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 -------------------------------------------------------------------