1-1  By:  Marchant (Senate Sponsor - Montford)             H.B. No. 2499
    1-2        (In the Senate - Received from the House April 20, 1993;
    1-3  April 21, 1993, read first time and referred to Committee on
    1-4  Economic Development; May 11, 1993, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 9, Nays
    1-6  0; May 11, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Parker             x                               
   1-10        Lucio              x                               
   1-11        Ellis              x                               
   1-12        Haley              x                               
   1-13        Harris of Dallas   x                               
   1-14        Harris of Tarrant  x                               
   1-15        Leedom                                         x   
   1-16        Madla              x                               
   1-17        Rosson             x                               
   1-18        Shapiro                                        x   
   1-19        Wentworth          x                               
   1-20  COMMITTEE SUBSTITUTE FOR H.B. No. 2499                   By:  Haley
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to prepaid funeral services or merchandise.
   1-24        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-25        SECTION 1.  Chapter 512, Acts of the 54th Legislature,
   1-26  Regular Session, 1955 (Article 548b, Vernon's Texas Civil
   1-27  Statutes), is amended to read as follows:
   1-28        Sec. 1.  PURPOSE; DEFINITIONS; PERMITS.  (a)  This Act
   1-29  provides limits on the manner in which a person is permitted to
   1-30  accept funds in prepayment of funeral services to be performed in
   1-31  the future.  The purpose of this Act is to:
   1-32              (1)  provide a regulatory framework so that members of
   1-33  the public have an opportunity to arrange and pay for funerals for
   1-34  themselves and their families in advance of need; and
   1-35              (2)  provide all safeguards to protect the prepaid
   1-36  funds and to assure that the prepaid funds will be available to pay
   1-37  for the prearranged funeral services.
   1-38        (b)  In this Act:
   1-39              (1)  "Affiliate" means a person or entity directly or
   1-40  indirectly controlling, controlled by, or under common control with
   1-41  a permit holder or the funeral provider.
   1-42              (2)  "Commissioner" means the Banking Commissioner of
   1-43  Texas.
   1-44              (3)  "Department" means the Banking Department of
   1-45  Texas.
   1-46              (4)  "Earnings" means the amount in an account in
   1-47  excess of the amount paid by the purchaser of a prepaid funeral
   1-48  benefits contract and deposited or placed in the account as
   1-49  provided by Section 5(a)(2) of this Act.  The term includes accrued
   1-50  interest, accrued income, and enhanced or increased value.
   1-51              (5)  "Funeral provider" means the funeral home
   1-52  designated in a prepaid funeral benefits contract that has agreed
   1-53  and obligated itself to provide the specified prepaid funeral
   1-54  benefits.
   1-55              (6)  "Insurance policy" means a life insurance policy
   1-56  or annuity contract.
   1-57              (7)  "Permit holder" means a person having a valid
   1-58  permit to sell prepaid funeral benefits.
   1-59              (8)  "Person" means any individual, firm, partnership,
   1-60  corporation, or association.
   1-61              (9)  "Prepaid funeral benefits" means prearranged or
   1-62  prepaid funeral or cemetery services or funeral merchandise,
   1-63  including caskets, grave vaults, and all other articles of
   1-64  merchandise incidental to a funeral service.  The term does not
   1-65  include a grave lot, grave space, grave marker, monument,
   1-66  tombstone, crypt, niche, or mausoleum unless it is sold in
   1-67  contemplation of trade or barter for services and merchandise to
   1-68  which this Act applies.
    2-1              (10)  "Seller" means a person selling, accepting funds
    2-2  or premiums for, or soliciting contracts for prepaid funeral
    2-3  benefits or contracts or policies of insurance to fund prepaid
    2-4  funeral benefits in this state.
    2-5              (11)  "Trustee" means the person named as trustee in
    2-6  the instruments creating a prepaid funeral trust.
    2-7        (c)  Unless a person holds a permit issued under this Act,
    2-8  the person may not:
    2-9              (1)  sell prepaid funeral benefits, or accept funds for
   2-10  prepaid funeral benefits, in this state under any contract; or
   2-11              (2)  solicit the designations by an individual of the
   2-12  prepaid funeral benefits to be provided out of any fund,
   2-13  investment, security, or contract, including contracts or policies
   2-14  of insurance authorized, and sold under a license issued, by the
   2-15  State Board of Insurance, to be created or purchased by that
   2-16  individual at the suggestion or solicitation of the seller.
   2-17        (d)  A seller who violates Subsection (c) of this section is
   2-18  not entitled to enforce a prepaid funeral benefits contract but the
   2-19  purchaser or the purchaser's heirs or legal representative is
   2-20  entitled to recover:
   2-21              (1)  all amounts paid to the seller under that
   2-22  contract; and
   2-23              (2)  all amounts paid to any fund or for any
   2-24  investment, security, or contract, including contracts or policies
   2-25  of insurance authorized by the State Board of Insurance.
   2-26        (e)  Delivery of funeral merchandise before death is not
   2-27  performance or fulfillment, in whole or in part, of a prepaid
   2-28  funeral benefits contract entered into after the effective date of
   2-29  this Act.
   2-30        (f)  A seller may not increase the sales price of an item not
   2-31  covered by this Act for the purpose of allocating a lesser sales
   2-32  price to an item that is covered by this Act.
   2-33        (g)  All funds received in exchange for prepaid funeral
   2-34  benefits shall be administered as prescribed by:
   2-35              (1)  Section 1A of this Act governing insurance-funded
   2-36  prepaid funeral benefits; or
   2-37              (2)  Section 5 of this Act governing trust-funded
   2-38  prepaid funeral benefits.
   2-39        (h)  Without the prior written consent of the Commissioner, a
   2-40  holder of prepaid funeral funds designated under Section 5(a)(2) of
   2-41  this Act may not use those funds to purchase, lease, or otherwise
   2-42  invest in an asset owned by the seller or funeral provider or an
   2-43  affiliate of the seller or funeral provider.
   2-44        (i)  The Commissioner by order may disapprove a transaction
   2-45  described by Subsection (h) of this section on the ground that it
   2-46  would materially adversely affect the interests of the purchasers
   2-47  of prepaid funeral benefits contracts.  The Commissioner shall
   2-48  approve or disapprove the transaction within 30 days after the date
   2-49  of the receipt of written notification by the permit holder.
   2-50  Failure to act within that period constitutes approval of the
   2-51  transaction.  Unless the permit holder requests a hearing within 10
   2-52  days after the date of the order of disapproval, the order shall
   2-53  become effective as proposed.  If the permit holder requests a
   2-54  hearing within the 10-day period, it shall be conducted in
   2-55  accordance with the procedures for a contested case hearing under
   2-56  the Administrative Procedure and Texas Register Act (Article
   2-57  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
   2-58  amendments. <Any individual, firm, partnership, corporation, or
   2-59  association (hereinafter called "organization" or "seller")
   2-60  desiring to sell prearranged or prepaid funeral services or funeral
   2-61  merchandise (including caskets, grave vaults, and all other
   2-62  articles of merchandise incidental to a funeral service, but
   2-63  excluding grave lots, grave spaces, grave markers, monuments,
   2-64  tombstones, crypts, niches, and mausoleums), or accepting funds for
   2-65  such services or merchandise, in this state, under any contract,
   2-66  expressed or implied, providing for prepaid burial or funeral
   2-67  benefits or merchandise (hereinafter called "prepaid funeral
   2-68  benefits"), or who shall solicit the designations by an individual
   2-69  of the items of funeral merchandise or services which he desires to
   2-70  be provided out of any fund, investment, security, or contract to
    3-1  be created or purchased by such individual at the suggestion or
    3-2  solicitation of the organization shall obtain a permit from the
    3-3  State Banking Department (hereinafter called Department) of this
    3-4  state authorizing the transaction of this type of business, before
    3-5  conducting such business.  Seller shall not be entitled to enforce
    3-6  a contract made in violation of this Act, but the purchaser or his
    3-7  heirs, or legal representative, shall be entitled to recover all
    3-8  amounts paid to the seller under any contract made in violation
    3-9  thereof, and all amounts paid whether or not paid seller, to any
   3-10  fund or for any investment, security, or contract where the seller
   3-11  has violated the provisions of this Act.  Delivery of funeral
   3-12  merchandise prior to death shall not constitute performance or
   3-13  fulfillment, either wholly or in part, of any prepaid funeral
   3-14  benefits contract entered into after the effective date of this
   3-15  amendatory Act.>
   3-16        <Provided, however, that grave lots, grave spaces, grave
   3-17  markers, monuments, tombstones, crypts, niches, and mausoleums
   3-18  shall not be excluded from the provisions of this Section when
   3-19  these items and articles are sold in contemplation of trade or
   3-20  barter for services and articles designated as included by the
   3-21  provisions of this Section.>
   3-22        Sec. 1A <1a>.  INSURANCE FUNDED PREPAID FUNERAL BENEFITS.
   3-23  (a)  No seller <organization> covered by this Act shall solicit by
   3-24  any means whatsoever the designation by an individual of prepaid
   3-25  funeral benefits <funeral services or merchandise which he desires>
   3-26  to be provided to be paid out of any fund, investment, security, or
   3-27  contract, including insurance policies, to be created or purchased
   3-28  by or for such an individual at the suggestion or solicitation of
   3-29  the seller <organization>, unless such a fund is to be created by a
   3-30  life insurance policy or an annuity contract approved by the Board
   3-31  of Insurance and issued by <with> an insurance company licensed by
   3-32  the Board of Insurance or except as provided for trust-funded
   3-33  prepaid funeral benefits by Section 5 of this Act <in Texas>, or
   3-34  unless such fund, investment, security, or contract shall have been
   3-35  approved by the Department as safeguarding the right and interests
   3-36  of the individual, his heirs and assigns, to substantially the same
   3-37  or greater degree as is provided with respect to funds regulated by
   3-38  Section 5 hereof.  An insurance-funded prepaid funeral benefits
   3-39  contract must be executed in conjunction with the application for
   3-40  the issuance of the insurance policy.
   3-41        (b)  The <Provided, however, that the> Department may require
   3-42  evidence of payment of premiums on any life insurance policy, or an
   3-43  annuity contract used to create a fund to guarantee prepaid funeral
   3-44  benefits.  Any seller failing to provide such evidence to the
   3-45  Department after being so requested by written notice shall be
   3-46  subject to cancellation of its permit under the provisions of
   3-47  Section 4 of this Act.  A seller shall remit all premiums collected
   3-48  for insurance policies or annuity contracts funding prepaid funeral
   3-49  benefits to the insurance company within 30 days after the date of
   3-50  collection.
   3-51        (c)  On the death of a beneficiary named in an
   3-52  insurance-funded prepaid funeral benefits contract, the seller or
   3-53  funeral provider, after completion of the funeral service and
   3-54  presentation to the insurance company of proper affidavits signed
   3-55  and sworn to by an officer or designated agent of the seller on
   3-56  forms prescribed by the Department, together with a certified copy
   3-57  of the death certificate, may withdraw the benefits payable under
   3-58  that policy.  The seller shall maintain copies of those affidavits
   3-59  and death certificate for examination by the Department.
   3-60        (d)  A conversion from trust-funded prepaid funeral benefits
   3-61  to insurance-funded prepaid funeral benefits must be approved by
   3-62  the Department as safeguarding the rights and interests of the
   3-63  individual who purchases the prepaid funeral benefits contract.
   3-64  Each contract holder shall be notified in writing of the terms of
   3-65  the proposed conversion and of the holder's right to decline the
   3-66  conversion.  Applications for approval of conversions from
   3-67  trust-funded prepaid funeral benefits to insurance-funded prepaid
   3-68  funeral benefits must be filed with the Department on forms
   3-69  prescribed by the Department and accompanied by conversion
   3-70  application fees established by the Department under Section 2 of
    4-1  this Act.
    4-2        (e)  The cancellation of an insurance-funded prepaid funeral
    4-3  benefits contract shall be handled as provided by Section 5(b) of
    4-4  this Act.
    4-5        Sec. 2.  ADMINISTRATION OF ACT; CONTRACTS.  This law shall be
    4-6  administered by the <State Banking> Department.  The Department is
    4-7  authorized to prescribe reasonable rules and regulations concerning
    4-8  <application> fees to defray the cost of administering this Act,
    4-9  but may not maintain unnecessary fund balances, and fee amounts
   4-10  shall be set in accordance with this requirement, the keeping and
   4-11  inspection of records relating to the sale of prepaid funeral
   4-12  benefits, the filing of contracts and reports, changes in
   4-13  management or control of an organization, and all other matters
   4-14  incidental to the enforcement and orderly administration of this
   4-15  law; and the Department shall <may> approve forms for sales
   4-16  contracts for prepaid funeral benefits before their use.  All such
   4-17  contracts must be in writing and no contract form shall be used
   4-18  without prior approval of the Department.  All such contracts shall
   4-19  state the name of the funeral home or other person <organization>
   4-20  primarily responsible for providing the prepaid funeral benefits
   4-21  <funeral services or merchandise> specified in such contracts.  In
   4-22  the event the seller is not the funeral home designated to provide
   4-23  the specified prepaid funeral benefits <funeral services or
   4-24  merchandise>, such contract shall not be valid unless the funeral
   4-25  home so designated is a party to the contract and therein agrees
   4-26  and obligates itself to provide such specified prepaid funeral
   4-27  benefits <funeral services or merchandise>.  It is further
   4-28  provided, that all <prearranged or> prepaid funeral benefits
   4-29  contracts shall set forth the particulars of the funeral
   4-30  merchandise, including a description and specifications of the
   4-31  material used in the caskets or grave vaults to be furnished, and
   4-32  such contracts shall set forth the particulars of the prepaid
   4-33  funeral benefits <professional services to be performed and the
   4-34  funeral home facilities and automotive equipment> to be provided.
   4-35        Sec. 3.  PERMIT.  Each person <organization> desiring to sell
   4-36  or to continue to sell prepaid funeral benefits shall file an
   4-37  application for a one-year permit with the Department on a form
   4-38  prescribed by the Department.  The applicant <and> shall pay a
   4-39  filing fee in an amount set by the Department under Section 2 of
   4-40  this Act and extraordinary expenses required for out of state
   4-41  investigation of the applicant, if applicable <of $250>.  The
   4-42  Commissioner may conduct an investigation of the applicant for the
   4-43  initial permit, and if the Commissioner finds that the business
   4-44  ability, experience, character, financial condition, and general
   4-45  fitness of the applicant warrants the confidence of the public, the
   4-46  Commissioner shall approve <grant> the application and issue a
   4-47  permit to the applicant.  If the Commissioner finds otherwise, the
   4-48  Commissioner shall notify the applicant, who is entitled to a
   4-49  hearing on the application, on request, within 60 days after the
   4-50  date of the request, to be conducted in accordance with the
   4-51  procedures for a contested case hearing under the Administrative
   4-52  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   4-53  Civil Statutes) and its subsequent amendments.  The Department by
   4-54  rule may adopt a system under which permits expire on various dates
   4-55  during the year.  The Commissioner may refuse to renew a permit if
   4-56  the applicant has committed one or more of the acts described by
   4-57  Section 4(a) of this Act and has not corrected the violation within
   4-58  30 days after the date of written notice from the Commissioner.
   4-59  The fee for renewal shall be set by the Department under Section 2
   4-60  of this Act <is $60>.
   4-61        Sec. 4.  ENFORCEMENT.  (a)  The Commissioner may issue an
   4-62  order to cancel, suspend, or refuse to renew a permit issued to a
   4-63  person under this Act to sell prepaid funeral benefits if the
   4-64  Commissioner finds, by examination or other credible evidence, that
   4-65  the person:
   4-66              (1)  has violated this Act or another law of this
   4-67  state, including a final order or rule of the Commissioner or the
   4-68  Department, relating to the sale of prepaid funeral benefits;
   4-69              (2)  has misrepresented or concealed a material fact in
   4-70  the application for the permit; or
    5-1              (3)  has obtained, or attempted to obtain, the permit
    5-2  by misrepresentation, concealment, or fraud.
    5-3        (b)  In addition to other penalties that may be imposed under
    5-4  this Act, the Commissioner may bring a civil action in a district
    5-5  court in Travis County to enjoin a violation or threatened
    5-6  violation of this Act or a final order or rule of the Commissioner
    5-7  or the Department.
    5-8        (c)  The Commissioner may issue an order to cease and desist
    5-9  if the Commissioner finds, by examination or other credible
   5-10  evidence, that a person has violated this Act or another law of
   5-11  this state, including a final order or rule of the Commissioner or
   5-12  the Department, relating to the sale of prepaid funeral benefits.
   5-13        (d)  An order proposed under Subsection (a) or (c) of this
   5-14  section shall be served on the person named and shall state the
   5-15  grounds for the proposed order with reasonable certainty and the
   5-16  proposed effective date, which may not be before the 16th day after
   5-17  the date of its mailing by certified mail, return receipt
   5-18  requested, to the person's last known address.  Unless the person
   5-19  named in the order requests a hearing within 15 days after that
   5-20  mailing, the order becomes effective as proposed.  If the person
   5-21  named requests a hearing, it shall be conducted in accordance with
   5-22  the procedures for a contested case hearing under the
   5-23  Administrative Procedure and Texas Register Act (Article 6252-13a,
   5-24  Vernon's Texas Civil Statutes) and its subsequent amendments.
   5-25        (e)  Following cancellation of or failure to renew a permit
   5-26  under Subsection (a) of this section or on notice to a person
   5-27  required to obtain a permit under this Act, the Commissioner may
   5-28  issue an order to seize all prepaid funeral funds, including
   5-29  earnings, wherever those funds are held and may issue an order to
   5-30  seize any or all records that relate to the sale of prepaid funeral
   5-31  benefits, if the Commissioner finds, by examination or other
   5-32  credible evidence, that the person:
   5-33              (1)  has failed to deposit or remit funds in accordance
   5-34  with Section 1A or 5 of this Act;
   5-35              (2)  has misappropriated, converted, or illegally
   5-36  withheld or failed or refused to pay on proper demand any money
   5-37  entrusted to the person belonging to the beneficiary under a
   5-38  prepaid funeral benefits contract;
   5-39              (3)  has refused to submit to examination by the
   5-40  Department;
   5-41              (4)  has been the subject of an order to cancel,
   5-42  suspend, or refuse to renew a permit; or
   5-43              (5)  does not hold a valid permit or has transferred
   5-44  the ownership of its business to an acquiror that does not hold a
   5-45  valid permit and that:
   5-46                    (A)  has not applied for a new permit within 30
   5-47  days after the date of the consummation of the transfer; or
   5-48                    (B)  has been denied a new permit.
   5-49        (f)  An order under Subsection (e) is effective instanter if
   5-50  the Commissioner finds that immediate and irreparable harm is
   5-51  threatened to a beneficiary under a prepaid funeral benefits
   5-52  contract.  If such a threat does not exist, the order shall state
   5-53  the proposed effective date, which may not be before the 16th day
   5-54  after the date of mailing by certified mail, return receipt
   5-55  requested, to the person's last known address.  Unless the person
   5-56  named in the order requests a hearing within 15 days after that
   5-57  mailing, the order becomes effective as proposed.  If the person
   5-58  named requests a hearing, it shall be conducted in accordance with
   5-59  the Administrative Procedure and Texas Register Act (Article
   5-60  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
   5-61  amendments.
   5-62        (g)  Within 30 days after the date of a seizure of funds, the
   5-63  Commissioner may notify all known parties who purchased prepaid
   5-64  funeral benefits contract obligations from the person whose permit
   5-65  was cancelled.  The notice shall include an explanation of the
   5-66  procedures under this Act for cancelling the contracts and claiming
   5-67  funds that may be due to the parties if they elect to cancel.  The
   5-68  notice shall instruct those parties how to continue making payments
   5-69  due under the contracts if they elect to keep the contracts in
   5-70  force.  The notice shall instruct those parties that if they elect
    6-1  to keep the contracts in force the Commissioner will transfer
    6-2  responsibility to perform the contracts to a responsible successor
    6-3  permit holder selected by the Commissioner or transfer the seized
    6-4  funds to the guaranty fund, subject to the claims process
    6-5  prescribed by rule under Section 8A of this Act.  A successor
    6-6  permit holder to whom a contract is transferred by the Commissioner
    6-7  assumes responsibility to perform the contract and is entitled to
    6-8  retain all funds that would have been due the person whose permit
    6-9  was cancelled, including any funds seized by the Commissioner.  The
   6-10  Department shall adopt rules governing selection of a successor
   6-11  permit holder.  Any premium received through the selection process
   6-12  that exceeds the claims against the prior permit holder shall be
   6-13  paid into the guaranty fund.
   6-14        (h)  The Commissioner may issue an order to a person
   6-15  requiring restitution if, after notice and opportunity for hearing
   6-16  held in accordance with the procedures for a contested case hearing
   6-17  under the Administrative Procedure and Texas Register Act (Article
   6-18  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
   6-19  amendments, the Commissioner finds that the person:
   6-20              (1)  has failed to deposit funds in accordance with
   6-21  Section 5 of this Act; or
   6-22              (2)  has misappropriated, converted, or illegally
   6-23  withheld or failed or refused to pay on proper demand any money
   6-24  entrusted to the person belonging to the beneficiary under any
   6-25  prepaid funeral benefits contract.
   6-26        (i)  In addition to any other penalties that may be imposed
   6-27  under this Act, a person who violates this Act or a final order or
   6-28  rule of the Commissioner or Department is subject to a civil
   6-29  penalty unless within 30 days after the date of receiving written
   6-30  notice from the Department of the violation, the person corrects
   6-31  the violation by performing the required duty or act.  A civil
   6-32  penalty may not exceed $1,000 per violation for each day that the
   6-33  violation persists.
   6-34        (j)  A civil penalty may be imposed by the Commissioner after
   6-35  notice and opportunity for hearing in accordance with the
   6-36  procedures for a contested case hearing under the Administrative
   6-37  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   6-38  Civil Statutes) and its subsequent amendments.  In determining the
   6-39  amount of the penalty, the Commissioner shall consider the
   6-40  seriousness of the violation and the good faith of the person
   6-41  charged in attempting to comply with this Act.  The amount of the
   6-42  penalty may be collected by the Commissioner in the same manner
   6-43  that money judgements are enforced in the district courts of this
   6-44  state.
   6-45        (k)  After an order issued by the Commissioner to seize funds
   6-46  or records under Subsection (e) of this section has become final
   6-47  and not subject to appeal, the Commissioner may petition the
   6-48  district court in the county of residence of a person required to
   6-49  hold a permit under this Act, requesting the issuance of an order
   6-50  to show cause why the business and affairs of that person should
   6-51  not be liquidated and a receiver appointed by the court to
   6-52  accomplish that purpose if the person has committed one or more of
   6-53  the following acts and has failed or refused to correct the
   6-54  violations within 30 days after the date on which the person
   6-55  received written notice from the Commissioner:
   6-56              (1)  failed to deposit funds in accordance with Section
   6-57  5 of this Act;
   6-58              (2)  misappropriated, converted, or illegally withheld
   6-59  or failed or refused to pay over upon proper demand any money
   6-60  entrusted to that person belonging to the beneficiary under any
   6-61  prepaid funeral benefits contract; or
   6-62              (3)  allowed the person's permit to lapse or has had
   6-63  the permit revoked under this Act and has not made adequate
   6-64  provision for the administration of all funds deposited with the
   6-65  person for prepaid funeral benefits contracts in accordance with
   6-66  the terms of the contracts and applicable law, including
   6-67  regulations <The Department may cancel a permit or refuse to renew
   6-68  a permit for failure to comply with any provision of this Act or
   6-69  any valid rule or regulation which the Department has prescribed,
   6-70  after reasonable notice to the permittee and after a hearing if the
    7-1  permittee requests a hearing.>
    7-2        <No organization shall be entitled to a new permit for a
    7-3  period of one year after cancellation or refusal by the Department
    7-4  to renew its permit, but shall thereafter be entitled to a new
    7-5  permit upon satisfactory proof of compliance with this law>.
    7-6        Sec.  4A.  TRANSFER OF BUSINESS OWNERSHIP.  (a)  A permit
    7-7  issued under this Act is not transferable.
    7-8        (b)  If a permit holder transfers the ownership of its
    7-9  business, the permit holder shall notify the Department and the
   7-10  depository of the funds held under Section 5 of this Act by
   7-11  registered mail within seven days after the date the transfer is
   7-12  consummated.  If the transfer is to a person who is not a permit
   7-13  holder, the person shall file, within 30 days after the date of the
   7-14  consummation of the transfer, an application for a permit with the
   7-15  Department in accordance with Section 3 of this Act.  If the
   7-16  application is not filed within that period, or if the person does
   7-17  not meet the requirements for issuance of a permit under this Act,
   7-18  the Commissioner shall follow the procedures set forth in Section 4
   7-19  of this Act for denying the permit application and for seizing the
   7-20  funds or records.
   7-21        (c)  Any person aggrieved by the final action of the
   7-22  Department may appeal therefrom to a District Court in Travis
   7-23  County, Texas.
   7-24        Sec. 5.  TRUST FUNDED PREPAID FUNERAL BENEFITS.  (a)  All
   7-25  sums heretofore or hereafter paid or collected on contracts for
   7-26  prepaid funeral benefits entered into prior to the effective date
   7-27  of this Act shall be handled in accordance with the manner in which
   7-28  they have heretofore been handled.  All sums paid or collected on
   7-29  such contracts entered into after the effective date of this Act
   7-30  (with the exception of those paid where a contract of insurance
   7-31  previously is created or approved by the Department) shall be
   7-32  handled in the following manner:
   7-33              (1)  The seller of a trust-funded prepaid funeral
   7-34  benefits contract <funeral home (or other entity collecting said
   7-35  funds)> may retain as its own money, for the purpose of covering
   7-36  its selling expenses, servicing costs, and general overhead, an
   7-37  amount not to exceed one-half of all funds so collected or paid
   7-38  until it has received for its use and benefit an amount not to
   7-39  exceed ten percent of the total amount agreed to be paid by the
   7-40  purchaser of said prepaid funeral benefits as such total amount is
   7-41  reflected in the contract.  <No charges or assessments, except
   7-42  premiums collected on an insurance policy guaranteeing the payments
   7-43  on a prepaid funeral contract or the unpaid balance thereof, shall
   7-44  be collected from the purchaser other than those included in the
   7-45  total amount of said contract.>
   7-46              (2)  All amounts paid or collected, with the exception
   7-47  of those permitted to be retained as set forth above, shall, within
   7-48  30 <thirty> days after such collection, be (a) deposited in a
   7-49  savings and loan association in this state in an interest-bearing
   7-50  account insured by the federal government, or (b) deposited in a
   7-51  state or national bank in this state in an interest-bearing account
   7-52  insured by the federal government, or (c) placed with the trust
   7-53  department in a state or national bank in this state, or in a trust
   7-54  company authorized to do business in this state, to be invested by
   7-55  such trust department or company in accordance with the terms and
   7-56  provisions of this Act <the Texas Trust Code (Subtitle B, Title 9,
   7-57  Property Code)>.  Such deposits or trust accounts shall be carried
   7-58  in the name of the funeral provider <home> or other entity to whom
   7-59  the purchaser makes payment, but accounting records shall be
   7-60  maintained by the seller showing the amount deposited or invested
   7-61  with respect to any particular purchaser's contract.
   7-62              (3)  On the death of a beneficiary named in a prepaid
   7-63  funeral benefits contract, the seller, after completion of the
   7-64  funeral service and presentation to the depository of proper
   7-65  affidavits signed and sworn to by an officer or authorized agent of
   7-66  the seller on forms prescribed by the Department and a certified
   7-67  copy of the death certificate, may withdraw the amount equal to the
   7-68  original contract amount paid in by the purchaser less amounts
   7-69  retained under Subsection (a)(1) of this section, plus all earnings
   7-70  attributable to that contract.  The seller shall maintain the
    8-1  copies of the affidavits and death certificate for examination by
    8-2  the Department.  <The date of death of the purchaser of such
    8-3  contract (or other individual who may be designated in the contract
    8-4  as the person for whose funeral such funds may be used) shall be
    8-5  the maturity date of the contract, and as soon as conveniently
    8-6  practicable after such maturity date and upon presentation of a
    8-7  certified copy of the death certificate of such person together
    8-8  with proper affidavits as may be required by the Department, such
    8-9  funds shall be released in fulfillment of the contract, and the
   8-10  funeral home (or other entity to the contract which has collected
   8-11  the funds) shall, if the amount so withdrawn does not equal one
   8-12  hundred percent of the total amount paid by the purchaser, make up
   8-13  the difference so that the amount available for funeral benefits
   8-14  shall equal one hundred percent of the total amount paid by the
   8-15  purchaser.  Any amounts accumulated at maturity on any particular
   8-16  contract in excess of one hundred percent of the amount deposited
   8-17  or placed by the seller shall be available to the funeral home (or
   8-18  other entity collecting said funds) in making up the difference on
   8-19  any particular contract which at maturity did not have funds
   8-20  available equal to one hundred percent of the amount paid by the
   8-21  purchaser.>
   8-22              (4)(A)  The seller may withdraw <at any time> funds out
   8-23  of earnings <accrued interest or income> on the accounts for the
   8-24  purpose of paying reasonable and necessary trustee's fees or
   8-25  depository fees.  With prior approval of the Department, the seller
   8-26  may withdraw funds out of earnings on the accounts <charges made by
   8-27  a savings and loan association, or bank, or trust department of a
   8-28  bank, or trust company, and trustee's fees made by a savings and
   8-29  loan association, or bank, or trust department of a bank, or trust
   8-30  company, with respect to such accounts,> for the purpose of paying
   8-31  any taxes<, with prior approval of the Department,> caused or
   8-32  created by reason of the existence of such deposit accounts or
   8-33  trust accounts or for the purpose of paying an assessment under
   8-34  Section 8A of this Act<, or for the purpose of paying any
   8-35  assessment under this Act or ordered by the Department for funding
   8-36  a fund to guarantee performance of prepaid funeral contracts>.
   8-37                    (B)  The seller may also withdraw funds from the
   8-38  earnings <accrued interest or income> on the <deposit> accounts for
   8-39  the purpose of paying the examination fee for one examination by
   8-40  the Department each calendar year, or for the preparation of
   8-41  financial statements required by the Department, including
   8-42  financial statements required in lieu of an examination by the
   8-43  Department.
   8-44                    (C)  Upon the maturity date of a trust-funded
   8-45  contract as above provided and only after the funeral provider
   8-46  <home> has fully performed its obligations under said contract with
   8-47  the purchaser, or at the time of cancellation prior to maturity as
   8-48  provided in Subsection (b)<5> herein, the seller may <additionally>
   8-49  withdraw from said <deposit> account all earnings attributable to
   8-50  <(whether a trust or other funded account) any enhanced value,
   8-51  accrued interest, or accrued income on> said contract.  Such
   8-52  withdrawal shall be the proportionate part of the earnings <total
   8-53  enhanced value, accrued interest or accrued income,> that the
   8-54  amount deposited under said contract bears to the total amount
   8-55  deposited from all unmatured contracts, less any withdrawals of
   8-56  excess earnings made in accordance with this section, or, if the
   8-57  Commissioner has affirmatively determined that the records of the
   8-58  permit holder are adequate to allow this method to be exercised in
   8-59  an accurate manner, the withdrawals may be equal to the actual
   8-60  earnings on individual matured contracts, minus any properly
   8-61  allocated expenses permitted by this <sub>section, less any
   8-62  withdrawals of excess earnings made in accordance with this
   8-63  section.
   8-64                    (D)  On approval by the Commissioner, a
   8-65  <application, the Commissioner may, after notice and hearing
   8-66  conducted pursuant to the Administrative Procedure and Texas
   8-67  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes),
   8-68  authorize the> seller of prepaid funeral benefits <preneed services
   8-69  to> may withdraw excess earnings from the seller's trust accounts
   8-70  <deposits>.  For the purposes of this section, "excess earnings"
    9-1  means funds in the trust accounts <deposits>, including all
    9-2  realized and unrealized gains and losses, that exceed 110 <107>
    9-3  percent of all sums paid by purchasers on the contracts. <of the
    9-4  seller's obligations on each contract for which deposits have been
    9-5  made after the date the contracts are entered into.  The
    9-6  Commissioner may grant the authorization if in the Commissioner's
    9-7  opinion, the evidence shows that the seller's ability to deliver
    9-8  the contracted services and merchandise is not diminished by the
    9-9  withdrawal.  The Commissioner by rule may set out factors that may
   9-10  be considered in evaluating each application.  The Commissioner's
   9-11  decision on whether to grant the withdrawal is not limited to those
   9-12  factors.  A withdrawal of excess earnings made after an initial
   9-13  withdrawal as provided by this subsection may not be approved for
   9-14  more than 93 percent of the funds remaining in the accounts after
   9-15  the withdrawal that are in excess of the 107 percent to be
   9-16  maintained in satisfaction of the seller's contractual
   9-17  obligations.>
   9-18                          (i)  A seller must apply to the
   9-19  Commissioner for approval to withdraw excess earnings from the
   9-20  seller's trust accounts under this subsection.  An application must
   9-21  be in writing and must include a sworn statement by an agent of the
   9-22  seller designated under Section 6 of this Act that:
   9-23                                         (I)  specifies the amount
   9-24  eligible for withdrawal based on the market value of the trust
   9-25  assets as of a date not more than 45 days prior to the date of the
   9-26  application; and
   9-27                                         (II)  affirms that the
   9-28  requested withdrawal constitutes excess earnings.
   9-29                          (ii)  An application by a seller to
   9-30  withdraw excess earnings from the seller's trust accounts must be
   9-31  accompanied by:
   9-32                                         (I)  a statement from the
   9-33  trustee of the trust accounts verifying the market and book values
   9-34  of the assets in the accounts as of a date not more than 45 days
   9-35  prior to the date of the application;
   9-36                                         (II)  the seller's most
   9-37  recent audited or unaudited financial statements dated not more
   9-38  than 18 months prior to the date the application is filed with the
   9-39  Commissioner.  In the event of the filing of a consolidated
   9-40  application on behalf of affiliated sellers, audited financial
   9-41  statements of the parent company may be submitted in lieu of those
   9-42  of the sellers.  Such audited statements shall be accompanied by an
   9-43  unqualified opinion by a certified public accountant.  In the event
   9-44  the seller provides unaudited financial statements or audited
   9-45  financial statements with a qualified opinion pursuant to this
   9-46  subsection, the Commissioner may approve the application if the
   9-47  application is accompanied by a surety bond from a company
   9-48  acceptable to the Commissioner, in favor of the Commissioner, in an
   9-49  amount equal to the amount of the requested withdrawal.  Such bond
   9-50  shall be reduced on an annual basis by an amount equal to 10
   9-51  percent per year;
   9-52                                         (III)  the seller's
   9-53  quarterly audited or unaudited profit and loss statements covering
   9-54  the two years immediately preceding the year covered by the
   9-55  financial statements required in Subsection (a)(4)(D)(ii)(II) of
   9-56  this section.  If the seller has not been in operation for three
   9-57  (3) years, the profit and loss statements shall cover the period of
   9-58  time that the seller has been operating;
   9-59                                         (IV)  financial records or
   9-60  reports reflecting the total amount of the seller's contracts and
   9-61  the total amount of payments made by purchasers with respect to the
   9-62  seller's contracts; and
   9-63                                         (V)  In the event an
   9-64  application is submitted by a seller that is not the funeral home
   9-65  designated in the contracts that is obligated to provide the
   9-66  specified prepaid funeral benefits, in addition to all information
   9-67  required under Subsections (a)(4)(D)(ii)(I)  through (IV) of this
   9-68  section, such application shall be accompanied by:
   9-69                                                         (-a-)  copies
   9-70  of agreements with all funeral homes that willdeliver the funeral
   10-1  services and merchandise, including amounts agreed to be paid to
   10-2  such funeral homes by the seller; and
   10-3                                                         (-b-)  an
   10-4  affidavit from each funeral home stating that the withdrawal of
   10-5  excess earnings in the amount requested will not affect its
   10-6  contractual obligation to deliver the contracted funeral services
   10-7  and merchandise.
   10-8                          (iii)  The Commissioner shall approve a
   10-9  completed application to withdraw excess earnings unless the
  10-10  Commissioner determines that the seller's ability to deliver the
  10-11  contracted services and merchandise would be materially jeopardized
  10-12  by the withdrawal due to:
  10-13                                         (I)  the seller's failure,
  10-14  after written notice from the Commissioner, to substantially comply
  10-15  with any law or rule applicable to the sale of prepaid funeral
  10-16  benefits in this state;
  10-17                                         (II)  the seller's willful
  10-18  commission of any felony or fraudulent act in the conduct of the
  10-19  seller's prepaid funeral business that threatens the seller's
  10-20  solvency;
  10-21                                         (III)  the seller's refusal
  10-22  to submit to an examination of the seller's trust accounts under
  10-23  Section 8 of this Act;
  10-24                                         (IV)  the cancellation or
  10-25  involuntary non-renewal of the seller's permit to sell prepaid
  10-26  funeral benefits;
  10-27                                         (V)  the seller's knowing
  10-28  withdrawal from the trust accounts of amounts that are not
  10-29  authorized under this Act or the seller's refusal to correct the
  10-30  unauthorized withdrawal after the receipt of written notice from
  10-31  the Commissioner;
  10-32                                         (VI)  the seller's failure
  10-33  to deposit or remit funds in accordance with this section or the
  10-34  seller's refusal to make the required deposit or remittance after
  10-35  the receipt of written notice from the Commissioner;
  10-36                                         (VII)  the amount of the
  10-37  requested withdrawal exceeding the net worth of the seller, or if
  10-38  the seller is an affiliate of a consolidated entity, the net worth
  10-39  of the parent corporation.  In the event the requested withdrawal
  10-40  exceeds the net worth of the seller or, if applicable, the parent
  10-41  corporation, the Commissioner may approve the withdrawal if the
  10-42  seller provides a surety bond from a company acceptable to the
  10-43  Commissioner, in favor of the Commissioner, in the amount of the
  10-44  withdrawal in excess of the net worth of the seller or its parent.
  10-45  Such bond shall be reduced on an annual basis by an amount equal to
  10-46  20 percent per year;
  10-47                                         (VIII)  the seller (or the
  10-48  parent, if a consolidated application is filed) having experienced
  10-49  a net loss from operations in any of the last three years.  In the
  10-50  event of such a loss, the Commissioner may approve the withdrawal
  10-51  if the seller provides a surety bond from a company acceptable to
  10-52  the Commissioner, in favor of the Commissioner, in an amount equal
  10-53  to the requested withdrawal.  Such bond shall be reduced on an
  10-54  annual basis by an amount equal to 10 percent per year;
  10-55                                         (IX)  the contingent
  10-56  liabilities other than commitments disclosed on the face of
  10-57  seller's (or parent's if a consolidated application is filed)
  10-58  audited consolidated or unconsolidated balance sheet exceeding
  10-59  seller's (or parent's if a consolidated application is filed) net
  10-60  worth as of the date of the financial statement.  In such event,
  10-61  the Commissioner may approve the withdrawal if the seller provides
  10-62  a surety bond from a company acceptable to the Commissioner, in
  10-63  favor of the Commissioner, in an amount equal to the requested
  10-64  withdrawal.  Such bond shall be reduced on an annual basis by an
  10-65  amount equal to 10 percent per year; or
  10-66                                         (X)  the withdrawal causing
  10-67  the investments in the trust accounts to be in violation of Section
  10-68  5A(d) of this Act.
  10-69                          (iv)  In connection with the Commissioner's
  10-70  review of a seller's application to withdraw excess earnings from
   11-1  the trust accounts under this subsection, the Commissioner may
   11-2  conduct an examination or audit of the seller's prepaid  funeral
   11-3  benefits records under Section 8 of this Act.
   11-4                          (v)  The Commissioner shall issue a written
   11-5  notice within 10 days of receipt of an application informing the
   11-6  seller either that the application is complete and accepted for
   11-7  filing, or that the application is deficient and that specific
   11-8  additional information is required within 30 days.  If the
   11-9  requested information is not received within 30 days, the
  11-10  application is deemed denied unless good cause exists for failure
  11-11  to provide the information timely.  The Commissioner shall approve
  11-12  or deny an application under this subsection within 90 days of the
  11-13  date of filing of a completed application.  If a completed
  11-14  application to withdraw excess earnings under this subsection is
  11-15  not denied by the Commissioner within 90 days after it is accepted
  11-16  by the Commissioner as complete, the application shall be deemed
  11-17  approved by the Commissioner and the requested withdrawal shall be
  11-18  deemed authorized without further action by the Commissioner.  The
  11-19  Commissioner may extend this time period for an additional 90 days
  11-20  for good cause and upon notice to the seller.  If the Commissioner
  11-21  denies the application for withdrawal, the seller will be entitled
  11-22  to a hearing conducted pursuant to the Administrative Procedure and
  11-23  Texas Register Act, Texas Civil Statutes, Article 6252-13a.
  11-24  Judicial review of a final decision by the Commissioner shall be by
  11-25  trial de novo in a district court of Travis County.
  11-26                          (vi)  Within 60 days following the approval
  11-27  of an application under this subsection, the seller shall provide
  11-28  the Commissioner with a verified statement indicating that the
  11-29  withdrawn funds were used in the ordinary course of the seller's
  11-30  business.
  11-31                          (vii)  In the event a material error in an
  11-32  application is discovered or the seller fails or refuses to comply
  11-33  with or fulfill any undertaking assumed by the seller in connection
  11-34  with the withdrawal of excess earnings from the seller's trust
  11-35  accounts, the seller, after notice from the Commissioner and a
  11-36  hearing, must return the disputed funds to the trust accounts or
  11-37  the seller's permit will be subject to cancellation.
  11-38                          (viii)  To the extent that additional
  11-39  federal income taxes or other taxes are due as a result of a
  11-40  withdrawal of excess earnings from a seller's trust accounts, such
  11-41  taxes shall be paid by the seller and shall not be withdrawn from
  11-42  the trust accounts.
  11-43                          (ix)  Applications for withdrawal of excess
  11-44  earnings under this subsection shall be filed with the Department
  11-45  on forms acceptable to the Commissioner.  Each application shall be
  11-46  accompanied by a nonrefundable fee of $1,000 per permit, or a fee
  11-47  not to exceed $5,000 for consolidated applications, made payable to
  11-48  the Department, in order to cover the costs of processing the
  11-49  application.
  11-50                          (x)  This Subsection (D) shall be repealed
  11-51  on December 31, 1993.  Such repeal shall not affect those
  11-52  applications to withdraw excess earnings filed prior to December
  11-53  31, 1993, or that may be supplemented after December 31, 1993, all
  11-54  of which applications shall be handled in accordance with the
  11-55  provisions of this Subsection (D).
  11-56        (b)(1) <(5)>  In the event a purchaser under a trust-funded
  11-57  contract should desire to cancel the contract prior to maturity,
  11-58  such cancellation may be accomplished by the purchaser <seller>
  11-59  giving to the seller written <fifteen days> notice of cancellation
  11-60  on forms prescribed by the Department <in writing to the
  11-61  Department, signed by the purchaser>, and thereafter, the <upon
  11-62  written authorization from the Department, such> seller within 30
  11-63  days after the date of the cancellation notice shall <may> withdraw
  11-64  and pay to the purchaser the funds in such depository being held
  11-65  for the purchaser's use and benefit; provided, however, such
  11-66  purchaser shall be entitled to receive only the actual amounts paid
  11-67  in by him less the amounts permitted to be retained as provided in
  11-68  Subsection (a)(1) hereof.  The seller shall maintain copies of the
  11-69  cancellation forms for examination by the Department.  Purchaser or
  11-70  seller may make no partial cancellations or withdrawals.
   12-1              (2) <(6)>  A purchaser of a trust-funded contract who
   12-2  elects to cancel the contract during the first year of the contract
   12-3  when payments required under the contract are current is entitled
   12-4  to receive 90 percent of the actual amounts paid in by the
   12-5  purchaser or the amounts deposited in trust with respect to the
   12-6  purchaser's contract, whichever is greater, regardless of the
   12-7  amount held in trust.  A purchaser of an insurance-funded contract
   12-8  who elects to cancel the contract during the first year of the
   12-9  contract when payments required under the contract are current is
  12-10  entitled to receive the cash surrender value of the policy.
  12-11              (3)  If the purchaser cancels the contract on the
  12-12  solicitation of the seller, the purchaser is entitled to withdraw
  12-13  all funds paid to the seller and all earnings <enhanced value>
  12-14  attributable to the funds.  If the funds are used to purchase a new
  12-15  prepaid <preneed> funeral contract pursuant to a solicitation by
  12-16  the seller, the new contract must, as determined by the Department,
  12-17  protect the purchaser to an extent equal to or greater than that
  12-18  provided by the original contract, and the purchaser's cost of the
  12-19  same or substantially the same services and merchandise may not be
  12-20  increased above that contained in the canceled contract.
  12-21              (4)  The purchaser of a prepaid funeral benefits
  12-22  contract may irrevocably waive and renounce the purchaser's right
  12-23  to cancel the contract under Subsection (b) of this section.  The
  12-24  waiver and  renunciation may be included as a provision of the
  12-25  contract or be made in a separate writing signed by the purchaser
  12-26  and the seller.  The waiver and renunciation of a purchaser's right
  12-27  to cancel the purchaser's prepaid funeral benefits contract do not
  12-28  affect:
  12-29                    (A)  a right the purchaser has under the contract
  12-30  to change the beneficiary of the contract;
  12-31                    (B)  the purchaser's right to cancel the contract
  12-32  under Section 4(g) of this Act upon any seizure of the seller's
  12-33  prepaid funeral funds by the Commissioner; or
  12-34                    (C)  any abandonment of the funds paid by the
  12-35  purchaser under the contract in accordance with Section 5B of this
  12-36  Act.
  12-37        (c)  Notwithstanding any other provision of law, the
  12-38  purchaser of an insurance-funded prepaid funeral benefits contract
  12-39  may irrevocably assign the purchaser's ownership of and rights to
  12-40  benefits under the insurance policy or annuity contract to the
  12-41  seller, the funeral provider, the trustee or other person.
  12-42        (d)  A seller may enter into a written agreement with a
  12-43  purchaser of a prepaid funeral benefits contract providing for the
  12-44  payment of a finance charge in accordance with Chapter 6, Title 79,
  12-45  Revised Statutes (Article 5069-6.01 et seq., Vernon's Texas Civil
  12-46  Statutes), on any amount due and owing to the seller on the prepaid
  12-47  funeral benefits contract.
  12-48        Sec. 5A.  INVESTMENT OF TRUST FUNDS.  (a)  A permit holder or
  12-49  trustee, if the permit holder elects to deposit prepaid funeral
  12-50  funds with a bank trust department or a trust company shall:
  12-51              (1)  adopt a written investment plan consistent with
  12-52  this section that specifies the quality, maturity, and
  12-53  diversification of investments; and 
  12-54              (2)  at least annually, review the adequacy and the
  12-55  implementation of the investment plan.
  12-56        (b)  A permit holder and the trustee, if any, shall maintain
  12-57  the investment plan in their principal offices.  The permit holder
  12-58  shall provide the investment plan to the Department with the filing
  12-59  of the permit holder's annual report.  The permit holder or
  12-60  trustee, if any, shall maintain investment records covering each
  12-61  transaction.
  12-62        (c)  A trustee, in acquiring, investing, reinvesting,
  12-63  exchanging, retaining, selling, supervising, and managing property
  12-64  held in a prepaid funeral benefits trust shall exercise the
  12-65  judgment and care under the circumstances then prevailing that
  12-66  persons of ordinary prudence, discretion, and intelligence exercise
  12-67  in the management of their own affairs, not in regard to
  12-68  speculation but in regard to the permanent disposition of their
  12-69  funds, considering the probable income from as well as the probable
  12-70  increase in value and the safety of their capital, taking into
   13-1  consideration the investment of all the assets of the trust over
   13-2  which the trustee has management and control, rather than a
   13-3  consideration as to the prudence of a single investment of the
   13-4  trust.
   13-5        (d)  Within the limitations of the standard set out in
   13-6  Subsection (c) of this section, investments of a prepaid funeral
   13-7  benefits trust are limited to the following:
   13-8              (1)  demand deposits, savings accounts, certificates of
   13-9  deposit, and all other accounts that are issued by banks and
  13-10  savings and loan associations organized under the laws of the
  13-11  United States or a state, provided that the amounts deposited in
  13-12  such an account shall at all times be maintained so as to be fully
  13-13  covered by federal deposit insurance;
  13-14              (2)  bonds, evidences of indebtedness, or obligations
  13-15  of the United States, or guaranteed as to principal and interest by
  13-16  the full faith and credit of the United States;
  13-17              (3)  bonds, evidences of indebtedness, or obligations
  13-18  of agencies and instrumentalities of the government of the United
  13-19  States;
  13-20              (4)  bonds of any state or local government that have
  13-21  been given federal income tax exempt status by the United States
  13-22  government and that are rated:
  13-23                    (A)  "Aa" or better by Moody's bond rating
  13-24  service; or
  13-25                    (B)  "AA" or better by Standard and Poor's bond
  13-26  rating service;
  13-27              (5)  bonds, evidences of indebtedness, or obligations
  13-28  of corporations organized under the laws of the United States or a
  13-29  state, provided that the bonds, evidences of indebtedness, or
  13-30  obligations are rated:
  13-31                    (A)  "A" or better by Moody's bond rating
  13-32  service; or
  13-33                    (B)  "A" or better by Standard and Poor's bond
  13-34  rating service;
  13-35              (6)  notes, evidences of indebtedness, or participation
  13-36  in notes or evidences of indebtedness, secured by a valid first
  13-37  lien on real property located in the United States, the amount of
  13-38  which obligations may not exceed 90 percent of the value of the
  13-39  respective parcels of real property securing them;
  13-40              (7)  common stock of a corporation organized under the
  13-41  laws of the United States or a state, provided that the corporation
  13-42  has at least $1 million of net worth or will have at least $1
  13-43  million of net worth after completion of a securities offering to
  13-44  which the trust is subscribing;
  13-45              (8)  preferred stock of a corporation organized under
  13-46  the laws of the United States or a state, provided that the stock
  13-47  is rated;
  13-48                    (A)  "BAA" or better by Moody's bond rating
  13-49  service; or
  13-50                    (B)  "BBB" or better by Standard and Poor's bond
  13-51  rating service;
  13-52              (9)  real estate, oil and gas interests, limited
  13-53  partnerships, and any other investments not covered by this
  13-54  section;
  13-55              (10)  mutual funds, collective investment funds, or
  13-56  similar participative investment funds, the assets of which are
  13-57  invested solely in investments permitted under this section and
  13-58  that, if aggregated with other investments, meet the percentage
  13-59  limitations specified by this section; and
  13-60              (11)  any other investment approved in writing by the
  13-61  Department.
  13-62        (e)  At no time may more than 70 percent of the prepaid
  13-63  funeral benefits trust funds related to a single permit holder be
  13-64  invested in:
  13-65              (1)  bonds, evidences of indebtedness, obligations,
  13-66  notes, and participation described by Subsection (d)(5) or (6) of
  13-67  this section; or
  13-68              (2)  common or preferred stock described by Subsection
  13-69  (d)(7) or (8) of this section.
  13-70        (f)  At no time may more than 10 percent of the prepaid
   14-1  funeral benefits trust funds related to a single permit holder be
   14-2  invested in real estate, oil and gas interests, limited
   14-3  partnerships, and other investments described by Subsection (d)(9)
   14-4  of this section.
   14-5        (g)  At no time may more than 20 percent of the prepaid
   14-6  funeral benefits trust funds related to a single permit holder be
   14-7  invested in a single issue of any investment, with the exception of
   14-8  insured deposits and government securities.
   14-9        (h)  This section applies to investments that are made on or
  14-10  after the effective date of this Act.  Before September 1, 1996, a
  14-11  permit holder or trustee shall dispose of all investments made
  14-12  before the effective date of this Act that are not in compliance
  14-13  with this section in respect to the type of investment or the
  14-14  percentage of trust funds that may be invested in certain types of
  14-15  investments.  The Commissioner may grant an extension of time for a
  14-16  period of one year or more for disposing of a nonconforming
  14-17  investment if, in the Commissioner's opinion, the permit holder or
  14-18  trustee has made a good faith effort to dispose of the
  14-19  nonconforming investment or the disposal of the nonconforming
  14-20  investment would be materially detrimental to the best interests of
  14-21  the purchasers of prepaid funeral benefit contracts.
  14-22        Sec. 5B.  ABANDONED CONTRACTS.  (a)  Funds paid by a
  14-23  purchaser of a prepaid funeral benefits contract are personal
  14-24  property subject to presumption of abandonment and delivery to the
  14-25  state treasurer <escheat> under Title 6, Property Code.  In the
  14-26  event of a conflict between the provisions of that title and this
  14-27  section, this section controls.
  14-28        (b)  Funds paid by a purchaser of a prepaid funeral benefits
  14-29  contract and held in the name of the seller at a depository
  14-30  <institution> under Section 5 of this Act are presumed abandoned if
  14-31  <a claim of ownership to the funds or the contract is not asserted
  14-32  and>:
  14-33              (1)  all amounts due to the seller from the purchaser
  14-34  under the terms of the contract have been collected and <the
  14-35  conditions under both Paragraphs (A) and (B) of this subsection
  14-36  have occurred>:
  14-37                    (A)  at least three consecutive years have
  14-38  elapsed since the existence and location of the purchaser or the
  14-39  beneficiary of the contract was known to the seller;
  14-40                    (B)  at least three consecutive years have
  14-41  elapsed since, according to the knowledge and records of the
  14-42  seller, a claim to or act of ownership of the funds or the contract
  14-43  has been asserted or exercised;
  14-44                    (C)  at least 60 years have elapsed since the
  14-45  date of execution by the purchaser of the contract; and
  14-46                    (D) <(B)>  at least 90 years have elapsed since
  14-47  the date of birth of the beneficiary of <individual designated in>
  14-48  the contract <as the person for whose funeral the funds may be
  14-49  used>; or
  14-50              (2)  all amounts due to the seller from the purchaser
  14-51  under the terms of the contract have not been paid to the seller
  14-52  and<,> at least three consecutive years have elapsed since:
  14-53                    (A)  the most recent date on which the purchaser
  14-54  made a payment to the seller under the contract;
  14-55                    (B)  the existence and location of the purchaser
  14-56  or the beneficiary of the contract was known to the seller; and
  14-57                    (C)  according to the knowledge and records of
  14-58  the seller, a claim to or act of ownership of the funds or the
  14-59  contract has been asserted or exercised<, and under the terms of
  14-60  the contract the seller is not obligated to refund the amount
  14-61  received>.
  14-62        (c)  For purposes of Title 6, Property Code, the seller of
  14-63  the prepaid funeral benefits contract for which funds are presumed
  14-64  abandoned under Subsection (b) of this section is the holder of the
  14-65  funds, and the purchaser or the beneficiary of the contract is the
  14-66  owner of the <principal> funds <paid on the contract>.
  14-67        (d)  Any amount retained by the seller as its own money for
  14-68  the purpose of covering its selling expenses, servicing costs, and
  14-69  general overhead, as provided by Section 5(a)(1) of this Act, and
  14-70  any earnings attributable to the funds paid by a purchaser of a
   15-1  prepaid funeral benefits contract, are not subject to the
   15-2  presumption of abandonment as provided by Subsection (b) of this
   15-3  section.
   15-4        (e)(1)  Each seller that on June 30 holds funds that are
   15-5  presumed abandoned under Subsection (b) of this section shall
   15-6  furnish the Commissioner with an acknowledged written notice of the
   15-7  abandoned funds not later than the following October 1.  The
   15-8  seller's notice shall, for each abandoned contract, include the
   15-9  name and address, if known, of each person who appears to be the
  15-10  purchaser or the beneficiary of the contract; the identification
  15-11  number, if any, of the contract; the total amount paid on the
  15-12  contract; the amount paid on the contract and held at the
  15-13  depository; and the earnings of the contract.  The notice shall
  15-14  also contain a statement by the seller recognizing the seller's
  15-15  obligation and intent to deliver the abandoned funds to the state
  15-16  treasurer in accordance with this section.
  15-17              (2)  The Commissioner shall, within 15 days after the
  15-18  date of the receipt of the seller's notice, authorize in writing
  15-19  the seller to withdraw the funds specified in the seller's notice
  15-20  that are presumed abandoned under Subsection (b) of this section,
  15-21  and subject to Subdivision (3) of this subsection, to withdraw and
  15-22  retain the funds specified in the seller's notice that represent
  15-23  the earnings attributable to the abandoned funds.  The seller shall
  15-24  deliver to the state treasurer not later than the following
  15-25  November 1 the abandoned funds and the report required to be filed
  15-26  under Chapter 74, Property Code.
  15-27              (3)  The Commissioner may refuse to authorize the
  15-28  withdrawal of the funds representing the earnings attributable to
  15-29  the abandoned funds only if:
  15-30                    (A)  the seller's permit to sell prepaid funeral
  15-31  benefits has been cancelled or not renewed by the Department;
  15-32                    (B)  the seller is the subject of a pending
  15-33  proceeding brought by the Department under Section 13,
  15-34  Administrative Procedure and Texas Register Act (Article 6252-13a,
  15-35  Vernon's Texas Civil Statutes), and its subsequent amendments, to
  15-36  cancel the seller's permit to sell prepaid funeral benefits; or
  15-37                    (C)  the Department has determined from an
  15-38  examination of the seller's records that the seller has made
  15-39  withdrawals from accounts maintained by the seller that were not
  15-40  authorized under this Act, and has previously given written notice
  15-41  to the seller of that determination.
  15-42              (4)  If the Commissioner does not authorize the seller
  15-43  to withdraw the funds representing the earnings attributable to the
  15-44  abandoned funds because of the existence of a condition described
  15-45  by Subdivision (3) of this subsection, the Commissioner shall, not
  15-46  later than the 15th day after the date of the receipt of the
  15-47  seller's notice to the Commissioner under Subdivision (1) of this
  15-48  subsection, give written notice to the seller that states the
  15-49  condition that exists.  If the Commissioner notifies the seller
  15-50  that the Commissioner does not authorize the seller's withdrawal of
  15-51  earnings on the basis of Subdivision (3)(B) of this subsection and
  15-52  if the Department or a court of competent jurisdiction subsequently
  15-53  determines that the seller's permit should not be cancelled, the
  15-54  seller is entitled to withdraw and retain all of the earnings
  15-55  attributable to the abandoned funds.  If the Commissioner notifies
  15-56  the seller that the Commissioner does not authorize the seller's
  15-57  withdrawal of earnings on the basis of Subdivision (3)(C) of this
  15-58  subsection, the seller, upon depositing in the accounts the amount
  15-59  of the unauthorized withdrawals, is entitled to withdraw and retain
  15-60  all of the earnings attributable to the abandoned funds.
  15-61        (f) <(d)>  A seller <of a prepaid funeral services contract>
  15-62  who <in good faith> reports and delivers funds to the State
  15-63  Treasurer under this section <Chapter 74, Property Code,> is
  15-64  relieved of all obligations and liabilities under the prepaid
  15-65  funeral benefits <services> contract.  The prepaid funeral benefits
  15-66  contract is considered to be cancelled by the purchaser of the
  15-67  contract and all obligations and liabilities of and claims against
  15-68  the seller and any funeral home obligated to provide prepaid
  15-69  funeral benefits under the contract are discharged and released.
  15-70        (g)  A seller who delivers funds to the state treasurer under
   16-1  this section shall be indemnified under Section 74.304, Property
   16-2  Code, for any claim that may be made with respect to the property
   16-3  <if all amounts due to the seller under the terms of a contract
   16-4  abandoned under this section have been paid, the seller shall
   16-5  report and deliver to the state treasurer the principal amount paid
   16-6  by the purchaser of such contract>.
   16-7        (h) <(e)>  The state treasurer is not liable to the purchaser
   16-8  or beneficiary of a prepaid funeral benefits <services> contract
   16-9  presumed abandoned under this section except to the extent of funds
  16-10  attributable to the contract that are delivered to the state
  16-11  treasurer.  The state treasurer is not obligated to perform the
  16-12  seller's duties under an abandoned prepaid funeral benefits
  16-13  <services> contract.  A purchaser's or beneficiary's sole recourse
  16-14  after a seller has reported and delivered funds to the state
  16-15  treasurer is to file a claim with the state treasurer as provided
  16-16  by Chapter 74, Property Code.
  16-17        Sec. 6.  AGENT; DEPOSIT OF FUNDS.  (a)  Each seller
  16-18  <organization> subject to this Act shall designate an agent or
  16-19  agents, either by names of the individuals or by titles of their
  16-20  offices or positions, who shall be considered as fiduciaries under
  16-21  Section 32.45, Penal Code, and who are responsible for deposit of
  16-22  funds collected under contracts for prepaid funeral benefits.  The
  16-23  seller <organization> shall notify the Department of such
  16-24  designation within 10 days after it becomes subject to this Act,
  16-25  and shall also notify the Department of any change in such
  16-26  designation within 10 days before such change occurs.
  16-27        (b)  If the seller or any other person acting on behalf of
  16-28  the seller collects any money under such a contract and fails to
  16-29  deliver it, within 30 days after collection, to a designated agent,
  16-30  or if any designated agent fails to deposit the money within 30
  16-31  days after he receives it, he commits an offense under Section
  16-32  32.45, Penal Code.
  16-33        (c)  It is an exception to the application of Subsection (b)
  16-34  of this section that the failure to make a deposit is inadvertent
  16-35  and is corrected within 10 days after the date on which the
  16-36  discovery of the failure is made by the seller.
  16-37        Sec. 7.  ANNUAL REPORT.  The Department may require an annual
  16-38  report from any permit holder in such form as the Department may
  16-39  require.  Any seller who <organization which> has discontinued the
  16-40  sale of prepaid funeral benefits but <which> still has outstanding
  16-41  contracts shall <not> be required to obtain a renewal of its
  16-42  permit, and <but> the Department shall <may> require annual reports
  16-43  of said seller <organization> until all such contracts have been
  16-44  fully discharged.  If any officer of a seller <any organization>
  16-45  fails or refuses to file an annual report or to cause it to be
  16-46  filed within 30 days after he has been notified of the requirement
  16-47  by the Department, he shall be guilty of a misdemeanor and a
  16-48  violation of this Act and shall be punished by those means
  16-49  prescribed in Section 9 of this Act.
  16-50        Sec. 8.  RECORDS; EXAMINATION.  (a)  Each seller who
  16-51  <organization which> has outstanding contracts for prepaid funeral
  16-52  benefits shall maintain within this state such records as the
  16-53  Department may require to enable it to determine whether the seller
  16-54  <organization> is complying with the provisions of this Act.  Such
  16-55  records shall be subject to annual examination by the Department or
  16-56  its agent and to such additional examinations as it deems
  16-57  necessary.  The seller <organization> shall pay for the cost of
  16-58  examination, including the salary and travel <traveling> expenses
  16-59  for Department employees, including travel <paid to the person
  16-60  making the examination during the time spent in making the
  16-61  examination and in traveling> to and <returning> from the point
  16-62  where the records are kept, and all other expenses necessarily
  16-63  incurred in the examination.  The <Banking> Commissioner or the
  16-64  Commissioner's <his> agent shall assess and collect a fee in
  16-65  connection with each examination, based on the seller's
  16-66  <organization's> total outstanding contracts, covering the cost of
  16-67  such examination, the equitable or proportionate cost of
  16-68  maintenance and operation of the <Banking> Department, and the
  16-69  enforcement of the provisions of this Act<, but the cost to the
  16-70  organization shall not be more than a total cost of $3,000 for each
   17-1  examination>.  The Department shall set the amount of those fees
   17-2  under Section 2 of this Act.
   17-3        (b)  <Following cancellation of a permit, the Commissioner
   17-4  may seize all records of the prior permit holder and may seize all
   17-5  prepaid funeral funds, including earnings, of the prior permit
   17-6  holder, place them under the sole control of the Commissioner with
   17-7  a state bank, the state treasury, a state-chartered trust company,
   17-8  or an insurance company licensed and domiciled in this state and
   17-9  approved by the Commissioner, and cause the funds to be maintained
  17-10  under that arrangement for the benefit of the purchasers.  The
  17-11  Commissioner shall notify each purchaser of the Commissioner's
  17-12  action and direct the purchaser to forward payments on contracts
  17-13  directly to the depository designated by the Commissioner. The
  17-14  Department may adopt reasonable rules for the enforcement and
  17-15  orderly administration of this subsection.>
  17-16        <(c)  Those organizations with less than 50 contracts
  17-17  outstanding shall be assessed an examination fee of $50 plus
  17-18  one-fourth of one percent of the dollar amount of the
  17-19  organization's outstanding contract funds on deposit, in trust, or
  17-20  vested in any other program subject to this Act.  Those
  17-21  organizations with 50 or more contracts outstanding shall be
  17-22  assessed an examination fee of $100 plus one-fourth of one percent
  17-23  of the dollar amount of the organization's outstanding contract
  17-24  funds on deposit, in trust, or vested in any other program subject
  17-25  to this Act.>
  17-26        <(d)>  As part of the examination, the Department is entitled
  17-27  to access to the records relating to prepaid funeral benefits of
  17-28  any entity holding deposits or premiums for annuity contracts or
  17-29  policies of insurance under the account and to other records
  17-30  necessary to protect the interests of the beneficiaries.  The
  17-31  Department may conduct an examination or audit of records
  17-32  pertaining to prepaid funeral benefits at any place and in any
  17-33  manner the Department considers necessary to protect the interests
  17-34  of the purchasers or beneficiaries.
  17-35        (c)  All information obtained, either directly or indirectly,
  17-36  by the Department relative to the financial condition of any seller
  17-37  whether obtained through examination or otherwise, except published
  17-38  statements, and all files and records of the Department relative
  17-39  thereto shall be confidential, provided that the Commissioner may,
  17-40  if deemed necessary or proper to the enforcement of the laws of
  17-41  this State, another state, or the United States, and in the best
  17-42  interest of the public, divulge such information to any other
  17-43  department of this State, another state, or the National
  17-44  Government, or any agency or instrumentality thereof.
  17-45        Sec. 8A.  GUARANTY FUND; ASSESSMENT.  (a)  The Department by
  17-46  rule shall create and maintain a fund to guarantee performance by
  17-47  sellers of prepaid funeral benefits contracts of their obligations
  17-48  to purchasers under the provisions of this Act governing prepaid
  17-49  funeral trusts.  The Department shall assess and collect from
  17-50  sellers an assessment of not more than $1 for each of the unmatured
  17-51  prepaid funeral benefits contracts sold during each calendar year
  17-52  beginning with 1993 <existing on January 1, 1988.  The Department
  17-53  shall also assess and collect an assessment of not more than $1 for
  17-54  each prepaid funeral contract sold during 1988 by a permittee first
  17-55  receiving a permit in 1988>.  The Department shall place the
  17-56  assessments in the fund.  The Department shall stop assessing the
  17-57  amounts required by this subsection when the amount in the fund
  17-58  first reaches $1 million.
  17-59        (b)  The fund may be deposited with the state treasurer, a
  17-60  state or national bank in this state, or a savings and loan
  17-61  association in this state, or placed with the trust department in a
  17-62  state or national bank in this state or in a trust company
  17-63  authorized to do business in this state.  If the fund is deposited
  17-64  with the state treasurer, the <The> state treasurer shall manage
  17-65  the fund as trustee of funds outside the treasury.  The Department
  17-66  may use any earnings from the fund for the expenses of operating
  17-67  and maintaining the fund.  <An actuarial study shall be made before
  17-68  April 1, 1988, to determine the total amount needed to maintain a
  17-69  sound and responsible fund.  The Department may make any additional
  17-70  assessments on unmatured contracts to maintain the funds at the
   18-1  amount found to be actuarially sound.>
   18-2        (c)  The operation and maintenance of the fund shall be
   18-3  supervised by an advisory council composed of the Commissioner and
   18-4  Attorney General or their representatives, <and> one representative
   18-5  of the funeral industry appointed by the Finance Commission of
   18-6  Texas, and one consumer representative appointed by the Finance
   18-7  Commission of Texas <Banking Commissioner>.  The funeral industry
   18-8  representative and the consumer representative serve <serves a>
   18-9  two-year terms <term> and may not serve more than two terms <one
  18-10  term>.  The Commissioner shall cast the deciding vote if there is a
  18-11  tie vote by members of the advisory council.
  18-12        (d)  The advisory council may make assessments against all
  18-13  permit holders, based upon their proportionate share of the
  18-14  purchasers' deposits on all outstanding prepaid funeral benefits
  18-15  contracts, in order to pay claims against the fund when the balance
  18-16  of the fund is not sufficient to pay those claims.  Assessed funds
  18-17  shall be placed in the fund established under Subsection (a) of
  18-18  this section and administered by the Department and the advisory
  18-19  council in accordance with rules adopted by the Department.  The
  18-20  assessments under this subsection are in addition to those provided
  18-21  for by Subsection (a) of this section.
  18-22        (e)  Notwithstanding any other law, the Department may assert
  18-23  a claim against a seller or <trust> depository that commits a
  18-24  violation of this Act that could result in a claim against the
  18-25  fund.
  18-26        Sec. 9.  OFFENSES.  (a)  A permit holder may not represent
  18-27  that a prepaid <preneed> funeral vendor is approved or otherwise
  18-28  chosen by the Department except with the following language:  "The
  18-29  Texas Banking Department regulates the sale of prearranged funeral
  18-30  contracts" and "The form of this contract has been approved by the
  18-31  Department."
  18-32        (b)  Except as provided by Subsection (c) of this section,
  18-33  any officer, director, agent, or employee of any seller
  18-34  <organization> subject to the terms of this Act who makes or
  18-35  attempts to make any contract in violation of this Act, or who
  18-36  refuses to allow an inspection of the seller's <organization's>
  18-37  records relating to the sale of prepaid funeral benefits, or who
  18-38  violates any other provision of this Act, or who is guilty of
  18-39  fraud, deception, misrepresentation or any other dishonest practice
  18-40  in sale of any contract subject to this Act, shall be punished by a
  18-41  fine of not less than $100 and not more than $500, or by
  18-42  imprisonment in the county jail for not less than one month and not
  18-43  more than six months, or by both such fine and imprisonment.  Each
  18-44  violation of any provision of this Act shall be deemed a separate
  18-45  offense and prosecuted individually.
  18-46        (c)  Any failure to deposit funds in compliance with this
  18-47  Act, or any withdrawal of funds in a manner inconsistent with the
  18-48  provisions of this Act, is an offense under Section 32.45, Penal
  18-49  Code.
  18-50        (d)  A depository or holder of funds designated under Section
  18-51  5 of this Act shall be held to the standard of duty of a fiduciary
  18-52  in holding, investing, and disbursing the funds.
  18-53        (e)  The Department may bring each such violation of this Act
  18-54  to the attention of the Attorney General of this state and it shall
  18-55  be the duty of the Attorney General to institute suit in the name
  18-56  of the State of Texas against such violator in any county in this
  18-57  state where such violation might occur.
  18-58        (f)  In addition to the penalties prescribed above, the
  18-59  Attorney General shall have the power and authority to institute
  18-60  quo warranto proceedings in a District Court of Travis County,
  18-61  Texas to forfeit the charter and right to do business of a
  18-62  corporation whose officer, director, agent or employee refuses or
  18-63  fails to correct a violation of this Act after such violation has
  18-64  been called to the attention of said officer, director, agent or
  18-65  employee by the Department or the Attorney General.  A period of 30
  18-66  days shall be considered sufficient time to correct such violation
  18-67  after notice from the Department or Attorney General.
  18-68        Sec. 10.  COLLECTION AND DISPOSITION OF MONEY.  (a)  Except
  18-69  as provided by this section, all <All> fees, penalties,  and
  18-70  revenues collected by the Department <department> shall be paid to
   19-1  the State Treasury, placed in the prepaid funeral account fund, and
   19-2  shall be expended as authorized by legislative appropriation.
   19-3        (b)  The Department shall pay funds received under an order
   19-4  of restitution to the injured party as ordered.
   19-5        (c)  Seized funds and premiums received on the disposition of
   19-6  related contracts shall be handled as provided by Section 4(g) of
   19-7  this Act.
   19-8        Sec. 10A <10a>.  APPLICABILITY TO INSURANCE CODE.  Nothing in
   19-9  this Act shall alter or affect any provisions of the Insurance Code
  19-10  of the State of Texas; provided however, that purchasers of
  19-11  contracts for prepaid funeral benefits from the same seller of such
  19-12  contracts shall constitute a lawful group for the issuance of a
  19-13  group contract of decreasing term life insurance by a life
  19-14  insurance company authorized to do a life insurance business in the
  19-15  State of Texas.  The amount of insurance relative to any particular
  19-16  purchaser shall at all times approximate the future unpaid balance
  19-17  of such contract for prepaid funeral benefits.  The seller of
  19-18  prepaid funeral benefits <benefit> contracts shall have an
  19-19  insurable interest in the life of any purchaser of such contract to
  19-20  the extent of any unpaid balance thereof, and the proceeds of any
  19-21  life insurance policy received by a seller of a prepaid funeral
  19-22  benefits <benefit> contract on the life of a purchaser of such
  19-23  contract shall be applied to the reduction or elimination of any
  19-24  unpaid balance thereof.  This section shall not be construed as
  19-25  having any effect on the funding of prepaid funeral benefits by
  19-26  other contracts of insurance as provided for in Section 1A <1a> of
  19-27  this Act.
  19-28        SECTION 2.  Subsections (b) and (e), Article 6.01, Title 79,
  19-29  Revised Statutes (Article 5069-6.01, Vernon's Texas Civil
  19-30  Statutes), are amended to read as follows:
  19-31        (b)  "Services" means work, labor, or services of any kind
  19-32  when purchased primarily for personal, family or household use and
  19-33  not for commercial or business use, and includes a maintenance or
  19-34  service contract or agreement or warranty, but does not include (i)
  19-35  the services, other than prepaid funeral benefits regulated by
  19-36  Article 548(b), Vernon's Texas Civil Statutes,  of a professional
  19-37  person licensed by the State except when those services are
  19-38  rendered in connection with the purchase of goods; or (ii) services
  19-39  for which the cost is by law fixed or approved by, or filed with or
  19-40  subject to approval or disapproval by the United States or the
  19-41  State of Texas, or any agency, instrumentality or subdivision
  19-42  thereof; or (iii) educational services provided by an accredited
  19-43  college or university or a primary or secondary school providing
  19-44  education required by the State of Texas or services of a
  19-45  kindergarten or nursery school; or (iv) any services which are
  19-46  authorized to be and are included in a contract subject to Chapter
  19-47  7 of this Subtitle; or (v) any medical or legal services.
  19-48        (e)  "Retail installment transaction" means any transaction
  19-49  in which a retail buyer purchases goods or services from a retail
  19-50  seller pursuant to a retail installment contract or retail charge
  19-51  agreement, as defined in this Article, which provides for a time
  19-52  price differential, as defined in this Article, and under which the
  19-53  buyer agrees to pay the unpaid balance in one or more installments,
  19-54  together with a time price differential.  The term includes
  19-55  transactions made pursuant to a retail credit card arrangement as
  19-56  defined in this Article.  The term also includes the sale of
  19-57  prepaid funeral benefits regulated by Article 548(b), Vernon's
  19-58  Texas Civil Statutes.
  19-59        SECTION 3.  Chapter 6, Title 79, Revised Statutes (Article
  19-60  5069-6.01 et seq., Vernon's Texas Civil Statutes), is amended by
  19-61  adding Article 6.12 to read as follows:
  19-62        Art. 6.12.  RATES FOR PREPAID FUNERAL BENEFITS REGULATED BY
  19-63  ARTICLE 548(b), VERNON'S TEXAS CIVIL STATUTES.  Prepaid funeral
  19-64  benefits regulated by Article 548(b), Vernon's Texas Civil
  19-65  Statutes, may be financed only at rates authorized by Article 1.04
  19-66  of this title.
  19-67        SECTION 4.  (a)  A fund, investment, security, or contract
  19-68  included in a plan approved before the effective date of this Act,
  19-69  by the Banking Department of Texas under Section 1a, Chapter 512,
  19-70  Acts of the 54th Legislature, 1955 (Article 548b, Vernon's Texas
   20-1  Civil Statutes), may continue in effect.  Any funds paid pursuant
   20-2  to such a plan under a contract entered into before, on, or after
   20-3  the effective date of this Act shall continue to be handled in
   20-4  accordance with that approved plan, except that those funds may be
   20-5  invested in accordance with Section 5A, Chapter 512, Acts of the
   20-6  54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
   20-7  Texas Civil Statutes), as amended by this Act.
   20-8        (b)  Sections 1(h) and (i), Chapter 512, Acts of the 54th
   20-9  Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
  20-10  Civil Statutes), as added by this Act, do not apply to a plan
  20-11  approved before the effective date of this Act, by the Banking
  20-12  Department of Texas under Section 1a, Chapter 512, Acts of the 54th
  20-13  Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
  20-14  Civil Statutes).
  20-15        SECTION 5.  This Act takes effect September 1, 1993.
  20-16        SECTION 6.  The importance of this legislation and the
  20-17  crowded condition of the calendars in both houses create an
  20-18  emergency and an imperative public necessity that the
  20-19  constitutional rule requiring bills to be read on three several
  20-20  days in each house be suspended, and this rule is hereby suspended.
  20-21                               * * * * *
  20-22                                                         Austin,
  20-23  Texas
  20-24                                                         May 11, 1993
  20-25  Hon. Bob Bullock
  20-26  President of the Senate
  20-27  Sir:
  20-28  We, your Committee on Economic Development to which was referred
  20-29  H.B. No. 2499, have had the same under consideration, and I am
  20-30  instructed to report it back to the Senate with the recommendation
  20-31  that it do not pass, but that the Committee Substitute adopted in
  20-32  lieu thereof do pass and be printed.
  20-33                                                         Parker,
  20-34  Chairman
  20-35                               * * * * *
  20-36                               WITNESSES
  20-37                                                  FOR   AGAINST  ON
  20-38  ___________________________________________________________________
  20-39  Name:  Catherine A. Ghiglieri                                  x
  20-40  Representing:  Texas Dept. of Banking
  20-41  City:  Austin
  20-42  -------------------------------------------------------------------
  20-43                                                  FOR   AGAINST  ON
  20-44  ___________________________________________________________________
  20-45  Name:  Philip R. Bishop                          x
  20-46  Representing:  Mt. Olivet Cemetery Assn.
  20-47  City:  Ft. Worth
  20-48  -------------------------------------------------------------------
  20-49  Name:  Robert D. Gordon                          x
  20-50  Representing:  TX Cemeteries Assn.
  20-51  City:  Arlington
  20-52  -------------------------------------------------------------------
  20-53  Name:  Jan Parker                                x
  20-54  Representing:  Equity Corp. Int'l.
  20-55  City:  Burnet
  20-56  -------------------------------------------------------------------
  20-57  Name:  John Cathey                               x
  20-58  Representing:  TFDA
  20-59  City:  Austin
  20-60  -------------------------------------------------------------------
  20-61  Name:  Brian Davis                               x
  20-62  Representing:  Directors Investment Group
  20-63  City:  Austin
  20-64  -------------------------------------------------------------------
  20-65  Name:  Norman C. Brady                           x
  20-66  Representing:  Service Corp. International
  20-67  City:  Houston
  20-68  -------------------------------------------------------------------
  20-69  Name:  Johnnie B. Rogers, Jr.                    x
  20-70  Representing:  N. American Death Care Allianc
   21-1  City:  Austin
   21-2  -------------------------------------------------------------------
   21-3  Name:  D'Ann Johnson                                           x
   21-4  Representing:  Texas Dept. of Banking
   21-5  City:  Austin
   21-6  -------------------------------------------------------------------
   21-7  Name:  Gaylord Armstrong                         x
   21-8  Representing:  TX Funeral Directors Assn.
   21-9  City:  Austin
  21-10  -------------------------------------------------------------------