The Finance Commission of Texas (commission) adopts new §26.4, concerning the 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 adopts 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). The commission adopts the amendment to §26.11 and new §26.4 with nonsubstantive changes to the proposed text as published in the January 2, 2004, issue of the Texas Register (29 TexReg 12). The amendment to §26.2 and new §26.12 are adopted without changes and will not be republished.

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 adopted new §26.4 and §26.12 implement recently 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 adopted new sections apply to a cemetery corporation that owns or operates a perpetual care cemetery governed by Health and Safety Code, Chapter 712 (Cemetery). Adopted new §26.4 establishes time periods within which a Cemetery must order and set burial markers and monuments and related requirements. Adopted new §26.12 specifies the actions a Cemetery must take if it receives a written consumer complaint.

The adopted 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), respectively, to the context in which these terms are used and make their meaning consistent with adopted new §26.4 and §26.12.

The commission received comments regarding the proposed amendments and new sections from an entity that owns perpetual care cemeteries. The commenter expressed concern that the proposed amendment to the definition of "consumer complaint" in §26.2(a)(3) is too broad and unduly burdensome and would require a Cemetery to respond to minor complaints regarding the manner in which the cemetery property is maintained or operated.

The commission disagrees that the definition of "consumer complaint" should be narrowed. The commission believes that a Cemetery should respond to every written consumer complaint in a timely manner, and that the imposition of this requirement is consistent with the broad language and probable intent of Health and Safety Code, §712.008(b)(2). The commission also believes that the definition of "consumer complaint", as proposed, eliminates the enforcement and compliance uncertainty that may result if the department and the Cemetery are required to determine on a complaint by complaint basis whether a particular consumer complaint requires a timely response.

Moreover, neither the definition of "consumer complaint" in amended §26.2(a)(3) and new §26.12, as proposed, nor any other provision of new §26.12, dictate whether, how, or when a Cemetery must actually resolve a consumer complaint, or expand the types of consumer complaints over which the department has substantive jurisdiction. The amendment and new section simply require the Cemetery to respond to a written consumer complaint within a certain period of time and to provide the consumer with certain basic information.

The commission additionally notes that the amendment to the §26.2(a)(3) definition of "consumer complaint", as proposed, conforms the definition to the recordkeeping requirements for consumer complaints established in §26.2(b)(2)(A), which requires a cemetery to keep each written complaint it receives from a consumer regarding the manner in which the cemetery operates or performs its contractual obligations.

For these reasons, the commission adopts the amendment to the definition of "consumer complaint" in §26.2(a)(3) and the definition of "consumer complaint" in new §26.12, as proposed without changes.

The commenter also suggested that the proposed definition of "consumer" in §26.11(a)(1)(B) be narrowed. As proposed, the term includes persons listed in Health and Safety Code, §711.002(a), as a "consumer" if the person who obtained the interment rights, services or merchandise from the Cemetery under a perpetual care agreement is deceased. The commenter was concerned that inclusion of these persons may require a Cemetery to disregard the wishes of a deceased's next of kin or the Cemetery's rules and regulations. The commenter suggested that §26.11(a)(1)(B) be revised to include only the closest next of kin as determined in Health and Safety Code, §711.002(a), rather than any person listed in that statutory provision as proposed.

The commission disagrees that the amendment to the definition of "consumer" in §26.11(a)(1)(B) should be revised as suggested. In enacting Health and Safety Code §711.002(a), which lists the persons who have a right to control the disposition of a decedent's remains, the legislature has recognized certain persons as having a special relationship with or interest in a deceased. The commission believes these persons should be considered "consumers" for purposes of the timely complaint response requirement. Moreover, with respect to the commenter's concern about potential conflicts, the Cemetery may explain any conflict between the substance of the complaint and the wishes of next of kin or its rules and regulations in its response to the complaining consumer. For these reasons, the commission declines to amend the definition of "consumer" in proposed §26.11(a)(1)(B) as suggested. The commission has, however, amended proposed §26.11(a)(1) to clarify that subparagraphs (A) and (B) of that subsection apply only for purposes of new adopted §26.12, regarding responding to consumer complaints.

The commenter also suggested that proposed new §26.4 be amended to clarify that a Cemetery is not obligated to order or set a monument or marker until all necessary acts have occurred and all charges and fees due the Cemetery have been paid in full. The commenter further suggested that the section more specifically address ordering and setting requirements applicable to markers and monuments sold on a pre-need basis.

The commission believes that §26.4(b)(1), (c)(2), and (d)(2), as proposed, require a purchaser to pay all amounts that may be due in connection with the marker or monument, including amounts related to the perpetual care cemetery agreement. However, in response to the comment, the commission has amended §26.4(b)(1), (c)(2), and (d)(2) to clarify that a Cemetery is not obligated to order or set a monument or marker until the purchaser has paid, in addition to the amount required by the Cemetery in connection with the monument or marker, all other amounts due the Cemetery under the perpetual care cemetery agreement, including amounts due for interment rights, the plot on which the marker or monument is to be set, and perpetual or endowment care fees.

Sections §26.4(b)(2), (c)(1) and (d)(1), as proposed, require purchaser approval of the marker or monument lettering and inspection and acceptance of the marker or monument if required by the Cemetery. The commission believes that these subsections make adequate provision for obtaining any required Cemetery approvals and that further clarification is unnecessary. The commission further believes that under §26.4(c)(3) and (d)(3), as proposed, the Cemetery need not set a marker or monument sold pre-need until specifically requested to do so and that no further clarification regarding pre-need purchases is necessary.

Finally, the commenter suggested that proposed §26.4(i) be amended to require that if a marker or monument is purchased from a third-party vendor, the vendor must satisfy the Cemetery's setting and placement rules and regulations. The commission agrees and has amended §26.4(i) by adding paragraph (4) to so provide.

The amendments and new sections are adopted under Health & 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.