HBA-MPM H.B. 817 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 817 By: Jones, Jesse State, Federal & International Relations 4/21/1999 Introduced BACKGROUND AND PURPOSE In addition to human remains, cemeteries also contain historical information about our society and its various cultures. Current state laws have been enacted to protect cemeteries, however, they have been inadequate in protecting cemeteries and graves from destruction and desecration by some land owners, land developers, and governmental units. H.B. 817 amends existing laws to strengthen protection of cemeteries. The bill makes burial records more readily available to the public, preserves known and unknown cemeteries, and punishes individuals who destroy or desecrate cemeteries. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 711.011, Health and Safety Code, by adding Subdivisions (29) and (30), as follows: (29) Defines "professional archeologist"as a person certified by the Society of Professional Archeologists or approved by the state archeologist as meeting the qualifications for certification. (30) Defines "archeological study" as the systematic recovery by scientific methods of material evidence from real property and the detailed study of the evidence using methods and procedures adopted by the Society of Professional Archeologists or customarily used by professional archeologists. SECTION 2. Amends Section 711.003, Health and Safety Code, as follows: Section 711.003. RECORDS OF INTERMENT. (a) Created from existing text. (b) Provides that records kept under this section are public information and shall be made available during regular business hours. Provides that a reasonable number of copies of records may be obtained so as not to interfere with the regular business of the cemetery. Provides that if a cemetery does not have the facilities to maintain the records and make them available to the public, the records may be filed with the municipal clerk of the municipality in which the cemetery is located or in the public library of the county or municipality. (c) Provides that the records shall be filed with the county clerk of the county in which the cemetery is located, and authorizes the county clerk to collect a fee for a filing in an amount permitted by law. (d) Provides that the records are required to be filed annually with the state archives and authorizes the state archives to collect a fee that is reasonable and necessary to defray administration costs. SECTION 3. Amends Section 711.007, Health and Safety Code, by adding Subsections (e) and (f), as follows: (e) Requires the court to order an archeological study to be conducted by a professional archeologist in determining whether to enjoin the use of or to abate a cemetery. Provides that the person seeking the injunction or abatement is liable for the cost of the study. Provides that the study is required to be conducted over an area that extends 150 feet beyond the visible boundary of the cemetery. (f) Grants the person who conducts an archeological study a right of access to property on which the study is to be conducted. SECTION 4. Amends Section 711.008, Health and Safety Code, as follows: Sec. 711.008. LOCATION OF CEMETERY. (a) Prohibits a person from establishing or expanding a cemetery in a municipality unless the person files an application with the governing body of that municipality and the application is granted. Deletes existing text regarding a cemetery's required distance from municipal boundaries. (b) Created from existing Subsection (c). Authorizes a cemetery organization operating a cemetery to acquire land adjacent but not necessarily contiguous to the cemetery for cemetery purposes if additional land is required when the cemetery is used and maintained in a municipality, rather than inside the limits set forth in deleted Subsection (a). Requires the organization to comply with the application requirements under Subsection (a). Makes a nonsubstantive change. (c) Requires the governing body of a municipality (governing body), by ordinance, to prescribe the information required in an application filed under this section or under regulations adopted by the governing body. (d) Requires the governing body to conduct a public hearing on the application subsequent to publishing a public notice in a newspaper of general circulation in the municipality not more than 60 days or less than 30 days prior to the hearing. Requires the person seeking to establish or expand the cemetery to give notice within that period by certified mail to each property owner whose land is located within 200 feet of the cemetery boundaries or proposed cemetery, as well as to all surviving owners of plats within 200 feet of the boundaries in an existing cemetery. Deletes existing text. (e) Requires the person who files the application to pay the costs for providing notice. Deletes existing text. (f) Authorizes the governing body to grant the application if it is determined that the establishment or use of the cemetery does not adversely affect public health, safety, and welfare. (g) Provides that the application must be granted by each municipality required to receive an application before the person may establish or use the cemetery. (h) Stipulates that this section does not apply to a family, fraternal, or community service of less than five acres or a church, religious society or denomination, or an organization solely administering the temporalities of a church or religious society or denomination. (k) Deletes existing text relating to the location of a cemetery. Note that previous Subsections (f)-(j) were deleted by Acts of the 73rd Legislature, Regular Session, 1993, Chapter 634, Section 7, effective September 1, 1993. SECTION 5. Amends Subchapter A, Chapter 711, Health and Safety Code, by adding Sections 711.010-711.015, as follows: Sec. 711.010. LOCAL STANDARDS; CEMETERY ADVISORY BOARD. (a) Authorizes the governing body of a county or municipality (governing body) to adopt regulations to preserve and protect cemeteries in their respective jurisdiction and to provide standards of operation and maintenance. Provides that the regulations of the municipality prevail if there is a conflict in regulations between a county and a municipality. (b) Authorizes the governing body to adopt all or parts of this subtitle, as well as additional regulations providing standards for cemeteries in their respective jurisdiction to protect the health, safety, and welfare of the residents of that jurisdiction. (c) Authorizes the governing body to appoint a five-member advisory board to advise the governing body concerning standards of operation and maintenance, including the physical appearance, of cemeteries or parts of cemeteries located in the county or municipality. Sec. 711.011. DESTRUCTION OF CEMETERY. (a) Prohibits a property owner from intentionally destroying, damaging or desecrating a cemetery located on or partly on the person's property. Requires the property owner to repair any intentional or negligent damage done to the cemetery by the owner. (b) Requires a property owner to make reasonable efforts to determine whether a cemetery is located on the person's property before allowing any improvements to be constructed. (c) Provides that a person commits an offense, which is a felony of the third degree, if the person violates Subsection (a). (d) Provides that this section is cumulative and in addition to any provision of the Penal Code. Sec. 711.012. DISCOVERY OF CEMETERY DURING CONSTRUCTION. (a) Prohibits a person who discovers an unknown, abandoned cemetery during construction from continuing that construction in a manner that would disturb the cemetery until the person has sought and obtained a court order abating the cemetery and enjoining its continuance. (b) Authorizes a district court in which the construction is occurring to authorize removal of all bodies, monuments, tombs, or similar items from the cemetery to a perpetual care cemetery. (c) Requires the person who is required to abate the cemetery and relocate its artifacts to pay relocation costs. (d) Requires a district court to order an archeological study to be conducted by a professional archeologist if the court authorizes the removal of graves. Requires the archeologist to monitor the removal and relocation to ensure that all human remains are removed and relocated. Provides that the archeological costs are part of the relocation costs. Sec. 711.013. FILING RECORD OF UNKNOWN CEMETERY. (a) Requires a person who discovers an unknown, abandoned cemetery to file a notice of the cemetery with the county clerk in the county where the cemetery is located. (b) Prohibits the county clerk from charging a fee for filing notice under this section. Sec. 711.014. GRAVE MARKERS AND HEADSTONES. (a) Prohibits a person from requiring another person, by regulation or otherwise, to purchase a grave marker (marker) or headstone from a particular vendor or manufacturer. (b) Prohibits a person from requiring, by regulation or otherwise, that a marker or headstone be set in place by a particular person, or charging a fee for placing the markers unless employed to do so by the plot owner or person authorized to act on the owner's behalf. (c) Authorizes a cemetery association to establish a reasonable fee for the location, supervision, and amendment of records related to the installation of markers and headstones. (d) Authorizes a cemetery association to require that persons installing headstones or markers provide proof of adequate general liability and worker's compensation insurance coverage. Sec. 711.015. NOTICE OF CHANGE IN USE. (a) Requires the cemetery owner or organization to send notices by certified mail to each surviving person who owns a plot within 200 feet of the cemetery boundaries if there is a proposed change in use of part of a cemetery. (b) Makes the provisions of this chapter governing the establishment or expansion of a cemetery applicable to a change in use of a cemetery. SECTION 6. Amends Section 711.024, Health and Safety Code, as follows: Sec. 711.024. New title: AUTHORITY OF CEMETERY ORGANIZATION. Deletes "nonprofit" and "corporation" from the title. (a) Authorizes a cemetery organization organized by plot owners, rather than a nonprofit cemetery corporation organized by plot owners, to divide cemetery property into lots and subdivisions for cemetery purposes and charge assessments on the property for general improvement and maintenance. (b) Prohibits an owner, director, or board of directors of a cemetery organization from removing a dedication from property dedicated for cemetery purposes except as provided by this chapter. SECTION 7. Amends Section 711.031, Health and Safety Code, by adding Subsection (d), as follows: (d) Provides that a rule adopted by a cemetery organization may not be less stringent than or conflict with a regulation adopted by the governing body of the county or municipality where the cemetery is located. SECTION 8. Amends Sections 711.033(b) and (d), Health and Safety Code, to provide that a declaration executed by a cemetery organization which declares the organization's intent to use all or part of the property for internment purposes must be filed with the county clerk of the county or the clerk of the municipality where the property is located. Makes a nonsubstantive change. SECTION 9. Amends Sections 711.034(b) and (e), Health and Safety Code, to include the clerk of each municipality in which all or part of the property is located, as well as the county clerk of each county, among those with whom the cemetery organization is required to file a map or plat. Provides that a filing fee may not be charged. Provides that a certificate or declaration may not contain a provision permitting the directors, by order, to resurvey and change the shape and size of the property for which the associated map or plat is filed without applying to the governing body of the county or municipality where the cemetery is located and obtaining its approval. Deletes language stipulating that the provision may permit an unapproved change if the change does not disturb any interred remains. SECTION 10. Amends Section 711.036, Health and Safety Code, as follows: Sec. 711.036. New title: REMOVAL OF DEDICATION FOR ANY TYPE OF CEMETERY. (a) Provides that land that is or has been dedicated for cemetery purposes shall remain dedicated until the dedication is removed by a district court. Makes this section applicable to a perpetual care cemetery, nonperpetual care cemetery, or profit or nonprofit cemetery. (b) Authorizes a district court of a county in which a dedicated cemetery is located, by order, to remove the dedication of that cemetery if all the remains have been removed from the portion of the cemetery where the dedication is to be removed. Makes conforming and nonsubstantive changes. (c) Prohibits a cemetery organization from removing remains from a grave until the district court has been petitioned in the county where the cemetery is located for a court order abating the use of that portion of the cemetery for cemetery purposes and enjoining its continuance as a cemetery. (d) Authorizes a district court to authorize the removal of all bodies, monuments, tombs, or similar items from the portion of the cemetery to another portion of the cemetery or to a perpetual care cemetery if the court finds that the cemetery organization has notified all living owners of plots in the cemetery and, to the extent the cemetery has in its records that information, a surviving relative of each person whose remains are to be moved and has given those persons an opportunity to protest the removal of the dedication. Authorizes the court to consider the protests of plot owners and survivors of plot owners. Prohibits the court from permitting the removal of a cemetery dedication for the construction of a public road or highway or the construction of a commercial, funeral, or residential building on the dedicated property. (e) Requires the cemetery organization seeking to remove the dedication to pay the cost of relocating the graves. (f) Provides that a dedication may not be removed until the cemetery organization seeking removal has conducted an archeological study by a professional archeologist. (g) Requires the court to order the cemetery organization to employ a professional archeologist to monitor the removal and relocation of remains to ensure that all human remains are removed if the removal of the cemetery dedication is authorized. Requires the cemetery organization seeking the removal of the dedication to pay the cost of the archeologist's services. (h) Sets forth various entities and individuals who may bring about a proceeding. SECTION 11. Amends Section 28.03(f), Penal Code, to provide that the damage or destruction inflicted on a place of worship or human burial, a public monument, or a community center providing certain programs is a felony of the third degree, rather than a state jail felony, if the pecuniary loss to real or tangible personal property is less than $20,000. SECTION 12. Amends Section 31.03, Penal Code, by adding Subsection (i), as follows: (i) Specifies that a person who receives a tombstone or vase from another person is presumed to know that the items are stolen from a cemetery or place of burial unless the items are new and are accompanied with a receipt for purchase from a burial products supplier. SECTION 13. Amends Section 42.08(b), Penal Code (Abuse of Corpses), to make an offense under this section a felony of the third degree, rather than a Class A misdemeanor. SECTION 14. Amends Title 9, Natural Resources Code, by adding Chapter 192, as follows: CHAPTER 192. DISCOVERY OF BURIALS Sec. 192.001. DEFINITIONS. Defines "burial" as a marked or unmarked place, excavation, or construction, including a pit, tomb, cairn, mound, or other facility in Texas made or used for interment of human remains or burial objects. Defines "burial object" as an object located in a burial, including an item of personal adornment, a casket or casket hardware, or other similar objects or materials of archeological significance. Defines "commission" as the Texas Historical Commission. Defines "human remains" as the physical remains of a human body, including bone, teeth, mummified flesh, and ash found within a burial. Defines "medical examiner" as a person appointed under Section 2, Article 49.25, Code of Criminal Procedure (Medical Examiners, Appointments and Qualifications). Defines "professional archeologist" as person certified by the Society of Professional Archeologists or approved by the state archeologist as meeting the training and experience requirements for certification. Defines "state archeologist" as the person employed by Texas Historical Commission (commission) under Section 442.007, Government Code (State Archeological Program). Sec. 192.002. DISCOVERY OF BURIAL. (a) Requires a person who discovers a burial to cease activity that may disturb the burial and notify the medical examiner who has authority over the area where the burial is located, or a justice of the peace for the county where the burial is located if there is no medical examiner for the area, except as provided by Subsection (b). (b) Requires a person who discovers a burial during an archeological investigation conducted by a professional archeologist to cease activity that may disturb the burial and inform the archeologist in charge of the investigation. (c) Specifies that activity that may disturb the burial may not resume without the approval of the medical examiner, justice of the peace, or archeologist. Sec. 192.003. INVESTIGATION BY ARCHEOLOGIST. (a) Requires an archeologist notified of an activity that may disturb a burial to immediately investigate the burial and stop any activity that may disturb the burial. (b) Requires the archeologist to notify the medical examiner or justice of the peace, as appropriate, if the archeologist finds that the burial is that of a person who has been dead less than 75 years. (c) Requires the archeologist to immediately notify the state archeologist if the archeologist finds that the burial is that of a person who has been dead 75 years or longer. (d) Requires the archeologist, no later than the 15th day after the date the state archeologist is notified, to report to the state archeologist on the cultural and biological characteristics of the burial and to recommend temporary disposition of any human remains or burial objects. Sec. 192.004. TEMPORARY JURISDICTION OVER BURIAL FOUND ON PRIVATE LAND. (a) Provides that following oral or written notice to the owner of private land on which a burial is found, the commission has temporary jurisdiction over the burial and associated human remains (remains) for the purpose of protecting, studying, and determining the appropriate disposition of the burial and remains as provided in Section 192.005. (b) Requires the commission, on or before the 60th day after it assumes temporary jurisdiction, to provide the landowner a proposed work plan, effective on written approval of the landowner, including a description of the physical boundaries of the burial and the proposed period during which temporary jurisdiction will be assumed. (c) Provides that the commission's assumption of temporary jurisdiction over a burial on private land does not allow public access on the private land. Sec. 192.005. DISPOSITION OF BURIAL. (a) Requires the state archeologist to determine the proper disposition of a burial provided by this section. (b) Requires the state archeologist, before making a disposition, to determine the historical, archeological, or scientific significance of the burial or remains and burial objects; to appoint a bioarcheologist to examine the burial or remains and objects deemed significant by the state archeologist; and to make reasonable efforts to identify and locate persons who can establish direct kinship or community relationships with a person whose remains are found at the burial. (c) Requires the state archeologist to consult with the persons and appropriate persons in the community on the proper disposition of the burial, should the state archeologist identify and locate persons who can establish direct kinship or community relations with a person whose remains are found at a burial site. (d) Requires the state archeologist who is making a disposition of a burial over which the commission has temporary jurisdiction to provide to the landowner an opportunity to be heard by the state archeologist. (e) Authorizes the state archeologist to recommend, as a part of the disposition of the burial, that the commission assume permanent jurisdiction over the burial and remains or burial objects. Sec. 192.006. PERMANENT JURISDICTION OVER BURIAL FOUND ON PRIVATE LAND. (a) Authorizes the commission to assume permanent jurisdiction concerning a burial upon recommendation by the state archeologist. (b) Provides that the commission's assumption of permanent jurisdiction over a burial on private land does not allow public access on the private land. Sec. 192.007. REPORT TO STATE ARCHEOLOGIST. (a) Requires a professional archeologist or bioarcheologist who conducts an investigation or scientific analysis of a burial and remains or burial objects recovered from private land to submit a report to the state archeologist before the first anniversary of the date that the investigation is completed. (b) Requires the state archeologist to submit a copy of the findings to the owner of the land where the site is located within two weeks of receiving the findings. (c) Provides that the archeologist or bioarcheologist retains all rights regarding publication of those findings. Sec. 192.008. EXCAVATION NOT REQUIRED. Specifies that this chapter requires excavation of a human burial only if excavation is necessary to prevent destruction to the remains or burial objects. Sec. 192.009. EXPIRATION. Terminates the authority of this state to assume jurisdiction on private land if a suitable means to compensate the landowner for the past and future assumption of jurisdiction of burial sites cannot be found by September 1, 2004. Sec. 192.010. DISTURBING A BURIAL. (a) Specifies that a person commits an offense if the person intentionally or knowingly disturbs, damages, or destroys a burial or a burial marker; removes human remains or a burial object from a burial; or buys, sells, or barters human remains. (b) Makes an offense under Subsection (a) a felony of the third degree. (c) Provides that a person commits an offense if the person knows that a burial is being disturbed, damaged, or destroyed and intentionally or knowingly fails to notify a law enforcement agency under whose jurisdiction the burial site falls. (d) Makes an offense under Subsection (c) a Class A misdemeanor. (e) Provides that it is an exception to the application of this section that the human remains or burial objects were recovered under Chapter 191, Natural Resources Code (Antiquities Code), or any applicable federal law, rule, or executive order, including: (1) 16 U.S.C., Sections 469-469c-1 (Conservation; Historic Sites, Buildings, Objects and Antiquities); (2) Subchapter II, Chapter 1A, Title 16, United States Code (National Parks, Military Parks, Monuments, and Seashores; Volunteers in Parks Program); (3) Executive Order No. 11593, 36 C.F.R. 8921 [sic] (Protection and Enhancement of the Cultural Environment); (4) 36 C.F.R., Part 800 (Protection of Historic and Cultural Properties); or (5) the Archeological Resource Protection Act of 1979, 16 U.S.C., Section 470aa, et. seq. (Conservation; Archaeological Resources Protection). (f) Provides that the state assumes jurisdiction over human remains or burial objects associated with the offense on conviction of an accused. (g) Provides that if conduct constituting an offense under this section also constitutes an offense under a section of the Penal Code, the person may be prosecuted under either section. SECTION 15. Makes application of this Act prospective. SECTION 16. Effective date: September 1, 2000. SECTION 17. Emergency clause.