||
by the commission as necessary to protect the public health and | ||
safety. | ||
Sec. 711.048. COMPLAINTS. (a) A cemetery broker is subject | ||
to rules adopted under Section 11.307, Finance Code, regarding the | ||
manner in which the cemetery broker provides consumers with | ||
information on how to file complaints with the department. The | ||
rules must be consistent with the obligations imposed by this | ||
section. | ||
(b) If the department receives a signed written complaint | ||
from a person concerning a cemetery broker, the department shall | ||
provide written notification of the complaint to the cemetery | ||
broker's designated representative not later than the 31st day | ||
after the date the complaint was received and provide a copy of the | ||
complaint to the representative. The department may: | ||
(1) require the cemetery broker to resolve the | ||
complaint or to provide the department with a response to the | ||
complaint; or | ||
(2) provide written direction requiring the cemetery | ||
broker to take specific action to resolve the complaint. | ||
Sec. 711.049. TERMINATION OF REGISTRATION. (a) A cemetery | ||
broker may withdraw the cemetery broker's registration at any time. | ||
(b) After notice and opportunity for a hearing, the | ||
commissioner may revoke the registration of a registered cemetery | ||
broker that: | ||
(1) fails to pay the annual administration fee and | ||
fails to cure the default not later than the 30th day after the date | ||
written notice of the default is mailed by the department to the | ||
cemetery broker; | ||
(2) fails or refuses to comply with the department's | ||
written request for a response to a complaint; or | ||
(3) the commissioner concludes, after considering a | ||
complaint filed under this subchapter, has engaged in an | ||
intentional course of conduct that: | ||
(A) violates federal or state law; or | ||
(B) constitutes improper, fraudulent, or | ||
dishonest dealings. | ||
(c) The commissioner shall state the basis of the decision | ||
in an order revoking the registration of a cemetery broker. The | ||
cemetery broker may appeal an order revoking registration in the | ||
manner provided by Chapter 2001, Government Code. | ||
SECTION 7. Section 711.052(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) A person who is an individual, firm, association, | ||
corporation, or municipality, or an officer, agent, or employee of | ||
an individual, firm, association, corporation, or municipality, | ||
commits an offense if the person: | ||
(1) engages in a business for cemetery purposes in | ||
this state other than through a corporation organized for that | ||
purpose, if a corporation is required by law; | ||
(2) fails or refuses to keep records of interment as | ||
required by Sections 711.003 and 711.004; | ||
(3) sells, offers to sell, or advertises for sale a | ||
plot or the exclusive right of sepulture in a plot for purposes of | ||
speculation or investment; [ |
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(4) represents through advertising or printed | ||
material that a retail department will be established for the | ||
resale of the plots of plot purchasers, that specific improvements | ||
will be made in the cemetery, or that specific merchandise or | ||
services will be furnished to a plot owner, unless adequate funds or | ||
reserves are created by the cemetery organization for the | ||
represented purpose; | ||
(5) offers or receives monetary inducement to solicit | ||
business for a cemetery broker; | ||
(6) fails or refuses to keep records of sales or | ||
resales or to collect and remit fees as required by Section | ||
711.0381; or | ||
(7) fails or refuses to register as a cemetery broker | ||
as required by Subchapter C-1. | ||
SECTION 8. Section 711.056(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) If after a hearing conducted as provided by Chapter | ||
2001, Government Code, the trier of fact finds that a violation of | ||
this chapter or a rule of the Finance Commission of Texas | ||
establishes a pattern of wilful disregard for the requirements of | ||
this chapter or rules of the finance commission, the trier of fact | ||
shall recommend to the commissioner that the maximum administrative | ||
penalty permitted under Section 711.055 be imposed on the person | ||
committing the violation or that the commissioner cancel or not | ||
renew: | ||
(1) the person's registration under Subchapter C-1, if | ||
the person is registered under that subchapter; or | ||
(2) the person's permit under Chapter 154, Finance | ||
Code, if the person holds such a permit. | ||
SECTION 9. Subchapter D, Chapter 711, Health and Safety | ||
Code, is amended by adding Sections 711.057, 711.058, and 711.059 | ||
to read as follows: | ||
Sec. 711.057. EMERGENCY ORDER. (a) The commissioner may | ||
issue an emergency order that takes effect immediately if the | ||
commissioner finds that immediate and irreparable harm is | ||
threatened to the public or a beneficiary under a sale of the | ||
exclusive right of sepulture in a plot. | ||
(b) An emergency order remains in effect unless stayed by | ||
the commissioner. | ||
(c) The person named in the order may request in writing an | ||
opportunity for a hearing to show that the emergency order should be | ||
stayed. On receipt of the request, the commissioner shall set a | ||
time for the hearing before the 22nd day after the date the | ||
commissioner received the request, unless extended at the request | ||
of the person named in the order. | ||
(d) The hearing is an administrative hearing relating to the | ||
validity of findings that support immediate effect of the order. | ||
Sec. 711.058. RESTITUTION. The commissioner may issue an | ||
order to a person requiring restitution if, after notice and | ||
opportunity for hearing, the commissioner finds that the person: | ||
(1) failed to remit a fee in accordance with Section | ||
711.0381; or | ||
(2) misappropriated, converted, or illegally withheld | ||
or failed or refused to pay on demand money entrusted to the person | ||
that belongs to a cemetery organization under an instrument of | ||
conveyance. | ||
Sec. 711.059. SEIZURE OF ACCOUNTS AND RECORDS. (a) The | ||
commissioner may issue an order to seize accounts in which funds | ||
from the sale or resale of the exclusive right of sepulture in a | ||
plot, including earnings, may be held and may issue an order to | ||
seize the records that relate to the sale or resale of the exclusive | ||
right of sepulture in a plot if the commissioner finds, by | ||
examination or other credible evidence, that the person: | ||
(1) failed to remit a fee in accordance with Section | ||
711.0381; | ||
(2) misappropriated, converted, or illegally withheld | ||
or failed or refused to pay on demand money entrusted to the person | ||
that belongs to a cemetery organization under an instrument of | ||
conveyance; | ||
(3) refused to submit to examination by the | ||
department; | ||
(4) was the subject of an order to cancel, suspend, or | ||
refuse a registration under Subchapter C-1; or | ||
(5) is required to register under Subchapter C-1 and | ||
is not registered or has transferred the ownership of the business | ||
that required registration to another person who is not registered. | ||
(b) An order shall be served on the person named in the order | ||
by certified mail, return receipt requested, to the last known | ||
address of the person. | ||
(c) An order takes effect immediately and remains in effect | ||
unless stayed by the commissioner, if the commissioner finds that | ||
immediate and irreparable harm is threatened to the public or a | ||
beneficiary under a sale of the exclusive right of sepulture in a | ||
plot. If such a threat does not exist, the order must state the | ||
effective date, which may not be before the 16th day after the date | ||
the order is mailed. | ||
(d) An emergency order remains in effect unless stayed by | ||
the commissioner. The person named in the order may request in | ||
writing an opportunity for a hearing to show that the emergency | ||
order should be stayed. On receipt of the request, the commissioner | ||
shall set a time before the 22nd day after the date the commissioner | ||
received the request, unless extended at the request of the person | ||
named in the order. The hearing is an administrative hearing | ||
relating to the findings that support immediate effect of the | ||
order. | ||
(e) A nonemergency order takes effect as proposed unless the | ||
person named in the order requests a hearing not later than the 15th | ||
day after the date the order is mailed. | ||
(f) After the issuance of an order under this section, the | ||
commissioner may initiate an administrative claim for ancillary | ||
relief, including a claim for: | ||
(1) costs incurred in the administration, transfer, or | ||
other disposition of the seized assets and records; or | ||
(2) costs reasonably expected to be incurred in | ||
connection with the administration and performance of any | ||
outstanding certificate of ownership or other instrument of | ||
conveyance that is a part of a sale by the person subject to the | ||
order. | ||
(g) The remedy provided by Subsection (f) is not exclusive. | ||
The commissioner may seek an additional remedy authorized under | ||
this subchapter. | ||
SECTION 10. Chapter 711, Health and Safety Code, is amended | ||
by adding Subchapter F to read as follows: | ||
SUBCHAPTER F. POWERS AND DUTIES OF DEPARTMENT | ||
RELATING TO CEMETERY BROKERS | ||
Sec. 711.081. DEFINITIONS. In this subchapter: | ||
(1) "Commission" means the Finance Commission of | ||
Texas. | ||
(2) "Commissioner" means the banking commissioner of | ||
Texas. | ||
(3) "Department" means the Texas Department of | ||
Banking. | ||
Sec. 711.082. ADMINISTRATION; FEES. (a) The department | ||
shall administer Subchapters C and C-1 relating to cemetery | ||
brokers. | ||
(b) The commission may adopt reasonable rules concerning: | ||
(1) fees to defray the cost of administering | ||
Subchapters C and C-1; | ||
(2) the retention and inspection of records relating | ||
to the sale or resale of the exclusive right of sepulture in a plot; | ||
(3) changes in the management or control of a cemetery | ||
broker's business; and | ||
(4) any other matter relating to the enforcement and | ||
administration of Subchapters C and C-1. | ||
(c) A fee set by the commission may not produce unnecessary | ||
fund balances. | ||
Sec. 711.083. RECORDS; EXAMINATION. (a) A person acting as | ||
a cemetery broker shall maintain records in accordance with this | ||
subchapter and Section 711.0381. | ||
(b) The department shall examine the records of each person | ||
acting as a cemetery broker if the commissioner determines the | ||
examination is necessary to: | ||
(1) safeguard the interests of purchasers and | ||
beneficiaries of the exclusive right of sepulture in a plot; and | ||
(2) efficiently enforce applicable law. | ||
(c) A person may maintain and provide a record required to | ||
be maintained under this section in an electronic format if the | ||
record is reliable and can be retrieved in a timely manner. | ||
Sec. 711.084. EXAMINATION FEE. (a) For each examination | ||
conducted under Section 711.083, the commissioner or the | ||
commissioner's agent shall impose on the cemetery broker a fee in an | ||
amount set by the commission under Section 711.082. | ||
(b) The amount of the fee must be sufficient to cover: | ||
(1) the cost of the examination, including: | ||
(A) salary and travel expenses for department | ||
employees, including travel to and from the place where the records | ||
are kept; and | ||
(B) any other expense necessarily incurred in | ||
conducting the examination; | ||
(2) the equitable or proportionate cost of maintaining | ||
and operating the department; and | ||
(3) the cost of enforcing this subchapter. | ||
SECTION 11. (a) Except as provided by Subsection (b) of | ||
this section, this Act takes effect immediately if it receives a | ||
vote of two-thirds of all the members elected to each house, as | ||
provided by Section 39, Article III, Texas Constitution. Except as | ||
provided by Subsection (b) of this section, if this Act does not | ||
receive the vote necessary for immediate effect, this Act takes | ||
effect September 1, 2013. | ||
(b) Section 711.0381 and Subchapter C-1, Chapter 711, | ||
Health and Safety Code, as added by this Act, take effect January 1, | ||
2014. |