AUSTIN I,. TExas 

December 2, 1963 

Honorable PI. L. Ben&son 

Deputy Banking Commissioner 

Department of Banking 

John Hi Reagan State Office Building 

Austin, Texas 

Dear Mr. Dengtson: 

Your letter 

follows: 

Opinion NO. c-187 

Re: Whether a cemetery 

association may make prepayments into its perpetual care trust fund of 

those funds required under 

Article 912a-15, V.C.S., to 

be deposited upon receipt 

of final purchase price of 

interment properties entitled to perpetual care 

and a related question. 

requesting the opinion of this office reads as 

"A cemeteryassociation operating under 

the provislonsof~ Article 912a, Vernon's 

Civil Statutes, has in the past deposited 

funds to its Perpetual Care Trust Fund in 

excess of the legal mInimum requirements 

thereby creating a surplus in the Trust 

Fund. The corporation has stated that such 

surplus had resulted from advanced payments 

having been made to the Trust Fund by the 

stockholders of the corporation in antlcipation of estimated sales of Interment properties. 

* 

. . . . 

"Previous examinations conducted by this 

Department reveal that no deposits have been 

made in the Perpetual Care Trust Fund from 

the sale of deeded property for approximately 

four (4) years. The corporation has indicated, 

that this procedure was based upon their assumption that the.advancea made' tothe Trust Fund by 

the stockholders In anticipation of sales to be 

-902- 
Ron. H. L. Bengtson, page 2 (C-187 ) 

made more than met the minimum legal requirements of property actually sold and therefore 

no additional deposits were necessary when 

the anticipated sales were completed. 

"No part of the surplus in the Trust Fund 

resulted from property bequeathed, granted or 

given to the cemetery under the 'provisions of 

Article 912a-18, V.C.S. 

,I. 

"I request your oplnlon in answer to the 

following questions: 

1. Ray the stockholders of a-cemetery 

association prepay funds Into. Its Perpetual 

Care Trust Fund, either In advance of,sales 

or during the life of a time-payment contract rather than at the time final payment 

Is made? 

2. If your answer to the foregoing 

questlon Is 'Yes', then where such a surplus 

to a Perpetual Care Fund exists from such 

payments, may credit be taken against such 

surplus from the sales of property entitled 

to perpetual care'until the surplus has been 

depleted? 

3. Are contributions or donations received from the stockholders of a cemetery 

association over and above legal requirements to be considered in the same light as 

contributions or donations from. third parties 

under the provisions of 912a-18, V.C.S.?" 

Although Senate Bill 121, Acts 58th Leg., R,S. 1963, oh'. 

495, p. 1298, sec. 3, hereinafter referred to, recently'amended 

Article 912a-15, Vernon's Civil Statutes ,&ts 49th Leg., R.S. 

1945, ch. 340, p. 559, sec. 157, as amended, your opinion request concerns the obligations imposed upon a cemetery association in respect to its perpetual care trust fund as such obfigations existed under the former Article 912a-15, V.C.S. 

The first two questions posed in your request can be reduced Into the single question of whether or not a cemeteryassociation may make prepayments into its perpetual care trust fund of 

those funds required under Article 912a-15, Vernon's Civil Statutes, 
Hon. H. L. Bengtson, page 3 (C- 18’7 ) 

to be deposited upon the receipt of the final purchase price of 

each interment property entltled to perpetual care. It is our 

opinion that such prepayments cannot be made. 

The pertinent portions of Article 912a-15, V.C.S., prior 

to Senate Bill 121, are as follows: 

"Every cemetery association '. . . which 

has established and Is now maintaining, operating and/or conducting a perpetual care cemetery, 

and every association which shall hereafter establish, maintain, operate andLor conduct, a 

perpetual care cemetery within this State pursuant to this Act, shall establish. . . an endowment fund . . . . The principal of such fund 

for perpetual care shall never be voluntarily reduced, but shall maintain remal~'invlolable and 

shall forever be maintaine c separate and distinct 

by the trustee or trustees from all other funds. 

. And the net income arising therefrom shall 

ie'used solely for the general care Andy maintenance of the property entitled to 'perpetual care 

in'the cemetery for which the fund Is established, 

but shall never be.used for the improvement 

&'e~bellishment of unsold property to be offered 

for sale. . . . 

n 

. . . . 

"A cemetery association ;hich ha's established' 

a perpetual care fund may also take, receive, and 

hold therefor and'as a part thereof or as an incident thereto any property, real, personal or mixed, 

bequeathed, devised, granted, given or otherwise 

contributed to It therefor. 

"The perpetual care fund authorized by this 

Section and~all sums paid therein or,contrlbuted 

thereto are, and each.thereof is hereby, expressly permitted and shall be and be deemed'to be 

for charitable and eleemosynary purposes. e 0 q 

"Bach perpetual care cemetery shall deposit 

in its perpetual care fund an amou%?%uivalent 

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

square foot of ground area sold'or disposed of 

as perpetual care property . . e e A minimum of 

-904- 
Hon. Ii. L. Bengtson, page 4 (C- 187 ) 

fifteen dollars ($15.00) per each crypt lnterment right' sold‘or disposed of as perpetual 

care pro e&y, 

dollars P 

, . . and a minimum of five 

$5.00) per each niche intermentright 

sold'or disposed of as perpetual care property 

Such minimum requirements shall apply 

co'aii'property in which the exclusive right 

of sepulture has been sold and paid for, whether 

used for interment purposes or not. 

"The deposit of such funds in the perpetual 

care fund shall be made within thirty (30) days 

after the receipt of the final purchase price of 

each lot, grave, crypt, or niche sold as property 

entitled to perpetual care. . ,,VV (Emphasis 

=wPl~ed) 

It is a fundamental rule of statutory construction that 

there is no room for construction when the law in expressed In 

plain and unambiguous language and.lts meaning 4s clear:.and.obvious. 

39 Tex.Jur. 161, Statutes; Sec. 88, and cases cited. If the 

statutory language clearly and distinctly reveals the legislative 

intent, there'is no occasion to look elsewhere. 39 Tex.Jur. 177, 

Statutes, Sec. 93. 

Under Its clearly mandatory language, Artlcle'912a-15 requires that each~perpetual care cemetery shall establish a perpetual care fund, and that It shall deposit &n such perpetual 

care fund certain "minimum". funds for various inte,rment'properties "sold or disposed of" as perpetual care properties. Also, 

this provision expressly~prescrlbes the time when "such funds'! 

shall'be deposited, i.e., "withinthirty (30) days after the 

receipt of the final purchase price" Of the various Interment 

properties entitled to perpetual care. The language of this 

statutory provision Is clear and unmistakahle,~not only as to 

the minimum funds to be deposited into such trust fund, but 

also as to the time when "such funds" shall be deposited; There 

is no language In Artlcle'912a-15 which purports to allow a 

cemetery association to prepay Into Its perpetual care trust fund 

the minimum funds required to be deposited 'within thirty (30) 

days after the receipt of the final purchase price". Interpretatlon,by implication is permitted, out of the necessity of the 

case, to supply the obvious intention, where such intention is 

not expressly stated. ,However, resort may not be had to impllcation if the statute Is exnlicit to the DOifIt in queStion. 

-905- 
Hon. H. L. Bengtson, page 5 (C- 187 ) 

c 

We note that Article 912a-29, Vernon's Civil Statutes 

cts 9th Leg., R.S. 1955, ch. 190, p. 574, sec. 17, provides 

at, before being chartered,under this Act, any czrporation desiring to operate a perpetual care cemetery must establish a 

minimum perpetual care trust fund; and that, upon sales of interment properties, the deposits as required by law to be placed in 

such trust funds shall be allowed as a credit against the original trust fund to the full amount of the ori inal de oslt 

Also, Senate Bill 121, Acts 58th Leg., B.S. 19 fii 3, ch. t95, ;. 1298, 

sec. 3, recently amending Article 912a-15, provides in part that, 

If a cemetery association operating a non-perpetual carz~cemetery 

desires to operate a perpetual care cemetery, it shall 

establish a perpetual care fund equal to the amount which ;okd 

theretofore have been paid Into such fund, in accordance with 

provisions of this Act, if said cemetery has been operating as 

a perpetual care cemetery from and after the date of the first sale 

of burial space therein, or the minimum amount provided in Section 

29 of this Act, whichever Is the greater. If the amount of 

the perpetual care fund so established ls,the minimum amount provided In Section 29 of this Act, such cemetery association or 

corporation shall be entitled to a,credit against amounts hereafter required by the provisions of this Act to be paid by it into such perpetual care fund equal to the excess of the amount of 

such perpetual care trust fund, as originally established by It, 

over what would have been the amount thereof if its amount had 

been determined without regard to Section 29 of this Act." Had 

the Legislature intended for prepayments and the subsequent 

credits to be allowed for the required deposits over and above 

that provided for In Article 912a-29 and Senate Bill 121, it 

could have easily done so as it did in these two Instances. However, the Legislature, at the'tlmes the above amendments were enacted, chose not to provide a~method of prepaying the minimum 

deposits required’under Article 912a-15. 

The holding of this opinion is further supported by the 

following pertinent amendments ~to Article 912a-15 by Senate Bill 

121: 

"After August 23, 1963, each agreement for 

the sale of burial space in a perpetual care 

cemetery shall set out separately the part of 

the'aggregateamount agreed to be paid by the 

purchaser which is'to ,be deposited in the perpetual care trust fund. If the aggregate amount 

-906- 
. 

Hon. Ii. L, Bengtson, page 6 (C-187 ) 

agreed to be paid~ by 

in Installments, all 

the purohaser is payable 

amounts paid' thereon shall . . . . ^ be applied, first, to tne part tnereof not required to be deposited in the perpetual care 

trust fund; to the extent thereof, and the remainder shall, when received by the seller; be 

deposited in the perpetual care trust fund. 

Any funds required to be deposited In the perpetual care trust fund by a seller of burial 

space shall be so deposited not later than ten 

(10) day6 after the end of the'calendar month 

during which they are received. ? + . 

'The amount to be deposited&n the perpetual care trust fund shall be separately shown 

on the original purchase agreement and a copy 

thereof shall be delivered to the purchaser. 

In the sale of burial space, no commission shall 

be paid a broker or salesman on the amount to 

be deposited in the fund." 

By this amendment, the Legislature expresses with greater clarity 

the method and time by which a cemetery association hereafter organized must make the required deposits under' Article 912a~15 In 

lts'perpetual care trust fund. A~method of prepaying such required funds is not contemplated by its terms. 

Although It is suggested that such construction will be 

harsh and burdensome, these are matters prope~rly addressed to 

the Legislature, 

The last question In your request inquires into the dls-' 

tinction between contributions from a cemetery assoclatfon to Its 

perpetual care fund over and above the minimum funds required 

under Artl,cle 912a-15, and contributions from third parties under 

the provisions of Article 912a-18, Vernon's Civil Statutes. 

Article 912a-18, entitled'"Specia1 Care", provides that the trustee 

of a cemetery perpetual care fund may also take and hold any property granted or contributed to it ln'trust to apply the princlpal or Income therefrom for any of the following (purposes: 

'PO the improvement or embelliahment Gf's&h cemetery, or any part thereof, OCR 

,any lot therein, to the erection, renewal, repair or preservation of any monuments,~ fence, 

building or other structure in such cemetery;' 

to the planning, cultivation of trees, shrubs, 

-90-l- 
. . 

Hon. H. L.-Bengtaon, page 7 (C- 187 ) 

or plants in or around such cemetery, or 

any part thereof; for the special care or 

ornamenting of any burlal plot, lot,' sec- 

_~ 

': 

tion or building or any portion thereof in 

said cemetery or to any other purpose or 

use not inconsistent' with the purpose for 

which such cemetery waz established or is 

being maintained. , . ." 

This provison Intends the establishment of special funds separate 

and~apart from the perpetual care fund authorized under Article 

912a-15. Such special funds, consisting of grants and contributions from both third parties and cemetery associations, are to 

be used for the upkeep and beautification of "private" blocks, 

lots or structures, and for the embellishment of the cemetery in 

which such lots, blocks or structures are located. Whereas, the 

perpetual care fund authorized by Article 912a-15, to which contrs 

butions over and above the legal "mInImum" requirements may be 

made by both the cemetery aesoclatlon and third parties, is to be 

used solely four the general care and maintenance of the entire 

property that Is entitled to perpetual care in the cemetery for 

which the fund is established. Care should be exercised to distinguish "prepayments" from contributions. While contributions 

may be made by cemetery assoclatlons and third parties under 

Articles 9X3-15 and 912a-18, #repayment may not be made by a 

cemetery association of those mlnlmum” funds required to be 

deposited under Article 912a-15. 

A cemetery association may not prepay into 

its perpetual care fund those funds required 

to be deposited under Article 912a-15, V.C.S. 

Contributions received from third arties 

under the provisions of Article 912a-1 f; ,V.C.S., 

are to be considered different from contributions made by a cemetery association into its 

perpetual care fund under Article 912a-15, V.C.S. 

Very truly yours, 

WAGGONER CARR ')I. 

Attorney General of Texas 
Hon. H..L. Ben&son, page 8 (c-187 ) 

Jambs N. Stofer 

Assistant Attorney General 

JNS/jfa 

APPROVED: 

OPJWNION COMWIT!PEEr 

George Gray, Acting Chairman 

Cecil Rotsoh 

Milton Richardson 

Paul Robertson 

.:: f 

APPROVED FOR THE ATTORNEY GENFiRAL 

BY: Stanton Stone