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?

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         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.

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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." . .;.
                                              .:
                                       ...




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                                                                     ..




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 the<contract, is well,stated In the case      .
 of State v. Smith Funeral Home, 145 S.W.2d'l021 (Sup.Ct. Tenn.
 1946); where the Court said: ,'

           .i“As suggested by the chanoellor, only a rare
        and eccentric Individual would in person or through
       'an agent,'purchase for himself a~coffln and',grave
        clothes before he died. Human nature is such that
       .the indi,vidualrevolts at acquiring and possessing
      ~ ;durlng his lifetime su,chgruesome tokens of'hls end,
        A person, not abnormal, would not have,such things
        aroulidhim during his lifetime.?
            **it

            "It seems to.tis that the apparent right given
        to a certificate holder o? defendant to demand hxs
        coffin and grave clothes prior to his ~death I
        rghtot
        r      0  sue     ro a
        .alter what we regard the real nature of the contract;"
        TEmphasls added.) ...       ,., ; .:;;
                                          _:




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 Honorable 3. M. Falkner, page 5 (~-308)~


         fin each of the cases cited, the contracts provided for
 .an optionaldelivery at any time after full payment ~was made.
  In the present case, the seller agrees that:
             :    .,
              "In.the.'eventthat cryptorium.    *'+ww~~
          nomenclature for concrete containers). .
          ne'ededfor interment at the time fully paid for,.
         :the company shall.deliver              cryptoriums
          to a bonded warehouse and deliver a warehouse
          re'celpt,tothe ourchaser,.his heirs or assigns, and
         .-keepso stored until ,requestwithout 'further charge.."
          The Warehouse'Certificate form recites that the
  concrete vault will be delivered upon request to any
  destination withina 5O,mile,radius of the "above address".
                                                          "
              We have csrefilly':&xsidered the contractural and
  statutory provisions atidare ofthe opinion that--thestatutory
~:~~~prpnou.ncement.that
                     delivery offuneral merchandise prior to
  death-will.not ,c.onstitute
                            performance.of the oontract.does not
  represent an unconstitutional ad&ition to-the regulation of
  the sale of pre-need finer& merchandise,which h&been    declared
  to be constitutional. Falkner v. Memorial Gardens, Association,
  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.
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.   .*




         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

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