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(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--Health and Safety Code, Chapter 712, as amended. (2)Examination--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)Financially insolvent-- (A)the inability to pay debts as they mature or pay obligations as they become due and payable; or (B)having debts in excess of assets. (4)You, Your, I--the owner or operator of a perpetual care cemetery. (5)Fund balance--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. (6)Fiscal year--the 12-month period from September 1st to August 31st. (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 letter of intent to operate a perpetual care cemetery as required by Section 712.0031(a) of the Act. (2)An annual fee must be paid as required by Section 712.042 of the Act. This annual fee is based on your fund balance as reflected on the most recent annual statement of funds report you have filed with the department. Your annual fee will be calculated according to the following table: Figure: 7 TAC §26.1(b)(2) (No change.) (3)An annual assessment must be paid as an examination fee imposed annually on a perpetual care cemetery corporation to defray the cost of administering the Act as required by Section 712.004(b) of the Act. The amount of your annual assessment is based on your fund balance as reflected on the most recent annual statement of funds report you have filed with the department. You must pay the annual assessment specified in the following table: Attached Graphic (4)If you are a new certificate holder and have not yet filed your first annual statement of funds report required by Section 712.041 of the Act, you must pay an examination fee of $600 per day 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 the annual fees and when must I pay them? (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. (2)Your annual fee must be paid with the filing of your annual statement of funds by ACH debit on or before March 1st of each year. (3)A fee is considered paid as of the date the department receives payment. (d)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 at a rate of $600 per day 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. (e)What if I cannot afford to pay a fee or I need a fee refunded? (1)If you are experiencing financial difficulties, you may be able to obtain a one-year reduction in the amount of your annual fee. To request a one-year reduction in your annual fee, you must file a written application as described in paragraph (2) of this subsection and the commissioner must find that your application satisfies the requirements described in paragraph (3) of this subsection. The commissioner has discretion to decide whether to reduce your annual fee and to decide the amount of any reduction. (2)To request a one-year reduction in your annual fee, you must: (A)not later than the date the current annual fee is due, file with the department a written application accompanied by a written business recovery plan and other supporting documentation sufficient to demonstrate that you satisfy each factor described in paragraph (3) of this subsection; and (B)file any additional documentation the department requests not later than the seventh day after the date you receive the request. (3)The commissioner will not grant a one-year reduction of your annual fee unless the commissioner finds, based on your application and supporting documentation, that: (A)you are financially insolvent or payment of the full annual fee will cause you to become financially insolvent, and your current or impending financial insolvency is temporary; and (B)you reasonably expect to have the ability to pay your annual fee in full by at least the third year after the year in which your request is made, based on a written business recovery plan that is reasonable and attainable. (4)Your filing fee, annual assessment, or additional examination fee cannot be reduced or waived. (5)You may be subject to an enforcement action if you fail to pay a fee in the manner required by this section. (6)Fees paid under this section are nonrefundable. (f)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.
This agency hereby certifies that the adoption has
been reviewed by legal counsel and found to be a valid exercise of
the agency's legal authority.
Filed with the Office
of the
Secretary of State on October 19, 2007
TRD-200705020 A. Kaylene Ray
General Counsel
Texas Department of Banking
Effective date: November 8, 2007
Proposal publication date: August 31, 2007
For further information, please call: (512) 475-1300
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