Untitled Texas Attorney General Opinion ( 1951 )

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