By Pitts H.B. No. 2756
76R7502 MXM-D
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 Board of
1-4 Health; establishing an advisory committee to the Texas Department
1-5 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 five 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, three of whom must hold licenses under this Act, only
3-12 one of whom may be an owner of a funeral establishment, and two of
3-13 whom must be public members.
3-14 (c) A member of the advisory committee serves a three-year
3-15 term. A member of the advisory committee is not entitled to
3-16 compensation, but is entitled to reimbursement for actual and
3-17 necessary expenses incurred in performing duties as an advisory
3-18 committee member, subject to any applicable limitation on
3-19 reimbursement provided by the General Appropriations Act.
3-20 (d) The advisory committee shall elect a presiding officer
3-21 from its members. The advisory committee shall meet at the call of
3-22 the presiding officer, but at least three times each year.
3-23 (e) The advisory committee shall make recommendations to the
3-24 board regarding the licensing and regulation of funeral directors,
3-25 embalmers, funeral establishments, and other persons engaged in
3-26 business in this state in the funeral industry.
3-27 (f) The advisory committee is not subject to Chapter 2110,
4-1 Government Code.
4-2 SECTION 3. Subsection A, Section 3, Chapter 251, Acts of the
4-3 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-4 Texas Civil Statutes), is amended to read as follows:
4-5 A. The board [commission] is hereby authorized and empowered
4-6 and it shall be its duty to prescribe and maintain a standard of
4-7 proficiency, professionalism, and qualifications of those engaged
4-8 or who may engage in the practice of a funeral director or embalmer
4-9 and to determine the qualifications necessary to enable any person
4-10 to lawfully practice as a funeral director, to embalm dead human
4-11 bodies, and to collect the fees therefor. The department
4-12 [commission] shall examine all applicants for funeral directors'
4-13 and embalmers' licenses and for provisional licenses and shall
4-14 issue the proper license to all persons qualified and who meet the
4-15 requirements herein prescribed.
4-16 SECTION 4. Subdivisions (2) and (3), Subsection B, Section
4-17 3, Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
4-18 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
4-19 as follows:
4-20 (2) The department [commission] shall administer or
4-21 arrange for the administration of:
4-22 (a) a written professionally prepared
4-23 examination on the subjects of:
4-24 (i) the art and technique of funeral
4-25 directing;
4-26 (ii) the signs of death;
4-27 (iii) the manner by which death may be
5-1 determined;
5-2 (iv) sanitation;
5-3 (v) hygiene;
5-4 (vi) mortuary management and mortuary law;
5-5 (vii) business and professional ethics;
5-6 and
5-7 (viii) other subjects that may be taught
5-8 in a recognized school or college of mortuary science; and
5-9 (b) a written examination developed by the
5-10 department [commission] or developed for the department
5-11 [commission] by contract on:
5-12 (i) laws applicable to vital statistics
5-13 pertaining to dead human bodies; and
5-14 (ii) local and state rules and laws
5-15 relating to the preparation, transportation, care, and disposition
5-16 of dead human bodies.
5-17 (3) Not later than the 30th day after the date on
5-18 which a funeral director licensing examination is administered
5-19 under this Act, the department [commission] shall notify each
5-20 examinee of the results of the examination. However, if an
5-21 examination is graded or reviewed by a national testing service,
5-22 the department [commission] shall notify examinees of the results
5-23 of the examination not later than the 14th day after the date on
5-24 which the department [commission] receives the results from the
5-25 testing service. If the notice of examination results graded or
5-26 reviewed by a national testing service will be delayed for longer
5-27 than 90 days after the examination date, the department
6-1 [commission] shall notify the examinee of the reason for the delay
6-2 before the 90th day. If requested in writing by a person who fails
6-3 a licensing examination administered under this Act, the department
6-4 [commission] shall furnish the person with an analysis of the
6-5 person's performance on the examination.
6-6 SECTION 5. Subdivisions (2) and (3), Subsection C, Section
6-7 3, Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
6-8 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
6-9 as follows:
6-10 (2) The department [commission] shall administer or
6-11 arrange for the administration of:
6-12 (a) a written professionally prepared
6-13 examination on the subjects of:
6-14 (i) the anatomy of the human body;
6-15 (ii) the cavities of the human body;
6-16 (iii) the arterial and venous system of
6-17 the human body;
6-18 (iv) blood and discoloration;
6-19 (v) bacteriology and hygiene;
6-20 (vi) pathology;
6-21 (vii) chemistry and embalming;
6-22 (viii) arterial and cavity embalming;
6-23 (ix) restorative art;
6-24 (x) disinfecting;
6-25 (xi) embalming special cases;
6-26 (xii) contagious and infectious diseases;
6-27 (xiii) mortuary management;
7-1 (xiv) care, preservation, transportation,
7-2 and disposition of dead human bodies;
7-3 (xv) sanitary science; and
7-4 (xvi) other subjects as may be taught in a
7-5 recognized school or college of mortuary science; and
7-6 (b) a written examination developed by the
7-7 department [commission] or developed for the department
7-8 [commission] by contract on:
7-9 (i) laws applicable to vital statistics
7-10 pertaining to dead human bodies; and
7-11 (ii) local and state rules and laws
7-12 relating to the care and disposition of dead human bodies.
7-13 (3) Not later than the 30th day after the date on
7-14 which an embalmer licensing examination is administered under this
7-15 Act, the department [commission] shall notify each examinee of the
7-16 results of the examination. However, if an examination is graded
7-17 or reviewed by a national testing service, the department
7-18 [commission] shall notify examinees of the results of the
7-19 examination not later than the 14th day after the date on which the
7-20 department [commission] receives the results from the testing
7-21 service. If the notice of examination results graded or reviewed
7-22 by a national testing service will be delayed for longer than 90
7-23 days after the examination date, the department [commission] shall
7-24 notify the examinee of the reason for the delay before the 90th
7-25 day. If requested in writing by a person who fails a licensing
7-26 examination administered under this Act, the department
7-27 [commission] shall furnish the person with an analysis of the
8-1 person's performance on the examination.
8-2 SECTION 6. Subsections D, E, F, H, I, and J, Section 3,
8-3 Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953
8-4 (Article 4582b, Vernon's Texas Civil Statutes), are amended to read
8-5 as follows:
8-6 D. It shall be the duty of the department [commission] to
8-7 prescribe and supervise the course of instruction received by a
8-8 provisional licensee while participating in a provisional license
8-9 program, consistent with the following requirements:
8-10 1. Provisional license for embalmer: A license to
8-11 practice the science of embalming shall not be issued unless and
8-12 until the applicant therefor has served a provisional license
8-13 program of not less than twelve (12) consecutive months under the
8-14 personal supervision and instruction of a licensed embalmer and has
8-15 successfully completed all requirements of the program. The only
8-16 exception to this requirement shall be in the case of an applicant
8-17 under reciprocity.
8-18 (a) Any person, eighteen (18) years of age or
8-19 more, who desires to practice the science of embalming in this
8-20 state, files application therefor, meets the requirements of the
8-21 law and the department [this commission], and possesses such
8-22 qualification to enter into the provisional license program, may be
8-23 registered as a provisional licensee. A provisional license
8-24 program for embalming must be served by the person after graduation
8-25 from a school or college of mortuary science. An applicant shall
8-26 pay a license fee at the time he requests to enter the program.
8-27 (a-1) An applicant for a license to practice
9-1 embalming must make a grade of 75 percent or higher on the written
9-2 examination used by the department [commission]. [The commission
9-3 may require an applicant to appear before at least one member of
9-4 the commission for approval of the person's application. The
9-5 approval is subject to review by the entire commission.] An
9-6 applicant who has not entered the provisional license program
9-7 before the second anniversary of the date the applicant took the
9-8 examination must pass the examination again before receiving a
9-9 provisional license.
9-10 (b) Each provisional embalmer shall be issued a
9-11 provisional license by the department [commission] for a
9-12 provisional license program to be served in the State of Texas.
9-13 During the course of the program, a provisional licensee shall work
9-14 on a minimum of sixty (60) cases. No more than two (2) provisional
9-15 licensees may receive credit for work on any one body. The board
9-16 [commission] by rule shall define the standards for a case and
9-17 shall establish the minimum number of complete cases a provisional
9-18 licensee is required to execute during the provisional license
9-19 program. The standards required for a complete case shall include
9-20 all the duties and activities necessary for embalming. The board
9-21 [commission] by rule also shall establish guidelines for
9-22 provisional licensee supervision under which a provisional licensee
9-23 is granted increased responsibilities during the course of the
9-24 program.
9-25 (c) A provisional embalmer must report to the
9-26 department [commission] within ten (10) days after the end of each
9-27 month each case handled by the provisional embalmer or with which
10-1 the provisional embalmer assisted in handling during that month.
10-2 Each such report shall be certified by the licensee under whose
10-3 personal supervision the provisional embalmer performed the work.
10-4 For any month in which the provisional embalmer did not embalm at
10-5 least one (1) case under the personal supervision of a licensed
10-6 embalmer, a report shall be made to the department [commission]
10-7 notwithstanding.
10-8 (d) The board [commission] shall set the license
10-9 and examination fees in an amount that is reasonable and necessary
10-10 for the administration of the program.
10-11 2. Provisional License for Funeral Director: The term
10-12 of the provisional license program for a funeral director's license
10-13 shall be a period of not less than twelve (12) months, and may be
10-14 served concurrently with the provisional license program for an
10-15 embalmer's license; however, the provisional license program must
10-16 be served in twelve (12) consecutive months. A person desiring to
10-17 become a provisional funeral director shall make application to the
10-18 department [commission] on a form provided by the department
10-19 [commission]. An applicant must be not less than eighteen (18)
10-20 years of age and have completed the educational requirements
10-21 prescribed for a funeral director. The application for
10-22 registration shall be sworn to and accompanied by a fee. If the
10-23 application is accepted, an applicant will be issued a provisional
10-24 license upon determination by the department [commission] that his
10-25 qualifications are satisfactory.
10-26 (a) An applicant for a funeral director's
10-27 license and the examination therefor shall be admitted to the
11-1 provisional license program only if the applicant applies for and
11-2 takes the written examination given by the department [commission],
11-3 and pays the license fee, whereupon he may be licensed as a
11-4 provisional funeral director if the applicant otherwise meets the
11-5 requirements of this Act. An applicant who has not been licensed
11-6 as a provisional funeral director before the second anniversary of
11-7 the date the applicant took the examination must pass the
11-8 examination again before being licensed as a provisional funeral
11-9 director.
11-10 (b) A provisional funeral director must report
11-11 to the department [commission] within ten (10) days after the end
11-12 of each month each case that the provisional funeral director
11-13 assisted in handling during that month. Each report shall be
11-14 certified to by the licensee under whom the provisional funeral
11-15 director performed the work. For any month within which the
11-16 provisional funeral director did not assist a licensed funeral
11-17 director in handling a funeral, a report shall be made to the
11-18 department [commission] notwithstanding.
11-19 (c) The provisional license program shall
11-20 include assisting a licensed funeral director in this state with a
11-21 minimum of sixty (60) cases. No more than two (2) provisional
11-22 licensees may receive credit for work done on any one body. The
11-23 board [commission] by rule shall define the standards for a case
11-24 and shall set the number of complete cases a provisional licensee
11-25 is required to execute during the program. The standards required
11-26 for a complete case shall include all the activities necessary from
11-27 the time the body is obtained until final disposition. The board
12-1 [commission] by rule also shall establish guidelines for
12-2 provisional licensee supervision under which a provisional licensee
12-3 is granted increased responsibilities during the course of the
12-4 provisional license program.
12-5 (d) The board [commission] shall set the license
12-6 and examination fees in an amount that is reasonable and necessary
12-7 for the administration of the program.
12-8 (e) An applicant for a funeral director license
12-9 may not be considered for licensure until the applicant completes
12-10 all of the requirements of the provisional license program and
12-11 attains a grade of 75 percent or higher on the written examination
12-12 given by the department [commission]. [The commission may require
12-13 an applicant to appear before at least one member of the commission
12-14 for approval of the person's application. The approval is subject
12-15 to review by the entire commission.]
12-16 3. Annual renewal of provisional license: Each
12-17 provisional license issued by the department [commission] to a
12-18 provisional embalmer or funeral director must be renewed on the
12-19 first day of January of each year and will be renewed upon payment
12-20 by the provisional licensee of a renewal fee, provided the
12-21 provisional licensee has observed the rules and regulations of the
12-22 board [commission]. Notice shall be mailed, during the month of
12-23 December each year, to each provisional licensee at his last known
12-24 address, notifying him that the renewal fee is due. If a
12-25 provisional licensee fails to pay the annual renewal fee by the due
12-26 date, the department [commission] shall impose a late payment
12-27 penalty equal in amount to the license renewal fee and shall
13-1 suspend the license for nonpayment and notify the provisional
13-2 licensee of such suspension. If the said renewal fee and penalty
13-3 are not then paid within ninety (90) days from the date of such
13-4 notice of suspension, the department [commission] shall then cancel
13-5 the license. Provided, however, after the license has been
13-6 cancelled, the provisional licensee may apply for reinstatement
13-7 within eighteen (18) months from the date the license was cancelled
13-8 and the department [commission] may reinstate the provisional
13-9 licensee provided all other requirements of the department
13-10 [commission] are met and the license fee and a late payment penalty
13-11 equal in amount to the license fee for the period of the
13-12 cancellation are paid. A provisional license may not be renewed
13-13 for more than two (2) years from the date of its issuance unless
13-14 the person requests and receives an extension based on hardship
13-15 from the department [commission]. It is provided that the
13-16 registration fee of any provisional licensee who is actively
13-17 engaged in the military service of the United States may be
13-18 remitted for the duration of such service or for such fees and such
13-19 time as the department [commission] may deem advisable upon
13-20 presentation of proper evidence required by the department
13-21 [commission]. The board [commission] shall set the renewal fee
13-22 and the penalty in an amount that is reasonable and necessary for
13-23 the administration of this Act. A provisional license that has
13-24 been cancelled or suspended or has lapsed for a period of five (5)
13-25 years or more may be reinstated only if the applicant takes and
13-26 passes the applicable examinations under Subdivision 1 or 2 of this
13-27 subsection. The board [commission] may adopt rules relating to the
14-1 reinstatement of provisional licenses under this subdivision.
14-2 4. Notification of the department [commission] upon
14-3 entry into the provisional license program: When a provisional
14-4 licensee enters the employ of a licensed embalmer or funeral
14-5 director, the provisional licensee shall immediately notify the
14-6 department [commission] of the name and place of business of the
14-7 licensed embalmer or funeral director under whom the provisional
14-8 licensee will train, and such notification shall be signed by the
14-9 embalmer or funeral director in each case. If at any time
14-10 thereafter the provisional licensee leaves the employ of the
14-11 licensed embalmer or funeral director, the licensed embalmer or
14-12 funeral director shall give the provisional licensee an affidavit
14-13 showing the length of time the provisional licensee has served and
14-14 the number of cases handled while so employed; the original of
14-15 said affidavit shall be filed with the department [commission] and
14-16 made a matter of record, and a copy shall be furnished to the
14-17 provisional licensee. The department [commission] shall furnish
14-18 report forms to be used by each provisional licensee.
14-19 5. A provisional licensee is subject to the same
14-20 disciplinary actions as a holder of a funeral director or embalmer
14-21 license for a violation of this Act or a rule adopted under this
14-22 Act.
14-23 E. Any person engaged or desiring to engage in the practice
14-24 of embalming or funeral directing in this state, in connection with
14-25 the care and disposition of dead human bodies, shall make written
14-26 application to the department [commission] for a license
14-27 accompanying same with an application fee. The license or licenses
15-1 when issued [shall be signed by a majority of the commission and]
15-2 shall authorize the licensee to practice the science of embalming
15-3 and/or funeral directing. All licenses shall be displayed
15-4 conspicuously in each place of business at which the licensee
15-5 practices funeral directing or embalming. A person may renew an
15-6 unexpired license by paying to the department [commission] before
15-7 the expiration date of the license the required renewal fee. If a
15-8 person's license has been expired for ninety (90) days or less, the
15-9 person may renew the license by paying to the department
15-10 [commission] the required renewal fee and a penalty fee that is
15-11 one-half of the renewal fee for the license. If a person's license
15-12 has been expired for longer than ninety (90) days but less than
15-13 five (5) years, the person may renew the license by paying to the
15-14 department [commission] all unpaid renewal fees and a penalty fee
15-15 that is equal to one-half of the total of the unpaid renewal fees.
15-16 If a person's license has been expired for five (5) years or
15-17 longer, the person may not renew the license. The person may
15-18 obtain a new license by submitting to reexamination and complying
15-19 with the requirements and procedures for obtaining an original
15-20 license. However, the department [commission] may renew without
15-21 reexamination an expired license of a person who was licensed in
15-22 this state, moved to another state, and is currently licensed and
15-23 has been in practice in the other state for the two (2) years
15-24 preceding application. The person must pay to the department
15-25 [commission] a fee that is equal to the renewal fee for the
15-26 license. At least thirty (30) days before the expiration of a
15-27 person's license, the department [commission] shall send written
16-1 notice of the impending license expiration to the person at the
16-2 person's last known address according to the records of the
16-3 department [commission]. The board [commission] may by rule
16-4 require continuing education as a condition for license renewal
16-5 except for persons described in Subdivisions 4 and 5 of this
16-6 subsection. If any license issued under this Act is lost or
16-7 destroyed, the holder of any such license may present his
16-8 application for duplicate license to the department [commission],
16-9 on a form to be prescribed by the department [commission], together
16-10 with his affidavit of such loss or destruction, and that he is the
16-11 same person to whom such license was issued, and such other
16-12 information concerning its loss or destruction as the department
16-13 [commission] shall require, and shall, upon payment of a duplicate
16-14 license fee, as determined by the board [commission], be granted a
16-15 duplicate license.
16-16 1. Any license that has been cancelled or suspended
16-17 for a period of five (5) years or more may be reinstated only after
16-18 the applicant shall have passed a written examination as described
16-19 by Subdivision (2), Subsection C, Section 3 of this Act on
16-20 embalming and/or a written examination, as described by Subdivision
16-21 (2), Subsection B, Section 3 of this Act, on funeral directing.
16-22 2. The board [commission] by rule may adopt a system
16-23 under which licenses expire on various dates during the year. All
16-24 dates for sending notice regarding payment of fees and dates for
16-25 license suspension for nonpayment shall be adjusted accordingly.
16-26 For the year in which the license expiration date is changed,
16-27 license fees payable shall be prorated on a monthly basis so that
17-1 each licensee shall pay only that portion of the license fee which
17-2 is allocable to the number of months during which the license is
17-3 valid. On renewal of the license on the new expiration date, the
17-4 total license renewal fee is payable.
17-5 3. The board [commission] shall set the application
17-6 fee, license fee, registration fee, and duplicate license fee in an
17-7 amount that is reasonable and necessary for the administration of
17-8 this Act.
17-9 4. On presentation to the department [commission] of
17-10 evidence as prescribed by the department [commission], a licensee
17-11 who is actively engaged in the military service of the United
17-12 States is exempted from the payment of registration fees for the
17-13 duration of the military service or from the amount of fees and for
17-14 the time as the department [commission] considers advisable. The
17-15 department [commission] may not consider the period of military
17-16 service in determining whether or not a license has been cancelled,
17-17 suspended, or lapsed under this subsection.
17-18 5. A licensee who is at least 65 years of age or has a
17-19 disability of 75 percent or greater at the time the application for
17-20 renewal is submitted may apply for renewal of the license in the
17-21 category of retired, inactive status or retired, active status. On
17-22 application, the department [commission] may renew the license of a
17-23 retired licensee who does not provide funeral or embalming services
17-24 in the category of retired, inactive status. The board
17-25 [commission] may not charge a fee for the renewal of a license for
17-26 retired, inactive status. On application, the department
17-27 [commission] may renew the license of a retired licensee who
18-1 participates in any manner, nominal or otherwise, in the provision
18-2 of funeral or embalming services in the category of retired, active
18-3 status. The board [commission] shall charge a fee equal to 50
18-4 percent of the current registration fee charged other active
18-5 licensees.
18-6 F. The department [commission] may waive any license
18-7 requirement for an applicant with a valid license from another
18-8 state having license requirements substantially equivalent to those
18-9 of this state. An applicant shall pay a reciprocal license fee.
18-10 The person's application shall be accompanied by an affidavit made
18-11 by the appropriate authority [Chairman or Secretary of the
18-12 commission which issued the license, or by a duly constituted
18-13 registration officer] of the state, country, or territory by which
18-14 the certificate or license was granted, and on which the
18-15 application for registration in Texas is based, reciting that the
18-16 accompanying certificate or license has not been cancelled,
18-17 suspended or revoked, and that the statement of the qualifications
18-18 made in the application for a license in Texas is true and correct.
18-19 Applicants for a license under the provisions of this Act shall
18-20 subscribe to an oath in writing before an officer authorized by law
18-21 to administer oaths, which shall be a part of such application,
18-22 stating that the license, certificate, or authority under which the
18-23 applicant practiced as a funeral director or embalmer in the state,
18-24 country, or territory from which the applicant removed, was at the
18-25 time of such removal in full force and effect and not cancelled or
18-26 suspended or revoked. Said application shall also state that the
18-27 applicant is the identical person to whom the said certificate,
19-1 license, or commission was issued, and that no proceeding has been
19-2 instituted against the applicant for the cancellation, suspension
19-3 or revocation of such certificate or license in the state, country,
19-4 or territory in which the same was issued; and that no prosecution
19-5 is pending against the applicant in any state or federal court for
19-6 any offense which, under the laws of the State of Texas, is a
19-7 felony, or is a misdemeanor related to the practice of embalming or
19-8 funeral directing. The board [commission] shall set the reciprocal
19-9 license fee in an amount that is reasonable and necessary for the
19-10 administration of this Act.
19-11 H. The department [commission] may, after a hearing as
19-12 provided by Section 6C of this Act, reprimand, assess an
19-13 administrative penalty, revoke, suspend, or probate the suspension
19-14 of a license or provisional license, or impose any combination of
19-15 these sanctions against a licensed funeral director, a licensed
19-16 embalmer, or a provisional licensee. The department [commission]
19-17 may assess an administrative penalty without a hearing if the
19-18 penalty is assessed in the manner provided by Section 6G of this
19-19 Act. Action taken by the department [commission] under this
19-20 section may be based only on a violation of this Act or a rule
19-21 adopted under this Act. The department [commission] may refuse
19-22 without a hearing to license a person or to permit a person to
19-23 serve as a provisional licensee if the person has violated this Act
19-24 or a rule adopted under this Act. A person whose license or
19-25 provisional license application is refused under this subsection
19-26 may appeal the decision by requesting a hearing not later than the
19-27 30th day after the date of the refusal. The department
20-1 [commission] and the person whose application for license or
20-2 provisional license is refused may agree to the issuance of a
20-3 probationary license or the department [commission] may, after a
20-4 hearing, order that a license be issued on a probationary basis. A
20-5 violation of this Act includes the following:
20-6 1. The presentation to the department [commission] of
20-7 any license, certificate, or diploma that was illegally or
20-8 fraudulently obtained, or when fraud or deception has been
20-9 practiced in passing the examination;
20-10 2. Conviction of:
20-11 (A) a felony; or
20-12 (B) a misdemeanor related to the practice of
20-13 embalming or funeral directing;
20-14 3. Being unfit to practice as a funeral director
20-15 and/or embalmer by reason of insanity and having been adjudged by a
20-16 court of competent jurisdiction to be of unsound mind;
20-17 4. The use of any statement that misleads or deceives
20-18 the public, including but not limited to false or misleading
20-19 statements regarding (1) any legal, religious, or cemetery
20-20 requirement for funeral merchandise or funeral services, (2) the
20-21 preservative qualities of funeral merchandise or funeral services
20-22 in preventing or substantially delaying natural decomposition or
20-23 decay of human remains, (3) the airtight or watertight properties
20-24 of a casket or outer enclosure, or (4) representations as to
20-25 licensed personnel in the operation of a funeral establishment;
20-26 5. The purchase, sale, barter, or use, or any offer to
20-27 purchase, sell, barter, or use any license, certificate, or
21-1 transcript of license or certificate, in or incident to an
21-2 application to the department [commission] for license to practice
21-3 as a funeral director and/or embalmer;
21-4 6. Altering, with fraudulent intent, any funeral
21-5 director and/or embalmer license, certificate, or transcript of
21-6 license or certificate;
21-7 7. The use of any funeral director and/or embalmer
21-8 license, certificate, diploma or transcript of any such funeral
21-9 director and/or embalmer license, certificate, or diploma that has
21-10 been fraudulently purchased, issued, counterfeited, or materially
21-11 altered;
21-12 8. The impersonation of, or acting as proxy for,
21-13 another in any examination required by this Act for a funeral
21-14 director and/or embalmer license;
21-15 9. The impersonation of a licensed funeral director or
21-16 embalmer as authorized by this Act, or permitting or allowing
21-17 another to use a person's license or certificate to practice as a
21-18 funeral director or embalmer in this state;
21-19 10. A violation of Chapter 154, Finance Code [Section
21-20 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular
21-21 Session, 1955 (Article 548b, Vernon's Texas Civil Statutes)], or a
21-22 rule adopted under that chapter [Act];
21-23 11. Taking custody of a dead human body without the
21-24 permission of the person or the agent of the person authorized to
21-25 make funeral arrangements for the deceased, or without the
21-26 permission of the medical examiner or justice of the peace when a
21-27 medical examiner or justice of the peace has jurisdiction over the
22-1 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
22-2 Criminal Procedure, refusing to promptly surrender a dead human
22-3 body to a person or agent authorized to make funeral arrangements
22-4 for the deceased, or embalming a body without the express written
22-5 or oral permission of a person authorized to make funeral
22-6 arrangements for the deceased or without making a documented
22-7 reasonable effort over a period of at least three (3) hours to
22-8 obtain the permission;
22-9 11A. Embalming or attempting to embalm without proper
22-10 authority a dead human body. Evidence of embalming or attempting
22-11 to embalm includes, but is not limited to, the making of any
22-12 incision on the body, the raising of any circulatory vessel of the
22-13 body, or the injection of any chemical into the body;
22-14 12. Wilfully making any false statement on a
22-15 certificate of death or on a document required by this Act or by a
22-16 rule adopted under this Act;
22-17 13. Employment directly or indirectly of any
22-18 provisional licensee, agent, assistant, embalmer, funeral director,
22-19 employee, or other person on a part or full-time basis, or on
22-20 commission, for the purpose of soliciting individuals or
22-21 institutions by whose influence dead human bodies may be turned
22-22 over to a particular funeral director, embalmer, or funeral
22-23 establishment;
22-24 14. Presentation of false certification of work done
22-25 as a provisional licensee;
22-26 15. Unfitness by reason of present substance abuse;
22-27 16. Whenever a licensee, provisional licensee, or any
23-1 other person, whether employee, agent, representative, or one in
23-2 any manner associated with a funeral establishment engages in
23-3 solicitation as defined in this Act;
23-4 17. Failure by the Funeral Director in Charge to
23-5 provide licensed personnel for direction or personal supervision
23-6 for a "first call," as that term is defined in this Act;
23-7 18. Misappropriation of any funds held by a licensee,
23-8 funeral establishment, including its employees and agents, or other
23-9 depository, that create an obligation to provide a funeral service
23-10 or merchandise, including retention for an unreasonable time of
23-11 excess funds paid by or on behalf of the consumer for which the
23-12 consumer is entitled to a refund;
23-13 19. Performing acts of funeral directing or embalming,
23-14 as those terms are defined in this Act, that are outside the
23-15 licensed scope and authority of the licensee, or performing acts of
23-16 funeral directing or embalming in a capacity other than that of an
23-17 employee, agent, subcontractor, or assignee of a licensed funeral
23-18 establishment that has contracted to perform those acts;
23-19 20. Engaging in fraudulent, unprofessional, or
23-20 deceptive conduct in providing funeral services or merchandise to a
23-21 consumer;
23-22 21. Statement or implication by a funeral director or
23-23 embalmer that a customer's concern with the cost of any funeral
23-24 service or funeral merchandise is improper or indicates a lack of
23-25 respect for the deceased;
23-26 22. Failure by any person arranging for funeral
23-27 services or merchandise to:
24-1 (A) provide a prospective customer with a copy
24-2 of the brochure required by Section 6E of this Act at the beginning
24-3 of the arrangement process;
24-4 (B) provide a retail price list to an individual
24-5 inquiring in person about any funeral service or merchandise for
24-6 that person to keep;
24-7 (C) explain to the customer or prospective
24-8 customer that a contractual agreement for funeral services or
24-9 merchandise may not be entered into before the presentation of the
24-10 retail price list to that person; or
24-11 (D) provide general price information by
24-12 telephone within a reasonable time;
24-13 23. Failure by any person arranging for funeral
24-14 services or merchandise to provide each customer at the conclusion
24-15 of the arrangement process a written memorandum or funeral purchase
24-16 agreement signed by the funeral director making the arrangements
24-17 itemizing the cost of funeral services and funeral merchandise
24-18 selected by the customer; however, if the customer selects a
24-19 package arrangement based on unit pricing, the itemization
24-20 requirement is satisfied by providing a written memorandum that
24-21 itemizes the discount provided by the package arrangement. The use
24-22 of unit pricing does not affect the presentation of the retail
24-23 price list as required by Subdivision 22 of this subsection;
24-24 24. Restricting, hindering, or attempting to restrict
24-25 or hinder (1) the advertising or disclosure of prices and other
24-26 information regarding the availability of funeral services and
24-27 funeral merchandise that is not unfair or deceptive to consumers,
25-1 or (2) agreements for funeral services between any consumer or
25-2 group of consumers and funeral directors or embalmers;
25-3 25. Failure to retain and make available to the
25-4 department [commission], upon request, copies of all price lists,
25-5 written notices, embalming documents, and memoranda of agreement
25-6 required by this Act for two (2) years after the date of their
25-7 distribution or signing;
25-8 26. Violation of this Act, any rule adopted under this
25-9 Act, an order by the board [commission] revoking, suspending, or
25-10 probating a license, an order assessing an administrative penalty,
25-11 or an agreement to pay an administrative penalty regardless of
25-12 whether the agreement is express or implied by Section 6G(d) of
25-13 this Act;
25-14 27. Dishonest conduct, wilful conduct, negligence, or
25-15 gross negligence in the practice of embalming or funeral directing
25-16 that is likely to or does deceive, defraud, or otherwise injure the
25-17 public;
25-18 28. Allowing the use of a dead human body by an
25-19 embalming establishment for research or educational purposes
25-20 without complying with Section 4A of this Act;
25-21 29. Causing the execution of a document by the use of
25-22 fraud, deceit, or misrepresentation; and
25-23 30. Allowing the presence or participation of a
25-24 student for credit or satisfaction of academic requirements during
25-25 the embalming of a dead human body without complying with Section
25-26 4A of this Act.
25-27 I. The board [commission] may issue such rules and
26-1 regulations as may be necessary or desirable to effect the intent
26-2 of the provisions of this Section.
26-3 J. A person who wishes to apply for a funeral director or
26-4 embalmer license but has a criminal conviction described by
26-5 Subsection H.2. of this section, may request a hearing on whether
26-6 the conviction prevents the department [commission] from issuing a
26-7 license or provisional license. A hearing under this subsection
26-8 must be requested before the person enters mortuary school and
26-9 shall be conducted as required under Section 6C of this Act. A
26-10 decision made in a hearing under this subsection, unless modified
26-11 on appeal, is binding on the department [commission] and on the
26-12 person who requests the hearing when the person applies to the
26-13 department [commission] for the license or provisional license.
26-14 SECTION 7. Section 4, Chapter 251, Acts of the 53rd
26-15 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
26-16 Civil Statutes), is amended to read as follows:
26-17 Sec. 4. FUNERAL ESTABLISHMENTS. A. All funeral
26-18 establishments shall be licensed by the department [commission].
26-19 All licenses shall expire at midnight on September 30th of each
26-20 year. Funeral establishments shall apply for a license, and upon
26-21 satisfaction to the department [commission] that this Section has
26-22 been complied with and upon receipt of the licensing fee, an
26-23 initial license shall be duly issued to such new establishments.
26-24 Not later than thirty (30) days prior to the expiration date of
26-25 licenses, the department [commission] shall cause to be issued
26-26 notification in writing by mail to each licensed funeral
26-27 establishment that a renewal fee must be paid not later than
27-1 September 30th before such license shall be renewed, and upon due
27-2 receipt of such fees all existing licenses shall be considered
27-3 automatically renewed. Any establishment which fails to pay its
27-4 license renewal fee by the due date is subject to a late payment
27-5 penalty equal in amount to the license renewal fee, and if the
27-6 delinquency is more than thirty (30) days, the establishment shall
27-7 not be permitted to operate as a funeral home until it has applied
27-8 for and has been granted a new license as in the case of original
27-9 applications and licenses for new funeral establishments. The
27-10 board [commission] shall set the funeral establishment license fee,
27-11 the renewal fee, and the penalty in an amount that is reasonable
27-12 and necessary for the administration of this Act.
27-13 B. No funeral establishment shall conduct funeral business
27-14 as intended under this Act unless duly licensed. The department
27-15 [commission] may refuse to issue an establishment license to an
27-16 individual, partnership, or corporation if the individual, a
27-17 partner, or an officer or director of the corporation:
27-18 (1) has been convicted of a felony, or a misdemeanor
27-19 related to the practice of embalming or funeral directing;
27-20 (2) previously held an establishment license that was
27-21 suspended or revoked;
27-22 (3) has violated this Act, a rule adopted under this
27-23 Act, or Chapter 154, Finance Code [512, Acts of the 54th
27-24 Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
27-25 Civil Statutes)];
27-26 (4) submits false information on the application for
27-27 an establishment license; or
28-1 (5) attempts to avoid a revocation, suspension, or
28-2 license refusal by subterfuge or other evasive means.
28-3 C. Each funeral establishment shall be required to have a
28-4 physical plant, equipment and personnel consisting of the
28-5 following:
28-6 1. Some facilities in which funeral services may be
28-7 conducted;
28-8 2. A physical plant which meets building standards and
28-9 fire safety standards of the state and of the municipality in which
28-10 the establishment is located;
28-11 3. Access to rolling stock consisting of at least one
28-12 motor hearse;
28-13 4. A preparation room containing facilities,
28-14 equipment, and supplies required by board [commission] rule to
28-15 ensure the provision of adequate embalming services and other
28-16 facilities necessary to comply with the sanitary code of the state
28-17 and the municipality in which the room is located;
28-18 5. A display containing sufficient merchandise to
28-19 permit reasonable selection, including five (5) or more adult
28-20 caskets, provided that the least expensive casket offered for sale
28-21 by a funeral establishment must be visibly displayed without
28-22 concealment in the same general manner as other caskets are
28-23 displayed;
28-24 6. Sufficient licensed personnel who will be available
28-25 to conduct the operation of the funeral establishment;
28-26 7. A physical plant located at a fixed place, and not
28-27 located on any tax-exempt property or cemetery; and
29-1 8. A physical plant which meets the health standards
29-2 or health ordinances of the state and of the municipality in which
29-3 the establishment is located.
29-4 It is expressly provided, however, that an establishment
29-5 which functions solely as a commercial embalmer, as that term is
29-6 defined in this Act, shall have a commercial embalmers
29-7 establishment license, but shall not be required to meet the
29-8 requirements of sub-sections 1 and 5 of this paragraph C.
29-9 D. 1. The department [commission] may, after a hearing as
29-10 provided by Section 6C of this Act, reprimand, assess an
29-11 administrative penalty, revoke, suspend, or probate the suspension
29-12 of a license, or impose any combination of these sanctions against
29-13 a licensed funeral establishment. The department [commission] may
29-14 assess an administrative penalty without a hearing if the penalty
29-15 is assessed as provided by Section 6G of this Act. Action taken by
29-16 the department [commission] under this section may only be based on
29-17 a violation of this Act or a rule adopted under this Act. The
29-18 department [commission] may refuse without a hearing to license an
29-19 establishment if an owner of the establishment has committed an act
29-20 listed in Subsection B of this section. An establishment whose
29-21 license is refused under this subsection may appeal the decision by
29-22 requesting a hearing not later than the 30th day after the date of
29-23 the refusal. The department [commission] and the establishment
29-24 whose application for license is refused may agree to the issuance
29-25 of a probationary license or the department [commission] may, after
29-26 a hearing, order that a license be issued on a probationary basis.
29-27 A violation of this Act includes the following:
30-1 (a) Failure of a funeral establishment to
30-2 substantially comply with the provisions of Subsection B or C of
30-3 this Section.
30-4 (b) Failure by any person associated with the
30-5 funeral establishment, whether as an employee, agent,
30-6 subcontractor, assignee, owner, or otherwise, and whether licensed
30-7 or unlicensed, to comply with this Act or a rule adopted under this
30-8 Act.
30-9 (c) The use of any advertising statement of a
30-10 character that misleads or deceives the public, or use of, in
30-11 connection with advertisements, the names of persons who do not
30-12 hold a license as a funeral director or embalmer and representing
30-13 them as being so licensed.
30-14 (d) Whenever a licensee, provisional licensee,
30-15 or any other person, whether an employee, agent, or representative,
30-16 or one in any manner associated with a funeral establishment shall
30-17 solicit business or offer any inducement, pecuniary or otherwise,
30-18 for the purpose of securing or attempting to secure business for
30-19 such funeral establishment, unless such solicitation is made
30-20 pursuant to a permit issued under Chapter 154, Finance Code, [512,
30-21 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
30-22 Vernon's Texas Civil Statutes)].
30-23 (e) Failure by the funeral director in charge to
30-24 provide a licensed funeral director for direction or personal
30-25 supervision of a "first call" as that term is defined in this Act.
30-26 (f) Any violation by a funeral establishment or
30-27 a person acting on behalf of a funeral establishment or any person
31-1 directly or indirectly connected with a funeral establishment of
31-2 Chapter 154, Finance Code, [512, Acts of the 54th Legislature,
31-3 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
31-4 Statutes)] or a rule adopted under that chapter [Act].
31-5 (g) Any violation by a funeral establishment or
31-6 a person acting on behalf of a funeral establishment of Chapter 193
31-7 or 361, Health and Safety Code.
31-8 2. With respect to violations of Subsection D. 1.(b),
31-9 (c), (d), (e), (f), or (g), the department [commission] may not
31-10 initiate action against a funeral establishment or in regard to the
31-11 license of a funeral establishment if the complaint is based on the
31-12 conduct of employees, agents, or representatives of such
31-13 establishment performed outside the scope and authority of their
31-14 employment or contrary to the instructions of the funeral
31-15 establishment and its management.
31-16 E. Each funeral establishment shall designate to the
31-17 department [commission] a funeral director in charge, and such
31-18 funeral director in charge shall be directly responsible for the
31-19 funeral directing and embalming business of the licensee. The
31-20 funeral director in charge is ultimately responsible for compliance
31-21 with the mortuary laws. The funeral director in charge may be
31-22 charged with a violation of this Act if a violation occurs in the
31-23 funeral establishment. Any change or changes in such designation
31-24 of funeral director shall be given to the department [commission]
31-25 promptly.
31-26 F. The board [commission] may issue such rules and
31-27 regulations as shall comply with and shall effect the intent of the
32-1 provisions of this Section.
32-2 G. (1) Any premises on which funeral directing or embalming
32-3 is practiced shall be open at all times to inspection for
32-4 violations of this Act and of Chapters 193 and 361, Health and
32-5 Safety Code, by any agent of the department [commission] or by any
32-6 duly authorized agent of the state or of the county or municipality
32-7 in which the premises are located. Each licensed funeral
32-8 establishment shall be thoroughly inspected annually by an agent of
32-9 the department [commission] or by an agent of the state or a
32-10 political subdivision thereof whom the department [commission] has
32-11 authorized to make inspections on its behalf. A report of this
32-12 annual inspection shall be filed with the department [commission].
32-13 (2) Before an agent of the department [commission]
32-14 conducts an inspection of an establishment, the agent shall review
32-15 the inspection reports on the establishment filed with the
32-16 department [commission]. During the inspection, the agent shall
32-17 determine whether previously identified problems have been
32-18 corrected and whether a pattern of violations exists. The
32-19 department [commission] shall consider the information from
32-20 inspection reports when the department [commission] determines
32-21 whether a penalty should be imposed against an establishment.
32-22 (3) When an agent inspects an establishment, the agent
32-23 shall inspect for violations under this Act and under Chapters 193
32-24 and 361, Health and Safety Code.
32-25 (4) The board [commission] by rule shall establish
32-26 procedures for the inspection of a funeral establishment required
32-27 by this subsection.
33-1 H. The department [commission] may require funeral
33-2 establishments with solid waste disposal and sanitation facilities
33-3 that have not been inspected by the department [Texas Department of
33-4 Health] to obtain inspection of those facilities by an entity other
33-5 than the department [Texas Department of Health]. The board
33-6 [commission] by rule shall establish procedures for inspections
33-7 required under this subsection.
33-8 I. (1) The department [commission], the Texas Department
33-9 [State Board] of Insurance, and the Banking Department of Texas
33-10 shall adopt a joint memorandum of understanding relating to prepaid
33-11 funeral services and transactions that:
33-12 (a) outlines the responsibilities of each agency
33-13 in regulating these services and transactions;
33-14 (b) establishes procedures to be used by each
33-15 agency in referring complaints to one of the other agencies;
33-16 (c) establishes procedures to be used by each
33-17 agency in investigating a complaint;
33-18 (d) establishes procedures to be used by each
33-19 agency in notifying the other agencies of a complaint or of the
33-20 investigation of a complaint;
33-21 (e) specifies actions the agencies regard as
33-22 deceptive trade practices;
33-23 (f) specifies the information the agencies
33-24 provide consumers and when that information is to be provided; and
33-25 (g) sets the administrative penalties each
33-26 agency imposes for violations.
33-27 (2) Not later than the last month of each state fiscal
34-1 year, the department [commission] and other agencies shall review
34-2 and update the memorandum of understanding.
34-3 (3) Each agency by rule shall adopt the memorandum of
34-4 understanding and all revisions to the memorandum.
34-5 [J. (1) The commission and the Texas Department of Health
34-6 shall adopt a joint memorandum of understanding that:]
34-7 [(a) outlines the responsibilities of each
34-8 agency in regulating funeral establishment requirements under
34-9 Chapters 193 and 361, Health and Safety Code;]
34-10 [(b) establishes procedures by which each agency
34-11 may refer complaints to the other;]
34-12 [(c) establishes procedures by which each agency
34-13 will notify the other of violations by funeral establishments under
34-14 Chapters 193 and 361, Health and Safety Code; and]
34-15 [(d) coordinates inspection and enforcement
34-16 efforts by both agencies for measures that funeral establishments
34-17 are required to implement under Chapters 193 and 361, Health and
34-18 Safety Code.]
34-19 [(2) Not later than the last month of each state
34-20 fiscal year, the commission and the Texas Department of Health
34-21 shall review and update the memorandum of understanding.]
34-22 [(3) Each agency by rule shall adopt the memorandum of
34-23 understanding and all revisions to the memorandum.]
34-24 SECTION 8. Subsection (c), Section 4A, Chapter 251, Acts of
34-25 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
34-26 Vernon's Texas Civil Statutes), is amended to read as follows:
34-27 (c) A copy of the written consent required under Subsection
35-1 (a) of this section shall be retained for a minimum of two years
35-2 by the funeral home and permanently by the school or college of
35-3 mortuary science. The records of the funeral home maintained under
35-4 this subsection shall be reasonably available for inspection by the
35-5 department [commission], the person who provided the consent, or
35-6 the next of kin of the deceased person. The records of the school
35-7 or college of mortuary science shall be reasonably available for
35-8 inspection by the department [commission].
35-9 SECTION 9. Section 5, Chapter 251, Acts of the 53rd
35-10 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
35-11 Civil Statutes), is amended to read as follows:
35-12 Sec. 5. RULES. A. The board [commission] may adopt rules
35-13 and prescribe forms necessary to administer this Act.
35-14 B. All rules adopted by the board [commission] are subject
35-15 to Chapter 2001, Government Code [the Administrative Procedure and
35-16 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
35-17 Statutes)].
35-18 SECTION 10. Section 6, Chapter 251, Acts of the 53rd
35-19 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
35-20 Civil Statutes), is amended to read as follows:
35-21 Sec. 6. PROBATION, WARNING LETTERS; REINSTATEMENT. (a) If
35-22 the department [commission] places on probation a person whose
35-23 license has been suspended, the department [commission] may impose
35-24 conditions on the probation that are reasonable and related to the
35-25 violation for which the license was suspended. If the department
35-26 [commission] orders probation, the department [commission] may
35-27 require the licensee:
36-1 (1) to report regularly to the department [commission]
36-2 on matters that are the basis of the probation;
36-3 (2) to limit practice to the areas prescribed by the
36-4 department [commission]; or
36-5 (3) to continue or renew professional education until
36-6 the licensee attains a degree of skill satisfactory to the
36-7 department [commission] in those areas that are the basis of the
36-8 probation.
36-9 (b) If the department [commission] places a licensee on
36-10 probation, the department [commission] shall notify the licensee in
36-11 writing of the probation. The department [commission] shall
36-12 furnish the licensee with written probationary orders that detail
36-13 the actions required by the department [commission] of the licensee
36-14 during the period of probation. The department [commission] shall
36-15 develop and adopt a system to monitor the actions of a licensee
36-16 during the period of probation and to determine whether the
36-17 licensee has complied with the probationary orders.
36-18 (c) When the department [commission] has conducted an
36-19 investigation that identifies a violation of this Act by a licensee
36-20 and the department [commission] does not assess an administrative
36-21 penalty, issue a reprimand, or impose any other penalty against the
36-22 licensee, the department [commission] shall issue a written warning
36-23 to the licensee. The warning shall describe the violation
36-24 identified during the investigation and shall state the date by
36-25 which the department [commission] must receive from the licensee a
36-26 written report that describes the measures implemented by the
36-27 licensee to correct the violation and the dates those measures were
37-1 implemented. If the department [commission] does not receive the
37-2 report by the required date, the department [commission] shall
37-3 assess an administrative penalty, in an amount set by the
37-4 department [commission], on the licensee for the failure to file
37-5 the report.
37-6 (d) Upon application, the department [commission] may
37-7 reissue a license to practice as a funeral director or embalmer to
37-8 a person whose license has been cancelled, suspended, or revoked
37-9 but such application may not be made prior to one (1) year after
37-10 the cancellation, suspension, or revocation, and shall be made in
37-11 such a manner and form as the department [commission] may require.
37-12 A hearing to determine whether to reissue a license shall be held
37-13 before the board [commission] unless the board [commission]
37-14 requires the hearing to be held before a hearings officer.
37-15 SECTION 11. Section 6B, Chapter 251, Acts of the 53rd
37-16 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
37-17 Civil Statutes), is amended to read as follows:
37-18 Sec. 6B. CERTIFICATE FOR FOREIGN STUDENTS. Any citizen of a
37-19 country other than the United States who has completed a full
37-20 course of mortuary science at a department-approved
37-21 [commission-approved] college in Texas, may upon application to the
37-22 department [commission], and after payment of the same examination
37-23 fee required of others, be given the department [commission]
37-24 examinations in either embalming, funeral directing or both, and,
37-25 upon successfully making the minimum grades required of other
37-26 applicants, may be awarded a "Certificate of Merit" by the
37-27 department [commission]. Such certificate shall in no manner
38-1 authorize a holder thereof to practice embalming and/or funeral
38-2 directing in this state unless the holder is otherwise licensed as
38-3 an embalmer and/or funeral director under the provisions of this
38-4 Act.
38-5 SECTION 12. Section 6C, Chapter 251, Acts of the 53rd
38-6 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-7 Civil Statutes), is amended to read as follows:
38-8 Sec. 6C. ADMINISTRATIVE PROCEDURE [AND TEXAS REGISTER] ACT.
38-9 (a) A person who is denied a license or provisional license by the
38-10 department [commission] is entitled to a hearing before the
38-11 department [commission] in accordance with Chapter 2001, Government
38-12 Code [the Administrative Procedure and Texas Register Act (Article
38-13 6252-13a, Vernon's Texas Civil Statutes)], if the person requests
38-14 the hearing in writing not later than the 30th day after the date
38-15 the notice of denial is sent.
38-16 (b) A proceeding conducted by the department [commission]
38-17 relating to the denial of a license or provisional license, the
38-18 suspension or revocation of a license, or the imposition of an
38-19 administrative penalty, other than an administrative penalty
38-20 assessed without a hearing as provided by Section 6G of this Act,
38-21 is governed by Chapter 2001, Government Code [the Administrative
38-22 Procedure and Texas Register Act, as amended (Article 6252-13a,
38-23 Vernon's Texas Civil Statutes)]. Judicial review of the proceeding
38-24 is subject to the substantial evidence rule and is governed by
38-25 Chapter 2001, Government Code [the Administrative Procedure and
38-26 Texas Register Act].
38-27 (c)(1) A proceeding brought under Subsection (b) of this
39-1 section may be held before a hearings officer. The commissioner
39-2 [executive director] shall set a time and place for the hearing.
39-3 (2) The hearings officer must be an attorney licensed
39-4 in this state. In the course of a proceeding the hearings officer
39-5 may:
39-6 (A) administer oaths;
39-7 (B) take testimony;
39-8 (C) rule on questions of evidence;
39-9 (D) make determinations of fact; or
39-10 (E) order compliance with proper discovery
39-11 requests.
39-12 (3) The department [commission] shall provide the
39-13 hearings officer with a written statement of all board [commission]
39-14 rules or policies that govern the proceeding.
39-15 (4) At the conclusion of the proceeding the hearings
39-16 officer shall make a ruling on the matter accompanied by written
39-17 findings of facts and conclusions of law.
39-18 (5) The board [commission] shall review the findings
39-19 of fact, conclusions of law, and ruling of the hearings officer
39-20 before making its final ruling in the proceeding. The board
39-21 [commission] may also review a transcript of the proceeding before
39-22 making its final ruling. The board [commission] shall adopt the
39-23 ruling of the hearings officer as its ruling unless it finds good
39-24 cause to issue a different ruling. The board [commission] shall
39-25 explain in writing the reasons for adopting a ruling other than the
39-26 one issued by the hearings officer.
39-27 (d) The department [commission] shall inform each interested
40-1 person, including a person filing the complaint, of the right to
40-2 obtain at that person's cost a tape or transcript of a hearing or
40-3 proceeding under this section.
40-4 SECTION 13. Subsections (a)-(f), Section 6D, Chapter 251,
40-5 Acts of the 53rd Legislature, Regular Session, 1953 (Article 4582b,
40-6 Vernon's Texas Civil Statutes), are amended to read as follows:
40-7 (a) The department [commission] shall investigate each
40-8 complaint received by the department [commission] relating to a
40-9 funeral director, embalmer, apprentice, or funeral establishment.
40-10 The department [commission] shall keep an information file about
40-11 each complaint filed with the department [commission] that the
40-12 department [commission] has authority to resolve.
40-13 (b) The department [commission] shall include in each
40-14 information file a description of the complaint, the date on which
40-15 the complaint was filed, the name of the complainant, a description
40-16 of any information obtained by the department [commission] after
40-17 investigating the complaint, a description and date of any formal
40-18 actions taken by the department [commission] relating to the
40-19 complaint, a description of the current status of the complaint,
40-20 and other information that the department [commission] considers
40-21 appropriate.
40-22 (c) If a written complaint is filed with the department
40-23 [commission] that the department [commission] has authority to
40-24 resolve, the department [commission], at least quarterly until
40-25 final disposition of the complaint and on final disposition of the
40-26 complaint, shall notify the parties to the complaint of the status
40-27 of the complaint unless the notice would jeopardize an undercover
41-1 investigation.
41-2 (d) The information file, except for information in the file
41-3 obtained by the department [commission] after investigating the
41-4 complaint, is public information. The information obtained after
41-5 investigating the complaint is not public information.
41-6 (e) If a person files a complaint with the department
41-7 [commission] relating to a licensed funeral director, embalmer,
41-8 provisional licensee, or funeral establishment, the department
41-9 [commission] shall furnish to the person an explanation of the
41-10 remedies that are available to the person under this Act and
41-11 information about appropriate state or local agencies or officials
41-12 with which the person may file a complaint.
41-13 (f) The department [commission] shall employ or contract for
41-14 the services of one or more persons to investigate complaints of
41-15 consumer interest and other complaints received by the department
41-16 [commission]. A person who is subject to regulation under this Act
41-17 may not serve as an investigator. To serve in this position in a
41-18 contractual capacity, a person must be licensed as a private
41-19 investigator under state law. To serve in this position as an
41-20 employee of the department [commission], a person must:
41-21 (1) hold a current license as a private investigator
41-22 in this state;
41-23 (2) have been previously licensed under state or
41-24 federal law as a private investigator; or
41-25 (3) have been previously employed by a local, state,
41-26 or federal law enforcement agency as an investigator.
41-27 SECTION 14. Section 6E, Chapter 251, Acts of the 53rd
42-1 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
42-2 Civil Statutes), is amended to read as follows:
42-3 Sec. 6E. PUBLIC INFORMATION. (a) The department
42-4 [commission] shall prepare a brochure with information of public
42-5 interest explaining matters relating to funerals, describing the
42-6 functions of the department [commission], and describing the
42-7 department's [commission's] procedures by which public complaints
42-8 are filed with and resolved by the department [commission]. The
42-9 department [commission] shall provide each licensed funeral
42-10 establishment with the number of brochures the department
42-11 [commission] considers appropriate.
42-12 (b) The department [commission] shall make the brochure
42-13 available to the public and appropriate state agencies.
42-14 (c) [(b)] A licensed funeral director or an agent of the
42-15 funeral establishment shall provide each prospective customer with
42-16 a copy of the brochure when funeral services are discussed. A
42-17 funeral establishment shall print copies of the brochure if the
42-18 department [commission] is unable to provide the funeral
42-19 establishment with the number of brochures needed by the funeral
42-20 establishment.
42-21 (d) [(c)] The board [commission] by rule shall establish
42-22 methods by which consumers and service recipients are notified of
42-23 the name, mailing address, and telephone number of the department
42-24 [commission] for the purpose of directing complaints to the
42-25 department [commission]. The department [commission] may provide
42-26 for that notification:
42-27 (1) on each registration form, application, or written
43-1 contract for services of an individual or entity regulated under
43-2 this Act;
43-3 (2) on a sign prominently displayed in the place of
43-4 business of each individual or entity regulated under this Act; or
43-5 (3) in a bill for service provided by an individual or
43-6 entity regulated under this Act.
43-7 SECTION 15. Section 6F, Chapter 251, Acts of the 53rd
43-8 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
43-9 Civil Statutes), is amended to read as follows:
43-10 Sec. 6F. EX PARTE COMMUNICATIONS. The board [commissioners]
43-11 and the employees of the department [commission] are subject to the
43-12 provisions of Chapter 2001, Government Code [the Administrative
43-13 Procedure and Texas Register Act, as amended (Article 6252-13a,
43-14 Vernon's Texas Civil Statutes)], relating to ex parte
43-15 communications.
43-16 SECTION 16. Subsections (a)-(g), Section 6G, Chapter 251,
43-17 Acts of the 53rd Legislature, Regular Session, 1953 (Article 4582b,
43-18 Vernon's Texas Civil Statutes), are amended to read as follows:
43-19 (a) If the department [commission] determines that a person
43-20 or establishment regulated under this Act has violated this Act or
43-21 a rule adopted under this Act, the department [commission] may
43-22 assess an administrative penalty against that person or
43-23 establishment as a result of a hearing conducted in the manner
43-24 provided by Section 6C of this Act or as provided by this section.
43-25 If an administrative penalty is assessed after a hearing conducted
43-26 under Section 6C of this Act, the department [commission] shall
43-27 follow the procedures described in Subsections (e) through (h) of
44-1 this section.
44-2 (b) The department [commission] may assess the
44-3 administrative penalty in an amount not less than One Hundred
44-4 Dollars ($100) or more than Five Thousand Dollars ($5,000) for each
44-5 act of violation. In determining the amount of the penalty, the
44-6 department [commission] shall employ guidelines established by
44-7 board [commission] rule.
44-8 (c) If, after examination of a possible violation and the
44-9 facts relating to that possible violation, the department
44-10 [commission] concludes that a violation has occurred, the
44-11 department [commission] shall issue a preliminary report that
44-12 states the facts on which the conclusion is based, the fact that an
44-13 administrative penalty is to be imposed, and the amount to be
44-14 assessed. Not later than the tenth (10th) day after the day on
44-15 which the department [commission] issues the preliminary report,
44-16 the department [commission] shall send a copy of the report to the
44-17 person or establishment charged with the violation, together with a
44-18 statement of the right of the person or establishment to a hearing
44-19 relating to the alleged violation and the amount of the penalty.
44-20 (d) Not later than the thirtieth (30th) day after the date
44-21 on which the preliminary report is sent, the person or
44-22 establishment charged either may make a written request for a
44-23 hearing or may remit the amount of the administrative penalty to
44-24 the department [commission]. Failure either to request a hearing
44-25 or to remit the amount of the penalty within the time provided by
44-26 this subsection results in a waiver of a right to a hearing under
44-27 this Act. Unless a hearing is requested, the penalty is due on the
45-1 thirtieth (30th) day after the date the preliminary report is sent.
45-2 Failure to pay the penalty by that date automatically suspends the
45-3 affected license for six (6) months. If the person or
45-4 establishment charged requests a hearing, the hearing shall be
45-5 conducted in the manner provided by Section 6C of this Act.
45-6 (e)(1) If an administrative penalty is assessed after a
45-7 hearing conducted under Section 6C of this Act, not later than the
45-8 thirtieth (30th) day after the date on which the order is sent or a
45-9 motion for rehearing is denied, the person or establishment charged
45-10 shall pay the administrative penalty in full, or, if the person or
45-11 establishment wishes to contest either the amount of the penalty or
45-12 the fact of the violation, the person or establishment shall not
45-13 later than the thirtieth (30th) day after the date on which the
45-14 order is sent or a motion for rehearing is denied:
45-15 (A) remit the assessed amount to the department
45-16 [commission] for deposit in an escrow account; or
45-17 (B) post a supersedeas bond in a form approved
45-18 by the department [commission] for the amount of the penalty.
45-19 (2) If, after judicial review, it is determined that
45-20 no violation occurred or that the amount of the penalty should be
45-21 reduced, the department [commission] shall remit the appropriate
45-22 amount to the person or establishment charged with the violation
45-23 not later than the thirtieth (30th) day after the date on which the
45-24 judicial determination becomes final.
45-25 (f) Failure to remit the amount of the administrative
45-26 penalty to or post bond with the department [commission] within the
45-27 time provided by this Act results in a waiver of all legal rights
46-1 to contest the violation or the amount of the penalty. If the
46-2 person or establishment fails to remit the amount of the
46-3 administrative penalty to or post bond with the department
46-4 [commission] within that time, or within a longer period with the
46-5 consent of the department [commission], the license of that person
46-6 or establishment is suspended for six (6) months. After notice and
46-7 a hearing, the department [commission] may extend the license
46-8 suspension for a longer period or may revoke or cancel the license
46-9 for failure to remit the penalty or post bond.
46-10 (g) An administrative penalty owed under this Act shall be
46-11 recovered in a civil action brought by the Attorney General at the
46-12 request of the department [commission].
46-13 SECTION 17. Section 6H, Chapter 251, Acts of the 53rd
46-14 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
46-15 Civil Statutes), is amended to read as follows:
46-16 Sec. 6H. REPRIMAND. (a) If the department [commission]
46-17 determines that a person or establishment regulated under this Act
46-18 has violated this Act or a rule adopted under this Act, the
46-19 department [commission] may issue a reprimand against that person
46-20 or establishment. The department [commission] may issue the
46-21 reprimand without any other sanction or in conjunction with the
46-22 assessment of an administrative penalty or the revocation,
46-23 suspension, or probation of the license. The department
46-24 [commission] may issue a letter of reprimand after a hearing
46-25 conducted in the manner provided by Section 6C of this Act or as
46-26 provided by this section.
46-27 (b) If, after examination of a possible violation and the
47-1 facts relating to that possible violation, the department
47-2 [commission] concludes that a violation has occurred, the
47-3 department [commission] may issue a preliminary report that states
47-4 the facts on which the conclusion is based and that a reprimand is
47-5 to be issued. If the reprimand is to be issued in addition to the
47-6 assessment of an administrative penalty under Section 6G of this
47-7 Act, the preliminary reports may be combined. Not later than the
47-8 tenth (10th) day after the day on which the department [commission]
47-9 issues the preliminary report, the department [commission] shall
47-10 send a copy of the report to the person or establishment charged
47-11 with the violation, together with a statement of the right of the
47-12 person or establishment to a hearing relating to the alleged
47-13 violations.
47-14 (c) Not later than the thirtieth (30th) day after the date
47-15 on which the preliminary report is sent, the person or
47-16 establishment charged may make a written request for a hearing.
47-17 Failure to request a hearing within the time provided by this
47-18 subsection results in a waiver of a right to a hearing under this
47-19 Act and the reprimand shall be issued by the department
47-20 [commission] and placed in the permanent files of the department
47-21 [commission]. If the person or establishment charged requests a
47-22 hearing, the hearing shall be conducted in the manner provided by
47-23 Section 6C of this Act. If it is determined after hearing that the
47-24 person or establishment has committed the alleged violation, the
47-25 department [commission] is not limited to the issuance of a
47-26 reprimand but may also take any action allowed under this Act.
47-27 SECTION 18. Section 6I, Chapter 251, Acts of the 53rd
48-1 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
48-2 Civil Statutes), is amended to read as follows:
48-3 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The department
48-4 [commission] or a hearings officer shall review each disciplinary
48-5 proceeding to determine whether the licensee has committed the same
48-6 type of violation on one or more previous occasions. If it is
48-7 determined that the licensee has previously committed the same type
48-8 of violation, the department [commission] or hearings officer shall
48-9 impose a disciplinary action that is more severe than that imposed
48-10 on the previous occasion.
48-11 (b) In a disciplinary proceeding involving multiple
48-12 violations of this Act, the department [commission] or the hearings
48-13 officer shall impose a disciplinary action that is more severe than
48-14 the disciplinary action that would be imposed cumulatively for each
48-15 of the individual violations.
48-16 SECTION 19. Subsection (b), Section 7, Chapter 251, Acts of
48-17 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
48-18 Vernon's Texas Civil Statutes), is amended to read as follows:
48-19 (b) The department [commission] may file a complaint with
48-20 the appropriate governmental authorities to begin prosecution of a
48-21 person who commits an offense under Section 6A of this Act. The
48-22 department [commission] or any adversely affected party may sue a
48-23 funeral establishment or embalmer or funeral director who fails to
48-24 comply with this Act or a rule adopted under this Act for
48-25 appropriate injunctive relief. This Act does not affect a remedy
48-26 or enforcement power under other laws.
48-27 SECTION 20. Section 9, Chapter 251, Acts of the 53rd
49-1 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
49-2 Civil Statutes), is amended to read as follows:
49-3 Sec. 9. CONSTRUCTION WITH OTHER LAW. This Act does not
49-4 limit or replace the authority of the Banking Department of Texas
49-5 to regulate and enforce Chapter 154, Finance Code [512, Acts of the
49-6 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
49-7 Texas Civil Statutes)]. The authority of the department
49-8 [commission] as to Chapter 154, Finance Code, [512, Acts of the
49-9 54th Legislature, Regular Session, 1955 (Article 548b, Vernon's
49-10 Texas Civil Statutes), and its subsequent amendments] is limited to
49-11 the imposition of an administrative penalty, issuance of a
49-12 reprimand, or suspension, revocation, or probation of a license
49-13 issued by the department [commission].
49-14 SECTION 21. Sections 2 and 2A, Chapter 251, Acts of the 53rd
49-15 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
49-16 Civil Statutes), are repealed.
49-17 SECTION 22. (a) This Act takes effect September 1, 1999.
49-18 (b) The Funeral Services Commission is abolished and its
49-19 powers and duties are transferred to the Texas Department of Health
49-20 on the effective date of this Act. The terms of office of the
49-21 members of the Funeral Services Commission expire on the effective
49-22 date of this Act.
49-23 (c) A reference in law to the Funeral Services Commission
49-24 means the Texas Department of Health or the Texas Board of Health,
49-25 as applicable. A reference in law to the executive director of the
49-26 Funeral Services Commission means the commissioner of public
49-27 health.
50-1 (d) The Texas Department of Health has all the powers and
50-2 duties of the abolished commission provided by law. The Texas
50-3 Department of Health has all the property, funds, rules, unspent
50-4 appropriations, documents, rights, and obligations of the abolished
50-5 commission except to the extent the laws governing the commission's
50-6 powers and duties are amended by this Act. On the effective date of
50-7 this Act, the Texas Department of Health shall employ at least
50-8 seven full-time employees who were employed by the Funeral Services
50-9 Commission on the day immediately before the effective date of this
50-10 Act. At least five of those employees must have experience in
50-11 licensing programs and investigations operated by the Funeral
50-12 Services Commission before the effective date of this Act.
50-13 (e) The rules, policies, procedures, and decisions of the
50-14 abolished commission are continued in effect as rules, policies,
50-15 procedures, and decisions of the Texas Board of Health until
50-16 superseded by a rule or other appropriate action of the Texas Board
50-17 of Health.
50-18 (f) The validity of a rule, form, or procedure adopted,
50-19 contract or acquisition made, proceeding begun, obligation
50-20 incurred, right accrued, or other action taken by or in connection
50-21 with the authority of the Funeral Services Commission before it is
50-22 abolished under Subsection (b) of this section is not affected by
50-23 this Act. To the extent those actions continue to have any effect
50-24 on or after September 1, 1999, they are considered to be the
50-25 actions of the Texas Department of Health.
50-26 (g) The members of the funeral services advisory committee
50-27 created under Section 2B, Chapter 251, Acts of the 53rd
51-1 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
51-2 Civil Statutes), as added by this Act, shall be appointed not later
51-3 than December 31, 1999.
51-4 SECTION 23. The importance of this legislation and the
51-5 crowded condition of the calendars in both houses create an
51-6 emergency and an imperative public necessity that the
51-7 constitutional rule requiring bills to be read on three several
51-8 days in each house be suspended, and this rule is hereby suspended.