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


Published: 2015

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(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 &
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 &
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.
(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 & 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 & 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.
    (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 & 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 & 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 & 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 & 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 & Safety Code, §712.009(b)(2), as discussed
in subsection (c) of this section, you are bound by Health & 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 &
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 & Safety Code, §712.009(b)(2),
as discussed in subsection (c) of this section, the period during which you
are bound by Health & 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 & 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 &
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 & Safety Code, §712.009, but you inappropriately
or unlawfully complied;
Cont'd...