HBA-MPM, C.S.H.B. 817 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 817 By: Jones, Jesse State, Federal & International Relations 4/30/1999 Committee Report (Substituted) 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. C.S.H.B. 817 amends existing laws to strengthen protection of 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 Subchapter A, Chapter 711, Health and Safety Code, by adding Sections 711.010-711.011, as follows: Sec. 711.010. UNKNOWN OR ABANDONED CEMETERY. (a) Prohibits the owner of property on which an unknown cemetery is discovered or on which an abandoned cemetery is located from constructing improvements on the property in a manner which would disturb the cemetery until the human remains interred are removed under a written order issued by the state registrar or the registrar's designee under Section 711.004(f) (Removal of Remains), Health and Safety Code, which provides that except as is authorized for a justice of the peace acting as coroner or medical examiner, remains may not be removed from a cemetery except on the written order of the state registrar or the registrar's designee, and requires a cemetery organization to keep a duplicate copy of the order as part of its records. (b) Requires a district court of the county in which an unknown cemetery is discovered or an abandoned cemetery is located to order the removal of any dedication for cemetery purposes that affects the property upon petition of the property owner. Requires the court to order the removal of human remains from the cemetery to a perpetual care cemetery if all remains have not been previously removed. Requires a petition made by the property owner to be made ex parte in the name of the owner without naming any defendant or joinder of any other person. (According to Black's Law Dictionary, Sixth Edition, "ex parte" means on one side only; by or for one party; done for, in behalf of, or on the application of, one party only.) Sec. 711.011. FILING RECORD OF UNKNOWN CEMETERY. Requires a person who discovers an unknown or abandoned cemetery to file notice of that cemetery with the county clerk of the county where the cemetery is located. Prohibits the county clerk from charging a fee for filing notice under this section. SECTION 2. Amends Subchapter C, Chapter 711, Health and Safety Code, by adding Section 711.042, Health and Safety Code, as follows: Sec. 711.042. AUTHORITY OF NONPROFIT CEMETERY ORGANIZATION. Provides that a nonprofit cemetery organization (organization) organized by plot owners may divide cemetery property into lots and subdivisions for cemetery purposes; charge assessments on the property for the purposes of general improvement and maintenance; and take any action, to the same extent and for the same purposes as for a for-profit organization, necessary to carry out the organization's business purposes, including those necessarily incident to the burial and disposal of human remains, including certain necessary actions. SECTION 3.Emergency clause. Effective date: upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 817 differs from the original bill by deleting all proposed text of the original with the exception of SECTION 5, which adds Section 711.013 (Filing Record of Unknown Cemetery), Health and Safety Code. This proposed section is redesignated to SECTION 1, Section 711.011, Health and Safety Code, of the substitute. Therefore, with the exception of Section 711.011, the substitute proposes entirely new text. Please see the Section-by-Section Analysis in this document. The following were deleted in the original: SECTION 1. Amends Section 711.011, Health and Safety Code, by adding Subdivisions (29) and (30), which added certain definitions to this section. SECTION 2. Amends Section 711.003 (Records of Interment), Health and Safety Code. SECTION 3. Amends Section 711.007, Health and Safety Code, by adding Subsections (e) and (f), regarding use of an archeological study to determine whether to enjoin the use of a cemetery or abate a cemetery and certain rights of access by the person conducting that study. SECTION 4. Amends Section 711.008 (Location of Cemetery), Health and Safety Code, regarding the prohibition of cemetery expansion in a municipality unless certain applications are filed, the deletion of codified text regarding the establishment or location of the cemetery with respect to the boundaries of the municipality, application requirements of a cemetery organization, and public hearings on certain applications made by the organization. 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. Sec. 711.011 Destruction of Cemetery. Sec. 711.012. Discovery of Cemetery During Construction. (Sec. 711.013, (Filing Record of Unknown Cemetery) is redesignated to SECTION 1, Section 711.011, of the substitute.) Sec. 711.014. Grave Markers and Headstones. Sec. 711.015. Notice of Change in Use. SECTION 6. Amends Section 711.024, Health and Safety Code, regarding the authority of cemetery organizations. SECTION 7. Amends Section 711.031, Health and Safety Code, by adding Subsection (d), regarding rules adopted by a cemetery organization. SECTION 8. Amends Section 711.033(b) and (d), Health and Safety Code, regarding certain filing procedures. SECTION 9. Amends Sections 711.034(b) and (e), Health and Safety Code, regarding filing a map or plat and prohibition of certain filing fees. SECTION 10. Amends Section 711.036 (Removal of Dedication for any Type of Cemetery), Health and Safety Code. SECTION 11. Amends Section 28.03(f), Penal Code, regarding offenses under this section for the damage or destruction of a cemetery. SECTION 12. Amends Section 31.03, Penal Code, by adding Subsection (i), regarding the receipt of tombstones or vases from a third party. SECTION 13. Amends Section 42.08(b), Penal Code, to provide offenses under this section. SECTION 14. Amends Title 9, Natural Resources Code, by adding Chapter 192, as follows: CHAPTER 192. DISCOVERY OF BURIALS Sec. 192.001. Definitions. Sec. 192.002. Discovery of Burial. Sec. 192.003. Investigation by Archeologist. Sec. 192.004. Temporary Jurisdiction over Burial Found on Private Land. Sec. 192.005. Disposition of Burial. Sec. 192.006. Permanent Jurisdiction over Burial Found on Private Land. Sec. 192.007. Report to State Archeologist. Sec. 192.008. Excavation Not Required. Sec. 192.009. Expiration. Sec. 192.010. Disturbing a Burial. SECTION 16. Effective Date: September 1, 2000. SECTION 17. Emergency clause.