In 2013, the Texas Legislature began to regulate cemetery brokers. See Act of May 17, 2013, 83rd Leg., R.S., H.B. 52. The Act amends chapter 711, Health and Safety Code, by adding several new sections: §711.0381 (Sale or Resale of Plots by Certain Persons); §711.057 (Emergency Orders); §711.058 (Restitution); and §711.059 (Seizure of Accounts and Records). It also adds two entirely new subchapters: Subchapter C-1 (Cemetery Broker Registration), containing five new sections: §711.045 (Definitions); §711.046 (Cemetery Broker Registration); §711.047 (Exemptions); §711.048 (Complaints); and §711.049 (Termination of Registration), and Subchapter F (Powers and Duties of Department of Banking Relating to Cemetery Brokers), containing four new sections: §711.081 (Definitions); §711.082 (Administration; Fees); §711.083 (Records; Examination); and §711.084 (Examination Fee). Finally, the Act amends the following sections: §711.001; §711.012(a); §711.038; §711.052(a); §711.056(a).
Section 711.0381 and Subchapter C-1 take effect on January 1, 2014. Act of May 17, 2013, 83rd Leg., R.S., H.B. 52, §11(b). Other parts of the
new law take effect on September 1, 2013. See id. §11(a).
Definition of Cemetery Broker.
The term cemetery broker is defined to mean “a person who sells the exclusive right of sepulture for another person.” The definition excludes, however, a person who (a) is an officer, agent, or employee of the cemetery organization in which the plot is located and who is exempt from registration under Subchapter C-1 or (b) originally purchased the exclusive right of sepulture for personal use. Tex. Health & Safety Code §711.001(2-b). The law does not define the phrase for personal use. Presumably, a right of sepulture is purchased for personal use if it is not purchased for investment purposes. If so, then a person may purchase for personal use a plot containing multiple graves—in spite of the fact that the plot owner himself can be buried in but one of the graves—provided that he intends to bury other family members (or friends) in the other graves and is not holding them for investment purposes.
Registration of a Person Acting as a Cemetery Broker in Texas.
A person may not act as a cemetery broker in Texas in the sale or resale of the exclusive right of sepulture in a plot unless the person is registered as a cemetery broker under Subchapter C-1 or is exempt from registration under Subchapter C-1. Id. §711.0381(a). Unfortunately, the new law does not define what is meant by the phrase act as a cemetery broker in the sale or resale of the exclusive right of sepulture in a plot. To see, by way of comparison, when a person is deemed to act as a broker under the Texas Real Estate Licensing Act, click here. To register, a cemetery broker shall file with the Texas Department of Banking a sworn, notarized statement containing certain specified information. Id. §711.046(a). The registration of a cemetery broker is valid until withdrawn or revoked. Periodic renewal of the registration is not required. Id. §711.046(b). A registered cemetery broker shall update the information contained in the registration statement not later than the 60th day after the date the information changes. Id. §711.046(c). A cemetery broker may withdraw the cemetery broker’s registration at any time. Id. §711.048(a).
Exemptions from the Registration Requirements.
A person who is an officer, agent, or employee of the cemetery organization or its affiliate and who is exempt from registration under Subchapter C-1 is not required to be licensed or registered as cemetery broker to sell a plot in a dedicated cemetery. Id. §711.038(e). By implication, all other persons not otherwise specifically exempted are required to be licensed to sell a plot in a dedicated cemetery. To see a list of other persons who are exempt from the registration requirements, click here.
Affirmative Duties of a Cemetery Broker.
The new law imposes several affirmative duties on a cemetery broker. First, a cemetery broker that sells or resells the right of sepulture in a plot shall collect and remit to the cemetery organization all fees required by law; and any other fee required by the rules of the cemetery organization, subject to Subsection (f). Id. §711.0381(e). Second, a person acting as a cemetery broker must keep a record of each sale or resale, including the name and address of the purchaser; the date of the purchase; a copy of the purchase agreement, with the name and address of the cemetery; a specific description of the interment rights; the purchase price; the amount of fees collected and remitted; and information on the disposal of the purchase agreement, including whether the agreement was conveyed, canceled, or voided. Id. §711.0381(g). Third, a cemetery broker must provide consumers with information on how to file complaints with the Texas Department of Banking in accordance with its rules. Id. §711.048.
Disciplinary Action against a Texas Cemetery Broker.
After notice and opportunity for a hearing, the commissioner may revoke the registration of a registered cemetery broker that fails to pay the annual administration fee and fails to cure the default not later than the 30th day after the date written notice of the default is mailed by the department to the cemetery broker; fails or refuses to comply with the department’s written request for a response to a complaint; or the commissioner concludes, after considering a complaint filed under this subchapter, has engaged in an intentional course of conduct that violates federal or state law or constitutes improper, fraudulent, or dishonest dealings. Id. §711.048(b). The commissioner shall state the basis of the decision in an order revoking the registration of a cemetery broker. The cemetery broker may appeal an order revoking registration in the manner provided by Chapter 2001, Government Code. Id. §711.048(c). If after a hearing conducted as provided by Chapter 2001, Government Code, the trier of fact finds that a violation of this chapter or a rule of the finance commission establishes a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission, the trier of fact shall recommend to the commissioner that the maximum administrative penalty permitted under Section 711.055 be imposed on the person committing the violation or that the commissioner cancel or not renew the person’s registration under Subchapter C-1, if the person is registered under that subchapter; or the person’s permit under Chapter 154, Finance Code, if the person holds such a permit. Id. §711.048(c). Under appropriate circumstances, the banking commissioner of Texas may issue emergency orders (see id. §711.057); issue an order requiring restitution (see id. §711.058); or issue an order to seize accounts in which funds from the sale or resale of the exclusive right of sepulture in a plot, including earnings, may be held (see id. §711.059).
New Criminal Offenses.
A person commits an offense if the person offers or receives monetary inducement to solicit business for a cemetery broker; fails or refuses to keep records of sales or resales or to collect and remit fees as required by Section 711.0381; or fails or refuses to register as a cemetery broker as required by Subchapter C-1. Id. § 711.052(a)(5)-(7)). Any such offence is a Class A misdemeanor. Id. §711.052(d).