Untitled Texas Attorney General Opinion ( 1964 )

Honorable J. M. Falkner Opinion No. C-308
State Banking Conusissioner
John H. Reagan Office Building
Austin, Texas
Re: Whether concrete containers to
enclose caskets in garden type
cemeteries to prevent graves from
settling, are funeral merchandise
within the contemplation of Article
548b, Vernon's Civil Statutes and
-related questions.
Dear Mr. Falkner:
~You have requested the opinion of this office on the
following questions:
...
1. Are concrete containers suitable to enclose caskets
In garden type cemeteries, to prevent graves .from
settling; funeral merchand$s,ewithin the contern+
plation of Article 548b, Vernon's Civil Statutes,
asamended?
2. Assuming that said concrete containers are deemed
funeral merchandise within the terms of Article
548b, Vernon's Civi‘lStatutes, as amended, do said
containers when fully paid and Installed-in a'
grave space owned..bya purchaser become exempt as
a ,crypt, niche, or mausoleum?
3. Is Article 548b(l), Vernon's Civil Statutes, which
provides that delivery of funeral merchandise prior
to death does not constitute performance In full
or~in part of an installment contract for prepaid
funeral benefits under the statutes, constitutional?
4. Under the provisions.of Article 548b, Vernon's Civil.
Statutes, prior to the amendment in 1963, does mer-
chandise of this type coristitute.prepaidfuneral
merchandise requiring the deposit of payments received
on contract to be deposited In a state,or national
bank, or building and loan association in'this state
for the benefit and protection of such purchasers?
-1467-
. . - .
Honorable J. M. Falkner, page 2 (c- 308)
We answer your first question as follows:
"Concrete containers", ,if they are to be included within
the purview of Art. 548bz, Vernon's Civil Staiutes, must be within
the meaning of the term funeral merchandise as used in Section
1 of that Article.
1
Article 548b, Vernon's Civil Statutes, Sec. 1, provides
in part as follows: .
11
. . . Any individual, firm, partnership, corporation,-
or association. . . , desiring to sell pre-arranged
or prepaid fur-era1services or funeral merchandise
(including caskets, grave vaults, and all other
articles of merchandise incidental to a funeral
service, but excluding grave lots, grave spaces,
grave markers, monuments, tombstones, crypts, niches,
and mausoleums) in this state, . . . shall obtain
a permit from the State Ranking Department of this
state authorizing the transaction of this type of
business before conducting such business." (Emphasis
added.)
Funeral merchandise~is defined so as to include 'grave
vaults"; however, Article 548b, Vernon's Civil Statutes, does
not provide a specific definition of "grave vaults" nor do any
.of'the reported cases contain such a delinition.
In Sec. 1, of Article 912a, Vernon's Civil Statutes,~
relattig~to perpetual care cemeteries, a grave is defined as,
"a space'of ground in a burial park intended to be used for
the permanent interment in the ground oft the remains of a deceased
person."
A standard reference work in the field of mortuary
science defines-a "burial vault" as. "A tomb or receotacle
in which a casket is placed for burial." Pasic Principles of
-.'FuneralService, R. Victor Landig, 1956, p. 91. InModern
Mortuary Science, John H. Eckels, 1948, a vault IS defined:
worm with vaulted roof,'an arched apt or
chamber) rkfers to an outer case of concrete, metal, stone
or brick.'
From the above, we conclude that "grave vaults" include
any container within which a casket might b.eplaced for burial,
and you are therefore advised that "boncrete containers" are
a type of "grave vault" 'andthus within the contemplation of
Art. 548b, Vernon's Civil Statutes, aspfuneral merchandise.
-1468-
Honorable J. M. Falkner, page 3~(~-308)
:Your second question asks whether the containers if
fully paid for and Installed are exempt as crypts, niches,
or mausoleums; from the regulation of prepaid or prearranged
funeral merchandise described in Art. 548b, g 1'
In'answering this question, we looked to definitions
of crypt, 'niche,and mausoleum to determine if the "concrete .,
containers,"In question could everbe considered to be one
of the& excluded.items.
As in-question one, we find no definitions in Art.
5486, of the terms; however, Art. 912a.-1,Vernon's Civil
Statutes, provides assistance in determining the proper meaning
to be'aseribed to the terms in that its definitions of the
ttirms’ayeof long standing and unaltered byeamendment.
"Mausoleum" Is defined in Art. 912a-1 as "' . ..a
structure or building of most durable and lasting fireproof
construction used, or Intended to be used,,for ,the permanent
Interment in cryp:s.and vaults therein of the rzmains of
.decetsed persons. In that samesection "Crypt isdefined
as, .'. . the'chamber in a mausoleum of sufficientsize to
ktiremainsofaaeceased,
inter t e uncrema e
"Niche" is defined as' "~. .-a recess in's columbarlum,
used, or intended to be used, for the permanent.intermentof
the cremated remains of one or more deceased persons,." '.
IEmphasIs added throughout.) From a careful study of Art.
:.548b;and of the defin&tions gleaned from Art. 912a-1, we
conclude that concrete containers suitable to enclose caskets
In garden type cemeteries are not items that ,couldbe
crypts, niches, or mausoleums and thus exempt
eqiiated~.with,
from regulation of prepaid or prearranged funeral.merchandlse.
;
Your third question Inquires Into the constitutionality
of the last sentence of the first paragraph of Section 1 of
Art. 548b, Acts.58th Deg., R.S. 1963, Ch.~496, ,p. 1304, h'l.
The sentence in question reads as follows:'
"Delivery of funeral merchandise prior to death
shall not.constitute performance o'rfulfillment,,.
either wholly or in part, of any prepaid,funeral
benefits contract entered into after the effective
'date of this amendatory Act." . .;.
.:
...
-146%
..
Honorable J. M. Falkner, page .4 (C-308)
The validity of regulation of pre-need sale of funeral
merchandise has been widely litigated and in all but one
jurisdiction
.. . . such regulation has been held not to abridge either
toe rlgnr zo contract or to be an unlawful exercise of.the
police power. Falkner v. Memorial Gardens Association, 298
'S.W. 2d 934, (Civ.App.-1957,
Gardens Association, .Inc. v. Smith, 156 N.E. 2d ,5&7-3$!%.
$05 . y. ~Jones,356 S.W. 2d
.2&;~ (zuz~.?X.Ark. lqb ).
In the Falkner case, supra; page 939, the contracts
In question provided:
"That at any.time after receipt of 'the full sum
set'out above, upon,request of the Purchaser, his
2 rchaser,
his heirs or assigns; the above items enumerated
and design&ted as purchased,wsubject to the follo,wing
terms.,andconditions: * * 9, (Emphasis added*)
The reasoning behind the theory that an offer to 'deliver
$fter full payment on demand of the purchaser.did not affect
the-real nature of theAssociation,
supra; Reserve Vault Corporationv. Jones; supra; Memorial
Gardens Association, Inc., v. Smith, supra.
'~.Your fourths&estlLm dsks wheth~ercontracts for "con-
&ete containers" entered'into.prior to July 15,’ 1963.(the
effeotive date of the latest amendment-to 'Art. $@b), are for
preIjaidfuneralmerchandise and therefore subject to the
deposit requirements of the pre-amendment article. ,."
In answer'to your first'question we held that"con-
Crete containers' are funeral merchandise within the present
provisions .of Art, .548b. After'a careful comparison of the
apljlicable,pre-amendmentand.present portions of Art. 548b,
Sec. 1, describing items to be Included within the scope of
regulation a8 "funeral merchandise," we'find them to be the
same, thus requiring that we reach an identical result in
answering this portion of your fourth question.
We have also scrutinized the deposit requirements
and find them to be essentially the same but for the absence
of the alternative provisions relatlng to contracts of insurance
found in Section la of the current article.. ,, ..
.
-1471-
Honorable J. M. Falkner,'page 6 (C- 308)
Section L.of Art. 548b, Vernon's Civil Statutes,
'.~prior to the 1963 amendments, contained the provision that
regulated contracts'were those where the merchandise was to
be "delivered at an undetermined future date dependent upon
the death of the contracting party. . ." In the Falkner
case, ~supra.,
where:the Court he,ldthat an offer to deliver did ~
not affect the real nature of the business regulated, the
'contractprovision which we quoted in answer to your third
questlon provided that:
"That at any time after receipt of the full sum
set out above, upon the request of the purchaser,
6 . . it will deiiver to the purchaser,~. . . the
above items. . .
.Tn the instant case the contracts provide that:
: ,. "In the event'that cryptorium is not needed
interment at the.time fully paid for, the company
.~f.or . t
shall'deliver~. cryptoriums to a bonded
urarehouseand deliver a wa,rehouse.receipt $0 the
-@urchaSer, .~. . and'keep 80 stored'until requested
. .~ _ without further.,charge."
.We have"harefuliy considered~these two contracti r
provisions and conclude that in.practlcal result-there.16 no
diStinction between them. .In the instant case, the seller
agrees t6 do at least two things before the contract can
become fully ekecuted. ~F1rst.jseller agrees to provide an
Ttem of personal property, 'i.e. a burial vault; secondly,.seller
agrees to deliver to a'ceme.terywhen'requested,to do:so by
the purchaser, his heirs or assigns; and thirdly, In some of
the contracts, the seller agrees to "install for interment."
When compared with the provision In the Falkner case, supra,
just quoted, we are of the oplriionthat,m contracts the
seller simply makes an offer to perform upon request, which
the Court in the~Falkner case held not to affect the real
nature of the regiiii. You are therefore advised that
the contracts entered Into prior to the effective date of the
1963 amendments to Article 548b, veITiO?iS'
Civil Statutes,
were within the purview of that pre-amendment article, and
thus the deposit requirements of that article must.be met.
S U M M A R Y .'.
--w-w-- .. -~
(1) "Concretescontainers" to be used as burial vaults
under the stated.facts, are funeral merchandise tilthin.
the scope of both the pre-1963, and present version
of Art. 548b, Vernon's Civil Statutes, and are thus
subject to the deposit requirements of both articles.
-1472-
. .*
Honorable J. M. Falkner, page 7 (c-398)
(2) Under the stated facts "concrete containers"
do not when fully paid for and installed become
exempt as a crypt, niche, or mausoleum.
The additi,onof the last sentence of the first
paragraph in Section 1 of Art. 548b, Vernon's Civil
Statutes, relating to .deliveryis constitutional. '
(4) Merchandise of the .typediscussed constituted
funeral merchandise requiring that deposit require-‘
ments, of Art. 548b, Vernon's Civil Statutes, prior
to the 1963 amendment, be complied with.
Yours very.truly,
WAGGONER CARR
Attorney General of Texas
l$iskkGL
Assistant Attorney General
RRR:sf
APPROVED:
OPINION COMMITTFE
W. V. Geppert, Chairman
Joe R. Long
Paul Phy
Pat Bailey
George Gray
APPROVRDFOR THE ATRXNEY GENERAL
By: Roger Tyler
‘. ;:.
. :,
‘.
-14.73-