SECTION 26.4. When Must I Order and Set a Burial Marker or Monument in my Perpetual Care Cemetery?

(a) Definitions.

(1) "Department" means the Texas Department of Banking.

(2) "Purchaser" means the person who signs the contract to buy a burial marker or monument from you, and includes a person authorized under the terms of the contract to act for such person in connection with the contract. If such person is deceased and is the person for whom the marker or monument has been purchased, the term also includes any person listed in Health and Safety Code, §711.002, as you deem appropriate under the circumstances.

(3) "Set" means install or place.

(4) "You" or "I" means a cemetery corporation that owns or operates a perpetual care cemetery. For purposes of subsection (b)(1) of this section the term also includes a representative or agent that receives payment for the marker or monument on your behalf, whether or not the agent or representative signs the purchase order.

(b) When must I order the purchaser's burial marker or monument? You must order the marker or monument and pay the amount, if any, required by the vendor or manufacturer to initiate the order on or before the 21st day after the date as of which both of the following events have occurred:

(1) the purchaser pays you:

(A) the amount you require to order the marker or monument; and

(B) all amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and

(2) the purchaser approves the design and lettering for the marker or monument and signs the necessary documentation directing or authorizing you to order the marker or monument.

(c) When must I set the burial marker, once it has been delivered to my cemetery location? You must set the marker on or before the earlier of a date stipulated by the certificate holder in writing or the 15th day after the date as of which all of the following events have occurred:

(1) the purchaser inspects and accepts the marker if you require inspection and approval;

(2) the purchaser pays you:

(A) all amounts due under the contract for the marker, including the amount due for the base if your cemetery requires that a base be used with the marker; and

(B) any remaining amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and

(3) if the purchaser has stipulated in writing that the marker be set later than required under this subsection, the purchaser asks you to set the marker.

(d) When must I set the burial monument, once it has been delivered to my cemetery location? You must set the monument on or before the earlier of a date stipulated by the certificate holder in writing or the 25th day after the date as of which all of the following events have occurred:

(1) the purchaser inspects and accepts the monument if you require inspection and approval;

(2) the purchaser pays you:

(A) all amounts due under the contract for the monument, including the amount due for the foundation if your cemetery requires that a foundation be used with the monument; and

(B) any remaining amounts due under the perpetual care cemetery agreement, including charges for interment rights, the plot or plots on which the marker or monument is to be set, and fees for perpetual or endowment care; and

(3) if the purchaser has stipulated in writing that the monument be set later than required under this subsection, the purchaser asks you to set the monument.

(e) What if I cannot set the burial marker or monument within the time period required by subsection (c) or (d) of this section because of inclement weather or other special circumstances? If you cannot set the marker or monument within the required time period, you must notify the purchaser in writing no later than the 5th day after the date by which the marker or monument must be set under subsection (c) or (d) of this section. Your written notice must:

(1) if possible, state the date you expect to set the marker or monument; and

(2) provide an explanation of the delay.

(f) What marker list must I maintain? You must keep a list of all marker transactions since the last examination, and the purchaser's marker or monument contract file must include all documentation necessary to verify and substantiate the dates specified in subsections (b), (c), (d), and (e) of this section, as applicable, and your compliance with this section.

(g) Must I inform the purchaser of the date requirements established by this section? Yes. You must provide written notice to the purchaser of all of the date requirements in one of the following:

(1) purchase agreement;

(2) marker/monument order form;

(3) cemetery rules and regulations; or

(4) cemetery price list.

(h) Does subsection (b) of this section apply to burial markers or monuments the purchaser buys from someone other than my cemetery or an affiliate of my cemetery? No. Subsection (b) of this section applies to only those markers and monuments purchased from you or from an affiliate of your cemetery. For purposes of this subsection, an affiliate means a company that directly or indirectly controls, is controlled by, or is under common control with you.

(i) If a purchaser buys a burial marker or monument from a vendor other than my cemetery and has it delivered to my cemetery, must I install the marker or monument within the time period provided for in subsection (c) or (d) of this section? Yes, provided:

(1) the purchaser has paid you all amounts due for the space or spaces in your cemetery on which the marker or monument will be set;

(2) the purchaser or vendor has paid all setting fees;

(3) the marker or monument meets your cemetery's standards requirements; and

(4) if applicable, the vendor has met all requirements relating to the setting and placement of the marker or monument under your cemetery's rules and regulations.

Source Note: The provisions of this §26.4 adopted to be effective March 11, 2004, 29 TexReg 2302; amended to be effective January 4, 2007, 31 TexReg 10758; amended to be effective May 5, 2011, 36 TexReg 2723; amended to be effective November 10, 2011, 36 TexReg 7506; amended to be effective January 1, 2015, 39 TexReg 10405; amended to be effective January 8, 2023, 47 TexReg 8981