1-1 By: Tillery, et al. (Senate Sponsor - Cain) H.B. No. 1483
1-2 (In the Senate - Received from the House March 22, 1995;
1-3 March 23, 1995, read first time and referred to Committee on
1-4 Economic Development; May 23, 1995, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 6, Nays
1-6 0; May 23, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1483 By: Leedom
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of certain practices by funeral
1-11 directors, embalmers, and mortuary schools.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection H, Section 3, Chapter 251, Acts of the
1-14 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-15 Texas Civil Statutes), is amended to read as follows:
1-16 H. The commission may, after a hearing as provided by
1-17 Section 6C of this Act, reprimand, assess an administrative
1-18 penalty, revoke, suspend, or probate the suspension of a license or
1-19 provisional license, or impose any combination of these sanctions
1-20 against a licensed funeral director, a licensed embalmer, or a
1-21 provisional licensee. The commission may assess an administrative
1-22 penalty without a hearing if the penalty is assessed in the manner
1-23 provided by Section 6G of this Act. Action taken by the commission
1-24 under this section may be based only on a violation of this Act or
1-25 a rule adopted under this Act. The commission may refuse without a
1-26 hearing to license a person or to permit a person to serve as a
1-27 provisional licensee if the person has violated this Act or a rule
1-28 adopted under this Act. A person whose license or provisional
1-29 license application is refused under this subsection may appeal the
1-30 decision by requesting a hearing not later than the 30th day after
1-31 the date of the refusal. The commission and the person whose
1-32 application for license or provisional license is refused may agree
1-33 to the issuance of a probationary license or the commission may,
1-34 after a hearing, order that a license be issued on a probationary
1-35 basis. A violation of this Act includes the following:
1-36 1. The presentation to the commission of any license,
1-37 certificate, or diploma that was illegally or fraudulently
1-38 obtained, or when fraud or deception has been practiced in passing
1-39 the examination;
1-40 2. Conviction of:
1-41 (A) a felony; or
1-42 (B) a misdemeanor related to the practice of
1-43 embalming or funeral directing;
1-44 3. Being unfit to practice as a funeral director
1-45 and/or embalmer by reason of insanity and having been adjudged by a
1-46 court of competent jurisdiction to be of unsound mind;
1-47 4. The use of any statement that misleads or deceives
1-48 the public, including but not limited to false or misleading
1-49 statements regarding (1) any legal, religious, or cemetery
1-50 requirement for funeral merchandise or funeral services, (2) the
1-51 preservative qualities of funeral merchandise or funeral services
1-52 in preventing or substantially delaying natural decomposition or
1-53 decay of human remains, (3) the airtight or watertight properties
1-54 of a casket or outer enclosure, or (4) representations as to
1-55 licensed personnel in the operation of a funeral establishment;
1-56 5. The purchase, sale, barter, or use, or any offer to
1-57 purchase, sell, barter, or use any license, certificate, or
1-58 transcript of license or certificate, in or incident to an
1-59 application to the commission for license to practice as a funeral
1-60 director and/or embalmer;
1-61 6. Altering, with fraudulent intent, any funeral
1-62 director and/or embalmer license, certificate, or transcript of
1-63 license or certificate;
1-64 7. The use of any funeral director and/or embalmer
1-65 license, certificate, diploma or transcript of any such funeral
1-66 director and/or embalmer license, certificate, or diploma that has
1-67 been fraudulently purchased, issued, counterfeited, or materially
1-68 altered;
2-1 8. The impersonation of, or acting as proxy for,
2-2 another in any examination required by this Act for a funeral
2-3 director and/or embalmer license;
2-4 9. The impersonation of a licensed funeral director or
2-5 embalmer as authorized by this Act, or permitting or allowing
2-6 another to use a person's license or certificate to practice as a
2-7 funeral director or embalmer in this state;
2-8 10. A violation of Section 1, 5, or 9, Chapter 512,
2-9 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
2-10 Vernon's Texas Civil Statutes), or a rule adopted under that Act;
2-11 11. Taking custody of a dead human body without the
2-12 permission of the person or the agent of the person authorized to
2-13 make funeral arrangements for the deceased, or without the
2-14 permission of the medical examiner or justice of the peace when a
2-15 medical examiner or justice of the peace has jurisdiction over the
2-16 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
2-17 Criminal Procedure, refusing to promptly surrender a dead human
2-18 body to a person or agent authorized to make funeral arrangements
2-19 for the deceased, or embalming a body without the express written
2-20 or oral permission of a person authorized to make funeral
2-21 arrangements for the deceased or without making a documented
2-22 reasonable effort over a period of at least three (3) hours to
2-23 obtain the permission;
2-24 11A. Embalming or attempting to embalm without proper
2-25 authority a dead human body. Evidence of embalming or attempting
2-26 to embalm includes, but is not limited to, the making of any
2-27 incision on the body, the raising of any circulatory vessel of the
2-28 body, or the injection of any chemical into the body;
2-29 12. Wilfully making any false statement on a
2-30 certificate of death or on a document required by this Act or by a
2-31 rule adopted under this Act;
2-32 13. Employment directly or indirectly of any
2-33 provisional licensee, agent, assistant, embalmer, funeral director,
2-34 employee, or other person on a part or full-time basis, or on
2-35 commission, for the purpose of soliciting individuals or
2-36 institutions by whose influence dead human bodies may be turned
2-37 over to a particular funeral director, embalmer, or funeral
2-38 establishment;
2-39 14. Presentation of false certification of work done
2-40 as a provisional licensee;
2-41 15. Unfitness by reason of present substance abuse;
2-42 16. Whenever a licensee, provisional licensee, or any
2-43 other person, whether employee, agent, representative, or one in
2-44 any manner associated with a funeral establishment engages in
2-45 solicitation as defined in this Act;
2-46 17. Failure by the Funeral Director in Charge to
2-47 provide licensed personnel for direction or personal supervision
2-48 for a "first call," as that term is defined in this Act;
2-49 18. Misappropriation of any funds held by a licensee,
2-50 funeral establishment, including its employees and agents, or other
2-51 depository, that create an obligation to provide a funeral service
2-52 or merchandise, including retention for an unreasonable time of
2-53 excess funds paid by or on behalf of the consumer for which the
2-54 consumer is entitled to a refund;
2-55 19. Performing acts of funeral directing or embalming,
2-56 as those terms are defined in this Act, that are outside the
2-57 licensed scope and authority of the licensee, or performing acts of
2-58 funeral directing or embalming in a capacity other than that of an
2-59 employee, agent, subcontractor, or assignee of a licensed funeral
2-60 establishment that has contracted to perform those acts;
2-61 20. Engaging in fraudulent, unprofessional, or
2-62 deceptive conduct in providing funeral services or merchandise to a
2-63 consumer;
2-64 21. Statement or implication by a funeral director or
2-65 embalmer that a customer's concern with the cost of any funeral
2-66 service or funeral merchandise is improper or indicates a lack of
2-67 respect for the deceased;
2-68 22. Failure by any person arranging for funeral
2-69 services or merchandise to:
2-70 (A) provide a prospective customer with a copy
3-1 of the brochure required by Section 6E of this Act at the beginning
3-2 of the arrangement process;
3-3 (B) provide a retail price list to an individual
3-4 inquiring in person about any funeral service or merchandise for
3-5 that person to keep;
3-6 (C) explain to the customer or prospective
3-7 customer that a contractual agreement for funeral services or
3-8 merchandise may not be entered into before the presentation of the
3-9 retail price list to that person; or
3-10 (D) provide general price information by
3-11 telephone within a reasonable time;
3-12 23. Failure by any person arranging for funeral
3-13 services or merchandise to provide each customer at the conclusion
3-14 of the arrangement process a written memorandum or funeral purchase
3-15 agreement signed by the funeral director making the arrangements
3-16 itemizing the cost of funeral services and funeral merchandise
3-17 selected by the customer; however, if the customer selects a
3-18 package arrangement based on unit pricing, the itemization
3-19 requirement is satisfied by providing a written memorandum that
3-20 itemizes the discount provided by the package arrangement. The use
3-21 of unit pricing does not affect the presentation of the retail
3-22 price list as required by Subdivision 22 of this subsection;
3-23 24. Restricting, hindering, or attempting to restrict
3-24 or hinder (1) the advertising or disclosure of prices and other
3-25 information regarding the availability of funeral services and
3-26 funeral merchandise that is not unfair or deceptive to consumers,
3-27 or (2) agreements for funeral services between any consumer or
3-28 group of consumers and funeral directors or embalmers;
3-29 25. Failure to retain and make available to the
3-30 commission, upon request, copies of all price lists, written
3-31 notices, embalming documents, and memoranda of agreement required
3-32 by this Act for two (2) years after the date of their distribution
3-33 or signing;
3-34 26. Violation of this Act, any rule adopted under this
3-35 Act, an order by the commission revoking, suspending, or probating
3-36 a license, an order assessing an administrative penalty, or an
3-37 agreement to pay an administrative penalty regardless of whether
3-38 the agreement is express or implied by Section 6G(d) of this Act;
3-39 27. Dishonest conduct, wilful conduct, negligence, or
3-40 gross negligence in the practice of embalming or funeral directing
3-41 that is likely to or does deceive, defraud, or otherwise injure the
3-42 public;
3-43 28. Allowing the use of a dead human body by an
3-44 <unlicensed> embalming establishment for research or educational
3-45 purposes without the written permission of the family or person
3-46 arranging the funeral; <and>
3-47 29. Causing the execution of a document by the use of
3-48 fraud, deceit, or misrepresentation; and
3-49 30. Allowing the presence or participation of a
3-50 student for credit or satisfaction of academic requirements during
3-51 the embalming of a dead human body without complying with Section
3-52 4A of this Act.
3-53 SECTION 2. Chapter 251, Acts of the 53rd Legislature,
3-54 Regular Session, 1953 (Article 4582b, Vernon's Texas Civil
3-55 Statutes), is amended by adding Section 4A to read as follows:
3-56 Sec. 4A. USE OF BODY BY SCHOOL OF MORTUARY SCIENCE. (a) A
3-57 school or college of mortuary science may not use a dead human body
3-58 for educational or instructional purposes without the written
3-59 consent of a person authorized to consent to such use.
3-60 (b) A funeral director or embalmer may not release a dead
3-61 human body for delivery to a school or college of mortuary science,
3-62 and a school or college of mortuary science may not accept a dead
3-63 human body without actual possession of the written consent
3-64 required under Subsection (a) of this section.
3-65 (c) A copy of the written consent required under Subsection
3-66 (a) of this section shall be retained for a minimum of two years by
3-67 the funeral home and permanently by the school or college of
3-68 mortuary science. The records of the funeral home maintained under
3-69 this subsection shall be reasonably available for inspection by the
3-70 commission, the person who provided the consent, or the next of kin
4-1 of the deceased person. The records of the school or college of
4-2 mortuary science shall be reasonably available for inspection by
4-3 the commission.
4-4 (d) A written consent form required under this section must
4-5 contain, in the same size print as the remainder of the form, the
4-6 following statement immediately above the signature line for the
4-7 form:
4-8 "The undersigned authorizes and directs the funeral home,
4-9 including apprentices or mortuary students under the direct
4-10 supervision of a licensed embalmer, and the funeral home's
4-11 employees, independent contractors, and agents to care for, embalm,
4-12 and prepare the body of the decedent. The undersigned acknowledges
4-13 that this authorization encompasses permission to embalm at the
4-14 funeral home facility or at another facility equipped for
4-15 embalming."
4-16 (e) The provisions of this Section 4A shall not apply with
4-17 respect to a dead human body obtained by a school or college of
4-18 mortuary science pursuant to the provisions relating to the Texas
4-19 Anatomical Board of the Texas Anatomical Gift Act under Chapters
4-20 691 and 692.
4-21 SECTION 3. This Act takes effect September 1, 1995, and
4-22 applies only to the use of a dead human body for educational or
4-23 instructional purposes on or after that date.
4-24 SECTION 4. The importance of this legislation and the
4-25 crowded condition of the calendars in both houses create an
4-26 emergency and an imperative public necessity that the
4-27 constitutional rule requiring bills to be read on three several
4-28 days in each house be suspended, and this rule is hereby suspended.
4-29 * * * * *