(a)What unique defined terms are used in this section?
(1)"Authorized person" means the person that has the
right to control the disposition of an individual's remains, as specified
by Health and [&] Safety Code, §711.002.
(2)"Barred individual" means a natural person whose
remains you have been or may be requested to inter in your cemetery,
who caused the death of a victim already interred in your cemetery
as a result of conduct constituting:
(A)murder under Penal Code, §19.02;
(B)capital murder under Penal Code, §19.03;
(C)criminally negligent homicide under Penal Code, §19.05;
(D)intoxication manslaughter under Penal Code, §49.08;
or
(E)a crime under a statute of another state that is
similar to Penal Code, §19.02, §19.03, §19.05,
or §49.08. [§§19.02, 19.03, 19.05, or 49.08.]
(3)"Time of interment" means the time you place the
remains of an individual in the individual's final resting place.
(4)"Written notice" means the notice specified by
Health and [&] Safety Code, §712.009(b)(2),
requesting that a barred individual not be interred in your cemetery.
(5)"You" or "I" means the owner or operator of a perpetual
care cemetery.
(6)"Department" means the Texas Department
of Banking.
(b)What should I do if I receive a written notice
requesting that I not inter a named person in my cemetery? If you
receive a written notice under Health and [&]
Safety Code, §712.009(b)(2), this subsection specifies the actions
you should take within the two-week period following the date you
receive the notice. It may be in your best interests to inform your
attorney and the [banking] department that you received
a notice under Health and [&] Safety Code, §712.009(b)(2).
If you consult an attorney, you should follow your attorney's advice.
(1)If you receive the written notice after the time
of interment of the person named as a barred individual in the notice,
you should state that interment has already occurred in a written
reply to the person who sent you the notice.
(2)If you receive the written notice prior to the
time of interment of the person named as a barred individual in the
notice, you should take the actions specified in this paragraph of
this subsection.
(A) - (C)(No change.)
(c)What must the written notice contain to satisfy
legal requirements? To satisfy the requirements of Health and [
&] Safety Code, §712.009, a written notice must be
received by you prior to the time of interment of the person named
as the barred individual, and must contain, or have attached documents
containing, information that unambiguously:
(1) - (4)(No change.)
(d)What must I do if I receive a written notice that
complies with subsection (c) of this section? If you are subject to
a written notice that satisfies the requirements of Health and [
&] Safety Code, §712.009(b)(2), as discussed in subsection
(c) of this section, you should take the actions specified in this
subsection.
(1) - (2)(No change.)
(3)If you are not aware that the barred individual
has died or you have not scheduled or been requested to provide interment
of the barred individual's remains, you should also make appropriate
entries in your records to remind you of future actions that may be
required if you are requested in the future to inter the barred individual's
remains. For example, if the written notice contained and relied on
a certified trial court judgment, you should, by means of a notice
in writing, give a reasonable opportunity (e.g., two weeks) to:
(A)the authorized person of the barred individual,
to submit satisfactory proof that the conviction was overturned on
appeal, to possibly avoid the application of Health and [
&] Safety Code, §712.009; and
(B)the authorized person of the victim, to submit
a document that satisfies subsection (c)(5)(B) of this section if
the conviction was overturned on appeal, or a certified document demonstrating
that the conviction was finally upheld on appeal, to ensure that Health
and [&] Safety Code, §712.009, will apply
to interment of the barred individual.
(e)Does a written notice that complies with subsection
(c) of this section ever expire?
(1)If you are subject to a written notice that satisfies
the requirements of Health and [&] Safety
Code, §712.009(b)(2), as discussed in subsection (c) of this
section, you are bound by Health and [&]
Safety Code, §712.009, for a period that ends seven years after
the date you received the written notice. However, the authorized
representative of the victim may periodically extend this period by
sending you a written renewal notice under Health and [&
] Safety Code, §712.009(f).
(2)If you receive a written renewal notice before
the expiration of the seven year period initiated by a previous notice,
you should immediately examine the written renewal notice, any accompanying
documents, and the documents you received in connection with any prior
notice to determine if the written renewal notice satisfies the requirements
of subsection (c) of this section, in a manner similar to the investigation
you conducted under subsection (b)(2)(C) of this section when you
received the initial written notice.
(3)If a written renewal notice, any accompanying documents,
and the documents you received in connection with any prior notice
collectively satisfy the requirements of Health and [&
] Safety Code, §712.009(b)(2), as discussed in subsection
(c) of this section, the period during which you are bound by Health
and [&] Safety Code, §712.009, will be extended
for an additional period that ends seven years after the date you
received the written renewal notice.
(f)What should I do if I have a contract to inter
the barred individual's remains and I am subject to a written notice
that complies with subsection (c) of this section? You should consult
an attorney if you have a contract to inter the remains of a barred
individual. Although you are protected from owing damages to the authorized
representative of the barred individual under Health and [
&] Safety Code, §712.009(e), if you are barred from
interring remains under that section, you will still be required to
return any funds you received under a contract that you did not earn.
You and the authorized representative of the barred individual may
be able to negotiate a satisfactory settlement to enable you to earn
at least a portion of the funds you received for the contract, such
as by performing services not involving interment in your cemetery
or assisting in alternate arrangements for disposition of the barred
individual's remains.
(g)What records must I maintain if I receive a written
notice? You must maintain the following records with respect to each
victim interred in your cemetery that has been identified by a written
notice:
(1) - (4)(No change.)
(5)to the extent not already identified by prior paragraphs
of this subsection, all correspondence to or from the authorized person
of the victim or the authorized person's legal representative or attorney,
including any complaints that you were required by a written notice
to comply with Health and [&] Safety Code, §712.009,
but you inappropriately or unlawfully failed to comply;
(6)to the extent not already identified by prior paragraphs
of this subsection, all correspondence to or from the authorized person
of the barred individual or the authorized person's legal representative
or attorney, including any complaints that a written notice was defective
and did not require you to comply with Health and [&]
Safety Code, §712.009, but you inappropriately or unlawfully
complied;
(7)all correspondence to or from your attorney concerning
a written notice or related matters, subject to valid claims of privilege;
(8)if interment is authorized under Health and [
&] Safety Code, §712.009(d), documents demonstrating
that you interred the barred individual in a place that is as far
away as possible from the place you interred the victim;
(9)any contract that purported to require interment
of the barred individual in your cemetery and, to the extent not already
identified by prior paragraphs of this subsection, all correspondence,
agreements, modifications, releases, cancelled checks, and deposit
slips relating to the resolution of claims related to the contract;
and
(10)to the extent not already identified by prior
paragraphs of this subsection, all correspondence, pleadings, briefs,
and court orders relating to litigation you initiated or defended
with regard to issues of compliance or noncompliance with Health and
[&] Safety Code, §712.009.
(h)How long must I retain records relating to a written
notice I received?
(1)With respect to a written notice that you determined
was invalid and did not require you to comply with Health and [
&] Safety Code, §712.009, you must retain the records
specified by subsection (g) of this section at least until the day
after the third anniversary of the date you received the written notice.
(2)With respect to a written notice that you determined
met the requirements of Health and [&] Safety
Code, §712.009, you must retain the records specified by subsection
(g) of this section at least until the day after the 10th anniversary
of the date you last received a written notice or renewal notice (i.e.,
the day after the third anniversary of the date the effective period
of the last written notice or renewal notice expired).
The agency certifies that legal counsel has reviewed
the proposal and found it to be within the state agency's legal authority
to adopt.
Filed with the Office
of the Secretary of State on
October 28, 2022
TRD-202204257 Catherine Reyer
General Counsel
Texas Department of Banking
Earliest possible date of adoption: December 11, 2022
For further information, please call: (512) 475-1301
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