t*-   OFFICE     0~   THE    ATTORNET   GENERAL   . STATE   OF   TEXAS

      JOHN        CORNYN




                                                             May 15,2002



Mr. 0. C. “Chet” Robbins                                                  Opinion No. JC-0505
Executive Director
Texas Funeral Service Commission                                          Re: Whether a casket constitutes “funeral
333 Guadalupe, Suite 110                                                  merchandise” for purposes of Chapter 65 1 of
Austin, Texas 78701                                                       the Occupations Code, and related questions
                                                                          (RQ-0477-JC)


Dear Mr. Robbins:

         You have asked this office three questions: whether a casket constitutes funeral merchandise;
whether the sale of a casket for the burial of a person deceased at the time of the sale constitutes an
act of funeral directing, if all that is being sold is the casket and no services associated with the
disposition of the body are being provided; and, if so, whether such a sale violates section
651.459(a)(7) of the Occupations Code if the seller is not an employee, agent, subcontractor or
assignee of a licensed funeral home.’ We conclude that, while a casket indeed constitutes funeral
merchandise, the simple sale of a casket, without more, is not an act of funeral directing and
accordingly does not violate the provision about which you ask.

          Texas law distinguishes between prepaid funeral arrangements, authority over the licensing
of which is vested in the Finance Commission by chapter 154 of the Finance Code, and funeral
directing, which under chapter 65 1 of the Occupations Code is the province of the Funeral Service
Commission. Request Letter, supra note 1, at 2. We understand your question to be confined to the
sale of caskets at the time they are needed for the immediate disposition of a dead human body, and
it is that situation that we will address.

               Section 65 1.459 of the Occupations                Code provides, in relevant part

                                (a) A person violates this chapter if the person:




                                    (7) performs acts of funeral directing or embalming in a
                            capacity other than that of an employee, agent, subcontractor, or



               ‘Letter from Mr. O.C. “Chet” Robbins, Texas Funeral Service Commission, to Honorable John Comyn, Texas
Attorney        General, at 2 (Dec. 6,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. O.C. “Chet” Robbins       - Page 2           (JC-0505)




                assignee of a licensed funeral establishment         that has contracted      to
                perform those acts.

TEX. OCC. CODE ANN. 9 65 1.459(a)(7) (Vernon 2002). Section 65 1.OOl of the Occupations            Code
defines “[fluneral directing” as

                acts associated with or arrangingfor the disposition of a dead human
                body, performed by a person for compensation, from the time of first
                call until:

                        (A) inumment,        interment,   or entombment        services    are
                complete; or

                        (B)    the body is permanently       transported out of this state.

Id. 5 65 1.001(7) (emphasis added).     “First call” is defined in relevant part as

                the beginning of the relationship and duty of a funeral director to take
                charge of a dead human body and have the bodypreparedfor          burial
                or disposition by embalming, cremation, or another method.

Id. 5 65 1.001(5) (emphasis added).     The same section further defines “[fluneral merchandise”    as

                merchandise     sold primarily for use in:

                              (A)   a funeral ceremony;

                              (B)   embalming;   or

                            (C) the care and preparation of a dead human body for
                burial, cremation, or other disposition.

Id. 8 651.001(9).

         The Occupations Code does not define the particular acts which are acts of funeral directing,
nor does it more particularly describe funeral merchandise. Accordingly, you seek to know whether
a casket is such merchandise, and whether the sale of a casket for an imminent burial, without more,
constitutes funeral directing. See Request Letter, supra note 1, at 2.

       As we understand it, the question arises because there are now commercial enterprises which
market caskets, but provide no other funeral services. See, e.g., Casket Royale, Inc. v. Mississippi,
124 F. Supp. 2d 434,436 (S.D. Miss. 2000); Craigmiles v. Giles, 110 F. Supp. 2d 658,660 (E.D.
Tenn. 2000); State ex rel. State Bd. of Embalmers and Funeral Directors v. Stone Casket Co., 976
Mr. O.C. “Chet” Robbins      - Page 3          (JC-0505)




P.2d 1074, 1075 (Okla. App. 1998). We take it that your concern is whether such enterprises           are
engaged in the activity you have jurisdiction to regulate.

         We conclude that a casket is certainly funeral merchandise.       The definition of funeral
merchandise, as set forth above, includes “merchandise sold primarily for use in . . . the care and
preparation of a dead human body for burial. . . .” TEX. Oct. CODEANN. 9 65 1.001(9)(C) (Vernon
2002). The Oxford English Dictionary defines casket in the sense intended here as “A coffin. U.S.”
II OXFORDENGLISHDICTIONARY941 (2d ed. 1989). It further defines coffin as “The box or chest
in which a corpse is enclosed for burial.” III OXFORDENGLISHDICTIONARY440 (2d ed. 1989).
Similarly, Webster’s New International Dictionary, Second Edition defines casket as “A coffin, esp.
an expensive one. Chiefly U.S.,” and coffin as “A chest or case for the reception of a corpse,
commonly of wood or metal.” WEBSTER’SNEW INTERNATIONALDICTIONARY,SECONDEDITION
416’5 19 (1947). As these definitions make plain, a casket is used primarily to receive a dead body,
and consequently is within the statutory definition of funeral merchandise.

         In addition to this authority, common experience justifies one in describing a casket as
funeral merchandise, in the statute’s sense of “merchandise sold primarily for use in a funeral
ceremony.” See TEX. OCC. CODEANN. 5 651.001(9)(A). While a small number of caskets may be
sold for other uses, such as to serve as theatrical props, we think it safe to assume that the vast
majority are used for that purpose for which they were designed, as repositories                for
dead human bodies. A casket, then, is in our view one of the items clearly contemplated by the
statutory definition of “funeral merchandise” in section 65 1.OOl of the Occupations Code. See id.
tj 65 l.OOl(9).

         However, while a casket is funeral merchandise, the sale of caskets alone does not
constitute the practice of funeral directing. While it might be argued that such sales are “associated
with . . . the disposition of a dead human body,” in the sense that the caskets are sold to those who
intend to use them for that purpose, no “first call” occurs in this context, and the sale does not
directly involve the disposition of a body.            See id. 9 65 l.OOl(7).      It is clear from the
statutory definition of “first call,” as set out above, that what distinguishes a funeral director is the
“duty . . . to take charge of,” and prepare for burial or other disposition, a dead human body. See id.
5 65 1.001(5). Absent such a duty, the activity under discussion here is not funeral directing.

          Moreover, there would be other consequences to a contrary interpretation that this activity
constitutes funeral direction. Pursuant to section 65 1.602 of the Occupations Code, it is a criminal
offense to act as a funeral director without a license. See id. 5 65 1.602(a)( 1). “An offense under this
section is a Class B misdemeanor.” Id. 5 65 1.602(b). Accordingly, were we to conclude that the
sale of a casket was engaging in funeral directing without a license in violation of section
65 1.459(a)(7), it would be a criminal offense. See id. 6 65 1.602. But it is well-established that penal
statutes should be strictly construed. See, e.g., Domizio v. Progressive County Mut. Ins. Co., 54
S.W.3d 867,872 (Tex. App.-Austin 2001, pet. denied) (usury statutes, because penal in nature, must
be strictly construed); Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140,153 (Tex. App.-Amarillo
2001, pet. denied) (same); Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 195 (Tex.
Mr. O.C. “Chet” Robbins           - Page 4              (JC-0505)




App.-Houston      [ 14th Dist.] 2001, pet. denied) (attorneys’ fee recovery provisions penal in nature,
to be strictly construed); Thomas v. State, 3 S.W.3d 89’92 (Tex. App.-Dallas 1999, judgm’t aff d)
(Texas Securities Act penal, to be strictly construed). We would be loath to imply potential criminal
liability in the context presented.*




          2We note that federal courts in at least two jurisdictions have recently struck down state statutes that explicitly
proscribed the sale of caskets without a funeral director’s license as unconstitutional.  Casket Royale, Inc., 124 F. Supp.
2d at 440 (Mississippi statute fails “rational relationship” test and violates Due Process and Equal Protection clauses);
Craigmiles, 110 F. Supp. 2d at 660 (Tennessee statute does same); but see Stone Casket Co., 976 P.2d at 1076
(Oklahoma statute held to have rational basis in protection of public health).
Mr. O.C. “Chet” Robbins    - Page 5         (JC-0505)




                                       SUMMARY

                       While a casket constitutes funeral merchandise        for the
               purposes of chapter 65 1 of the Occupations Code, the sale of a casket
               for an imminent burial, without more, does not constitute an act of
               funeral directing.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
