Ausnnr 11. -x%?&xs 

February 11, 1964 

Honorable H. I,. Bengtson 

DefiUty Banking Commissioner 

Depzirttient of Banking 

John Hi Reagan State Office Bldg. 

Austin, Texas 

Opinion No. C-215 

Re: Reconsideration of c-187, 

concernitig tihether~‘& cemet~ry’~a;ti~dclatlon may make 

prepayments Into lta perDear Mr. Bengtson: petual care truet fund. 

Your request fdr an opinion aeka the following queetions : 

“1. 1 May the stockholders df a cemetetip’aadoci&tIon .ptiepay ‘funds into Star 

Perpetual F&i+& Tz+uet.‘Fufid, either in advatice~‘of bales’dr dtiring the life of a 

tini&-pa#nent ‘oontraot rather than at the 

time final payment Is made? 

“2.’ If your answer to the foregoing 

Qi6ation is ‘Yea’;: then Where ‘&oh a’ 

atirplua ~to”ti PerpetuaI C&tie Fund exieta 

f%m’auch payments, may credit be taken 

againtit’sudh.iiurplue frdm~the aalee of 

ptiopert‘jl antStled#,to perpetual oar8 until 

the surplus haa been depleted? 

I‘ 3. Are aontributione’~ofi donations received from the etdokholdere oi a oemetery 

dad&iation over and above legal requirementa to be ooneidered in the same light 

aa oontrlbutione or donationa from third 

F;t$e;,,tmder the provieiona of 912a-18, 

. * . 

In response to these 

8 

ueations. it was held in Attorney General’s Opinion C-l 7 that prepayments into the 

perpetual care trust fund provided by the provielone of 

-1032- 
Hon. Ii. L. Bengtaon, page 2 (C-215) 

Article 912a-15, Vernon’s Civil Statutes, could not be made. 

On reconsideration, we have concluded that this holding is 

erroneous. 

The pertinent portions of Article 912a-15, Vernon’s 

Civil Statutes, prior to Senate Bill 121, are as Sol~lows: 

“Every cemetery association . . :whloh 

has established and Ta now~malntalnlng, operating and/or conducting a perpetual care cemetery, and every atisoclation which shall hereafter establish, maintain, operate and/or conduct,~ a perpetual care cemetery wlthln this 

State pursuant to this Act, shall establish 

. . . an endowment fund . . . . The principal 

of auch’fund So? perpetual care shall never 

be voluntarily reduoed, but shall maintain 

ci;emaiJ 

InvlolabIe and shall forever be malnained separate and dlatlnot by the trustee or 

trustees from all other funds. And the 

net Income arising therefrom shail’b;! used 

solely for the general care and malntenande of 

the property entitled to perpetualjoare In the 

oelileterj for whlch’the fund 1s established, 

but shall never be uaed for the lmproveietk’or embellleliment af’uneold property to be 

offered for sale. . , . 

II 

. . . 

“A oemetery ,.aaeooiatlon whioh had establlshed a perpetual oare fund may also take, reoeive, 

and hold therefor &nd as ‘a ‘part thereof OF baa an 

Incident thereto’any property, real; pereonal or 

mixed; bequeathed; devised, grAnted, given or 

otherwise contributed to it therkfor. 

“The perpetual oare fund authorized by this 

Section arWal1 sums paid ‘therein or contributed 

thereto are, and ekch’thereof la hereby, expressly 

perniltted and shall be and be deemed to‘bh for 

charitable and eleemosynary purposes. . . . . 

“Bach perpetual oare oemetery shall deposit 

in its perpetual care fund an amount e uivalent 

to . . . a minimum of twenty cents (20 $ ) per 

square Soot of ground area sold or disposed of 

as perpetual care property . . . A minimum 

of fifteen dollars ($15.00) per each crypt 

-1033- 
., . 

Hon. H. L. Bengtaon, page 3 (C- 215) 

Interment right sold or disposed of as perpetual care propert 

five dollars ($5.00 7 

and a mlnlmum of 

per'each niche Interment 

right 'sold or'diapoaed of as perpetual care 

pronerty . '. . Such minimum requlremehta 

shall apply to ail property III whldh the extiIuslve right of 'sepulture has been sold or 

paid for, whether used for lnteiment. purposes 

or not. 

"The deposit oSsuch funds in the perpetual care fund shall be made within thirty 

(30) days after the receipt ofthe final purdhaae price .of each lot; grave, crypt, or 

nidhe a6ld as property entitled to perpetual 

care. . . .' 

Under the'provlalona of 'Artidle 912a-15, the perpetual 

care 

"for 

trust fund provided for therein tionatltutea a trustfund 

the benefit and protectionof the pub116 by preserving 

and keeping cemeteries from be0omSng places of disorder, reproach, and desolation In the oommunitles in 'which they are 

SitUatedc?.; .Artia‘Le 912a-l5re'quire,s certtilntml.nlmiium dep;o$.lta? 

to. be made.cJinto.the' perpetual caretrust Sun&; 

mm@ .a$ fr%l>ows~: 

The& provislohs 

"Each ,perpetual care cemetery shall depbslt In ~lta perpetual care truat.Sund an 

amount equivalent ~to'sudh amount aa may have 

been"atlpulated in any oontraot under which 

pex+tual oare.progerty was sold prior ,to 

March 15, 1934, plus a minimum of twenty 

cents (208) per square foot of ground area 

sold or disposed of as perpetual oare property after Maroh 15, 1934, until auah fund 

reaohea a minimum ofOne Hundred Thousand 

Dollars ($lCiO,~OQO~OO), after~whloh .eabh such 

oembt@r$ ahall deposit an amount~equivalent 

to a minimum of ten cents (104) per square 

Soot of ground area sold or diapoaed of aa 

perpetual care property after Maroh 15, 1934, 

until September 3, 1945. Eaoh auoh cemetery 

shall deposit In Its perpetual care trust 

'fund an amount e ulvalent~to a minimum of 

twenty cents (20 B ) per square foot of ground 

area aold or disposed of as perpetual oare 

property after September 3, 1945, until July 

1, 1963. A mlnlmum of Fifteen Dollars ($15.00) 

per each orypt interment right for mausoleum 

-1034- 
Hon. H. L:Bengtaon,, page 4 (C-215) 

interment sold br disposed of as'perpetual 

care property atid a mlniniumsd Five Dollars 

($5.00) per each niche internient right for 

columbarlum lnterment'sold,or diePosed of 

as etipetual care property between March 15, 

,193 & and July 1, 1963, ah&l1 alao'be placid 

in such perpetual care trust fund. From and 

after July 1, 1963, each Budh ceinetery'ahaS1 

deposit In Its gerpetual care trust fund ati 

amount equlvtilent to's minimum of Tlfty cents 

(504) per square foot of &o+d:ai%& sold or 

dbapoaed~of as perpetual care property afte? 

said date. A minimum df Forty Dollars ($40.00) 

per each crypt interment right for mausoleum 

interment sold or disposed of as perpetual 

care groperty, except that on crypts ticceaalble only through another crypt the minimum requirement ahall'be !Pwenty Dollars ($20.00) per 

each'auoh crypt, and a minimum oS'Ten Dollars 

($10.00) -per Cach niche IntWment~right for 

colu&artv Interment aold or disposed of 'aubsequent to Jul$,l, 1963, shall al&o be'plaodd 

in such ,perpetual care trmat fund. such niltilmum requirements shall Bp$ly to all prop'erty 

In which the exolualve right of aepulture has 

been sold and paid for, whether used for interment purpoeea or'not. 

"After July 1, 1963, each agreement for 

the sale of burial apace in a perpetual aare 

cemetery shall eet out separately the-part 

of the'aggregate amount agreed to be,paid by 

the~purohaaer which la to be deposited In the 

perpitual ~oare trust fund. If the aggregate 

amount agreed to be paid bJr the purohaaer ie 

payable In lnatallmenta, a&l amounta paid thereon ah811 be applied, first* to the part thereof 

not required to be deposited in the perpetual 

care trust fund, to t#he extent thereof, and the 

remainder ah&U, when received by the Belier, 

be deposited in the perpetiual oare trust $und+ 

Any funds required to be 'deposited In Its penpetual care trust Sund,by a aeller of bull181 

apace shall be so deposited not later than ten 

(10) days after the end of the 'calendar month 

during which they are received. . . ." 

It will be noted by the foregoing provlalona that each 

perpetual care cemetery is required to make certain minimum 

-IO35- 
Hon. H. L. Benitson', page 5 (C- 215) 

deposits-into the trust fund and to maintain a certain mlnlmum amount at all tlniea in the perpetual care trust fund. 

mere IS no ptiovlslon tihlch prohibits a cemetery aasoclatlon 

from depositing or malntalnlng'ln the trust Sund'amounts In 

bxciss of th&~ minimuin -ti@Quir@d; Furthermori, there iti no provlaioti ivhlch either &preiasly or iriiglledly prohibits requlred deposits from being made in advance. 

The construction :placed on'tlie provleldna of Article 

9128-15 by Attorney Oeneral'a Oplnlon C-187 In'CIfSeot prohlblte 

the demetery asaoclatlon S&m nialntalnlng a'ptirfietual trust -fund 

in excess 6S the minimum required to be mtilntalned by the,maklng of ,prepayment&. It %a our opinion that'thls conattitition 

doea violence to the purpose of the trust and such construction 

is not atithorlzed. 

In Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939), the 

Supreme Court atated,the rule of'atatutory~oonatruotlon appllcable to gour questions as follows: 

"It la'the 'aettiCd law~that statuteti' 

should be'contittied tie ati td carry out'the' 

L~glslatlve intent, and when aubh intent .la. 

,oxic@ aaoertained, It ahould'be glvefi effedt', 

&en thoUgK'th& literal meaning of thb.tidedti 

used thereIn ta tiot~ SoSl&@di "Also,: statutes 

ah&Id nevdr be 'given'a'conetruction that' '* 

leads to tintiert&nty, ltijutitioe, or oonftialbti, 

lS~lt,,la ,poaalble to construe them otherwise. 

. . . 

In view of the foregoing, you are advised that the stookholders of a oemtitery association may prepay funds into its "' 

perpetual care trust fund *ither ln'advance of sale8 or during 

the life of the time-payment contract. 

In answer to yoursecond question, you are advlaed that 

where a surplus exists in a perpetual bare fund from prepayments, credit may be taken againat suah aurplua, providing the 

minimum required is maintained at all times. In detemihlng 

whether a aurplua exists from prepaymenta, no part of the trust 

fund reaulting'from donations to the trust fund may be o'onaldered. Attorney General's Opinion c-187 is modified to oonform 

with, the holding herein. 

SUMMARY 

A~oemet~ry"aasociatlon may make prdpayment of Sunda Into ita perpetual care trust 

-103.6- 
. . - 

eon. H. L. Bengtaon, page 6 (c- 215) 

JR:ms 

fund, either in advance df sale8 or'during 

the life df a titie-ptiyinent contract.. Iri 

determlning whether a surplus exlats from 

prepa$ment&, no p&tit of the trust fund 

tieaultlng from dotiatlons to the t-at fund 

may be considered. 

Yours very truly, 

WAQCiONER CARR 

Attorney General 

‘tie?’ 

Aeeletant 

APPROVED: 

OPINION coMMITTlE$ 

W; V; Geppert, Chairman 

J. C. Davle' 

Linward Shlvera 

Edward M@Y'ett 

APPROVEDFORTHEATTORNEYGENERAL 

By: .Stanton Stone 

-1037-