Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 7. BANKING AND SECURITIES Part II. Texas Department of Banking Chapter 25. Prepaid Funeral Contracts 7 TAC sec.25.20 (Editor's note: The following document was filed by the Texas Department of Banking to appear in the January 1, 1993, issue of the Texas Register. Due to an error by the Texas Register, it was not published. The earliest date of adoption is February 19, 1993.) The Texas Department of Banking proposes new sec.25.20 to provide procedures for making a claim against the Guaranty Fund in connection with the sale of prepaid funeral contracts and to provide guidelines for determining the eligibility for payment of submitted claims. Ann Graham, General Counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The Department anticipates spending an average of eight hours of staff time in processing each claim made against the Guaranty Fund. Ms. Graham has determined that the proposed rule will have no local employment impact. Ms. Graham, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to guarantee performance by sellers of prepaid funeral contracts of their obligations to purchasers. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Ann Graham, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294. The new rule is proposed under Texas Civil Statutes, Article 548b, sec.2 and sec.8A (Vernon Supplement 1992), which provide that the Department is authorized to prescribe reasonable rules concerning all matters incidental to the enforcement and orderly administration of Article 548b and to prescribe rules concerning maintaining a fund to guarantee performance by sellers of prepaid funeral contracts of their obligations to purchasers of prepaid funeral contracts. sec.25.20. Guaranty Fund Claims Filing Procedures and Eligibility for Payment Standards. (a) Who may make a claim. Unless expressly precluded from making a claim against the Guaranty Fund in subsection (b)(1), (2), or (3) of this section, the following parties and their heirs, successors, and assignees may make a claim against the Guaranty Fund: (1) purchasers of prepaid funeral service and merchandise contracts from licensed permit holders; (2) those selected to assume obligations and liabilities of a cancelled permit holder in the event they assumed those obligations and liabilities under a contract that expressly authorizes them to make a claim against the Guaranty Fund. (b) Who cannot make a claim. All other claims, including claims submitted by the following parties and their heirs, successors, and assignees, will be denied: (1) those who hold a contract that matured prior to the date of origin of the Guaranty Fund; (2) those who purchased prepaid funeral goods and services from a vendor that did not obtain a prepaid funeral contract permit issued by the Department of Banking; and (3) those who purchased prepaid funeral goods and services under a plan such as the one litigated in the case of Sexton v. Mount Olivet Cemetery Association
    , 720 S.W. 2d 129 (Tex. App.-Austin 1986)(specifically including, but not limited to, any prepaid funeral goods and services purchased from Mount Olivet Cemetery Association). (c) Any claim submitted against either the Guaranty Fund or against any seized prepaid funeral contract funds by current or former prepaid funeral contract permit holders or their successors shall not be honored until any money that they or their predecessors owe to the Guaranty Fund or to any prepaid funeral contract funds has been offset against the claim. This provision shall not apply to a successor permit holder that purchased contracts of a cancelled permit holder from the Commissioner. Claims by such a successor permit holder shall be governed by the contract under which assets and liabilities of the cancelled permit holder were assumed. (d) Claims by individual purchasers will be handled on a case-by-case basis. (e) Claims Approval Process and Right to Reconsideration. (1) Delegation of Authority to Commissioner. The Guaranty Fund Advisory Council may delegate to the Commissioner the authority to settle and determine all claims against the Guaranty Fund up to such amount and with such restrictions as the Council may from time to time determine. These limits and restrictions shall be reflected in the minutes of the meetings of the Council. (2) Appeals to the Guaranty Fund Advisory Council. Unless an appeal is expressly waived in a settlement agreement, any action by the Commissioner approving, modifying, or denying claims against the Guaranty Fund may be appealed to the Guaranty Fund Advisory Council by submitting a request for review to the Guaranty Fund Advisory Council within 30 days of receipt of notice of the Commissioner's action; otherwise the action of the Commissioner shall be final and not subject to review. Such request shall be addressed to the Guaranty Fund Advisory Council in care of the Commissioner and filed with the Commissioner on or before the close of business on the last day of the 30-day period. (3) Hearings on claims. Either the Commissioner or the Guaranty Fund Advisory Council may direct that an administrative hearing be held on any claim in order to clarify the facts or law pertinent to its disposition. No claim shall be reduced or denied without affording the claimant an opportunity for a hearing; provided, however, that if a hearing has been held, or offered by the Commissioner and waived by the claimant, the Guaranty Fund Advisory Council need not offer another opportunity for a hearing. All hearings shall be conducted in compliance with the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. (f) Information required to be supplied by a claimant. A claimant shall provide the following information: (1) a copy of the prepaid funeral contract and any amendments thereto; (2) evidence of the status of the account, including whether the account is paid in full, the amount owed thereon and whether payments are current or delinquent; (3) name of the seller; (4) date of purchase; (5) a certified copy of the death certificate of the purchaser or assignee, if applicable; (6) a notarized statement setting forth any special circumstances that may bear on the claim; and (7) any other information requested by the Department. (g) Information to be supplied by the Department in connection with a claim submitted by a permit holder or its legal representative. (1) The Department shall supply the Guaranty Fund Advisory Council with all requested information pertinent to the claim; and (2) The Department shall provide the Guaranty Fund Advisory Council with its recommendations and analysis of the claim. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 18, 1992. TRD-9216826 Ann Graham General Counsel Texas Department of Banking Earliest possible date of adoption: February 19, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.70 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Railroad Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Railroad Commission of Texas proposes the repeal of s3.70 (Statewide Rule 80), concerning Forms Required. Section 3.70 set forth forms to be filed by appropriate know what and when to file. What and when to file changes frequently due to amendment of forms and rules; when they do change, a rule change is necessary to keep sec.3.70 updated. Since the primary purpose of sec.3.70 is informational and since it has no legal effect on its own, i.e., the particular rules and forms establish the legal filing requirements, not sec.3.70, it would be better for the information contained in sec.3.70 to be placed when in an appendix to the Oil and Gas Statewide Rulebook. In this way, changes in what and when to file could be communicated to the public simply by republishing the appendix versus going through a rulemaking process. The existing language in sec.3.70 was adopted by the commission on September 9, 1985, and published in the July 19, 1985, issue of the Texas Register (10 TexReg 3554). Rita E. Percival, assistant systems analyst for the Oil and Gas Division, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Jim McDougal, hearings, examiner, also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be a more efficient communication of commission procedural changes to the public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments on the proposal may be submitted to Jim McDougal, Railroad Commission of Texas, PO Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. The repeal is proposed under the Texas Natural Resources Code, sec.81.052, which provides the commission with the authority to adopt all necessary rules for governing and regulating persons and their operations under the jurisdiction of the commission. sec.3.70. Forms Required. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 21, 1992. TRD-9317585 Nolan Ward Hearings Examiner, Legal Division-General Law Railroad Commission of Texas Earliest possible date of adoption: February 19, 1993 For further information, please call: (512) 463-7051