(a) For purposes of this section, the term "funeral goods" means tangible and nonperishable items of personalty, designed for use in connection with a funeral service, that are sold or offered for sale directly to the public, including an alternative container, casket, or outer burial container, but not including a marker, monument, or tombstone.
(b) A person who sells or offers to sell funeral goods prior to the death of the person for whom the goods are to be used is considered to be selling or offering to sell funeral merchandise on a preneed basis, and must be licensed under Finance Code, Chapter 154, unless, with respect to each and every offer or sale of funeral goods:
  (1) the offer to sell funeral goods contemplates only a contemporaneous exchange of consideration and either delivery of actual physical possession and control of the funeral goods to the purchaser, or shipment of the goods directly to the purchaser;
  (2) within 72 hours of the time of sale, the seller delivers actual physical possession and control of the funeral goods or orders a third party to immediately ship the goods directly to the purchaser;
  (3) within 72 hours of the time of sale, the purchaser removes the funeral goods from the premises of the seller from whom and where the goods are purchased, or receives confirmation of shipping instructions consistent with paragraph (2) of this subsection;
  (4) neither the seller nor another person that receives consideration for the sale of the funeral goods or, within the actual knowledge of the seller, for a prepaid funeral service in which the goods are intended for use directly or indirectly offers to store or stores the goods for the purchaser; and
  (5) the goods are not sold in connection with, or in contemplation of trade or barter for, prepaid funeral benefits to be delivered by the seller or an affiliate of the seller.
(c) A seller of funeral goods is not considered to be selling funeral merchandise on a preneed basis solely because the seller takes a promissory note as consideration for the sale and retains a nonpossessory security interest in the funeral goods sold, provided the conditions of subsection (b) of this section are otherwise met.
(d) A seller of funeral goods must maintain written records of each sale adequate to demonstrate compliance with this section. Such records are subject to subpoena by the department pursuant to Finance Code, §35.203. Failure to comply with the conditions for exemption with respect to each and every sale of funeral goods may subject to seller to criminal and civil remedies set forth in Finance Code, §35.201 et seq and §154.401 et seq.

Source Note: The provisions of this §25.8 adopted to be effective October 5, 1998, 23 TexReg 9973.