                               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
