Untitled Texas Attorney General Opinion ( 1963 )

AUSTIN I,. TExas December 2, 1963 Honorable PI.L. Ben&son Opinion NO. c-187 Deputy Banking Commissioner Department of Banking Re: Whether a cemetery John Hi Reagan State Office Building associationmay make pre- Austin, Texas payments into its perpet- ual care trust fund of those funds required under Article 912a-15, V.C.S., to be depositedupon receipt of final purchase price of interment properties en- titled to perpetual care Dear Mr. Dengtson: and a related question. Your letter requesting the opinion of this office reads as follows: "A cemeteryassociation operatingunder the provislonsof~Article 912a, Vernon's Civil Statutes, has in the past deposited funds to its Perpetual Care Trust Fund in excess of the legal mInimum requirements thereby creating a surplus in the Trust Fund. The corporationhas stated that such surplus had resulted from advanced payments having been made to the Trust Fund by the stockholdersof the corporationin antlcipa- tion of estimated sales of Interment pro- perties. *. . . . "Previousexaminationsconducted by this Department reveal that no deposits have been made in the Perpetual Care Trust Fund from the sale of deeded property for approximately four (4) years. The corporationhas indicated, that this procedure was based upon their assump- tion that the.advanceamade'tothe Trust Fund by the stockholdersIn anticipationof sales to be -902- Ron. H. L. Bengtson, page 2 (C-187 ) made more than met the minimum legal require- ments of property actually sold and therefore no additional deposits were necessary when the anticipated sales were completed. "No part of the surplus in the Trust Fund resulted from property bequeathed,granted or given to the cemetery under the 'provisionsof Article 912a-18, V.C.S. ,I. "I request your oplnlon in answer to the following questions: 1. Ray the stockholdersof a-cemetery associationprepay funds Into.Its Perpetual Care Trust Fund, either In advance of,sales or during the life of a time-paymentcon- tract rather than at the time final payment Is made? 2. If your answer to the foregoing questlon Is 'Yes', then where such a surplus to a Perpetual Care Fund exists from such payments, may credit be taken against such surplus from the sales of property entitled to perpetual care'until the surplus has been depleted? 3. Are contributionsor donations re- ceived from the stockholdersof a cemetery association over and above legal require- ments to be considered in the same light as contributionsor donations from.third parties under the provisions of 912a-18, V.C.S.?" Although Senate Bill 121, Acts 58th Leg., R,S. 1963, oh'. 495, p. 1298, sec. 3, hereinafter referred to, recently'amended Article 912a-15, Vernon's Civil Statutes ,&ts 49th Leg., R.S. 1945, ch. 340, p. 559, sec. 157, as amended, your opinion re- quest concerns the obligationsimposed upon a cemetery associa- tion in respect to its perpetual care trust fund as such obfiga- tions existed under the former Article 912a-15, V.C.S. The first two questions posed in your request can be re- duced Into the single question of whether or not a cemeteryassoci- ation may make prepayments into its perpetual care trust fund of those funds required under Article 912a-15, Vernon's Civil Statutes, Hon. H. L. Bengtson, page 3 (C- 18’7 ) to be deposited upon the receipt of the final purchase price of each interment property entltled to perpetual care. It is our opinion that such prepayments cannot be made. The pertinent portions of Article 912a-15, V.C.S., prior to Senate Bill 121, are as follows: "Every cemetery association '. . . which has establishedand Is now maintaining,opera- ting and/or conductinga perpetual care cemetery, and every associationwhich shall hereafter es- tablish, maintain, operate andLor conduct, a perpetual care cemetery within this State pur- suant to this Act, shall establish. . . an en- dowment fund . . . . The principal of such fund for perpetual care shall never be voluntarilyre- duced, but shall maintain remal~'invlolable and shall forever be maintainec separate and distinct by the trustee or trustees from all other funds. . And the net income arising therefrom shall ie'used solely for the general care Andymainten- ance of the property entitled to 'perpetualcare in'the cemetery for which the fund Is established, but shall never be.used for the improvement &'e~bellishment of unsold property to be offered for sale. . . . n. . . . "A cemetery association;hich ha'sestablished' a perpetual care fund may also take, receive, and hold therefor and'as a part thereof or as an inci- dent thereto any property, real, personal or mixed, bequeathed, devised, granted, given or otherwise contributedto It therefor. "The perpetual care fund authorized by this Section and~all sums paid therein or,contrlbuted thereto are, and each.thereofis hereby, expres- sly permitted and shall be and be deemed'to be for charitableand eleemosynary purposes. e 0 q "Bach perpetual care cemetery shall deposit in its perpetual care fund an amou%?%uivalent to . . . a minimum of twenty cents (20#) per square foot of ground area sold'or disposed of as perpetual care property . . e e A minimum of -904- Hon. Ii.L. Bengtson, page 4 (C- 187 ) fifteen dollars ($15.00) per each crypt lnter- ment right'sold‘or disposed of as perpetual care pro e&y, , . . and a minimum of five dollars P$5.00) per each niche intermentright sold'or disposed of as perpetual care property Such minimum requirementsshall apply co'aii'propertyin which the exclusive right of sepulturehas been sold and paid for, whether used for interment purposes or not. "The deposit of such funds in the perpetual care fund shall be made within thirty (30) days after the receipt of the final purchase price of each lot, grave, crypt, or niche sold as property entitled to perpetual care. . ,,VV (Emphasis =wPl~ed) It is a fundamentalrule of statutory constructionthat there is no room for constructionwhen the law in expressed In plain and unambiguous language and.lts meaning 4s clear:.and.obvious. 39 Tex.Jur. 161, Statutes; Sec. 88, and cases cited. If the statutory language clearly and distinctly reveals the legislative intent, there'is no occasion to look elsewhere. 39 Tex.Jur. 177, Statutes, Sec. 93. Under Its clearly mandatory language, Artlcle'912a-15re- quires that each~perpetualcare cemetery shall establish a per- petual care fund, and that It shall deposit &n such perpetual care fund certain "minimum".funds for various inte,rment'proper- ties "sold or disposed of" as perpetual care properties. Also, this provision expressly~prescrlbesthe time when "such funds'! shall'be deposited, i.e., "withinthirty (30) days after the receipt of the final purchase price" Of the various Interment properties entitled to perpetual care. The language of this statutory provision Is clear and unmistakahle,~notonly as to the minimum funds to be deposited into such trust fund, but also as to the time when "such funds" shall be deposited; There is no language In Artlcle'912a-15which purports to allow a cemetery associationto prepay Into Its perpetual care trust fund the minimum funds required to be deposited 'withinthirty (30) days after the receipt of the final purchase price". Interpre- tatlon,by implicationis permitted, out of the necessity of the case, to supply the obvious intention,where such intention is not expressly stated. ,However,resort may not be had to impll- cation if the statute Is exnlicit to the DOifIt in queStion. -905- Hon. H. L. Bengtson, page 5 (C- 187 ) We note that Article 912a-29, Vernon's Civil Statutes cts 9th Leg., R.S. 1955, ch. 190, p. 574, sec. 17, provides c at, before being chartered,underthis Act, any czrporationde- siring to operate a perpetual care cemetery must establish a minimum perpetual care trust fund; and that, upon sales of inter- ment properties,the deposits as required by law to be placed in such trust funds shall be allowed as a credit against the ori- ginal trust fund to the full amount of the ori inal de oslt 3, ch. t95, ;. 1298, Also, Senate Bill 121, Acts 58th Leg., B.S. 19fii sec. 3, recently amending Article 912a-15, provides in part that, If a cemetery association operating a non-perpetualcarz~cemetery desires to operate a perpetual care cemetery, it shall establish a perpetual care fund equal to the amount which ;okd theretoforehave been paid Into such fund, in accordance with provisions of this Act, if said cemetery has been operating as a perpetual care cemetery from and after the date of the first sale of burial space therein, or the minimum amount provided in Section 29 of this Act, whichever Is the greater. If the amount of the perpetual care fund so establishedls,the minimum amount pro- vided In Section 29 of this Act, such cemetery association or corporation shall be entitled to a,credit against amounts here- after required by the provisions of this Act to be paid by it in- to such perpetual care fund equal to the excess of the amount of such perpetual care trust fund, as originally establishedby It, over what would have been the amount thereof if its amount had been determined without regard to Section 29 of this Act." Had the Legislature intended for prepaymentsand the subsequent credits to be allowed for the required deposits over and above that provided for In Article 912a-29 and Senate Bill 121, it could have easily done so as it did in these two Instances. How- ever, the Legislature,at the'tlmes the above amendments were en- acted, chose not to provide a~method of prepaying the minimum deposits required’underArticle 912a-15. The holding of this opinion is further supported by the following pertinent amendments~toArticle 912a-15 by Senate Bill 121: "After August 23, 1963, each agreement for the sale of burial space in a perpetual care cemetery shall set out separatelythe part of the'aggregateamount agreed to be paid by the purchaser which is'to ,bedeposited in the per- petual care trust fund. If the aggregate amount -906- . Hon. Ii.L, Bengtson, page 6 (C-187 ) agreed to be paid~by the purohaser is payable in Installments,all amounts .. paid' .. thereon ^ shall be applied, first, to tne part tnereof not re- quired to be deposited in the perpetual care trust fund; to the extent thereof, and the re- mainder shall, when received by the seller; be deposited in the perpetual care trust fund. Any funds required to be deposited In the per- petual care trust fund by a seller of burial space shall be so deposited not later than ten (10) day6 after the end of the'calendarmonth during which they are received. ? + . 'The amount to be deposited&n the perpe- tual care trust fund shall be separately shown on the original purchase agreement and a copy thereof shall be delivered to the purchaser. In the sale of burial space, no commission shall be paid a broker or salesman on the amount to be deposited in the fund." By this amendment, the Legislatureexpresses with greater clarity the method and time by which a cemetery associationhereafter or- ganized must make the required deposits under'Article 912a~15 In lts'perpetualcare trust fund. A~method of prepaying such re- quired funds is not contemplatedby its terms. Although It is suggested that such constructionwill be harsh and burdensome,these are matters prope~rlyaddressed to the Legislature, The last question In your request inquires into the dls-' tinction between contributionsfrom a cemetery assoclatfonto Its perpetual care fund over and above the minimum funds required under Artl,cle912a-15, and contributionsfrom third parties under the provisions of Article 912a-18, Vernon's Civil Statutes. Article 912a-18, entitled'"Specia1Care", provides that the trustee of a cemetery perpetual care fund may also take and hold any pro- perty granted or contributedto it ln'trust to apply the princl- pal or Income therefrom for any of the following(purposes: 'POthe improvementor embelliah- ment Gf's&h cemetery, or any part thereof, OCR ,anylot therein, to the erection, renewal, re- pair or preservationof any monuments,~ fence, building or other structure in such cemetery;' to the planning, cultivationof trees, shrubs, -90-l- . . Hon. H. L.-Bengtaon,page 7 (C- 187 ) or plants in or around such cemetery, or any part thereof; for the special care or _~ ornamentingof any burlal plot, lot,'sec- ': tion or building or any portion thereof in said cemetery or to any other purpose or use not inconsistent'with the purpose for which such cemetery waz establishedor is being maintained. , . ." This provison Intends the establishmentof special funds separate and~apart from the perpetual care fund authorizedunder Article 912a-15. Such special funds, consisting of grants and contribu- tions from both third parties and cemetery associations,are to be used for the upkeep and beautificationof "private"blocks, lots or structures,and for the embellishmentof the cemetery in which such lots, blocks or structuresare located. Whereas, the perpetual care fund authorized by Article 912a-15, to which contrs butions over and above the legal "mInImum" requirementsmay be made by both the cemetery aesoclatlon and third parties, is to be used solely fourthe general care and maintenance of the entire property that Is entitled to perpetual care in the cemetery for which the fund is established. Care should be exercised to dis- tinguish "prepayments"from contributions. While contributions may be made by cemetery assoclatlonsand third parties under Articles 9X3-15 and 912a-18, #repaymentmay not be made by a cemetery associationof those mlnlmum” funds required to be depositedunder Article 912a-15. A cemetery associationmay not prepay into its perpetual care fund those funds required to be deposited under Article 912a-15, V.C.S. Contributionsreceived from third arties under the provisions of Article 912a-1f; , V.C.S., are to be considered different from contribu- tions made by a cemetery association into its perpetual care fund under Article 912a-15, V.C.S. Very truly yours, WAGGONER CARR ')I. Attorney General of Texas Hon. H..L. Ben&son, page 8 (c-187 ) Jambs N. Stofer Assistant Attorney General JNS/jfa APPROVED: OPJWNIONCOMWIT!PEEr George Gray, Acting Chairman Cecil Rotsoh Milton Richardson .:: f Paul Robertson APPROVED FOR THE ATTORNEY GENFiRAL BY: Stanton Stone