76R12254 MXM-D
By Pitts H.B. No. 2756
Substitute the following for H.B. No. 2756:
By Glaze C.S.H.B. No. 2756
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the abolition of the Funeral Services Commission and
1-3 the transfer of the duties of that commission to the Texas
1-4 Department of Health; establishing an advisory committee to the
1-5 Texas Board of Health on funeral services issues.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 1, Chapter 251, Acts of the 53rd
1-8 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
1-9 Civil Statutes), is amended by amending Subsections E, F, H, T, and
1-10 W and adding Subsections X and Y to read as follows:
1-11 E. The term "provisional licensee" as herein used is a
1-12 person engaged in learning the practice of funeral directing and/or
1-13 embalming under the instruction, direction, and personal
1-14 supervision of a duly licensed funeral director and/or embalmer of
1-15 and in the State of Texas in accordance with the provisions of this
1-16 Act, and having been duly issued a provisional license by the
1-17 department [commission] prior thereto.
1-18 F. The term "provisional license program" or "program" as
1-19 used herein shall be construed as diligent attention to assigned
1-20 duties and other matters performed in a licensed funeral
1-21 establishment in this state. The board [commission] by rule shall
1-22 define the terms of employment of a provisional licensee, which
1-23 must include service by the provisional licensee under actual
1-24 working conditions and under the personal supervision of a licensed
2-1 funeral director and/or embalmer.
2-2 H. The term "due notice" as herein used shall mean published
2-3 notice of the time and place of regular meetings of the board
2-4 [commission]. Notice of time, place, and purpose of any meeting of
2-5 the board [commission] filed with the Texas Register at least seven
2-6 (7) days prior thereto shall be adequate notice for any regular
2-7 meeting, including the giving of examinations.
2-8 T. "Written memorandum" or "funeral purchase agreement"
2-9 means a written statement that itemizes the cost of funeral
2-10 services or merchandise selected by a customer from the retail
2-11 price list. The memorandum must also state the amount paid or owed
2-12 to another person by the funeral establishment on behalf of the
2-13 customer and each fee charged the customer for the cost of
2-14 advancing funds or becoming indebted to another person on behalf of
2-15 the customer. The memorandum must include the name, address, and
2-16 telephone number of the funeral establishment and the following
2-17 printed notice: "Charges are only for those items that you
2-18 selected or that are required. If we are required by law or by a
2-19 cemetery or crematory to use any items, we will explain the reasons
2-20 in writing below." The memorandum must include the name, mailing
2-21 address, and telephone number of the department [Texas Funeral
2-22 Service Commission], and a statement indicating that complaints may
2-23 be directed to the department [commission].
2-24 W. "Board" means the Texas Board of Health ["Commission"
2-25 means the Texas Funeral Service Commission].
2-26 X. "Commissioner" means the commissioner of public health.
2-27 Y. "Department" means the Texas Department of Health.
3-1 SECTION 2. Chapter 251, Acts of the 53rd Legislature,
3-2 Regular Session, 1953 (Article 4582b, Vernon's Texas Civil
3-3 Statutes), is amended by adding Section 2B to read as follows:
3-4 Sec. 2B. ADVISORY COMMITTEE. (a) In this section,
3-5 "advisory committee" means the funeral services advisory committee.
3-6 (b) The funeral services advisory committee is established
3-7 as an advisory committee to the board. The advisory committee is
3-8 composed of six members appointed without regard to the race,
3-9 color, disability, sex, religion, age, or national origin of the
3-10 appointee. The board shall appoint the members of the advisory
3-11 committee, four of whom must be public members and two of whom must
3-12 each hold a license as both a funeral director and an embalmer.
3-13 The two licensed members are not qualified to serve if they work
3-14 for the same company. A person is not qualified to be a public
3-15 member of the committee if the person or the person's spouse:
3-16 (1) is registered, certified, or licensed by a
3-17 regulatory agency in the field of funeral services;
3-18 (2) is employed by or participates in the management
3-19 of a business entity or other organization regulated by or
3-20 receiving money from the department;
3-21 (3) owns or controls, directly or indirectly, more
3-22 than a 10 percent interest in a business entity or other
3-23 organization regulated by or receiving money from the department;
3-24 or
3-25 (4) uses or receives a substantial amount of tangible
3-26 goods, services, or money from the department other than
3-27 compensation or reimbursement authorized by law for advisory
4-1 committee membership, attendance, or expenses.
4-2 (c) Failure of a member to satisfy the requirements adopted
4-3 under this section for membership on the advisory committee
4-4 constitutes the vacancy of that member's position. A vacancy under
4-5 this subsection shall be filled in the same manner as the original
4-6 appointment. The appointed member serves for the remainder of the
4-7 vacated term.
4-8 (d) A member of the advisory committee serves a three-year
4-9 term. A member of the advisory committee is not entitled to
4-10 compensation, but is entitled to reimbursement for actual and
4-11 necessary expenses incurred in performing duties as an advisory
4-12 committee member, subject to any applicable limitation on
4-13 reimbursement provided by the General Appropriations Act.
4-14 (e) The advisory committee shall elect a public member to
4-15 serve as presiding officer. The advisory committee shall meet at
4-16 the call of the presiding officer, but at least three times each
4-17 year.
4-18 (f) The advisory committee shall make recommendations to the
4-19 board regarding the licensing and regulation of funeral directors,
4-20 embalmers, funeral establishments, and other persons engaged in
4-21 business in this state in the funeral industry.
4-22 (g) The advisory committee is not subject to Chapter 2110,
4-23 Government Code.
4-24 SECTION 3. Subsection A, Section 3, Chapter 251, Acts of the
4-25 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-26 Texas Civil Statutes), is amended to read as follows:
4-27 A. The board [commission] is hereby authorized and empowered
5-1 and it shall be its duty to prescribe and maintain a standard of
5-2 proficiency, professionalism, and qualifications of those engaged
5-3 or who may engage in the practice of a funeral director or embalmer
5-4 and to determine the qualifications necessary to enable any person
5-5 to lawfully practice as a funeral director, to embalm dead human
5-6 bodies, and to collect the fees therefor. The department
5-7 [commission] shall examine all applicants for funeral directors'
5-8 and embalmers' licenses and for provisional licenses and shall
5-9 issue the proper license to all persons qualified and who meet the
5-10 requirements herein prescribed.
5-11 SECTION 4. Subdivisions (2) and (3), Subsection B, Section
5-12 3, Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
5-13 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
5-14 as follows:
5-15 (2) The department [commission] shall administer or
5-16 arrange for the administration of:
5-17 (a) a written professionally prepared
5-18 examination on the subjects of:
5-19 (i) the art and technique of funeral
5-20 directing;
5-21 (ii) the signs of death;
5-22 (iii) the manner by which death may be
5-23 determined;
5-24 (iv) sanitation;
5-25 (v) hygiene;
5-26 (vi) mortuary management and mortuary law;
5-27 (vii) business and professional ethics;
6-1 and
6-2 (viii) other subjects that may be taught
6-3 in a recognized school or college of mortuary science; and
6-4 (b) a written examination developed by the
6-5 department [commission] or developed for the department
6-6 [commission] by contract on:
6-7 (i) laws applicable to vital statistics
6-8 pertaining to dead human bodies; and
6-9 (ii) local and state rules and laws
6-10 relating to the preparation, transportation, care, and disposition
6-11 of dead human bodies.
6-12 (3) Not later than the 30th day after the date on
6-13 which a funeral director licensing examination is administered
6-14 under this Act, the department [commission] shall notify each
6-15 examinee of the results of the examination. However, if an
6-16 examination is graded or reviewed by a national testing service,
6-17 the department [commission] shall notify examinees of the results
6-18 of the examination not later than the 14th day after the date on
6-19 which the department [commission] receives the results from the
6-20 testing service. If the notice of examination results graded or
6-21 reviewed by a national testing service will be delayed for longer
6-22 than 90 days after the examination date, the department
6-23 [commission] shall notify the examinee of the reason for the delay
6-24 before the 90th day. If requested in writing by a person who fails
6-25 a licensing examination administered under this Act, the department
6-26 [commission] shall furnish the person with an analysis of the
6-27 person's performance on the examination.
7-1 SECTION 5. Subdivisions (2) and (3), Subsection C, Section
7-2 3, Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
7-3 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
7-4 as follows:
7-5 (2) The department [commission] shall administer or
7-6 arrange for the administration of:
7-7 (a) a written professionally prepared
7-8 examination on the subjects of:
7-9 (i) the anatomy of the human body;
7-10 (ii) the cavities of the human body;
7-11 (iii) the arterial and venous system of
7-12 the human body;
7-13 (iv) blood and discoloration;
7-14 (v) bacteriology and hygiene;
7-15 (vi) pathology;
7-16 (vii) chemistry and embalming;
7-17 (viii) arterial and cavity embalming;
7-18 (ix) restorative art;
7-19 (x) disinfecting;
7-20 (xi) embalming special cases;
7-21 (xii) contagious and infectious diseases;
7-22 (xiii) mortuary management;
7-23 (xiv) care, preservation, transportation,
7-24 and disposition of dead human bodies;
7-25 (xv) sanitary science; and
7-26 (xvi) other subjects as may be taught in a
7-27 recognized school or college of mortuary science; and
8-1 (b) a written examination developed by the
8-2 department [commission] or developed for the department
8-3 [commission] by contract on:
8-4 (i) laws applicable to vital statistics
8-5 pertaining to dead human bodies; and
8-6 (ii) local and state rules and laws
8-7 relating to the care and disposition of dead human bodies.
8-8 (3) Not later than the 30th day after the date on
8-9 which an embalmer licensing examination is administered under this
8-10 Act, the department [commission] shall notify each examinee of the
8-11 results of the examination. However, if an examination is graded
8-12 or reviewed by a national testing service, the department
8-13 [commission] shall notify examinees of the results of the
8-14 examination not later than the 14th day after the date on which the
8-15 department [commission] receives the results from the testing
8-16 service. If the notice of examination results graded or reviewed
8-17 by a national testing service will be delayed for longer than 90
8-18 days after the examination date, the department [commission] shall
8-19 notify the examinee of the reason for the delay before the 90th
8-20 day. If requested in writing by a person who fails a licensing
8-21 examination administered under this Act, the department
8-22 [commission] shall furnish the person with an analysis of the
8-23 person's performance on the examination.
8-24 SECTION 6. Subsections D, E, F, H, I, and J, Section 3,
8-25 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
8-26 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
8-27 as follows:
9-1 D. It shall be the duty of the department [commission] to
9-2 prescribe and supervise the course of instruction received by a
9-3 provisional licensee while participating in a provisional license
9-4 program, consistent with the following requirements:
9-5 1. Provisional license for embalmer: A license to
9-6 practice the science of embalming shall not be issued unless and
9-7 until the applicant therefor has served a provisional license
9-8 program of not less than twelve (12) consecutive months under the
9-9 personal supervision and instruction of a licensed embalmer and has
9-10 successfully completed all requirements of the program. The only
9-11 exception to this requirement shall be in the case of an applicant
9-12 under reciprocity.
9-13 (a) Any person, eighteen (18) years of age or
9-14 more, who desires to practice the science of embalming in this
9-15 state, files application therefor, meets the requirements of the
9-16 law and the department [this commission], and possesses such
9-17 qualification to enter into the provisional license program, may be
9-18 registered as a provisional licensee. A provisional license
9-19 program for embalming must be served by the person after graduation
9-20 from a school or college of mortuary science. An applicant shall
9-21 pay a license fee at the time he requests to enter the program.
9-22 (a-1) An applicant for a license to practice
9-23 embalming must make a grade of 75 percent or higher on the written
9-24 examination used by the department [commission]. [The commission
9-25 may require an applicant to appear before at least one member of
9-26 the commission for approval of the person's application. The
9-27 approval is subject to review by the entire commission.] An
10-1 applicant who has not entered the provisional license program
10-2 before the second anniversary of the date the applicant took the
10-3 examination must pass the examination again before receiving a
10-4 provisional license.
10-5 (b) Each provisional embalmer shall be issued a
10-6 provisional license by the department [commission] for a
10-7 provisional license program to be served in the State of Texas.
10-8 During the course of the program, a provisional licensee shall work
10-9 on a minimum of sixty (60) cases. No more than two (2) provisional
10-10 licensees may receive credit for work on any one body. The board
10-11 [commission] by rule shall define the standards for a case and
10-12 shall establish the minimum number of complete cases a provisional
10-13 licensee is required to execute during the provisional license
10-14 program. The standards required for a complete case shall include
10-15 all the duties and activities necessary for embalming. The board
10-16 [commission] by rule also shall establish guidelines for
10-17 provisional licensee supervision under which a provisional licensee
10-18 is granted increased responsibilities during the course of the
10-19 program.
10-20 (c) A provisional embalmer must report to the
10-21 department [commission] within ten (10) days after the end of each
10-22 month each case handled by the provisional embalmer or with which
10-23 the provisional embalmer assisted in handling during that month.
10-24 Each such report shall be certified by the licensee under whose
10-25 personal supervision the provisional embalmer performed the work.
10-26 For any month in which the provisional embalmer did not embalm at
10-27 least one (1) case under the personal supervision of a licensed
11-1 embalmer, a report shall be made to the department [commission]
11-2 notwithstanding.
11-3 (d) The board [commission] shall set the license
11-4 and examination fees in an amount that is reasonable and necessary
11-5 for the administration of the program.
11-6 2. Provisional License for Funeral Director: The term
11-7 of the provisional license program for a funeral director's license
11-8 shall be a period of not less than twelve (12) months, and may be
11-9 served concurrently with the provisional license program for an
11-10 embalmer's license; however, the provisional license program must
11-11 be served in twelve (12) consecutive months. A person desiring to
11-12 become a provisional funeral director shall make application to the
11-13 department [commission] on a form provided by the department
11-14 [commission]. An applicant must be not less than eighteen (18)
11-15 years of age and have completed the educational requirements
11-16 prescribed for a funeral director. The application for
11-17 registration shall be sworn to and accompanied by a fee. If the
11-18 application is accepted, an applicant will be issued a provisional
11-19 license upon determination by the department [commission] that his
11-20 qualifications are satisfactory.
11-21 (a) An applicant for a funeral director's
11-22 license and the examination therefor shall be admitted to the
11-23 provisional license program only if the applicant applies for and
11-24 takes the written examination given by the department [commission],
11-25 and pays the license fee, whereupon he may be licensed as a
11-26 provisional funeral director if the applicant otherwise meets the
11-27 requirements of this Act. An applicant who has not been licensed
12-1 as a provisional funeral director before the second anniversary of
12-2 the date the applicant took the examination must pass the
12-3 examination again before being licensed as a provisional funeral
12-4 director.
12-5 (b) A provisional funeral director must report
12-6 to the department [commission] within ten (10) days after the end
12-7 of each month each case that the provisional funeral director
12-8 assisted in handling during that month. Each report shall be
12-9 certified to by the licensee under whom the provisional funeral
12-10 director performed the work. For any month within which the
12-11 provisional funeral director did not assist a licensed funeral
12-12 director in handling a funeral, a report shall be made to the
12-13 department [commission] notwithstanding.
12-14 (c) The provisional license program shall
12-15 include assisting a licensed funeral director in this state with a
12-16 minimum of sixty (60) cases. No more than two (2) provisional
12-17 licensees may receive credit for work done on any one body. The
12-18 board [commission] by rule shall define the standards for a case
12-19 and shall set the number of complete cases a provisional licensee
12-20 is required to execute during the program. The standards required
12-21 for a complete case shall include all the activities necessary from
12-22 the time the body is obtained until final disposition. The board
12-23 [commission] by rule also shall establish guidelines for
12-24 provisional licensee supervision under which a provisional licensee
12-25 is granted increased responsibilities during the course of the
12-26 provisional license program.
12-27 (d) The board [commission] shall set the license
13-1 and examination fees in an amount that is reasonable and necessary
13-2 for the administration of the program.
13-3 (e) An applicant for a funeral director license
13-4 may not be considered for licensure until the applicant completes
13-5 all of the requirements of the provisional license program and
13-6 attains a grade of 75 percent or higher on the written examination
13-7 given by the department [commission]. [The commission may require
13-8 an applicant to appear before at least one member of the commission
13-9 for approval of the person's application. The approval is subject
13-10 to review by the entire commission.]
13-11 3. Annual renewal of provisional license: Each
13-12 provisional license issued by the department [commission] to a
13-13 provisional embalmer or funeral director must be renewed on the
13-14 first day of January of each year and will be renewed upon payment
13-15 by the provisional licensee of a renewal fee, provided the
13-16 provisional licensee has observed the rules and regulations of the
13-17 board [commission]. Notice shall be mailed, during the month of
13-18 December each year, to each provisional licensee at his last known
13-19 address, notifying him that the renewal fee is due. If a
13-20 provisional licensee fails to pay the annual renewal fee by the due
13-21 date, the department [commission] shall impose a late payment
13-22 penalty equal in amount to the license renewal fee and shall
13-23 suspend the license for nonpayment and notify the provisional
13-24 licensee of such suspension. If the said renewal fee and penalty
13-25 are not then paid within ninety (90) days from the date of such
13-26 notice of suspension, the department [commission] shall then cancel
13-27 the license. Provided, however, after the license has been
14-1 cancelled, the provisional licensee may apply for reinstatement
14-2 within eighteen (18) months from the date the license was cancelled
14-3 and the department [commission] may reinstate the provisional
14-4 licensee provided all other requirements of the department
14-5 [commission] are met and the license fee and a late payment penalty
14-6 equal in amount to the license fee for the period of the
14-7 cancellation are paid. A provisional license may not be renewed
14-8 for more than two (2) years from the date of its issuance unless
14-9 the person requests and receives an extension based on hardship
14-10 from the department [commission]. It is provided that the
14-11 registration fee of any provisional licensee who is actively
14-12 engaged in the military service of the United States may be
14-13 remitted for the duration of such service or for such fees and such
14-14 time as the department [commission] may deem advisable upon
14-15 presentation of proper evidence required by the department
14-16 [commission]. The board [commission] shall set the renewal fee
14-17 and the penalty in an amount that is reasonable and necessary for
14-18 the administration of this Act. A provisional license that has
14-19 been cancelled or suspended or has lapsed for a period of five (5)
14-20 years or more may be reinstated only if the applicant takes and
14-21 passes the applicable examinations under Subdivision 1 or 2 of this
14-22 subsection. The board [commission] may adopt rules relating to the
14-23 reinstatement of provisional licenses under this subdivision.
14-24 4. Notification of the department [commission] upon
14-25 entry into the provisional license program: When a provisional
14-26 licensee enters the employ of a licensed embalmer or funeral
14-27 director, the provisional licensee shall immediately notify the
15-1 department [commission] of the name and place of business of the
15-2 licensed embalmer or funeral director under whom the provisional
15-3 licensee will train, and such notification shall be signed by the
15-4 embalmer or funeral director in each case. If at any time
15-5 thereafter the provisional licensee leaves the employ of the
15-6 licensed embalmer or funeral director, the licensed embalmer or
15-7 funeral director shall give the provisional licensee an affidavit
15-8 showing the length of time the provisional licensee has served and
15-9 the number of cases handled while so employed; the original of
15-10 said affidavit shall be filed with the department [commission] and
15-11 made a matter of record, and a copy shall be furnished to the
15-12 provisional licensee. The department [commission] shall furnish
15-13 report forms to be used by each provisional licensee.
15-14 5. A provisional licensee is subject to the same
15-15 disciplinary actions as a holder of a funeral director or embalmer
15-16 license for a violation of this Act or a rule adopted under this
15-17 Act.
15-18 E. Any person engaged or desiring to engage in the practice
15-19 of embalming or funeral directing in this state, in connection with
15-20 the care and disposition of dead human bodies, shall make written
15-21 application to the department [commission] for a license
15-22 accompanying same with an application fee. The license or licenses
15-23 when issued [shall be signed by a majority of the commission and]
15-24 shall authorize the licensee to practice the science of embalming
15-25 and/or funeral directing. All licenses shall be displayed
15-26 conspicuously in each place of business at which the licensee
15-27 practices funeral directing or embalming. A person may renew an
16-1 unexpired license by paying to the department [commission] before
16-2 the expiration date of the license the required renewal fee. If a
16-3 person's license has been expired for ninety (90) days or less, the
16-4 person may renew the license by paying to the department
16-5 [commission] the required renewal fee and a penalty fee that is
16-6 one-half of the renewal fee for the license. If a person's license
16-7 has been expired for longer than ninety (90) days but less than
16-8 five (5) years, the person may renew the license by paying to the
16-9 department [commission] all unpaid renewal fees and a penalty fee
16-10 that is equal to one-half of the total of the unpaid renewal fees.
16-11 If a person's license has been expired for five (5) years or
16-12 longer, the person may not renew the license. The person may
16-13 obtain a new license by submitting to reexamination and complying
16-14 with the requirements and procedures for obtaining an original
16-15 license. However, the department [commission] may renew without
16-16 reexamination an expired license of a person who was licensed in
16-17 this state, moved to another state, and is currently licensed and
16-18 has been in practice in the other state for the two (2) years
16-19 preceding application. The person must pay to the department
16-20 [commission] a fee that is equal to the renewal fee for the
16-21 license. At least thirty (30) days before the expiration of a
16-22 person's license, the department [commission] shall send written
16-23 notice of the impending license expiration to the person at the
16-24 person's last known address according to the records of the
16-25 department [commission]. The board [commission] may by rule
16-26 require continuing education as a condition for license renewal
16-27 except for persons described in Subdivisions 4 and 5 of this
17-1 subsection. If any license issued under this Act is lost or
17-2 destroyed, the holder of any such license may present his
17-3 application for duplicate license to the department [commission],
17-4 on a form to be prescribed by the department [commission], together
17-5 with his affidavit of such loss or destruction, and that he is the
17-6 same person to whom such license was issued, and such other
17-7 information concerning its loss or destruction as the department
17-8 [commission] shall require, and shall, upon payment of a duplicate
17-9 license fee, as determined by the board [commission], be granted a
17-10 duplicate license.
17-11 1. Any license that has been cancelled or suspended
17-12 for a period of five (5) years or more may be reinstated only after
17-13 the applicant shall have passed a written examination as described
17-14 by Subdivision (2), Subsection C, Section 3 of this Act on
17-15 embalming and/or a written examination, as described by Subdivision
17-16 (2), Subsection B, Section 3 of this Act, on funeral directing.
17-17 2. The board [commission] by rule may adopt a system
17-18 under which licenses expire on various dates during the year. All
17-19 dates for sending notice regarding payment of fees and dates for
17-20 license suspension for nonpayment shall be adjusted accordingly.
17-21 For the year in which the license expiration date is changed,
17-22 license fees payable shall be prorated on a monthly basis so that
17-23 each licensee shall pay only that portion of the license fee which
17-24 is allocable to the number of months during which the license is
17-25 valid. On renewal of the license on the new expiration date, the
17-26 total license renewal fee is payable.
17-27 3. The board [commission] shall set the application
18-1 fee, license fee, registration fee, and duplicate license fee in an
18-2 amount that is reasonable and necessary for the administration of
18-3 this Act.
18-4 4. On presentation to the department [commission] of
18-5 evidence as prescribed by the department [commission], a licensee
18-6 who is actively engaged in the military service of the United
18-7 States is exempted from the payment of registration fees for the
18-8 duration of the military service or from the amount of fees and for
18-9 the time as the department [commission] considers advisable. The
18-10 department [commission] may not consider the period of military
18-11 service in determining whether or not a license has been cancelled,
18-12 suspended, or lapsed under this subsection.
18-13 5. A licensee who is at least 65 years of age or has a
18-14 disability of 75 percent or greater at the time the application for
18-15 renewal is submitted may apply for renewal of the license in the
18-16 category of retired, inactive status or retired, active status. On
18-17 application, the department [commission] may renew the license of a
18-18 retired licensee who does not provide funeral or embalming services
18-19 in the category of retired, inactive status. The board
18-20 [commission] may not charge a fee for the renewal of a license for
18-21 retired, inactive status. On application, the department
18-22 [commission] may renew the license of a retired licensee who
18-23 participates in any manner, nominal or otherwise, in the provision
18-24 of funeral or embalming services in the category of retired, active
18-25 status. The board [commission] shall charge a fee equal to 50
18-26 percent of the current registration fee charged other active
18-27 licensees.
19-1 F. The department [commission] may waive any license
19-2 requirement for an applicant with a valid license from another
19-3 state having license requirements substantially equivalent to those
19-4 of this state. An applicant shall pay a reciprocal license fee.
19-5 The person's application shall be accompanied by an affidavit made
19-6 by the appropriate authority [Chairman or Secretary of the
19-7 commission which issued the license, or by a duly constituted
19-8 registration officer] of the state, country, or territory by which
19-9 the certificate or license was granted, and on which the
19-10 application for registration in Texas is based, reciting that the
19-11 accompanying certificate or license has not been cancelled,
19-12 suspended or revoked, and that the statement of the qualifications
19-13 made in the application for a license in Texas is true and correct.
19-14 Applicants for a license under the provisions of this Act shall
19-15 subscribe to an oath in writing before an officer authorized by law
19-16 to administer oaths, which shall be a part of such application,
19-17 stating that the license, certificate, or authority under which the
19-18 applicant practiced as a funeral director or embalmer in the state,
19-19 country, or territory from which the applicant removed, was at the
19-20 time of such removal in full force and effect and not cancelled or
19-21 suspended or revoked. Said application shall also state that the
19-22 applicant is the identical person to whom the said certificate,
19-23 license, or commission was issued, and that no proceeding has been
19-24 instituted against the applicant for the cancellation, suspension
19-25 or revocation of such certificate or license in the state, country,
19-26 or territory in which the same was issued; and that no prosecution
19-27 is pending against the applicant in any state or federal court for
20-1 any offense which, under the laws of the State of Texas, is a
20-2 felony, or is a misdemeanor related to the practice of embalming or
20-3 funeral directing. The board [commission] shall set the reciprocal
20-4 license fee in an amount that is reasonable and necessary for the
20-5 administration of this Act.
20-6 H. The department [commission] may, after a hearing as
20-7 provided by Section 6C of this Act, reprimand, assess an
20-8 administrative penalty, revoke, suspend, or probate the suspension
20-9 of a license or provisional license, or impose any combination of
20-10 these sanctions against a licensed funeral director, a licensed
20-11 embalmer, or a provisional licensee. The department [commission]
20-12 may assess an administrative penalty without a hearing if the
20-13 penalty is assessed in the manner provided by Section 6G of this
20-14 Act. Action taken by the department [commission] under this
20-15 section may be based only on a violation of this Act or a rule
20-16 adopted under this Act. The department [commission] may refuse
20-17 without a hearing to license a person or to permit a person to
20-18 serve as a provisional licensee if the person has violated this Act
20-19 or a rule adopted under this Act. A person whose license or
20-20 provisional license application is refused under this subsection
20-21 may appeal the decision by requesting a hearing not later than the
20-22 30th day after the date of the refusal. The department
20-23 [commission] and the person whose application for license or
20-24 provisional license is refused may agree to the issuance of a
20-25 probationary license or the department [commission] may, after a
20-26 hearing, order that a license be issued on a probationary basis. A
20-27 violation of this Act includes the following:
21-1 1. The presentation to the department [commission] of
21-2 any license, certificate, or diploma that was illegally or
21-3 fraudulently obtained, or when fraud or deception has been
21-4 practiced in passing the examination;
21-5 2. Conviction of:
21-6 (A) a felony; or
21-7 (B) a misdemeanor related to the practice of
21-8 embalming or funeral directing;
21-9 3. Being unfit to practice as a funeral director
21-10 and/or embalmer by reason of insanity and having been adjudged by a
21-11 court of competent jurisdiction to be of unsound mind;
21-12 4. The use of any statement that misleads or deceives
21-13 the public, including but not limited to false or misleading
21-14 statements regarding (1) any legal, religious, or cemetery
21-15 requirement for funeral merchandise or funeral services, (2) the
21-16 preservative qualities of funeral merchandise or funeral services
21-17 in preventing or substantially delaying natural decomposition or
21-18 decay of human remains, (3) the airtight or watertight properties
21-19 of a casket or outer enclosure, or (4) representations as to
21-20 licensed personnel in the operation of a funeral establishment;
21-21 5. The purchase, sale, barter, or use, or any offer to
21-22 purchase, sell, barter, or use any license, certificate, or
21-23 transcript of license or certificate, in or incident to an
21-24 application to the department [commission] for license to practice
21-25 as a funeral director and/or embalmer;
21-26 6. Altering, with fraudulent intent, any funeral
21-27 director and/or embalmer license, certificate, or transcript of
22-1 license or certificate;
22-2 7. The use of any funeral director and/or embalmer
22-3 license, certificate, diploma or transcript of any such funeral
22-4 director and/or embalmer license, certificate, or diploma that has
22-5 been fraudulently purchased, issued, counterfeited, or materially
22-6 altered;
22-7 8. The impersonation of, or acting as proxy for,
22-8 another in any examination required by this Act for a funeral
22-9 director and/or embalmer license;
22-10 9. The impersonation of a licensed funeral director or
22-11 embalmer as authorized by this Act, or permitting or allowing
22-12 another to use a person's license or certificate to practice as a
22-13 funeral director or embalmer in this state;
22-14 10. A violation of Chapter 154, Finance Code [Section
22-15 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular
22-16 Session, 1955 (Article 548b, Vernon's Texas Civil Statutes)], or a
22-17 rule adopted under that chapter [Act];
22-18 11. Taking custody of a dead human body without the
22-19 permission of the person or the agent of the person authorized to
22-20 make funeral arrangements for the deceased, or without the
22-21 permission of the medical examiner or justice of the peace when a
22-22 medical examiner or justice of the peace has jurisdiction over the
22-23 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
22-24 Criminal Procedure, refusing to promptly surrender a dead human
22-25 body to a person or agent authorized to make funeral arrangements
22-26 for the deceased, or embalming a body without the express written
22-27 or oral permission of a person authorized to make funeral
23-1 arrangements for the deceased or without making a documented
23-2 reasonable effort over a period of at least three (3) hours to
23-3 obtain the permission;
23-4 11A. Embalming or attempting to embalm without proper
23-5 authority a dead human body. Evidence of embalming or attempting
23-6 to embalm includes, but is not limited to, the making of any
23-7 incision on the body, the raising of any circulatory vessel of the
23-8 body, or the injection of any chemical into the body;
23-9 12. Wilfully making any false statement on a
23-10 certificate of death or on a document required by this Act or by a
23-11 rule adopted under this Act;
23-12 13. Employment directly or indirectly of any
23-13 provisional licensee, agent, assistant, embalmer, funeral director,
23-14 employee, or other person on a part or full-time basis, or on
23-15 commission, for the purpose of soliciting individuals or
23-16 institutions by whose influence dead human bodies may be turned
23-17 over to a particular funeral director, embalmer, or funeral
23-18 establishment;
23-19 14. Presentation of false certification of work done
23-20 as a provisional licensee;
23-21 15. Unfitness by reason of present substance abuse;
23-22 16. Whenever a licensee, provisional licensee, or any
23-23 other person, whether employee, agent, representative, or one in
23-24 any manner associated with a funeral establishment engages in
23-25 solicitation as defined in this Act;
23-26 17. Failure by the Funeral Director in Charge to
23-27 provide licensed personnel for direction or personal supervision
24-1 for a "first call," as that term is defined in this Act;
24-2 18. Misappropriation of any funds held by a licensee,
24-3 funeral establishment, including its employees and agents, or other
24-4 depository, that create an obligation to provide a funeral service
24-5 or merchandise, including retention for an unreasonable time of
24-6 excess funds paid by or on behalf of the consumer for which the
24-7 consumer is entitled to a refund;
24-8 19. Performing acts of funeral directing or embalming,
24-9 as those terms are defined in this Act, that are outside the
24-10 licensed scope and authority of the licensee, or performing acts of
24-11 funeral directing or embalming in a capacity other than that of an
24-12 employee, agent, subcontractor, or assignee of a licensed funeral
24-13 establishment that has contracted to perform those acts;
24-14 20. Engaging in fraudulent, unprofessional, or
24-15 deceptive conduct in providing funeral services or merchandise to a
24-16 consumer;
24-17 21. Statement or implication by a funeral director or
24-18 embalmer that a customer's concern with the cost of any funeral
24-19 service or funeral merchandise is improper or indicates a lack of
24-20 respect for the deceased;
24-21 22. Failure by any person arranging for funeral
24-22 services or merchandise to:
24-23 (A) provide a prospective customer with a copy
24-24 of the brochure required by Section 6E of this Act at the beginning
24-25 of the arrangement process;
24-26 (B) provide a retail price list to an individual
24-27 inquiring in person about any funeral service or merchandise for
25-1 that person to keep;
25-2 (C) explain to the customer or prospective
25-3 customer that a contractual agreement for funeral services or
25-4 merchandise may not be entered into before the presentation of the
25-5 retail price list to that person; or
25-6 (D) provide general price information by
25-7 telephone within a reasonable time;
25-8 23. Failure by any person arranging for funeral
25-9 services or merchandise to provide each customer at the conclusion
25-10 of the arrangement process a written memorandum or funeral purchase
25-11 agreement signed by the funeral director making the arrangements
25-12 itemizing the cost of funeral services and funeral merchandise
25-13 selected by the customer; however, if the customer selects a
25-14 package arrangement based on unit pricing, the itemization
25-15 requirement is satisfied by providing a written memorandum that
25-16 itemizes the discount provided by the package arrangement. The use
25-17 of unit pricing does not affect the presentation of the retail
25-18 price list as required by Subdivision 22 of this subsection;
25-19 24. Restricting, hindering, or attempting to restrict
25-20 or hinder (1) the advertising or disclosure of prices and other
25-21 information regarding the availability of funeral services and
25-22 funeral merchandise that is not unfair or deceptive to consumers,
25-23 or (2) agreements for funeral services between any consumer or
25-24 group of consumers and funeral directors or embalmers;
25-25 25. Failure to retain and make available to the
25-26 department [commission], upon request, copies of all price lists,
25-27 written notices, embalming documents, and memoranda of agreement
26-1 required by this Act for two (2) years after the date of their
26-2 distribution or signing;
26-3 26. Violation of this Act, any rule adopted under this
26-4 Act, an order by the board [commission] revoking, suspending, or
26-5 probating a license, an order assessing an administrative penalty,
26-6 or an agreement to pay an administrative penalty regardless of
26-7 whether the agreement is express or implied by Section 6G(d) of
26-8 this Act;
26-9 27. Dishonest conduct, wilful conduct, negligence, or
26-10 gross negligence in the practice of embalming or funeral directing
26-11 that is likely to or does deceive, defraud, or otherwise injure the
26-12 public;
26-13 28. Allowing the use of a dead human body by an
26-14 embalming establishment for research or educational purposes
26-15 without complying with Section 4A of this Act;
26-16 29. Causing the execution of a document by the use of
26-17 fraud, deceit, or misrepresentation; and
26-18 30. Allowing the presence or participation of a
26-19 student for credit or satisfaction of academic requirements during
26-20 the embalming of a dead human body without complying with Section
26-21 4A of this Act.
26-22 I. The board [commission] may issue such rules and
26-23 regulations as may be necessary or desirable to effect the intent
26-24 of the provisions of this Section.
26-25 J. A person who wishes to apply for a funeral director or
26-26 embalmer license but has a criminal conviction described by
26-27 Subsection H.2. of this section, may request a hearing on whether
27-1 the conviction prevents the department [commission] from issuing a
27-2 license or provisional license. A hearing under this subsection
27-3 must be requested before the person enters mortuary school and
27-4 shall be conducted as required under Section 6C of this Act. A
27-5 decision made in a hearing under this subsection, unless modified
27-6 on appeal, is binding on the department [commission] and on the
27-7 person who requests the hearing when the person applies to the
27-8 department [commission] for the license or provisional license.
27-9 SECTION 7. Section 4, Chapter 251, Acts of the 53rd
27-10 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
27-11 Civil Statutes), is amended to read as follows:
27-12 Sec. 4. FUNERAL ESTABLISHMENTS. A. All funeral
27-13 establishments shall be licensed by the department [commission].
27-14 All licenses shall expire at midnight on September 30th of each
27-15 year. Funeral establishments shall apply for a license, and upon
27-16 satisfaction to the department [commission] that this Section has
27-17 been complied with and upon receipt of the licensing fee, an
27-18 initial license shall be duly issued to such new establishments.
27-19 Not later than thirty (30) days prior to the expiration date of
27-20 licenses, the department [commission] shall cause to be issued
27-21 notification in writing by mail to each licensed funeral
27-22 establishment that a renewal fee must be paid not later than
27-23 September 30th before such license shall be renewed, and upon due
27-24 receipt of such fees all existing licenses shall be considered
27-25 automatically renewed. Any establishment which fails to pay its
27-26 license renewal fee by the due date is subject to a late payment
27-27 penalty equal in amount to the license renewal fee, and if the
28-1 delinquency is more than thirty (30) days, the establishment shall
28-2 not be permitted to operate as a funeral home until it has applied
28-3 for and has been granted a new license as in the case of original
28-4 applications and licenses for new funeral establishments. The
28-5 board [commission] shall set the funeral establishment license fee,
28-6 the renewal fee, and the penalty in an amount that is reasonable
28-7 and necessary for the administration of this Act.
28-8 B. No funeral establishment shall conduct funeral business
28-9 as intended under this Act unless duly licensed. The department
28-10 [commission] may refuse to issue an establishment license to an
28-11 individual, partnership, or corporation if the individual, a
28-12 partner, or an officer or director of the corporation:
28-13 (1) has been convicted of a felony, or a misdemeanor
28-14 related to the practice of embalming or funeral directing;
28-15 (2) previously held an establishment license that was
28-16 suspended or revoked;
28-17 (3) has violated this Act, a rule adopted under this
28-18 Act, or Chapter 154, Finance Code [512, Acts of the 54th
28-19 Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
28-20 Civil Statutes)];
28-21 (4) submits false information on the application for
28-22 an establishment license; or
28-23 (5) attempts to avoid a revocation, suspension, or
28-24 license refusal by subterfuge or other evasive means.
28-25 C. Each funeral establishment shall be required to have a
28-26 physical plant, equipment and personnel consisting of the
28-27 following:
29-1 1. Some facilities in which funeral services may be
29-2 conducted;
29-3 2. A physical plant which meets building standards and
29-4 fire safety standards of the state and of the municipality in which
29-5 the establishment is located;
29-6 3. Access to rolling stock consisting of at least one
29-7 motor hearse;
29-8 4. A preparation room containing facilities,
29-9 equipment, and supplies required by board [commission] rule to
29-10 ensure the provision of adequate embalming services and other
29-11 facilities necessary to comply with the sanitary code of the state
29-12 and the municipality in which the room is located;
29-13 5. A display containing sufficient merchandise to
29-14 permit reasonable selection, including five (5) or more adult
29-15 caskets, provided that the least expensive casket offered for sale
29-16 by a funeral establishment must be visibly displayed without
29-17 concealment in the same general manner as other caskets are
29-18 displayed;
29-19 6. Sufficient licensed personnel who will be available
29-20 to conduct the operation of the funeral establishment;
29-21 7. A physical plant located at a fixed place, and not
29-22 located on any tax-exempt property or cemetery; and
29-23 8. A physical plant which meets the health standards
29-24 or health ordinances of the state and of the municipality in which
29-25 the establishment is located.
29-26 It is expressly provided, however, that an establishment
29-27 which functions solely as a commercial embalmer, as that term is
30-1 defined in this Act, shall have a commercial embalmers
30-2 establishment license, but shall not be required to meet the
30-3 requirements of sub-sections 1 and 5 of this paragraph C.
30-4 D. 1. The department [commission] may, after a hearing as
30-5 provided by Section 6C of this Act, reprimand, assess an
30-6 administrative penalty, revoke, suspend, or probate the suspension
30-7 of a license, or impose any combination of these sanctions against
30-8 a licensed funeral establishment. The department [commission] may
30-9 assess an administrative penalty without a hearing if the penalty
30-10 is assessed as provided by Section 6G of this Act. Action taken by
30-11 the department [commission] under this section may only be based on
30-12 a violation of this Act or a rule adopted under this Act. The
30-13 department [commission] may refuse without a hearing to license an
30-14 establishment if an owner of the establishment has committed an act
30-15 listed in Subsection B of this section. An establishment whose
30-16 license is refused under this subsection may appeal the decision by
30-17 requesting a hearing not later than the 30th day after the date of
30-18 the refusal. The department [commission] and the establishment
30-19 whose application for license is refused may agree to the issuance
30-20 of a probationary license or the department [commission] may, after
30-21 a hearing, order that a license be issued on a probationary basis.
30-22 A violation of this Act includes the following:
30-23 (a) Failure of a funeral establishment to
30-24 substantially comply with the provisions of Subsection B or C of
30-25 this Section.
30-26 (b) Failure by any person associated with the
30-27 funeral establishment, whether as an employee, agent,
31-1 subcontractor, assignee, owner, or otherwise, and whether licensed
31-2 or unlicensed, to comply with this Act or a rule adopted under this
31-3 Act.
31-4 (c) The use of any advertising statement of a
31-5 character that misleads or deceives the public, or use of, in
31-6 connection with advertisements, the names of persons who do not
31-7 hold a license as a funeral director or embalmer and representing
31-8 them as being so licensed.
31-9 (d) Whenever a licensee, provisional licensee,
31-10 or any other person, whether an employee, agent, or representative,
31-11 or one in any manner associated with a funeral establishment shall
31-12 solicit business or offer any inducement, pecuniary or otherwise,
31-13 for the purpose of securing or attempting to secure business for
31-14 such funeral establishment, unless such solicitation is made
31-15 pursuant to a permit issued under Chapter 154, Finance Code, [512,
31-16 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
31-17 Vernon's Texas Civil Statutes)].
31-18 (e) Failure by the funeral director in charge to
31-19 provide a licensed funeral director for direction or personal
31-20 supervision of a "first call" as that term is defined in this Act.
31-21 (f) Any violation by a funeral establishment or
31-22 a person acting on behalf of a funeral establishment or any person
31-23 directly or indirectly connected with a funeral establishment of
31-24 Chapter 154, Finance Code, [512, Acts of the 54th Legislature,
31-25 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
31-26 Statutes)] or a rule adopted under that chapter [Act].
31-27 (g) Any violation by a funeral establishment or
32-1 a person acting on behalf of a funeral establishment of Chapter 193
32-2 or 361, Health and Safety Code.
32-3 2. With respect to violations of Subsection D. 1.(b),
32-4 (c), (d), (e), (f), or (g), the department [commission] may not
32-5 initiate action against a funeral establishment or in regard to the
32-6 license of a funeral establishment if the complaint is based on the
32-7 conduct of employees, agents, or representatives of such
32-8 establishment performed outside the scope and authority of their
32-9 employment or contrary to the instructions of the funeral
32-10 establishment and its management.
32-11 E. Each funeral establishment shall designate to the
32-12 department [commission] a funeral director in charge, and such
32-13 funeral director in charge shall be directly responsible for the
32-14 funeral directing and embalming business of the licensee. The
32-15 funeral director in charge is ultimately responsible for compliance
32-16 with the mortuary laws. The funeral director in charge may be
32-17 charged with a violation of this Act if a violation occurs in the
32-18 funeral establishment. Any change or changes in such designation
32-19 of funeral director shall be given to the department [commission]
32-20 promptly.
32-21 F. The board [commission] may issue such rules and
32-22 regulations as shall comply with and shall effect the intent of the
32-23 provisions of this Section.
32-24 G. (1) Any premises on which funeral directing or embalming
32-25 is practiced shall be open at all times to inspection for
32-26 violations of this Act and of Chapters 193 and 361, Health and
32-27 Safety Code, by any agent of the department [commission] or by any
33-1 duly authorized agent of the state or of the county or municipality
33-2 in which the premises are located. Each licensed funeral
33-3 establishment shall be thoroughly inspected annually by an agent of
33-4 the department [commission] or by an agent of the state or a
33-5 political subdivision thereof whom the department [commission] has
33-6 authorized to make inspections on its behalf. A report of this
33-7 annual inspection shall be filed with the department [commission].
33-8 (2) Before an agent of the department [commission]
33-9 conducts an inspection of an establishment, the agent shall review
33-10 the inspection reports on the establishment filed with the
33-11 department [commission]. During the inspection, the agent shall
33-12 determine whether previously identified problems have been
33-13 corrected and whether a pattern of violations exists. The
33-14 department [commission] shall consider the information from
33-15 inspection reports when the department [commission] determines
33-16 whether a penalty should be imposed against an establishment.
33-17 (3) When an agent inspects an establishment, the agent
33-18 shall inspect for violations under this Act and under Chapters 193
33-19 and 361, Health and Safety Code.
33-20 (4) The board [commission] by rule shall establish
33-21 procedures for the inspection of a funeral establishment required
33-22 by this subsection.
33-23 H. The department [commission] may require funeral
33-24 establishments with solid waste disposal and sanitation facilities
33-25 that have not been inspected by the department [Texas Department of
33-26 Health] to obtain inspection of those facilities by an entity other
33-27 than the department [Texas Department of Health]. The board
34-1 [commission] by rule shall establish procedures for inspections
34-2 required under this subsection.
34-3 I. (1) The department [commission], the Texas Department
34-4 [State Board] of Insurance, and the Banking Department of Texas
34-5 shall adopt a joint memorandum of understanding relating to prepaid
34-6 funeral services and transactions that:
34-7 (a) outlines the responsibilities of each agency
34-8 in regulating these services and transactions;
34-9 (b) establishes procedures to be used by each
34-10 agency in referring complaints to one of the other agencies;
34-11 (c) establishes procedures to be used by each
34-12 agency in investigating a complaint;
34-13 (d) establishes procedures to be used by each
34-14 agency in notifying the other agencies of a complaint or of the
34-15 investigation of a complaint;
34-16 (e) specifies actions the agencies regard as
34-17 deceptive trade practices;
34-18 (f) specifies the information the agencies
34-19 provide consumers and when that information is to be provided; and
34-20 (g) sets the administrative penalties each
34-21 agency imposes for violations.
34-22 (2) Not later than the last month of each state fiscal
34-23 year, the department [commission] and other agencies shall review
34-24 and update the memorandum of understanding.
34-25 (3) Each agency by rule shall adopt the memorandum of
34-26 understanding and all revisions to the memorandum.
34-27 [J. (1) The commission and the Texas Department of Health
35-1 shall adopt a joint memorandum of understanding that:]
35-2 [(a) outlines the responsibilities of each
35-3 agency in regulating funeral establishment requirements under
35-4 Chapters 193 and 361, Health and Safety Code;]
35-5 [(b) establishes procedures by which each agency
35-6 may refer complaints to the other;]
35-7 [(c) establishes procedures by which each agency
35-8 will notify the other of violations by funeral establishments under
35-9 Chapters 193 and 361, Health and Safety Code; and]
35-10 [(d) coordinates inspection and enforcement
35-11 efforts by both agencies for measures that funeral establishments
35-12 are required to implement under Chapters 193 and 361, Health and
35-13 Safety Code.]
35-14 [(2) Not later than the last month of each state
35-15 fiscal year, the commission and the Texas Department of Health
35-16 shall review and update the memorandum of understanding.]
35-17 [(3) Each agency by rule shall adopt the memorandum of
35-18 understanding and all revisions to the memorandum.]
35-19 SECTION 8. Subsection (c), Section 4A, Chapter 251, Acts of
35-20 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
35-21 Vernon's Texas Civil Statutes), is amended to read as follows:
35-22 (c) A copy of the written consent required under Subsection
35-23 (a) of this section shall be retained for a minimum of two years
35-24 by the funeral home and permanently by the school or college of
35-25 mortuary science. The records of the funeral home maintained under
35-26 this subsection shall be reasonably available for inspection by the
35-27 department [commission], the person who provided the consent, or
36-1 the next of kin of the deceased person. The records of the school
36-2 or college of mortuary science shall be reasonably available for
36-3 inspection by the department [commission].
36-4 SECTION 9. Section 5, Chapter 251, Acts of the 53rd
36-5 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
36-6 Civil Statutes), is amended to read as follows:
36-7 Sec. 5. RULES. A. The board [commission] may adopt rules
36-8 and prescribe forms necessary to administer this Act.
36-9 B. All rules adopted by the board [commission] are subject
36-10 to Chapter 2001, Government Code [the Administrative Procedure and
36-11 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
36-12 Statutes)].
36-13 SECTION 10. Section 6, Chapter 251, Acts of the 53rd
36-14 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
36-15 Civil Statutes), is amended to read as follows:
36-16 Sec. 6. PROBATION, WARNING LETTERS; REINSTATEMENT. (a) If
36-17 the department [commission] places on probation a person whose
36-18 license has been suspended, the department [commission] may impose
36-19 conditions on the probation that are reasonable and related to the
36-20 violation for which the license was suspended. If the department
36-21 [commission] orders probation, the department [commission] may
36-22 require the licensee:
36-23 (1) to report regularly to the department [commission]
36-24 on matters that are the basis of the probation;
36-25 (2) to limit practice to the areas prescribed by the
36-26 department [commission]; or
36-27 (3) to continue or renew professional education until
37-1 the licensee attains a degree of skill satisfactory to the
37-2 department [commission] in those areas that are the basis of the
37-3 probation.
37-4 (b) If the department [commission] places a licensee on
37-5 probation, the department [commission] shall notify the licensee in
37-6 writing of the probation. The department [commission] shall
37-7 furnish the licensee with written probationary orders that detail
37-8 the actions required by the department [commission] of the licensee
37-9 during the period of probation. The department [commission] shall
37-10 develop and adopt a system to monitor the actions of a licensee
37-11 during the period of probation and to determine whether the
37-12 licensee has complied with the probationary orders.
37-13 (c) When the department [commission] has conducted an
37-14 investigation that identifies a violation of this Act by a licensee
37-15 and the department [commission] does not assess an administrative
37-16 penalty, issue a reprimand, or impose any other penalty against the
37-17 licensee, the department [commission] shall issue a written warning
37-18 to the licensee. The warning shall describe the violation
37-19 identified during the investigation and shall state the date by
37-20 which the department [commission] must receive from the licensee a
37-21 written report that describes the measures implemented by the
37-22 licensee to correct the violation and the dates those measures were
37-23 implemented. If the department [commission] does not receive the
37-24 report by the required date, the department [commission] shall
37-25 assess an administrative penalty, in an amount set by the
37-26 department [commission], on the licensee for the failure to file
37-27 the report.
38-1 (d) Upon application, the department [commission] may
38-2 reissue a license to practice as a funeral director or embalmer to
38-3 a person whose license has been cancelled, suspended, or revoked
38-4 but such application may not be made prior to one (1) year after
38-5 the cancellation, suspension, or revocation, and shall be made in
38-6 such a manner and form as the department [commission] may require.
38-7 A hearing to determine whether to reissue a license shall be held
38-8 before the board [commission] unless the board [commission]
38-9 requires the hearing to be held before a hearings officer.
38-10 SECTION 11. Section 6B, Chapter 251, Acts of the 53rd
38-11 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-12 Civil Statutes), is amended to read as follows:
38-13 Sec. 6B. CERTIFICATE FOR FOREIGN STUDENTS. Any citizen of a
38-14 country other than the United States who has completed a full
38-15 course of mortuary science at a department-approved
38-16 [commission-approved] college in Texas, may upon application to the
38-17 department [commission], and after payment of the same examination
38-18 fee required of others, be given the department [commission]
38-19 examinations in either embalming, funeral directing or both, and,
38-20 upon successfully making the minimum grades required of other
38-21 applicants, may be awarded a "Certificate of Merit" by the
38-22 department [commission]. Such certificate shall in no manner
38-23 authorize a holder thereof to practice embalming and/or funeral
38-24 directing in this state unless the holder is otherwise licensed as
38-25 an embalmer and/or funeral director under the provisions of this
38-26 Act.
38-27 SECTION 12. Section 6C, Chapter 251, Acts of the 53rd
39-1 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
39-2 Civil Statutes), is amended to read as follows:
39-3 Sec. 6C. ADMINISTRATIVE PROCEDURE [AND TEXAS REGISTER] ACT.
39-4 (a) A person who is denied a license or provisional license by the
39-5 department [commission] is entitled to a hearing before the
39-6 department [commission] in accordance with Chapter 2001, Government
39-7 Code [the Administrative Procedure and Texas Register Act (Article
39-8 6252-13a, Vernon's Texas Civil Statutes)], if the person requests
39-9 the hearing in writing not later than the 30th day after the date
39-10 the notice of denial is sent.
39-11 (b) A proceeding conducted by the department [commission]
39-12 relating to the denial of a license or provisional license, the
39-13 suspension or revocation of a license, or the imposition of an
39-14 administrative penalty, other than an administrative penalty
39-15 assessed without a hearing as provided by Section 6G of this Act,
39-16 is governed by Chapter 2001, Government Code [the Administrative
39-17 Procedure and Texas Register Act, as amended (Article 6252-13a,
39-18 Vernon's Texas Civil Statutes)]. Judicial review of the proceeding
39-19 is subject to the substantial evidence rule and is governed by
39-20 Chapter 2001, Government Code [the Administrative Procedure and
39-21 Texas Register Act].
39-22 (c)(1) A proceeding brought under Subsection (b) of this
39-23 section may be held before a hearings officer. The commissioner
39-24 [executive director] shall set a time and place for the hearing.
39-25 (2) The hearings officer must be an attorney licensed
39-26 in this state. In the course of a proceeding the hearings officer
39-27 may:
40-1 (A) administer oaths;
40-2 (B) take testimony;
40-3 (C) rule on questions of evidence;
40-4 (D) make determinations of fact; or
40-5 (E) order compliance with proper discovery
40-6 requests.
40-7 (3) The department [commission] shall provide the
40-8 hearings officer with a written statement of all board [commission]
40-9 rules or policies that govern the proceeding.
40-10 (4) At the conclusion of the proceeding the hearings
40-11 officer shall make a ruling on the matter accompanied by written
40-12 findings of facts and conclusions of law.
40-13 (5) The board [commission] shall review the findings
40-14 of fact, conclusions of law, and ruling of the hearings officer
40-15 before making its final ruling in the proceeding. The board
40-16 [commission] may also review a transcript of the proceeding before
40-17 making its final ruling. The board [commission] shall adopt the
40-18 ruling of the hearings officer as its ruling unless it finds good
40-19 cause to issue a different ruling. The board [commission] shall
40-20 explain in writing the reasons for adopting a ruling other than the
40-21 one issued by the hearings officer.
40-22 (d) The department [commission] shall inform each interested
40-23 person, including a person filing the complaint, of the right to
40-24 obtain at that person's cost a tape or transcript of a hearing or
40-25 proceeding under this section.
40-26 SECTION 13. Subsections (a)-(f), Section 6D, Chapter 251,
40-27 Acts of the 53rd Legislature, Regular Session, 1953 (Article 4582b,
41-1 Vernon's Texas Civil Statutes), are amended to read as follows:
41-2 (a) The department [commission] shall investigate each
41-3 complaint received by the department [commission] relating to a
41-4 funeral director, embalmer, apprentice, or funeral establishment.
41-5 The department [commission] shall keep an information file about
41-6 each complaint filed with the department [commission] that the
41-7 department [commission] has authority to resolve.
41-8 (b) The department [commission] shall include in each
41-9 information file a description of the complaint, the date on which
41-10 the complaint was filed, the name of the complainant, a description
41-11 of any information obtained by the department [commission] after
41-12 investigating the complaint, a description and date of any formal
41-13 actions taken by the department [commission] relating to the
41-14 complaint, a description of the current status of the complaint,
41-15 and other information that the department [commission] considers
41-16 appropriate.
41-17 (c) If a written complaint is filed with the department
41-18 [commission] that the department [commission] has authority to
41-19 resolve, the department [commission], at least quarterly until
41-20 final disposition of the complaint and on final disposition of the
41-21 complaint, shall notify the parties to the complaint of the status
41-22 of the complaint unless the notice would jeopardize an undercover
41-23 investigation.
41-24 (d) The information file, except for information in the file
41-25 obtained by the department [commission] after investigating the
41-26 complaint, is public information. The information obtained after
41-27 investigating the complaint is not public information.
42-1 (e) If a person files a complaint with the department
42-2 [commission] relating to a licensed funeral director, embalmer,
42-3 provisional licensee, or funeral establishment, the department
42-4 [commission] shall furnish to the person an explanation of the
42-5 remedies that are available to the person under this Act and
42-6 information about appropriate state or local agencies or officials
42-7 with which the person may file a complaint.
42-8 (f) The department [commission] shall employ or contract for
42-9 the services of one or more persons to investigate complaints of
42-10 consumer interest and other complaints received by the department
42-11 [commission]. A person who is subject to regulation under this Act
42-12 may not serve as an investigator. To serve in this position in a
42-13 contractual capacity, a person must be licensed as a private
42-14 investigator under state law. To serve in this position as an
42-15 employee of the department [commission], a person must:
42-16 (1) hold a current license as a private investigator
42-17 in this state;
42-18 (2) have been previously licensed under state or
42-19 federal law as a private investigator; or
42-20 (3) have been previously employed by a local, state,
42-21 or federal law enforcement agency as an investigator.
42-22 SECTION 14. Section 6E, Chapter 251, Acts of the 53rd
42-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
42-24 Civil Statutes), is amended to read as follows:
42-25 Sec. 6E. PUBLIC INFORMATION. (a) The department
42-26 [commission] shall prepare a brochure with information of public
42-27 interest explaining matters relating to funerals, describing the
43-1 functions of the department [commission], and describing the
43-2 department's [commission's] procedures by which public complaints
43-3 are filed with and resolved by the department [commission]. The
43-4 department [commission] shall provide each licensed funeral
43-5 establishment with the number of brochures the department
43-6 [commission] considers appropriate.
43-7 (b) The department [commission] shall make the brochure
43-8 available to the public and appropriate state agencies.
43-9 (c) [(b)] A licensed funeral director or an agent of the
43-10 funeral establishment shall provide each prospective customer with
43-11 a copy of the brochure when funeral services are discussed. A
43-12 funeral establishment shall print copies of the brochure if the
43-13 department [commission] is unable to provide the funeral
43-14 establishment with the number of brochures needed by the funeral
43-15 establishment.
43-16 (d) [(c)] The board [commission] by rule shall establish
43-17 methods by which consumers and service recipients are notified of
43-18 the name, mailing address, and telephone number of the department
43-19 [commission] for the purpose of directing complaints to the
43-20 department [commission]. The department [commission] may provide
43-21 for that notification:
43-22 (1) on each registration form, application, or written
43-23 contract for services of an individual or entity regulated under
43-24 this Act;
43-25 (2) on a sign prominently displayed in the place of
43-26 business of each individual or entity regulated under this Act; or
43-27 (3) in a bill for service provided by an individual or
44-1 entity regulated under this Act.
44-2 SECTION 15. Section 6F, Chapter 251, Acts of the 53rd
44-3 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
44-4 Civil Statutes), is amended to read as follows:
44-5 Sec. 6F. EX PARTE COMMUNICATIONS. The board [commissioners]
44-6 and the employees of the department [commission] are subject to the
44-7 provisions of Chapter 2001, Government Code [the Administrative
44-8 Procedure and Texas Register Act, as amended (Article 6252-13a,
44-9 Vernon's Texas Civil Statutes)], relating to ex parte
44-10 communications.
44-11 SECTION 16. Subsections (a)-(g), Section 6G, Chapter 251,
44-12 Acts of the 53rd Legislature, Regular Session, 1953 (Article 4582b,
44-13 Vernon's Texas Civil Statutes), are amended to read as follows:
44-14 (a) If the department [commission] determines that a person
44-15 or establishment regulated under this Act has violated this Act or
44-16 a rule adopted under this Act, the department [commission] may
44-17 assess an administrative penalty against that person or
44-18 establishment as a result of a hearing conducted in the manner
44-19 provided by Section 6C of this Act or as provided by this section.
44-20 If an administrative penalty is assessed after a hearing conducted
44-21 under Section 6C of this Act, the department [commission] shall
44-22 follow the procedures described in Subsections (e) through (h) of
44-23 this section.
44-24 (b) The department [commission] may assess the
44-25 administrative penalty in an amount not less than One Hundred
44-26 Dollars ($100) or more than Five Thousand Dollars ($5,000) for each
44-27 act of violation. In determining the amount of the penalty, the
45-1 department [commission] shall employ guidelines established by
45-2 board [commission] rule.
45-3 (c) If, after examination of a possible violation and the
45-4 facts relating to that possible violation, the department
45-5 [commission] concludes that a violation has occurred, the
45-6 department [commission] shall issue a preliminary report that
45-7 states the facts on which the conclusion is based, the fact that an
45-8 administrative penalty is to be imposed, and the amount to be
45-9 assessed. Not later than the tenth (10th) day after the day on
45-10 which the department [commission] issues the preliminary report,
45-11 the department [commission] shall send a copy of the report to the
45-12 person or establishment charged with the violation, together with a
45-13 statement of the right of the person or establishment to a hearing
45-14 relating to the alleged violation and the amount of the penalty.
45-15 (d) Not later than the thirtieth (30th) day after the date
45-16 on which the preliminary report is sent, the person or
45-17 establishment charged either may make a written request for a
45-18 hearing or may remit the amount of the administrative penalty to
45-19 the department [commission]. Failure either to request a hearing
45-20 or to remit the amount of the penalty within the time provided by
45-21 this subsection results in a waiver of a right to a hearing under
45-22 this Act. Unless a hearing is requested, the penalty is due on the
45-23 thirtieth (30th) day after the date the preliminary report is sent.
45-24 Failure to pay the penalty by that date automatically suspends the
45-25 affected license for six (6) months. If the person or
45-26 establishment charged requests a hearing, the hearing shall be
45-27 conducted in the manner provided by Section 6C of this Act.
46-1 (e)(1) If an administrative penalty is assessed after a
46-2 hearing conducted under Section 6C of this Act, not later than the
46-3 thirtieth (30th) day after the date on which the order is sent or a
46-4 motion for rehearing is denied, the person or establishment charged
46-5 shall pay the administrative penalty in full, or, if the person or
46-6 establishment wishes to contest either the amount of the penalty or
46-7 the fact of the violation, the person or establishment shall not
46-8 later than the thirtieth (30th) day after the date on which the
46-9 order is sent or a motion for rehearing is denied:
46-10 (A) remit the assessed amount to the department
46-11 [commission] for deposit in an escrow account; or
46-12 (B) post a supersedeas bond in a form approved
46-13 by the department [commission] for the amount of the penalty.
46-14 (2) If, after judicial review, it is determined that
46-15 no violation occurred or that the amount of the penalty should be
46-16 reduced, the department [commission] shall remit the appropriate
46-17 amount to the person or establishment charged with the violation
46-18 not later than the thirtieth (30th) day after the date on which the
46-19 judicial determination becomes final.
46-20 (f) Failure to remit the amount of the administrative
46-21 penalty to or post bond with the department [commission] within the
46-22 time provided by this Act results in a waiver of all legal rights
46-23 to contest the violation or the amount of the penalty. If the
46-24 person or establishment fails to remit the amount of the
46-25 administrative penalty to or post bond with the department
46-26 [commission] within that time, or within a longer period with the
46-27 consent of the department [commission], the license of that person
47-1 or establishment is suspended for six (6) months. After notice and
47-2 a hearing, the department [commission] may extend the license
47-3 suspension for a longer period or may revoke or cancel the license
47-4 for failure to remit the penalty or post bond.
47-5 (g) An administrative penalty owed under this Act shall be
47-6 recovered in a civil action brought by the Attorney General at the
47-7 request of the department [commission].
47-8 SECTION 17. Section 6H, Chapter 251, Acts of the 53rd
47-9 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
47-10 Civil Statutes), is amended to read as follows:
47-11 Sec. 6H. REPRIMAND. (a) If the department [commission]
47-12 determines that a person or establishment regulated under this Act
47-13 has violated this Act or a rule adopted under this Act, the
47-14 department [commission] may issue a reprimand against that person
47-15 or establishment. The department [commission] may issue the
47-16 reprimand without any other sanction or in conjunction with the
47-17 assessment of an administrative penalty or the revocation,
47-18 suspension, or probation of the license. The department
47-19 [commission] may issue a letter of reprimand after a hearing
47-20 conducted in the manner provided by Section 6C of this Act or as
47-21 provided by this section.
47-22 (b) If, after examination of a possible violation and the
47-23 facts relating to that possible violation, the department
47-24 [commission] concludes that a violation has occurred, the
47-25 department [commission] may issue a preliminary report that states
47-26 the facts on which the conclusion is based and that a reprimand is
47-27 to be issued. If the reprimand is to be issued in addition to the
48-1 assessment of an administrative penalty under Section 6G of this
48-2 Act, the preliminary reports may be combined. Not later than the
48-3 tenth (10th) day after the day on which the department [commission]
48-4 issues the preliminary report, the department [commission] shall
48-5 send a copy of the report to the person or establishment charged
48-6 with the violation, together with a statement of the right of the
48-7 person or establishment to a hearing relating to the alleged
48-8 violations.
48-9 (c) Not later than the thirtieth (30th) day after the date
48-10 on which the preliminary report is sent, the person or
48-11 establishment charged may make a written request for a hearing.
48-12 Failure to request a hearing within the time provided by this
48-13 subsection results in a waiver of a right to a hearing under this
48-14 Act and the reprimand shall be issued by the department
48-15 [commission] and placed in the permanent files of the department
48-16 [commission]. If the person or establishment charged requests a
48-17 hearing, the hearing shall be conducted in the manner provided by
48-18 Section 6C of this Act. If it is determined after hearing that the
48-19 person or establishment has committed the alleged violation, the
48-20 department [commission] is not limited to the issuance of a
48-21 reprimand but may also take any action allowed under this Act.
48-22 SECTION 18. Section 6I, Chapter 251, Acts of the 53rd
48-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
48-24 Civil Statutes), is amended to read as follows:
48-25 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The department
48-26 [commission] or a hearings officer shall review each disciplinary
48-27 proceeding to determine whether the licensee has committed the same
49-1 type of violation on one or more previous occasions. If it is
49-2 determined that the licensee has previously committed the same type
49-3 of violation, the department [commission] or hearings officer shall
49-4 impose a disciplinary action that is more severe than that imposed
49-5 on the previous occasion.
49-6 (b) In a disciplinary proceeding involving multiple
49-7 violations of this Act, the department [commission] or the hearings
49-8 officer shall impose a disciplinary action that is more severe than
49-9 the disciplinary action that would be imposed cumulatively for each
49-10 of the individual violations.
49-11 SECTION 19. Subsection (b), Section 7, Chapter 251, Acts of
49-12 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
49-13 Vernon's Texas Civil Statutes), is amended to read as follows:
49-14 (b) The department [commission] may file a complaint with
49-15 the appropriate governmental authorities to begin prosecution of a
49-16 person who commits an offense under Section 6A of this Act. The
49-17 department [commission] or any adversely affected party may sue a
49-18 funeral establishment or embalmer or funeral director who fails to
49-19 comply with this Act or a rule adopted under this Act for
49-20 appropriate injunctive relief. This Act does not affect a remedy
49-21 or enforcement power under other laws.
49-22 SECTION 20. Section 9, Chapter 251, Acts of the 53rd
49-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
49-24 Civil Statutes), is amended to read as follows:
49-25 Sec. 9. CONSTRUCTION WITH OTHER LAW. This Act does not
49-26 limit or replace the authority of the Banking Department of Texas
49-27 to regulate and enforce Chapter 154, Finance Code [512, Acts of the
50-1 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
50-2 Texas Civil Statutes)]. The authority of the department
50-3 [commission] as to Chapter 154, Finance Code, [512, Acts of the
50-4 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
50-5 Texas Civil Statutes), and its subsequent amendments] is limited to
50-6 the imposition of an administrative penalty, issuance of a
50-7 reprimand, or suspension, revocation, or probation of a license
50-8 issued by the department [commission].
50-9 SECTION 21. Sections 2 and 2A, Chapter 251, Acts of the 53rd
50-10 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
50-11 Civil Statutes), are repealed.
50-12 SECTION 22. (a) This Act takes effect September 1, 1999.
50-13 (b) The Funeral Services Commission is abolished and its
50-14 powers and duties are transferred to the Texas Department of Health
50-15 on the effective date of this Act. The terms of office of the
50-16 members of the Funeral Services Commission expire on the effective
50-17 date of this Act.
50-18 (c) A reference in law to the Funeral Services Commission
50-19 means the Texas Department of Health or the Texas Board of Health,
50-20 as applicable. A reference in law to the executive director of the
50-21 Funeral Services Commission means the commissioner of public
50-22 health.
50-23 (d) The Texas Department of Health has all the powers and
50-24 duties of the abolished commission provided by law. The Texas
50-25 Department of Health has all the property, funds, rules, unspent
50-26 appropriations, documents, rights, and obligations of the abolished
50-27 commission except to the extent the laws governing the commission's
51-1 powers and duties are amended by this Act. On the effective date of
51-2 this Act, the Texas Department of Health shall employ at least
51-3 seven full-time employees who were employed by the Funeral Services
51-4 Commission on the day immediately before the effective date of this
51-5 Act. At least five of those employees must have experience in
51-6 licensing programs and investigations operated by the Funeral
51-7 Services Commission before the effective date of this Act.
51-8 (e) The rules, policies, procedures, and decisions of the
51-9 abolished commission are continued in effect as rules, policies,
51-10 procedures, and decisions of the Texas Board of Health until
51-11 superseded by a rule or other appropriate action of the Texas Board
51-12 of Health.
51-13 (f) The validity of a rule, form, or procedure adopted,
51-14 contract or acquisition made, proceeding begun, obligation
51-15 incurred, right accrued, or other action taken by or in connection
51-16 with the authority of the Funeral Services Commission before it is
51-17 abolished under Subsection (b) of this section is not affected by
51-18 this Act. To the extent those actions continue to have any effect
51-19 on or after September 1, 1999, they are considered to be the
51-20 actions of the Texas Department of Health.
51-21 (g) The members of the funeral services advisory committee
51-22 created under Section 2B, Chapter 251, Acts of the 53rd
51-23 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
51-24 Civil Statutes), as added by this Act, shall be appointed not later
51-25 than December 31, 1999.
51-26 SECTION 23. The importance of this legislation and the
51-27 crowded condition of the calendars in both houses create an
52-1 emergency and an imperative public necessity that the
52-2 constitutional rule requiring bills to be read on three several
52-3 days in each house be suspended, and this rule is hereby suspended.