By Jones of Lubbock H.B. No. 466
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the operation of the Texas Funeral Service Commission.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subdivision 1, Subsection A, Section 1, Chapter
1-5 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
1-6 4582b, Vernon's Texas Civil Statutes), is amended to read as
1-7 follows:
1-8 1. A "funeral director," as that term is used herein,
1-9 is a person who for compensation engages in or conducts, or who
1-10 holds himself out as being engaged, for compensation, in preparing,
1-11 other than by embalming, for the burial or disposition of dead
1-12 human bodies<, and maintaining or operating a funeral establishment
1-13 for the preparation and disposition, or for the care of dead human
1-14 bodies>.
1-15 SECTION 2. Subsections D, E, F, G, H, and M, Section 1,
1-16 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
1-17 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
1-18 as follows:
1-19 D. The term "embalmer" as herein used is a person who for
1-20 compensation disinfects or preserves a dead human body, entire or
1-21 in part by the use of chemical substances, fluids, or gases in the
1-22 body, or by the introduction of the same into the body by vascular
1-23 or hypodermic injection, or by direct application into the organs
1-24 or cavities, or by any other method intended to disinfect or
2-1 preserve a dead human body, or restore body tissues and structures.
2-2 The placing of any such chemicals or substances on or in a dead
2-3 human body by any person who is not a licensed embalmer shall be
2-4 deemed a violation of this Act, provided that this shall not apply
2-5 to a provisional licensee <registered apprentice> working under the
2-6 supervision of a licensed embalmer. All persons who are engaged in
2-7 the business of embalming or who profess to be engaged in such
2-8 business, or hold themselves out to the public as embalmers, shall
2-9 be licensed embalmers.
2-10 E. The term "provisional licensee" <"apprentice"> as herein
2-11 used is a person engaged in learning the practice of funeral
2-12 directing and/or embalming under the instruction, direction, and
2-13 personal supervision of a duly licensed funeral director and/or
2-14 embalmer of and in the State of Texas in accordance with the
2-15 provisions of this Act, and having been duly issued a provisional
2-16 license <registered as such> by the commission prior thereto.
2-17 F. The term "provisional license program" or "program"
2-18 <"apprenticeship"> as used herein shall be construed as diligent
2-19 attention to assigned duties and other matters performed in a
2-20 licensed funeral establishment in this state. The commission by
2-21 rule shall define the terms of employment of a provisional licensee
2-22 <an apprentice>, which must include service by the provisional
2-23 licensee <apprentice> under actual working conditions and under the
2-24 personal supervision of a licensed funeral director and/or
2-25 embalmer.
2-26 G. The term "funeral establishment" as herein used is a
2-27 place of business used in the care and preparation for burial or
3-1 transportation of dead human bodies, or any place where one or more
3-2 persons, either as sole owner, in co-partnership, or through
3-3 corporate status, represent themselves to be engaged in the
3-4 business of embalming and/or funeral directing, or are <as> so
3-5 engaged. Such funeral directing and embalming shall be performed
3-6 only by a licensed funeral director, a licensed embalmer, a
3-7 provisional licensee, or a qualified mortuary student under the
3-8 supervision and direction of a licensed funeral director and/or
3-9 embalmer.
3-10 H. The term "due notice" as herein used shall mean published
3-11 notice of the time and place of regular meetings of the commission.
3-12 Notice of time, place, and purpose of any meeting of the commission
3-13 filed with the Texas Register<,> at least seven (7) days prior
3-14 thereto<,> shall be adequate notice for any regular meeting,
3-15 including the giving of examinations<; however, a notice of a
3-16 meeting wherein a change in the rules and regulations of the
3-17 commission is to be considered, shall be given by written notice in
3-18 the Texas Register at least thirty (30) days in advance of any
3-19 hearing thereon>.
3-20 M. "Solicitation" means any <a> direct or indirect contact
3-21 by a licensed funeral director, a licensed embalmer, or an
3-22 employee, agent, or representative of a licensed funeral
3-23 establishment or any other entity with a person near death or the
3-24 family, next of kin, or person responsible for making funeral
3-25 arrangements for <one who has custody of> a person who is deceased
3-26 or near death if the contact is not initiated by the person near
3-27 death or the family, next of kin, or person responsible for making
4-1 funeral arrangements for a person who is deceased or near death and
4-2 the contact is for the purpose of securing the right to provide
4-3 funeral services or merchandise or is in a situation that might
4-4 influence the person contacted to choose a particular funeral
4-5 establishment <for the deceased or the person near death>.
4-6 Provided, however, that the term "solicitation" shall not be deemed
4-7 to include, except in the case of contact with a person near death
4-8 or the person responsible for making funeral arrangements for a
4-9 person near death, any attempt to secure funeral business pursuant
4-10 to a permit issued under the provisions of Chapter 512, Acts of the
4-11 54th Legislature, Regular Session, 1955, as amended (Article 548b,
4-12 Vernon's Texas Civil Statutes), or to include any method of
4-13 advertising by publication or broadcasting.
4-14 SECTION 3. Subdivision (5), Subsection A, Section 2, Chapter
4-15 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
4-16 4582b, Vernon's Texas Civil Statutes), is amended to read as
4-17 follows:
4-18 (5) Two commissioners <A commissioner> may <not>
4-19 participate in any informal conference <commission proceeding>
4-20 relating to a case that awaits a hearing as described by Section 6C
4-21 of this Act. One of the two commissioners must be a licensed
4-22 funeral director or embalmer and one must be a public member of the
4-23 commission.
4-24 SECTION 4. Section 2, Chapter 251, Acts of the 53rd
4-25 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
4-26 Civil Statutes), is amended by amending Subsections H and L and
4-27 adding Subsections S and T to read as follows:
5-1 H. The commission may employ such inspectors, <and> clerical
5-2 and technical assistants, legal counsel other than the attorney
5-3 general, and <including> an Executive Director, as may be
5-4 determined by it to be necessary to carry out the provisions of
5-5 this Act, and the terms, conditions and expenses of such employment
5-6 shall be determined by the commission.
5-7 L. The commission may issue, or delegate to the executive
5-8 director the power to issue, subpoenas and subpoenas duces tecum.
5-9 A subpoena or subpoena duces tecum issued under this subsection
5-10 must be served either by personal service or by certified mail,
5-11 return receipt requested <shall prescribe the form of the official
5-12 application blank. It shall notify the proprietor of each licensed
5-13 funeral establishment in this state that any person who seeks
5-14 employment as a funeral director or embalmer must fill in this
5-15 application blank, and that the person receiving the application
5-16 must mail a copy of the official form to the commission. The
5-17 commission shall inform the prospective employer of the status of
5-18 the applicant's license to engage in the activity he proposes>.
5-19 S. The commission may appoint committees from the commission
5-20 to consider and make recommendations on matters referred to them by
5-21 the commission.
5-22 T. The commission may institute an action in its own name to
5-23 enjoin the violation of this Act. An action under this subsection
5-24 is in addition to any other action, proceeding, or remedy
5-25 authorized by law. In an action under this subsection, the
5-26 commission shall be represented by the attorney general, a county
5-27 or district attorney, or counsel designated and authorized by the
6-1 commission.
6-2 SECTION 5. Section 3, Chapter 251, Acts of the 53rd
6-3 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
6-4 Civil Statutes), is amended by amending Subsections A, B, C, D, E,
6-5 and H and adding Subsection J to read as follows:
6-6 A. The commission is hereby authorized and empowered and it
6-7 shall be its duty to prescribe and maintain a standard of
6-8 proficiency, professionalism, <character> and qualifications of
6-9 those engaged or who may engage in the practice of a funeral
6-10 director or embalmer and to determine the qualifications necessary
6-11 to enable any person to lawfully practice as a funeral director, to
6-12 embalm dead human bodies, and to collect the fees therefor. The
6-13 commission shall examine all applicants for funeral directors' and
6-14 embalmers' licenses and for provisional <apprenticeship> licenses
6-15 and shall issue the proper license to all persons qualified and who
6-16 meet the requirements herein prescribed.
6-17 B. (1) To be eligible for a license to practice funeral
6-18 directing, an applicant must:
6-19 (a) be 18 years of age or older;
6-20 (b) have graduated from an accredited high
6-21 school or passed an examination prescribed by the Central Education
6-22 Agency;
6-23 (c) have graduated from an accredited school or
6-24 college of mortuary science;
6-25 (d) have served as a provisional licensee <an
6-26 apprentice> for not less than one year under the personal
6-27 supervision and instruction of a licensed funeral director; and
7-1 (e) successfully complete written examinations
7-2 as described by Subdivision (2) of this subsection.
7-3 (2) The commission shall administer or arrange for the
7-4 administration of:
7-5 (a) a written professionally prepared
7-6 examination on the subjects of:
7-7 (i) the art and technique of funeral
7-8 directing;
7-9 (ii) the signs of death;
7-10 (iii) the manner by which death may be
7-11 determined;
7-12 (iv) sanitation;
7-13 (v) hygiene;
7-14 (vi) mortuary management and mortuary law;
7-15 (vii) business and professional ethics;
7-16 and
7-17 (viii) other subjects that may be taught
7-18 in a recognized school or college of mortuary science; and
7-19 (b) a written examination developed by the
7-20 commission or developed for the commission by contract on:
7-21 (i) laws applicable to vital statistics
7-22 pertaining to dead human bodies; and
7-23 (ii) local and state rules and laws
7-24 relating to the preparation, transportation, care, and disposition
7-25 of dead human bodies.
7-26 (3) Not later than the 30th day after the date on
7-27 which a funeral director licensing examination is administered
8-1 under this Act, the commission shall notify each examinee of the
8-2 results of the examination. However, if an examination is graded
8-3 or reviewed by a national testing service, the commission shall
8-4 notify examinees of the results of the examination not later than
8-5 the 14th day after the date on which the commission receives the
8-6 results from the testing service. If the notice of examination
8-7 results graded or reviewed by a national testing service will be
8-8 delayed for longer than 90 days after the examination date, the
8-9 commission shall notify the examinee of the reason for the delay
8-10 before the 90th day. If requested in writing by a person who fails
8-11 a licensing examination administered under this Act, the commission
8-12 shall furnish the person with an analysis of the person's
8-13 performance on the examination.
8-14 C. (1) To be eligible for a license to practice embalming,
8-15 an applicant must:
8-16 (a) be 18 years of age or older;
8-17 (b) have graduated from an accredited high
8-18 school or passed an examination prescribed by the Central Education
8-19 Agency;
8-20 (c) have graduated from an accredited school or
8-21 college of mortuary science;
8-22 (d) have served as a provisional licensee <an
8-23 apprentice> for one year under the personal supervision of a
8-24 licensed embalmer; and
8-25 (e) successfully complete written examinations
8-26 as described by Subdivision (2) of this subsection.
8-27 (2) The commission shall administer or arrange for the
9-1 administration of:
9-2 (a) a written professionally prepared
9-3 examination on the subjects of:
9-4 (i) the anatomy of the human body;
9-5 (ii) the cavities of the human body;
9-6 (iii) the arterial and venous system of
9-7 the human body;
9-8 (iv) blood and discoloration;
9-9 (v) bacteriology and hygiene;
9-10 (vi) pathology;
9-11 (vii) chemistry and embalming;
9-12 (viii) arterial and cavity embalming;
9-13 (ix) restorative art;
9-14 (x) disinfecting;
9-15 (xi) embalming special cases;
9-16 (xii) contagious and infectious diseases;
9-17 (xiii) mortuary management;
9-18 (xiv) care, preservation, transportation,
9-19 and disposition of dead human bodies;
9-20 (xv) sanitary science; and
9-21 (xvi) other subjects as may be taught in a
9-22 recognized school or college of mortuary science; and
9-23 (b) a written examination developed by the
9-24 commission or developed for the commission by contract on:
9-25 (i) laws applicable to vital statistics
9-26 pertaining to dead human bodies; and
9-27 (ii) local and state rules and laws
10-1 relating to the care and disposition of dead human bodies.
10-2 (3) Not later than the 30th day after the date on
10-3 which an embalmer licensing examination is administered under this
10-4 Act, the commission shall notify each examinee of the results of
10-5 the examination. However, if an examination is graded or reviewed
10-6 by a national testing service, the commission shall notify
10-7 examinees of the results of the examination not later than the 14th
10-8 day after the date on which the commission receives the results
10-9 from the testing service. If the notice of examination results
10-10 graded or reviewed by a national testing service will be delayed
10-11 for longer than 90 days after the examination date, the commission
10-12 shall notify the examinee of the reason for the delay before the
10-13 90th day. If requested in writing by a person who fails a
10-14 licensing examination administered under this Act, the commission
10-15 shall furnish the person with an analysis of the person's
10-16 performance on the examination.
10-17 D. It shall be the duty of the commission to prescribe and
10-18 supervise the course of instruction received by a provisional
10-19 licensee <an apprentice> while participating in a provisional
10-20 license program <serving his or her apprenticeship>, consistent
10-21 with the following requirements <to establish such an
10-22 apprenticeship registration procedure>:
10-23 1. Provisional license <Apprenticeship> for embalmer:
10-24 A license to practice the science of embalming shall not be issued
10-25 unless and until the applicant therefor has served a provisional
10-26 license program <an apprenticeship period> of not less than twelve
10-27 (12) consecutive months under the personal supervision and
11-1 instruction of a licensed embalmer and has successfully completed
11-2 all requirements of the program <apprenticeship>. The only
11-3 exception to this requirement shall be in the case of an applicant
11-4 under reciprocity.
11-5 (a) Any person, eighteen (18) years of age or
11-6 more, who desires to practice the science of embalming in this
11-7 state, files application therefor, meets the requirements of the
11-8 law and this commission, and possesses such qualification to enter
11-9 into the provisional license program <apprenticeship training>, may
11-10 be registered as a provisional licensee <an apprentice>. A
11-11 provisional license program for <Apprenticeship for a license to
11-12 practice the science of> embalming must be served by the person
11-13 after graduation from a school or college of mortuary science. An
11-14 applicant shall pay a license <registration> fee at the time he
11-15 requests to enter the program <such apprenticeship registration>.
11-16 (a-1) An applicant for a license to practice
11-17 <the science of> embalming must make <who attains> a grade of 75
11-18 percent <70%> or higher on the written examination used <given> by
11-19 the commission. The commission may require an applicant to appear
11-20 before at least one member of the commission for approval of the
11-21 person's application. The approval is subject to review by the
11-22 entire commission. An applicant who has not entered the
11-23 provisional license program before the second anniversary of the
11-24 date the applicant took the examination must pass the examination
11-25 again before receiving a provisional license <upon payment of a
11-26 registration fee shall be registered as an apprentice within six
11-27 (6) months of such examination>.
12-1 (b) Each provisional <registered apprentice>
12-2 embalmer shall be issued a provisional license <certificate of
12-3 apprenticeship or other means of apprenticeship identification> by
12-4 the commission for a provisional license program to be served in
12-5 the State of Texas. During the course of the program
12-6 <apprenticeship>, a provisional licensee <an apprentice> shall work
12-7 on a minimum of sixty (60) <forty (40)> cases. No more than two
12-8 (2) provisional licensees <apprentices> may receive credit <due>
12-9 for work on any one body. The commission by rule shall define the
12-10 standards for a case and shall establish the minimum number of
12-11 complete cases a provisional licensee <an apprentice> is required
12-12 to execute during the provisional license program <apprenticeship>.
12-13 The standards required for a complete case shall include all the
12-14 duties and activities necessary for embalming. The commission by
12-15 rule also shall establish guidelines for provisional licensee
12-16 supervision <apprentice supervisors> under which a provisional
12-17 licensee <an apprentice> is granted increased responsibilities
12-18 during the course of the program <apprenticeship>.
12-19 (c) A provisional <An apprentice> embalmer must
12-20 report to the commission within ten (10) days after the end of each
12-21 month each <separate> case handled by the provisional embalmer
12-22 <him> or with which the provisional embalmer <he has> assisted in
12-23 handling during that month. Each such report shall be certified by
12-24 the licensee under whose personal supervision <whom> the
12-25 provisional embalmer <apprentice> performed the <his> work. For
12-26 <Throughout the period of apprenticeship, the apprentice shall
12-27 report on at least one (1) such case of embalming each calendar
13-1 month, within the month. In> any month in which the provisional
13-2 embalmer <he> did not embalm at least one (1) case under the
13-3 personal supervision <direction> of a licensed embalmer, a report
13-4 shall be made to the commission notwithstanding.
13-5 (d) The commission shall set the license
13-6 <registration> and examination fees in an amount that is reasonable
13-7 and necessary for the administration of the program <registration
13-8 and examination>.
13-9 2. Provisional License <Apprentice> for Funeral
13-10 Director: The term of the provisional license program
13-11 <apprenticeship> for a funeral director's license shall be a period
13-12 of not less than twelve (12) months, and may be served concurrently
13-13 with the provisional license program <apprenticeship> for an
13-14 embalmer's license; however, the provisional license program
13-15 <apprenticeship> must be served in twelve (12) consecutive months.
13-16 A person desiring to become a provisional <an apprentice> funeral
13-17 director shall make application to the commission on a form
13-18 provided by the commission, <and if the commission desires, he
13-19 shall appear before at least one (1) member of the commission, or a
13-20 designated representative thereof, for approval of his application,
13-21 subject to review of it by the entire commission>. An applicant
13-22 must be not less than eighteen (18) years of age and have completed
13-23 the educational requirements prescribed for a funeral director<,
13-24 except that the commission by rule may allow an applicant for a
13-25 funeral director's license to begin serving the one (1) year
13-26 apprenticeship before or after the applicant enrolls in a school of
13-27 embalming or college of mortuary science>. The application for
14-1 registration shall be sworn to and accompanied by a <registration>
14-2 fee. If the application is accepted, an applicant will be issued a
14-3 provisional license <certificate of apprenticeship registration>
14-4 upon determination by the commission that his qualifications are
14-5 satisfactory.
14-6 (a) An applicant for a funeral director's
14-7 license and the examination therefor <who has not begun one (1)
14-8 year of apprenticeship prior to graduation from a school of
14-9 embalming or college of mortuary science> shall be admitted to the
14-10 provisional license program <apprenticeship> only if the applicant
14-11 applies for and takes the written examination given by the
14-12 commission, and pays the license <registration> fee, whereupon he
14-13 may <shall> be licensed <registered> as a provisional funeral
14-14 director if the applicant otherwise meets the requirements of this
14-15 Act. An applicant who has not been licensed as a provisional
14-16 funeral director before the second anniversary of the date the
14-17 applicant took the examination must pass the examination again
14-18 before being licensed as a provisional funeral director. <an
14-19 apprentice. Provided, however, an applicant must register as an
14-20 apprentice within six (6) months of such examination.>
14-21 (b) A provisional <An apprentice> funeral
14-22 director must report to the commission within ten (10) days after
14-23 the end of each month each <separate> case that the provisional
14-24 funeral director <with which he has> assisted in handling during
14-25 that month. Each <such> report shall be certified to by the
14-26 licensee under whom the provisional funeral director <apprentice>
14-27 performed the work. For <Throughout the period of apprenticeship
15-1 the apprentice shall report on at least one (1) such case each
15-2 calendar month, within the month. In> any month within which the
15-3 provisional funeral director <he> did not assist a licensed funeral
15-4 director in handling a funeral, a report shall be made to the
15-5 commission notwithstanding.
15-6 (c) The provisional license program <An
15-7 apprenticeship> shall include assisting a licensed funeral director
15-8 in this state with a minimum of sixty (60) <forty (40)> cases. No
15-9 more than two (2) provisional licensees <apprentices> may receive
15-10 credit for work done on any one body. The commission by rule shall
15-11 define the standards for a case and shall set the number of
15-12 complete cases a provisional licensee <an apprentice> is required
15-13 to execute during the program <apprenticeship>. The standards
15-14 required for a complete case shall include all the activities
15-15 necessary from the time the body is obtained until final
15-16 disposition. The commission by rule also shall establish
15-17 guidelines for provisional licensee supervision <apprentice
15-18 supervisors> under which a provisional licensee <an apprentice> is
15-19 granted increased responsibilities during the course of the
15-20 provisional license program <apprenticeship>.
15-21 (d) The commission shall set the license
15-22 <registration> and examination fees in an amount that is reasonable
15-23 and necessary for the administration of the program <registration
15-24 and examination>.
15-25 (e) An applicant for a funeral director license
15-26 may not be considered for licensure until the applicant completes
15-27 all of the requirements of the provisional license program and
16-1 attains a grade of 75 percent or higher on the written examination
16-2 given by the commission. The commission may require an applicant
16-3 to appear before at least one member of the commission for approval
16-4 of the person's application. The approval is subject to review by
16-5 the entire commission.
16-6 3. Annual renewal of provisional license
16-7 <apprenticeship certificate>: Each provisional license
16-8 <certificate of apprenticeship> issued by the commission to a
16-9 provisional <an apprentice> embalmer or <apprentice> funeral
16-10 director must be renewed on the first day of January of each year
16-11 and will be renewed upon payment by the provisional licensee
16-12 <apprentice> of a renewal fee, provided the provisional licensee
16-13 <apprentice> has observed the rules and regulations of the
16-14 commission <with respect to his apprenticeship>. Notice shall be
16-15 mailed, during the month of December each year, to each provisional
16-16 licensee <registered apprentice> at his last known address,
16-17 notifying him that the renewal fee is due. If a provisional
16-18 licensee <registered apprentice> fails to pay the annual renewal
16-19 fee by the due date, the commission shall impose a late payment
16-20 penalty equal in amount to the license renewal fee and shall
16-21 suspend the license <his certificate> for nonpayment and notify the
16-22 provisional licensee <such apprentice> of such suspension. If the
16-23 said renewal fee and penalty are not then paid within ninety (90)
16-24 days from the date of such notice of suspension, the commission
16-25 shall then cancel the license <such certificate>. Provided,
16-26 however, after the license <an apprentice certificate> has been
16-27 cancelled, the provisional licensee <apprentice> may apply for
17-1 reinstatement within eighteen (18) months from the date the license
17-2 <such apprentice certificate> was cancelled and the commission may
17-3 reinstate the provisional licensee <said apprentice> provided <he
17-4 meets> all other requirements of the commission are met and <pays>
17-5 the license fee and a late payment penalty equal in amount to the
17-6 license fee for the period of the cancellation are paid. A
17-7 provisional license <certificate of apprenticeship> may not be
17-8 renewed for more than two (2) <a total period of five (5)> years
17-9 from the date of its issuance unless the person requests and
17-10 receives an extension based on hardship from the commission. It is
17-11 provided that the registration fee of any provisional licensee
17-12 <apprentice> who is actively engaged in the military service of the
17-13 United States may be remitted for the duration of such service or
17-14 for such fees and such time as the commission may deem advisable
17-15 upon presentation of proper evidence required by the commission.
17-16 The commission shall set the renewal fee and the penalty in an
17-17 amount that is reasonable and necessary for the administration of
17-18 this Act. A provisional license <An apprentice certificate> that
17-19 has been cancelled or suspended or has lapsed for a period of five
17-20 (5) years or more may be reinstated only if the applicant takes and
17-21 passes the applicable examinations <apprenticeship examination>
17-22 under Subdivision 1 or 2 of this subsection. The commission may
17-23 adopt rules relating to the reinstatement of provisional licenses
17-24 under this subdivision <such an apprenticeship certificate>.
17-25 <3a. The commission by rule shall adopt a system under
17-26 which certificates expire on various dates during the year. The
17-27 date for sending notice that payment is due and the date for
18-1 suspension due to nonpayment shall be adjusted accordingly. For
18-2 the year in which the certificate expiration date is changed,
18-3 certification fees payable on January 1 shall be prorated on a
18-4 monthly basis so that each certificate holder shall pay only that
18-5 portion of the certification fee which is allocable to the number
18-6 of months during which the certificate is valid. On renewal of the
18-7 certificate on the new expiration date the total renewal fee is
18-8 payable.>
18-9 4. Notification of the commission upon entry into the
18-10 provisional license program <apprenticeship>: When a provisional
18-11 licensee <an apprentice> enters the employ of a licensed embalmer
18-12 or funeral director, the provisional licensee <he> shall
18-13 immediately notify the commission of the name and place of business
18-14 of the licensed embalmer or funeral director <whose service he has
18-15 entered and the name of the funeral director or embalmer> under
18-16 whom the provisional licensee <he> will train, and such
18-17 notification shall be signed by the embalmer or funeral director in
18-18 each case. If at any time thereafter the provisional licensee
18-19 <such apprentice> leaves the employ of the licensed embalmer or
18-20 funeral director <whose services he has entered>, the <said>
18-21 licensed embalmer or funeral director shall give the provisional
18-22 licensee <to such apprentice> an affidavit showing the length of
18-23 time the provisional licensee <he> has served <as an apprentice
18-24 with him> and the number of cases handled while so employed; the
18-25 original of said affidavit shall be filed with the commission and
18-26 made a matter of record, and a copy shall be furnished to the
18-27 provisional licensee <apprentice>. The commission shall furnish
19-1 report forms to be used by each provisional licensee <apprentice>.
19-2 5. A provisional licensee is subject to the same
19-3 disciplinary actions as a holder of a funeral director or embalmer
19-4 license for a violation of this Act or a rule adopted under this
19-5 Act <certificate of apprenticeship may be suspended or revoked as
19-6 provided and set forth in Section 3, subsection H>.
19-7 E. Any person engaged or desiring to engage in the practice
19-8 of embalming or funeral directing in this state, in connection with
19-9 the care and disposition of dead human bodies, shall make written
19-10 application to the commission for a license accompanying same with
19-11 an application fee. The license or licenses when issued shall be
19-12 signed by a majority of the commission and shall authorize the
19-13 licensee to practice the science of embalming and/or funeral
19-14 directing. All licenses shall be <registered in the office of the
19-15 County Clerk in any county in which the holder thereof resides and
19-16 practices embalming and/or funeral directing and shall be>
19-17 displayed conspicuously in each <the> place of business at which
19-18 the licensee practices funeral directing or embalming. A person
19-19 may renew an unexpired license by paying to the commission before
19-20 the expiration date of the license the required renewal fee. If a
19-21 person's license has been expired for ninety (90) days or less, the
19-22 person may renew the license by paying to the commission the
19-23 required renewal fee and a penalty fee that is one-half of the
19-24 renewal <examination> fee for the license. If a person's license
19-25 has been expired for longer than ninety (90) days but less than
19-26 five (5) <two (2)> years, the person may renew the license by
19-27 paying to the commission all unpaid renewal fees and a penalty fee
20-1 that is equal to one-half of the total of the unpaid renewal fees
20-2 <examination fee for the license>. If a person's license has been
20-3 expired for five (5) <two (2)> years or longer, the person may not
20-4 renew the license. The person may obtain a new license by
20-5 submitting to reexamination and complying with the requirements and
20-6 procedures for obtaining an original license. However, the
20-7 commission may renew without reexamination an expired license of a
20-8 person who was licensed in this state, moved to another state, and
20-9 is currently licensed and has been in practice in the other state
20-10 for the two (2) years preceding application. The person must pay
20-11 to the commission a fee that is equal to the renewal <examination>
20-12 fee for the license. At least thirty (30) days before the
20-13 expiration of a person's license, the commission shall send written
20-14 notice of the impending license expiration to the person at the
20-15 person's <licensee's> last known address according to the records
20-16 of the commission. The commission may by rule require continuing
20-17 education as a condition for license renewal except for persons
20-18 described in Subdivisions 4 and 5 of this subsection. If any
20-19 license issued under this Act is <shall be> lost or destroyed, the
20-20 holder of any such license may present his application for
20-21 duplicate license to the commission, on a form to be prescribed by
20-22 the commission, together with his affidavit of such loss or
20-23 destruction, and that he is the same person to whom such license
20-24 was issued, and such other information concerning its loss or
20-25 destruction as the commission shall require, and shall, upon
20-26 payment of a duplicate license fee, as determined by the
20-27 commission, be granted a duplicate license.
21-1 H. The commission may, after a hearing as provided by
21-2 Section 6C of this Act, reprimand, assess an administrative
21-3 penalty, revoke, suspend, or probate the suspension of a license or
21-4 provisional license, or impose any combination of these sanctions
21-5 against a licensed <seek appropriate injunctive relief against a
21-6 funeral establishment, licensed embalmer, or> funeral director, a
21-7 licensed embalmer, or a provisional licensee <who fails to comply
21-8 with any provision of this Act, including a violation relating to
21-9 prepaid funeral services or funeral services delivered at the time
21-10 of need. This Act does not affect any remedy or enforcement power
21-11 under other laws>. The commission may assess an administrative
21-12 penalty without a hearing if the penalty is assessed <against a
21-13 licensed individual or establishment> in the manner provided by
21-14 Section 6G of this Act <or as the result of a hearing conducted in
21-15 the manner provided by Section 6C of this Act>. Action taken by
21-16 the commission under this section may be based only on a violation
21-17 of this Act or a rule adopted under this Act. The commission may
21-18 refuse without a hearing to license a person or to permit a person
21-19 to serve as a provisional licensee if the person has violated this
21-20 Act or a rule adopted under this Act. A person whose license or
21-21 provisional license application is refused under this subsection
21-22 may appeal the decision by requesting a hearing not later than the
21-23 30th day after the date of the refusal. The commission and the
21-24 person whose application for license or provisional license is
21-25 refused may agree to the issuance of a probationary license or the
21-26 commission may, after a hearing, order that a license be issued on
21-27 a probationary basis. A violation of this Act includes the
22-1 following <After a hearing conducted in the manner provided by
22-2 Section 6C, the commission may issue a reprimand under Section 6H
22-3 of this Act. The commission may assess an administrative penalty,
22-4 revoke, suspend, or place on probation any licensed funeral
22-5 director and/or embalmer or apprentice who violates any provision
22-6 of this Act, including a violation relating to prepaid funeral
22-7 services or funeral services delivered at the time of need. The
22-8 commission may issue a reprimand or refuse to license or admit
22-9 persons to examination for any of the following reasons all of
22-10 which are offenses as provided in Section 6A of this Act>:
22-11 1. The presentation to the commission of any license,
22-12 certificate, or diploma that <which> was illegally or fraudulently
22-13 obtained, or when fraud or deception has been practiced in passing
22-14 the examination;
22-15 2. Conviction of:
22-16 (A) a felony; or
22-17 (B) a misdemeanor related to the practice of
22-18 embalming or funeral directing;
22-19 3. Being unfit to practice as a funeral director
22-20 and/or embalmer by reason of insanity and having been adjudged by a
22-21 court of competent jurisdiction to be of unsound mind;
22-22 4. The use of any statement that misleads or deceives
22-23 the public, including but not limited to false or misleading
22-24 statements regarding (1) any legal, religious, or cemetery
22-25 requirement for funeral merchandise or funeral services, (2) the
22-26 preservative qualities of funeral merchandise or funeral services
22-27 in preventing or substantially delaying natural decomposition or
23-1 decay of human remains, (3) the airtight or watertight properties
23-2 of a casket or outer enclosure, or (4) representations as to
23-3 licensed personnel in the operation of a funeral establishment;
23-4 5. The purchase, sale, barter, or use, or any offer to
23-5 purchase, sell, barter, or use any license, certificate, or
23-6 transcript of license or certificate, in or incident to an
23-7 application to the commission for license to practice as a funeral
23-8 director and/or embalmer;
23-9 6. Altering, with fraudulent intent, any funeral
23-10 director and/or embalmer license, certificate, or transcript of
23-11 license or certificate;
23-12 7. The use of any funeral director and/or embalmer
23-13 license, certificate, diploma<,> or transcript of any such funeral
23-14 director and/or embalmer license, certificate, or diploma that<,
23-15 which> has been fraudulently purchased, issued, counterfeited, or
23-16 materially altered;
23-17 8. The impersonation of, or acting as proxy for,
23-18 another in any examination required by this Act for a funeral
23-19 director and/or embalmer license;
23-20 9. The impersonation of a licensed funeral director or
23-21 embalmer as authorized by this Act <hereunder>, or permitting<,> or
23-22 allowing another to use a person's <his> license<,> or certificate
23-23 to practice as a funeral director or embalmer in this state;
23-24 10. A violation of Section 1, 5, or 9, Chapter 512,
23-25 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
23-26 Vernon's Texas Civil Statutes), or a rule adopted under that Act;
23-27 11. Taking custody of a dead human body without the
24-1 permission of the person or the agent of the person authorized to
24-2 make funeral arrangements for the deceased, <embalming, or>
24-3 refusing to promptly surrender a dead human body to a person or
24-4 <his> agent authorized to make funeral arrangements for the
24-5 deceased, or embalming a body without the express written or oral
24-6 permission of a person authorized to make funeral arrangements for
24-7 the deceased or without making a documented reasonable effort over
24-8 a period of at least three (3) <two (2)> hours to obtain the
24-9 permission;
24-10 11A. Embalming or attempting to embalm <Attempting>
24-11 without proper authority <to embalm> a dead human body. Evidence
24-12 of embalming or attempting to embalm includes, but is not limited
24-13 to, <as evidenced by the use of sutures or mechanical devices in
24-14 the posing of any facial feature and:>
24-15 <(A)> the making of any incision on the body,<;
24-16 or>
24-17 <(B)> the raising of any circulatory vessel of
24-18 the body, or the injection of any chemical into the body;
24-19 12. Wilfully making any false statement on a
24-20 certificate of death or on a document required by this Act or by a
24-21 rule adopted under this Act;
24-22 13. Employment directly or indirectly of any
24-23 provisional licensee <apprentice>, agent, assistant, embalmer,
24-24 funeral director, employee, or other person on a part or full-time
24-25 basis, or on commission, for the purpose of soliciting individuals
24-26 or institutions by whose influence dead human bodies may be turned
24-27 over to a particular funeral director, <or> embalmer, or funeral
25-1 establishment;
25-2 14. Presentation of false certification of work done
25-3 as a provisional licensee <an apprentice on apprenticeship
25-4 records>;
25-5 15. Unfitness by reason of present substance abuse
25-6 <drug addiction>;
25-7 16. Whenever a licensee, provisional licensee
25-8 <apprentice>, or any other person, whether employee, agent, <or>
25-9 representative, or one in any manner associated with a funeral
25-10 establishment engages <shall engage> in solicitation as defined in
25-11 this Act;
25-12 17. Failure by the Funeral Director in Charge to
25-13 provide licensed personnel for direction or personal supervision
25-14 for a "first call," as that term is defined in this Act;
25-15 18. Misappropriation <Intentional misappropriation> of
25-16 any funds held by a licensee, funeral establishment, including its
25-17 employees and agents, or other depository, that create <creates> an
25-18 obligation to provide a funeral service or merchandise, including
25-19 retention for an unreasonable time of excess funds paid by or on
25-20 behalf of the consumer for which the consumer is entitled to a
25-21 refund;
25-22 19. Performing acts of funeral directing or embalming,
25-23 as those terms are defined in this Act, that <which> are outside
25-24 the licensed scope and authority of the licensee, or performing
25-25 acts of funeral directing or embalming in a capacity other than
25-26 that of an employee, agent, subcontractor, or assignee of a
25-27 licensed funeral establishment that has contracted to perform those
26-1 acts;
26-2 20. Engaging in fraudulent, unprofessional, or
26-3 deceptive conduct in providing funeral services or merchandise to a
26-4 consumer;
26-5 21. Statement or implication by a funeral director or
26-6 embalmer that a customer's concern with the cost of any funeral
26-7 service or funeral merchandise is improper or indicates a lack of
26-8 respect for the deceased;
26-9 22. Failure by any person arranging for funeral
26-10 services or merchandise to:
26-11 (A) provide a prospective customer with a copy
26-12 of the brochure required by Section 6E of this Act at the beginning
26-13 of the arrangement process <inform a customer or prospective
26-14 customer of the availability of a retail price list>;
26-15 (B) provide a retail price list to an individual
26-16 inquiring in person about any funeral service or merchandise <the
26-17 customer or prospective customer> for that person to keep;
26-18 (C) explain to the customer or prospective
26-19 customer that a contractual agreement for funeral services or
26-20 merchandise may not be entered into before the presentation of the
26-21 retail price list to that person; or
26-22 (D) provide general price information by
26-23 telephone within a reasonable time;
26-24 23. Failure by any person arranging for funeral
26-25 services or merchandise to provide each customer at the conclusion
26-26 of the arrangement process a written memorandum or funeral purchase
26-27 agreement signed by the funeral director making the arrangements
27-1 itemizing the cost of funeral services and funeral merchandise
27-2 selected by the customer; however, if the customer selects a
27-3 package arrangement based on unit pricing, the itemization
27-4 requirement is satisfied by providing a written memorandum that
27-5 itemizes the discount provided by the package arrangement. The use
27-6 of unit pricing does not affect <preclude> the presentation of the
27-7 retail price list as required by Subdivision 22 of this subsection;
27-8 24. Restricting, hindering, or attempting to restrict
27-9 or hinder (1) the advertising or disclosure of prices and other
27-10 information regarding the availability of funeral services and
27-11 funeral merchandise that is not unfair or deceptive to consumers,
27-12 or (2) agreements for funeral services between any consumer or
27-13 group of consumers and funeral directors or embalmers;
27-14 25. Failure to retain and make available to the
27-15 commission, upon request, copies of all price lists, written
27-16 notices, embalming documents, and memoranda of agreement required
27-17 by this Act <article> for two (2) years after the date of their
27-18 distribution or signing;
27-19 26. Violation of this Act, <or of> any rule adopted
27-20 under this Act<, regulation>, an <or> order by the commission
27-21 revoking, suspending, or probating a license, an order assessing an
27-22 administrative penalty, or an agreement to pay an administrative
27-23 penalty regardless of whether the agreement is express or implied
27-24 by Section 6(G)(d) of this Act <issued under this Act>;
27-25 27. Dishonest conduct, wilful conduct, negligence, or
27-26 gross negligence in the practice of embalming or funeral directing
27-27 that is likely to or does deceive, defraud, or otherwise injure the
28-1 public; <and>
28-2 28. Allowing the use of a dead human body <bodies> by
28-3 an unlicensed embalming establishment for research or educational
28-4 purposes without the written permission of the family or person
28-5 arranging the funeral; and
28-6 29. Causing the execution of a document by the use of
28-7 fraud, deceit, or misrepresentation.
28-8 J. A person who wishes to apply for a funeral director or
28-9 embalmer license but has a criminal conviction described by
28-10 Subsection H.2. of this section, may request a hearing on whether
28-11 the conviction prevents the commission from issuing a license or
28-12 provisional license. A hearing under this subsection must be
28-13 requested before the person enters mortuary school and shall be
28-14 conducted as required under Section 6C of this Act. A decision
28-15 made in a hearing under this subsection, unless modified on appeal,
28-16 is binding on the commission and on the person who requests the
28-17 hearing when the person applies to the commission for the license
28-18 or provisional license.
28-19 SECTION 6. Subsections B, C, D, and G, Section 4, Chapter
28-20 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
28-21 4582b, Vernon's Texas Civil Statutes), are amended to read as
28-22 follows:
28-23 B. No funeral establishment shall conduct funeral business
28-24 as intended under this Act unless duly licensed. The commission
28-25 may refuse to issue an establishment license to an individual,
28-26 partnership, or corporation if the individual, a partner, or an
28-27 officer or director of the corporation:
29-1 (1) has been convicted of a felony, or a misdemeanor
29-2 related to the practice of embalming or funeral directing;
29-3 (2) previously held an establishment license that was
29-4 suspended or revoked;
29-5 (3) has violated this Act, a rule adopted under this
29-6 Act, or Chapter 512, Acts of the 54th Legislature, Regular Session,
29-7 1955 (Article 548b, Vernon's Texas Civil Statutes);
29-8 (4) submits false information on the application for
29-9 an establishment license; or
29-10 (5) attempts to avoid a revocation, suspension, or
29-11 license refusal by subterfuge or other evasive means.
29-12 C. Each funeral establishment shall be required to have a
29-13 physical plant, equipment and personnel consisting of the
29-14 following:
29-15 1. Some facilities in which funeral services may be
29-16 conducted;
29-17 2. A physical plant which meets building standards and
29-18 fire safety standards of the state and of the municipality in which
29-19 the establishment is located;
29-20 3. Access to rolling stock consisting of at least one
29-21 motor hearse;
29-22 4. A preparation room containing facilities,
29-23 equipment, and supplies required by commission rule to ensure the
29-24 provision of adequate embalming services <an operating table, sewer
29-25 facilities, hot and cold running water,> and other facilities
29-26 necessary to comply with the sanitary code of the state and the
29-27 municipality in which the room is located;
30-1 5. A display containing sufficient merchandise to
30-2 permit reasonable selection, including five (5) or more adult
30-3 caskets, provided that the least expensive casket offered for sale
30-4 by a funeral establishment must be visibly displayed without
30-5 concealment in the same general manner as other caskets are
30-6 displayed;
30-7 6. Sufficient licensed personnel who will be available
30-8 to conduct the operation of the funeral establishment;
30-9 7. A physical plant located at a fixed place, and not
30-10 located on any tax-exempt property or cemetery; and
30-11 8. A physical plant which meets the health standards
30-12 or health ordinances of the state and of the municipality in which
30-13 the establishment is located.
30-14 It is expressly provided, however, that an establishment
30-15 which functions solely as a commercial embalmer, as that term is
30-16 defined in this Act, shall have a commercial embalmers
30-17 establishment license, but shall not be required to meet the
30-18 requirements of sub-sections 1 and 5 of this paragraph C.
30-19 D. 1. The commission may, after a hearing as provided by
30-20 Section 6C of this Act, reprimand, assess an administrative
30-21 penalty, revoke, suspend, or probate the suspension of a license,
30-22 or impose any combination of these sanctions against a licensed
30-23 funeral establishment. The commission may assess an administrative
30-24 penalty without a hearing if the penalty is assessed as provided
30-25 by Section 6G of this Act. Action taken by the commission under
30-26 this section may only be based on a violation of this Act or a rule
30-27 adopted under this Act. The commission may refuse without a
31-1 hearing to license an establishment if an owner of the
31-2 establishment has committed an act listed in Subsection B of this
31-3 section. An establishment whose license is refused under this
31-4 subsection may appeal the decision by requesting a hearing not
31-5 later than the 30th day after the date of the refusal. The
31-6 commission and the establishment whose application for license is
31-7 refused may agree to the issuance of a probationary license or the
31-8 commission may, after a hearing, order that a license be issued on
31-9 a probationary basis. A violation of this Act includes the
31-10 following <initiate action against a funeral establishment or in
31-11 regard to the license of a funeral establishment upon the following
31-12 grounds>:
31-13 (a) Failure of a funeral establishment to
31-14 substantially comply with the provisions of Subsection B or C of
31-15 this Section.
31-16 (b) Failure by any person associated with the
31-17 funeral establishment, whether as an employee, agent,
31-18 subcontractor, assignee, owner, or otherwise, and whether licensed
31-19 or unlicensed, to comply with <Section 3 of> this Act or a rule
31-20 adopted under this Act.
31-21 (c) The use of any advertising statement of a
31-22 character that <which> misleads or deceives the public, or use of,
31-23 in connection with advertisements, the names of persons who do not
31-24 hold a license as a funeral director or embalmer and representing
31-25 <represent> them as being <to be> so licensed.
31-26 (d) Whenever a licensee, provisional licensee
31-27 <apprentice>, or any other person, whether an employee, agent, or
32-1 representative, or one in any manner associated with a funeral
32-2 establishment shall solicit business or offer any inducement,
32-3 pecuniary or otherwise, for the purpose of securing or attempting
32-4 to secure business for such funeral establishment, unless such
32-5 solicitation is made pursuant to a permit issued under Chapter 512,
32-6 Acts of the 54th Legislature, Regular Session, 1955<, as amended>
32-7 (Article 548b, Vernon's Texas Civil Statutes).
32-8 (e) Failure by the funeral director in charge to
32-9 provide a licensed funeral director <personnel> for direction or
32-10 personal supervision of <for> a "first call" as that term is
32-11 defined in this Act.
32-12 (f) Any violation by a funeral establishment or
32-13 a person acting on behalf of a funeral establishment or any person
32-14 directly or indirectly connected with a funeral establishment <who
32-15 violates any provision> of Chapter 512, Acts of the 54th
32-16 Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
32-17 Civil Statutes) or a rule adopted under that Act.
32-18 (g) Any violation by a funeral establishment or
32-19 a person acting on behalf of a funeral establishment of <under>
32-20 Chapter 193 or 361, Health and Safety Code.
32-21 2. With <Provided, however, with> respect to <alleged>
32-22 violations of Subsection D. 1.(b), (c), (d), (e), (f), or (g), the
32-23 commission may not initiate action against a funeral establishment
32-24 or in regard to the license of a funeral establishment if <when>
32-25 the <ground or grounds of> complaint is <are> based on the conduct
32-26 of employees, agents, or representatives of such establishment
32-27 performed outside the scope and authority of their employment or
33-1 contrary to the instructions of the funeral establishment and its
33-2 management. <The commission may initiate such an action if those
33-3 persons are acting within the scope and authority of their
33-4 employment, or by the direction of the funeral establishment
33-5 management.>
33-6 <2. As to asserted violations of provisions of this
33-7 Section, the commission shall have the following powers, rights and
33-8 duties:>
33-9 <(a) The commission may, in any case, require a
33-10 sworn statement setting forth matter complained of as a condition
33-11 to taking further action.>
33-12 <(b) The commission shall cause an investigation
33-13 to be made whenever a complaint is filed with or by the commission.
33-14 The commission may investigate a complaint relating to prepaid
33-15 funeral services only if the investigation conducted by the
33-16 commission does not interfere with or duplicate an investigation
33-17 conducted by the Banking Department of Texas under Chapter 512,
33-18 Acts of the 54th Legislature, 1955 (Article 548b, Vernon's Texas
33-19 Civil Statutes), relating to prepaid funeral services.>
33-20 <(c) The commission may assess an administrative
33-21 penalty, revoke or suspend a funeral establishment or a commercial
33-22 embalming establishment license, issue a reprimand against such a
33-23 licensee, or place a licensee on probation for a violation of this
33-24 Act or of a rule or regulation adopted under this Act. The
33-25 commission may also assess an administrative penalty in the manner
33-26 provided by Section 6G of this Act for such a violation.>
33-27 G. (1) Any premises on which funeral directing or embalming
34-1 is practiced shall be open at all times to inspection for
34-2 violations of <under> this Act and of <under> Chapters 193 and 361,
34-3 Health and Safety Code, by any agent of the commission or by any
34-4 duly authorized agent of the state or of the county or municipality
34-5 in which the premises are located. Each licensed funeral
34-6 establishment shall be thoroughly inspected annually <biennially>
34-7 by an agent of the commission or by an agent of the state or a
34-8 political subdivision thereof whom the commission has authorized to
34-9 make inspections on its behalf. A report of this annual <biennial>
34-10 inspection shall be filed with the commission.
34-11 (2) Before an agent of the commission conducts an
34-12 inspection of an establishment, the agent shall review the
34-13 inspection reports on the establishment filed with the commission.
34-14 During the inspection, the agent shall determine whether previously
34-15 identified problems have been corrected and whether a pattern of
34-16 violations exists. The commission shall consider the information
34-17 from inspection reports when the commission determines whether a
34-18 penalty should be imposed against an establishment.
34-19 (3) When an agent inspects an establishment, the agent
34-20 shall inspect for violations under this Act and under Chapters 193
34-21 and 361, Health and Safety Code.
34-22 (4) The commission by rule shall establish procedures
34-23 for the inspection of a funeral establishment required by this
34-24 subsection.
34-25 SECTION 7. Section 6, Chapter 251, Acts of the 53rd
34-26 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
34-27 Civil Statutes), is amended to read as follows:
35-1 Sec. 6. PROBATION, WARNING LETTERS; REINSTATEMENT
35-2 <REVOCATION, CANCELLATION OR SUSPENSION OF LICENSES OF FUNERAL
35-3 DIRECTORS, EMBALMERS AND APPRENTICES>. (a) If the <The>
35-4 commission places <may revoke or suspend a license, place> on
35-5 probation a person whose license has been suspended, <or reprimand
35-6 a licensee for a violation of this Act or a rule of the commission.
35-7 If a licensee suspension is probated,> the commission may impose
35-8 conditions on the probation that are reasonable and related to the
35-9 violation for which the license was suspended. If the commission
35-10 orders probation, the commission may require the licensee
35-11 <practitioner>:
35-12 (1) to report regularly to the commission on matters
35-13 that are the basis of the probation;
35-14 (2) to limit practice to the areas prescribed by the
35-15 commission; or
35-16 (3) to continue or renew professional education until
35-17 the licensee <practitioner> attains a degree of skill satisfactory
35-18 to the commission in those areas that are the basis of the
35-19 probation.
35-20 (b) If the commission places a licensee on probation, the
35-21 commission shall notify the licensee in writing of the probation.
35-22 The commission shall furnish the licensee with written probationary
35-23 orders that detail the actions required by the commission of the
35-24 licensee during the period of probation. The commission shall
35-25 develop and adopt a system to monitor the actions of a licensee
35-26 during the period of probation and to determine whether the
35-27 licensee has complied with the probationary orders.
36-1 (c) When the commission has conducted an investigation that
36-2 identifies a violation of this Act by a licensee and the commission
36-3 does not assess an administrative penalty, issue a reprimand, or
36-4 impose any other penalty against the licensee, the commission shall
36-5 issue a written warning to the licensee. The warning shall
36-6 describe the violation identified during the investigation and
36-7 shall state the date by which the commission must receive from the
36-8 licensee a written report that describes the measures implemented
36-9 by the licensee to correct the violation and the dates those
36-10 measures were implemented. If the commission does not receive the
36-11 report by the required date, the commission shall assess an
36-12 administrative penalty, in an amount set by the commission, on the
36-13 licensee for the failure to file the report.
36-14 (d) <Proceedings under this Section shall be initiated by
36-15 filing charges with the commission in writing and under oath. Said
36-16 charges may be made by any person or persons. If the commission
36-17 proposes to suspend or revoke a person's license, the person is
36-18 entitled to a hearing before the commission or a hearings officer
36-19 appointed by the commission. The commission shall prescribe
36-20 procedures by which all decisions to suspend or revoke are made by
36-21 or are appealable to the commission. The Executive Director of the
36-22 commission shall set a time and place for hearing.> Upon
36-23 application, the commission may reissue a license to practice as a
36-24 funeral director or embalmer to a person whose license has been
36-25 cancelled, <or> suspended, or revoked but such application may<, in
36-26 the case of cancellation or revocation, shall> not be made prior to
36-27 one (1) year after the cancellation, suspension, or revocation, and
37-1 shall be made in such a manner and form as the commission may
37-2 require. A hearing to determine whether to reissue a license shall
37-3 be held before the commission unless the commission requires the
37-4 hearing to be held before a hearings officer.
37-5 <(e) The commission shall have the power to appoint
37-6 committees from the commissioners. The committees may consider
37-7 such matters pertaining to the enforcement of this Act as shall be
37-8 referred to such committees, and they shall make recommendations to
37-9 the commission with respect thereto. The commission shall have the
37-10 power, and may delegate the said power to any committee, to issue
37-11 subpoenas duces tecum, and to compel the attendance of witnesses,
37-12 the production of books, records and documents, to administer
37-13 oaths, and to take testimony concerning all matters within its
37-14 jurisdiction. The determination shall be founded on sufficient
37-15 legal evidence to sustain it. The commission shall have the right
37-16 to institute an action in its own name to enjoin the violation of
37-17 any of the provisions of this Act. Said action for an injunction
37-18 shall be in addition to any other action, proceeding, or remedy
37-19 authorized by law. The commission shall be represented by the
37-20 Attorney General and/or the County or District Attorneys of this
37-21 state, or counsel designated and empowered by the commission.
37-22 Before entering any order cancelling, suspending, refusing to
37-23 renew, or revoking a license to practice as a funeral director
37-24 and/or embalmer, the commission shall hold a hearing in accordance
37-25 with the procedure as set forth in this Act.>
37-26 <(f) The provisions of this Section shall not apply to
37-27 funeral establishments or licenses pertaining to funeral
38-1 establishments.>
38-2 SECTION 8. Section 6A, Chapter 251, Acts of the 53rd
38-3 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-4 Civil Statutes), is amended to read as follows:
38-5 Sec. 6A. OFFENSES. A person commits an offense if the
38-6 person:
38-7 (1) acts or holds himself out as a funeral director,
38-8 embalmer, or provisional licensee <apprentice>, as those terms are
38-9 defined in this Act, without being properly licensed under this Act
38-10 or makes <shall make> a "first call" in a manner that violates
38-11 <without the authorization or supervision as provided in> Section
38-12 1C of this Act;
38-13 (2) is a licensed funeral director, <or> embalmer, or
38-14 provisional licensee and engages in a funeral practice that is a
38-15 violation of this Act or a rule adopted under this Act <grounds for
38-16 suspension or revocation of the person's license>; or
38-17 (3) violates Section 1, 5, or 9, Chapter 512, Acts of
38-18 the 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
38-19 Texas Civil Statutes), or a rule adopted under that Act, regardless
38-20 of whether the Banking Department of Texas or any other
38-21 governmental agency takes action relating to the violation.
38-22 SECTION 9. Section 6C, Chapter 251, Acts of the 53rd
38-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-24 Civil Statutes), is amended to read as follows:
38-25 Sec. 6C. Administrative Procedure and Texas Register Act.
38-26 (a) A person who is denied a license or provisional license
38-27 <certificate> by the commission is entitled to a hearing before the
39-1 commission in accordance with the Administrative Procedure and
39-2 Texas Register Act<, as amended> (Article 6252-13a, Vernon's Texas
39-3 Civil Statutes), if the person requests the hearing in writing not
39-4 later than the 30th day after the date the notice of denial is
39-5 sent.
39-6 (b) A proceeding conducted by the commission relating to the
39-7 denial of a license or provisional license, the suspension or
39-8 revocation of a license, or the imposition of an administrative
39-9 penalty, other than an administrative penalty assessed without a
39-10 hearing as provided by Section 6G of this Act, <or certificate> is
39-11 governed by the Administrative Procedure and Texas Register Act, as
39-12 amended (Article 6252-13a, Vernon's Texas Civil Statutes).
39-13 Judicial review of the proceeding is subject to the substantial
39-14 evidence rule and is governed by the Administrative Procedure and
39-15 Texas Register Act.
39-16 (c)(1) A proceeding brought under Subsection (b) of this
39-17 section may <shall> be held before a hearings officer. The
39-18 executive director shall set a time and place for the hearing.
39-19 (2) The hearings officer must be an attorney licensed
39-20 in this state. In the course of a proceeding the hearings officer
39-21 may:
39-22 (A) administer oaths;
39-23 (B) take testimony;
39-24 (C) rule on questions of evidence;
39-25 (D) make determinations of fact; or
39-26 (E) order compliance with proper discovery
39-27 requests.
40-1 (3) The commission shall provide the hearings officer
40-2 with a written statement of all commission rules or policies that
40-3 govern the proceeding.
40-4 (4) At the conclusion of the proceeding the hearings
40-5 officer shall make a ruling on the matter accompanied by written
40-6 findings of facts and conclusions of law.
40-7 (5) The commission shall review the findings of fact,
40-8 conclusions of law, and ruling of the hearings officer before
40-9 making its final ruling in the proceeding. The commission may also
40-10 review a transcript of the proceeding before making its final
40-11 ruling. The commission shall adopt the ruling of the hearings
40-12 officer as its ruling unless it finds good cause to issue a
40-13 different ruling. The commission shall explain in writing the
40-14 reasons for adopting a ruling other than the one issued by the
40-15 hearings officer.
40-16 <(6) Not later than the 10th day after the date the
40-17 hearings officer makes a ruling, the licensee may appeal the ruling
40-18 to the commission. Except for good cause, the commission shall
40-19 make its final ruling not later than the 10th day after the date
40-20 the appeal is made.>
40-21 (d) The commission shall inform each interested person,
40-22 including a person filing the complaint, of the <their> right to
40-23 obtain at that person's cost a tape or transcript of a hearing or
40-24 proceeding under this section.
40-25 SECTION 10. Section 6D(e), Chapter 251, Acts of the 53rd
40-26 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
40-27 Civil Statutes), is amended to read as follows:
41-1 (e) If a person files a complaint with the commission
41-2 relating to a licensed funeral director, embalmer, provisional
41-3 licensee, or funeral establishment, the commission shall furnish to
41-4 the person an explanation of the remedies that are available to the
41-5 person under this Act and information about appropriate state or
41-6 local agencies or officials with which the person may file a
41-7 complaint.
41-8 SECTION 11. Section 6G, Chapter 251, Acts of the 53rd
41-9 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
41-10 Civil Statutes), is amended to read as follows:
41-11 Sec. 6G. ADMINISTRATIVE PENALTY. (a) If the commission
41-12 determines that a person or establishment regulated under this Act
41-13 has violated this Act or a rule adopted under this Act <in a manner
41-14 that constitutes a ground for a license suspension under Subsection
41-15 H, Section 3, or Section 4 of this Act>, the commission may assess
41-16 an administrative penalty against that person or establishment as a
41-17 result of a hearing conducted in the manner provided by Section 6C
41-18 of this Act or as provided by this section. If an administrative
41-19 penalty is assessed after a hearing conducted under Section 6C of
41-20 this Act, the commission shall follow the procedures described in
41-21 Subsections (e) through (h) of this section.
41-22 (b) The commission may assess the administrative penalty in
41-23 an amount not less than One Hundred Dollars ($100) or more than
41-24 Five Thousand Dollars ($5,000) for each act of violation. In
41-25 determining the amount of the penalty, the commission shall employ
41-26 guidelines established by commission rule <consider the seriousness
41-27 of the violation>.
42-1 (c) If, after examination of a possible violation and the
42-2 facts relating to that possible violation, the commission concludes
42-3 that a violation has occurred, the commission shall issue a
42-4 preliminary report that states the facts on which the conclusion is
42-5 based, the fact that an administrative penalty is to be imposed,
42-6 and the amount to be assessed. Not later than the tenth (10th) day
42-7 after the day on which the commission issues the preliminary
42-8 report, the commission shall send a copy of the report to the
42-9 person or establishment charged with the violation, together with a
42-10 statement of the right of the person or establishment to a hearing
42-11 relating to the alleged violation and the amount of the penalty.
42-12 (d) Not later than the thirtieth (30th) <twentieth (20th)>
42-13 day after the date <day> on which the preliminary report is sent,
42-14 the person or establishment charged either may make a written
42-15 request for a hearing or may remit the amount of the administrative
42-16 penalty to the commission. Failure either to request a hearing or
42-17 to remit the amount of the penalty within the time provided by this
42-18 subsection results in a waiver of a right to a hearing under this
42-19 Act. Unless a hearing is requested, the penalty is due on the
42-20 thirtieth (30th) day after the date the preliminary report is sent.
42-21 Failure to pay the penalty by that date automatically suspends the
42-22 affected license for six (6) months. If the person or
42-23 establishment charged requests a hearing, the hearing shall be
42-24 conducted in the manner provided by Section 6C of this Act. <If it
42-25 is determined after hearing that the person or establishment has
42-26 committed the alleged violation, the commission shall give written
42-27 notice to the person or establishment of the findings established
43-1 by the hearing and the amount of the penalty, and shall enter an
43-2 order requiring the person or establishment to pay the penalty.>
43-3 (e)(1) If an administrative penalty is assessed after a
43-4 hearing conducted under Section 6C of this Act, not <Not> later
43-5 than the thirtieth (30th) day after the date <day> on which the
43-6 order <notice> is sent or a motion for rehearing is denied
43-7 <received>, the person or establishment charged shall pay the
43-8 administrative penalty in full, or, if the person or establishment
43-9 wishes to contest either the amount of the penalty or the fact of
43-10 the violation, the person or establishment shall not later than the
43-11 thirtieth (30th) day after the date on which the order is sent or a
43-12 motion for rehearing is denied:
43-13 (A) remit the assessed amount to the commission
43-14 for deposit in an escrow account; or
43-15 (B) post a supersedeas bond in a form approved
43-16 by the commission for the amount of the penalty.
43-17 (2) If, after judicial review, it is determined that
43-18 no violation occurred or that the amount of the penalty should be
43-19 reduced, the commission shall remit the appropriate amount to the
43-20 person or establishment charged with the violation not later than
43-21 the thirtieth (30th) day after the date <day> on which the judicial
43-22 determination becomes final.
43-23 (f) Failure to remit the amount of the administrative
43-24 penalty to or post bond with the commission within the time
43-25 provided by this Act <section> results in a waiver of all legal
43-26 rights to contest the violation or the amount of the penalty. If
43-27 the person or establishment fails to remit the amount of the
44-1 administrative penalty to or post bond with the commission within
44-2 that time, or within a longer period with the consent of the
44-3 commission, the license of that person or establishment is
44-4 suspended for six (6) months. After notice and a hearing, the
44-5 commission may extend the license suspension for a longer period or
44-6 may revoke or cancel the license for failure to remit the penalty
44-7 or post bond.
44-8 (g) An administrative penalty owed under this Act shall
44-9 <section may> be recovered in a civil action brought by the
44-10 Attorney General at the request of the commission.
44-11 (h) A penalty collected under this Act <section> shall be
44-12 deposited <in the State Treasury> to the credit of an account in
44-13 the general revenue fund that may be used only for the purpose of
44-14 administering the continuing education program under Section 3 of
44-15 this Act.
44-16 SECTION 12. Section 6H(c), Chapter 251, Acts of the 53rd
44-17 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
44-18 Civil Statutes), is amended to read as follows:
44-19 (c) Not later than the thirtieth (30th) <twentieth (20th)>
44-20 day after the date <day> on which the preliminary report is sent,
44-21 the person or establishment charged may make a written request for
44-22 a hearing. Failure to request a hearing within the time provided
44-23 by this subsection results in a waiver of a right to a hearing
44-24 under this Act and the reprimand shall be issued by the commission
44-25 and placed in the permanent files of the commission. If the person
44-26 or establishment charged requests a hearing, the hearing shall be
44-27 conducted in the manner provided by Section 6C of this Act. If it
45-1 is determined after hearing that the person or establishment has
45-2 committed the alleged violation, the commission is not limited to
45-3 the issuance of a reprimand but may also take any action allowed
45-4 under <Subsection H, Section 3, or Subsection D, Section 4, of>
45-5 this Act.
45-6 SECTION 13. Section 6I, Chapter 251, Acts of the 53rd
45-7 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
45-8 Civil Statutes), is amended to read as follows:
45-9 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The commission
45-10 or <and> a hearings officer shall review each disciplinary
45-11 proceeding to determine whether the licensee has committed the same
45-12 type of violation on one or more previous occasions. If it is
45-13 determined that the licensee has previously committed the same type
45-14 of violation, the commission or hearings officer shall impose a
45-15 disciplinary action that is more severe than that imposed on the
45-16 previous occasion.
45-17 (b) In a disciplinary proceeding involving multiple
45-18 violations of this Act, the commission or <and> the hearings
45-19 officer <examiner> shall impose a disciplinary action that is more
45-20 severe than the disciplinary action that would be imposed
45-21 cumulatively for each of the individual violations.
45-22 SECTION 14. Section 7(b), Chapter 251, Acts of the 53rd
45-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
45-24 Civil Statutes), is amended to read as follows:
45-25 (b) The commission may file a complaint with the appropriate
45-26 governmental authorities to begin prosecution of a person who
45-27 commits an offense under Section 6A of this Act. The commission or
46-1 any adversely affected party may sue a funeral establishment or
46-2 <licensed> embalmer or funeral director who fails to comply with
46-3 <any provision of> this Act or a rule adopted under this Act for
46-4 appropriate injunctive relief. This Act does not affect a remedy
46-5 or enforcement power under other laws.
46-6 SECTION 15. Section 9, Chapter 251, Acts of the 53rd
46-7 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
46-8 Civil Statutes), is amended to read as follows:
46-9 Sec. 9. CONSTRUCTION WITH OTHER LAW. This Act does not
46-10 limit or replace the authority of the Banking Department of Texas
46-11 to regulate and enforce Chapter 512, Acts of the 54th Legislature,
46-12 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
46-13 Statutes). The authority of the commission as to Chapter 512, Acts
46-14 of the 54th Legislature, Regular Session, 1955 (Article 548b,
46-15 Vernon's Texas Civil Statutes), and its subsequent amendments is
46-16 limited to the imposition of an administrative penalty, issuance of
46-17 a reprimand, or suspension, revocation, or probation of a license
46-18 issued by the <that> commission.
46-19 SECTION 16. Subsection K, Section 1, Chapter 251, Acts of
46-20 the 53rd Legislature, 1953 (Article 4582b, Vernon's Texas Civil
46-21 Statutes), is repealed.
46-22 SECTION 17. This Act takes effect September 1, 1993.
46-23 SECTION 18. On the effective date of this Act any person
46-24 serving as an apprentice under Chapter 251, Acts of the 53rd
46-25 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
46-26 Civil Statutes), will be converted to a provisional licensee under
46-27 that Act. The provisional license of a person serving as an
47-1 apprentice under that Act before attending or graduating from a
47-2 school of embalming or college of mortuary science or before
47-3 passing the appropriate licensing examination is canceled September
47-4 1, 1994, if the person has not enrolled in an accredited school of
47-5 embalming or accredited college of mortuary science or passed the
47-6 appropriate licensing examination before that date.
47-7 SECTION 19. The importance of this legislation and the
47-8 crowded condition of the calendars in both houses create an
47-9 emergency and an imperative public necessity that the
47-10 constitutional rule requiring bills to be read on three several
47-11 days in each house be suspended, and this rule is hereby suspended.