SECTION 26.3. How to Respond to a Written Notice to Prohibit Interment of a Homicide Perpetrator in the Same Cemetery as a Homicide Victim

(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).

Source Note: The provisions of this §26.3 adopted to be effective May 21, 2002, 27 TexReg 4327; amended to be effective January 8, 2023, 47 TexReg 8981