1-1  By:  Jones of Lubbock (Senate Sponsor - Montford)      H.B. No. 466
    1-2        (In the Senate - Received from the House May 12, 1993;
    1-3  May 13, 1993, read first time and referred to Committee on Economic
    1-4  Development; May 22, 1993, reported adversely, with favorable
    1-5  Committee Substitute by the following vote:  Yeas 9, Nays 0;
    1-6  May 22, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Parker             x                               
   1-10        Lucio              x                               
   1-11        Ellis              x                               
   1-12        Haley              x                               
   1-13        Harris of Dallas   x                               
   1-14        Harris of Tarrant                               x  
   1-15        Leedom             x                               
   1-16        Madla              x                               
   1-17        Rosson             x                               
   1-18        Shapiro            x                               
   1-19        Wentworth                                       x  
   1-20  COMMITTEE SUBSTITUTE FOR H.B. No. 466                   By:  Parker
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to the operation of the Texas Funeral Service Commission.
   1-24        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-25        SECTION 1.  Subdivision 1, Subsection A, Section 1, Chapter
   1-26  251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
   1-27  4582b, Vernon's Texas Civil Statutes), is amended to read as
   1-28  follows:
   1-29              1.  A "funeral director," as that term is used herein,
   1-30  is a person who for compensation engages in or conducts, or who
   1-31  holds himself out as being engaged, for compensation, in preparing,
   1-32  other than by embalming, for the burial or disposition of dead
   1-33  human bodies<, and maintaining or operating a funeral establishment
   1-34  for the preparation and disposition, or for the care of dead human
   1-35  bodies>.
   1-36        SECTION 2.  Subsections D, E, F, G, H, and M, Section 1,
   1-37  Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
   1-38  (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
   1-39  as follows:
   1-40        D.  The term "embalmer" as herein used is a person who for
   1-41  compensation disinfects or preserves a dead human body, entire or
   1-42  in part by the use of chemical substances, fluids, or gases in the
   1-43  body, or by the introduction of the same into the body by vascular
   1-44  or hypodermic injection, or by direct application into the organs
   1-45  or cavities, or by any other method intended to disinfect or
   1-46  preserve a dead human body, or restore body tissues and structures.
   1-47  The placing of any such chemicals or substances on or in a dead
   1-48  human body by any person who is not a licensed embalmer shall be
   1-49  deemed a violation of this Act, provided that this shall not apply
   1-50  to a provisional licensee <registered apprentice> working under the
   1-51  supervision of a licensed embalmer.  All persons who are engaged in
   1-52  the business of embalming or who profess to be engaged in such
   1-53  business, or hold themselves out to the public as embalmers, shall
   1-54  be licensed embalmers.
   1-55        E.  The term "provisional licensee" <"apprentice"> as herein
   1-56  used is a person engaged in learning the practice of funeral
   1-57  directing and/or embalming under the instruction, direction, and
   1-58  personal supervision of a duly licensed funeral director and/or
   1-59  embalmer of and in the State of Texas in accordance with the
   1-60  provisions of this Act, and having been duly issued a provisional
   1-61  license <registered as such> by the commission prior thereto.
   1-62        F.  The term "provisional license program" or "program"
   1-63  <"apprenticeship"> as used herein shall be construed as diligent
   1-64  attention to assigned duties and other matters performed in a
   1-65  licensed funeral establishment in this state.  The commission by
   1-66  rule shall define the terms of employment of a provisional licensee
   1-67  <an apprentice>, which must include service by the provisional
   1-68  licensee <apprentice> under actual working conditions and under the
    2-1  personal supervision of a licensed funeral director and/or
    2-2  embalmer.
    2-3        G.  The term "funeral establishment" as herein used is a
    2-4  place of business used in the care and preparation for burial or
    2-5  transportation of dead human bodies, or any place where one or more
    2-6  persons, either as sole owner, in co-partnership, or through
    2-7  corporate status, represent themselves to be engaged in the
    2-8  business of embalming and/or funeral directing, or are <as> so
    2-9  engaged.  Such funeral directing and embalming shall be performed
   2-10  only by a licensed funeral director, a licensed embalmer, a
   2-11  provisional licensee, or a qualified mortuary student under the
   2-12  supervision and direction of a licensed funeral director and/or
   2-13  embalmer.
   2-14        H.  The term "due notice" as herein used shall mean published
   2-15  notice of the time and place of regular meetings of the commission.
   2-16  Notice of time, place, and purpose of any meeting of the commission
   2-17  filed with the Texas Register<,> at least seven (7) days prior
   2-18  thereto<,> shall be adequate notice for any regular meeting,
   2-19  including the giving of examinations<; however, a notice of a
   2-20  meeting wherein a change in the rules and regulations of the
   2-21  commission is to be considered, shall be given by written notice in
   2-22  the Texas Register at least thirty (30) days in advance of any
   2-23  hearing thereon>.
   2-24        M.  "Solicitation" means any <a> direct or indirect contact
   2-25  by a licensed funeral director, a licensed embalmer, or an
   2-26  employee, agent, or representative of a licensed funeral
   2-27  establishment or any other entity with a person near death or the
   2-28  family, next of kin, or person responsible for making funeral
   2-29  arrangements for <one who has custody of> a person who is deceased
   2-30  or near death if the contact is not initiated by the person near
   2-31  death or the family, next of kin, or person responsible for making
   2-32  funeral arrangements for a person who is deceased or near death and
   2-33  the contact is for the purpose of securing the right to provide
   2-34  funeral services or merchandise or is in a situation that might
   2-35  influence the person contacted to choose a particular funeral
   2-36  establishment <for the deceased or the person near death>.
   2-37  Provided, however, that the term "solicitation" shall not be deemed
   2-38  to include, except in the case of contact with a person near death
   2-39  or the person responsible  for making funeral arrangements for a
   2-40  person near death, any attempt to secure funeral business pursuant
   2-41  to a permit issued under the provisions of Chapter 512, Acts of the
   2-42  54th Legislature, Regular Session, 1955, as amended (Article 548b,
   2-43  Vernon's Texas Civil Statutes), or to include any method of
   2-44  advertising by publication or broadcasting.
   2-45        SECTION 3.  Subdivision (5), Subsection A, Section 2, Chapter
   2-46  251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
   2-47  4582b, Vernon's Texas Civil Statutes), is amended to read as
   2-48  follows:
   2-49              (5)  Two commissioners <A commissioner> may <not>
   2-50  participate in any informal conference <commission proceeding>
   2-51  relating to a case that awaits a hearing as described by Section 6C
   2-52  of this Act.  One of the two commissioners must be a licensed
   2-53  funeral director or embalmer and one must be a public member of the
   2-54  commission.
   2-55        SECTION 4.  Section 2, Chapter 251, Acts of the 53rd
   2-56  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
   2-57  Civil Statutes), is amended by amending Subsections H and L and
   2-58  adding Subsections S and T to read as follows:
   2-59        H.  The commission may employ such inspectors, <and> clerical
   2-60  and technical assistants, legal counsel other than the attorney
   2-61  general, and <including> an Executive Director, as may be
   2-62  determined by it to be necessary to carry out the provisions of
   2-63  this Act, and the terms, conditions and expenses of such employment
   2-64  shall be determined by the commission.
   2-65        L.  The commission may issue, or delegate to the executive
   2-66  director the power to issue, subpoenas and subpoenas duces tecum.
   2-67  A subpoena or subpoena duces tecum issued under this subsection
   2-68  must be served either by personal service or by certified mail,
   2-69  return receipt requested <shall prescribe the form of the official
   2-70  application blank.  It shall notify the proprietor of each licensed
    3-1  funeral establishment in this state that any person who seeks
    3-2  employment as a funeral director or embalmer must fill in this
    3-3  application blank, and that the person receiving the application
    3-4  must mail a copy of the official form to the commission.  The
    3-5  commission shall inform the prospective employer of the status of
    3-6  the applicant's license to engage in the activity he proposes>.
    3-7        S.  The commission may appoint committees from the commission
    3-8  to consider and make recommendations on matters referred to them by
    3-9  the commission.
   3-10        T.  The commission may institute an action in its own name to
   3-11  enjoin the violation of this Act.  An action under this subsection
   3-12  is in addition to any other action, proceeding, or remedy
   3-13  authorized by law.  In an action under this subsection, the
   3-14  commission shall be represented by the attorney general, a county
   3-15  or district attorney, or counsel designated and authorized by the
   3-16  commission.
   3-17        SECTION 5.  Section 3, Chapter 251, Acts of the 53rd
   3-18  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
   3-19  Civil Statutes), is amended by amending Subsections A, B, C, D, E,
   3-20  and H and adding Subsection J to read as follows:
   3-21        A.  The commission is hereby authorized and empowered and it
   3-22  shall be its duty to prescribe and maintain a standard of
   3-23  proficiency, professionalism, <character> and qualifications of
   3-24  those engaged or who may engage in the practice of a funeral
   3-25  director or embalmer and to determine the qualifications necessary
   3-26  to enable any person to lawfully practice as a funeral director, to
   3-27  embalm dead human bodies, and to collect the fees therefor.  The
   3-28  commission shall examine all applicants for funeral directors' and
   3-29  embalmers' licenses and for provisional <apprenticeship> licenses
   3-30  and shall issue the proper license to all persons qualified and who
   3-31  meet the requirements herein prescribed.
   3-32        B.  (1)  To be eligible for a license to practice funeral
   3-33  directing, an applicant must:
   3-34                    (a)  be 18 years of age or older;
   3-35                    (b)  have graduated from an accredited high
   3-36  school or passed an examination prescribed by the Central Education
   3-37  Agency;
   3-38                    (c)  have graduated from an accredited school or
   3-39  college of mortuary science;
   3-40                    (d)  have served as a provisional licensee <an
   3-41  apprentice> for not less than one year under the personal
   3-42  supervision and instruction of a licensed funeral director; and
   3-43                    (e)  successfully complete written examinations
   3-44  as described by Subdivision (2) of this subsection.
   3-45              (2)  The commission shall administer or arrange for the
   3-46  administration of:
   3-47                    (a)  a written professionally prepared
   3-48  examination on the subjects of:
   3-49                          (i)  the art and technique of funeral
   3-50  directing;
   3-51                          (ii)  the signs of death;
   3-52                          (iii)  the manner by which death may be
   3-53  determined;
   3-54                          (iv)  sanitation;
   3-55                          (v)  hygiene;
   3-56                          (vi)  mortuary management and mortuary law;
   3-57                          (vii)  business and professional ethics;
   3-58  and
   3-59                          (viii)  other subjects that may be taught
   3-60  in a recognized school or college of mortuary science; and
   3-61                    (b)  a written examination developed by the
   3-62  commission or developed for the commission by contract on:
   3-63                          (i)  laws applicable to vital statistics
   3-64  pertaining to dead human bodies; and
   3-65                          (ii)  local and state rules and laws
   3-66  relating to the preparation, transportation, care, and disposition
   3-67  of dead human bodies.
   3-68              (3)  Not later than the 30th day after the date on
   3-69  which a funeral director licensing examination is administered
   3-70  under this Act, the commission shall notify each examinee of the
    4-1  results of the examination.  However, if an examination is graded
    4-2  or reviewed by a national testing service, the commission shall
    4-3  notify examinees of the results of the examination not later than
    4-4  the 14th day after the date on which the commission receives the
    4-5  results from the testing service.  If the notice of examination
    4-6  results graded or reviewed by a national testing service will be
    4-7  delayed for longer than 90 days after the examination date, the
    4-8  commission shall notify the examinee of the reason for the delay
    4-9  before the 90th day.  If requested in writing by a person who fails
   4-10  a licensing examination administered under this Act, the commission
   4-11  shall furnish the person with an analysis of the person's
   4-12  performance on the examination.
   4-13        C.  (1)  To be eligible for a license to practice embalming,
   4-14  an applicant must:
   4-15                    (a)  be 18 years of age or older;
   4-16                    (b)  have graduated from an accredited high
   4-17  school or passed an examination prescribed by the Central Education
   4-18  Agency;
   4-19                    (c)  have graduated from an accredited school or
   4-20  college of mortuary science;
   4-21                    (d)  have served as a provisional licensee <an
   4-22  apprentice> for one year under the personal supervision of a
   4-23  licensed embalmer; and
   4-24                    (e)  successfully complete written examinations
   4-25  as described by Subdivision (2) of this subsection.
   4-26              (2)  The commission shall administer or arrange for the
   4-27  administration of:
   4-28                    (a)  a written professionally prepared
   4-29  examination on the subjects of:
   4-30                          (i)  the anatomy of the human body;
   4-31                          (ii)  the cavities of the human body;
   4-32                          (iii)  the arterial and venous system of
   4-33  the human body;
   4-34                          (iv)  blood and discoloration;
   4-35                          (v)  bacteriology and hygiene;
   4-36                          (vi)  pathology;
   4-37                          (vii)  chemistry and embalming;
   4-38                          (viii)  arterial and cavity embalming;
   4-39                          (ix)  restorative art;
   4-40                          (x)  disinfecting;
   4-41                          (xi)  embalming special cases;
   4-42                          (xii)  contagious and infectious diseases;
   4-43                          (xiii)  mortuary management;
   4-44                          (xiv)  care, preservation, transportation,
   4-45  and disposition of dead human bodies;
   4-46                          (xv)  sanitary science; and
   4-47                          (xvi)  other subjects as may be taught in a
   4-48  recognized school or college of mortuary science; and
   4-49                    (b)  a written examination developed by the
   4-50  commission or developed for the commission by contract on:
   4-51                          (i)  laws applicable to vital statistics
   4-52  pertaining to dead human bodies; and
   4-53                          (ii)  local and state rules and laws
   4-54  relating to the care and disposition of dead human bodies.
   4-55              (3)  Not later than the 30th day after the date on
   4-56  which an embalmer licensing examination is administered under this
   4-57  Act, the commission shall notify each examinee of the results of
   4-58  the examination.  However, if an examination is graded or reviewed
   4-59  by a national testing service, the commission shall notify
   4-60  examinees of the results of the examination not later than the 14th
   4-61  day after the date on which the commission receives the results
   4-62  from the testing service.  If the notice of examination results
   4-63  graded or reviewed by a national testing service will be delayed
   4-64  for longer than 90 days after the examination date, the commission
   4-65  shall notify the examinee of the reason for the delay before the
   4-66  90th day.  If requested in writing by a person who fails a
   4-67  licensing examination administered under this Act, the commission
   4-68  shall furnish the person with an analysis of the person's
   4-69  performance on the examination.
   4-70        D.  It shall be the duty of the commission to prescribe and
    5-1  supervise the course of instruction received by a provisional
    5-2  licensee <an apprentice> while participating in a provisional
    5-3  license program <serving his or her apprenticeship>, consistent
    5-4  with the following requirements <to establish such an
    5-5  apprenticeship registration procedure>:
    5-6              1.  Provisional license <Apprenticeship> for embalmer:
    5-7  A license to practice the science of embalming shall not be issued
    5-8  unless and until the applicant therefor has served a provisional
    5-9  license program <an apprenticeship period> of not less than twelve
   5-10  (12) consecutive months under the personal supervision and
   5-11  instruction of a licensed embalmer and has successfully completed
   5-12  all requirements of the program <apprenticeship>.  The only
   5-13  exception to this requirement shall be in the case of an applicant
   5-14  under reciprocity.
   5-15                    (a)  Any person, eighteen (18) years of age or
   5-16  more, who desires to practice the science of embalming in this
   5-17  state, files application therefor, meets the requirements of the
   5-18  law and this commission, and possesses such qualification to enter
   5-19  into the provisional license program <apprenticeship training>, may
   5-20  be registered as a provisional licensee <an apprentice>.  A
   5-21  provisional license program for <Apprenticeship for a license to
   5-22  practice the science of> embalming must be served by the person
   5-23  after graduation from a school or college of mortuary science.  An
   5-24  applicant shall pay a license <registration> fee at the time he
   5-25  requests to enter the program <such apprenticeship registration>.
   5-26                    (a-1)  An applicant for a license to practice
   5-27  <the science of> embalming must make <who attains> a grade of 75
   5-28  percent <70%> or higher on the written examination used <given> by
   5-29  the commission.  The commission may require an applicant to appear
   5-30  before at least one member of the commission for approval of the
   5-31  person's application.  The approval is subject to review by the
   5-32  entire commission.  An applicant who has not entered the
   5-33  provisional license program before the second anniversary of the
   5-34  date the applicant took the examination must pass the examination
   5-35  again before receiving a provisional license <upon payment of a
   5-36  registration fee shall be registered as an apprentice within six
   5-37  (6) months of such examination>.
   5-38                    (b)  Each provisional <registered apprentice>
   5-39  embalmer shall be issued a provisional license <certificate of
   5-40  apprenticeship or other means of apprenticeship identification> by
   5-41  the commission for a provisional license program to be served in
   5-42  the State of Texas.  During the course of the program
   5-43  <apprenticeship>, a provisional licensee <an apprentice> shall work
   5-44  on a minimum of sixty (60) <forty (40)> cases.  No more than two
   5-45  (2) provisional licensees <apprentices> may receive credit <due>
   5-46  for work on any one body.  The commission by rule shall define the
   5-47  standards for a case and shall establish the minimum number of
   5-48  complete cases a provisional licensee <an apprentice> is required
   5-49  to execute during the provisional license program <apprenticeship>.
   5-50  The standards required for a complete case shall include all the
   5-51  duties and activities necessary for embalming.  The commission by
   5-52  rule also shall establish guidelines for provisional licensee
   5-53  supervision <apprentice supervisors> under which a provisional
   5-54  licensee <an apprentice> is granted increased responsibilities
   5-55  during the course of the program <apprenticeship>.
   5-56                    (c)  A provisional <An apprentice> embalmer must
   5-57  report to the commission within ten (10) days after the end of each
   5-58  month each <separate> case handled by the provisional embalmer
   5-59  <him> or with which the provisional embalmer <he has> assisted in
   5-60  handling during that month.  Each such report shall be certified by
   5-61  the licensee under whose personal supervision <whom> the
   5-62  provisional embalmer <apprentice> performed the <his> work.  For
   5-63  <Throughout the period of apprenticeship, the apprentice shall
   5-64  report on at least one (1) such case of embalming each calendar
   5-65  month, within the month.  In> any month in which the provisional
   5-66  embalmer <he> did not embalm at least one (1) case under the
   5-67  personal supervision <direction> of a licensed embalmer, a report
   5-68  shall be made to the commission notwithstanding.
   5-69                    (d)  The commission shall set the license
   5-70  <registration> and examination fees in an amount that is reasonable
    6-1  and necessary for the administration of the program <registration
    6-2  and examination>.
    6-3              2.  Provisional License <Apprentice> for Funeral
    6-4  Director:  The term of the provisional license program
    6-5  <apprenticeship> for a funeral director's license shall be a period
    6-6  of not less than twelve (12) months, and may be served concurrently
    6-7  with the provisional license program <apprenticeship> for an
    6-8  embalmer's license; however, the provisional license program
    6-9  <apprenticeship> must be served in twelve (12) consecutive months.
   6-10  A person desiring to become a provisional <an apprentice> funeral
   6-11  director shall make application to the commission on a form
   6-12  provided by the commission<, and if the commission desires, he
   6-13  shall appear before at least one (1) member of the commission, or a
   6-14  designated representative thereof, for approval of his application,
   6-15  subject to review of it by the entire commission>.  An applicant
   6-16  must be not less than eighteen (18) years of age and have completed
   6-17  the educational requirements prescribed for a funeral director<,
   6-18  except that the commission by rule may allow an applicant for a
   6-19  funeral director's license to begin serving the one (1) year
   6-20  apprenticeship before or after the applicant enrolls in a school of
   6-21  embalming or college of mortuary science>.  The application for
   6-22  registration shall be sworn to and accompanied by a <registration>
   6-23  fee.  If the application is accepted, an applicant will be issued a
   6-24  provisional license <certificate of apprenticeship registration>
   6-25  upon determination by the commission that his qualifications are
   6-26  satisfactory.
   6-27                    (a)  An applicant for a funeral director's
   6-28  license and the examination therefor <who has not begun one (1)
   6-29  year of apprenticeship prior to graduation from a school of
   6-30  embalming or college of mortuary science> shall be admitted to the
   6-31  provisional license program <apprenticeship> only if the applicant
   6-32  applies for and takes the written examination given by the
   6-33  commission, and pays the license <registration> fee, whereupon he
   6-34  may <shall> be licensed <registered> as a provisional funeral
   6-35  director if the applicant otherwise meets the requirements of this
   6-36  Act.  An applicant who has not been licensed as a provisional
   6-37  funeral director before the second anniversary of the date the
   6-38  applicant took the examination must pass the examination again
   6-39  before being licensed as a provisional funeral director.  <an
   6-40  apprentice.  Provided, however, an applicant must register as an
   6-41  apprentice within six (6) months of such examination.>
   6-42                    (b)  A provisional <An apprentice> funeral
   6-43  director must report to the commission within ten (10) days after
   6-44  the end of each month each <separate> case that the provisional
   6-45  funeral director <with which he has> assisted in handling during
   6-46  that month.  Each <such> report shall be certified to by the
   6-47  licensee under whom the provisional funeral director <apprentice>
   6-48  performed the work.  For <Throughout the period of apprenticeship
   6-49  the apprentice shall report on at least one (1) such case each
   6-50  calendar month, within the month.  In> any month within which the
   6-51  provisional funeral director <he> did not assist a licensed funeral
   6-52  director in handling a funeral, a report shall be made to the
   6-53  commission notwithstanding.
   6-54                    (c)  The provisional license program <An
   6-55  apprenticeship> shall include assisting a licensed funeral director
   6-56  in this state with a minimum of sixty (60) <forty (40)> cases.  No
   6-57  more than two (2) provisional licensees <apprentices> may receive
   6-58  credit for work done on any one body.  The commission by rule shall
   6-59  define the standards for a case and shall set the number of
   6-60  complete cases a provisional licensee <an apprentice> is required
   6-61  to execute during the program <apprenticeship>.  The standards
   6-62  required for a complete case shall include all the activities
   6-63  necessary from the time the body is obtained until final
   6-64  disposition.  The commission by rule also shall establish
   6-65  guidelines for provisional licensee supervision <apprentice
   6-66  supervisors> under which a provisional licensee <an apprentice> is
   6-67  granted increased responsibilities during the course of the
   6-68  provisional license program <apprenticeship>.
   6-69                    (d)  The commission shall set the license
   6-70  <registration> and examination fees in an amount that is reasonable
    7-1  and necessary for the administration of the program <registration
    7-2  and examination>.
    7-3                    (e)  An applicant for a funeral director license
    7-4  may not be considered for licensure until the applicant completes
    7-5  all of the requirements of the provisional license program and
    7-6  attains a grade of 75 percent or higher on the written examination
    7-7  given by the commission.  The commission may require an applicant
    7-8  to appear before at least one member of the commission for approval
    7-9  of the person's application.  The approval is subject to review by
   7-10  the entire commission.
   7-11              3.  Annual renewal of provisional license
   7-12  <apprenticeship certificate>:  Each provisional license
   7-13  <certificate of apprenticeship> issued by the commission to a
   7-14  provisional <an apprentice> embalmer or <apprentice> funeral
   7-15  director must be renewed on the first day of January of each year
   7-16  and will be renewed upon payment by the provisional licensee
   7-17  <apprentice> of a renewal fee, provided the provisional licensee
   7-18  <apprentice> has observed the rules and regulations of the
   7-19  commission <with respect to his apprenticeship>.  Notice shall be
   7-20  mailed, during the month of December each year, to each provisional
   7-21  licensee <registered apprentice> at his last known address,
   7-22  notifying him that the renewal fee is due.  If a provisional
   7-23  licensee <registered apprentice> fails to pay the annual renewal
   7-24  fee by the due date, the commission shall impose a late payment
   7-25  penalty equal in amount to the license renewal fee and shall
   7-26  suspend the license <his certificate> for nonpayment and notify the
   7-27  provisional licensee <such apprentice> of such suspension.  If the
   7-28  said renewal fee and penalty are not then paid within ninety (90)
   7-29  days from the date of such notice of suspension, the commission
   7-30  shall then cancel the license <such certificate>.  Provided,
   7-31  however, after the license <an apprentice certificate> has been
   7-32  cancelled, the provisional licensee <apprentice> may apply for
   7-33  reinstatement within eighteen (18) months from the date the license
   7-34  <such apprentice certificate> was cancelled and the commission may
   7-35  reinstate the provisional licensee <said apprentice> provided <he
   7-36  meets> all other requirements of the commission are met and <pays>
   7-37  the license fee and a late payment penalty equal in amount to the
   7-38  license fee for the period of the cancellation are paid.  A
   7-39  provisional license <certificate of apprenticeship> may not be
   7-40  renewed for more than two (2) <a total period of five (5)> years
   7-41  from the date of its issuance unless the person requests and
   7-42  receives an extension based on hardship from the commission.  It is
   7-43  provided that the registration fee of any provisional licensee
   7-44  <apprentice> who is actively engaged in the military service of the
   7-45  United States may be remitted for the duration of such service or
   7-46  for such fees and such time as the commission may deem advisable
   7-47  upon presentation of proper evidence required by the commission.
   7-48  The commission shall set the renewal fee and the penalty in an
   7-49  amount that is reasonable and necessary for the administration of
   7-50  this Act.  A provisional license <An apprentice certificate> that
   7-51  has been cancelled or suspended or has lapsed for a period of five
   7-52  (5) years or more may be reinstated only if the applicant takes and
   7-53  passes the applicable examinations <apprenticeship examination>
   7-54  under Subdivision 1 or 2 of this subsection.  The commission may
   7-55  adopt rules relating to the reinstatement of provisional licenses
   7-56  under this subdivision <such an apprenticeship certificate>.
   7-57              <3a.  The commission by rule shall adopt a system under
   7-58  which certificates expire on various dates during the year.  The
   7-59  date for sending notice that payment is due and the date for
   7-60  suspension due to nonpayment shall be adjusted accordingly.  For
   7-61  the year in which the certificate expiration date is changed,
   7-62  certification fees payable on January 1 shall be prorated on a
   7-63  monthly basis so that each certificate holder shall pay only that
   7-64  portion of the certification fee which is allocable to the number
   7-65  of months during which the certificate is valid.  On renewal of the
   7-66  certificate on the new expiration date the total renewal fee is
   7-67  payable.>
   7-68              4.  Notification of the commission upon entry into the
   7-69  provisional license program <apprenticeship>:  When a provisional
   7-70  licensee <an apprentice> enters the employ of a licensed embalmer
    8-1  or funeral director, the provisional licensee <he> shall
    8-2  immediately notify the commission of the name and place of business
    8-3  of the licensed embalmer or funeral director <whose service he has
    8-4  entered and the name of the funeral director or embalmer> under
    8-5  whom the provisional licensee <he> will train, and such
    8-6  notification shall be signed by the embalmer or funeral director in
    8-7  each case.  If at any time thereafter the provisional licensee
    8-8  <such apprentice> leaves the employ of the licensed embalmer or
    8-9  funeral director <whose services he has entered>, the <said>
   8-10  licensed embalmer or funeral director shall give the provisional
   8-11  licensee <to such apprentice> an affidavit showing the length of
   8-12  time the provisional licensee <he> has served <as an apprentice
   8-13  with him> and the number of cases handled while so employed; the
   8-14  original of said affidavit shall be filed with the commission and
   8-15  made a matter of record, and a copy shall be furnished to the
   8-16  provisional licensee <apprentice>.  The commission shall furnish
   8-17  report forms to be used by each provisional licensee <apprentice>.
   8-18              5.  A provisional licensee is subject to the same
   8-19  disciplinary actions as a holder of a funeral director or embalmer
   8-20  license for a violation of this Act or a rule adopted under this
   8-21  Act <certificate of apprenticeship may be suspended or revoked as
   8-22  provided and set forth in Section 3, subsection H>.
   8-23        E.  Any person engaged or desiring to engage in the practice
   8-24  of embalming or funeral directing in this state, in connection with
   8-25  the care and disposition of dead human bodies, shall make written
   8-26  application to the commission for a license accompanying same with
   8-27  an application fee.  The license or licenses when issued shall be
   8-28  signed by a majority of the commission and shall authorize the
   8-29  licensee to practice the science of embalming and/or funeral
   8-30  directing.  All licenses shall be <registered in the office of the
   8-31  County Clerk in any county in which the holder thereof resides and
   8-32  practices embalming and/or funeral directing and shall be>
   8-33  displayed conspicuously in each <the> place of business  at which
   8-34  the licensee practices funeral directing or embalming.  A person
   8-35  may renew an unexpired license by paying to the commission before
   8-36  the expiration date of the license the required renewal fee.  If a
   8-37  person's license has been expired for ninety (90) days or less, the
   8-38  person may renew the license by paying to the commission the
   8-39  required renewal fee and a penalty fee that is one-half of the
   8-40  renewal <examination> fee for the license.  If a person's license
   8-41  has been expired for longer than ninety (90) days but less than
   8-42  five (5) <two (2)> years, the person may renew the license by
   8-43  paying to the commission all unpaid renewal fees and a penalty fee
   8-44  that is equal to one-half of the total of the unpaid renewal fees
   8-45  <examination fee for the license>.  If a person's license has been
   8-46  expired for five (5) <two (2)> years or longer, the person may not
   8-47  renew the license.  The person may obtain a new license by
   8-48  submitting to reexamination and complying with the requirements and
   8-49  procedures for obtaining an original license.  However, the
   8-50  commission may renew without reexamination an expired license of a
   8-51  person who was licensed in this state, moved to another state, and
   8-52  is currently licensed and has been in practice in the other state
   8-53  for the two (2) years preceding application.  The person must pay
   8-54  to the commission a fee that is equal to the renewal <examination>
   8-55  fee for the license.  At least thirty (30) days before the
   8-56  expiration of a person's license, the commission shall send written
   8-57  notice of the impending license expiration to the person at the
   8-58  person's <licensee's> last known address according to the records
   8-59  of the commission.  The commission may by rule require continuing
   8-60  education as a condition for license renewal except for persons
   8-61  described in Subdivisions 4 and 5 of this subsection.  If any
   8-62  license issued under this Act is <shall be> lost or destroyed, the
   8-63  holder of any such license may present his application for
   8-64  duplicate license to the commission, on a form to be prescribed by
   8-65  the commission, together with his affidavit of such loss or
   8-66  destruction, and that he is the same person to whom such license
   8-67  was issued, and such other information concerning its loss or
   8-68  destruction as the commission shall require, and shall, upon
   8-69  payment of a duplicate license fee, as determined by the
   8-70  commission, be granted a duplicate license.
    9-1        H.  The commission may, after a hearing as provided by
    9-2  Section 6C of this Act, reprimand, assess an administrative
    9-3  penalty, revoke, suspend, or probate the suspension of a license or
    9-4  provisional license, or impose any combination of these sanctions
    9-5  against a licensed <seek appropriate injunctive relief against a
    9-6  funeral establishment, licensed embalmer, or> funeral director, a
    9-7  licensed embalmer, or a provisional licensee <who fails to comply
    9-8  with any provision of this Act, including a violation relating to
    9-9  prepaid funeral services or funeral services delivered at the time
   9-10  of need.  This Act does not affect any remedy or enforcement power
   9-11  under other laws>.  The commission may assess an administrative
   9-12  penalty without a hearing if the penalty is assessed <against a
   9-13  licensed individual or establishment> in the manner provided by
   9-14  Section 6G of this Act <or as the result of a hearing conducted in
   9-15  the manner provided by Section 6C of this Act>.  Action taken by
   9-16  the commission under this section may be based only on a violation
   9-17  of this Act or a rule adopted under this Act.  The commission may
   9-18  refuse without a hearing to license a person or to permit a person
   9-19  to serve  as a provisional licensee if the person has violated this
   9-20  Act or a rule adopted under this Act.  A person whose license or
   9-21  provisional license application is refused under this subsection
   9-22  may appeal the decision by requesting a hearing not later than the
   9-23  30th day after the date of the refusal.  The commission and the
   9-24  person whose application for license or provisional license is
   9-25  refused may agree to the issuance of a probationary license or the
   9-26  commission may, after a hearing, order that a license be issued on
   9-27  a probationary basis.  A violation of this Act includes the
   9-28  following <After a hearing conducted in the manner provided by
   9-29  Section 6C, the commission may issue a reprimand under Section 6H
   9-30  of this Act.  The commission may assess an administrative penalty,
   9-31  revoke, suspend, or place on probation any licensed funeral
   9-32  director and/or embalmer or apprentice who violates any provision
   9-33  of this Act, including a violation relating to prepaid funeral
   9-34  services or funeral services delivered at the time of need.  The
   9-35  commission may issue a reprimand or refuse to license or admit
   9-36  persons to examination for any of the following reasons all of
   9-37  which are offenses as provided in Section 6A of this Act>:
   9-38              1.  The presentation to the commission of any license,
   9-39  certificate, or diploma that <which> was illegally or fraudulently
   9-40  obtained, or when fraud or deception has been practiced in passing
   9-41  the examination;
   9-42              2.  Conviction of:
   9-43                    (A)  a felony; or
   9-44                    (B)  a misdemeanor related to the practice of
   9-45  embalming or funeral directing;
   9-46              3.  Being unfit to practice as a funeral director
   9-47  and/or embalmer by reason of insanity and having been adjudged by a
   9-48  court of competent jurisdiction to be of unsound mind;
   9-49              4.  The use of any statement that misleads or deceives
   9-50  the public, including but not limited to false or misleading
   9-51  statements regarding (1) any legal, religious, or cemetery
   9-52  requirement for funeral merchandise or funeral services, (2) the
   9-53  preservative qualities of funeral merchandise or funeral services
   9-54  in preventing or substantially delaying natural decomposition or
   9-55  decay of human remains, (3) the airtight or watertight properties
   9-56  of a casket or outer enclosure, or (4) representations as to
   9-57  licensed personnel in the operation of a funeral establishment;
   9-58              5.  The purchase, sale, barter, or use, or any offer to
   9-59  purchase, sell, barter, or use any license, certificate, or
   9-60  transcript of license or certificate, in or incident to an
   9-61  application to the commission for license to practice as a funeral
   9-62  director and/or embalmer;
   9-63              6.  Altering, with fraudulent intent, any funeral
   9-64  director and/or embalmer license, certificate, or transcript of
   9-65  license or certificate;
   9-66              7.  The use of any funeral director and/or embalmer
   9-67  license, certificate, diploma<,> or transcript of any such funeral
   9-68  director and/or embalmer license, certificate, or diploma that<,
   9-69  which> has been fraudulently purchased, issued, counterfeited, or
   9-70  materially altered;
   10-1              8.  The impersonation of, or acting as proxy for,
   10-2  another in any examination required by this Act for a funeral
   10-3  director and/or embalmer license;
   10-4              9.  The impersonation of a licensed funeral director or
   10-5  embalmer as authorized by this Act <hereunder>, or permitting<,> or
   10-6  allowing another to use a person's <his> license<,> or certificate
   10-7  to practice as a funeral director or embalmer in this state;
   10-8              10.  A violation of Section 1, 5, or 9, Chapter 512,
   10-9  Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
  10-10  Vernon's Texas Civil Statutes), or a rule adopted under that Act;
  10-11              11.  Taking custody of a dead human body without the
  10-12  permission of the person or the agent of the person authorized to
  10-13  make funeral arrangements for the deceased, or without the
  10-14  permission of the medical examiner or justice of the peace when a
  10-15  medical examiner or justice of the peace has jurisdiction over the
  10-16  body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
  10-17  Criminal Procedure, <embalming, or> refusing to promptly surrender
  10-18  a dead human body to a person or <his> agent authorized to make
  10-19  funeral arrangements for the deceased, or embalming a body without
  10-20  the express written or oral permission of a person authorized to
  10-21  make funeral arrangements for the deceased or without making a
  10-22  documented reasonable effort over a period of at least three (3)
  10-23  <two (2)> hours to obtain the permission;
  10-24              11A.  Embalming or attempting to embalm <Attempting>
  10-25  without proper authority <to embalm> a dead human body.  Evidence
  10-26  of embalming or attempting to embalm includes, but is not limited
  10-27  to, <as evidenced by the use of sutures or mechanical devices in
  10-28  the posing of any facial feature and:>
  10-29                    <(A)>  the making of any incision on the body,<;
  10-30  or>
  10-31                    <(B)>  the raising of any circulatory vessel of
  10-32  the body, or the injection of any chemical into the body;
  10-33              12.  Wilfully making any false statement on a
  10-34  certificate of death or on a document required by this Act or by a
  10-35  rule adopted under this Act;
  10-36              13.  Employment directly or indirectly of any
  10-37  provisional licensee <apprentice>, agent, assistant, embalmer,
  10-38  funeral director, employee, or other person on a part or full-time
  10-39  basis, or on commission, for the purpose of soliciting individuals
  10-40  or institutions by whose influence dead human bodies may be turned
  10-41  over to a particular funeral director, <or> embalmer, or funeral
  10-42  establishment;
  10-43              14.  Presentation of false certification of work done
  10-44  as a provisional licensee <an apprentice on apprenticeship
  10-45  records>;
  10-46              15.  Unfitness by reason of present substance abuse
  10-47  <drug addiction>;
  10-48              16.  Whenever a licensee, provisional licensee
  10-49  <apprentice>, or any other person, whether employee, agent, <or>
  10-50  representative, or one in any manner associated with a funeral
  10-51  establishment engages <shall engage> in solicitation as defined in
  10-52  this Act;
  10-53              17.  Failure by the Funeral Director in Charge to
  10-54  provide licensed personnel for direction or personal supervision
  10-55  for a "first call," as that term is defined in this Act;
  10-56              18.  Misappropriation <Intentional misappropriation> of
  10-57  any funds held by a licensee, funeral establishment, including its
  10-58  employees and agents, or other depository, that create <creates> an
  10-59  obligation to provide a funeral service or merchandise, including
  10-60  retention for an unreasonable time of excess funds paid by or on
  10-61  behalf of the consumer for which the consumer is entitled to a
  10-62  refund;
  10-63              19.  Performing acts of funeral directing or embalming,
  10-64  as those terms are defined in this Act, that <which> are outside
  10-65  the licensed scope and authority of the licensee, or performing
  10-66  acts of funeral directing or embalming in a capacity other than
  10-67  that of an employee, agent, subcontractor, or assignee of a
  10-68  licensed funeral establishment that has contracted to perform those
  10-69  acts;
  10-70              20.  Engaging in fraudulent, unprofessional, or
   11-1  deceptive conduct in providing funeral services or merchandise to a
   11-2  consumer;
   11-3              21.  Statement or implication by a funeral director or
   11-4  embalmer that a customer's concern with the cost of any funeral
   11-5  service or funeral merchandise is improper or indicates a lack of
   11-6  respect for the deceased;
   11-7              22.  Failure by any person arranging for funeral
   11-8  services or merchandise to:
   11-9                    (A)  provide a prospective customer with a copy
  11-10  of the brochure required by Section 6E of this Act at the beginning
  11-11  of the arrangement process <inform a customer or prospective
  11-12  customer of the availability of a retail price list>;
  11-13                    (B)  provide a retail price list to an individual
  11-14  inquiring in person about any funeral service or merchandise <the
  11-15  customer or prospective customer> for that person to keep;
  11-16                    (C)  explain to the customer or prospective
  11-17  customer that a contractual agreement for funeral services or
  11-18  merchandise may not be entered into before the presentation of the
  11-19  retail price list to that person; or
  11-20                    (D)  provide general price information by
  11-21  telephone within a reasonable time;
  11-22              23.  Failure by any person arranging for funeral
  11-23  services or merchandise to provide each customer at the conclusion
  11-24  of the arrangement process a written memorandum or funeral purchase
  11-25  agreement signed by the funeral director making the arrangements
  11-26  itemizing the cost of funeral services and funeral merchandise
  11-27  selected by the customer; however, if the customer selects a
  11-28  package arrangement based on unit pricing, the itemization
  11-29  requirement is satisfied by providing a written memorandum that
  11-30  itemizes the discount provided by the package arrangement.  The use
  11-31  of unit pricing does not affect <preclude> the presentation of the
  11-32  retail price list as required by Subdivision 22 of this subsection;
  11-33              24.  Restricting, hindering, or attempting to restrict
  11-34  or hinder (1) the advertising or disclosure of prices and other
  11-35  information regarding the availability of funeral services and
  11-36  funeral merchandise that is not unfair or deceptive to consumers,
  11-37  or (2) agreements for funeral services between any consumer or
  11-38  group of consumers and funeral directors or embalmers;
  11-39              25.  Failure to retain and make available to the
  11-40  commission, upon request, copies of all price lists, written
  11-41  notices, embalming documents, and memoranda of agreement required
  11-42  by this Act <article> for two (2) years after the date of their
  11-43  distribution or signing;
  11-44              26.  Violation of this Act, <or of> any rule adopted
  11-45  under this Act<, regulation>, an <or> order by the commission
  11-46  revoking, suspending, or probating a license, an order assessing an
  11-47  administrative penalty, or an agreement to pay an administrative
  11-48  penalty regardless of whether the agreement is express or implied
  11-49  by Section 6(G)(d) of this Act <issued under this Act>;
  11-50              27.  Dishonest conduct, wilful conduct, negligence, or
  11-51  gross negligence in the practice of embalming or funeral directing
  11-52  that is likely to or does deceive, defraud, or otherwise injure the
  11-53  public; <and>
  11-54              28.  Allowing the use of a dead human body <bodies> by
  11-55  an unlicensed embalming establishment for research or educational
  11-56  purposes without the written permission of the family or person
  11-57  arranging the funeral; and
  11-58              29.  Causing the execution of a document by the use of
  11-59  fraud, deceit, or misrepresentation.
  11-60        J.  A person who wishes to apply for a funeral director or
  11-61  embalmer license but has a criminal conviction described by
  11-62  Subsection H.2. of this section, may request a hearing on whether
  11-63  the conviction prevents the commission from issuing a license or
  11-64  provisional license.  A hearing under this subsection must be
  11-65  requested before the person enters mortuary school and shall be
  11-66  conducted as required under Section 6C of this Act.  A decision
  11-67  made in a hearing under this subsection, unless modified on appeal,
  11-68  is binding on the commission and on the person who requests the
  11-69  hearing when the person applies to the commission for the license
  11-70  or provisional license.
   12-1        SECTION 6.  Subsections B, C, D, and G, Section 4, Chapter
   12-2  251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
   12-3  4582b, Vernon's Texas Civil Statutes), are amended to read as
   12-4  follows:
   12-5        B.  No funeral establishment shall conduct funeral business
   12-6  as intended under this Act unless duly licensed.  The commission
   12-7  may refuse to issue an establishment license to an individual,
   12-8  partnership, or corporation if the individual, a partner, or an
   12-9  officer or director of the corporation:
  12-10              (1)  has been convicted of a felony, or a misdemeanor
  12-11  related to the practice of embalming or funeral directing;
  12-12              (2)  previously held an establishment license that was
  12-13  suspended or revoked;
  12-14              (3)  has violated this Act, a rule adopted under this
  12-15  Act, or Chapter 512, Acts of the 54th Legislature, Regular Session,
  12-16  1955 (Article 548b, Vernon's Texas Civil Statutes);
  12-17              (4)  submits false information on the application for
  12-18  an establishment license; or
  12-19              (5)  attempts to avoid a revocation, suspension, or
  12-20  license refusal by subterfuge or other evasive means.
  12-21        C.  Each funeral establishment shall be required to have a
  12-22  physical plant, equipment and personnel consisting of the
  12-23  following:
  12-24              1.  Some facilities in which funeral services may be
  12-25  conducted;
  12-26              2.  A physical plant which meets building standards and
  12-27  fire safety standards of the state and of the municipality in which
  12-28  the establishment is located;
  12-29              3.  Access to rolling stock consisting of at least one
  12-30  motor hearse;
  12-31              4.  A preparation room containing facilities,
  12-32  equipment, and supplies required by commission rule to ensure the
  12-33  provision of adequate embalming services <an operating table, sewer
  12-34  facilities, hot and cold running water,> and other facilities
  12-35  necessary to comply with the sanitary code of the state and the
  12-36  municipality in which the room is located;
  12-37              5.  A display containing sufficient merchandise to
  12-38  permit reasonable selection, including five (5) or more adult
  12-39  caskets, provided that the least expensive casket offered for sale
  12-40  by a funeral establishment must be visibly displayed without
  12-41  concealment in the same general manner as other caskets are
  12-42  displayed;
  12-43              6.  Sufficient licensed personnel who will be available
  12-44  to conduct the operation of the funeral establishment;
  12-45              7.  A physical plant located at a fixed place, and not
  12-46  located on any tax-exempt property or cemetery; and
  12-47              8.  A physical plant which meets the health standards
  12-48  or health ordinances of the state and of the municipality in which
  12-49  the establishment is located.
  12-50        It is expressly provided, however, that an establishment
  12-51  which functions solely as a commercial embalmer, as that term is
  12-52  defined in this Act, shall have a commercial embalmers
  12-53  establishment license, but shall not be required to meet the
  12-54  requirements of sub-sections 1 and 5 of this paragraph C.
  12-55        D.  1.  The commission may, after a hearing as provided by
  12-56  Section 6C of this Act, reprimand, assess an administrative
  12-57  penalty, revoke, suspend, or probate the suspension of a license,
  12-58  or impose any combination of these sanctions against a licensed
  12-59  funeral establishment.  The commission may assess an administrative
  12-60  penalty without a hearing  if the penalty is assessed as provided
  12-61  by Section 6G of this Act.  Action taken by the commission under
  12-62  this section may only be based on a violation of this Act or a rule
  12-63  adopted under this Act.  The commission may refuse without a
  12-64  hearing to license an establishment if an owner of the
  12-65  establishment has committed an act listed in Subsection B of this
  12-66  section.  An establishment whose license is refused under this
  12-67  subsection may appeal the decision by requesting a hearing not
  12-68  later than the 30th day after the date of the refusal.  The
  12-69  commission and the establishment whose application for license is
  12-70  refused may agree to the issuance of a probationary license or the
   13-1  commission may, after a hearing, order that a license be issued on
   13-2  a probationary basis.  A violation of this Act includes the
   13-3  following <initiate action against a funeral establishment or in
   13-4  regard to the license of a funeral establishment upon the following
   13-5  grounds>:
   13-6                    (a)  Failure of a funeral establishment to
   13-7  substantially comply with the provisions of Subsection B or C of
   13-8  this Section.
   13-9                    (b)  Failure by any person associated with the
  13-10  funeral establishment, whether as an employee, agent,
  13-11  subcontractor, assignee, owner, or otherwise, and whether licensed
  13-12  or unlicensed, to comply with <Section 3 of> this Act or a rule
  13-13  adopted under this Act.
  13-14                    (c)  The use of any advertising statement of a
  13-15  character that <which> misleads or deceives the public, or use of,
  13-16  in connection with advertisements, the names of persons who do not
  13-17  hold a license as a funeral director or embalmer and representing
  13-18  <represent> them as being <to be> so licensed.
  13-19                    (d)  Whenever a licensee, provisional licensee
  13-20  <apprentice>, or any other person, whether an employee, agent, or
  13-21  representative, or one in any manner associated with a funeral
  13-22  establishment shall solicit business or offer any inducement,
  13-23  pecuniary or otherwise, for the purpose of securing or attempting
  13-24  to secure business for such funeral establishment, unless such
  13-25  solicitation is made pursuant to a permit issued under Chapter 512,
  13-26  Acts of the 54th Legislature, Regular Session, 1955<, as amended>
  13-27  (Article 548b, Vernon's Texas Civil Statutes).
  13-28                    (e)  Failure by the funeral director in charge to
  13-29  provide a licensed funeral director <personnel> for direction or
  13-30  personal supervision of <for> a "first call" as that term is
  13-31  defined in this Act.
  13-32                    (f)  Any violation by a funeral establishment or
  13-33  a person acting on behalf of a funeral establishment or any person
  13-34  directly or indirectly connected with a funeral establishment <who
  13-35  violates any provision> of Chapter 512, Acts of the 54th
  13-36  Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
  13-37  Civil Statutes) or a rule adopted under that Act.
  13-38                    (g)  Any violation by a funeral establishment or
  13-39  a person acting on behalf of a funeral establishment of <under>
  13-40  Chapter 193 or 361, Health and Safety Code.
  13-41              2.  With <Provided, however, with> respect to <alleged>
  13-42  violations of Subsection D. 1.(b), (c), (d), (e), (f), or (g), the
  13-43  commission may not initiate action against a funeral establishment
  13-44  or in regard to the license of a funeral establishment if <when>
  13-45  the <ground or grounds of> complaint is <are> based on the conduct
  13-46  of employees, agents, or representatives of such establishment
  13-47  performed outside the scope and authority of their employment or
  13-48  contrary to the instructions of the funeral establishment and its
  13-49  management.  <The commission may initiate such an action if those
  13-50  persons are acting within the scope and authority of their
  13-51  employment, or by the direction of the funeral establishment
  13-52  management.>
  13-53              <2.  As to asserted violations of provisions of this
  13-54  Section, the commission shall have the following powers, rights and
  13-55  duties:>
  13-56                    <(a)  The commission may, in any case, require a
  13-57  sworn statement setting forth matter complained of as a condition
  13-58  to taking further action.>
  13-59                    <(b)  The commission shall cause an investigation
  13-60  to be made whenever a complaint is filed with or by the commission.
  13-61  The commission may investigate a complaint relating to prepaid
  13-62  funeral services only if the investigation conducted by the
  13-63  commission does not interfere with or duplicate an investigation
  13-64  conducted by the Banking Department of Texas under Chapter 512,
  13-65  Acts of the 54th Legislature, 1955 (Article 548b, Vernon's Texas
  13-66  Civil Statutes), relating to prepaid funeral services.>
  13-67                    <(c)  The commission may assess an administrative
  13-68  penalty, revoke or suspend a funeral establishment or a commercial
  13-69  embalming establishment license, issue a reprimand against such a
  13-70  licensee, or place a licensee on probation for a violation of this
   14-1  Act or of a rule or regulation adopted under this Act.  The
   14-2  commission may also assess an administrative penalty in the manner
   14-3  provided by Section 6G of this Act for such a violation.>
   14-4        G.  (1)  Any premises on which funeral directing or embalming
   14-5  is practiced shall be open at all times to inspection for
   14-6  violations of <under> this Act and of <under> Chapters 193 and 361,
   14-7  Health and Safety Code, by any agent of the commission or by any
   14-8  duly authorized agent of the state or of the county or municipality
   14-9  in which the premises are located.  Each licensed funeral
  14-10  establishment shall be thoroughly inspected annually <biennially>
  14-11  by  an agent of the commission or by an agent of the state or a
  14-12  political subdivision thereof whom the commission has authorized to
  14-13  make inspections on its behalf.  A report of this annual <biennial>
  14-14  inspection shall be filed with the commission.
  14-15              (2)  Before an agent of the commission conducts an
  14-16  inspection of an establishment, the agent shall review the
  14-17  inspection reports on the establishment filed with the commission.
  14-18  During the inspection, the agent shall determine whether previously
  14-19  identified problems have been corrected and whether a pattern of
  14-20  violations exists.  The commission shall consider the information
  14-21  from inspection reports when the commission determines whether a
  14-22  penalty should be imposed against an establishment.
  14-23              (3)  When an agent inspects an establishment, the agent
  14-24  shall inspect for violations under this Act and under Chapters 193
  14-25  and 361, Health and Safety Code.
  14-26              (4)  The commission by rule shall establish procedures
  14-27  for the inspection of a funeral establishment required by this
  14-28  subsection.
  14-29        SECTION 7.  Section 6, Chapter 251, Acts of the 53rd
  14-30  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  14-31  Civil Statutes), is amended to read as follows:
  14-32        Sec. 6.  PROBATION, WARNING LETTERS; REINSTATEMENT
  14-33  <REVOCATION, CANCELLATION OR SUSPENSION OF LICENSES OF FUNERAL
  14-34  DIRECTORS, EMBALMERS AND APPRENTICES>.  (a)  If the <The>
  14-35  commission places <may revoke or suspend a license, place> on
  14-36  probation a person whose license has been suspended, <or reprimand
  14-37  a licensee for a violation of this Act or a rule of the commission.
  14-38  If a licensee suspension is probated,> the commission may impose
  14-39  conditions on the probation that are reasonable and related to the
  14-40  violation for which the license was suspended.  If the commission
  14-41  orders probation, the commission may require the licensee
  14-42  <practitioner>:
  14-43              (1)  to report regularly to the commission on matters
  14-44  that are the basis of the probation;
  14-45              (2)  to limit practice to the areas prescribed by the
  14-46  commission; or
  14-47              (3)  to continue or renew professional education until
  14-48  the licensee <practitioner> attains a degree of skill satisfactory
  14-49  to the commission in those areas that are the basis of the
  14-50  probation.
  14-51        (b)  If the commission places a licensee on probation, the
  14-52  commission shall notify the licensee in writing of the probation.
  14-53  The commission shall furnish the licensee with written probationary
  14-54  orders that detail the actions required by the commission of the
  14-55  licensee during the period of probation.  The commission shall
  14-56  develop and adopt a system to monitor the actions of a licensee
  14-57  during the period of probation and to determine whether the
  14-58  licensee has complied with the probationary orders.
  14-59        (c)  When the commission has conducted an investigation that
  14-60  identifies a violation of this Act by a licensee and the commission
  14-61  does not assess an administrative penalty, issue a reprimand, or
  14-62  impose any other penalty against the licensee, the commission shall
  14-63  issue a written warning to the licensee.  The warning shall
  14-64  describe the violation identified during the investigation and
  14-65  shall state the date by which the commission must receive from the
  14-66  licensee a written report that describes the measures implemented
  14-67  by the licensee to correct the violation and the dates those
  14-68  measures were implemented.  If the commission does not receive the
  14-69  report by the required date, the commission shall assess an
  14-70  administrative penalty, in an amount set by the commission, on the
   15-1  licensee for the failure to file the report.
   15-2        (d)  <Proceedings under this Section shall be initiated by
   15-3  filing charges with the commission in writing and under oath.  Said
   15-4  charges may be made by any person or persons.  If the commission
   15-5  proposes to suspend or revoke a person's license, the person is
   15-6  entitled to a hearing before the commission or a hearings officer
   15-7  appointed by the commission.  The commission shall prescribe
   15-8  procedures by which all decisions to suspend or revoke are made by
   15-9  or are appealable to the commission.  The Executive Director of the
  15-10  commission shall set a time and place for hearing.>  Upon
  15-11  application, the commission may reissue a license to practice as a
  15-12  funeral director or embalmer to a person whose license has been
  15-13  cancelled, <or> suspended, or revoked but such application may<, in
  15-14  the case of cancellation or revocation, shall> not be made prior to
  15-15  one (1) year after the cancellation, suspension, or revocation, and
  15-16  shall be made in such a manner and form as the commission may
  15-17  require.  A hearing to determine whether to reissue a license shall
  15-18  be held before the commission unless the commission requires the
  15-19  hearing to be held before a hearings officer.
  15-20        <(e)  The commission shall have the power to appoint
  15-21  committees from the commissioners.  The committees may consider
  15-22  such matters pertaining to the enforcement of this Act as shall be
  15-23  referred to such committees, and they shall make recommendations to
  15-24  the commission with respect thereto.  The commission shall have the
  15-25  power, and may delegate the said power to any committee, to issue
  15-26  subpoenas duces tecum, and to compel the attendance of witnesses,
  15-27  the production of books, records and documents, to administer
  15-28  oaths, and to take testimony concerning all matters within its
  15-29  jurisdiction.  The determination shall be founded on sufficient
  15-30  legal evidence to sustain it.  The commission shall have the right
  15-31  to institute an action in its own name to enjoin the violation of
  15-32  any of the provisions of this Act.  Said action for an injunction
  15-33  shall be in addition to any other action, proceeding, or remedy
  15-34  authorized by law.  The commission shall be represented by the
  15-35  Attorney General and/or the County or District Attorneys of this
  15-36  state, or counsel designated and empowered by the commission.
  15-37  Before entering any order cancelling, suspending, refusing to
  15-38  renew, or revoking a license to practice as a funeral director
  15-39  and/or embalmer, the commission shall hold a hearing in accordance
  15-40  with the procedure as set forth in this Act.>
  15-41        <(f)  The provisions of this Section shall not apply to
  15-42  funeral establishments or licenses pertaining to funeral
  15-43  establishments.>
  15-44        SECTION 8.  Section 6A, Chapter 251, Acts of the 53rd
  15-45  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  15-46  Civil Statutes), is amended to read as follows:
  15-47        Sec. 6A.  OFFENSES.  A person commits an offense if the
  15-48  person:
  15-49              (1)  acts or holds himself out as a funeral director,
  15-50  embalmer, or provisional licensee <apprentice>, as those terms are
  15-51  defined in this Act, without being properly licensed under this Act
  15-52  or makes <shall make> a "first call" in a manner that violates
  15-53  <without the authorization or supervision as provided in> Section
  15-54  1C of this Act;
  15-55              (2)  is a licensed funeral director, <or> embalmer, or
  15-56  provisional licensee and engages in a funeral practice that is a
  15-57  violation of this Act or a rule adopted under this Act <grounds for
  15-58  suspension or revocation of the person's license>; or
  15-59              (3)  violates Section 1, 5, or 9, Chapter 512, Acts of
  15-60  the 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
  15-61  Texas Civil Statutes), or a rule adopted under that Act, regardless
  15-62  of whether the Banking Department of Texas or any other
  15-63  governmental agency takes action relating to the violation.
  15-64        SECTION 9.  Section 6C, Chapter 251, Acts of the 53rd
  15-65  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  15-66  Civil Statutes), is amended to read as follows:
  15-67        Sec. 6C.  Administrative Procedure and Texas Register Act.
  15-68  (a)  A person who is denied a license or provisional license
  15-69  <certificate> by the commission is entitled to a hearing before the
  15-70  commission in accordance with the Administrative Procedure and
   16-1  Texas Register Act<, as amended> (Article 6252-13a, Vernon's Texas
   16-2  Civil Statutes), if the person requests the hearing in writing not
   16-3  later than the 30th day after the date the notice of denial is
   16-4  sent.
   16-5        (b)  A proceeding conducted by the commission relating to the
   16-6  denial of a license or provisional license, the suspension or
   16-7  revocation of a license, or the imposition of an administrative
   16-8  penalty, other than an administrative penalty assessed without a
   16-9  hearing as provided by Section 6G of this Act, <or certificate> is
  16-10  governed by the Administrative Procedure and Texas Register Act, as
  16-11  amended (Article 6252-13a, Vernon's Texas Civil Statutes).
  16-12  Judicial review of the proceeding is subject to the substantial
  16-13  evidence rule and is governed by the Administrative Procedure and
  16-14  Texas Register Act.
  16-15        (c)(1)  A proceeding brought under Subsection (b) of this
  16-16  section may <shall> be held before a hearings officer.  The
  16-17  executive director shall set a time and place for the hearing.
  16-18              (2)  The hearings officer must be an attorney licensed
  16-19  in this state.  In the course of a proceeding the hearings officer
  16-20  may:
  16-21                    (A)  administer oaths;
  16-22                    (B)  take testimony;
  16-23                    (C)  rule on questions of evidence;
  16-24                    (D)  make determinations of fact; or
  16-25                    (E)  order compliance with proper discovery
  16-26  requests.
  16-27              (3)  The commission shall provide the hearings officer
  16-28  with a written statement of all commission rules or policies that
  16-29  govern the proceeding.
  16-30              (4)  At the conclusion of the proceeding the hearings
  16-31  officer shall make a ruling on the matter accompanied by written
  16-32  findings of facts and conclusions of law.
  16-33              (5)  The commission shall review the findings of fact,
  16-34  conclusions of law, and ruling of the hearings officer before
  16-35  making its final ruling in the proceeding.  The commission may also
  16-36  review a transcript of the proceeding before making its final
  16-37  ruling.  The commission shall adopt the ruling of the hearings
  16-38  officer as its ruling unless it finds good cause to issue a
  16-39  different  ruling.  The commission shall explain in writing the
  16-40  reasons for adopting a ruling other than the one issued by the
  16-41  hearings officer.
  16-42              <(6)  Not later than the 10th day after the date the
  16-43  hearings officer makes a ruling, the licensee may appeal the ruling
  16-44  to the commission.  Except for good cause, the commission shall
  16-45  make its final ruling not later than the 10th day after the date
  16-46  the appeal is made.>
  16-47        (d)  The commission shall inform each interested person,
  16-48  including a person filing the complaint, of the <their> right to
  16-49  obtain at that person's cost a tape or transcript of a hearing or
  16-50  proceeding under this section.
  16-51        SECTION 10.  Section 6D(e), Chapter 251, Acts of the 53rd
  16-52  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  16-53  Civil Statutes), is amended to read as follows:
  16-54        (e)  If a person files a complaint with the commission
  16-55  relating to a licensed funeral director, embalmer, provisional
  16-56  licensee, or funeral establishment, the commission shall furnish to
  16-57  the person an explanation of the remedies that are available to the
  16-58  person under this Act and information about appropriate state or
  16-59  local agencies or officials with which the person may file a
  16-60  complaint.
  16-61        SECTION 11.  Section 6G, Chapter 251, Acts of the 53rd
  16-62  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  16-63  Civil Statutes), is amended to read as follows:
  16-64        Sec. 6G.  ADMINISTRATIVE PENALTY.  (a)  If the commission
  16-65  determines that a person or establishment regulated under this Act
  16-66  has violated this Act or a rule adopted under this Act <in a manner
  16-67  that constitutes a ground for a license suspension under Subsection
  16-68  H, Section 3, or Section 4 of this Act>, the commission may assess
  16-69  an administrative penalty against that person or establishment as a
  16-70  result of a hearing conducted in the manner provided by Section 6C
   17-1  of this Act or as provided by this section.  If an administrative
   17-2  penalty is assessed after a hearing conducted under Section 6C of
   17-3  this Act, the commission shall follow the procedures described in
   17-4  Subsections (e) through (h) of this section.
   17-5        (b)  The commission may assess the administrative penalty in
   17-6  an amount not less than One Hundred Dollars ($100) or more than
   17-7  Five Thousand Dollars ($5,000) for each act of violation.  In
   17-8  determining the amount of the penalty, the commission shall employ
   17-9  guidelines established by commission rule <consider the seriousness
  17-10  of the violation>.
  17-11        (c)  If, after examination of a possible violation and the
  17-12  facts relating to that possible violation, the commission concludes
  17-13  that a violation has occurred, the commission shall issue a
  17-14  preliminary report that states the facts on which the conclusion is
  17-15  based, the fact that an administrative penalty is to be imposed,
  17-16  and the amount to be assessed.  Not later than the tenth (10th) day
  17-17  after the day on which the commission issues the preliminary
  17-18  report, the commission shall send a copy of the report to the
  17-19  person or establishment charged with the violation, together with a
  17-20  statement of the right of the person or establishment to a hearing
  17-21  relating to the alleged violation and the amount of the penalty.
  17-22        (d)  Not later than the thirtieth (30th) <twentieth (20th)>
  17-23  day after the date <day> on which the preliminary report is sent,
  17-24  the person or establishment charged either may make a written
  17-25  request for a hearing or may remit the amount of the administrative
  17-26  penalty to the commission.  Failure either to request a hearing or
  17-27  to remit the amount of the penalty within the time provided by this
  17-28  subsection results in a waiver of a right to a hearing under this
  17-29  Act.  Unless a hearing is requested, the penalty is due on the
  17-30  thirtieth (30th) day after the date the preliminary report is sent.
  17-31  Failure to pay the penalty by that date automatically suspends the
  17-32  affected license for six (6) months.  If the person or
  17-33  establishment charged requests a hearing, the hearing shall be
  17-34  conducted in the manner provided by Section 6C of this Act.  <If it
  17-35  is determined after hearing that the person or establishment has
  17-36  committed the alleged violation, the commission shall give written
  17-37  notice to the person or establishment of the findings established
  17-38  by the hearing and the amount of the penalty, and shall enter an
  17-39  order requiring the person or establishment to pay the penalty.>
  17-40        (e)(1)  If an administrative penalty is assessed after a
  17-41  hearing conducted under Section 6C of this Act, not <Not> later
  17-42  than the thirtieth (30th) day after the date <day> on which the
  17-43  order <notice> is sent or a motion for rehearing is denied
  17-44  <received>, the person or establishment charged shall pay the
  17-45  administrative penalty in full, or, if the person or establishment
  17-46  wishes to contest either the amount of the penalty or the fact of
  17-47  the violation, the person or establishment shall not later than the
  17-48  thirtieth (30th) day after the date on which the order is sent or a
  17-49  motion for rehearing is denied:
  17-50                    (A)  remit the assessed amount to the commission
  17-51  for deposit in an escrow account; or
  17-52                    (B)  post a supersedeas bond in a form approved
  17-53  by the commission for the amount of the penalty.
  17-54              (2)  If, after judicial review, it is determined that
  17-55  no violation occurred or that the amount of the penalty should be
  17-56  reduced, the commission shall remit the appropriate amount to the
  17-57  person or establishment charged with the violation not later than
  17-58  the thirtieth (30th) day after the date <day> on which the judicial
  17-59  determination becomes final.
  17-60        (f)  Failure to remit the amount of the administrative
  17-61  penalty to or post bond with the commission within the time
  17-62  provided by this Act <section> results in a waiver of all legal
  17-63  rights to contest the violation or the amount of the penalty.  If
  17-64  the person or establishment fails to remit the amount of the
  17-65  administrative penalty to or post bond with the commission within
  17-66  that time, or within a longer period with the consent of the
  17-67  commission, the license of that person or establishment is
  17-68  suspended for six (6) months.  After notice and a hearing, the
  17-69  commission may extend the license suspension for a longer period or
  17-70  may revoke or cancel the license for failure to remit the penalty
   18-1  or post bond.
   18-2        (g)  An administrative penalty owed under this Act shall
   18-3  <section may> be recovered in a civil action brought by the
   18-4  Attorney General at the request of the commission.
   18-5        (h)  A penalty collected under this Act <section> shall be
   18-6  deposited <in the State Treasury> to the credit of an account in
   18-7  the general revenue fund that may be used only for the purpose of
   18-8  administering the continuing education program under Section 3 of
   18-9  this Act.
  18-10        SECTION 12.  Section 6H(c), Chapter 251, Acts of the 53rd
  18-11  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  18-12  Civil Statutes), is amended to read as follows:
  18-13        (c)  Not later than the thirtieth (30th) <twentieth (20th)>
  18-14  day after the date <day> on which the preliminary report is sent,
  18-15  the person or establishment charged may make a written request for
  18-16  a hearing.  Failure to request a hearing within the time provided
  18-17  by this subsection results in a waiver of a right to a hearing
  18-18  under this Act and the reprimand shall be issued by the commission
  18-19  and placed in the permanent files of the commission.  If the person
  18-20  or establishment charged requests a hearing, the hearing shall be
  18-21  conducted in the manner provided by Section 6C of this Act.  If it
  18-22  is determined after hearing that the person or establishment has
  18-23  committed the alleged violation, the commission is not limited to
  18-24  the issuance of a reprimand but may also take any action allowed
  18-25  under <Subsection H, Section 3, or Subsection D, Section 4, of>
  18-26  this Act.
  18-27        SECTION 13.  Section 6I, Chapter 251, Acts of the 53rd
  18-28  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  18-29  Civil Statutes), is amended to read as follows:
  18-30        Sec. 6I.  REPEAT AND MULTIPLE OFFENDERS.  (a)  The commission
  18-31  or <and> a hearings officer shall review each disciplinary
  18-32  proceeding to determine whether the licensee has committed the same
  18-33  type of violation on one or more previous occasions.  If it is
  18-34  determined that the licensee has previously committed the same type
  18-35  of violation, the commission or hearings officer shall impose a
  18-36  disciplinary action that is more severe than that imposed on the
  18-37  previous occasion.
  18-38        (b)  In a disciplinary proceeding involving multiple
  18-39  violations of this Act, the commission or <and> the hearings
  18-40  officer <examiner> shall impose a disciplinary action that is more
  18-41  severe than the disciplinary action that would be imposed
  18-42  cumulatively for each of the individual violations.
  18-43        SECTION 14.  Section 7(b), Chapter 251, Acts of the 53rd
  18-44  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  18-45  Civil Statutes), is amended to read as follows:
  18-46        (b)  The commission may file a complaint with the appropriate
  18-47  governmental authorities to begin prosecution of a person who
  18-48  commits an offense under Section 6A of this Act.  The commission or
  18-49  any adversely affected party may sue a funeral establishment or
  18-50  <licensed> embalmer or funeral director who fails to comply with
  18-51  <any provision of> this Act or a rule adopted under this Act for
  18-52  appropriate injunctive relief.  This Act does not affect a remedy
  18-53  or enforcement power under other laws.
  18-54        SECTION 15.  Section 9, Chapter 251, Acts of the 53rd
  18-55  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
  18-56  Civil Statutes), is amended to read as follows:
  18-57        Sec. 9.  CONSTRUCTION WITH OTHER LAW.  This Act does not
  18-58  limit or replace the authority of the Banking Department of Texas
  18-59  to regulate and enforce Chapter 512, Acts of the 54th Legislature,
  18-60  Regular Session, 1955 (Article 548b, Vernon's Texas Civil
  18-61  Statutes).  The authority of the commission as to Chapter 512, Acts
  18-62  of the 54th Legislature, Regular Session, 1955 (Article 548b,
  18-63  Vernon's Texas Civil Statutes), and its subsequent amendments is
  18-64  limited to the imposition of an administrative penalty, issuance of
  18-65  a reprimand, or suspension, revocation, or probation of a license
  18-66  issued by the <that> commission.
  18-67        SECTION 16.  Subsection K, Section 1, Chapter 251, Acts of
  18-68  the 53rd Legislature, 1953 (Article 4582b, Vernon's Texas Civil
  18-69  Statutes), is repealed.
  18-70        SECTION 17.  This Act takes effect September 1, 1993.
   19-1        SECTION 18.  On the effective date of this Act any person
   19-2  serving as an apprentice under Chapter 251, Acts of the 53rd
   19-3  Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
   19-4  Civil Statutes), will be converted to a provisional licensee under
   19-5  that Act.  The provisional license of a person serving as an
   19-6  apprentice under that Act before attending or graduating from a
   19-7  school of embalming or college of mortuary science or before
   19-8  passing the appropriate licensing examination is canceled September
   19-9  1, 1994, if the person has not enrolled in an accredited school of
  19-10  embalming or accredited college of mortuary science or passed the
  19-11  appropriate licensing examination before that date.
  19-12        SECTION 19.  The importance of this legislation and the
  19-13  crowded condition of the calendars in both houses create an
  19-14  emergency   and   an   imperative   public   necessity   that   the
  19-15  constitutional rule requiring bills to be read on three several
  19-16  days in each house be suspended, and this rule is hereby suspended.
  19-17                               * * * * *
  19-18                                                         Austin,
  19-19  Texas
  19-20                                                         May 22, 1993
  19-21  Hon. Bob Bullock
  19-22  President of the Senate
  19-23  Sir:
  19-24  We, your Committee on Economic Development to which was referred
  19-25  H.B. No. 466, have had the same under consideration, and I am
  19-26  instructed to report it back to the Senate with the recommendation
  19-27  that it do not pass, but that the Committee Substitute adopted in
  19-28  lieu thereof do pass and be printed.
  19-29                                                         Parker,
  19-30  Chairman
  19-31                               * * * * *
  19-32                               WITNESSES
  19-33                                                  FOR   AGAINST  ON
  19-34  ___________________________________________________________________
  19-35  Name:  Larry A. Farrow                                         x
  19-36  Representing:  Texas Funeral Service Comm.
  19-37  City:  Austin
  19-38  -------------------------------------------------------------------
  19-39                                                  FOR   AGAINST  ON
  19-40  ___________________________________________________________________
  19-41  Name:  John Cathey                               x
  19-42  Representing:  Texas Funeral Director's Assn.
  19-43  City:  Austin
  19-44  -------------------------------------------------------------------