reglab/statecodes huggingface dataset:
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0033. Certificate of Authority Application; Fees

Sec. 712.0033.  CERTIFICATE OF AUTHORITY APPLICATION; FEES.  (a)  To obtain a certificate of authority to operate a perpetual care cemetery, an applicant must, not later than the 30th day after the date a corporation files its certificate of formation or application for registration with the secretary of state:
(1)  file an application, made under oath, on a form prescribed by the department; and
(2)  pay a filing fee in an amount set by the Finance Commission of Texas under Section 712.008.
(b)  If the corporation fails to comply with Subsection (a), the commissioner may instruct the secretary of state to remove the corporation from the secretary's active records or cancel the corporation's registration.  On an instruction from the commissioner under this subsection, the secretary of state shall remove the corporation from the secretary's active records or cancel the corporation's registration and serve notice of the cancellation on the corporation by registered or certified letter, addressed to the corporation's address.
(c)  A fee or cost paid under this chapter in connection with an application or renewal is not refundable.
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0034. Qualifications for Certificate of Authority; Investigation

Sec. 712.0034.  QUALIFICATIONS FOR CERTIFICATE OF AUTHORITY; INVESTIGATION.  (a)  The commissioner may:
(1)  investigate an applicant before issuing a certificate of authority; and
(2)  recover from the applicant reasonable costs the commissioner incurs in the investigation.
(b)  To qualify for a certificate of authority under this chapter, an applicant must demonstrate to the satisfaction of the commissioner that:
(1)  the applicant's business ability, experience, character, financial condition, and general fitness warrant the public's confidence;
(2)  the cemetery operations manager has at least two years of experience in cemetery management;
(3)  the issuance of the certificate of authority is in the public interest;
(4)  the applicant, a principal of the applicant, or a person who controls the applicant does not owe the department a delinquent fee, assessment, administrative penalty, or other amount imposed under this chapter or a rule adopted or order issued under this chapter; and
(5)  the applicant corporation:
(A)  is in good standing and statutory compliance with this state;
(B)  is authorized to engage in the perpetual care cemetery business in this state;
(C)  does not owe any delinquent franchise or other taxes to this state; and
(D)  wholly owns all land on which the perpetual care cemetery will be located.
(c)  For purposes of Subsection (b)(5)(D), an applicant corporation is considered to wholly own land regardless of whether the land is subject to a mortgage, deed of trust, or other lien.
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 71 (S.B. 1402), Sec. 2, eff. September 1, 2017.
Acts 2019, 86th Leg., R.S., Ch. 274 (S.B. 1821), Sec. 1, eff. September 1, 2019.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0035. Issuance of Certificate of Authority

Sec. 712.0035.  ISSUANCE OF CERTIFICATE OF AUTHORITY.  (a)  The commissioner shall issue a certificate of authority if the commissioner finds that:
(1)  the applicant meets the qualifications listed in Section 712.0034 and it is reasonable to believe that the applicant's cemetery business will be conducted fairly and lawfully, according to applicable state and federal law, and in a manner commanding the public's trust and confidence;
(2)  the issuance of the certificate of authority is in the public interest;
(3)  the documentation and forms required to be submitted by the applicant are acceptable; and
(4)  the applicant has satisfied all requirements for issuance of a certificate of authority.
(b)  The applicant is entitled, on request, to a hearing on a denial of the application.  The request must be filed with the commissioner not later than the 30th day after the date the notice of denial is mailed.  The hearing must be held not later than the 60th day after the date of the request unless the administrative law judge extends the period for good cause or the parties agree to a later hearing date.  The hearing is a contested case under Chapter 2001, Government Code.
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0036. Term of Certificate of Authority

Sec. 712.0036.  TERM OF CERTIFICATE OF AUTHORITY.  (a)  The Finance Commission of Texas by rule shall prescribe the term of and renewal procedures for a certificate of authority issued under this chapter.
(b)  If the Finance Commission of Texas prescribes the term of a certificate of authority issued under this chapter for a period other than one year, the finance commission shall prorate any applicable fees as necessary to reflect the term of the certificate.
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
Amended by:
Acts 2019, 86th Leg., R.S., Ch. 20 (S.B. 614), Sec. 45, eff. September 1, 2019.
For expiration of Subsections (a-1) and (a-2), see Subsection (a-2).
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0038. Transfer or Assignment Prohibited

Sec. 712.0038.  TRANSFER OR ASSIGNMENT PROHIBITED.  A certificate of authority issued under this chapter may not be transferred or assigned.
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.0039. Transfer of Business Ownership; Change of Control

Sec. 712.0039.  TRANSFER OF BUSINESS OWNERSHIP; CHANGE OF CONTROL.  (a)  A certificate holder shall notify the department in writing of a transfer of ownership of the certificate holder's business or a transfer of 25 percent or more of the stock or other ownership or membership interest of the corporation as follows:
(1)  in the case of a voluntary transfer, not later than the seventh day after the date the contract for transfer is executed; and
(2)  in the case of an involuntary transfer, not later than one business day after receiving notice of the impending foreclosure or other involuntary transfer.
(b)  If the proposed transferee would own more than 50 percent of the stock or other ownership or membership interest of the corporation and is not a certificate holder, the proposed transferee shall file any necessary documents with the secretary of state and an application for a certificate of authority with the department as required by this chapter.  If the proposed transferee is required to apply for a certificate of authority under this subsection, the transfer of the perpetual care fund may not occur until after the date a certificate of authority is issued to the transferee applicant.
(c)  If the commissioner denies the application, a hearing may be requested and conducted according to the procedures in Section 712.0035(b).
Added by Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 8, eff. September 1, 2011.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 8, eff. September 1, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 123 (S.B. 661), Sec. 8, eff. September 1, 2013.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.004. Perpetual Care Trust Fund Required

Sec. 712.004.  PERPETUAL CARE TRUST FUND REQUIRED.  (a)  Before obtaining a corporate charter, the incorporators of a corporation chartered on or after September 3, 1945, and before September 1, 1993, must establish a fund by permanently depositing in cash with the trustee of the fund:
(1)  $15,000, if the corporation has capital stock of $15,000;
(2)  $30,000, if the corporation has capital stock of $30,000;  or
(3)  $50,000, if the corporation has capital stock of $50,000 or more.
(b)  Before obtaining a corporate charter, the incorporators of a corporation chartered on or after September 1, 1993, must establish a fund by permanently depositing in cash with the trustee of the fund an amount of not less than $50,000 for each perpetual care cemetery operated in this state.
(c)  The fund shall be permanently set aside and deposited in trust with the trustee in accordance with Subchapter B.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 28, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.005. Cancellation of Charter for Failure to Begin Operation of Perpetual Care Cemetery

Sec. 712.005.  CANCELLATION OF CHARTER FOR FAILURE TO BEGIN OPERATION OF PERPETUAL CARE CEMETERY.  (a)  If a corporation chartered under Section 712.003 does not begin actual operation of its perpetual care cemetery for six months after the charter is granted and delivered, the commissioner may instruct the secretary of state to cancel the charter and serve notice of the cancellation on the corporation by registered or certified letter, addressed to the corporation's address.
(b)  The commissioner may rescind the order of cancellation on:
(1)  the application of the directors;
(2)  the payment to the commissioner of a penalty set by the commissioner in an amount not to exceed $500;
(3)  the execution and delivery to the commissioner of an agreement to begin actual operation of the perpetual care cemetery not later than one month after the date of the agreement;  and
(4)  a proper showing by the trustee that the fund is on deposit.
(c)  If the corporation does not begin actual operation as agreed, the commissioner by order may set aside the order of rescission and the cancellation is final.  The commissioner shall make a full report of the cancellation to the attorney general for liquidation of the corporation, if liquidation is necessary.
(d)  If no sale of the dedicated cemetery property of the corporation is made, a certified copy of the order of cancellation authorizes the trustee to refund the fund to the incorporators who signed the corporation's articles of incorporation.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 29, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.007. Notice of Perpetual Care Required

Sec. 712.007.  NOTICE OF PERPETUAL CARE REQUIRED.  (a)  A corporation shall post a sign at or near a cemetery entrance or administration building and readily accessible to the public.
(b)  The sign must contain the following:
(1)  "Perpetual Care Cemetery," or "Endowment Care Cemetery";
(2)  the names and telephone numbers of two of the corporation's officers or directors;  and
(3)  the name of each bank or trust company entrusted with the fund.
(c)  A corporation must include the following statement in each sales contract, certificate of ownership, or other instrument of conveyance of the exclusive right of sepulture:
"This cemetery is operated as a perpetual care cemetery, which means that a perpetual care fund for its maintenance has been established in conformity with the laws of the State of Texas.  Perpetual care means to maintain, repair, and care for the cemetery, including the roads on cemetery property."
(d)  The term "endowment care" may be substituted for the term "perpetual care" in the statement required by Subsection (c).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 30, eff. March 1, 1994.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 341 (H.B. 1031), Sec. 1, eff. September 1, 2009.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.008. Rules

Sec. 712.008.  RULES.  (a)  The Finance Commission of Texas may adopt rules to enforce and administer this chapter, including rules establishing fees to defray the costs of enforcing and administering this chapter.
(b)  The Finance Commission of Texas shall adopt rules establishing reasonable standards for:
(1)  timely placement of burial markers or monuments in a perpetual care cemetery;  and
(2)  timely response to consumer complaints made to a corporation that operates a perpetual care cemetery.
Added by Acts 2001, 77th Leg., ch. 699, Sec. 13, eff. Sept. 1, 2001.  Amended by Acts 2003, 78th Leg., ch. 562, Sec. 37, eff. Sept. 1, 2003.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter A. General Provisions › Section 712.009. Limitations on Burials; Damages

Sec. 712.009.  LIMITATIONS ON BURIALS;  DAMAGES.  (a)  The Finance Commission of Texas shall adopt rules to administer and enforce this section.
(b)  An individual, corporation, partnership, firm, trust, or association that operates or owns a perpetual care cemetery may not inter the remains of an individual who may have caused the death of another person if:
(1)  the victim is interred in that cemetery;  and
(2)  the person having the right to control the disposition of the victim's remains under Section 711.002(a) gives written notice to the cemetery requesting that the individual not be interred in that cemetery if:
(A)  the individual was convicted under Section 19.02, 19.03, 19.05, or 49.08, Penal Code, for causing the death of the victim, or convicted under a similar statute of another state;  or
(B)  the individual was identified as causing the death of the victim, in violation of a provision described by Paragraph (A), by the medical examiner or law enforcement agency having jurisdiction over the offense, and the individual dies before being convicted of the offense.
(c)  An individual, corporation, partnership, firm, trust, or association that violates Subsection (b) is liable to the person having the right to control the disposition of the victim's remains under Section 711.002(a) for:
(1)  any actual damages incurred;
(2)  punitive damages not to exceed $10,000;  and
(3)  reasonable attorney's fees and court costs incurred in an effort to enforce compliance with Subsection (b).
(d)  Damages under Subsection (c) may not be assessed if the individual, corporation, partnership, firm, trust, or association that operates the cemetery proves by a preponderance of the evidence that:
(1)  the cemetery is the only cemetery serving the municipality or county in which the victim and individual causing the victim's death lived;  and
(2)  the bodies of the victim and individual causing the victim's death were placed as far apart as possible in, or in different parts of, the cemetery.
(e)  An individual, corporation, partnership, firm, trust, or association operating or owning a perpetual care cemetery and barred from interring remains of an individual under this section may not be held liable for damages by a person having the right to control the disposition of the individual's remains under Section 711.002(a), including damages for failure to provide for interment under a contract executed before the delivery of the written notice under Subsection (b)(2).
(f)  A notice under Subsection (b)(2) expires seven years after the date the notice is delivered.  A new notice may be delivered on the expiration of each previous notice.
Added by Acts 2001, 77th Leg., ch. 699, Sec. 14, eff. Sept. 1, 2001.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.020. Conflict With Other Law

Sec. 712.020.  CONFLICT WITH OTHER LAW.  To the extent of any conflict between this subchapter and Subtitle B, Title 9, Property Code, this subchapter controls.
Added by Acts 2015, 84th Leg., R.S., Ch. 19 (S.B. 656), Sec. 1, eff. May 15, 2015.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.022. Operation of Perpetual Care Cemetery

Sec. 712.022.  OPERATION OF PERPETUAL CARE CEMETERY.  A corporation authorized by law to operate a perpetual care cemetery but not doing so may do so if the corporation:
(1)  complies with the requirements of this chapter for obtaining a certificate of authority; and
(2)  establishes a fund as provided by Section 712.021 in an amount equal to the larger of:
(A)  the amount that would have been paid into the fund if the cemetery operated as a perpetual care cemetery from the date of the cemetery's first sale of plots; or
(B)  the minimum amount provided by Section 712.004.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 32, eff. Sept. 1, 1993.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 9, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 9, eff. September 1, 2011.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.023. Validity of Contributions

Sec. 712.023.  VALIDITY OF CONTRIBUTIONS.  A contribution to a fund for perpetual care is not invalid because of:
(1)  indefiniteness or uncertainty of the person designated as beneficiary in the instrument establishing the fund;  or
(2)  a violation of the law against perpetuities or the law against the suspension of the power of alienation of title to or use of property.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 33, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.024. Amendment of Trust Instrument

Sec. 712.024.  AMENDMENT OF TRUST INSTRUMENT.  A corporation and the trustee of a fund may, by agreement, amend the instrument that established the fund to include any provision that is consistent with this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 34, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.025. Use of Fund Distributions

Sec. 712.025.  USE OF FUND DISTRIBUTIONS.  Fund distributions may be used only to provide the perpetual care described by the instrument that established the fund, including the general care and maintenance of the property entitled to perpetual care in the perpetual care cemetery.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 35, eff. Sept. 1, 1993;  Acts 2003, 78th Leg., ch. 562, Sec. 38, eff. Sept. 1, 2003.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 4, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.0255. Judicial Modification or Termination of Fund

Sec. 712.0255.  JUDICIAL MODIFICATION OR TERMINATION OF FUND.  (a)  The commissioner may petition a court to modify or terminate a fund under Section 112.054, Property Code.  In addition to the grounds described by that section, the commissioner may petition a court under that section if the permissible distributions from the fund are inadequate to maintain, repair, and care for the perpetual care cemetery and another source for providing additional contributions to the fund is unavailable.
(b)  If feasible, the corporation for the perpetual care cemetery and the trustee of the fund are necessary parties to an action described by this section.  A court may not modify or terminate the fund without the consent of the commissioner.
(c)  At the request or with the consent of the commissioner, the court may order the distribution and transfer of all or a portion of the assets in the fund to a nonprofit corporation, municipality, county, or other appropriate person who is willing to accept, continue to care for, and maintain the perpetual care cemetery.  A transfer under this subsection does not limit the court's ability to modify or terminate the fund under an action described by this section.
Added by Acts 2015, 84th Leg., R.S., Ch. 19 (S.B. 656), Sec. 3, eff. May 15, 2015.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 5, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.026. Suit by Plot Owners to Maintain Perpetual Care

Sec. 712.026.  SUIT BY PLOT OWNERS TO MAINTAIN PERPETUAL CARE.  (a)  If the directors of a corporation do not generally care for and maintain the corporation's perpetual care cemetery, the district court of the county in which the perpetual care cemetery is located may:
(1)  by injunction compel the directors to expend the permissible distributions from the corporation's fund as required by this chapter; or
(2)  appoint a receiver to take charge of the fund and expend the permissible distributions from the fund as required by this chapter.
(b)  The suit for relief under this section must be brought by at least five owners of plots located in the perpetual care cemetery.
(c)  In a suit for relief under this section, court costs and attorney's fees shall be awarded:
(1)  to the directors of the corporation, if it is found that the directors are substantially expending the permissible distributions from the fund as required by this subchapter; or
(2)  to the plot owners initiating the suit, if it is found that the directors are not substantially expending the permissible distributions from the fund as required by this subchapter.
(d)  Fund assets may not be used to pay court costs and attorney's fees awarded under Subsection (c).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 36, eff. Sept. 1, 1993;  Acts 2001, 77th Leg., ch. 106, Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 6, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.027. Investment of Fund

Sec. 712.027.  INVESTMENT OF FUND.  (a)  A trustee shall invest and manage the investment of the principal of a fund in accordance with the Texas Trust Code (Section 111.001 et seq., Property Code).
(b)  An investment must be made at not more than the prevailing market value of the securities at the time of acquisition.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 37, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.028. Amount of Fund Deposits From Sales

Sec. 712.028.  AMOUNT OF FUND DEPOSITS FROM SALES.  (a)  A corporation shall deposit in its fund an amount that is at least:
(1)  the greater of:
(A)  $1.75 a square foot of ground area conveyed as perpetual care property;  or
(B)  15 percent of the total purchase price of that ground area;
(2)  the greater of:
(A)  $105 for each crypt interment right for mausoleum interment or lawn crypt interment conveyed as perpetual care property, or $60 for each crypt interment right if that crypt is accessible only through another crypt;  or
(B)  seven percent of the total purchase price of that crypt interment right;  and
(3)  the greater of:
(A)  $35 for each niche interment right for columbarium interment conveyed;  or
(B)  15 percent of the total purchase price of that niche interment right.
(b)  Subsection (a) does not apply to deposits from sales required to be made by a corporation in its fund before September 1, 1993, under a corresponding statute in effect before that date.
(c)  If a plot owner exchanges a plot for another plot in a corporation's perpetual care cemetery, the amount to be deposited in the corporation's fund in respect of the plot received by the plot owner in the exchange may be reduced by the amount deposited in the fund in respect of the plot contributed by the plot owner in the exchange.  The amount required to be deposited with respect to an exchanged plot is the amount required at the time the plot owner originally contracted to purchase the plot.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 219, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 634, Sec. 38, eff. Sept. 1, 1993;  Acts 2003, 78th Leg., ch. 562, Sec. 39, eff. Sept. 1, 2003.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.029. Accounting for and Depositing Amounts

Sec. 712.029.  ACCOUNTING FOR AND DEPOSITING AMOUNTS.  (a)  The part of the purchase price of a plot in a perpetual care cemetery that is to be deposited in a fund must be shown separately on the original purchase agreement from the total purchase price.  A copy of the agreement shall be delivered to the purchaser of the plot.
(b)  On the sale of a plot, a commission may not be paid to a broker or salesman on the amount to be deposited in the fund.
(c)  A corporation shall deposit in its fund the amount required under Section 712.028 not later than the 20th day after the end of the month in which the original purchase agreement has been paid in full.  A corporation may prepay funds into its fund at any time and, if a surplus exists in the fund from the prepayments, may credit against the surplus the amounts otherwise required to be deposited in the fund under Section 712.028 until the surplus has been depleted.  In determining whether a surplus exists from prepayments, no part of the fund resulting from gifts to the fund under Section 712.030 may be considered.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 220, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 634, Sec. 39, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. Perpetual Care Trust Fund › Section 712.030. Use of Gift for Special Care of Plot in Perpetual Care Cemetery

Sec. 712.030.  USE OF GIFT FOR SPECIAL CARE OF PLOT IN PERPETUAL CARE CEMETERY.  (a) A trustee may take and hold property transferred to the trustee in trust in order to apply the principal, proceeds, or income of the property for any purpose consistent with the terms of the trust and the purpose of a corporation's perpetual care cemetery, including:
(1)  the improvement or embellishment of any part of the perpetual care cemetery;
(2)  the erection, renewal, repair, or preservation of a monument, fence, building, or other structure in the perpetual care cemetery;
(3)  planting or cultivating plants in or around the perpetual care cemetery; or
(4)  taking special care of or embellishing a plot, section, or building in the perpetual care cemetery.
(b)  Except as provided by this subsection, the assets of a trust established under this section are not considered assets of the fund.  If a gift in trust is specifically intended to serve the same general purpose as the fund, the trust may be merged with the fund.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 40, eff. Sept. 1, 1993.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 7, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0351. Definitions

Sec. 712.0351.  DEFINITIONS.  In this subchapter:
(1)  "Net income fund" means a fund from which permissible distributions are calculated based on the net income method.
(2)  "Net income method" means calculation of permissible annual distributions by the trustee as equal to the annual net income of the fund.
(3)  "Total return fund" means a fund from which permissible distributions are calculated based on the total return method.
(4)  "Total return method" means the calculation of permissible annual distributions by the trustee as equal to the average fair market value of the assets in the fund, determined under Section 712.0353, multiplied by the total return percentage.
(5)  "Total return percentage" means the annual percentage selected by the trustee in accordance with Section 712.0354.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0353. Determination of Fair Market Value

Sec. 712.0353.  DETERMINATION OF FAIR MARKET VALUE.  (a)  The trustee of a total return fund, or of a net income fund seeking to convert to a total return fund, shall determine for the corporation, in the trustee's sole discretion and in accordance with this section, the average fair market value of the fund at the beginning of each fiscal year.
(b)  The trustee shall derive the average fair market value of the fund at least annually by averaging the fair market value of fund assets, determined on an asset-by-asset basis, as of the beginning of the current fiscal year and in each of the two previous years, or for the entire term of the trust with less than two previous years, using the valuation date or averages of valuation dates as the trustee considers appropriate.  The trustee shall exclude from the fair market value calculation any asset described in Section 712.030(b) and any asset for which the trustee is not able to reasonably ascertain a fair market value.  In determining the average fair market value, the trustee shall adjust the fair market value for each year used in the calculation as follows:
(1)  for assets added to the fund during the years used to determine the average, the trustee shall add the amount of each addition to all years in which the addition is not included; and
(2)  for assets withdrawn from the fund during the years used to determine the average, other than in satisfaction of permissible distributions, the trustee shall subtract the amount of each withdrawal from all years in which the withdrawal is not included.
(c)  Before the 31st day after the beginning of each fiscal year, the trustee of a total return fund shall send written notice to the commissioner and to the corporation of the trustee's determination of the current fair market value of the fund as of the beginning of the current fiscal year and the average fair market value of the fund for determining permissible distributions for the fiscal year, with identification and explanation of any asset excluded from the determination.  If the trustee alters the methodology of determining fair market value in a manner that changes the fair market value of the fund during a fiscal year, the trustee shall send written notice to the commissioner and to the corporation of the revised current and average fair market value of the fund and the reason for the revision before the first distribution is made based on the revised average fair market value.
(d)  This section does not alter or otherwise affect a fiduciary duty under other law to evaluate and monitor the fair market value of assets held in trust.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0354. Determination of Total Return Percentage

Sec. 712.0354.  DETERMINATION OF TOTAL RETURN PERCENTAGE.  (a)  Consistent with the prudent investor rule, the trustee in the exercise of the trustee's sole discretion shall select the total return percentage to be used in determining permissible distributions from a total return trust at least annually, in an amount that represents a reasonable current return from the fund in light of the investment policy currently applicable to the fund, provided that the total return percentage does not exceed five percent.
(b)  Before the 31st day after the beginning of each fiscal year, the trustee of a total return fund shall send written notice to the commissioner and to the corporation of the trustee's determination of the total return percentage to be applied in the fiscal year.  If the trustee alters the total return percentage during a fiscal year, the trustee shall send written notice to the commissioner and to the corporation of the revised total return percentage and the reason for the revision before the first distribution is made based on the new total return percentage.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0355. Regulatory Limits on Distributions

Sec. 712.0355.  REGULATORY LIMITS ON DISTRIBUTIONS.  (a)  After notice and an opportunity for hearing, the commissioner by order may convert a total return fund to a net income fund, limit or prohibit distributions from the fund, or both, if:
(1)  the current fair market value of the fund at the beginning of a fiscal year is less than the original principal of the fund, consisting of the sum of all required deposits into the fund under this chapter, including deposits required by Sections 712.004 and 712.028;
(2)  the average fair market value of the fund declines by 10 percent or more over a two-year period; or
(3)  the trustee or other fiduciary of the fund responsible for investment policy has demonstrated a lack of sufficient knowledge and expertise or has failed to ensure that an investment policy is in place to support the use of the total return method of calculating distributions in a manner consistent with achieving the purposes of the fund as provided by Section 712.021(f).
(b)  The commissioner may decline to impose corrective measures under Subsection (a) if the commissioner finds that:
(1)  the cause of the adverse trend in the fair market value of the fund is due to one or more unusual or temporary factors not within the control of the corporation or trustee of the corporation's fund and could not have been reasonably anticipated;
(2)  the current, written investment policy of the fund, in light of anticipated distributions from the fund, is reasonably designed to protect the fund from further declines in fair market value; and
(3)  the exception appears to be both necessary and appropriate for the continued protection and perpetual existence of the fund.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0356. Rules

Sec. 712.0356.  RULES.  The Finance Commission of Texas may adopt rules to implement and clarify this subchapter.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter B. -1. Distributions From Fund › Section 712.0357. Nature of Total Return Distributions

Sec. 712.0357.  NATURE OF TOTAL RETURN DISTRIBUTIONS.  (a)  A distribution from a total return fund is considered a distribution of all income of the fund that reasonably apportions the total return of the fund, and may not be considered a fundamental departure from applicable state law.
(b)  Unless the trust instrument provides otherwise, the trustee of a total return fund shall treat a distribution as first being made from the following sources in order of priority:
(1)  from net accounting income;
(2)  from ordinary accounting income not allocable to net accounting income;
(3)  from net realized short-term capital gains;
(4)  from net realized long-term capital gains; and
(5)  from the principal of the fund.
Added by Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 1, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.041. Annual Statement of Funds

Sec. 712.041.  ANNUAL STATEMENT OF FUNDS.  (a)  A corporation shall file in its office and with the commissioner a statement for each perpetual care cemetery operated in this state in duplicate that shows:
(1)  the principal amount of its fund;
(2)  the amount of the fund invested in bonds and other securities;
(3)  the amount of cash on hand in the fund;
(4)  any other item that shows the financial condition of the fund;
(5)  the number of crypts, niches, and square feet of ground area conveyed under perpetual care before and after March 15, 1934, listed separately;  and
(6)  the number of crypts, niches, and square feet of ground area conveyed under perpetual care after March 15, 1934, for which the minimum deposits required for perpetual care have not been paid to the fund.
(b)  The corporation's president and secretary, or two principal officers, shall verify the information on the statement.
(c)  The corporation shall revise and post and file the statement on or before March 1 of each year.
(d)  A copy of the statement shall be available to the public upon request.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 41, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.042. Fees

Sec. 712.042.  FEES.  On filing a statement of funds under Section 712.041, a corporation shall pay the commissioner a reasonable and necessary fee set by rule adopted by the Finance Commission of Texas under Section 712.008 to defray the cost of administering this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 221, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 634, Sec. 42, eff. Sept. 1, 1993;  Acts 1995, 74th Leg., ch. 914, Sec. 6, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 62, Sec. 7.65, eff. Sept. 1, 1999;  Acts 2001, 77th Leg., ch. 699, Sec. 15, eff. Sept. 1, 2001.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.043. Additional Fund Report

Sec. 712.043.  ADDITIONAL FUND REPORT.  The commissioner may require, as often as the commissioner determines necessary, the trustee of a corporation's fund to make under oath a detailed report of the condition of the fund.  The report must include:
(1)  a detailed description of the assets of the fund;
(2)  a description of securities held by the fund;
(3)  if a security held by the fund is a lien, a description of the property against which the lien is taken;
(4)  each security's acquisition cost;
(5)  each security's market value at the time of acquisition;
(6)  each security's current market value;
(7)  each security's status with reference to default;
(8)  a statement that a security is not encumbered by debt;  and
(9)  any other information the commissioner determines is pertinent.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 43, eff. Sept. 1, 1993.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.0435. Investigations

Sec. 712.0435.  INVESTIGATIONS.  The commissioner may:
(1)  conduct an investigation to administer and enforce this chapter; and
(2)  recover reasonable costs incurred by the commissioner in the investigation from the subject of the investigation if the commissioner determines a violation occurred.
Added by Acts 2019, 86th Leg., R.S., Ch. 274 (S.B. 1821), Sec. 2, eff. September 1, 2019.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.044. Examination of Records; Examination Fees and Expenses

Sec. 712.044.  EXAMINATION OF RECORDS;  EXAMINATION FEES AND EXPENSES.  (a)  The commissioner may examine on a periodic basis as the commissioner reasonably considers necessary or appropriate to protect the interest of plot owners and efficiently administer and enforce this chapter:
(1)  the books and records of a corporation relating to its fund, including deposits to or withdrawals from the fund, income of the fund, and uses and expenditures of distributions from the fund;
(2)  the books and records of a corporation relating to sales of undeveloped mausoleum spaces and any preconstruction trust established by the corporation as provided by Section 712.063, including deposits to or withdrawals from the preconstruction trust, income of the preconstruction trust, and uses and expenditures of principal and income of the preconstruction trust; and
(3)  the consumer complaint files of a corporation relating to the fund, sales of undeveloped mausoleum spaces, a preconstruction trust, or to discharge of the corporation's perpetual care responsibilities, minutes of the corporation's board of directors, cemetery dedication statements and plat maps, and mausoleum and lawn crypt construction contracts and specifications.
(b)  A corporation that is examined under this section shall make the specified books and records available for examination by the banking department upon reasonable notice to the corporation and shall pay to the commissioner for the examination a reasonable and necessary fee set by rules adopted by the Finance Commission of Texas under Section 712.008 to defray:
(1)  the cost of examination;
(2)  the equitable or proportionate cost of maintenance and operation of the department; and
(3) the cost of administering and enforcing this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 634, Sec. 44, eff. Sept. 1, 1993;  Acts 2001, 77th Leg., ch. 699, Sec. 16, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 345 (S.B. 1173), Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1290 (H.B. 2581), Sec. 2, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 10, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 10, eff. September 1, 2011.
Acts 2017, 85th Leg., R.S., Ch. 1051 (H.B. 1948), Sec. 8, eff. September 1, 2017.
2023 Texas Statutes › Health and Safety Code › Title 8 - Death and Disposition of the Body › Subtitle C - Cemeteries and Crematories › Chapter 712 - Perpetual Care Cemeteries › Subchapter C. Regulation and Enforcement › Section 712.0442. Pattern of Wilful Disregard

Sec. 712.0442.  PATTERN OF WILFUL DISREGARD.  (a)  If, after a hearing conducted as provided by Chapter 2001, Government Code, the trier of fact finds that a violation of this chapter or a rule of the Finance Commission of Texas establishes a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission, the trier of fact may recommend to the commissioner that the maximum administrative penalty permitted under Section 712.0441 be imposed on the person committing the violation or that the commissioner cancel or not renew the corporation's certificate of authority under this chapter if the person holds such a certificate.
(b)  For the purposes of this section, violations corrected as provided by Section 712.0441 may be included in determining whether a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission exists.
Added by Acts 2001, 77th Leg., ch. 699, Sec. 18, eff. Sept. 1, 2001.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 532 (H.B. 2495), Sec. 12, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1336 (S.B. 1167), Sec. 12, eff. September 1, 2011.