## GENERAL
.‘., “:“’ E ORNEY

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 offuneral 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 towhether a specific, proposed contract, attached toyour opinion request, falls within the purview ofArticle 548b, V.C.S.

The latter mentioned statute, in Section 1thereof, 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 5+ burial or funeral benefit.8 

### or merchan sse obe delivered at an undetermined future date depen- &nt upon the death ofthe contractmg p ‘(hereinafter called ‘prepaid funtrrtbene shall obtain a permit from the State Ranking Department authorizing the transaction ofthis type ofbusiness before entering into any such contract.” (Emphasis supplied) Itis 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 ofthe‘contracting party.” Itis the opinion ofthis 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.) Itis to be noted that the **items** in Section II ofthe proposed contract which is the subject **matter** ofyour opinion request are identtial to certain ofthe items in the contract involved in the Falkner case, supra. (See Page 937 of opinion). However, the proposed contract does not include the sale ofinterment services such as the opening and closing ofgraves, the use ofa chapel tent. lowering devices, greens, chair6 

### andother 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 ofdeath, These omitted.features were included in the contract that 

### was the subject **matter** ofthe Falkner decision and were material considerations upon’the part 

### ofthe Court in’holding that the contract construed fell within the purview 

### ofArticle 548b. There is ad additional distinction from the 

### Falkner case. There the contract provided “That at any time afkrrcceibt 

### ofthe full sum **6+** outabove, upon request 

### ofthe 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 ofpaytihnts in the event that the purchaser desire6 to pay onthe installment plan hndfurther brOvide6 in Section V(b) for delivery ofthe merchandise (no 

### services are sold under this contract), anytime 

### after payment, but not in excess of 90 days. after the payment ofthe final installment providing that the vendor may waive requirement of

### full payment 86 a condition precedent to delivery. Accordingly, it is the opinion ofthis Departmmt th8t the salient features ofthe **contract** in question when construed together, manifestly demonstrate that the proposed 

### contract dO66not fall within the purview ofArticle 548b, V.C.S.; thus. 6permit would not be required from the Banking Commissioner 

### norwould tk contract require the Banking Commissioner’s apprwal.


### SUMMARY The proposed ‘contract 

### for **66t d**  **funersl or**  burial merchandi6e. attached to the epinionHan, 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