CHAPTER 715. CERTAIN HISTORIC CEMETERIES - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 8. DEATH AND DISPOSITION OF THE BODY

SUBTITLE C. CEMETERIES AND CREMATORIES

CHAPTER 715. CERTAIN HISTORIC CEMETERIES

Sec. 715.001. DEFINITIONS. In this chapter:

(1) "Burial park," "cemetery purposes," "crematory,"

"mausoleum," and "plot" have the meanings assigned by Section

711.001.

(2) "Cemetery" means a place that is used for interment,

including a graveyard, burial park, or a mausoleum located on the

grounds of a graveyard or burial park.

(3) "Nonprofit corporation" means a corporation not for profit

subject to the provisions of the Texas Non-Profit Corporation Act

(Article 1396-1.01, et seq., Vernon's Texas Civil Statutes).

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.002. PETITION OF NONPROFIT CORPORATION. A nonprofit

corporation organized under this chapter to restore, operate, and

maintain a historic cemetery may petition the district court of

the county in which the cemetery is located to authorize the

nonprofit corporation to restore, operate, and maintain the

cemetery.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.003. PARTIES TO ACTION. An action commenced under this

chapter shall be brought by the incorporators of the nonprofit

corporation on behalf of the nonprofit corporation. The necessary

parties to the action on which citation shall be served under

Section 715.006 are:

(1) the record owners of the real property comprising the

historic cemetery;

(2) the owners of plots in the cemetery, who may be designated

as a class in the petition;

(3) the Texas Historical Commission; and

(4) the Texas Funeral Service Commission.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995. Amended by Acts 2003, 78th Leg., ch. 562, Sec. 40, eff.

Sept. 1, 2003.

Sec. 715.004. CONTENTS OF PETITION. (a) A petition filed by a

nonprofit corporation under this chapter must contain a legal

description of the real property comprising the historic cemetery

and must aver to the court that:

(1) the nonprofit corporation, through its members and

incorporators, has a religious, ethnic, historic, or cultural

relationship to the cemetery;

(2) the cemetery was established more than 75 years before the

date the action was commenced;

(3) a viable organization of plot owners of the cemetery does

not exist; and

(4) the cemetery threatens or endangers the public health,

safety, comfort, or welfare.

(b) The petition must be accompanied by the written plan

described by Section 715.005.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.005. WRITTEN PLAN. (a) The written plan accompanying

the nonprofit corporation's petition must include:

(1) a description of the actions to be taken by the nonprofit

corporation to restore, operate, and maintain the historic

cemetery, which must include:

(A) repair of any fences;

(B) straightening, leveling, and resetting of memorials or

embellishments in the cemetery that are a threat or danger to the

public health, safety, comfort, or welfare;

(C) taking proper steps to restore and continuously operate and

maintain the cemetery in an orderly and decent fashion that does

not endanger the public health, safety, comfort, or welfare;

(D) restoration of damaged memorials; and

(E) restoration and maintenance of cemetery elements as defined

by Section 711.001;

(2) the anticipated costs of the actions described under

Subdivision (1);

(3) the time that the actions described by Subdivision (1) will

be commenced and the time that it is anticipated the actions will

be completed;

(4) a description of the actions to be taken by the nonprofit

corporation for the proper conduct of its business and for the

protection of the cemetery and the principles, plans, and ideals

on which the cemetery was established;

(5) the percentage of the total purchase price of each plot in

the cemetery sold and conveyed by the nonprofit corporation to be

deposited in the trust fund established under Section 715.011,

which must be at least 10 percent of the total purchase price of

the plot; and

(6) a description of the records to be maintained by the

nonprofit corporation, including records regarding:

(A) the sale of plots in the cemetery;

(B) the interments in the cemetery;

(C) the total purchase price received from the sale of each plot

in the cemetery;

(D) the percentage of the total purchase price of each plot in

the cemetery deposited in the trust fund established under

Section 715.011; and

(E) the income received by the nonprofit corporation from the

trust fund established under Section 715.011 and the manner in

which the income is used by the nonprofit corporation for the

maintenance and care of the cemetery.

(b) After the written plan is filed, the court may require that

the nonprofit corporation modify the plan to include other

matters specified by the court.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Amended by:

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

914, Sec. 16, eff. September 1, 2009.

Sec. 715.006. SERVICE OF CITATION. (a) Before the 31st day

after the date an action is commenced by a nonprofit corporation

under this chapter, the nonprofit corporation shall cause

citation to be issued and served by certified mail, return

receipt requested, on:

(1) the record owners of the real property comprising the

cemetery at their last known addresses;

(2) the owners of plots in the cemetery at their last known

addresses;

(3) the Texas Historical Commission at its office in Austin,

Texas;

(4) the Texas Funeral Service Commission; and

(5) the county auditor of the county in which the cemetery is

located.

(b) The citation must be accompanied by a copy of the petition.

(c) If the address or identity of a plot owner is not known and

cannot be ascertained with reasonable diligence, service by

publication shall be made on the plot owner by publishing notice

at least three times in a newspaper of general circulation in the

county in which the cemetery is located. If there is not a

newspaper of general circulation in the county in which the

cemetery is located, the notice may be published in a newspaper

of general circulation in an adjoining county.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995. Amended by Acts 2003, 78th Leg., ch. 562, Sec. 41, eff.

Sept. 1, 2003.

Sec. 715.007. HEARING. (a) Not later than the 90th day after

the date the petition is filed, the court shall hold a hearing on

the petition.

(b) Notice of the hearing shall be given by the nonprofit

corporation to the parties listed in Section 715.003 not later

than the 30th day before the date of the hearing.

(c) The notice shall be given in the manner prescribed by

Section 715.006 for service of citation.

(d) At the hearing, each of the parties listed in Section

715.003 shall be given an opportunity to be heard by the court

and to answer the petition of the nonprofit corporation.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.008. COURT ORDER. (a) The court shall issue an order

authorizing the nonprofit corporation to restore, operate, and

maintain the cemetery if the court finds that:

(1) the facts stated in the petition filed by a nonprofit

corporation under this chapter are true and correct;

(2) the written plan accompanying the petition demonstrates the

nonprofit corporation's ability to restore, operate, and maintain

the historic cemetery in accordance with this chapter; and

(3) authorizing the nonprofit corporation to restore, operate,

and maintain the cemetery is in the best interest of the public.

(b) The written plan must be incorporated in the court's order.

(c) The court's order is binding on all parties to the action.

(d) The court retains continuing jurisdiction to monitor and

review compliance with the court's order.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.009. NONPROFIT CORPORATION. (a) The members of a

nonprofit corporation authorized to restore, operate, and

maintain a historic cemetery are the plot and property owners of

the cemetery.

(b) Each plot owner may exercise the rights and privileges of a

member of the nonprofit corporation without regard to whether the

plot owner acquired the plot before or after the nonprofit

corporation was organized.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.010. ORGANIZATIONAL MEETING. (a) A nonprofit

corporation authorized to restore, operate, and maintain a

historic cemetery shall, not later than the 10th day after the

date of the order of the court under Section 715.008:

(1) publish notice of the time and place of the organizational

meeting of the members of the nonprofit corporation in a

newspaper having general circulation in the county in which the

cemetery is located or, if there is no newspaper of general

circulation in the county in which the cemetery is located, in a

newspaper of general circulation in an adjoining county; and

(2) post written notice of the time and place of the meeting at

the cemetery.

(b) The notice published under Subsection (a)(1) must be

published not later than the 30th day before the date of the

meeting and repeated twice before the date of the meeting. The

notice may not be published more than once a week.

(c) The written notice posted under Subsection (a)(2) must be

posted not later than the 30th day before the date of the hearing

and must remain posted until the date of the hearing.

(d) At the organizational meeting of the members of a nonprofit

corporation authorized to restore, operate, and maintain a

historic cemetery, a majority of the members present and voting

at the meeting shall elect a board of directors of the nonprofit

corporation. Directors and officers are not required to be

members of the nonprofit corporation.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.011. POWERS AND DUTIES OF NONPROFIT CORPORATION; TRUST

FUND. (a) A nonprofit corporation authorized to restore,

operate, and maintain a historic cemetery may divide cemetery

property into lots and subdivisions for cemetery purposes and

charge reasonable assessments on the property for the purposes of

general improvement and maintenance of the cemetery.

(b) The nonprofit corporation may sell and convey the exclusive

right of sepulture in any unsold plot in the cemetery if, before

the sale and conveyance of any right of sepulture, the nonprofit

corporation establishes a trust fund to provide for the perpetual

maintenance of the cemetery.

(c) The county auditor of the county in which the cemetery is

located shall act as the trustee of the trust fund.

(d) The nonprofit corporation shall deposit in the trust fund

the amount required under the written plan incorporated in the

court's order not later than the 20th day after the last day of

the month in which the total purchase price of a plot has been

paid in full.

(e) The nonprofit corporation shall file a monthly statement

with the county auditor, signed by the president and secretary of

the nonprofit corporation, that verifies that all funds required

to be deposited in the trust fund during the preceding month have

been deposited in the trust fund and that any income disbursed

from the trust fund during the preceding month was used by the

nonprofit corporation for the maintenance and care of the

cemetery.

(f) The principal of a trust fund established under this section

may not be reduced voluntarily, and it must remain inviolable.

(g) The trust fund and the trustee are governed by Title 9,

Property Code.

(h) The trustee may receive and hold as part of the trust fund

any property contributed as a gift or grant to the trust fund for

the perpetual maintenance of the historic cemetery.

(i) The income of the trust fund may be applied in the manner

the directors of the nonprofit corporation determine to be for

the best interest of the cemetery and may be used only for the

maintenance and care of the cemetery.

(j) A district court of the county in which the historic

cemetery is located shall appoint a suitable successor trustee of

a trust fund established under this section if the county auditor

resigns the position of trustee of the trust fund or fails to act

as its trustee.

(k) The county auditor or other person who acts as the trustee

of a trust fund established under this section is not civilly or

criminally liable for acts performed in the good faith

administration of the trust fund.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.012. CREMATORY PROHIBITED. A nonprofit corporation

authorized to restore, operate, and maintain a cemetery under

this chapter may not construct, establish, or maintain a

crematory.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.013. ADJACENT OR CONTIGUOUS CEMETERY. A nonprofit

corporation authorized to restore, operate, and maintain a

historic cemetery may not acquire land for cemetery purposes that

is adjacent or contiguous to the cemetery unless the adjacent or

contiguous land is operated as a perpetual care cemetery under

Chapter 712. The nonprofit corporation may not petition the

district court of the county in which the cemetery is located to

remove the dedication with respect to all or any portion of the

cemetery.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.014. CEMETERY OPEN TO PUBLIC. A historic cemetery

restored, operated, and maintained by a nonprofit corporation

under this chapter must remain open to the public.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.

Sec. 715.015. EXEMPTION. This chapter does not apply to:

(1) a perpetual care cemetery; or

(2) a family cemetery.

Added by Acts 1995, 74th Leg., ch. 899, Sec. 1, eff. Aug. 28,

1995.