Do you need a funeral director's license in Texas to sell caskets?

Plain-English summary

The Executive Director of the Texas Funeral Service Commission asked three related questions about businesses that sell caskets but offer no other funeral services: whether a casket is "funeral merchandise"; whether selling a casket for the burial of someone already dead, with nothing else provided, is an act of funeral directing; and, if so, whether such a sale violates section 651.459(a)(7) of the Occupations Code when the seller is not tied to a licensed funeral home. The question arose because casket-only retailers had begun operating, and the Commission wanted to know whether they fell within its regulatory authority over funeral directing.

The Attorney General gave a split answer. On the first question, a casket is plainly funeral merchandise. The statute defines funeral merchandise as merchandise sold primarily for use in a funeral ceremony, in embalming, or in the care and preparation of a dead body for burial or other disposition, and a casket, by ordinary meaning and common experience, is sold primarily to hold a dead body for burial. On the second and third questions, though, the opinion concluded that selling a casket by itself is not funeral directing. The Occupations Code defines funeral directing as acts associated with or arranging for the disposition of a dead body, running from the time of "first call." "First call" is the point at which a funeral director takes charge of a body and has it prepared for burial or disposition. A seller who hands over only a casket never takes charge of the body, so no first call occurs and the activity is not funeral directing.

The opinion reinforced that reading with a rule of statutory construction. Practicing funeral directing without a license is a criminal offense, a Class B misdemeanor, under section 651.602. Because reading section 651.459(a)(7) to cover casket-only sales would expose those sellers to criminal liability, and because penal statutes are construed strictly, the Attorney General was unwilling to stretch the licensing requirement that far. A footnote noted that federal courts in Mississippi and Tennessee had recently struck down statutes that flatly barred casket sales without a funeral director's license as failing rational-basis review, while an Oklahoma court had upheld a similar restriction; the opinion cited these only as background to the controversy, not as the basis for its Texas-law conclusion.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Funeral Service Commission (what the opinion held): The opinion held that a casket falls within the statutory definition of funeral merchandise, but that a business selling only caskets, without taking charge of the body or providing disposition services, was not engaged in funeral directing and so was not subject to the licensing requirement in section 651.459(a)(7). It treated the regulatory reach the Commission asked about as bounded by the "first call" definition of funeral directing.

Casket retailers (what the opinion held for them): The opinion held that, under the law as it stood in 2002, a merchant selling caskets alone for an imminent burial did not have to be an employee, agent, subcontractor, or assignee of a licensed funeral establishment, and did not violate section 651.459(a)(7), simply by selling the casket.

Funeral establishments (what the opinion held for them): The opinion distinguished the regulated activity of funeral directing, which begins with taking charge of a body, from the unregulated act of selling merchandise, so the conclusion turned on what services accompanied a sale rather than on who sold a casket.

Common questions

Was a casket considered "funeral merchandise" under Texas law?
Yes. The opinion concluded a casket is funeral merchandise because the statute covered merchandise sold primarily for use in the care and preparation of a dead body for burial, and a casket is sold primarily for that purpose.

Did selling only a casket count as "funeral directing"?
No. The opinion held that funeral directing begins at "first call," when a director takes charge of a body and prepares it for burial or disposition. A seller who provides only the casket never takes charge of the body, so the sale was not funeral directing.

Did a casket-only seller need a funeral director's license?
Under this 2002 opinion, no. Because selling a casket alone was not funeral directing, the seller did not violate the licensing provision in section 651.459(a)(7), even without ties to a licensed funeral home.

Why did the criminal penalty matter to the answer?
Practicing funeral directing without a license was a Class B misdemeanor under section 651.602. The opinion applied the rule that penal statutes are strictly construed and was unwilling to read the licensing requirement to expose casket-only sellers to criminal liability.

Background and statutory framework

Texas law separates two regulatory tracks. Prepaid funeral arrangements are licensed by the Finance Commission under chapter 154 of the Finance Code, while funeral directing falls under chapter 651 of the Occupations Code and the Funeral Service Commission. Tex. Occ. Code Ann. § 651.459(a)(7) (Vernon 2002). The opinion read the request as confined to caskets sold at the time they are needed for the immediate disposition of a body.

Section 651.459(a)(7) makes a person violate chapter 651 if the person performs acts of funeral directing or embalming in a capacity other than as an employee, agent, subcontractor, or assignee of a licensed funeral establishment that has contracted to perform those acts. Id. § 651.459(a)(7). Section 651.001(7) defines funeral directing as acts associated with or arranging for the disposition of a dead human body, performed for compensation, from the time of first call until interment or entombment services are complete or the body is permanently transported out of state. Id. § 651.001(7). "First call" is the beginning of the funeral director's duty to take charge of a body and have it prepared for burial or disposition by embalming, cremation, or another method. Id. § 651.001(5). Funeral merchandise is merchandise sold primarily for use in a funeral ceremony, in embalming, or in the care and preparation of a body for burial, cremation, or other disposition. Id. § 651.001(9), 651.001(9)(A), 651.001(9)(C).

Because the Occupations Code did not separately define which acts are acts of funeral directing or describe funeral merchandise in more detail, the opinion supplied ordinary meaning from dictionaries to confirm a casket is funeral merchandise, then turned to "first call" to explain why selling a casket alone is not funeral directing. The opinion noted the controversy had produced litigation elsewhere over statutes restricting casket sales, citing Casket Royale, Inc. v. Mississippi, 124 F. Supp. 2d 434, 436 (S.D. Miss. 2000), and Craigmiles v. Giles, 110 F. Supp. 2d 658, 660 (E.D. Tenn. 2000) (both federal district courts striking such statutes), and State ex rel. State Bd. of Embalmers and Funeral Directors v. Stone Casket Co., 976 P.2d 1074, 1075 (Okla. App. 1998) (an Oklahoma appellate court upholding one). On strict construction of the penal statute, the opinion cited Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 872 (Tex. App.-Austin 2001, pet. denied), Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 153 (Tex. App.-Amarillo 2001, pet. denied), Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 195 (Tex. App.-Houston [14th Dist.] 2001, pet. denied), and Thomas v. State, 3 S.W.3d 89, 92 (Tex. App.-Dallas 1999, judgm't aff'd), all Texas appellate decisions.

Citations

Statutes:

• Tex. Occ. Code Ann. § 651.459(a)(7) (Vernon 2002)
• Tex. Occ. Code Ann. § 651.001(5); § 651.001(7); § 651.001(9); § 651.001(9)(A); § 651.001(9)(C)
• Tex. Occ. Code Ann. § 651.602(a)(1); § 651.602(b)
• Chapter 651 of the Occupations Code
• Chapter 154 of the Finance Code

Cases:

• 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 P.2d 1074, 1075 (Okla. App. 1998)
• Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 872 (Tex. App.-Austin 2001, pet. denied)
• Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 153 (Tex. App.-Amarillo 2001, pet. denied)
• Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 195 (Tex. App.-Houston [14th Dist.] 2001, pet. denied)
• Thomas v. State, 3 S.W.3d 89, 92 (Tex. App.-Dallas 1999, judgm't aff'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0505
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0505.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

May 15, 2002

Mr. O. 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 651 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.[1] 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 651 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 651.459 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 assignee of a licensed funeral establishment that has contracted to perform those acts.

TEX. OCC. CODE ANN. § 651.459(a)(7) (Vernon 2002). Section 651.001 of the Occupations Code defines "[f]uneral directing" as

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

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

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

Id. § 651.001(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 body prepared for burial or disposition by embalming, cremation, or another method.

Id. § 651.001(5) (emphasis added). The same section further defines "[f]uneral 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. § 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 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. OCC. CODE ANN. § 651.001(9)(C) (Vernon 2002). The Oxford English Dictionary defines casket in the sense intended here as "A coffin. U.S." II OXFORD ENGLISH DICTIONARY 941 (2d ed. 1989). It further defines coffin as "The box or chest in which a corpse is enclosed for burial." III OXFORD ENGLISH DICTIONARY 440 (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'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION 416, 519 (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. CODE ANN. § 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 651.001 of the Occupations Code. See id. § 651.001(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. § 651.001(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. § 651.001(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 651.602 of the Occupations Code, it is a criminal offense to act as a funeral director without a license. See id. § 651.602(a)(1). "An offense under this section is a Class B misdemeanor." Id. § 651.602(b). Accordingly, were we to conclude that the sale of a casket was engaging in funeral directing without a license in violation of section 651.459(a)(7), it would be a criminal offense. See id. § 651.602. 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. 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.[2]

[2] We 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).

                                   SUMMARY

                   While a casket constitutes funeral merchandise for the purposes of chapter 651 of the Occupations Code, the sale of a casket for an imminent burial, without more, does not constitute an act of funeral directing.

                                          Very truly yours,

                                          JOHN CORNYN
                                          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

[1] Letter from Mr. O.C. "Chet" Robbins, Texas Funeral Service Commission, to Honorable John Cornyn, Texas Attorney General, at 2 (Dec. 6, 2001) (on file with Opinion Committee) [hereinafter Request Letter].