December 21, 1964 

Honorable Blll.Iofland 

,County Attorney 

.Oplnion No. C- 365 

Rockwall County Courthouse Re: Whether the buslRockwall, Texas ness of a broker 

of cemetery lots 

Is regulated by 

Articles 1.01 

et seq., Article 

6?5p,vA;tp 

or A&&ld j:05b, 

Dear Mr.'Iafland: V.P.CI 

You hiie requested an opinion from this office 

on the above captioned question. 

Your brief, from which we quote, describes the 

questioned enterprise as follows: 

'It haa...come tciour'attentlon that there 

are large'gumbers of-persons ti .thls State 

who are unable to, dlspose,of cemetery lots~ 

which they no ,longer need as a result of 

having moved or havlng~ been transferred. 

The group consists principally of persons 

who purchase cemetery lots near their homes 

and who, on moving, are prevented from reselllng their lots to the cemetery'from which 

they were orlglna$ly purchased because of 

cemetery regulations prohibiting repurchase 

of cemetery lots once.sold, or because the 

price: offered for repurchase is nominal. 

We are further Informed that many of these 

people would exchange their lots with one 

another or offer them for sale if there were 

some means by which they could so dispose 

of' their property. We have received further 

Information that a business has been formed 

for the purpose of acting as an intermediary 

for such persona." 

-1729- 
Honorable Bill Lofland, page 2 (c-365 ) 

You have advised that the enterprise in qukstion 

Involves Individuals and not a corporation, therefore 

the Business Corporation Act, Article 1.01, et seq., 

Vernon's Civil Statutes, Is not applicable. 

Any individual wlshlng to transact the business 

of operating a cemetery must do so through a corporation 

organized under Article 912a, Vernon's Civil Statutes. 

Art. 912a, Sec. 5. V.C.S. We have concluded, however, 

that a broker of cemetery lots will not be transacting 

such business. 

A broker Is a special agent engaged by others 

to negotiate contracts for the sale or lease of real 

estate or other property. n Lumber Co. v. Conn, 

20 S.W.2d 388 (TexiClv.App. 29 error dlsm.) An 

agent's acts, within the scope'oi hls.authorlty, are 

the acts of his principal. 2 Tex.Juti. 2d 437, Agency, 

Sec. 2. 

Under the factsin this situation, the broker 

would be a special agent and as such, his acts would be 

the acts of the burial lot owners. 

'It Is our oplnldn that a broker of cemetery~ 

lots would not be transac'tlng any of the business of 

operating a cemetery and thus would not be regulated 

under Article gl2a, Vernon's Civil Statutes. 

However, the enterprise In question would fall 

under the regulatlons,of the Real Estate GLcense Act, 

Art. 6573a, Vernon's Civil Statutes, and under the 

penal provlslons of Art. 705b, Sec. 1, Vernon's Penal 

Code. 

Section 4 of Art. 6573a, Real Estate License Act, 

Vernon's Civil Statutes, reads: 

"Sec. 4. The following terms shall, 

unless the context otherwise indicates, have 

the following .meaning: 

"(1) The term 'Real Estate B?oker' 

shall mean and include any person who, for 

another or others and for compensatlo~ or 

with the Intention or In the expectation 

or upon the promise of receiving or collecting compensation: 

-1730- 
Honorable Bill Lofland, page 3 (~1365 ) 

"(a) Sells, exchanges, purchases:, rents 

or leases real estate; 

"(b) Offers tb sell, exchange, purchase, rent or lease real estate; 

"(c) Negotiates, or offers or attempts 

or agrees to negotiate the'sale, exchange, 

purchase rental or.leaslng..of+re@l estate; 

"(d) Lists or offers or attempts or 

agrees to list real estate for sale, rental, 

lease, exchange or trade; 

**+ 

"(I) Advertises or holds himself out 

as being engaged In the business of buying, 

selling, exchanging, renting or leasing 

real estate; 

cur&(3 pEospects 

rocures or assists In the procalculated to result' 

In the sale, exchanie, leasing or rental 

of real estate; 

"(2) The term 'Real Estate Broker' 

shall also include any person employed 

by or on behalf of the owner or owners.of 

real estate at a stated salary or upon a 

commission or upon a salary and commission 

basis or other compensation to sell, 

exchange or offer for sale such real estate 

or any part thereof who shall sell, exchange 

or offer or attempt ol: agree, td negotiate 

the sale or exchange of any lot or parcel 

of real estate; provided, however, If 

the owner of lots or~other parcels 1s 

engaged .ln the business of buying, selling, 

exchanging, leasing, or renting a, property~ 

and holding himself out as a full or parttime broker In real estate, then,such person employed bx said owner may be ~llcens&d 

as a salesman. 
Honorable Bill Lofland, page 4 (c-365 ) 

It is unlawful for any person to perform any of 

the above acts without obtaining a license as provided 

for by the Act. Art. 6573a, Sec. 1, V.C.S. (Real Estate 

License Act). 

While an Interest In a burial lot has been described 

as a fee limited in purpose,'an easement, or a license, 

It Is, In any event, an Interest In real estate. 

vs. Paine, 319 S.W.2d 653 (Mo.Sup., 1959); Oak Par l?FikF 

tery vs. Donaldson, 148 S.W.2d 994 (Tex.Clv.App., l'Tsa;- 

error dl am., u g. car.). 

It Is our opinion that the Interest In a burial 

lot la real estate as contemplated by the statute; that 

the transactions of ;? broker.of cemetery lots cleakly 

fall within the definition of a Real Estate Broker, and 

as such the enterprise la subject to the regulations 

under the Real Estate License Act. 

We further conclude that a broker of cemetery 

lots would be subject to Art. 705b-1, Vernon's Penal 

Code, which reads: 

"It shall be unlawful 'for any person, . . . 

agent, or employee thereof, to sell, offer 

for sale, or advertise any cemetery plot 

or the exclusive right of sepulture therein under the representation that such plot 

Is -under perpetual care, before a perpetual 

care fund as provided for by law has been 

established for the c'emetery In which such 

property so sold, offered for sale, or 

advertised Is situated; or to engage In or 

transact any of the businesses of a cemetery 

within this State other than. by means of a 

corporation organized for such purpose, 

except as othertilse provided by law; . . . 

or to sell or offer for sale or advertise 

for sale cemetery lots or the exclusive 

right of sepulture therein for purposes of 

speculation or Investment; or to represent 

through advertising or printed matter that 

a retail department will later be established 

for the resale of cemetery lot purchasers 

that specific Improvements will be made In 

the cemetery or that specific merchandise. 

-1732- 
Honorable Bill Lofland, page 5 (c-365 1 

or service wlll be furnished the lot owner, 

unless adequate funds or reserves have been 

created by the operator of the,cemetery 

for each such purpose; . . . . Any person 

. . . violating any of the provisions of 

this Section shall be guilty of misdemeanor 

and on conviction thereof shall be fined 

not more than Five Hundred Dollars ($500) 

or, If a person, imprisoned not exceeding 

six (6) months In a county Jail, or punished 

by both such fine and imprisonment. . . . 

'and for such purposes venue Is hereby conferred 

upon the.Dlstrlct Courts In this State." 

Any violation of this statute would subject such 

person to the penalties and punishment prescribed therein. 

------- SUMMARY 

1. A broker of cemetery lots Is not 

subject to the regulations of Art. 912a, 

Vernon's Civil Statutes. 

A broker of cemetery lots la 

subje% to Art. 6573a the Real Esta,te 

License Act, Vernon~s'Clvll Statutes, 

and Art. 705b, Sec. 1, Vernon's Penal 

Code. 

Very truly yours, 

WAQQONRR CARR 

Attorney' Qeneral of Texas 

CFV:ss 

: 

-1733- 
Honorable Bill Lofland, page 6 (c-365 ) 

APPROVED: 

OPINION COMMITTEE 

W. V. Qeppert, Chairman 

J. Qordon Zuber 

V. F. Taylor 

Llnward Shivers 

Charles Swarmer 

APPROVEDFOR !IliE ATTORNEYQENERAL 

By: Stanton Stone 

-1734-