+, Allen Melton 

Ekecutive Secretary 

State Board of Morticians 

Rio Grade National Bldg. 

Dall.as,Texas 

Dear Mr. Melton: 

opinion No. ww - 551 

RP: The authority of the State 

Board of Morticians to 

promulgate rules governing 

solicitation, and related 

questions. 

f 

You have submitted to this office various questions concerning 

the authority of the State Board of Morticians to promulgate rules governing solicitation. 

Regulation of funeral directors and embalmers, provisions for 

the State Board of Morticians, and authority for promulgating rules and 

regulations governing the said activities are provided for in Article 

4582b, Vernon's Civil Statutes. 

Section 2 of said Article provides: 

-"The State Board of Morticians shall have the power 

and it shall be its duty: 

"(1) To adopt and promulgate such rules and regulations for the transaction of its business and for the 

betterment and promotion of the standards of education, 

service and practice to be followed in the profession of 

funeral directing and of embalming In the State of Texas 

within its discretion. such beina consistent with the 

laws of this State or'for the public good. No Zule or 

regulation promulgated by the Board may be adopted, 

amended or rejected without due notice and hearing theregI& II (Emphasis ours). 

Acting under the authority conferred by the above Article, the 

State Board of Morticians, on January 16, 1958, proposed the:follovlng 

amendment to Rule 3, Section 6-B (3) of the Rules and Regulations of the 

State Board of Morticians of Texas: 

"(c) Solicitation. 

"No licensee, apprentice, or any other person, whether 

employee, agent or representative, or one in any manner 

associated with a funeral establishment, shall solicit business or offer any inducement, pecuniary or otherwise, for the 
Mr. Allen Melton, Page 2 (w-551) 

purpose of securing or attempting to secure business for 

such funeral establishment; such persons shall not Issue any 

gift certificate, or discount certificate, or offer, or 

give, any discount for the purpose of obtaining funeral 

business; and such persons shall not use donations, gifts, 

bonuses or acts of service designed, or calculated to 

place the recipient, or his or her family, or relatives, 

in a position of obligation or indebtedness to the tinor, 

or the funeral establishment to which such persons are 

related, and such persons shall not transfer, or offer to 

transfer, any property or service as payment or as token 

consideration, for business secured or influenced, or 

otherwise provided such funeral establishment, or in promise thereof." 

A public hearing on such proposed amendment was called for 

February 11, 1958, and notice given to the funeral directors and embalmers 

of Texas by mail under date of January 25, 1958. A hearing was held as 

scheduled, well attended, and certain clarification was requested. On 

that day, without changing any of the wording in the Subsection proposed 

January 16, 1958, the Board added a definitive paragraph to that Subsection as follows: 

"Included in the above paragraph and prohibited 

are free ambulance service, free hospital beds, free, 

wheelchairs, free oxygen and/or oxygen equipment, or 

charges made therefor at discount, but not to the 

exclusion of any other acts, services or specific items 

of value which otherwise are included therein, by the 

provision thereof." 

The rule as changed was to be effective as of February 11, 

1958, and would have been in effect with the change, at that time, bad 

the definitive paragraph not been added thereto on that date, but notice 

of the additional portion was not given to the funeral directors and 

embalmers of Texas until February 11, 1958. 

The obvious intent of the Nle is to control solicitation 

conduct on the part of licensees in the State of Texas. 

After January 25, 1958, and both before and after February 

11, 1958, various funeral establishments issued through the mail various 

certificates to numerous boxholders. These certificates were of four 

classifications: 

Type 1 authorized the holder of the certificate, ambulance 

service within the city limits of a Texas city at a sliding scale and the 

certificate further provided to furnish the holder of the certificate and 

his immediate family and dependents funerals at "cost plus approximately 

ten per cent". 
Mr. Allen Melton, page 3 (kh+%l) 

Type 2 authorized a lO$ discount to holders of the certlficate and an additional lO$ discount upon the full payment of'the cost of 

such funeral, in cash, at the time of the funeral of such person. 

Type 3 authorized a 20$ discount on any funeral SeNiCe 

selected, and a 25s discount on ambulance and invalid coach service. I 

Type 4 entitles the named individual to a complete funeral 

"at cost plus approximately ten per cent". It also provided a discount on 

casket. However, before the holder 1s entitled to any of these SeNiCeS 

he must agree to pay to the funeral,home the sum of $10.00. 

Another practice used by funeral homes is the issuance of an 

insurance policy. Insurance policies are sold through the organization and 

people who purchase sn insurance policy become members of the funeral 

home's Family Security Plan. As a member of the Family Security Plan, the 

member is entitled to certain discounts and privileges in connection with 

the funeral expenses. 

You have submitted to us three questions phfhh are in substance as follows: 

1. Is the Board acting within the limits of Its 

authority to revoke or suspend a license i'f it finds 

that the funeral directors in charge and/or the owner 

of one funeral home, which Issued certificates referred to 

as certificates 1, 2, j', are In violation of the new 

rule governing solicitation by issuing and giving a 

discount for the purpose of obtaining funeral business, or 

is the Board limited in the enforcement of the new rule 

governing solicitation to acts which occur from and 

after the date of February 13, 1958, at which time all liceacZ.- 

sees in Texas were notified of the final action of the Board 

in promulgating the new rule governing solicitation? 

2. Is the State Board of Morticians in any way restricted in the application of the new rule promulgated by 

it governing solicitation to the funeral establishment which 

is Identified as certificate 4 in the event that funeral 

establishments give a discount under the service contract? 

“3. Is solicitation through newspaper advertising, radio 

or television, wherein a discount is offered for business, 

a violation of the rule passed by the State Board of Morticians 

on February 11, 19581” 

4. Is the State Board of Morticians In any way restricted in the application of the new rule promulgated by it 

governing solicitation to the funeral establishment which 

carries the insurance policy plan? 
. . 

Mr. Allen Melton; page 4 (W-551) 

.The Legislature pmy delegate the regulation of-funeral 

directing and embalming to anadministrative agency, and authorize it to 

provide rules and regulation6 governing such profession. PrcitaUndertaking Co. vs. State Board,.182 A. 808; Gulf C.~& S. F; Ry. Co. ,vs. State, 

l20 8.. W. 1028 (error ref.); ~ilax+is~vs. Munici pa 1 Gas Com 

2d 355 (error kiis9L); 42 Am.Jnr. 301 5 ,12; 9 Tea&r. 97, l.Ter; Jur. 

4 Pq, 59 s. w. 

10 Yr. Supp. 101, Administrat$ve z&w & Procedure. Where then statute expressly authoriees the agency to regulate an industry, it implies'authority 

to adopt regulations to that @d. Rail&&d Commission ve; Shell Oil Co., 

139 Tex. 66, 161 S.'U. 2d 1022. 'And the agency may make,all reasonable 

rules and regulations proper and necessary in the exercise of its powers. 

Texas Liquor Control Board vs. ,Super Savings Stamp Co., 303 S.W. 26 536 

error ref., n.r.e. ; 4,A~.L.R. 2d 667. 

The state may establish boards of undertaking and embalming 

for the purpose of 6mkIng rules for the control and regulation of the 

business;and the acts of such board6 will,be sustained unless there is an 

unlawful delegation of legislat~ive power or the boards act in an arbitrary, 

capricious or unreasonable manner. Gholson VS. Engle, 138 N.B. 2d 5G8; 

Louisiana Undertakers v6:La. State Board of MaImin& 58 So. 2d 303; 

.Trinka Services vs. State Board of Mortuary Science, I.22 A. '26 6%; 

.Quesenberry, et al VS. Estep, supra; 104 A.L.R. 402. 

~The power to ~regulate ini&des the authority to prohibit 

advertising of a character tending to influence the more gullible or susceptible person or to proclaim the superiority of the advertising practi- : 

tioner. Sherman'v. State Board of Dental~Examlners, ~6 S.W.2d 843. Those 

engaged in such professions are subject to legislative regulation, and the 

vocation itself being subject to regulation, 60 are all its incidents. Kee 

v. Baber, 303 S.U+d 376 (Tex. Sup. Ct.). 

Prom the foregoing authorities, there can be little question 

of authority of the State Board'of Morticians, acting under Article 4582b, 

to adopt, promulgate and enforce rules and regulations governing solicits; 

tlon of business. 

A&cle'4582b, Vernon’s Civil Statutes, governs the activities of the Board, and it is clearly provided in that Statute that no rule 

or regulation promulgated by the Board may be adopted, amended or rejected 

without due notice and hearing thereon. In Greer v. Railroad Commission of 

TE, ll7 S.W.2d 142 (writdism.), the Court stated: .." 

"Where the dtatute requires notice and hearing, such 

prerequisite is jurisdictional, and its omission renders 

the order void." 

The notice and hearing as set out in'the Statute are without question 

mandatory requirements; therefore, since the definitive paragraph was 

added without' any notice, that part of the rule would be vold.,'Alse, since 
. 

,, I .., 

Mr. Allen Melton, page 5 (WW-551) 

the xe4Lin.g of the certificates was prior to the time the rule was to go 

into effect, then certainly the Board cannot assert that the rule is 

retroactive. Therefore, the Board ha6 no authority to revoke or suspend 

a license for an act committed prior to the time the rule became effective. 

'The Board has authority under the Statute to prohibit solicitation after proper notice and hearing. However, in order to interpret 

the applicability of the rule against "solicitation", it is necessary, In 

our opinion, to define the term. 

"Solicit" Is defined as: "TO ask'for with earnestness; to 

make petition to; to endeavor to obtain; to awake or excite to action; to 

appeal to; or to invite." Black's Law Dictionary, 3rd Ed., p. 1639. 

Therefore, it is our opinion that the sending by'mail, or 

perSOna circulation by employees or representatives of the funeral home 

of any certificates entitling the holder to certain designed 'discounts or 

free services is prohibited by ths rule as promulgated by the State Board 

of Morticians. The purpose of the rule is to prohibit solicitation and 

not to impose restrictions upon the rights of individuals to enter into 

contracts. Phillips v. State, 136 Tex.Cr.Rep. 430, 125 S.W. 2d 585~(1939). 

Therefore, the portion of the rule which reads as follows must be construed 

as an invasion and infringement upon a person's constitutional right of 

libert% to contract: 

"' . . . such persons shall not issue any gift certificate, or discount certificate, or offer, or give, any discount for the purpose of obtaining funeral business; and 

such persons shall not use donations, gifts, bonuses or 

acts of service designed, or calculated,to place the recipient, or his or her family, or relatives, in a position 

of obligation or indebtedness to the donor, or the funeral 

establishment to which such persons are related, and such 

persons shall not transfer, or offer to transfer, any 

property or service as payment or as token consideration, 

for business secured, or influenced, or otherwise provided 

such funeral establishment, or in promise thereof.,;': I. 

"Included in the above'paragraph and prohibited are 

free ambulance service, free hospital beds, free wheelchairs, 

free oxygen and/or oxygen equipment, or charges made therefor at discount, but not to the axclusion of any other acts, 

services or specific items of value which otherwise are included therein, by the~'provisions thereof." 

If the above quoted language is an attempt by the Board to regulate prices, 

then the Board has gone beyond its authority. However, the above quoted 

language is really surplusage, for the Board has ample authority to govern 

solicitation under the rule which reads as follows: 
Mr. Allen Melton, page 6, (w-551) 

” 

. . . . 

"Ho'licensee, apprentice, or any other person, whether, 

&ioyee,~ag& ,or representative, or one in any manner ' 

associated,$th a funeral~e6tabliehment, shall~eolicit 

.bueineee, or offer any inducement, pecuniary or otherwiee, 

for,the purpose of securing or attempting to Becure business 

for such funeral eatabliehment; . . ." 

The ansver to the second question muet be governed by 

contract law. Any party who had received an offer, termed a "service 

contract" by the funeral home, prlor,to the effective date of the new rule, 

may accept such offer and then form a valid and binding contract with the 

funeral home. Certainly, the Board cannot contend that sending out such 

offer was prohibited prior to the effective date of the rule. The rule in 

question is one prohibiting solicitation and solicitation only. If the 

service contract was solicitation it occured prior to the time the rule 

became effective. This point has been discussed in answer to question one, 

so, there is no need to go into it further. The honoring of the certificate has nothing whatsoever to do with solicitation, and it is only the 

honoring of a valid contract. However, in the event this practice of sending out certificates or service contracts is continued in the future, then 

the Board does have the authority under the rule,to restrict the activity 

of the funeral home. 

t i 

.In reply to your third que6tion, this office is of the 

opinion that newspaper, radio or television advertising, wherein a discount is offered, Is a form of solicitation that is prohibited by the rule 

promulgated by the State Board of Morticiaias. A general' solicitation 

which offers a "discount" to prospective patrons as a pecuniary inducement to secure business for a funeral establishment violates Section c of 

such rule. 

The fourth question presented to this office has many 

ramifications and it is difficult for us to answer the question since the 

regulation of an insurance policy falls within the purview of the Insurance Commission. However, if this Family Security Plan is only a subterfuge by which the funeral home solicits customers, then the Board can 

regulate such activities. In otherwords, if the benefits derived from 

being a member of the Family Plan are limited by the funeral home to only 

those policy holders that deal-with them, then, since the funeral home is 

deriving a benefit by virtue of a solicitation by an insurance company 

owned in part or by the funeral home, then this activity falls within 

the rule promulgated by the Board of Morticians governing solicitation. 
Mr. Allen Melton, page 7 (W-551) 

SUMMARY 

The notice and hearing before promulgation 

of rules by the Board of Mort.iciau6 is msndatory, and any act committed prior to the effective date of the rules does not come within the 

sanction imposed thereby. The Board does not 

have the authority to impose restrictions upon 

rights of individuals to contract, however the 

Board does have the right to prohibit SOliCitatlon as that term is defined in this opinion. 

Further, the State Board of Morticians may apply the rule promulgated by it governing solicitation to a funeral home offering discounts 

and benefits so long as the benefits and discounts are not an integral part of a life insurance policy sold by an insurance company. 

Yours very tNly, 

WILL WILSON 

Attorney General of Texas 

B&dw 

Assistant 

IS:aw 

APPROVED: 

OPINION COMMITPEE 

Wallace P. Finfrock 

Tom I. McFarling 

Marietta McGregor Payne 

RRVIRURDFORTHZATIO~ GENERAL 

BY: 

Morgan Nesbitt