CHAPTER 713. LOCAL REGULATION OF CEMETERIES - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 8. DEATH AND DISPOSITION OF THE BODY

SUBTITLE C. CEMETERIES AND CREMATORIES

CHAPTER 713. LOCAL REGULATION OF CEMETERIES

SUBCHAPTER A. MUNICIPAL REGULATION OF CEMETERIES

Sec. 713.001. MUNICIPAL CEMETERY AUTHORIZED. The governing body

of a municipality may:

(1) purchase, establish, and regulate a cemetery; and

(2) enclose and improve a cemetery owned by the municipality.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 47, eff. Sept. 1,

1993.

Sec. 713.002. LOCAL TRUST FOR CEMETERY. (a) A municipality

that owns or operates a cemetery or has control of cemetery

property may act as a permanent trustee for the perpetual

maintenance of the lots and graves in the cemetery.

(b) To act as a trustee, a majority of the municipality's

governing body must adopt an ordinance or resolution stating the

municipality's willingness and intention to act as a trustee.

When the ordinance or resolution is adopted and the trust is

accepted, the trust is perpetual.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.003. LOCAL AUTHORITY TO RECEIVE GIFTS; DEPOSITS FOR

CARE; CERTIFICATES. (a) A municipality that is a trustee for

the perpetual maintenance of a cemetery may adopt reasonable

rules to receive a gift or grant from any source and to determine

the amount necessary for permanent maintenance of a grave or

burial lot, including a family lot.

(b) A municipality that is a trustee for any person shall accept

the amount the municipality requires for permanent maintenance of

a grave or burial lot on behalf of that person or a decedent.

(c) The municipality's acceptance of the deposit is a perpetual

trust for the designated grave or burial lot.

(d) On acceptance of the deposit, the municipality's secretary,

clerk, or mayor shall issue a certificate in the name of the

municipality to the trustee or depositor. The certificate must

state:

(1) the depositor's name;

(2) the amount and purpose of the deposit;

(3) the location, as specifically as possible, of the grave,

lot, or burial place to be maintained; and

(4) other information required by the municipality.

(e) An individual, association, foundation, or corporation that

is interested in the maintenance of a neglected cemetery in a

municipality's possession and control may donate funds to the

perpetual trust fund to beautify and maintain the entire cemetery

or burial grounds generally.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.004. USE OF FUNDS. (a) A municipality may invest and

reinvest deposits under this subchapter in interest-bearing bonds

or governmental securities.

(b) The principal of the funds must be kept intact as a

principal trust fund, and the fund's trustee may not use those

funds.

(c) The income or revenue of the fund must be used for the

maintenance and care in a first-class condition of the grave,

lot, or burial place for which the funds are donated. Income or

revenue that is more than the amount necessary to faithfully

accomplish the trust may be used, in the discretion of the

trustee, to beautify the entire cemetery or burial grounds

generally.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.005. DEPOSIT RECORDS. (a) A municipality that acts as

a trustee under this subchapter shall maintain a permanent,

well-bound record book including, for each deposit made:

(1) the name of the depositor, listed in alphabetical order;

(2) the purpose and amount of the deposit;

(3) the name and location, as specifically as possible, of the

grave, lot, or burial place to be maintained;

(4) the condition and status of the trust imposed; and

(5) other information required by the municipality.

(b) A certificate holder under this subchapter may, on payment

of the proper cost or recording fee, record the certificate in

the deed records of the county in which the cemetery is located.

The county clerk shall file, index, and record the certificate in

the deed records of that county.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.006. TAX. (a) A municipality acting as a trustee for

a cemetery may include in the municipality's annual budget an

amount considered necessary for cemetery maintenance.

(b) The municipality may impose a tax on all property in the

municipality in an amount not exceeding five cents for each $100

valuation of the property for maintenance of the cemetery,

regardless of whether the cemetery is located inside or outside

the municipal limits.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.007. APPOINTMENT OF SUCCESSOR TRUSTEE. The district

judge of the county in which the cemetery is located shall

appoint a suitable successor or trustee to faithfully execute a

trust in accordance with this subchapter if the municipality

renounces a trust assumed under this subchapter or fails to act

as its trustee and:

(1) the occasion demands the appointment; or

(2) a vacancy occurs.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.008. TERMINATION OF MUNICIPAL TRUST BY CERTAIN

MUNICIPALITIES. The governing body of a municipality in a county

with a population of at least 128,000 but not more than 300,000

may abolish the municipality's perpetual trust fund for a

cemetery and use the fund, including both principal and interest,

for permanent improvements to the cemetery.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 222, eff. Sept. 1,

1991; Acts 1991, 72nd Leg., ch. 597, Sec. 78, eff. Sept. 1, 1991;

Acts 2001, 77th Leg., ch. 669, Sec. 40, eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

136, Sec. 1, eff. May 23, 2009.

Sec. 713.009. LOCAL POSSESSION AND CONTROL OF UNKEPT OR

ABANDONED CEMETERY. (a) Except as provided by Subsection (i), a

municipality with a cemetery inside the municipality's boundaries

or extraterritorial jurisdiction may, by resolution, take

possession and control of the cemetery on behalf of the public if

the cemetery threatens or endangers public health, safety,

comfort, or welfare.

(b) If a municipality does not take possession and control of a

cemetery under Subsection (a) or acts to take possession and

control but does not perform the work required by Subsections

(d), (e), and (f), a district court on petition of a resident of

the county in which the cemetery is located shall by order

appoint a willing nonprofit corporation organized under the Texas

Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's

Texas Civil Statutes) to act in place of the municipality to

protect the public health, safety, comfort, and welfare. The

district court and the nonprofit corporation must comply with the

requirements of Chapter 715 in assuming responsibility for the

cemetery.

(c) In accordance with Chapter 715, a district court appointing

a nonprofit corporation has continuing jurisdiction to monitor

and review the corporation's operation of the cemetery. The

court may, on its own motion, revoke the appointment and appoint

another willing nonprofit corporation without the necessity of

another petition. The court shall review the subsequent

appointment if a county resident petitions for review of the

appointment.

(d) A resolution of the municipality or an order of the court

under this section must specify that, not later than the 60th day

after the date of giving notice of a declaration of intent to

take possession and control, the municipality or corporation, as

appropriate, shall present a plan to:

(1) remove or repair any fences, walls, or other improvements;

(2) straighten and reset any memorial stones or embellishments

that are a threat or danger to public health, safety, comfort, or

welfare; and

(3) take proper steps to restore and maintain the premises in an

orderly and decent condition.

(e) The notice must be given by mail to all persons shown by the

records in the county clerk's office to have an interest in the

cemetery, to the Texas Historical Commission, and to all

interested persons by publication in a newspaper of general

circulation in the municipality.

(f) After taking the action described by Subsection (d), the

municipality or corporation shall continue to maintain the

cemetery so that it does not endanger the public health, safety,

comfort, or welfare. Additional burial spaces may not be offered

for sale.

(g) A cemetery in the possession and control of a municipality

or corporation under this section must remain open to the public.

(h) A municipality or an officer or employee of the municipality

is not civilly or criminally liable for acts performed in the

good faith administration of this section.

(i) This section does not apply to:

(1) a perpetual care cemetery incorporated under the laws of

this state; or

(2) a private family cemetery.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

914, Sec. 12, eff. September 1, 2009.

Sec. 713.010. PRIVATE CARE OF GRAVES. This subchapter does not

affect the right of a person who has an interest in a grave or

burial lot, or who is related within the fifth degree by affinity

or consanguinity, as determined under Chapter 573, Government

Code, to, or is a direct descendant of, a decedent interred in

the cemetery, to beautify or maintain a grave or burial lot

individually or at the person's own expense in accordance with

reasonable municipal rules.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 33, eff. Aug. 26,

1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(27), eff. Sept. 1,

1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

914, Sec. 13, eff. September 1, 2009.

Sec. 713.011. MAINTENANCE OF MUNICIPAL CEMETERIES. (a) A

municipality that operates or has jurisdiction over a public

cemetery shall maintain the cemetery in a condition that does not

endanger the public health, safety, comfort, or welfare.

(b) A municipality's responsibility to maintain a cemetery under

this section includes:

(1) repairing and maintaining any fences, walls, buildings,

roads, or other improvements;

(2) leveling or straightening markers or memorials;

(3) properly maintaining lawns, shrubbery, and other plants;

(4) removing debris, including dead flowers and deteriorated

plastic ornaments; and

(5) promptly restoring gravesites following an interment.

Added by Acts 2009, 81st Leg., R.S., Ch.

914, Sec. 14, eff. September 1, 2009.

SUBCHAPTER B. COUNTY REGULATION OF CEMETERIES

Sec. 713.021. COUNTY TRUST FOR CEMETERY. A commissioners court

by resolution may establish a perpetual trust fund to provide

maintenance for a neglected or unkept public or private cemetery

in the county. The commissioners court shall appoint the county

judge as trustee for the fund.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.022. GIFTS FOR MAINTENANCE OF CEMETERY. (a) A trustee

for a county perpetual trust fund may adopt reasonable rules to

receive a gift or grant from any source and to determine the

amount necessary for permanent maintenance of the cemetery.

(b) A person who is interested in the maintenance of a neglected

or unkept public or private cemetery in the county may make a

gift to the trust fund for maintenance of the cemetery.

(c) The trustee's acceptance of the gift is a perpetual trust

for the maintenance of the cemetery.

(d) On acceptance of the gift, the trustee shall instruct the

county treasurer to issue a certificate to the donor. The

certificate must state:

(1) the amount and purpose of the gift; and

(2) other information determined necessary by the trustee.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.023. USE OF FUNDS. (a) The trustee may invest the

fund in interest-bearing bonds or federal, state, or local

government securities.

(b) The principal of the fund must be kept intact as a permanent

principal trust fund.

(c) The income or revenue of the fund may be used only for

maintenance of a neglected or unkept public or private cemetery

in the county.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.024. APPOINTMENT OF SUCCESSOR TRUSTEE. If a county

judge who is acting as a trustee under this subchapter vacates

the office or renounces the trust, the district judge shall

appoint a person, other than a county commissioner, as successor

trustee to execute the trust.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.025. PRIVATE CARE OF GRAVES. This subchapter does not

affect the right of a person to maintain a grave or burial lot in

a cemetery if the person:

(1) has an interest in the grave or burial lot; or

(2) is related within the fifth degree by affinity or

consanguinity, as determined under Chapter 573, Government Code,

to, or is a direct descendant of, a decedent interred in a

cemetery maintained by a trustee under this subchapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 34, eff. Aug. 26,

1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(27), eff. Sept. 1,

1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

914, Sec. 15, eff. September 1, 2009.

Sec. 713.026. USE OF PUBLIC FUNDS AND PROPERTY PROHIBITED;

EXCEPTIONS. (a) Except as provided by Sections 713.027 and

713.028, a trustee of a fund established under this subchapter or

a member of the commissioners court or any other elected county

officer may not pay or use public funds or county employees,

equipment, or property to maintain a neglected or unkept public

or private cemetery.

(b) Subsection (a) does not apply to a county if:

(1) the county owned the cemetery from September 1, 1976,

through January 1, 1979; or

(2) the county used county funds, employees, equipment, or

property to maintain a county-owned cemetery during 1976.

(c) A county described by Subsection (b)(1) or (2) may continue

to own the cemetery or to provide maintenance for the cemetery

that qualified the county for the exception if the county files

with the secretary of state a certified copy of a commissioners

court order certifying that the county qualifies to own or

maintain a cemetery under this section. The order must be kept in

a register entitled "County-Owned and -Operated Cemeteries."

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.027. CEMETERY OWNED BY COUNTY OF 8,200 OR LESS. (a) A

county with a population of 8,200 or less may own, operate, and

maintain a cemetery and sell the right of burial in the cemetery.

(b) The sale of the right of burial is exempt from the

requirements of Sections 263.001-263.006, Local Government Code.

(c) Revenue received from the sale of the right of burial may be

used to purchase additional land for cemetery purposes and for

maintenance of county cemetery property.

(d) The commissioners court of the county may spend money in the

general fund to maintain a public cemetery in the county and may

dedicate not more than one-eighth of the maximum allowable tax

levy for that purpose.

(e) The commissioners court of the county serves as the county

cemetery board and shall manage cemetery property.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 713.028. COUNTY CARE OF CEMETERY OLDER THAN 50 YEARS. (a)

For purposes of historical preservation or public health, safety,

or welfare, a commissioners court may use public funds, county

employees, county inmate labor as provided by Article 43.10, Code

of Criminal Procedure, and county equipment to maintain a

cemetery that has a grave marker more than 50 years old.

(b) This section does not apply to a perpetual care cemetery or

a cemetery maintained by a religious or fraternal organization.

(c) At the discretion of the commissioners court, a county may

permit the use of public funds, county employees, county inmate

labor as provided by Article 43.10, Code of Criminal Procedure,

and county equipment to open and close graves in a cemetery

described by Subsection (a).

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 2001, 77th Leg., ch. 1168, Sec. 1, eff. June 15,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

853, Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

1187, Sec. 2, eff. June 18, 2005.

Sec. 713.029. COUNTY AUTHORITY TO PURCHASE BURIAL GROUNDS FOR

VETERANS. (a) A commissioners court may purchase burial grounds

to be used exclusively for the burial of honorably discharged

persons who:

(1) have served in the United States armed forces during a war

in which the United States participated; and

(2) die without leaving sufficient means to pay funeral

expenses.

(b) A commissioners court may not purchase burial grounds under

this section if there is a national military cemetery or other

military plot in the county in which honorably discharged

veterans of the United States armed forces may be buried free of

charge.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.