Hon. J. M. Falkner opinionNO. v-1.281 Commissioner L?epsrtmentof Banking Re: Legalityof placingthe en- Austin,Texas dowM?nt funas of a p=P-=tua1 XXE cemeterywith a bank situatedoutsidethe home countr of the cemeterya880- Dear Mr.'~Falkner: ciation.
Your letterrequestingour opinion reads In part as follows:
'ThisDepartmentseveralweeks ago advisedthe above captionedcemeteryassociation,which is a per- petual cars cenr?tery, that since there is no trust cosqanywithin the countywherein it is situatedthat it would be requiredto place the endonnentfund with a Board of Trusteescomposedof three or more persons, no two of the trusteesof which shall be directorsof the association,under Section 15 of the perpetual care cemeteryact (Art. gl2a-15,V.C.S.). The asso- ciationhas entrustedthis fund to the First National Bank of Beaumont,outsidethe home county of the asso- ciation. This Departmentconstruedthe statuteas re- quiringby necessaryimplicationthat in all events such fiduciaryshouldbe within the county of the ceme- tery. ". . .
". . . Please advise us as to your construction of Section15."
The pertinentpart of Article gl2a-15,Vernon'sCivil Statutes,which is to be construed,Is as follows:
'Everycemeteryassociationor municipalityor other politicalsubdivisionwhich has establishedand is now maintaining,operatingma/or conducti a per- petual care cemetery,and every associationwhich shall hereafterestablish,maintain,operate and/or conduct, a peFpetua1care cemeterywithin this State pursuantto this Act, shall establishwith a trust companyor a Hon. J. M. Palkner,Page 2 (v-1281)
bank with trust powers,no tvo (2) of the directorsof which shallbe directorsof the cemeteryassociation for the benefitof which such fund is established,an endowmentfund of which the incomeonly csn be used for the generalperpetualcare of its cemeteryand to place its cemeteryunder perpetualcare; providedhowsver, that if there is no trust companyor bank with trust powers, qualifiedand willing to accept such trust funds at the regularfees established.by the Texas Trust Act, locatedwithin the countywithin which such cemeteryassociation,municipalityor other political subdivisic;,is located,then and only then, such en- dowmentfund may be establishedwith a Board of TNS- tees composedof three (3) or more persons,no two (2) of the trusteesof which shall be directorsof such cemeteryassociation. . . .(t
One of the primaryrules governingstatutoryconstruc- tion is that there is no room for construction when the law is expressedin plain and unambiguouslanguageand its meaning is clear and obvious,in which case the law will be appliedand en- forced as it reads. Gilmorev. Waples,108 Tex. 167, 188 S.W. 1037 (1916). Applyingthis rule to the foregoingstatute,we find nothing in the wording of the statutewhich requiresthat perpetualcare trust funds be depositedonly in a trust company or bank having trust powers in the county in which the cemetery associationis located.
Articlegl2a-15was codifiedfrom Section15 of House Bill 46, Acts 49th Leg., 1945, ch. 340, p. 559. This Section as originallyadoptedby the Legislaturedid not requirethat the trust companyor bank in which perpetualcare funds were de- positedbe locatedwithin the county in which the cemeteryasso- ciationis located. This Sectionwas amendedby the Fiftieth Legislaturein 1947 (LB. 98, Acts 50th Leg., ch. 210, p. 372) so as to provide "that if there is no trust companyor bank with trust powers, qualifiedand willing to accept such tNSt funds at the regularfees establishesby the Texas Trust Act, located within the countywithin which such cemeteryassociation,munici- pality or other politicalsubdivisionis