Title HS, Health and Safety Code

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…

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 qu…

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 bus…

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…

Sec. 712.0037. RENEWAL OF CERTIFICATE OF AUTHORITY. (a) As a condition of renewal, a certificate holder must meet the qualifications and satisfy the requirements that apply to an applicant for a new certificate of authority. Additionally, not later than the certificate's renewal …

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.…

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 inte…

Sec. 712.00395. SURRENDER OF CERTIFICATE OF AUTHORITY; FEE. (a) A certificate holder may apply to the commissioner for permission to surrender the certificate of authority if the holder: (1) is a cemetery that qualified for an exemption under Section 711.021(g), but voluntarily e…

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 fu…

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 comm…

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…

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 r…

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 …

Sec. 712.010. CONFIDENTIALITY AND DISCLOSURE OF CERTAIN INFORMATION. (a) Information relating to the financial condition of a perpetual care cemetery or fund the department obtains directly or indirectly, through examination or otherwise, other than a published statement, is conf…

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.

Sec. 712.021. ESTABLISHMENT AND PURPOSES OF FUND. (a) Except as provided by Subsection (h), a corporation that operates a perpetual care cemetery in this state shall have a fund established with a trust company or a bank with trust powers that is located in this state. The trust …

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…

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…

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…

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. …

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 sectio…

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 injun…

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 s…

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 a…

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 shal…

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 …

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 annu…

Sec. 712.0352. MODIFICATION OF DISTRIBUTION METHOD. (a) Except as otherwise provided by this subchapter, the trustee of a fund shall use the net income method to determine permissible distributions from the fund to the corporation. (b) A corporation on concurrence of the corporat…

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 fai…

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 tr…

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…

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.

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…

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 …

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 19…

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…

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 viol…

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: …

Sec. 712.0441. ENFORCEMENT. (a) After notice and opportunity for hearing, the commissioner may impose an administrative penalty on a person who: (1) violates this chapter or a final order of the commissioner or rule of the Finance Commission of Texas and does not correct the viol…

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 requ…

Sec. 712.0443. CEASE AND DESIST ORDER. (a) The commissioner may issue an order to cease and desist to a person if: (1) the commissioner finds by examination or other credible evidence that the person has violated a law of this state relating to perpetual care cemeteries, includin…

Sec. 712.0444. EMERGENCY ORDER. (a) The commissioner may issue an emergency order that takes effect immediately if the commissioner finds that immediate and irreparable harm is threatened to the public or a plot owner, marker purchaser, or other person whose interests are protect…

Sec. 712.0445. RECEIVERSHIP PROCEEDINGS. (a) In conjunction with a proceeding to forfeit the right to do business in this state brought by the attorney general, the attorney general may seek the appointment of a receiver. This remedy is in addition to other grounds for the appoin…

Sec. 712.045. REVOCATION OR SUSPENSION OF CERTIFICATE OF AUTHORITY. (a) The commissioner by order may revoke or suspend a certificate of authority issued under this chapter if the commissioner determines through an investigation or other credible evidence that the certificate hol…

Sec. 712.048. CRIMINAL PENALTIES. (a) A person who is an individual, firm, association, corporation, or municipality, or an officer, agent, or employee of an individual, firm, association, corporation, or municipality, commits an offense if the person sells, offers to sell, or ad…

Sec. 712.061. OFFER AND SALE OF UNDEVELOPED MAUSOLEUM SPACE. (a) A corporation may not directly or indirectly sell or offer for sale an undeveloped mausoleum space unless before the sale or offer the corporation: (1) establishes a preconstruction trust as provided by Section 712.…