By Jones of Lubbock H.B. No. 466
Substitute the following for H.B. No. 466:
By Clemons C.S.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 and Subsection M,
1-5 Section 1, Chapter 251, Acts of the 53rd Legislature, Regular
1-6 Session, 1953 (Article 4582b, Vernon's Texas Civil Statutes), is
1-7 amended to read as follows:
1-8 1. A "funeral director," as that term is used herein, is a
1-9 person who for compensation engages in or conducts, or who holds
1-10 himself out as being engaged, for compensation, in preparing, other
1-11 than by embalming, for the burial or disposition of dead human
1-12 bodies<, and maintaining or operating a funeral establishment for
1-13 the preparation and disposition, or for the care of dead human
1-14 bodies>.
1-15 M. "Solicitation" means any direct or indirect contact by a
1-16 licensed funeral director, a licensed embalmer, or an employee,
1-17 agent or representative of a licensed funeral establishment or any
1-18 other entity with, unless such contact is initiated by, a person
1-19 near death or the family, next of kin, <or one who has the
1-20 custody> or person responsible for making funeral arrangements
1-21 arrangements for <the> a person who is deceased or <the> a person
1-22 near death for the purpose of securing the right to provide funeral
1-23 services or merchandise <for the deceased or the person near death>
1-24 or in a situation that might influence the person contacted to
2-1 choose a particular funeral establishment. Provided, however, that
2-2 the term "solicitation" shall not be deemed to include any attempt
2-3 pursuant to a permit issued under the provisions of Chapter 512,
2-4 Acts of the 54th Legislature, Regular Session, 1955, as amended
2-5 (Article 548b Vernon's Texas Civil Statutes), except in the case of
2-6 contact with a person near death or the person responsible for
2-7 making funeral arrangements for a person near death, or to include
2-8 any method of advertising by publication or broadcasting.
2-9 SECTION 2. Subsection E, Section 1, Chapter 251, Acts of the
2-10 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
2-11 Texas Civil Statutes), is amended to read as follows:
2-12 E. The term <"apprentice"> provisional licensee" as herein
2-13 used is a person engaged in learning the practice of funeral
2-14 directing and/or embalming under the instruction, direction, and
2-15 personal supervision of a duly licensed funeral director and/or
2-16 embalmer of and in the State of Texas in accordance with this Act,
2-17 and having been duly <registered as such> issued a provisional
2-18 license by the commission prior thereto.
2-19 SECTION 3. Subsection F, Section 1, Chapter 251, Acts of the
2-20 53rd Legislature, Regular Session, a952 (Article 4582b, Vernon's
2-21 Texas Civil Statutes) is amended to read as follows:
2-22 F. The term <"apprenticeship"> "provisional license program"
2-23 or "program" as used herein shall be construe as diligent attention
2-24 to assigned duties and other matters performed in a licensed
2-25 funeral establishment in this state. The commission by rule shall
2-26 define the terms of employment of <an apprentice> a provisional
2-27 licensee, which must include service by the <apprentice>
3-1 provisional licensee under actual working conditions and under the
3-2 personal supervision of a fully licensed funeral director and/or
3-3 embalmer.
3-4 SECTION 4. Subsection G, Section 1, Chapter 251, Acts of the
3-5 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-6 Texas Civil Statutes), is amended to read as follows:
3-7 G. The term "funeral establishment" as herein used is a
3-8 place of business used in the care and preparation for burial or
3-9 transportation of dead human bodies, or any place where one or more
3-10 persons, either as sole owner, in <co->partnership, or through
3-11 corporate status, represent themselves to be engaged in the
3-12 business of embalming and/or funeral directing, or <as> are so
3-13 engaged. Such funeral directing and embalming shall be performed
3-14 only by licensed funeral directors or by licensed embalmers or by
3-15 provisional licensees or qualified mortuary students under the
3-16 supervision and direction of a licensed funeral director and/or
3-17 embalmer.
3-18 SECTION 5. Subsection H, Section 1, Chapter 251, Acts of the
3-19 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-20 Texas Civil Statutes), is amended to read as follows:
3-21 H. The term "due notice" as herein used shall mean published
3-22 notice of the time and place of regular meetings of the commission.
3-23 Notice of time, place, and purpose of any meeting of the commission
3-24 filed with the Texas Register at least seven (7) days prior
3-25 thereto<,> shall be adequate notice for any regular meeting,
3-26 including the giving of examinations.<; However, a notice of a
3-27 meeting wherein a change in the rules and regulations of the
4-1 commission is to be considered, shall be given by written notice in
4-2 the Texas Register at least thirty (30) days in advance of any
4-3 hearing thereon.>
4-4 SECTION 6. Subsection K, Section 1, Chapter 251, Acts of the
4-5 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-6 Texas Civil Statutes), is repealed.
4-7 SECTION 7. Subsection A, Section 2, Chapter 251, Acts of the
4-8 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-9 Texas Civil Statutes), is amended to read as follows:
4-10 A. (5) <A commissioner may not> Two commissioners shall be
4-11 authorized to participate in any <commission proceeding> informal
4-12 conference relating to a case that awaits a hearing as described by
4-13 Section 6C of this Act. Of these two commissioners, one shall be a
4-14 licensed funeral director or embalmer and one shall be a public
4-15 member of the commission.
4-16 SECTION 8. Subsection H, Section 2, Chapter 251, Acts of the
4-17 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-18 Texas Civil Statutes), is amended to read as follows:
4-19 H. The commission may employ such inspectors, <and> clerical
4-20 and technical assistants, legal counsel independent of the Office
4-21 of the Attorney General, and þLincludingää an Executive Director, as
4-22 may be determined by it to be necessary to carry out the provisions
4-23 of this Act, and the terms, conditions and expenses of such
4-24 employment shall be determined by the commission.
4-25 SECTION 9. Subsection L, Section 2, Chapter 251, Acts of the
4-26 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-27 Texas Civil Statutes), is amended to read as follows:
5-1 L. <The commission shall prescribe the form of the official
5-2 application blank. It shall notify the proprietor of each licensed
5-3 funeral establishment in this state that any person who seeks
5-4 employment as a funeral director or embalmer must fill in this
5-5 application blank, and that the person receiving the application
5-6 must mail a copy of the official form to the commission. The
5-7 commission shall inform the prospective employer of the status of
5-8 the applicant's license to engage in the activity he proposes.>
5-9 The commission shall have the power to issue subpoenas and
5-10 subpoenas duces tecum, and may delegate that power to the executive
5-11 director. The subpoenas and subpoenas duces tecum shall be served
5-12 either by personal service or by certified mail, return receipt
5-13 requested.
5-14 SECTION 10. Section 2, Chapter 251, Acts of the 53rd
5-15 Legislature, Regular Session, 1953 (Vernon's Texas Civil Statutes),
5-16 is amended by adding subsections S and T to read as follows:
5-17 S. The commission shall have the power to appoint committees
5-18 from the commissioners. The committees may consider such matters
5-19 as shall be referred to them, and they shall make recommendations
5-20 to the commission with respect thereto.
5-21 T. The commission shall have the right to institute an
5-22 action in its own name to enjoin the violation of any of the
5-23 provisions in this Act. This action for an injunction shall be in
5-24 addition to any other action, proceeding, or remedy authorized by
5-25 law. The commission shall be represented by the Attorney General
5-26 and/or the County or District Attorneys of this state, or counsel
5-27 designated and empowered by the commission.
6-1 SECTION 11. Subsection A, Section 3, Chapter 251, Acts of
6-2 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
6-3 Vernon's Texas Civil Statutes), is amended to read as follows:
6-4 A. The commission is hereby authorized and empowered and it
6-5 shall be its duty to prescribe and maintain a standard of
6-6 proficiency, <character>, professionalism, and qualifications of
6-7 those engaged or who may engage in the practice of a funeral
6-8 director or embalmer and to determine the qualifications necessary
6-9 to enable any person to lawfully practice as a funeral director, to
6-10 embalm dead human bodies, and to collect the fees therefor. The
6-11 commission shall examine all applicants for funeral directors' and
6-12 embalmers' licenses and for <apprenticeship> provisional licenses
6-13 and shall issue the proper license to all persons qualified and who
6-14 meet the requirements herein prescribed.
6-15 A person who has a criminal conviction as described in
6-16 Section 3(H)(2) of this Act who intends to become licensed as a
6-17 funeral director or embalmer in Texas, but who has not yet enrolled
6-18 in mortuary school, must request a hearing on whether the
6-19 conviction will prevent the commission from issuing a license or
6-20 provisional license. This hearing must be requested before the
6-21 person enrolls in mortuary school. The hearing shall be in
6-22 accordance with Section 6C of this Act, and the commission's
6-23 decision, unless modified on appeal, will be binding on the
6-24 commission and on the applicant at the time the commission is to
6-25 issue the license or provisional license.
6-26 SECTION 12. Subdivision 1, Subsection B, Section 3, Chapter
6-27 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
7-1 4582b, Vernon's Texas Civil Statutes), is amended to read as
7-2 follows:
7-3 1. To be eligible for a license to practice funeral
7-4 directing, an applicant must:
7-5 a. be 18 years of age or older;
7-6 b. have graduated from an accredited high school or
7-7 passed an examination prescribed by the Central Education Agency;
7-8 c. have graduated from an accredited school or college
7-9 of mortuary science;
7-10 d. have served as <an apprentice> a provisional
7-11 licensee for not less than one (1) year under the personal
7-12 supervision and instruction of a licensed funeral director; and
7-13 e. successfully complete written examinations as
7-14 described by Subdivision (2) of this subsection.
7-15 SECTION 13., Subdivision 1, Subsection C, Section 3, Chapter
7-16 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
7-17 4582b, Vernon's Texas Civil Statutes), is amended to read as
7-18 follows:
7-19 1. To be eligible for a license to practice embalming, an
7-20 applicant must:
7-21 a. be 18 years of age or older;
7-22 b. have graduated from an accredited high school or
7-23 passed an examination prescribed by the Central Education Agency;
7-24 c. have graduated from an accredited school or college
7-25 of mortuary science;
7-26 d. have served as <an apprentice> a provisional
7-27 licensee for one year under the personal supervision of a licensed
8-1 embalmer; and
8-2 e. successfully complete written examinations as
8-3 described by Subdivision (2) of this subsection.
8-4 SECTION 14. Subsection D, Section 3, Chapter 251, Acts of
8-5 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
8-6 Vernon's Texas Civil Statutes), is amended to read as follows:
8-7 D. It shall be the duty of the commission to prescribe and
8-8 supervise the course of instruction received by <an apprentice> a
8-9 provisional licensee while <serving his or her apprenticeship>
8-10 participating in the provisional license program, consistent with
8-11 the following requirements <to establish such an apprenticeship
8-12 registration procedure>.
8-13 1. <Apprenticeship> Provisional license for embalmer: A
8-14 license to practice the science of embalming shall not be issued
8-15 unless and until the applicant therefor has served <an
8-16 apprenticeship period> a provisional license program of not less
8-17 than twelve (12) consecutive months under the personal supervision
8-18 and instruction of a licensed embalmer and has successfully
8-19 completed all requirements of <apprenticeship> the program. The
8-20 only exception to this requirement shall be in the case of an
8-21 applicant under reciprocity.
8-22 a. Any person, eighteen (18) years of age or more, who
8-23 desires to practice the science of embalming in this state, files
8-24 application therefor, meets the requirements of the law and the
8-25 commission, and possesses such qualification to enter into
8-26 <apprentice training> the provisional license program, may be
8-27 registered as <an apprentice> a provisional licensee.
9-1 <Apprenticeship for a license to practice the science of> A
9-2 provisional license program for embalming must be served after
9-3 graduation from a school or college of mortuary science. An
9-4 applicant shall pay a <registration> license fee at the time he
9-5 requests <such apprenticeship registration> to enter the program.
9-6 (a-1) <An applicant for a license to practice the
9-7 science of embalming who attains a grade of 70% or higher on the
9-8 written examination given by the commission upon payment of a
9-9 registration fee shall be registered as an apprentice within six
9-10 (6) months of such examination.> An applicant for a license to
9-11 practice embalming must make a grade of 75% or higher on all
9-12 written examinations used by the commission and if the commission
9-13 desires, the person may be required to appear before at least one
9-14 member of the commission for approval of that person's application,
9-15 subject to review by the entire commission. If an applicant has
9-16 not entered into the provisional license program within two (2)
9-17 years of taking the examinations, the applicant must retake and
9-18 pass all applicable examinations before receiving a provisional
9-19 license.
9-20 b. Each <registered apprentice> provisional embalmer shall
9-21 be issued a <certificate of apprenticeship or other means of
9-22 apprenticeship identification> provisional license by the
9-23 commission for a provisional license program to be served in the
9-24 State of Texas. During the <apprenticeship> course of the program,
9-25 <an apprentice> a provisional licensee shall work on a minimum of
9-26 <forty (40)> sixty (60) cases. No more than two (2) <apprentices>
9-27 provisional licensees may receive credit <due> for work on any one
10-1 body. The commission by rule shall define the standards for a case
10-2 and shall establish the minimum number of complete cases <an
10-3 apprentice> a provisional licensee is required to execute during
10-4 the <apprenticeship> provisional license program. The standards
10-5 for a complete case shall include all the duties and activities
10-6 necessary for embalming. The commission by rule also shall
10-7 establish guidelines for <supervisors> provisional licensee
10-8 supervision under which the <apprentice> provisional licensee is
10-9 granted increased responsibilities during the course of the
10-10 <apprenticeship> program.
10-11 (c) An <apprentice> provisional embalmer must report to the
10-12 commission within ten (10) days after the end of each month each
10-13 <separate> case handled by him during that month or with which he
10-14 <has> assisted in handling during that month. Each such report
10-15 shall be certified by the licensee under <whom> whose personal
10-16 supervision the <apprentice> provisional performed <his> the work.
10-17 <Throughout the period of apprenticeship, the apprentice shall
10-18 report on at least one (1) such case of embalming each calendar
10-19 month, within the month. In> For any month in which <he> the
10-20 provisional embalmer did not embalm at least one (1) case under
10-21 the <direction> personal supervision of a licensed embalmer, a
10-22 report shall be made to the commission notwithstanding.
10-23 d. The commission shall set the <registration> license
10-24 and examination fees in an amount that is reasonable and necessary
10-25 for the administration of the <registration and examination>
10-26 program.
10-27 2. <Apprentice> Provisional license for Funeral Director:
11-1 The term of <apprenticeship> the provisional license program for a
11-2 funeral director's license shall be a period of not less than
11-3 twelve (12) months, and may be served concurrently with
11-4 <apprenticeship> the provisional license program for an embalmer's
11-5 license; however, <apprenticeship> the provisional license program
11-6 must be served in twelve (12) consecutive months. A person
11-7 desiring to become <an apprentice> a provisional funeral director
11-8 shall make application to the commission on a form provided by the
11-9 commission<, and if the commission desires, he shall appear before
11-10 at least one (1) member of the commission, or a designated
11-11 representative thereof, for approval of his application, subject to
11-12 review by the entire commission>. An applicant must be not less
11-13 than eighteen (18) years of age and have completed the educational
11-14 requirements prescribed for a funeral director<, except that the
11-15 commission by rule may allow an applicant for a funeral director's
11-16 license to begin serving the one (1) year apprenticeship before or
11-17 after the applicant enrolls in a school of embalming or college of
11-18 mortuary science>. The application for registration shall be sworn
11-19 to and accompanied by a <registration> fee. If the application is
11-20 accepted, an applicant will be issued a <certificate of apprentice
11-21 registration> provisional license upon determination by the
11-22 commission that his qualifications are satisfactory.
11-23 (a) An applicant for a funeral director's license and the
11-24 examination therefor <who has not begun one year of apprenticeship
11-25 prior to graduation from a school of embalming or college of
11-26 mortuary science> shall be admitted to <apprenticeship> the
11-27 provisional license program only if the applicant applies for and
12-1 takes the written examination given by the commission, and pays the
12-2 <registration> license fee, whereupon he <shall> may be <registered
12-3 as an apprentice> licensed as a provisional funeral director if he
12-4 otherwise meets the requirements of this Act. If an applicant has
12-5 not been licensed as a provisional funeral director within two (2)
12-6 years of taking the examination, the applicant must take and pass
12-7 the test again before being licensed as a provisional funeral
12-8 director. <Provided, however an applicant must register as an
12-9 apprentice within six (6) months of such examination.>
12-10 (b) An <apprentice> provisional funeral director must report
12-11 to the commission within ten (10) days after the end of each month
12-12 each <separate> case with which <he has> the provisional licensed
12-13 funeral director assisted in handling during that month. Each
12-14 such report shall be certified to by the licensee under whom the
12-15 <apprentice> provisional funeral director performed the work.
12-16 <Throughout the period of apprenticeship, the apprentice shall
12-17 report on at least one (1) such case each calendar month, within
12-18 the month. In> For any month <within> in which <he> the
12-19 provisional funeral director did not assist a licensed funeral
12-20 director in handling a funeral, a report shall be made to the
12-21 commission notwithstanding.
12-22 (c) <An apprenticeship> The provisional license program
12-23 shall include assisting a licensed funeral director in this state
12-24 with a minimum of <forty (40)> sixty (60) cases. No more than two
12-25 (2) <apprentices> provisional licensees may receive credit for work
12-26 done on any one body. The commission by rule shall define the
12-27 standards for a case and shall set the number of complete cases <an
13-1 apprentice> a provisional licensee is required to execute during
13-2 the <apprenticeship> program. The standards required for a
13-3 complete case shall include all the activities necessary from the
13-4 time the body is obtained until final disposition. The commission
13-5 by rule also shall establish guidelines for <apprentice>
13-6 provisional licensee <supervisors> supervision under which <an
13-7 apprentice> a provisional licensee is granted increased
13-8 responsibilities during the course of the <apprenticeship>
13-9 provisional license program.
13-10 (d) The commission shall set the <registration>
13-11 license and examination fees in an amount that is reasonable and
13-12 necessary for the administration of the <registration and
13-13 examination> program.
13-14 (e) An applicant for a license to practice the
13-15 profession of funeral directing shall not be considered for
13-16 licensure until completion of all requirements of the provisional
13-17 license program and attaining a grade of 75% or higher on the
13-18 written examination given by the commission and if the commission
13-19 desires, the applicant shall appear before at least one (1) member
13-20 of the commission for approval of the person's application, subject
13-21 to review by the entire commission.
13-22 3. Annual renewal <apprentice certificate> of provisional
13-23 license: Each <certificate of apprenticeship> provisional license
13-24 issued by the commission to <an apprentice> provisional embalmer
13-25 or funeral director must be renewed on the first day of January of
13-26 each year and will be renewed upon payment by the <apprentice>
13-27 provisional licensee of a renewal fee, provided the <apprentice>
14-1 provisional licensee has observed the rules and regulations of the
14-2 commission <with respect to his apprenticeship>. Notice shall be
14-3 mailed, during the month of December each year, to each <registered
14-4 apprentice> provisional licensee at his last known address,
14-5 notifying him that the renewal fee is due. If a <registered
14-6 apprentice> provisional licensee fails to pay the annual renewal
14-7 fee by the due date, the commission shall impose a late penalty
14-8 equal in amount to the license renewal fee and shall suspend <his
14-9 certificate> the license for nonpayment and notify <such
14-10 apprentice> the provisional licensee of such suspension. If the
14-11 said renewal fee and penalty are not then paid within ninety (90)
14-12 days from the date of such notice of suspension, the commission
14-13 shall then cancel <such certificate> the license. Provided,
14-14 however, after <an apprentice certificate> the license has been
14-15 canceled, the <apprentice> provisional licensee may apply for
14-16 reinstatement within eighteen (18) months from the date such
14-17 <apprentice certificate> license was canceled and the commission
14-18 may reinstate said <apprentice> provided <he meets> all other
14-19 requirements of the commission are met and <pays> the license fee
14-20 and a late payment penalty equal in amount to the license fee for
14-21 the period of the cancellation are paid. The <certificate of
14-22 apprenticeship> provisional license may not be renewed for more
14-23 than <five (5)> two (2) years from the date of its issuance unless
14-24 the individual requests and receives approval from the commission
14-25 for an extension based on hardship. It is provided that the
14-26 registration fee of any <apprentice> provisional licensee who is
14-27 actively engaged in the military service of the United States may
15-1 be remitted for the duration of such service or for such fees and
15-2 such time as the commission may deem advisable upon presentation of
15-3 proper evidence required by the commission. The commission shall
15-4 set the renewal fee and the penalty in an amount that is reasonable
15-5 and necessary for the administration of this Act. An <apprentice
15-6 certificate> provisional license that has been canceled or
15-7 suspended or has lapsed for a period of five (5) years or more may
15-8 be reinstated only if the applicant takes and passes the applicable
15-9 <apprenticeship> examination(s) under Subdivision 1 or 2 of this
15-10 subsection. The commission may adopt rules relating to the
15-11 reinstatement of such <apprentice certificate> license.
15-12 <a. The commission by rule shall adopt a system under which
15-13 certificates expire on various dates during the year. The date for
15-14 sending notice that payment is due and the date for suspension due
15-15 to nonpayment shall be adjusted accordingly. For the year in which
15-16 the certificate expiration date is changed, certification fees
15-17 payable on January 1 shall be prorated on a monthly basis so that
15-18 each certificate holder shall pay only that portion of the
15-19 certification fee which is allocable to the number of months during
15-20 which the certificate is valid. On renewal of the certificate on
15-21 the new expiration date the total renewal fee is payable.>
15-22 4. Notification of the commission upon entry into
15-23 <apprenticeship> the provisional license program When <an
15-24 apprentice> provisional licensee enters the employ of a licensed
15-25 embalmer or funeral director <he> the provisional licensee shall
15-26 immediately notify the commission of the name and place of business
15-27 of the licensed embalmer or funeral director <whose service he has
16-1 entered and the name of the funeral director or embalmer> under
16-2 whom <he> the provisional licensee will train, and such
16-3 notification shall be signed by <the> that embalmer or funeral
16-4 director <whose service he has entered, the said licensed embalmer
16-5 or funeral director> who shall give to <each apprentice> the
16-6 provisional licensee an affidavit showing the length of time <he
16-7 has served as an apprentice with him> served and the number of
16-8 cases handled while so employed; the original of said affidavit
16-9 shall be filed with the commission and made a matter of record, and
16-10 a copy shall be furnished to the <apprentice> provisional licensee.
16-11 The commission shall furnish report forms to be used by each
16-12 <apprentice> provisional licensee.
16-13 5. A <certificate of apprenticeship> provisional
16-14 license <may be suspended or revoked as provided and set forth in
16-15 Section 3, Subsection H> is subject to the same disciplinary
16-16 actions as licenses for funeral directors and embalmers for
16-17 violations of this Act or any rule promulgated under this Act.
16-18 SECTION 15. Subsection E, Section 3, Chapter 251, Acts of
16-19 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
16-20 Vernon's Texas Civil Statutes), is amended to read as follows:
16-21 E. Any person engaged or desiring to engage in the practice
16-22 of embalming or funeral directing in this state, in connection with
16-23 the care and disposition of dead human bodies, shall make written
16-24 application to the commission for a license accompanying same with
16-25 an application fee. The license or licenses when issued shall be
16-26 signed by a majority of the commission and shall authorize the
16-27 licensee to practice the science of embalming and/or funeral
17-1 directing. All licenses <shall be registered in the office of the
17-2 County Clerk in any county in which the holder thereof resides and
17-3 practices embalming and/or funeral directing and> shall be
17-4 displayed conspicuously in <the> each place of business where the
17-5 licensee practices funeral directing and/or embalming. A person
17-6 may renew an unexpired license by paying to the commission before
17-7 the expiration date of the license the required renewal fee. If a
17-8 person's license has been expired for ninety (90) days or less, the
17-9 person may renew the license by paying to the commission the
17-10 required renewal fee and a penalty fee that is equal to 50%
17-11 <one-half> of the <examination> renewal fee for the license. If a
17-12 person's license has been expired for longer than ninety (90) days
17-13 but less than <two (2)> five (5) years, the person may renew the
17-14 license by paying to the commission all unpaid renewal fees and <a
17-15 fee> penalty fees that <is> are equal to <the examination fee> 50%ª
17-16 of the renewal fees for the license. If a person's license has
17-17 been expired for <two (2)> five (5) years or longer, the person may
17-18 not renew the license. The person may obtain a new license by
17-19 submitting to reexamination and complying with the requirements and
17-20 procedures for obtaining an original license. However, the
17-21 commission may renew without reexamination an expired license of a
17-22 person who was licensed in this state, moved to another state, and
17-23 is currently licensed and has been in practice in the other state
17-24 for the two (2) years preceding application. The person must pay
17-25 to the commission a fee that is equal to the <examination> renewal
17-26 fee for the license. At least thirty (30) days before the
17-27 expiration of a person's license, the commission shall send written
18-1 notice of the impending license expiration to the person at the
18-2 <licensee's> person's last known address according to the records
18-3 of the commission. The commission may by rule require continuing
18-4 education as a condition for license renewal except for persons
18-5 described in Subdivisions 4 and 5 of this subsection. If any
18-6 license issued under this Act <shall be> is lost or destroyed, the
18-7 holder of any such license may present his application, on a form
18-8 to be prescribed by the commission, for duplicate license to the
18-9 commission, together with his affidavit of such loss or
18-10 destruction, and that he is the same person to whom such license
18-11 was issued, and such other information concerning its loss or
18-12 destruction as the commission shall require, and shall, upon
18-13 payment of a duplicate license fee, as determined by the
18-14 commission, be granted a duplicate license.
18-15 SECTION 16. Subsection H, Section 3, Chapter 251, Acts of
18-16 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
18-17 Vernon's Texas Civil Statutes), is amended to read as follows:
18-18 H. <The commission may seek appropriate injunctive relief
18-19 against a funeral establishment, licensed embalmer, or funeral
18-20 director who fails to comply with any provision of this Act,
18-21 including a violation relating to prepaid funeral services or
18-22 funeral services delivered at the time of need. This Act does not
18-23 affect any remedy or enforcement power under other laws. The
18-24 commission may assess an administrative penalty against a licensed
18-25 individual or establishment in the manner provided by Section 6G of
18-26 this Act, or as the result of a hearing conducted in the manner
18-27 provided by Section 6C of this Act. After a hearing conducted in
19-1 the manner provided by Section 6C, the commission may issue a
19-2 reprimand under Section 6H of this Act. The commission may assess
19-3 an administrative penalty, revoke, suspend, or place on probation
19-4 any licensed funeral director and/or embalmer or apprentice who
19-5 violates any provision of this Act, including a violation relating
19-6 to prepaid funeral services or funeral services delivered at the
19-7 time of need. The commission may issue a reprimand or refuse to
19-8 license or admit persons to examination for any of the following
19-9 reasons all of which are offenses as provided in Section 6A of this
19-10 Act:> After a hearing conducted in the manner provided by Section
19-11 6C of this Act, the commission may take the following action
19-12 against a licensed funeral director, a licensed embalmer, or a
19-13 provisional funeral director or embalmer: issue a reprimand,
19-14 assess administrative penalties, revoke the license or provisional
19-15 license, suspend the license or provisional license, or probate the
19-16 suspension of the license or provisional license. The commission
19-17 may employ any combination of these actions with respect to a
19-18 single license. The commission may also assess administrative
19-19 penalties without having conducted a hearing if the penalties are
19-20 assessed in accordance with Section 6G of this Act. Commission
19-21 action under this section may be based only on a violation of any
19-22 provision of this Act, or a violation of any rule promulgated under
19-23 this Act. The commission may, without a hearing, refuse to license
19-24 a person or allow a person to serve as a provisional licensee if
19-25 that person has violated any provision of this Act or any rule
19-26 promulgated under this Act; however, the person whose application
19-27 for license or provisional license is refused may appeal the
20-1 decision by requesting a hearing within thirty (30) days of the
20-2 refusal. The commission and the person whose application for
20-3 license or provisional license is refused may agree to the issuance
20-4 of a probationary license or the commission may, after a hearing,
20-5 order that a license be issue on a probationary basis. Violations
20-6 of this Act include, but are not limited to, the following:
20-7 (1) The presentation to the commission of any license,
20-8 certificate, or diploma <which> that was illegally or fraudulently
20-9 obtained, or when fraud or deception has been practiced in passing
20-10 the examination;
20-11 (2) Conviction of:
20-12 (a) a felony; or
20-13 (b) a misdemeanor related to the practice of
20-14 embalming or funeral directing;
20-15 (3) Being unfit to practice as a funeral director and/or
20-16 embalmer by reason of insanity and having been adjudged by a court
20-17 of competent jurisdiction to be of unsound mind;
20-18 (4) The use of any statement that misleads or deceives the
20-19 public, including but not limited to false or misleading statements
20-20 regarding (1) any legal, religious, or cemetery requirement for
20-21 funeral merchandise or funeral services, (2) the preservative
20-22 qualities of funeral merchandise or funeral services in preventing
20-23 or substantially delaying natural decomposition or decay of human
20-24 remains, (3) the airtight or watertight properties of a casket or
20-25 outer enclosure, or (4) representations as to licensed personnel in
20-26 the operation of a funeral establishment;
20-27 (5) The purchase, sale, barter, or use, or any offer to
21-1 purchase, sell, barter, or use any license, certificate, or
21-2 transcript of license or certificate, in or incident to an
21-3 application to the commission for license to practice as a funeral
21-4 director and/or embalmer;
21-5 (6) Altering, with fraudulent intent, any funeral director
21-6 and/or embalmer license, certificate, or transcript of license or
21-7 certificate;
21-8 (7) The use of any funeral director and/or embalmer license,
21-9 certificate, diploma, or transcript of any such funeral director
21-10 and/or embalmer license, certificate, or diploma<, which> that has
21-11 been fraudulently purchased, issued, counterfeited, or materially
21-12 altered;
21-13 (8) The impersonation of, or acting as proxy for, another in
21-14 any examination required by this Act for a funeral director and/or
21-15 embalmer license;
21-16 (9) The impersonation of a licensed funeral director or
21-17 embalmer as authorized <hereunder> by this Act, or permitting<,> or
21-18 allowing another to use <his> one's license or certificate to
21-19 practice as a funeral director or embalmer in this state;
21-20 (10) A violation of Sections 1, 5, or 9, Chapter 512, Acts
21-21 of the 54th Legislature, Regular Session, 1955, as amended (Article
21-22 548b, Vernon's Texas Civil Statutes) or any rule promulgated
21-23 thereunder;
21-24 (11) <Taking custody of, embalming, or refusing to promptly
21-25 surrender a dead human body to a person or his agent authorized to
21-26 make funeral arrangements for the deceased.> Taking custody of a
21-27 dead human body without permission from the person authorized to
22-1 make funeral arrangements for the deceased or from that person's
22-2 agent; refusing to promptly surrender a dead human body to a person
22-3 authorized to make funeral arrangements for the deceased or to that
22-4 person's agent; or embalming a body without the express written or
22-5 oral permission of a person authorized to make funeral arrangements
22-6 for the deceased or without making a documented effort over a
22-7 period of at least <(2)> three (3) hours to obtain the permission;
22-8 (11A) <Attempting without proper authority to embalm a dead
22-9 human body as evidenced by the use of sutures or mechanical devices
22-10 in the posing of any facial feature and: (1) the making of any
22-11 incision on the body; or (2) the raising of any circulatory vessel
22-12 of the body;> Embalming or attempting to embalm without proper
22-13 authority a dead human body. Evidence of embalming or an attempt
22-14 to embalm includes, but is not limited to, the making of any
22-15 incision on the body, the raising of any circulatory vessel of the
22-16 body, or the injection of any chemical into the body;
22-17 (12) Willfully making any false statement on a certificate
22-18 of death or any document required by this Act or a rule promulgated
22-19 under this Act;
22-20 (13) Employment directly or indirectly of any <apprentice>
22-21 provisional licensee, agent, assistant, embalmer, funeral director,
22-22 employee, or other person on a part or full-time basis, or on
22-23 commission, for the purpose of soliciting individuals or
22-24 institutions by whose influence dead human bodies may be turned
22-25 over to a particular funeral director or embalmer or funeral
22-26 establishment;
22-27 (14) Presentation of false certification or false
23-1 certification of work done as <an apprentice on apprenticeship
23-2 records> provisional licensee;
23-3 (15) Unfitness by reason of present <drug addiction>
23-4 substance abuse;
23-5 (16) Whenever a licensee, <apprentice> provisional licensee,
23-6 or any other person, whether employee, agent, or representative, or
23-7 one in any manner associated with a funeral establishment <shall>
23-8 engages in solicitation as defined in this Act;
23-9 (17) Failure by the Funeral Director in Charge to provide
23-10 licensed personnel for direction or personal supervision for a
23-11 "first call," as that term is defined in this Act;
23-12 (18) <Intentional misappropriation> Misappropriation of any
23-13 funds held by a licensee, funeral establishment, including its
23-14 employees and agents, or other depository<,> that create<s> an
23-15 obligation to provide a funeral service or merchandise, including
23-16 retention for an unreasonable time of excess funds paid by or on
23-17 behalf of the consumer for which the consumer is entitled to a
23-18 refund;
23-19 (19) Performing acts of funeral directing or embalming, as
23-20 those terms are defined in this Act, <which> that are outside the
23-21 licensed scope and authority of the licensee, or performing acts of
23-22 funeral directing or embalming in a capacity other than that of an
23-23 employee, agent, subcontractor, or assignee of a licensed funeral
23-24 establishment that has contracted to perform those acts;
23-25 (20) Engaging in fraudulent, unprofessional, or deceptive
23-26 conduct in providing funeral services or merchandise to a consumer;
23-27 (21) Statement or implication by a funeral director or
24-1 embalmer that a customer's concern with the cost of any funeral
24-2 service or funeral merchandise is improper or indicates a lack of
24-3 respect for the deceased;
24-4 (22) Failure by a person arranging for funeral services or
24-5 merchandise to:
24-6 (A) <inform a customer or prospective customer of the
24-7 availability of a retail price list;> provide each prospective
24-8 customer with a copy of the brochure required by Section 6E of this
24-9 Act at the beginning of the arrangement process;
24-10 (B) provide a retail price list to <the customer or
24-11 prospective customer> any individual inquiring in person about any
24-12 funeral service or merchandise, for that person to keep;
24-13 (C) explain to the customer or prospective customer
24-14 that a contractual agreement for funeral services or merchandise
24-15 may not be entered into before the presentation of the retail price
24-16 list to that person; <or> and
24-17 (D) provide general price information by telephone
24-18 within a reasonable time;
24-19 (23) Failure by any person arranging for funeral services to
24-20 provide each customer at the conclusion of the arrangement process
24-21 a written memorandum or funeral purchase agreement signed by the
24-22 funeral director making the arrangements itemizing the cost of
24-23 funeral services and funeral merchandise selected by the customer;
24-24 however, if the customer selects a package arrangement based on
24-25 unit pricing, the itemization requirement is satisfied by providing
24-26 a written memorandum that itemizes the discount provided by the
24-27 package arrangement. The use of unit pricing does not <preclude>
25-1 affect the presentation of the retail price list as required by
25-2 Subdivision 22 of this subsection;
25-3 (24) Restricting, hindering, or attempting to restrict or
25-4 hinder (1) the advertising or disclosure of prices and other
25-5 information regarding the availability of funeral services and
25-6 funeral merchandise that is not unfair or deceptive to consumers,
25-7 or (2) agreements for funeral services between any consumer or
25-8 group of consumers and funeral directors or embalmers;
25-9 (25) Failure to retain and make available to the commission,
25-10 upon request, copies of all price lists, written notices, embalming
25-11 documents, and memoranda of agreement required by this <article>
25-12 Act for two (2) years after the date of their distribution or
25-13 signing;
25-14 (26) Violation of this Act<,> or of any rule<, regulation,>
25-15 promulgated thereunder; or violation of an <or> order by the
25-16 commission revoking, suspending, or probating a license <issued
25-17 under this Act>; or violation of an order assessing an
25-18 administrative penalty or an agreement to pay an administrative
25-19 penalty, whether that agreement is expressed or implied by Section
25-20 6G(d) of this Act;
25-21 (27) Dishonest conduct, willful conduct, negligence, or
25-22 gross negligence in the practice of embalming or funeral directing
25-23 that is likely to or does deceive, defraud, or otherwise injure the
25-24 public; <and>
25-25 (28) Allowing the use of dead human bodies by an unlicensed
25-26 embalming establishment for research or educational purposes
25-27 without the written permission of the family or the person
26-1 arranging the funeral.
26-2 (29) Causing the execution of any document by the use of
26-3 fraud, deceit or misrepresentation.
26-4 SECTION 17. Subsection B, Section 4, Chapter 251, Acts of
26-5 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
26-6 Vernon's Texas Civil Statutes), is amended to read as follows:
26-7 B. No funeral establishment shall conduct funeral business
26-8 as intended under this Act unless duly licensed. The commission
26-9 may refuse to issue an establishment license to any individual or
26-10 partnership or corporation if the individual, any partner, or any
26-11 officer or director of the corporation:
26-12 (1) has been convicted of a felony, or a misdemeanor related
26-13 to the practice of embalming or funeral directing;
26-14 (2) previously held an establishment license that was
26-15 suspended or revoked;
26-16 (3) has previously violated this Act, any rule promulgated
26-17 thereunder, or Chapter 512, Acts of the 54th Legislature, Regular
26-18 Session, 1955 as amended (Article 548b, Vernon's Texas Civil
26-19 Statutes) or any rule promulgated thereunder;
26-20 (4) submits false information in the application; or
26-21 (5) attempts to by-pass a revocation, suspension or refusal
26-22 to license by subterfuge or other evasive means.
26-23 SECTION 18. Subdivision 4, Subsection C, Section 4, Chapter
26-24 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
26-25 4582b, Vernon's Texas Civil Statutes), is amended to read as
26-26 follows:
26-27 4. A preparation room containing <an operating table, sewer
27-1 facilities, hot and cold running water,> facilities, equipment, and
27-2 supplies set by commission rule to ensure the provision of adequate
27-3 embalming services and other facilities necessary to comply with
27-4 the sanitary code of the state and the municipality in which the
27-5 room is located.
27-6 SECTION 19. Subdivision (1), Subsection D, Section 4,
27-7 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
27-8 (Article 4582b, Vernon's Texas Civil Statutes), is amended to read
27-9 as follows:
27-10 (1) <The commission may initiate action against a funeral
27-11 establishment or in regard to the license of a funeral
27-12 establishment upon the following grounds:> After a hearing
27-13 conducted in the manner provided by Section 6C of this Act, the
27-14 commission may take the following action against a licensed funeral
27-15 establishment: issue a reprimand, assess an administrative
27-16 penalty; or revoke, suspend, or probate suspension of the license.
27-17 The commission may employ any combination of these actions with
27-18 respect to a single license. The commission may also assess an
27-19 administrative penalty without having conducted a hearing if
27-20 assessed in accordance with Section 6G of this Act. Commission
27-21 action under this section may be based only on a violation of any
27-22 provision of this Act or a violation of a rule promulgated under
27-23 this Act. The Commission may, without a hearing, refuse to license
27-24 an establishment if any of the owners have committed the acts
27-25 enumerated in Subsection (B) of this section; however, the
27-26 establishment whose license is refused may appeal the decision if
27-27 it requests a hearing within thirty (30) days of the refusal. The
28-1 commission and the establishment whose application for license is
28-2 refused may agree to the issuance of a probationary license or the
28-3 commission may, after a hearing, order than a license be issued on
28-4 a probationary basis.
28-5 Violations of this Act include, but are not limited to, the
28-6 following:
28-7 (a) Failure of a funeral establishment to
28-8 substantially comply with the provisions of Subsections B or C of
28-9 this Section.
28-10 (b) Failure by any person associated with the funeral
28-11 establishment, whether as an employee, agent, subcontractor,
28-12 assignee, owner, or otherwise, and whether licensed or unlicensed,
28-13 to comply with <Section 3> any section of this Act or any rule
28-14 promulgated thereunder.
28-15 (c) The use of any advertising statement of a
28-16 character <which> that misleads or deceives the public, or use of,
28-17 in connection with advertisements, the names of persons who do not
28-18 hold a license as a funeral director or embalmer and representing
28-19 them <to be> as being so licensed.
28-20 (d) Whenever a licensee, <apprentice> provisional
28-21 licensee, or any other person, whether employee, agent, or
28-22 representative, or one in any manner associated with a funeral
28-23 establishment shall solicit business or offer any inducement,
28-24 pecuniary or otherwise, for the purpose of securing or attempting
28-25 to secure business for such a funeral establishment, unless such
28-26 solicitation is made pursuant to a permit issued under Chapter 512,
28-27 Acts of the 54th Legislature, Regular Session, 1955, as amended
29-1 (Article 548b, Vernon's Texas Civil Statutes).
29-2 (e) Failure by the funeral director in charge to
29-3 provide a licensed <personnel> funeral director for direction or
29-4 personal supervision <for> of a "first call" as that term is
29-5 defined in this Act.
29-6 (f) Any violation by a funeral establishment or a
29-7 person acting on behalf of a funeral establishment or any person
29-8 directly or indirectly connected with a funeral establishment <who
29-9 violates> of any provision of Chapter 512, Acts of the 54th
29-10 Legislature, Regular Session, 1955, as amended (Article 548b,
29-11 Vernon's Texas Civil Statutes) or any rule promulgated thereunder.
29-12 (g) Any violation by a funeral establishment or a
29-13 person acting on behalf of a funeral establishment <under> of
29-14 Chapter 193 or 361, Health and Safety Code;
29-15 2. <Provided, however, with> With respect to <alleged>
29-16 violations of Subsection D(1)<.>(b), (c), (d), (e), (f), or (g),
29-17 the commission may not initiate action against a funeral
29-18 establishment or in regard to the license of a funeral
29-19 establishment <when> if the <ground or grounds of> complaint <are>
29-20 is based on the conduct of employees, agents, or representatives of
29-21 such establishment performed outside the scope and authority of
29-22 their employment or contrary to the instructions of the funeral
29-23 establishment and its management. <The commission may initiate
29-24 such an action if those persons are acting within the scope and
29-25 authority of their employment, or by the direction of the funeral
29-26 establishment management.>
29-27 SECTION 20. Subdivision (2), Subsection D, Section 4,
30-1 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
30-2 (Article 4582b, Vernon's Texas Civil Statutes), is repealed.
30-3 SECTION 21. Subdivision (1), Subsection G, Section 4,
30-4 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
30-5 (Article 4582b, Vernon's Texas Civil Statutes), is amended to read
30-6 as follows:
30-7 (1) Any premises on which funeral directing or embalming is
30-8 practiced shall be open at all times to inspection for violations
30-9 <under> of this Act and <under> of Chapters 193 and 361, Health and
30-10 Safety Code, by any agent of the commission or by any duly
30-11 authorized agent of the state, county, or of the municipality in
30-12 which the premises are located. Each licensed funeral
30-13 establishment shall be thoroughly inspected <biennially> annually
30-14 by an agent of the commission or by an agent of the state or a
30-15 political subdivision thereof whom the commission has authorized to
30-16 make inspections on its behalf. A report of this <biennial>
30-17 inspection shall be filed with the commission.
30-18 SECTION 22. Section 6, Chapter 251, Acts of the 53rd
30-19 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
30-20 Civil Statutes), is amended to read as follows:
30-21 Sec. 6. <REVOCATION, CANCELLATION OR SUSPENSION OF LICENSES
30-22 OF FUNERAL DIRECTORS, EMBALMERS AND APPRENTICES.> PROBATION;
30-23 WARNING LETTERS; REINSTATEMENT.
30-24 SECTION 23. Subsection (a), Section 6, Chapter 251, Acts of
30-25 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
30-26 Vernon's Texas Civil Statutes), is amended to read as follows:
30-27 a. <The commission may revoke or suspend a license, place on
31-1 probation a person whose license has been suspended, or reprimand a
31-2 licensee for a violation of this Act or a rule of the commission.
31-3 If a licensee suspension is probated, the commission may require
31-4 the practitioner:> If the commission probates all or part of a
31-5 license suspension, it may impose any conditions on the probation
31-6 that are reasonable and related to the violations for which the
31-7 license was suspended. If the commission orders probation, it may
31-8 require the licensee:
31-9 (1) to report to the commission on matters that are
31-10 the basis of the probation;
31-11 (2) to limit practice to <the> areas prescribed by the
31-12 commission; or
31-13 (3) to continue or renew professional education until
31-14 the <practitioner> licensee attains a degree of skill satisfactory
31-15 to the commission in those areas that are the basis of the
31-16 probation.
31-17 SECTION 24. Subsection (d), Section 6, Chapter 251, Acts of
31-18 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
31-19 Vernon's Texas Civil Statutes), is amended to read as follows:
31-20 (d) <Proceedings under this Section shall be initiated by
31-21 filing charges with the commission in writing and under oath. Said
31-22 charges may be made by any person or persons. If the commission
31-23 proposes to suspend or revoke a person's license, the person is
31-24 entitled to a hearing before the commission or a hearings officer
31-25 appointed by the commission. The commission shall prescribe
31-26 procedures by which all decisions to suspend or revoke are made by
31-27 or are appealable to the commission. The Executive Director of the
32-1 commission shall set a time and place for hearing.> Upon
32-2 application, the commission may reissue a license to practice as a
32-3 funeral director or embalmer to a person whose license has been
32-4 cancelled, <or> suspended, or revoked, but such application<, in
32-5 the case of cancellation or revocation, shall> may not be made
32-6 prior to one (1) year after the cancellation, suspension, or
32-7 revocation, and shall be made in such a manner and form as the
32-8 commission may require. A hearing to determine whether to reissue
32-9 a license shall be held before the commission, unless the
32-10 commission votes to have such a hearing before a hearings officer.
32-11 SECTION 25. Subsection (e), Section 6, Chapter 251, Acts of
32-12 the 53rd Legislature, 1953 (Article 4582b, Vernon's Texas Civil
32-13 Statutes), is repealed.
32-14 SECTION 26. Subsection (f), Section 6, Chapter 251, Acts of
32-15 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
32-16 Vernon's Texas Civil Statutes), is repealed.
32-17 SECTION 27. Section 6A, Chapter 251, Acts of the 53rd
32-18 Legislature, 1953 (Article 4582b, Vernon's Texas Civil Statutes),
32-19 is amended to read as follows:
32-20 Sec. 6A. Offenses. A person commits an offense if the
32-21 person:
32-22 (1) acts or holds himself out as a funeral director,
32-23 embalmer, or <apprentice> provisional licensee, as those terms are
32-24 defined in this Act, without being properly licensed under this
32-25 Act, or makes <shall make> a "first call" <without the
32-26 authorization or supervision as provided in> in a manner that
32-27 violates Section 1(C) of this Act;
33-1 (2) is a licensed funeral director, <or> embalmer, or
33-2 provisional licensee and engages in a funeral practice that is a
33-3 violation of this Act or any rule promulgated thereunder <grounds
33-4 for suspension or revocation of the person's license>; or
33-5 <(e)> (3) violates Section 1, 5, or 9, Chapter 512,
33-6 Acts of the 54th Legislature, Regular Session, 1955, as amended
33-7 (Article 548b, Vernon's Texas Civil Statutes) or any rule
33-8 promulgated thereunder, regardless of whether the Banking
33-9 Department of Texas or any other governmental agency takes action
33-10 relating to the violation.
33-11 SECTION 28. Section 6C, Chapter 251, Acts of the 53rd
33-12 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
33-13 Civil Statutes), is amended to read as follows:
33-14 Sec. 6C. Administrative Procedure and Texas Register Act.
33-15 (a) A person who is denied a license or certificate by the
33-16 commission is entitled to a hearing before the commission in
33-17 accordance with the Administrative Procedure and Texas Register
33-18 Act<, as amended> (Article 6252-13a), Vernon's Texas Civil
33-19 Statutes)<,> if the person requests the hearing in writing within
33-20 thirty (30) days of the date the notice of denial is sent.
33-21 (b) A proceeding conducted by the commission relating to the
33-22 denial of a license or provisional license, suspension or
33-23 revocation of license or <certificate> provisional license, or
33-24 imposition of an administrative penalty (except assessment of
33-25 administrative penalties without a hearing, as provided in Section
33-26 6G of this Act) is governed by the Administrative Procedure and
33-27 Texas Register Act<, as amended> (Article 6252-13a, Vernon's Texas
34-1 Civil Statutes). Judicial review of the proceeding is subject to
34-2 the substantial evidence rule and is governed by the Administrative
34-3 Procedure and Texas Register Act.
34-4 (c)(1) A proceeding brought under Subsection (b) of this
34-5 section <shall> may be held before a hearings officer. The
34-6 executive director of the commission shall set a time and place for
34-7 the hearing.
34-8 (2) The hearings officer must be an attorney licensed
34-9 in this state. In the course of a proceeding the hearing officer
34-10 may:
34-11 (A) administer oaths;
34-12 (B) take testimony;
34-13 (C) rule on questions of evidence;
34-14 (D) make determinations of fact; <or> and
34-15 (E) order compliance with proper discovery
34-16 requests.
34-17 (3) The commission shall provide the hearings officer
34-18 with a written statement of all commission rules or policies that
34-19 govern the proceeding.
34-20 (4) At the conclusion of the proceeding the hearings
34-21 officer shall make a ruling on the matter accompanied by a written
34-22 findings of fact and conclusions of law.
34-23 (5) The commission shall review the findings of fact,
34-24 conclusions of law, and ruling of the hearings officer before
34-25 making its final ruling in the proceeding. The commission may also
34-26 review a transcript of the proceeding before making its final
34-27 ruling. The commission shall adopt the ruling of the hearings
35-1 officer as its ruling unless it finds good cause to issue a
35-2 different ruling. The commission shall explain in writing the
35-3 reasons for adopting a ruling other than the one issued by the
35-4 hearings officer.
35-5 <(6) Not later than the 10th day after the date the
35-6 hearings officer makes a ruling, the licensee may appeal the ruling
35-7 to the commission. Except for good cause, the commission shall
35-8 make its final ruling not later than the 10th day after the date
35-9 the appeal is made.>
35-10 (d) The commission shall inform each interested person,
35-11 including a person filing the complaint, of <their> the right to
35-12 obtain at that person's cost a tape or transcript of a hearing or
35-13 proceeding under this section.
35-14 SECTION 29. Subsection (e), Section 6D, Chapter 251, Acts of
35-15 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
35-16 Vernon's Texas Civil Statutes), is amended to read as follows:
35-17 (e) If a person files a complaint with the commission
35-18 relating to a licensed funeral director, embalmer, provisional
35-19 licensee, or funeral establishment, the commission shall furnish to
35-20 the person an explanation of the remedies that are available to the
35-21 person under this Act and information about appropriate state or
35-22 local agencies or officials with which the person may file a
35-23 complaint.
35-24 SECTION 30. Section 6G, Chapter 251, Acts of the 53rd
35-25 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
35-26 Civil Statutes), is amended to read as follows:
35-27 (a) If the commission determines that a person or
36-1 establishment regulated under this Act has violated this Act or a
36-2 rule adopted under this Act <in a manner that constitutes a ground
36-3 for a license suspension under Subsection H, Section 3, or Section
36-4 4 of this Act>, the commission may assess an administrative penalty
36-5 against that person or establishment as a result of a hearing
36-6 conducted in the manner provided by Section 6C of this Act or as
36-7 provided by this section. If an administrative penalty is assessed
36-8 after a hearing conducted under Section 6C of this Act, the
36-9 commission shall follow the procedures described in Subsections (e)
36-10 through (h) of this section.
36-11 (b) The commission may assess the administrative penalty in
36-12 an amount not less than One Hundred Dollars ($100) or more than
36-13 Five Thousand Dollars ($5,000) for each act of violation. In
36-14 determining the amount of the penalty, the commission shall
36-15 <consider the seriousness of the violation> employ guidelines set
36-16 by commission rule.
36-17 (c) If, after examination of a possible violation and the
36-18 facts relating to that possible violation, the commission concludes
36-19 that a violation has occurred, the commission shall issue a
36-20 preliminary report that states the facts on which the conclusion is
36-21 based, the fact that an administrative penalty is to be imposed,
36-22 and the amount to be assessed. Not later than the tenth (10th) day
36-23 after the day on which the commissions issues the preliminary
36-24 report, the commission shall send a copy of the report to the
36-25 person or establishment charged with the violation, together with a
36-26 statement of the right of the person or establishment to a hearing
36-27 relating to the alleged violation and the amount of the penalty.
37-1 (d) Not later than the <twentieth (20th)> thirtieth (30th)
37-2 day after the day on which the preliminary report is sent, the
37-3 person or establishment charged may make a written request for a
37-4 hearing or may remit the amount of the administrative penalty to
37-5 the commission. Failure either to request a hearing or to remit
37-6 the amount of the penalty within the time provided by this
37-7 subsection results in a waiver of a right to a hearing under this
37-8 Act. Absent a request for a hearing, the penalty is due on the
37-9 thirtieth (30th) day after the preliminary report is sent, and
37-10 failure to pay the penalty by that date will result in an automatic
37-11 six (6) month suspension of the license against which the penalty
37-12 was assessed and further action as provided in subsection (h) of
37-13 this section. If the person or establishment charged requests a
37-14 hearing, the hearing shall be conducted in the manner provided by
37-15 Section 6C of this Act. <If it is determined after hearing that
37-16 the person or establishment has committed the alleged violation,
37-17 the commission shall give written notice to the person or
37-18 establishment of the findings established by the hearing and the
37-19 amount of the penalty, and shall enter an order requiring the
37-20 person or establishment to pay the penalty.>
37-21 (e) (1) If an administrative penalty is assessed as a result
37-22 of a hearing conducted under Section 6C of this Act, <N> not later
37-23 than the thirtieth (30th) day after the day on which the <notice>
37-24 order is <received> sent or a motion for rehearing is denied, the
37-25 person or establishment charged shall pay the administrative
37-26 penalty in full, or, if the person or establishment wishes to
37-27 contest either the amount of the penalty or the fact of the
38-1 violation, the person or establishment shall, not later than the
38-2 thirtieth (30th) day after the day on which the notice is sent or a
38-3 motion for rehearing is denied:
38-4 (A) remit the assessed amount to the commission
38-5 for deposit in an escrow account; or
38-6 (B) post a supersedeas bond in a form approved
38-7 by the commission for the amount of the penalty.
38-8 (2) If, after judicial review, it is determined that
38-9 no violation occurred or that the amount of the penalty should be
38-10 reduced, the commission shall remit the appropriate amount to the
38-11 person or establishment charged with the violation not later than
38-12 the thirtieth (30th) day after the date on which the judicial
38-13 determination becomes final.
38-14 (f) Failure to remit the amount of the administrative
38-15 penalty to or post bond with the commission within the time
38-16 provided by <this section> this Act results in a waiver of all
38-17 legal rights to contest the violation or the amount of the penalty.
38-18 If the person or establishment fails to remit the amount of the
38-19 administrative penalty to or to post bond with the commission
38-20 within that time, or within a longer period with the consent of the
38-21 commission, the license of that person or establishment is
38-22 suspended for six (6) months. After notice and a hearing, the
38-23 commission may extend the license suspension for a longer period or
38-24 may revoke or cancel the license for failure to remit the penalty
38-25 or post bond.
38-26 (g) An administrative penalty owed under this section <may>
38-27 shall be recovered in a civil action brought by the Attorney
39-1 General at the request of the commission.
39-2 (h) A penalty collected under this <section> Act shall be
39-3 <deposited in the State Treasury to the credit of the general
39-4 revenue fund.>, re-appropriated to the commission for the purpose
39-5 of administering a continuing education program as authorized in
39-6 Section 3 of this Act.
39-7 SECTION 31. Subsection (c), Section 6H, Chapter 251, Acts of
39-8 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
39-9 Vernon's Texas Civil Statutes), is amended to read as follows:
39-10 (c) Not later than the <twentieth (20th)> thirtieth (30th)
39-11 day after the day on which the preliminary report is sent, the
39-12 person or establishment charged may make a written request for a
39-13 hearing. Failure to request a hearing within the time provided by
39-14 this subsection results in a waiver of a right to a hearing under
39-15 this Act and the reprimand shall be issued by the commission and
39-16 placed in the permanent files of the commission. If the person or
39-17 establishment charged requests a hearing, the hearing shall be
39-18 conducted in the manner provided by Section 6C of this Act. If it
39-19 is determined after hearing that the person or establishment has
39-20 committed the alleged violation, the commission is not limited to
39-21 the issuance of a reprimand but may also take any action allowed
39-22 under <Subsection H, Section 3, or Subsection D, Section 4, of>
39-23 this Act.
39-24 SECTION 32. Section 6I, Chapter 251, Acts of the 53rd
39-25 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
39-26 Civil Statutes), is amended to read as follows:
39-27 Section 6I. Repeat and multiple offenders. (a) The
40-1 commission and/or <a> hearings officer shall review each
40-2 disciplinary proceeding to determine whether the licensee has
40-3 committed the same type of violation on one or more previous
40-4 occasions. If it is determined that the licensee has previously
40-5 committed the same type of violation, the commission and/or
40-6 hearings officer shall impose a disciplinary action that is more
40-7 severe than that imposed on the previous occasion.
40-8 (b) In a disciplinary proceeding involving multiple
40-9 violations of this Act, the commission and/or <the> hearings
40-10 <examiner> officer shall impose a disciplinary action that is more
40-11 severe than the disciplinary action that would be imposed
40-12 cumulatively for <each of> the individual violations.
40-13 SECTION 33. Subsection (a), Section 7, Chapter 251, Acts of
40-14 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
40-15 Vernon's Texas Civil Statutes), is amended to read as follows:
40-16 (a) An offense under Section 6A of this Act is a Class B
40-17 misdemeanor.
40-18 (b) The commission may file a complaint with the appropriate
40-19 governmental authorities to begin prosecution of a person who
40-20 commits an offense under Section 6A of this Act. The commission or
40-21 any adversely affected party may sue a funeral establishment or
40-22 <licensed> embalmer or funeral director who fails to comply with
40-23 any provision of this Act or any rule promulgated under this Act
40-24 for appropriate injunctive relief. This Act does not affect a
40-25 remedy or enforcement power under other laws.
40-26 SECTION 34. Section 9, Chapter 251, Acts of the 53rd
40-27 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
41-1 Civil Statutes), is amended to read as follows:
41-2 This Act does not limit or replace the authority of the
41-3 Banking Department of Texas to regulate and enforce Chapter 512,
41-4 Acts of the 54th Legislature, Regular Session, 1955, as amended
41-5 (Article 548b, Vernon's Texas Civil Statutes). The authority of
41-6 the commission as it relates to Article 548b is limited to the
41-7 imposition of an administrative penalty, issuance of a reprimand,
41-8 or suspension, revocation, or probation of a license issued by
41-9 <that> the commission.
41-10 SECTION 35. This Act takes effect September 1, 1993. On the
41-11 effective date of this Act any person serving as an apprentice will
41-12 be converted to a provisional licensee, provided that any person
41-13 serving as an apprentice prior to attending or graduating from a
41-14 school of embalming or college or mortuary science or prior to
41-15 passing the appropriate licensing examination will have their
41-16 provisional license canceled unless that person enrolls in an
41-17 accredited school of embalming or accredited college of mortuary
41-18 science or passes the appropriate licensing examination within
41-19 twelve months of the effective date of this Act.
41-20 SECTION 36. The importance of this legislation and the
41-21 crowded condition of the calendars in both houses create an
41-22 emergency and an imperative public necessity that the
41-23 constitutional rule requiring bills to be read on three several
41-24 days in each house be suspended, and this rule is hereby suspended.