The Finance Commission of Texas (the commission), on behalf of the Texas Department of Banking (the department), adopts amendments to 7 TAC §26.1, concerning perpetual care cemetery fees; §26.2, concerning maintenance of perpetual care cemetery records; and §26.4, concerning time requirements for ordering and setting a burial marker or monument in a perpetual care cemetery; and adopts new §26.5, concerning time requirements for issuance of a conveyance document for a cemetery plot, without changes to the proposed text as published in the March 4, 2011, issue of the Texas Register (36 TexReg 1418).

The amendments are adopted to update the rules, the need for which was discovered as a result of the recent review of these rules conducted in accordance with Government Code, §2001.039. New §26.5 is adopted to set a deadline that is consistent with the deadline set out in the department's Legal Opinion 98-48.

The amendments to §26.1 accomplish two things. The amendment deletes §26.1(a)(3). This change removes the ability of an insolvent permit holder to request a one-year reduction in its annual fee. In the last five years, the department has not received a request under the current rule and is of the opinion that each perpetual care cemetery should pay its cost of regulation.

The second change adds language to §26.1(b)(4) which ties the fee for examinations of new perpetual care cemetery certificate holders and the fee for extra examinations of perpetual care cemeteries to the fee charged for specialty examinations of other entities under §3.36(h) of this title. Examination rates are set by using the average salary for an average tenured employee. The Department resources necessary for these examinations are similar.

Additionally, the amendment allows these perpetual care cemetery examination fees to automatically change to mirror any change to the specialty examination fee for other entities under §3.36(h). Currently, the new and extra examination fee for perpetual care cemeteries, like the specialty examination fee for other entities under §3.36(h), is $600 per day plus actual travel expenses. Therefore, this amendment does not change the current examination fees for perpetual care cemeteries.

The amendments to §26.2 simplify recordkeeping requirements for permit holders by allowing the maintenance of records in an electronic database as long as the records can be retrieved without impeding the examination process. The amendments eliminate the need to retain certain records and reduce the retention time for others. A certificate holder's general file is no longer required to contain a copy of its certificate of authority, its most recent annual statement, previously examined amendments to the perpetual care fund trust agreement, all correspondence with the department for the previous three years, all examination reports for the previous three years, and cemetery price lists used before the prior examination. A certificate holder who has a limited scope examination or who is rated a 3 or lower is required to retain the signed acknowledgement by its board of directors to the examination report. All certificate holders are required to maintain a record of department approvals upon which the certificate holder relies, and a list of all its maps and plats.

The amendment to §26.4 adds a requirement in subsection (f) to maintain a list of all markers sold for the examination period. This information is needed to test and verify that timelines for marker ordering and setting are consistently met. Additionally a typographical error in §26.4(c)(2) has been corrected.

Adopted new §26.5 sets a deadline for issuing a conveyance document for a cemetery plot. The deadline is 20 days after the month in which the purchase contract is paid in full. The deadline is consistent with that established by department Legal Opinion 98-48. Placing the deadline in a rule clarifies that a violation of the deadline will subject the violator to enforcement action.

The Department received no comments regarding the proposed amendments and new rule.

The amendments and the new rule are adopted under Health and Safety Code §712.008(a), which provides that the commission may adopt rules to enforce and administer Chapter 712, including rules establishing fees to defray the costs of enforcing and administering Chapter 712. The amendment to §26.4 is also adopted under Health and Safety Code §712.008(b)(1), which states that the commission shall adopt rules establishing reasonable standards for timely placement of burial markers or monuments in a perpetual care cemetery. New rule §26.5 is also adopted under Health and Safety Code §711.012(a), which authorizes the Finance Commission to adopt rules to enforce and administer Health and Safety Code §711.038 relating to perpetual care cemeteries. Section 711.038 concerns the sale of plots and the issuance of certificates of ownership.