OFPlCE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

September 1,200O 

Mr. Randall S. James 

Commissioner 

Texas Department of Banking 

2601 North Lamar Boulevard 

Austin, Texas 787054294 

Opinion No. JC-0279 

Re: Authority of individual designated to handle 

disposition arrangements for a decedent to modify 

the terms of a prepaid funeral benefits contract, 

and related questions (RQ-0215-JC) 

Dear Commissioner James: 

You ask whether and to what extent section 711.002(g) of the Texas Health and Safety Code 

prevents the person handling disposition arrangements for a decedent from changing the funeral 

arrangements specified in a prepaid funeral benefits contract. Section 711.002(g) of the Health and 

Safety Code states that a person may provide written directions for the disposition of his or her 

remains in a prepaid funeral contract, among other written instruments, and that these directions may 

be modified or revoked only in a signed writing. You ask to what extent section 711.002(g) of the 

Health and Safety Code limits changes in the funeral arrangements specified in a prepaid timeral 

benefits contract if the decedent signed the contract and is the named beneficiary. Section 

711.002(g) applies only to changes in directions for “disposition” of the decedent’s remains that are 

included in a prepaid funeral services contract (or other written instrument), that is, directions for 

burial or an alternative, such as cremation, whereby the remains reach their final resting place. If 

the decedent is the named beneficiary but did not purchase and sign the contract, section 711.002(g) 

does not apply to changes of the disposition instructions found in a prepaid funeral services contract. 

The application of section 7 11.002(g) is not affected by the fact that the contract is not fully paid at 

the time of the purchaser/beneficiary’s death. 

Chapter 154 of the Texas Finance Code vests in the Texas Department of Banking (“the 

Department”) regulatory power over the business of selling prepaid funeral services and 

merchandise. Sexton v. Mount Olivet Cemetery Ass ‘n, 720 S.W.2d 129, 132 (Tex. App.-Austin, 

1986, writ refd n.r.e.). Sellers of prepaid funeral benefits must hold a permit issued by the 

Department and must comply with provisions designed to protect the funds received from 

purchasers. TEX. FIN. CODE ANN. ch. 154, subchs. C. (permit requirement); E. (insurance-funded 

prepaid funeral benefits); F. (trust-funded prepaid funeral benefits) (Vernon 1998 & Supp. 2000). 

Sales contracts for prepaid funeral benefits must be on a form approved by the Department, and must 

“state the details of the prepaid funeral benefits to be provided, including a description and 

specifications of the material used in the caskets or grave vaults to be furnished.” Id. $ 154.15 1 

(Vernon 1998). “Prepaid funeral benefits” means “prearranged or prepaid funeral or cemetery 
Mr. Randall S. James - Page 2 (K-0279) 

services or funeral merchandise, including an alternative container, casket, or outer burial container.” 

Id. 5 154.002(g) (Vernon Supp. 2000). It does not include a “grave, marker, monument, tombstone, 

crypt, niche, plot, or lawn crypt” unless it is sold in contemplation of trade for a funeral service or 

funeral merchandise subject to chapter 154. Id. “Funeral service” is defined as a service sold or 

offered for sale on a preneed basis that may be used to: 

(A) care for and prepare a deceased human body for burial, 

cremation, or other final disposition; and 

(B) arrange, supervise, or conduct a funeral ceremony or 

the final disposition of a deceased human body. 

Zd. 5 154.002(12). 

You first inquire about the extent to which section 711.002(g) ofthe Health and Safety Code 

bars a person handling disposition arrangements from changing the funeral arrangements specified 

in a matured prepaid funeral benefits contract if the decedent, as purchaser, signed the contract and 

is the named beneficiary. You state that a “matured” contract is a contract that has become 

performable due to the death of the beneficiary. Request Letter at 2 n.3.’ 

Section 711.002 of the Health and Safety Code provides in part as follows: 

(a) Unless a decedent has left directions in writing for the 

disposition of the decedent’s remains as provided in Subsection (g), 

the following persons, in the priority listed, have the right to control 

the disposition, including cremation, of the decedent’s remains : 

(1) the person designated in a written instrument 

signed by the decedent; . 

. 

(g) A person may provide written directions for the 

disposition, including cremation, of the person’s remains in a will, a 

prepaid funeral contract, or a written instrument signed and 

acknowledged by such person. The directions may govern the 

inscription to be placed on a grave marker attached to any plot in 

which the decedent had the right of sepulture at the time of death and 

in which plot the decedent is subsequently interred. The directions 

may be modified or revoked only by a subsequent writing signed and 

‘Letter from Randall S. James, Commissioner, Texas Department of Banking, to Honorable John Comyn, 

Attorney General of Texas (April 3.2000) (on tile with Opinion Committee). 
Mr. Randall S. James - Page 3 (JC-0279) 

acknowledged by such person. The person otherwise entitled to 

control the disposition of a decedent’s remains under this section 

shall faithfully carry out the directions of the decedent to the extent 

that the decedent’s estate or the person controlling the disposition are 

financially able to do so. 

TEX. HEALTH & SAFETY CODE ANN. § 711.002(a), (g) (Vernon Supp. 2000) (emphasis added). 

Section 711.002 of the Health and Safety Code enables a person to control the disposition 

ofhis remains. This provision addresses changes in prepaid funeral contracts only to the extent that 

they govern “the disposition of the person’s remains.” The effect of section 711.002(g) on the 

modification of such contracts depends on the meaning of “the disposition of the person’s 

remains.” 

Neither the phrase “disposition of the person’s remains” nor the term “disposition” are 

defined in chapter 711 of the Health and Safety Code. Words and phrases are to be read in context 

and construed according to the rules of grammar and common usage. TEX. GOV’T CODE ANN. 

§ 3 11 ,011 (a) (Vernon 1998). If words or phrases have acquired a technical or particular meaning, 

whether by legislative definition or otherwise, they shall be construed accordingly. Id. 5 3 11 .Ol l(b). 

We look at this phrase in the context of section 711.002. Subsection 711.002(a) provides that, ifthe 

decedent has not left written directions, specific persons “have the right to control the disposition, 

including cremation, of the decedent’s remains.” (Emphasis added.) Subsection 711.002(g) of the 

Health and Safety Code states that “[a] person may provide written directionsfor the disposition, 

including cremation, oftheperson’s remains” in a will, a prepaid funeral contract, or another signed, 

written instrument. (Emphasis added.) Section 711 .OOl of the Health and Safety Code defines 

“interment” as “the permanent disposition of remains by entombment, burial, or placement in a 

niche.” Thus, “disposition” includes the burial, entombment, or cremation of the body. TEX. 

HEALTH&SAFETY CODE ANN. 5 711.001(16) (Vernon Supp. 2000). 

“Disposition” is used in the same sense in other statutes. Chapter 651 of the Occupations 

Code, which regulates funeral directing, defines “funeral service” as a service performed for the care 

and preparation of a deceased person “for burial, cremation, or other disposition.” TEX. OCC. CODE 

ANN. 5 651.001(8) (Vernon 2000) (emphasis added). The statute defines additional terms in 

connection with preparation of the remains “for burial, cremation, or other disposition.” See id. 

$5 651.001(4) (funeral director); 651.001(7) (funeral merchandise) (emphasis added). Disposition 

of a body also includes the place of burial. See generally Frank D. Wagner, J.D., Annotation, 

Enforcement of Preference Expressed by Decedent as to Disposition of his Body After Death, 54 

A.L.R.3d 1037 (1973). Moreover, in discussing a county’s disposition of a pauper’s remains, we 

have determined that “disposition” includes burial, cremation, or donation of the body to a medical 

facility. Tex. Att’y Gen. Op. JC-228 (2000) at 5. We conclude that in section 711.002(g) of the 

Health and Safety Code “disposition” means burial or an alternative, such as cremation, whereby 

human remains attain their final resting place. Accordingly, directions for disposition included in 

the decedent’s contract for prepaid funeral services (i.e., for burial, cremation or entombment) may 
Mr. Randall S. James - Page 4 (JC-0279) 

be modified or revoked only by a subsequent writing signed and acknowledged by the decedent. 

TEX. HEALTH & SAFETY CODE ANN. 5 711.002(g) (Vernon Supp. 2000). Section 711.002(g) does 

not apply to other purchases of funeral merchandise or services that may be covered by a prepaid 

funeral services contract. 

With respect to the first question, you ask whether it makes a difference that the contract is 

not fully paid and has a balance due at the time of the purchaserbeneficiary’s death. Request Letter 

at 2. Section 711.002 provides that a person’s written directions in a will, a prepaid funeral contract, 

or a written instrument signed and acknowledged by that person as to the disposition of his or her 

remains “may be modified or revoked only by a subsequent writing signed and acknowledged by 

such person.” TEX. HEALTH & SAFETY CODE ANN. 5 711.002(g) (Vernon Supp. 2000) (emphasis 

added). It does not authorize changes in the disposition of the person’s remains merely because the 

prepaid funeral contract has a balance due at the time of the purchaser’s death. The prepaid funeral 

contract is not necessarily the only source of funds to pay for the beneficiary’s funeral, because 

funeral expenses are also claims upon a decedent’s estate. TEX. PROB. CODE ANN. 5 3(c) (Vernon 

Supp. 2000). As we have stated, however, section 711.002(g) of the Health and Safety Code does 

not apply to all purchases of funeral merchandise or services that may be covered by a prepaid 

funeral services contract. Thus, section 711.002(g) does not apply to certain changes in prepaid 

funeral contracts, such as the number of limousines provided for relatives of the deceased. 

You next ask about the effect of section 711.002(g) on modifications of prepaid funeral 

contracts if the decedent is the named beneficiary but did not purchase and sign the contract, 

Request Letter at 2. We answer this question by reading the reference to prepaid funeral contracts 

in its context in section 711.002. See TEX. GOV’TCODEANN. 5 311.01 l(a) (Vernon 1998). Section 

771.002 refers to written directions for disposition of the decedent’s remains that have been signed 

by the decedent. See TEX. HEALTH& SAFETY CODE ANN. 5 711.002(a) (Vernon Supp. 2000) (listing 

persons who have right to control disposition of decedent’s remains “[ulnless a decedent has left 

directions in writing for the disposition of the decedent’s remains as provided in Subsection (g)“). 

Such written directions may be modified or revoked only by a “subsequent writing signed and 

acknowledged by such person.” Id. 5 711.002(g). The written directions must be left by the 

decedent and must be as provided by subsection 711.002(g), which states that aperson may provide 

written directions for the disposition of his or her remains “in a will, a prepaid funeral contract, or 

a written instrument signed and acknowledged by such person.” A will is ordinarily signed by the 

testator in person or by another person for him by his direction. TEX. PROB. CODE ANN. § 59 

(Vernon Supp. 2000). A ‘written instrument signed and acknowledged” by the person clearly bears 

the decedent’s signature. In our opinion, only a prepaid funeral contract signed by the decedent is 

subject to the restrictions of subsection 711.002(g). In this way, we read the reference to “prepaid 

funeral contract” consistently with its immediate context. Moreover, aperson may modify or revoke 

written directions for disposition of his or her remains only “by a subsequent writing signed and 

acknowledged by such person.” TEX. HEALTH & SAFETY CODE ANN. 5 711.002(g) (Vernon Supp. 

2000). It is consistent with this provision to conclude that the prepaid funeral contract subject to 

section 711.002(g) must have been signed by the person who is the beneficiary of the contract. 
Mr. Randall S. James - Page 5 (JC-0279) 

You fourth question is as follows: 

If the purchaser of a prepaid funeral benefits contract is the contract 

beneficiary, must he or she comply with the acknowledgment 

requirements of 5 711.002(g) in order to cancel or modify the 

contract? 

Request Letter at 2. You inquire about circumstances where the beneficiary of the prepaid funeral 

benefits contract has signed as purchaser so that the contract is subject to section 711.002(g) of the 

Health and Safety Code. The beneficiary of the contract is not required to comply with the 

acknowledgment requirements of section 711.002(g) in order to change any provisions of the 

contract except those that direct the “disposition” of the remains as defined in answer to your first 

question. 
Mr. Randall S. James - Page 6 (JC-0279) 

SUMMARY 

Pursuant to section 711.002(g) ofthe Texas Health and Safety 

Code, a person may provide written directions for the disposition of 

his or her remains in a signed, written instrument, including a prepaid 

funeral contract, and these directions may be modified or revoked 

only in a signed writing. Section 711.002(g) applies only to changes 

in directions for disposition of the decedent’s remains, that is, 

directions for burial or an alternative, such as cremation, whereby the 

remains reach their final resting place, and does not apply to other 

goods and services purchased under a prepaid funeral services 

contract. If the decedent is the named beneficiary but did not 

purchase and sign the prepaid funeral services contract, section 

711.002(g) does not apply to changes of the disposition instructions 

found in a prepaid funeral services contract. The application of 

section 711.002(g) is not affected by the fact that the contract is not 

fully paid at the time of the purchaseriheneticiaty’s death. 

ANDY TAYLOR 

Attorney General of Texas 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General - Opinion Committee