The Finance Commission of Texas (commission) proposes new §26.4, concerning time periods applicable to ordering and setting burial markers and monuments in perpetual care cemeteries, and new §26.12, concerning responding to written consumer complaints. The commission also proposes amendments to §26.2, concerning records a perpetual care cemetery must maintain, and §26.11, concerning the method of filing consumer complaints with the Texas Department of Banking (department).

Health and Safety Code, Chapter 712, governs the regulation of perpetual care cemeteries in Texas, and §712.008 authorizes the commission to adopt rules to enforce and administer the chapter. The proposed new §26.4 and §26.12 implement newly enacted Health and Safety Code, §712.008(b), which specifically directs the commission to adopt rules establishing reasonable standards for the timely placement of burial markers and monuments in a perpetual care cemetery and the timely response to consumer complaints about a perpetual care cemetery. The proposed new sections apply to a cemetery corporation that owns or operates a perpetual care cemetery governed by Health and Safety Code, Chapter 712 (Cemetery).

The proposed amendments to §26.2 and §26.11 conform the definitions of "consumer complaint" and "consumer" in those respective sections to the context in which the terms are used and make their meaning consistent with proposed new §26.4 and §26.12.

Proposed new §26.4 establishes time periods within which a Cemetery must order and set burial markers and monuments and related requirements. Proposed new subsection (a) defines relevant terms. The term "purchaser" is defined to include the person who signs the purchase contract as well as a person authorized under the contract to act on his or her behalf. If the person who signs the contract is deceased and is the person for whom the marker or monument has been purchased, the definition of "purchaser" also includes any person listed in Health and Safety Code, §711.002(a), who the Cemetery determines should be considered a "purchaser" under the circumstances.

Proposed new §26.4(b) - (d) establish the time periods for ordering and setting burial markers and monuments. Under each subsection, the relevant time period begins to run after all of the applicable events listed in the subsection have occurred. For example, proposed new §26.4(b) requires a Cemetery to order a purchaser's marker or monument on or before the 10th day after the date as of which the purchaser has paid the amount the Cemetery requires to order the marker or monument and the purchaser approves the design and lettering and signs any documentation necessary for the order to be placed. Proposed new §26.4(c) requires a Cemetery to set a marker, once it has been delivered to the cemetery location, on or before the 15th day after the date as of which all of the events specified in that subsection, as applicable, have occurred. Proposed new §26.4(d) requires a Cemetery to set a monument, once it has been delivered to the cemetery location, on or before the 25th day after the date as of which all the applicable events specified in that subsection have occurred.

Proposed new §26.4(e) requires a Cemetery to notify a purchaser in writing if a burial marker or monument cannot be set within the time period required by proposed §26.4(c) and (d) because of inclement weather or special circumstances, establishes a five day deadline for providing the notice, and specifies the information that must be included in the notice.

Proposed new §26.4(f) requires a Cemetery to maintain a purchaser's marker or monument contract file that contains the documentation necessary to verify and substantiate compliance with proposed new §26.4.

Proposed new §26.4(g) requires a Cemetery to inform a purchaser in writing of the proposed new section's date requirements and specifies the documents in which the Cemetery may provide the information.

Proposed new §26.4(h) provides that the requirements related to ordering a purchaser's marker or monument established in proposed new §26.4(b) apply only to a marker or monument purchased from the Cemetery or an affiliate of the Cemetery.

Proposed new §26.4(i) identifies the circumstances in which the setting requirements established in proposed new §26.4(c) and (d) apply to a marker or monument purchased from a third-party vendor.

Proposed new §26.12 specifies the actions a Cemetery must take if it receives a written consumer complaint. Proposed new §26.12(a) defines terms. The proposed definition of "consumer complaint" includes any written complaint a Cemetery receives from a consumer regarding the manner in which the Cemetery operates its perpetual care cemetery, or performs its obligations under a perpetual care cemetery contract or Health and Safety Code, Chapter 711 or Chapter 712. The definition is consistent with the consumer complaint recordkeeping requirements established by §26.2(b)(2) of this title (relating to What Records Am I Required to Maintain?) and with the broad language and probable intent of Health and Safety Code, §712.008(b)(2). In defining "consumer complaint" as proposed, the commission does not intend to expand the types of complaints over which the department has substantive jurisdiction, but, rather, to simply require a Cemetery to reply to all consumer complaints in a timely manner and provide the consumer with certain basic information.

Proposed new §26.12(b) requires a Cemetery to respond in writing to a written consumer complaint on or before the 30th day after the date the Cemetery receives the complaint and specifies the information that must be included in the response. Proposed new §26.12(c) requires a Cemetery to keep records regarding consumer complaints in accordance with §26.2(b)(2) of this title (relating to What Records Am I Required to Maintain?).

The proposed amendments to §26.2 and §26.11 conform the definitions of "consumer complaint" in §26.2(a)(3) and "consumer" in §26.11(a)(1) to the context in which these terms are used and to their meaning or definition in the proposed new sections. The proposed amendment to the existing definition of "consumer complaint" in §26.2(a)(3) is consistent with the consumer complaint recordkeeping requirements established in §26.2(b)(2) and mirrors the definition of "consumer complaint" in proposed new §26.12 of this title (relating to What Must I Do If I Receive a Written Consumer Complaint?). The definitional consistency that will be achieved as a result of the proposed amendment will facilitate compliance with both §26.2 and proposed new §26.12.

Section 26.11 requires a Cemetery to tell a consumer how to file a complaint with the department. Subsection (a) of that section defines terms. The proposed amendment to the existing definition of "consumer" in §26.11(a)(1) specifically references interment rights, merchandise and services and thus ties the definition to the types of goods and services that are in fact purchased from or provided by a perpetual care cemetery. The proposed amendment also clarifies who is a "consumer" for purposes of filing a complaint regarding a perpetual care cemetery. Finally, the proposed amendment to the definition of "You" or "I" in §26.11(a)(4) corrects an erroneous reference to the Finance Code.

Stephanie Newberg, Deputy Commissioner, Texas Department of Banking, has determined that, for each year of the first five years that the proposed amendments and new sections are in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the proposed amendments and new sections.

Ms. Newberg has also determined that, for each of the first five years the proposed amendments and new sections are in effect, the public will benefit as a result of the adoption because the proposed new sections will insure that cemetery corporations that own or operate perpetual care cemeteries governed by Health and Safety Code, Chapter 712 respond to consumer complaints, and order and install burial markers and monuments, in a timely manner. Additionally, the proposed amendments and new sections will improve uniformity and consistency and provide beneficial clarification. A person required to comply with the proposed amendments and new sections will incur no economic cost, with the possible exception that a Cemetery may incur minimal printing costs in connection with providing purchasers of burial markers and monuments written notice of the time requirements imposed by §26.14. There will be no deleterious effect on small businesses.

Comments concerning the proposed new sections and amendments may be submitted within 30 days of publication to Sarah Shirley, Assistant General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Suite 300, Austin, Texas 78705-4294, or by e-mail to sarah.shirley@banking.state.tx.us.

The amendments and new sections are proposed under Health and Safety Code, §712.008(b), which authorizes the commission to adopt rules establishing reasonable standards for the timely placement of burial markers and monuments in a perpetual care cemetery and the timely response to consumer complaints regarding a perpetual care cemetery.

Health and Safety Code, Chapter 712, is affected by the proposed amendments and new sections.