H.B. No. 1483
1-1 AN ACT
1-2 relating to the regulation of certain practices by funeral
1-3 directors, embalmers, and mortuary schools.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection H, Section 3, Chapter 251, Acts of the
1-6 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-7 Texas Civil Statutes), is amended to read as follows:
1-8 H. The commission may, after a hearing as provided by
1-9 Section 6C of this Act, reprimand, assess an administrative
1-10 penalty, revoke, suspend, or probate the suspension of a license or
1-11 provisional license, or impose any combination of these sanctions
1-12 against a licensed funeral director, a licensed embalmer, or a
1-13 provisional licensee. The commission may assess an administrative
1-14 penalty without a hearing if the penalty is assessed in the manner
1-15 provided by Section 6G of this Act. Action taken by the commission
1-16 under this section may be based only on a violation of this Act or
1-17 a rule adopted under this Act. The commission may refuse without a
1-18 hearing to license a person or to permit a person to serve as a
1-19 provisional licensee if the person has violated this Act or a rule
1-20 adopted under this Act. A person whose license or provisional
1-21 license application is refused under this subsection may appeal the
1-22 decision by requesting a hearing not later than the 30th day after
1-23 the date of the refusal. The commission and the person whose
1-24 application for license or provisional license is refused may agree
2-1 to the issuance of a probationary license or the commission may,
2-2 after a hearing, order that a license be issued on a probationary
2-3 basis. A violation of this Act includes the following:
2-4 1. The presentation to the commission of any license,
2-5 certificate, or diploma that was illegally or fraudulently
2-6 obtained, or when fraud or deception has been practiced in passing
2-7 the examination;
2-8 2. Conviction of:
2-9 (A) a felony; or
2-10 (B) a misdemeanor related to the practice of
2-11 embalming or funeral directing;
2-12 3. Being unfit to practice as a funeral director
2-13 and/or embalmer by reason of insanity and having been adjudged by a
2-14 court of competent jurisdiction to be of unsound mind;
2-15 4. The use of any statement that misleads or deceives
2-16 the public, including but not limited to false or misleading
2-17 statements regarding (1) any legal, religious, or cemetery
2-18 requirement for funeral merchandise or funeral services, (2) the
2-19 preservative qualities of funeral merchandise or funeral services
2-20 in preventing or substantially delaying natural decomposition or
2-21 decay of human remains, (3) the airtight or watertight properties
2-22 of a casket or outer enclosure, or (4) representations as to
2-23 licensed personnel in the operation of a funeral establishment;
2-24 5. The purchase, sale, barter, or use, or any offer to
2-25 purchase, sell, barter, or use any license, certificate, or
2-26 transcript of license or certificate, in or incident to an
2-27 application to the commission for license to practice as a funeral
3-1 director and/or embalmer;
3-2 6. Altering, with fraudulent intent, any funeral
3-3 director and/or embalmer license, certificate, or transcript of
3-4 license or certificate;
3-5 7. The use of any funeral director and/or embalmer
3-6 license, certificate, diploma or transcript of any such funeral
3-7 director and/or embalmer license, certificate, or diploma that has
3-8 been fraudulently purchased, issued, counterfeited, or materially
3-9 altered;
3-10 8. The impersonation of, or acting as proxy for,
3-11 another in any examination required by this Act for a funeral
3-12 director and/or embalmer license;
3-13 9. The impersonation of a licensed funeral director or
3-14 embalmer as authorized by this Act, or permitting or allowing
3-15 another to use a person's license or certificate to practice as a
3-16 funeral director or embalmer in this state;
3-17 10. A violation of Section 1, 5, or 9, Chapter 512,
3-18 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
3-19 Vernon's Texas Civil Statutes), or a rule adopted under that Act;
3-20 11. Taking custody of a dead human body without the
3-21 permission of the person or the agent of the person authorized to
3-22 make funeral arrangements for the deceased, or without the
3-23 permission of the medical examiner or justice of the peace when a
3-24 medical examiner or justice of the peace has jurisdiction over the
3-25 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
3-26 Criminal Procedure, refusing to promptly surrender a dead human
3-27 body to a person or agent authorized to make funeral arrangements
4-1 for the deceased, or embalming a body without the express written
4-2 or oral permission of a person authorized to make funeral
4-3 arrangements for the deceased or without making a documented
4-4 reasonable effort over a period of at least three (3) hours to
4-5 obtain the permission;
4-6 11A. Embalming or attempting to embalm without proper
4-7 authority a dead human body. Evidence of embalming or attempting
4-8 to embalm includes, but is not limited to, the making of any
4-9 incision on the body, the raising of any circulatory vessel of the
4-10 body, or the injection of any chemical into the body;
4-11 12. Wilfully making any false statement on a
4-12 certificate of death or on a document required by this Act or by a
4-13 rule adopted under this Act;
4-14 13. Employment directly or indirectly of any
4-15 provisional licensee, agent, assistant, embalmer, funeral director,
4-16 employee, or other person on a part or full-time basis, or on
4-17 commission, for the purpose of soliciting individuals or
4-18 institutions by whose influence dead human bodies may be turned
4-19 over to a particular funeral director, embalmer, or funeral
4-20 establishment;
4-21 14. Presentation of false certification of work done
4-22 as a provisional licensee;
4-23 15. Unfitness by reason of present substance abuse;
4-24 16. Whenever a licensee, provisional licensee, or any
4-25 other person, whether employee, agent, representative, or one in
4-26 any manner associated with a funeral establishment engages in
4-27 solicitation as defined in this Act;
5-1 17. Failure by the Funeral Director in Charge to
5-2 provide licensed personnel for direction or personal supervision
5-3 for a "first call," as that term is defined in this Act;
5-4 18. Misappropriation of any funds held by a licensee,
5-5 funeral establishment, including its employees and agents, or other
5-6 depository, that create an obligation to provide a funeral service
5-7 or merchandise, including retention for an unreasonable time of
5-8 excess funds paid by or on behalf of the consumer for which the
5-9 consumer is entitled to a refund;
5-10 19. Performing acts of funeral directing or embalming,
5-11 as those terms are defined in this Act, that are outside the
5-12 licensed scope and authority of the licensee, or performing acts of
5-13 funeral directing or embalming in a capacity other than that of an
5-14 employee, agent, subcontractor, or assignee of a licensed funeral
5-15 establishment that has contracted to perform those acts;
5-16 20. Engaging in fraudulent, unprofessional, or
5-17 deceptive conduct in providing funeral services or merchandise to a
5-18 consumer;
5-19 21. Statement or implication by a funeral director or
5-20 embalmer that a customer's concern with the cost of any funeral
5-21 service or funeral merchandise is improper or indicates a lack of
5-22 respect for the deceased;
5-23 22. Failure by any person arranging for funeral
5-24 services or merchandise to:
5-25 (A) provide a prospective customer with a copy
5-26 of the brochure required by Section 6E of this Act at the beginning
5-27 of the arrangement process;
6-1 (B) provide a retail price list to an individual
6-2 inquiring in person about any funeral service or merchandise for
6-3 that person to keep;
6-4 (C) explain to the customer or prospective
6-5 customer that a contractual agreement for funeral services or
6-6 merchandise may not be entered into before the presentation of the
6-7 retail price list to that person; or
6-8 (D) provide general price information by
6-9 telephone within a reasonable time;
6-10 23. Failure by any person arranging for funeral
6-11 services or merchandise to provide each customer at the conclusion
6-12 of the arrangement process a written memorandum or funeral purchase
6-13 agreement signed by the funeral director making the arrangements
6-14 itemizing the cost of funeral services and funeral merchandise
6-15 selected by the customer; however, if the customer selects a
6-16 package arrangement based on unit pricing, the itemization
6-17 requirement is satisfied by providing a written memorandum that
6-18 itemizes the discount provided by the package arrangement. The use
6-19 of unit pricing does not affect the presentation of the retail
6-20 price list as required by Subdivision 22 of this subsection;
6-21 24. Restricting, hindering, or attempting to restrict
6-22 or hinder (1) the advertising or disclosure of prices and other
6-23 information regarding the availability of funeral services and
6-24 funeral merchandise that is not unfair or deceptive to consumers,
6-25 or (2) agreements for funeral services between any consumer or
6-26 group of consumers and funeral directors or embalmers;
6-27 25. Failure to retain and make available to the
7-1 commission, upon request, copies of all price lists, written
7-2 notices, embalming documents, and memoranda of agreement required
7-3 by this Act for two (2) years after the date of their distribution
7-4 or signing;
7-5 26. Violation of this Act, any rule adopted under this
7-6 Act, an order by the commission revoking, suspending, or probating
7-7 a license, an order assessing an administrative penalty, or an
7-8 agreement to pay an administrative penalty regardless of whether
7-9 the agreement is express or implied by Section 6G(d) of this Act;
7-10 27. Dishonest conduct, wilful conduct, negligence, or
7-11 gross negligence in the practice of embalming or funeral directing
7-12 that is likely to or does deceive, defraud, or otherwise injure the
7-13 public;
7-14 28. Allowing the use of a dead human body by an
7-15 <unlicensed> embalming establishment for research or educational
7-16 purposes without complying with Section 4A of this Act <the written
7-17 permission of the family or person arranging the funeral>; <and>
7-18 29. Causing the execution of a document by the use of
7-19 fraud, deceit, or misrepresentation; and
7-20 30. Allowing the presence or participation of a
7-21 student for credit or satisfaction of academic requirements during
7-22 the embalming of a dead human body without complying with Section
7-23 4A of this Act.
7-24 SECTION 2. Chapter 251, Acts of the 53rd Legislature,
7-25 Regular Session, 1953 (Article 4582b, Vernon's Texas Civil
7-26 Statutes), is amended by adding Section 4A to read as follows:
7-27 Sec. 4A. USE OF BODY BY SCHOOL OF MORTUARY SCIENCE. (a) A
8-1 school or college of mortuary science may not use a dead human body
8-2 for educational or instructional purposes without the written
8-3 consent of a person authorized to consent to such use.
8-4 (b) A funeral director or embalmer may not release a dead
8-5 human body for delivery to a school or college of mortuary science,
8-6 and a school or college of mortuary science may not accept a dead
8-7 human body without actual possession of the written consent
8-8 required under Subsection (a) of this section.
8-9 (c) A copy of the written consent required under Subsection
8-10 (a) of this section shall be retained for a minimum of two years by
8-11 the funeral home and permanently by the school or college of
8-12 mortuary science. The records of the funeral home maintained under
8-13 this subsection shall be reasonably available for inspection by the
8-14 commission, the person who provided the consent, or the next of kin
8-15 of the deceased person. The records of the school or college of
8-16 mortuary science shall be reasonably available for inspection by
8-17 the commission.
8-18 (d) A written consent form required under this section must
8-19 contain, in the same size print as the remainder of the form, the
8-20 following statement immediately above the signature line for the
8-21 form:
8-22 "The undersigned authorizes and directs the funeral home,
8-23 including apprentices or mortuary students under the direct
8-24 supervision of a licensed embalmer, and the funeral home's
8-25 employees, independent contractors, and agents to care for, embalm,
8-26 and prepare the body of the decedent. The undersigned acknowledges
8-27 that this authorization encompasses permission to embalm at the
9-1 funeral home facility or at another facility equipped for
9-2 embalming, including a school or college of mortuary science."
9-3 (e) The provisions of this Section 4A shall not apply with
9-4 respect to a dead human body obtained by a school or college of
9-5 mortuary science pursuant to the provisions relating to the Texas
9-6 Anatomical Board of the Texas Anatomical Gift Act under Chapters
9-7 691 and 692, Health and Safety Code.
9-8 SECTION 3. This Act takes effect September 1, 1995, and
9-9 applies only to the use of a dead human body for educational or
9-10 instructional purposes on or after that date.
9-11 SECTION 4. The importance of this legislation and the
9-12 crowded condition of the calendars in both houses create an
9-13 emergency and an imperative public necessity that the
9-14 constitutional rule requiring bills to be read on three several
9-15 days in each house be suspended, and this rule is hereby suspended.