PRICE DANIEL 

ATTORNEY GENERAL 

AXJ.STIN 11. Y-EXAE 

December 11, 1950 

Hon. C. H. Cavness Opinion No. V-l 130. 

State Auditor 

Austin, Texas Re: Several questions relating to 

filing fees, reports, and perpetual care funds required of 

Dear Sir: perpetual care cemeteries. 

We quote the following excerpt from your letter of October 4, 1950. 

“It will be noted that the present law governing 

perpetual care cemeteries (Articles 912a-I through 

912a-27, R.C.S.) was passed by the Forty-Ninth Legislature (House Bill 46) and amended by the Fiftieth 

Legislature (House Bill 98). Most past administrations 

of the Secretary of State’s Office have interpreted Article 912a-5 to exempt from the provisions of the Act 

all non-profit, perpetual care cemeteries maintained 

by associations of cemetery lot owners. ‘Associations’ 

had been construed to mean either, or both, incorporated or unincorporated associations, Therefore, such 

exempt corporations were not required to file annual 

reports on their perpetual care trust funds or pay filing fees provided by Article 912a-2 and 912a-3 respectively. 

“More recently the Secretary of State’s Office 

has construed Article 912a-5 not to exempt non-profit 

corporations, but to exempt from the Act any unincorporated associations of cemetery lot oxrs not operated for profit, as well as the other specifically named 

cemetery operators. In other words, the latter part of 

Article 912a-5, which reads in part as follows, ’ . . . 

or any association of cemetery lot owners not operated 

for profit . . . ’ , is now being interpreted as if it read, 

. . . or any unincorporated association of cemetery 

lot owners not operated for profit . . . ‘. Under this 

present interpretation, all corporations operating a perpetual care cemetery, whether for profit or not, are 

required to file the statement as provided by Article 

912a-2 and to pay the filing fee provided by Article 912a3, unless such corporations fall under one of the other 

specific exemptions. 
Hon. C. H. Cavness, Page 2 (V-1130) 

“With reference to the foregoing, our first question is raised by the following facts: 

“The Morton Cemetery Association was incorporated on January 20th, 1944. Its charter specifies that 

the corporation is formed for the purpose of operating 

a cemetery, that it is organized by cemetery lot owners and that it shall not be operated for profit. fSaid 

charter also specificay provides that the corporation 

shall operate a perpetual care cemetery,f 

“Question 1. Is this corporation, organized prior 

to the enactment of the present statutes, required tofiIe 

a statement as provided by Article 912a-2 and to pay 

the filing fee as provided by Article 912a-3? 

“Question 2. Should a corporation whose charter 

provisions are the same as in the case of the Morton 

Cemetery Association, cited above, but chartered subsequent to the enactment of the present statutes, be required to file a statement as provided by Article 912a-2 

and to pay the filing fee as provided by Article 912a-3? ” 

By letter opinion dated May 9, 1949, we advised Hon. 

J. M. Falkner, Commissioner, Department of Banking, that an opinion rendered by Judge Ocie Speer, counsel of that department, was 

correct and that nonprofit perpetual care cemetery corporations 

are excepted by the proviso appended to Section 2 (Art, 912a-2, V. 

C.S.) of the present Act and are not required to make annual statements and fee remissions required by said section. We are enclosing herewith a copy of Judge Speer’s opinion and a copy of our letter opinion, We adhere to the ruling stated in our letter opinion, 

and your first two questions are therefore answered in the negative. 

We pass to a consideration of two further questions 

which you have presented for our consideration and quote the following excerpt from your letter: 

“The following facts raise an additional question: 

“A Dallas corporation is operating two cemeteries, both being perpetual care cemeteries. Only one 

perpetual care fund is maintained, and only one annual 

statement is filed with the Secretary of State, and only 

one filing fee is paid. 

“Question 3. Is this combination of the funds permissible under the present statutes? 
Hon. C. H. Cavness, Page 3 (V-1130) 

“Question 4. Should the corporation maintain 

two funds separately? Would it need to file separate 

statements and pay filing fees for each statement? ” 

We think that various sections of the Act indicate that 

a separate perpetual care fund must be maintained for each perpetual care cemetery, that annual statements must be filed for each 

perpetual care cemetery and that a filing fee must be paid at the 

time each such statement is filed. Article 912a-15, which relates 

to the establishment of perpetual care funds, expressly provides 

that the net income arising from a perpetual care fund “shall be 

used solely for the general care and maintenance of the property 

entitled to perpetual care in the cemetery for which the fund is established.” This Article a%.o makes detailed provision for the amount that each cemetery must pay into its perpetual care fund, 

the amount being fixed by the number of square feet of ground area 

disposed of as perpetual care property and the number of crypt interment rights, mausbleum interments, and niche interment rights 

sold as perpetual care property. This provision clearly contemplates that the amount of the perpetual care fund for each cemetery 

will be determined by the amount of property entitlesperpetual 

care. Likewise the information which must be given in the annual 

statement regarding the amount of property entitled to perpetual 

care is obviously required for the purpose of determining the adequacy of the fund established for the perpetual care of the property. 

A copy of the annual statement must be published in at least one 

newspaper of general circulation in the county in which the cemetery is located. The information contained in such publication would 

be of little value to persons interested in a particular cemetery unless it reflected the amount of the perpetual care fund provided for 

that cemetery. Moreover, Article 912a-3 requires that the amount 

of the filing fee be determined by the size of the city which is served 

by the cemetery. Thus if a single corporation operated several perpetual care ceme~teries each serving cities of a different size, this 

provision could be complied with only by paying a separate fee for 

filing the statement pertaining to each cemetery. 

You also request our opinion on the following questions: 

“Question 5. Is there any restraint provided by 

our statutes which would prevent a perpetual care cemetery from dissolving and then obtaining a new charter 

as a non-perpetual care cemetery corporation or ceasing to do business as a cemetery company? 

“Question 6. If the answer to Question 5 is in 

the negative, does the perpetual.care fund which remains after the dissolution of the original corporation 

remain under the supervision of the State, so that the 

annual statement must be filed and the filing fee paid? ” 
Hon. C. H. Cavness, Page 4 (V-1130) 

No restraint is provided by our statutes which would 

prevent a perpetual care cemetery corporation from dissolving. In 

such cases the cemetery perpetual care fund would be protected by 

various other provisions of the Act. See particularly Sections 4, 

15, and 17. The provisions of Section 2 clearly contemplate the exist~ence of a corporation and therefore cannot be applied to require 

an annual statement and filing fee after the dissolution of a corporation. 

Passing to a consideration of your final question, we 

again quote from your letter of October 4th: 

“The Temple Cemetery Company was chartered 

in 1884, and its charter expired in 1934. The charter 

did not provide for a perpetual care fund, yet such a 

fund was set up before the charter expired. Later in 

1934 a new charter was obtained, and its purpose clause 

called for a non-perpetual care cemetery. 

“Question 7. Is the old perpetual care fund which 

is still in existence subject to State supervision? Must 

it file the annual statement and pay the filing fee? ” 

Prior to the enactment of House Bill 122, Acts 43rd 

Legislature, 2nd C.S. 1934, ch. 66, p. 146, the laws regulating cemeteries were carried in Title 26, Articles 912-931, R.C.S. of Texas, 

1925. Although these articles provided for the establishment of a 

trust fund by persons desiring to provide a fund for maintaining, 

etc., private blocks or lots in any cemetery in the State, 1 there 

were no specific provisions for the organization and regulation of 

perpetual care cemetery corporations. Indeed, Article 929 declared 

that corporations formed “under this title shall be exempt from any 

provision of law requiring periodical reports to be made to any department of the State government.” By House Bill 122 the 43rd Legislature undertook to regulate perpetual care cemetery corporations 

and provided for the establishment and protection of perpetual care 

funds by amending Title 26 of the Revised Civil Statutes of Texas, 

1925. House Bill 122 made express provision for such cemeteries 

as were then operating as perpetual care cemeteries. We quote 

the following from Section 1, Article 925a, House Bill 122, Acts 43rd 

Leg., 2nd C.S. 1934, ch. 66, p. 156: 

’ A similar provision is carried in Article 912a-18 of the present 

law in the event that parties desire to provide such a fund for caring for lots in a nonperpetual care cemetery. 
I 

Hon. C. H. Cavness, Page 5 (V-1130) 

“All other cemeteries heretofore operating as 

perpetual care cemeteries shall, within one year from 

the effective date of this Act, establish thkir trust funds 

in cash or legal securities in conformity with the provisions thereof, and in the event of failure so to do, shall 

not thereafter operate as a perpetual care or free care 

cemetery until the provisions hereof are complied with.” 

The Temple Cemetery Company complied with this provision by obtaining a new charter as a nonperpetual care cemetery. 

If the old perpetual care fund is still in existence, it is not subject 

to State supervision in the sense that the requirements of the present Act regulating perpetual care funds must be complied with; and 

the Temple Cemetery Company need not file the annual statement or 

pay the filing fee presently required of perpetual care cemeteries. 

SUMMARY 

Nonprofit perpetual care cemetery corporations 

organized by cemetery lot owners are not required to 

file annual statements concerning perpetual care funds 

and pay the filing fees required by Articles 912a-2 and 

912a-3, V.C.S. A separate perpetual care fund should 

be maintained for each perpetual care cemetery. The 

annual statement required by Article 912a-2 must be 

filed for each perpetual care cemetery, and the filing 

fee required by Article 912a-3 must be paid at the time 

such statement is filed. No statute prohibits dissolution 

of a perpetual care cemetery corporation. Articles 912a2 and 912a-3 contemplate the existence of a corporation 

and would not be applicable after the dissolution of a 

corporation. The old perpetual care fund of a cemetery 

corporation whose charter expired in 1934, but which 

obtained a new charter as a nonperpetual care cemetery, 

is not subject to State supervision, and the new corporation need not file the annual statements and pay the filing 

fees provided in Title 26, V.C.S. 

Yours very truly, 

APPROVED: 

Everett Hutchinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

WVG/mwb 

Encls. 

PRICE DANIEL 

Attorney General 

By &y5.&.~ / > - 

W. V. Geppert 

Assistant