Untitled Texas Attorney General Opinion ( 1960 )

E ORNEY GENERAL .‘., “: “’
OF TEXAS
W’ILL WILSON
ATI’OXNEY GENE-I.
August 11, 1960
Hon. J. M. Falkner, Commissioner Opinion No. WW-90,2
Department of Banking
Capital National Bank Building Re:: Whether a proposed contract
Austin 14. Texas 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.
Dear Mr. Falkner:
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 con-
tract 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 consi-
derations 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 prece-
dent 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 with-
in 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