E ORNEY GENERAL .‘., “: “’ 

OF TEXAS 

W’ILL WILSON 

ATI’OXNEY GENE-I. 

August 11, 1960 

Hon. J. M. Falkner, Commissioner 

Department of Banking 

Capital National Bank Building 

Austin 14. Texas 

Dear Mr. Falkner: 

Opinion No. WW-90,2 

Re:: Whether a proposed contract 

for use in connection with 

sales of funeral merchandise 

requires the oeller to obtain 

a permit from the Ranking 

Department as provided by 

Article 548b, V.C.S. 

You have requested an opinion of this office as to whether a 

specific, proposed contract, attached to your opinion request, falls 

within the purview of Article 548b, V.C.S. 

The latter mentioned statute, in Section 1 thereof, provides: 

“Any. . .corporation. . . desiring to sell 

prearranged or prepaid funeral services or 

funeral merchandise (including caskets, grave 

vaults, and all other articles of merchandise 

incidental to a funeral service) in this State 

under a sales contract providing for 

burial or funeral benefit.8 or merchan 5+ sse o be 

delivered at an undetermined future date depen- 

&nt upon the death of the contractmg p 

‘(hereinafter called ‘prepaid funtrrtbene 

shall obtain a permit from the State Ranking 

Department authorizing the transaction of this 

type of business before entering into any such 

contract.” (Emphasis supplied) 

It is to be noted that the statute only concerns itself with funeral 

or burial merchandise or services “to be delivered at an undetermined 

future date dependent upon the death of the‘contracting party.” It is the 

opinion of this Department that the terms of delivery and the natur6 of 

the contract are not such that the merchandise and service6 are to be 

delivered in such a manner. 

This statute was construed in the case of Falkner, et al, v. Memo- 
.c 

Hon. J. M. Falkner. page 2 (WW-902) 

rial Garden6 AssOCiation, et al, 298 S.W.Ld 954 (Tex.Civ.App. 1957, 

err. ref., n.r.e.) 

It is to be noted that the items in Section II of the proposed contract which is the subject matter of your opinion request are identtial 

to certain of the items in the contract involved in the Falkner case, 

supra. (See Page 937 of opinion). However, the proposed contract 

does not include the sale of interment services such as the opening 

and closing of graves, the use of a chapel tent. lowering devices, 

greens, chair6 and other equipment that is usually provided in a 

‘graveside scrvfce. Furthermore. the proposed contract, although 

providing for the sale of companionate memorials, individual grave 

markers and family memorials, does not provide that these grave 

marker6 or memorials shall be inscribed with the date of death, 

These omitted.features were included in the contract that was the 

subject matter of the Falkner decision and were material considerations upon’the part of the Court in’holding that the contract 

construed fell within the purview of Article 548b. 

There is ad additional distinction from the Falkner case. 

There the contract provided “That at any time afkrrcceibt of the 

full sum 6+ out above, upon request of the Purchaser, his heir6,or 

assigns, it’will deliver to the Purchaser, his heirs or assigns, th6 

above items enumerated and designated a6 purchased, subject to the 

following terms and conditions:. . .” By contrast, the instant contract 

provides for a definite schedule of paytihnts in the event that the 

purchaser desire6 to pay on the installment plan hnd further brOvide6 

in Section V(b) for delivery of the merchandise (no services are sold 

under this contract), anytime after payment, but not in excess of 90 

days. after the payment of the final installment providing that the 

vendor may waive requirement of full payment 86 a condition precedent to delivery. 

Accordingly, it is the opinion of this Departmmt th8t the 

salient features of the contract in question when construed together, 

manifestly demonstrate that the proposed contract dO66 not fall within the purview of Article 548b, V.C.S.; thus. 6 permit would not be 

required from the Banking Commissioner nor would tk contract 

require the Banking Commissioner’s apprwal. 

SUMMARY 

The proposed ‘contract for 66t d funersl 

or burial merchandi6e. attached to the epinion 
Han, J. M. Falkner, page 3 (WW-802) 

request, doe6 not fall Within the pUrVi6W of 

Article 548b. V.C.S. 

Respectfully submitid. 

WILL WILSON 

Attorney General of Term6 

RVL/pe 

APPROVED: 

OPINION COMMITTEE: 

Gordon C. Cass. Chairm6n 

Iola Wilcm 

J. c. Davis 

Wallace P. Finfrock 

REVIEWED FOR THE ATTORNEY GENEkAL 

BY: 

Leonard Passmore