(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.
(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 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)If you are not aware that the person named as the
barred individual has died or you have not scheduled interment of
the named person's remains, you should make appropriate entries in
your records to temporarily prevent any future interment of the named
person for a period of up to two weeks, to permit you to investigate
the facts and circumstances surrounding the notice.
(B)If the named person has died and interment of the
remains of the named person in your cemetery is pending, you should:
(i)temporarily suspend any plans to inter the named
person for a period of up to two weeks, to permit you to investigate
the facts and circumstances surrounding the notice; and
(ii)notify the authorized person of the possibly barred
individual that you are required to temporarily suspend interment
to investigate the facts and circumstances surrounding the notice.
(C)You should immediately examine the written notice
and any accompanying documents to determine if the written notice
satisfies the requirements of subsection (c) of this section. If the
written notice satisfies these requirements without any further inquiry,
you must comply with subsection (d) of this section. If the written
notice does not comply with subsection (c) of this section, you should
identify as soon as possible, in a written reply to the person who
sent you the notice, the additional information or documents that
must be furnished to you in order for the notice to comply with subsection
(c) of this section. You should also specify a date by which you must
receive the additional information or documents. You may also choose
to include other information in your reply, such as:
(i)notice that you have not yet been requested to
inter the barred individual's remains, or that interment has been
temporarily suspended pending a reply to your request for additional
information;
(ii)notice that failure to submit a timely response
with the requested information and documents may permit interment
of the person named as the barred individual;
(iii)notice that, if you determine the written notice
complies with subsection (c) of this section, you will not inter the
barred individual in your cemetery during the seven year period following
the date of the notice, and that the period can be extended from time
to time if you receive a timely renewal notice; and/or
(iv)if your cemetery is the only cemetery serving
the municipality or county in which the victim and the person named
as the barred individual lived, notice that you will inter the barred
individual's remains in a different part of your cemetery or otherwise
as far away as possible from the place where the victim is interred,
if you determine the written notice complies with subsection (c) of
this section.
(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)identifies a victim interred in your cemetery;
(2)identifies the sender as the authorized person
of the victim;
(3)identifies a person as a barred individual and
requests that the barred individual not be interred in your cemetery;
and
(4)demonstrates that the named person is a barred
individual, by including:
(A)a certified, final trial court judgment that has
not been overturned on appeal, convicting the identified person of
an offense specified in subsection (a)(2) of this section for causing
the victim's death; or
(B)effective only if the individual dies before conviction,
a certified document that:
(i)identifies the named person as causing the victim's
death, in violation of a specified offense that is listed in subsection
(a)(2) of this section; and
(ii)is signed by an authorized representative of the
medical examiner or law enforcement agency having jurisdiction over
the specified offense.
(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)If the barred individual has died and you had temporarily
suspended interment of the barred individual's remains under subsection
(b)(2)(B) of this section, you should notify the authorized representative
of the barred individual that you may not inter the barred individual
in your cemetery. Alternatively, if your cemetery is the only cemetery
serving the municipality or county in which the victim and the barred
individual lived, you should explain the authorized representative's
options to select an interment location within the boundaries you
specify for the purpose of ensuring interment of the barred individual's
remains is in a different part of your cemetery or otherwise as far
away as possible from the place where the victim is interred. At your
option, you may also explain other, non-interment services you can
provide. If a contract exists that purports to require you to inter
the barred individual's remains, you should also comply with subsection
(e) of this section.
(2)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 make appropriate entries
in your records to either:
(A)prevent interment of the barred individual's remains
for a period of seven years following the date you received the written
notice; or
(B)require interment of the barred individual's remains
in a different part of your cemetery or as far as possible away from
the place where the victim is interred, for a period of seven years
following the date you received the written notice, if your cemetery
is the only cemetery serving the municipality or county in which the
victim and the barred individual lived.
(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)the written notice you received that identified
a victim interred in your cemetery;
(2)the documents you received with the written notice
or in response to your request for additional documents;
(3)each written renewal notice you received relating
to the initial written notice retained under paragraph (1) of this
subsection;
(4)any documents you received with a written renewal
notice or in response to your request for additional documents;
(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 adoption and found it to be a valid exercise of the agency's legal
authority.
Filed with the Office
of the Secretary of State on
December 19, 2022
TRD-202205102 Catherine Reyer
General Counsel
Texas Department of Banking
Effective date: January 8, 2023
Proposal publication date: November 11, 2022
For further information, please call: (512) 475-1301
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