AUSTIN I,.TExas December 2, 1963

HonorablePI.

L. Ben&son Deputy Banking Commissioner Departmentof Banking John Hi Reagan State Office Building Austin, Texas

Dear Mr. Dengtson:
Your letter follows: Opinion NO. c-187
Re: Whether a cemetery associationmay make prepayments into its perpetual care trust fund of those funds requiredunder Article 912a-15,V.C.S., to be depositedupon receipt of final purchase price of intermentpropertiesentitled to perpetual care and a related question. requestingthe opinion of this office reads as

"A cemeteryassociation operatingunder the provislonsof~

Article 912a, Vernon's Civil Statutes,has in the past deposited funds to its PerpetualCare Trust Fund in excess of the legal mInimum requirements thereby creatinga surplus in the Trust Fund. The corporation has stated that such surplushad resulted from advancedpayments having been made to the Trust Fund by the stockholders

of the corporationin antlcipation of estimated sales of Intermentproperties. *

. . . . "Previousexaminationsconductedby this Departmentreveal that no depositshave been made in the PerpetualCare Trust Fund from the sale of deeded property for approximately four (4) years. The corporation has indicated, that this procedurewas based upon their assumption that the.advancea made' tothe Trust Fund by the stockholdersIn anticipationof sales to be

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

made more than met the minimum legal requirements of propertyactually sold and therefore no additionaldepositswere necessarywhen the anticipatedsales were completed.
"No part of the surplus in the Trust Fund resulted from propertybequeathed,granted or given to the cemeteryunder the 'provisions of Article 912a-18,V.C.S. ,I. "I request your oplnlon in answer to the followingquestions:
1. Ray the stockholders of a-cemetery associationprepay funds Into. Its Perpetual Care Trust Fund, either In advance of,sales or during the life of a time-paymentcontract 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 PerpetualCare Fund exists from such payments,may credit be taken against such surplus from the sales of property entitled to perpetual care'untilthe surplus has been depleted?
3. Are contributions or donationsreceived from the stockholders of a cemetery associationover and above legal requirements to be consideredin the same light as contributions

or donations from.

third parties under the provisionsof 912a-18, V.C.S.?" Although Senate Bill 121, Acts 58th Leg., R,S. 1963, oh'. 495, p. 1298, sec. 3, hereinafterreferred 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 obligationsimposed upon a cemeteryassociation in respect to its perpetual care trust fund as such obfigations existedunder the former Article 912a-15,V.C.S. The first two questionsposed in your request can be reduced Into the single question of whether or not a cemeteryassociation may make prepaymentsinto its perpetual care trust fund of those funds requiredunder Article 912a-15, Vernon's Civil Statutes,Hon. H. L. Bengtson,page 3 (C- 18 ’7 )

to be depositedupon the receipt of the final purchase price of each intermentproperty entltled to perpetual care. It is our opinion that such prepaymentscannot be made. The pertinentportions of Article 912a-15,V.C.S., prior to Senate Bill 121, are as follows:

"Every cemeteryassociation '.

. . which has establishedand Is now maintaining,operating and/or conductinga perpetual care cemetery, and every associationwhich shall hereafter establish,maintain, operate andLor conduct,a perpetual care cemeterywithin this State pursuant to this Act, shall establish.

. . an endowment fund

. . . . The principal of such fund for perpetual care shall never be voluntarilyreduced, but shall maintain remal~'invlolable and c shall forever be maintaine separateand distinct by the trustee or trustees from all other funds.

. And the net income arising therefrom shall ie'used solely for the general care Andymaintenance 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 cemeteryassociation ;hich ha's established' a perpetual care fund may also take, receive, and hold thereforand'as a part thereof or as an incident thereto any property, real, personal or mixed, bequeathed,devised, granted, given or otherwise contributedto It therefor. "The perpetual care fund authorizedby this Section and~all sums paid therein or,contrlbuted thereto are, and each.thereofis hereby, expressly permittedand shall be and be deemed'tobe for charitableand 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 requirementsshall apply co'aii'property

in which the exclusiveright of sepulturehas been sold and paid for, whether used for intermentpurposes 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 purchaseprice of each lot, grave, crypt, or niche sold as property entitled to perpetual care. . ,,VV (Emphasis =wPl~ed)
It is a fundamentalrule of statutoryconstructionthat there is no room for construction when the law in expressed In plain and unambiguous languageand.lts meaning 4s clear:.and.obvious. 39 Tex.Jur. 161, Statutes; Sec. 88, and cases cited. If the statutory language clearly and distinctlyreveals the legislative intent, there'isno occasion to look elsewhere. 39 Tex.Jur. 177, Statutes,Sec. 93. Under Its clearlymandatory language,Artlcle'912a-15requires that each~perpetual care cemetery shall establisha 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'bedeposited, i.e., "withinthirty (30) days after the receipt of the final purchase price" Of the various Interment propertiesentitled to perpetual care. The language of this statutoryprovision 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 cemeteryassociationto prepay Into Its perpetual care trust fund the minimum funds required to be deposited 'withinthirty (30) days after the receipt of the final purchaseprice". Interpretatlon,by implicationis 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 czrporationdesiring to operate a perpetual care cemeterymust establisha minimum perpetual care trust fund; and that, upon sales of interment properties,the depositsas requiredby 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. fii 19 3, ch. t95, ;. 1298, sec. 3, recently amending Article 912a-15, provides in part that, If a cemeteryassociationoperatinga non-perpetualcarz~cemetery desires to operate a perpetual care cemetery, it shall establisha perpetual care fund equal to the amount which ;okd theretofore

have been paid Into such fund, in accordancewith provisionsof this Act, if said cemeteryhas been operatingas 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 establishedls,the minimum amount provided In Section 29 of this Act, such cemeteryassociationor corporationshall be entitled to a,credit against amounts hereafter required by the provisionsof 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 originallyestablished by It, over what would have been the amount thereof if its amount had been determinedwithout regard to Section 29 of this Act." Had the Legislatureintended for prepaymentsand 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 amendmentswere enacted, chose not to provide a~method of prepaying the minimum deposits required’under Article 912a-15. The holding of this opinion is further supportedby the followingpertinentamendments~to Article 912a-15 by Senate Bill 121: "AfterAugust 23, 1963, each agreement for the sale of burial space in a perpetual care cemetery shall set out separatelythe part of the'aggregateamount agreed to be paid by the purchaserwhich is'to ,be deposited in the perpetual care trust fund. If the aggregateamount

-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 receivedby 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 depositednot 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 originalpurchase agreementand a copy thereof shall be deliveredto 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 Legislatureexpresseswith greater clarity the method and time by which a cemeteryassociation hereafter organized must make the required depositsunder' 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 suggestedthat 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-' tinctionbetween contributions from a cemeteryassoclatfonto Its perpetual care fund over and above the minimum funds required under Artl,cle

912a-15, and contributionsfrom third parties under the provisionsof Article 912a-18, Vernon's Civil Statutes. Article 912a-18, entitled'"Specia1 Care", provides that the trustee of a cemeteryperpetual care fund may also take and hold any property granted or contributedto it ln'trust to apply the princlpal or Income therefrom for any of the following (purposes:
'PO the improvementor embelliahment Gf's&h cemetery,or any part thereof, OCR ,anylot therein, to the erection,renewal, repair or preservationof any monuments,~ fence, building or other structure in such cemetery;' to the planning, cultivationof 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 ornamentingof 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 cemeterywaz establishedor is being maintained. , . ." This provison Intends the establishment of special funds separate and~apart from the perpetual care fund authorizedunder Article 912a-15. Such special funds, consistingof grants and contributions from both third parties and cemeteryassociations, are to be used for the upkeep and beautification of "private"blocks, lots or structures, and for the embellishmentof the cemetery in which such lots, blocks or structuresare located. Whereas, the perpetual care fund authorizedby Article 912a-15, to which contrs butions over and above the legal "mInImum"requirements may be made by both the cemeteryaesoclatlonand third parties, is to be used solely four

the general care and maintenanceof 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 cemeteryassoclatlons and third parties under Articles 9X3-15 and 912a-18, #repaymentmay not be made by a cemeteryassociationof those mlnlmum” funds required to be depositedunder Article 912a-15.

A cemeteryassociationmay not prepay into its perpetual care fund those funds required to be depositedunder Article 912a-15, V.C.S. Contributions

received from third arties under the provisionsof Article 912a-1 f; , V.C.S., are to be considereddifferent from contributions made by a cemeteryassociationinto its perpetual care fund under Article 912a-15,V.C.S. Very truly yours, WAGGONER CARR ')I. Attorney General of TexasHon. H..L. Ben&son, page 8 (c-187 )

Jambs N. Stofer AssistantAttorney 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