TITLE 7. BANKING AND SECURITIES
PART 2. TEXAS DEPARTMENT OF BANKING
[Includes §§26.1 - 26.5, 26.11 - 26.12.]
(a) Definitions. The following words and terms, when used in this section, will have the following meanings, unless the text clearly indicates otherwise.
(1) "Act" means Health and Safety Code, Chapter 712, as amended.
(2) "Examination" means the department's review and evaluation of the books and records of a perpetual care cemetery corporation by on-site examination or off-site review pursuant to Section 712.044(a) of the Act.
(3) "You," "Your," "I" means the owner or operator of a perpetual care cemetery.
(4) "Fund balance" means the total amount of perpetual care monies that are required to be deposited in your perpetual care fund under the Act, excluding capital gains, capital losses, undistributed interest income and any voluntary contributions.
(5) "Fiscal year" means the 12-month period from September 1st to August 31st.
(6) "Certificate of authority" means a certificate issued by the department to operate a perpetual care cemetery, which remains in effect until it is revoked by a district court or the department or surrendered by the certificate holder.
(7) “GDPIPD factor” means the annual factor that is equal to the percentage change in the Gross Domestic Product Implicit Price Deflator index values published quarterly by the Bureau of Economic Analysis, United States Department of Commerce for the first quarter of the current year compared to the first quarter of the previous year (the March-to-March period immediately preceding the calculation date), rounded to a hundredth of a percent (two decimal places).
(8) “Department” means the Texas Department of Banking.
(b) If I want to operate a perpetual care cemetery, what fees must I pay to the department?
(1) A filing fee of $500 must be paid with your application for a certificate of authority to operate a perpetual care cemetery as required by §712.0033(a) of the Act.
(2) If the department does not receive your completed annual report by the due date, a late fee of $100 per day for each business day after the due date that the department does not receive your completed annual report may be imposed. You must pay this fee immediately upon receipt of the department's written invoice.
(3) An annual assessment will be imposed as an examination fee on a perpetual care cemetery corporation to defray the cost of administering the Act, as required by Sections §712.042 and §712.044(b) of the Act. The annual assessment will be collected pursuant to 7 TAC §26.1(c)(1). The amount of your annual assessment is based on your fund balance as reflected on the statement of funds in the most recent annual report you have filed with the department. You must pay the annual assessment specified in the following table:
(4) If you are a new certificate holder and have not yet filed your first annual report, which includes the statement of funds required by §712.041 of the Act, you must pay an examination fee of $75.00 per hour for each examiner and all associated travel expenses. Your subsequent annual assessments will be calculated in accordance with paragraph (3) of this subsection.
(c) How will the department bill me for the annual assessment and by when must I pay it?
(1) Your annual assessment may be billed in quarterly or fewer installments each fiscal year. You must pay a billed installment by ACH debit 15 days after the date of the department's notice of payment due. The commissioner may decrease your annual assessment if it is determined that a lesser amount than would otherwise be collected is adequate to administer the Act.
(2) The annual assessment is considered paid as of the date the department receives payment.
(d) Adjustments for inflation or deflation.
(1) Beginning September 1, 2020, and each September 1 thereafter, the table in subsection (b) of this section, as most recently revised before such date pursuant to this subsection, may be revised as follows:
(A) The base assessment amount listed in column three of the table may be increased or decreased by an amount proportionate to the measure of inflation (or deflation) reflected in the annual GDPIPD factor, rounded to whole dollars; and
(B) Each factor listed in column three of the table may be increased or decreased by an amount proportionate to the measure of inflation or deflation reflected in the annual GDPIPD factor, rounded to four decimal places for fund balances not over $499,999.99 and five decimal places for fund balances of $500,000.00 or more.
(2) If the table in subsection (b) of this section is revised for inflation or deflation, then not later than August 1 of each year, the department shall calculate and prepare a revised table reflecting the inflation-adjusted values to be applied effective the following September 1 and will provide each certificate holder with notice of and access to the revised table.
(e) Must I pay for additional examinations and if so how much and when?
(1) If more than one examination is required in the same fiscal year as a result of your failure to comply with the Act, this chapter, or a request by the department, for each additional examination you must pay a fee for each assigned examiner of $75 per hour and reimburse the department for all associated travel expenses.
(2) You will be billed for an additional examination by written invoice submitted in connection with delivery of the examination report. You must pay this fee upon receipt of the examination report.
(f) Are any fees refundable? Fees paid under this section are nonrefundable.
(g) What will happen if a fee is deemed unlawful or in excess of the department's authority? If a fee or reimbursement imposed or required by this section or the manner of its calculation is determined to be unlawful or to exceed the department's authority to adopt and impose, the remainder of the section is unaffected.
Source: The provisions of this §26.1 adopted to be effective March 6, 2003, 28 TexReg 1836; amended to be effective January 6, 2005, 29 TexReg 12164; amended to be effective November 8, 2007, 32 TexReg 7905; amended to be effective May 5, 2011, 36 TexReg 2723; amended to be effective November 10, 2011, 36 TexReg 7506; amended to be effective September 8, 2019, 44 TexReg 4709; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) What unique defined terms are used in this section?
(1) "You" or "I" means the owner or operator of a perpetual care cemetery.
(2) "Perpetual care property" or "property" means all niches, crypts, and ground space sold in connection with perpetual care.
(3) "Consumer complaint" means a written complaint you receive, either at your corporate office or your cemetery location, from a consumer regarding the manner in which you operate your perpetual care cemetery or perform your obligations under a perpetual care cemetery contract or Health and Safety Code, Chapter 711 or Chapter 712. The term includes a written complaint you receive either directly from the consumer or through the department. The term does not include an oral complaint.
(4) "Maintain" means to store and retain records either in hard copy form or on microfiche or in an electronic database from which the record can be retrieved and printed in hard copy in a manner that does not impede the efficient completion of the examination.
(5) “Department” means the Texas Department of Banking.
(b) What records must I maintain?
(1) You must maintain the following records in a general file that is readily accessible to the department:
(A) your most current financial statement or tax return, either of which must:
(i) substantiate your use or expenditure of fund income; and
(ii) include a balance sheet and income statement dated not later than the last day of your preceding fiscal year;
(B) a sample form of each purchase agreement you currently use;
(C) a sample form of each document of conveyance of interment rights you currently use;
(D) the current trust agreement governing the fund and any amendments since the last examination;
(E) if the certificate holder received a uniform risk rating of 3, 4, or 5 at the last examination or if the last examination was a limited scope examination, the certificate holder's examination response and the examination report acknowledgments, signed by the certificate holder's board of directors, for the last examination report (See Texas Department of Banking Supervisory Memorandum 1014 (2011) for an explanation of the perpetual care cemetery rating system.);
(F) all trustee/depository statements covering the perpetual care fund, provided at least quarterly, and all written correspondence from the trustee that you received since the last examination;
(G) minutes of each meeting of the cemetery corporation's board of directors held since the last department examination or, if the cemetery corporation is a wholly-owned subsidiary and does not hold board meetings, minutes of each meeting of the parent corporation's board of directors held since the last examination;
(H) all recordkeeping exceptions and other department or commissioner approvals or directions upon which the certificate holder relies in connection with its current operations;
(I) all maps, plats, and property dedications, and a list of these that reflects the dates of filing in the county records under Health and Safety Code, §711.034;
(J) your current sales maps showing the sold and unsold spaces in all gardens, mausoleums, crematories, and columbaria in the cemetery;
(K) records and photographs relating to lawn crypt construction and completion, to demonstrate you complied with Health and Safety Code, §711.061, §711.063 and §711.064;
(L) each cemetery price list that you used at any time since the last examination;
(M) your quarterly reconciliation of capital gains and losses in the fund since the last examination, if your trust agreement includes capital gains and losses in the definition of trust income;
(N) all documents relating to the offer and sale of undeveloped mausoleum spaces as required under Health and Safety Code, Chapter 712, §712.044(a)(2)-(3) and Subchapter D; and
(O) all records relating to regulatory action or litigation to which the certificate holder is subject.
(2) You must maintain the following records in a segregated consumer complaint file:
(A) each written complaint that you received from a consumer regarding the manner in which you operate the perpetual care cemetery or perform your contractual obligations to a consumer; and
(B) all written correspondence and other records relating to a consumer complaint, including records showing how you resolved or otherwise disposed of the complaint.
(3) You must maintain either:
(A) separate files for each property purchaser, filed alphabetically or numerically, that contains all executed property purchase agreements, conveyance documents, and all related information; or
(B) files referenced by property location if:
(i) the cemetery maintains an alphabetical index on which the names of the property owners or purchasers can be cross-referenced to their property location; and
(ii) the files contain all executed property purchase agreements, conveyance documents, and all related information.
(4) You must maintain, and update at least monthly, a historical register of all interment rights sold, showing:
(A) the purchaser's name;
(B) the date of purchase;
(C) the purchase agreement number;
(D) a specific description of the property you sold; and
(E) how and when you disposed of the purchase agreement, including whether the agreement was conveyed, canceled, or voided.
(5) You must maintain a monthly recapitulation of all conveyance of interment rights issued since the date of your last examination that includes, for each paid-in-full property sale:
(A) the date the purchase agreement was executed;
(B) the property purchaser's name;
(C) the purchase agreement number;
(D) the date that the purchase agreement was paid-in-full;
(E) the conveyance document number;
(F) the amount of ground area, number of crypts, or number of niches conveyed under the purchase agreement, and the corresponding sales price of each;
(G) the deposits to the fund from sales, as required by Health and Safety Code, §712.028;
(H) any additional deposits to the fund:
(i) that are required by contract in an amount in excess of the deposits required by Health and Safety Code, §712.028;
(ii) that result from exchanged or traded-in property;
(iii) that result from the sale of additional or subsequent rights of interment; or
(iv) that are voluntarily made in excess of the amount of deposits required by Health and Safety Code, §712.028;
(I) total deposits for each conveyance, which is the sum of subparagraphs (G) and (H) of this subsection for each conveyance; and
(J) cumulative monthly totals of the amounts listed in subparagraphs (F), (G), and (H) of this subsection.
(c) Where do I need to keep the records required under this section?
(1) You must keep all required records at the perpetual care cemetery's physical location, corporate office located in this state, or another location approved in writing by the commissioner.
(2) If the physical location of the records is not conducive to examination by department personnel, the department may request that you provide your records at a mutually agreeable location in your area that is more suitable for conducting an examination. In this situation, if you refuse to agree, the commissioner may consider your inaction to constitute refusal to submit to an examination and initiate an appropriate enforcement action against you under Health and Safety Code, §§712.0441-712.0444.
(d) With respect to purchase agreements executed prior to the effective date of this section, a perpetual care cemetery will not violate this section if it cannot produce records required under this section that were not previously required by statute or rule.
Source: The provisions of this §26.2 adopted to be effective May 21, 2002, 27 TexReg 4325; amended to be effective March 11, 2004, 29 TexReg 2302; amended to be effective January 4, 2007, 31 TexReg 10758; amended to be effective May 5, 2011, 36 TexReg 2723; amended to be effective November 10, 2011, 36 TexReg 7506; amended to be effective January 1, 2015, 39 TexReg 10405; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) What unique defined terms are used in this section?
(1) "Authorized person" means the person that has the right to control the disposition of an individual's remains, as specified by Health and Safety Code, §711.002.
(2) "Barred individual" means a natural person whose remains you have been or may be requested to inter in your cemetery, who caused the death of a victim already interred in your cemetery as a result of conduct constituting:
(A) murder under Penal Code, §19.02;
(B) capital murder under Penal Code, §19.03;
(C) criminally negligent homicide under Penal Code, §19.05;
(D) intoxication manslaughter under Penal Code, §49.08; or
(E) a crime under a statute of another state that is similar to Penal Code, §19.02, §19.03, §19.05, or §49.08.
(3) "Time of interment" means the time you place the remains of an individual in the individual´s final resting place.
(4) "Written notice" means the notice specified by Health and Safety Code, §712.009(b)(2), requesting that a barred individual not be interred in your cemetery.
(5) "You" or "I" means the owner or operator of a perpetual care cemetery.
(6) "Department" means the Texas Department of Banking.
(b) What should I do if I receive a written notice requesting that I not inter a named person in my cemetery? If you receive a written notice under Health and Safety Code, §712.009(b)(2), this subsection specifies the actions you should take within the two week period following the date you receive the notice. It may be in your best interests to inform your attorney and the department that you received a notice under Health and Safety Code, §712.009(b)(2). If you consult an attorney, you should follow your attorney´s advice.
(1) If you receive the written notice after the time of interment of the person named as a barred individual in the notice, you should state that interment has already occurred in a written reply to the person who sent you the notice.
(2) If you receive the written notice prior to the time of interment of the person named as a barred individual in the notice, you should take the actions specified in this paragraph of this subsection.
(A) If you are not aware that the person named as the barred individual has died or you have not scheduled interment of the named person´s remains, you should make appropriate entries in your records to temporarily prevent any future interment of the named person for a period of up to two weeks, to permit you to investigate the facts and circumstances surrounding the notice.
(B) If the named person has died and interment of the remains of the named person in your cemetery is pending, you should:
(i) temporarily suspend any plans to inter the named person for a period of up to two weeks, to permit you to investigate the facts and circumstances surrounding the notice; and
(ii) notify the authorized person of the possibly barred individual that you are required to temporarily suspend interment to investigate the facts and circumstances surrounding the notice.
(C) You should immediately examine the written notice and any accompanying documents to determine if the written notice satisfies the requirements of subsection (c) of this section. If the written notice satisfies these requirements without any further inquiry, you must comply with subsection (d) of this section. If the written notice does not comply with subsection (c) of this section, you should identify as soon as possible, in a written reply to the person who sent you the notice, the additional information or documents that must be furnished to you in order for the notice to comply with subsection (c) of this section. You should also specify a date by which you must receive the additional information or documents. You may also choose to include other information in your reply, such as:
(i) notice that you have not yet been requested to inter the barred individual´s remains, or that interment has been temporarily suspended pending a reply to your request for additional information;
(ii) notice that failure to submit a timely response with the requested information and documents may permit interment of the person named as the barred individual;
(iii) notice that, if you determine the written notice complies with subsection (c) of this section, you will not inter the barred individual in your cemetery during the seven year period following the date of the notice, and that the period can be extended from time to time if you receive a timely renewal notice; and/or
(iv) if your cemetery is the only cemetery serving the municipality or county in which the victim and the person named as the barred individual lived, notice that you will inter the barred individual´s remains in a different part of your cemetery or otherwise as far away as possible from the place where the victim is interred, if you determine the written notice complies with subsection (c) of this section.
(c) What must the written notice contain to satisfy legal requirements? To satisfy the requirements of Health and Safety Code, §712.009, a written notice must be received by you prior to the time of interment of the person named as the barred individual, and must contain, or have attached documents containing, information that unambiguously:
(1) identifies a victim interred in your cemetery;
(2) identifies the sender as the authorized person of the victim;
(3) identifies a person as a barred individual and requests that the barred individual not be interred in your cemetery; and
(4) demonstrates that the named person is a barred individual, by including:
(A) a certified, final trial court judgment that has not been overturned on appeal, convicting the identified person of an offense specified in subsection (a)(2) of this section for causing the victim´s death; or
(B) effective only if the individual dies before conviction, a certified document that:
(i) identifies the named person as causing the victim´s death, in violation of a specified offense that is listed in subsection (a)(2) of this section; and
(ii) is signed by an authorized representative of the medical examiner or law enforcement agency having jurisdiction over the specified offense.
(d) What must I do if I receive a written notice that complies with subsection (c) of this section? If you are subject to a written notice that satisfies the requirements of Health and Safety Code, §712.009(b)(2), as discussed in subsection (c) of this section, you should take the actions specified in this subsection.
(1) If the barred individual has died and you had temporarily suspended interment of the barred individual´s remains under subsection (b)(2)(B) of this section, you should notify the authorized representative of the barred individual that you may not inter the barred individual in your cemetery. Alternatively, if your cemetery is the only cemetery serving the municipality or county in which the victim and the barred individual lived, you should explain the authorized representative´s options to select an interment location within the boundaries you specify for the purpose of ensuring interment of the barred individual´s remains is in a different part of your cemetery or otherwise as far away as possible from the place where the victim is interred. At your option, you may also explain other, non-interment services you can provide. If a contract exists that purports to require you to inter the barred individual´s remains, you should also comply with subsection (e) of this section.
(2) If you are not aware that the barred individual has died or you have not scheduled or been requested to provide interment of the barred individual´s remains, you should make appropriate entries in your records to either:
(A) prevent interment of the barred individual´s remains for a period of seven years following the date you received the written notice; or
(B) require interment of the barred individual´s remains in a different part of your cemetery or as far as possible away from the place where the victim is interred, for a period of seven years following the date you received the written notice, if your cemetery is the only cemetery serving the municipality or county in which the victim and the barred individual lived.
(3) If you are not aware that the barred individual has died or you have not scheduled or been requested to provide interment of the barred individual´s remains, you should also make appropriate entries in your records to remind you of future actions that may be required if you are requested in the future to inter the barred individual´s remains. For example, if the written notice contained and relied on a certified trial court judgment, you should, by means of a notice in writing, give a reasonable opportunity (e.g., two weeks) to:
(A) the authorized person of the barred individual, to submit satisfactory proof that the conviction was overturned on appeal, to possibly avoid the application of Health and Safety Code, §712.009; and
(B) the authorized person of the victim, to submit a document that satisfies subsection (c)(5)(B) of this section if the conviction was overturned on appeal, or a certified document demonstrating that the conviction was finally upheld on appeal, to ensure that Health and Safety Code, §712.009, will apply to interment of the barred individual.
(e) Does a written notice that complies with subsection (c) of this section ever expire?
(1) If you are subject to a written notice that satisfies the requirements of Health and Safety Code, §712.009(b)(2), as discussed in subsection (c) of this section, you are bound by Health and Safety Code, §712.009, for a period that ends seven years after the date you received the written notice. However, the authorized representative of the victim may periodically extend this period by sending you a written renewal notice under Health and Safety Code, §712.009(f).
(2) If you receive a written renewal notice before the expiration of the seven year period initiated by a previous notice, you should immediately examine the written renewal notice, any accompanying documents, and the documents you received in connection with any prior notice to determine if the written renewal notice satisfies the requirements of subsection (c) of this section, in a manner similar to the investigation you conducted under subsection (b)(2)(C) of this section when you received the initial written notice.
(3) If a written renewal notice, any accompanying documents, and the documents you received in connection with any prior notice collectively satisfy the requirements of Health and Safety Code, §712.009(b)(2), as discussed in subsection (c) of this section, the period during which you are bound by Health and Safety Code, §712.009, will be extended for an additional period that ends seven years after the date you received the written renewal notice.
(f) What should I do if I have a contract to inter the barred individual´s remains and I am subject to a written notice that complies with subsection (c) of this section? You should consult an attorney if you have a contract to inter the remains of a barred individual. Although you are protected from owing damages to the authorized representative of the barred individual under Health and Safety Code, §712.009(e), if you are barred from interring remains under that section, you will still be required to return any funds you received under a contract that you did not earn. You and the authorized representative of the barred individual may be able to negotiate a satisfactory settlement to enable you to earn at least a portion of the funds you received for the contract, such as by performing services not involving interment in your cemetery or assisting in alternate arrangements for disposition of the barred individual´s remains.
(g) What records must I maintain if I receive a written notice? You must maintain the following records with respect to each victim interred in your cemetery that has been identified by a written notice:
(1) the written notice you received that identified a victim interred in your cemetery;
(2) the documents you received with the written notice or in response to your request for additional documents;
(3) each written renewal notice you received relating to the initial written notice retained under paragraph (1) of this subsection;
(4) any documents you received with a written renewal notice or in response to your request for additional documents;
(5) to the extent not already identified by prior paragraphs of this subsection, all correspondence to or from the authorized person of the victim or the authorized person´s legal representative or attorney, including any complaints that you were required by a written notice to comply with Health and Safety Code, §712.009, but you inappropriately or unlawfully failed to comply;
(6) to the extent not already identified by prior paragraphs of this subsection, all correspondence to or from the authorized person of the barred individual or the authorized person´s legal representative or attorney, including any complaints that a written notice was defective and did not require you to comply with Health and Safety Code, §712.009, but you inappropriately or unlawfully complied;
(7) all correspondence to or from your attorney concerning a written notice or related matters, subject to valid claims of privilege;
(8) if interment is authorized under Health and Safety Code, §712.009(d), documents demonstrating that you interred the barred individual in a place that is as far away as possible from the place you interred the victim;
(9) any contract that purported to require interment of the barred individual in your cemetery and, to the extent not already identified by prior paragraphs of this subsection, all correspondence, agreements, modifications, releases, cancelled checks, and deposit slips relating to the resolution of claims related to the contract; and
(10) to the extent not already identified by prior paragraphs of this subsection, all correspondence, pleadings, briefs, and court orders relating to litigation you initiated or defended with regard to issues of compliance or noncompliance with Health and Safety Code, §712.009.
(h) How long must I retain records relating to a written notice I received?
(1) With respect to a written notice that you determined was invalid and did not require you to comply with Health and Safety Code, §712.009, you must retain the records specified by subsection (g) of this section at least until the day after the third anniversary of the date you received the written notice.
(2) With respect to a written notice that you determined met the requirements of Health and Safety Code, §712.009, you must retain the records specified by subsection (g) of this section at least until the day after the 10th anniversary of the date you last received a written notice or renewal notice (i.e., the day after the third anniversary of the date the effective period of the last written notice or renewal notice expired).
Source: The provisions of this §26.3 adopted to be effective May 21, 2002, 27 TexReg 4327; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) Definitions.
(1) "Department" means the Texas Department of Banking.
(2) "Purchaser" means the person who signs the contract to buy a burial marker or monument from you, and includes a person authorized under the terms of the contract to act for such person in connection with the contract. If such person is deceased and is the person for whom the marker or monument has been purchased, the term also includes any person listed in Health and Safety Code, §711.002 as you deem appropriate under the circumstances.
(3) "Set" means install or place.
(4) "You" or "I" means a cemetery corporation that owns or operates a perpetual care cemetery. For purposes of subsection (b)(1) of this section the term also includes a representative or agent that receives payment for the marker or monument on your behalf, whether or not the agent or representative signs the purchase order.
(b) When must I order the purchaser´s burial marker or monument? You must order the marker or monument and pay the amount, if any, required by the vendor or manufacturer to initiate the order on or before the 21st day after the date as of which both of the following events have occurred:
(1) the purchaser pays you:
(A) the amount you require to order the marker or monument; and
(B) all amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and
(2) the purchaser approves the design and lettering for the marker or monument and signs the necessary documentation directing or authorizing you to order the marker or monument.
(c) When must I set the burial marker, once it has been delivered to my cemetery location? You must set the marker on or before the earlier of a date stipulated by the certificate holder in writing or the 15th day after the date as of which all of the following events have occurred:
(1) the purchaser inspects and accepts the marker if you require inspection and approval;
(2) the purchaser pays you:
(A) all amounts due under the contract for the marker, including the amount due for the base if your cemetery requires that a base be used with the marker; and
(B) any remaining amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and
(3) if the purchaser has stipulated in writing that the marker be set later than required under this subsection, the purchaser asks you to set the marker.
(d) When must I set the burial monument, once it has been delivered to my cemetery location? You must set the monument on or before the earlier of a date stipulated by the certificate holder in writing or the 25th day after the date as of which all of the following events have occurred:
(1) the purchaser inspects and accepts the monument if you require inspection and approval;
(2) the purchaser pays you:
(A) all amounts due under the contract for the monument, including the amount due for the foundation if your cemetery requires that a foundation be used with the monument; and
(B) any remaining amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and
(3) if the purchaser has stipulated in writing that the monument be set later than required under this subsection, the purchaser asks you to set the monument.
(e) What if I cannot set the burial marker or monument within the time period required by subsection (c) or (d) of this section because of inclement weather or other special circumstances? If you cannot set the marker or monument within the required time period, you must notify the purchaser in writing no later than the 5th day after the date by which the marker or monument must be set under subsection (c) or (d) of this section. Your written notice must:
(1) if possible, state the date you expect to set the marker or monument; and
(2) provide an explanation of the delay.
(f) What marker list must I maintain? You must keep a list of all marker transactions since the last examination, and the purchaser's marker or monument contract file must include all documentation necessary to verify and substantiate the dates specified in subsections (b), (c), (d), and (e) of this section, as applicable, and your compliance with this section.
(g) Must I inform the purchaser of the date requirements established by this section? Yes. You must provide written notice to the purchaser of all of the date requirements in one of the following:
(1) purchase agreement;
(2) marker/monument order form;
(3) cemetery rules and regulations; or
(4) cemetery price list.
(h) Does subsection (b) of this section apply to burial markers or monuments the purchaser buys from someone other than my cemetery or an affiliate of my cemetery? No. Subsection (b) of this section applies to only those markers and monuments purchased from you or from an affiliate of your cemetery. For purposes of this subsection, an affiliate means a company that directly or indirectly controls, is controlled by, or is under common control with you.
(i) If a purchaser buys a burial marker or monument from a vendor other than my cemetery and has it delivered to my cemetery, must I install the marker or monument within the time period provided for in subsection (c) or (d) of this section? Yes, provided:
(1) the purchaser has paid you all amounts due for the space or spaces in your cemetery on which the marker or monument will be set;
(2) the purchaser or vendor has paid all setting fees;
(3) the marker or monument meets your cemetery´s standards requirements; and
(4) if applicable, the vendor has met all requirements relating to the setting and placement of the marker or monument under your cemetery´s rules and regulations.
Source: The provisions of this §26.4 adopted to be effective March 11, 2004, 29 TexReg 2302; amended to be effective January 4, 2007, 31 TexReg 10758; amended to be effective May 5, 2011, 36 TexReg 2723; amended to be effective November 10, 2011, 36 TexReg 7506; amended to be effective January 1, 2015, 39 TexReg 10405; amended to be effective January 8, 2023, 47 TexReg 8981.
A perpetual care cemetery must issue a conveyance document for a cemetery plot, as defined by Health and Safety Code §711.001(25), no later than 20 days after the end of the month in which the contract is paid in full.
Source: The provisions of this §26.5 adopted to be effective May 5, 2011, 36 TexReg 2723; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) For purposes of this section, the terms "cremains receptacle," "plot" and "niche" have the meanings assigned by Health and Safety Code, §711.001.
(b) After a perpetual care cemetery organization has properly dedicated and platted cemetery property, the organization may place a cremains receptacle that contains not more than four niches on a plot after a cremains receptacle map has been created. The cremains receptacle map must:
(1) be a diagram or drawing of the cremains receptacle as it is to be situated on the plot;
(2) include a notation of the plot by garden, lot and space the cremains receptacle is to be placed on;
(3) include a legend indicating the direction of the head of the plot i.e., north, south, east, or west;
(4) include the approximate dimensions of the cremains receptacle;
(5) include a unique identifier for each niche (i.e., number or letter);
(6) include the date the cremains receptacle was placed on the plot;
(7) include the purchase agreement number of the cremains receptacle; and
(8) include signature and date lines for approval by cemetery management.
(c) The original cremains receptacle map must be maintained with the cemetery's plat maps and be made available at each Department of Banking examination.
(d) A copy of the cremains receptacle map must be maintained in the plot owner's file.
(e) A cumulative register or list of all cremains receptacle maps must be maintained and be made available at each Department of Banking examination. The register must include at a minimum the date of cemetery management approval of the map and the plot location of the cremains receptacle.
Source: The provisions of this §26.6 adopted to be effective November 7, 2013, 38 TexReg 7691; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) Definitions.
(1) "Consumer" means a person who obtains or has obtained interment rights, merchandise or services from you under an agreement that provides for perpetual care. For purposes of §26.12 of this title (relating to What must I do If I Receive a Written Consumer Complaint?), the term includes:
(A) a person authorized under the terms of the agreement to act in connection with the agreement; and
(B) if the person for whom such interment rights, merchandise or services have been obtained is deceased, any person listed in Health and Safety Code, §711.002(a).
(2) "Privacy notice" means any notice which you give regarding a consumer´s right to privacy as required by a specific state or federal law.
(3) "Required notice" means a notice in a form set forth or provided for in subsection (b) (1) of this section.
(4) "You" or "I" means a perpetual care cemetery that is certificated by the Texas Department of Banking under the Health and Safety Code.
(b) How do I provide notice of how to file complaints?
(1) You must use the following notice in order to let your consumers know how to file complaints:
Complaints concerning perpetual care cemeteries should be directed to:
Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705;1-877-276-5554 (toll free); www.dob.texas.gov.
(2) You must provide the required notice in the language in which a transaction is conducted.
(3) You must include the required notice with each privacy notice that you send out. The language and form of the notice must substantially conform to the required notice set out in paragraph (1) of this subsection.
(4) Regardless of whether you are required by any state or federal law to give privacy notices, you must take appropriate steps to let your consumers know how to file complaints by giving them the required notice in compliance with paragraph (1) of this subsection.
(5) You must use the following measures to give the required notice:
(A) You must give the required notice when the consumer first obtains a product or service from you by including the required notice in the perpetual care cemetery purchase agreement.
(B) Those portions of your website that offer or promote consumer goods and services must contain access to the required notice. The language and form of the notice must substantially conform to the required notice set out in paragraph (1) of this subsection.
Source: The provisions of this §26.11 adopted to be effective January 3, 2002, 26 TexReg 10852; amended to be effective May 21, 2002, 27 TexReg 4328; amended to be effective March 11, 2004, 29 TexReg 2302; amended to be effective November 4, 2010, 35 TexReg 9697; amended to be effective January 3, 2019, 43 TexReg 8583; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) Definitions.
(1) "Consumer complaint" means a written complaint you receive, either at your corporate office or your cemetery location, from a consumer regarding the manner in which you operate your perpetual care cemetery or perform your obligations under a perpetual care cemetery contract or Health and Safety Code, Chapter 711 or Chapter 712. The term includes a written complaint you receive either directly from the consumer or through the Department. The term does not include an oral complaint.
(2) "Department" means the Texas Department of Banking.
(3) "You" or "I" means a cemetery corporation that owns or operates a perpetual care cemetery.
(b) When must I respond to a written consumer complaint and what must my response include?
(1) You must respond to the consumer complaint in writing on or before the 30th day after the date you receive the consumer complaint.
(2) In your written response, you must:
(A) set out the actions you have taken or plan to take, with a corresponding timeline, to resolve or otherwise dispose of the consumer complaint; or
(B) if you dispute the consumer complaint or do not believe any corrective or other action is required, explain your conclusion and refer to any supporting legal authority.
(3) If the consumer complaint was forwarded to you by the department, you must send the department a copy of your response on or before the 5th day after the date you mail the response to the consumer.
(c) Must I keep records of the consumer complaints I receive? Yes. You must keep the records regarding consumer complaints in accordance with the requirements of §26.2(b)(2) of this title (relating to What Records am I Required to Maintain?).
Source: The provisions of this §26.12 adopted to be effective March 11, 2004, 29 TexReg 2302; amended to be effective January 8, 2023, 47 TexReg 8981.
(a) An application for a prepaid funeral sellers permit or perpetual care cemetery certificate of authority granted by the commissioner must be filed on a form or in a manner approved by the banking commissioner. The department shall issue a written notice informing each applicant either that the application is complete and accepted for filing, or that the application is deficient and that specific additional information is required. The department shall issue the notice to the applicant within 10 business days of the receipt of the application.
(b) The commissioner shall determine whether to deny or approve an application within the following periods and in the following manner after a complete application has been accepted for filing:
(1) prepaid funeral seller's permits: 45 days; and
(2) perpetual care cemetery certificates of authority: 45 days.
(c) An applicant may appeal directly to the commissioner for a timely resolution of a dispute arising from a violation of the periods set forth in this section. An applicant shall perfect an appeal by filing a written request therefor prior to the expiration of 30 days after the date a decision is made on the application, addressed to the commissioner, requesting review by him of the application to determine whether the commissioner or the department exceeded the established period for the granting or denying of the application. The commissioner shall base his decision on the written appeal by the applicant and any response by the department and, if he deems necessary, the commissioner may require a hearing.
(d) The commissioner shall decide the appeal in the applicant's favor if he determines that he or the department exceeded the time period set out herein and failed to establish good cause for exceeding the period. The commissioner shall issue a written decision to the applicant within 60 days of the filing of an appeal. If an appeal is decided in an applicant's favor, the applicant will be reimbursed all of its application fees.
Source: The provisions of this §27.1 adopted to be effective May 3, 1988, 13 TexReg 1911; amended to be effective September 6, 2001, 26 TexReg 6670; amended to be effective November 10, 2011, 36 TexReg 7507.
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