The Finance Commission of Texas (the commission), on behalf of the Texas Department of Banking (the department), adopts amendments to §26.2, concerning required records to maintain; and §26.4, concerning when you must order and set a burial marker or monument in a perpetual care cemetery without changes to the proposed text as published in the October 31, 2014, issue of the Texas Register (39 TexReg 8481) and will not be republished. The amended rules clarify recordkeeping requirements, require maintenance of records regarding the sale of undeveloped mausoleum spaces and regarding the certificate holder's regulatory or litigation involvement, and require records of all marker transactions. The amended rules also add a requirement that if a certificate holder specifies in writing that it will set a marker or monument at a date earlier than that set forth in §26.4, it must set the marker or monument by that date.

The amendment to §26.2(b)(1)(D) clarifies that the certificate holder must maintain the original trust agreement and any amendments made since the last examination. The basis for this amendment is to ensure that the permit holder maintains the trust agreement even if it has not been amended.

The amendment to §26.2(b)(1)(E) does two things. First, it clarifies that if the certificate holder is rated marginal or worse or if its last examination was a limited scope examination, it must retain a copy of its examination response. The basis for this amendment is the department's examiners need to be able to review all pertinent documents responsive to these exams. Second, the amendment reflects that department Supervisory Memorandum 1014 was revised in 2011. The amendment to add §26.2(b)(1)(N) clarifies that the certificate holder must retain records to verify compliance with all the statutes in Health Code, Chapter 712, Subchapter D, which governs the sale of undeveloped mausoleum spaces, including those records specifically referred to in Health Code §712.044(a)(2)-(3). This amendment serves to highlight for the certificate holder additional records it must maintain because their maintenance is required by statute.

The amendment to add §26.2(b)(1)(O) requires the certificate holder to maintain all records relating to regulatory action or litigation to which the certificate holder is subject. This requirement gives the commissioner information necessary to determine whether the certificate holder meets the qualifications and requirements for holding a certificate of authority. The department adopts a non-substantive amendment to §26.4(a)(4) to clarify a reference to §26.4(b)(1) by adding the words "of this section."

The amendments to §26.4(c) and (d) state that if a certificate holder stipulates in writing that it will set a marker or monument at a date that is earlier than the date otherwise required by those subsections, it must honor the earlier date. This clarification is necessary because some certificate holders specify earlier dates, and the amendment will eliminate confusion as to whether that date or the date in the current rule applies.

The amendment to §26.4(f) clarifies the requirement that certificate holders keep a record of all marker transactions, including ones where the marker was purchased from someone other than the certificate holder. Requiring maintenance of a record of all marker transactions will allow the department to monitor compliance with §26.4(c), (d) and (e).

The department received no comments regarding the proposed amendments.

The amendments are adopted pursuant to Health Code §712.008, which authorizes the commission to adopt rules to enforce and administer Chapter 712 and which states that the commission shall adopt rules establishing reasonable standards for timely placement of burial markers or monuments in a perpetual care cemetery. The amendments are also adopted pursuant to Health Code §712.044, which authorizes the commissioner to examine books and records of a certificate holder, and Health Code §712.0037(a), which requires the commissioner to determine that a renewing certificate holder continues to meet the qualifications that apply to applicants for a certificate of authority.