Banking On a Final Resting Place – Perpetual Care Cemeteries Must Operate By the Rules
Cue the jokes: in Texas, perpetual care cemeteries are supervised by the Texas Department of Banking. The Department of Banking also supervises prepaid funeral contract sellers and cemetery brokers and (presumably in its spare time) trust companies and state-chartered banks.
There are two types of cemeteries in Texas: perpetual care and non-perpetual care. The owners of a perpetual care cemetery have a duty to keep up the place – that means they have to maintain, repair and care for all places in the cemetery. They are required to keep a trust fund to pay for it.
Since 2003, all new cemeteries must be perpetual care. Every PCC must have a certificate of authority issued by the Department to operate in Texas. Applicants to run a cemetery must prove that they have the business ability, experience, character, financial condition and general fitness to warrant the public’s confidence.
A few types of cemeteries are allowed to operate under the regulatory radar: small community cemeteries, cemeteries owned by an association of plot owners that is not operated for profit, and cemeteries owned and operated by municipalities, cities and churches.
Aside from the irritation of having to chase off an occasional Zombie-hunting trespasser, owners of a PCC would seem to have a pretty easy job. A cemetery is, after all, just small pieces of real estate with a relatively low turn-over.
Not so. Perpetual Care cemeteries are highly regulated. Every year they have to pay fees (based on the amount of money in the care trust fund) and file an annual renewal report. They are required to keep a massive amount of records, including sales maps showing sold and unsold spaces, photos relating to their lawn crypt construction, copies of complaints against them, trust accountings, and a historical register of interment rights sold.
The owners also have to deal with touchy issues, like the prohibition that keeps homicide perpetrators and their victims from being buried in the same cemetery, community property laws that confound the general law that a burial plot is separate property, and family fights over caskets, tombstones, and burial services.
A perpetual care cemetery can have its own police force. The person in charge of a cemetery, commonly called the superintendent or sexton, has the same powers, duties and immunities as a police officer, constable or sheriff.
Like any good subdivision, a PCC has to be properly dedicated and platted. It must maintain a separate file for each plot owner. If it is going to allow cremated remains, then it cannot have more than 4 cremains niches per burial plot. It has to have a separate cremains receptacle map that contains a diagram or drawing of the cremains receptacle as it is situated on the plot.
The owners don’t get to hide – instead, they have to give each consumer a form that tells the consumer how to file a complaint against them. They are required to respond to each complaint within 30 days.
Violators are fined and can have their certificates revoked.
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The information contained in this article is general information only and does not constitute legal advice.