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 the