                      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
