76R13730 E
By Marchant H.B. No. 3516
Substitute the following for H.B. No. 3516:
By Hilderbran C.S.H.B. No. 3516
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of funeral directing and embalming.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection C, Section 1, Chapter 251, Acts of the
1-5 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-6 Texas Civil Statutes), is amended to read as follows:
1-7 C. (1) The term "first call" shall mean the beginning of
1-8 the relationship and duty of the funeral director to take charge of
1-9 a dead human body and have same prepared by embalming, cremation,
1-10 or otherwise, for burial or disposition, provided all laws
1-11 pertaining to public health in this state are complied with.
1-12 "First call" does not include calls made by ambulance, when the
1-13 person dispatching the ambulance does not know whether a dead human
1-14 body is to be picked up. A dead human body shall be picked up on
1-15 first call only under the direction and personal supervision of a
1-16 licensed funeral director or embalmer.
1-17 (2) A dead human body may be transferred without a
1-18 licensed funeral director personally making the transfer:
1-19 (a) from one funeral home to another funeral
1-20 home; [and]
1-21 (b) from a funeral home to and from a morgue
1-22 where an autopsy is to be performed;
1-23 (c) to and from an airport, a crematory, or both
1-24 an airport and a crematory; or
2-1 (d) in [without a licensed funeral director
2-2 personally making the transfer. In] circumstances in which there
2-3 is no reasonable probability that unlicensed personnel will
2-4 encounter family members or other persons with whom funeral
2-5 arrangements are normally made by licensed funeral directors or
2-6 embalmers[, a dead human body may be picked up or transferred
2-7 without the personal supervision of a funeral director or
2-8 embalmer].
2-9 (3) Any inadvertent contact with family members or
2-10 other persons shall be restricted to unlicensed personnel
2-11 identifying the employer to the person, arranging an appointment
2-12 with the employer for any person who indicates a desire to make
2-13 funeral arrangements for the deceased, and making any disclosure to
2-14 the person that is required by any federal or state regulation. A
2-15 funeral director or embalmer who directs the removal or transfer of
2-16 a dead human body without providing personal supervision shall be
2-17 held strictly accountable for compliance with the requirements of
2-18 and exceptions to "first call" as provided by this Act.
2-19 SECTION 2. Subdivision (1), Subsection A, Section 2, Chapter
2-20 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
2-21 4582b, Vernon's Texas Civil Statutes), is amended to read as
2-22 follows:
2-23 (1) There is hereby created the Texas Funeral Service
2-24 Commission, with offices located in Austin, Texas, consisting of
2-25 six [nine (9)] commissioners who shall be citizens of the United
2-26 States and residents of the State of Texas. Two [Four (4)]
2-27 commissioners must hold a license as both an embalmer and a funeral
3-1 director [be licensed embalmers or funeral directors] in the State
3-2 of Texas and each of these commissioners must have a minimum of
3-3 five [(5)] years, consecutively, of such experience in this state
3-4 immediately preceding appointment. Four [At least three (3) such
3-5 licensed commissioners shall be embalmers. Five (5)] commissioners
3-6 must be representatives of the general public who are not regulated
3-7 under this Act and who have consistently shown an interest in
3-8 supporting consumer protection. A person is not eligible for
3-9 appointment as a public member of the commission if the person or
3-10 the person's spouse:
3-11 (a) is registered, certified, or licensed by an
3-12 occupational regulatory agency in the field of funeral services;
3-13 (b) is employed by or participates in the
3-14 management of a business entity or other organization regulated by
3-15 the commission or receiving funds from the commission;
3-16 (c) owns or controls, directly or indirectly,
3-17 any interest in a business entity or other organization regulated
3-18 by the commission or receiving funds from the commission; or
3-19 (d) uses or receives a substantial amount of
3-20 tangible goods, services, or funds from the commission, other than
3-21 compensation or reimbursement authorized by law for commission
3-22 membership, attendance, or expenses.
3-23 SECTION 3. Subdivision (2), Subsection A, Section 2, Chapter
3-24 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
3-25 4582b, Vernon's Texas Civil Statutes), is amended to read as
3-26 follows:
3-27 (2) The commissioners shall be appointed by the
4-1 Governor, by and with the consent of the Senate for staggered terms
4-2 of six (6) years, with the terms of one-third of the commissioners
4-3 expiring in each odd-numbered year. Each commissioner shall be
4-4 subject to removal by the Governor for neglect of duty,
4-5 incompetence, or fraudulent or dishonest conduct. The Governor
4-6 shall remove from the commission any commissioner whose license to
4-7 practice funeral directing and/or embalming has been voided,
4-8 revoked or suspended. Any vacancy in an unexpired term shall be
4-9 filled by appointment of the Governor for the unexpired term. No
4-10 commissioner shall be appointed for more than one (1) full term of
4-11 service, except that a commissioner appointed to fill an unexpired
4-12 term with less than three years remaining in the unexpired term may
4-13 be reappointed to the commission for one full term of service.
4-14 SECTION 4. Subdivision (5), Subsection A, Section 2, Chapter
4-15 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
4-16 4582b, Vernon's Texas Civil Statutes), is amended to read as
4-17 follows:
4-18 (5) Two commissioners may participate in any informal
4-19 conference relating to a case that awaits a hearing as described by
4-20 Section 6C of this Act. One of the two commissioners must hold
4-21 [be] a license as both a [licensed] funeral director and [or]
4-22 embalmer and one must be a public member of the commission. A
4-23 commissioner who has a personal or private interest, or is employed
4-24 by an entity with a personal or private interest, in a measure,
4-25 proposal, or decision pending before the commission may not vote or
4-26 participate in an informal conference relating to that interest as
4-27 provided by Section 572.058, Government Code.
5-1 SECTION 5. Subdivision (6), Subsection A, Section 2, Chapter
5-2 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
5-3 4582b, Vernon's Texas Civil Statutes), is amended to read as
5-4 follows:
5-5 (6) No person shall be appointed to the commission who
5-6 is an officer or employee of a corporation or other business entity
5-7 controlling or operating, directly or indirectly, more than three
5-8 funeral establishments, if another commissioner is also an officer
5-9 or employee of the same corporation or other business entity. A
5-10 violation of this subdivision that occurs after a member is
5-11 appointed constitutes a vacancy of each of those member's
5-12 positions, as of the date of the completion of the merger or other
5-13 agreement. A vacancy under this subdivision shall be filled by the
5-14 governor as soon as practicable. A member appointed to fill a
5-15 vacancy under this subdivision serves for the remainder of the
5-16 vacated term.
5-17 SECTION 6. Subdivision (7), Subsection A, Section 2, Chapter
5-18 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
5-19 4582b, Vernon's Texas Civil Statutes), is amended to read as
5-20 follows:
5-21 (7) A person may not serve as a member of the
5-22 commission [or act as the general counsel to the commission] if the
5-23 person is required to register as a lobbyist under Chapter 305,
5-24 Government Code, because of the person's activities for
5-25 compensation on behalf of a profession related to the operation of
5-26 the commission.
5-27 SECTION 7. Subsection D, Section 2, Chapter 251, Acts of the
6-1 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
6-2 Texas Civil Statutes), is amended to read as follows:
6-3 D. The Governor shall designate a public member of the
6-4 commission [one commissioner] as the presiding officer [Chairman]
6-5 of the commission to serve in that capacity at the pleasure of the
6-6 Governor. The commission shall elect, after thirty days [(30)
6-7 days'] written notice is given to the commissioners, a public
6-8 member to [Vice-chairman and Secretary from the commissioners who
6-9 shall] serve as assistant presiding officer for one [(1)] year, or
6-10 until a [their] successor is [shall be] elected and qualified in
6-11 cases of resignation or death. In the absence of an Executive
6-12 Director, the commission may appoint an acting Executive Director.
6-13 The acting Executive Director shall be bonded to the State of Texas
6-14 in a sum equal to the maximum annual anticipated receipts of the
6-15 commission and any premium payable for such bond shall be paid from
6-16 the funds of the commission; likewise, the commission will require
6-17 a bond of the Executive Director, if any, and such bond shall be
6-18 deposited with the comptroller of the State of Texas. The
6-19 presiding officer [Chairman] of the commission shall preside at all
6-20 meetings of the commission unless otherwise ordered, and [he] shall
6-21 exercise all duties and performances incident to the office of
6-22 presiding officer [Chairman] of the commission, and in the
6-23 presiding officer's [his] absence the assistant presiding officer
6-24 [Vice-chairman] shall preside. A majority of the commissioners
6-25 shall constitute a quorum for the transaction of business.
6-26 SECTION 8. Subsection E, Section 2, Chapter 251, Acts of the
6-27 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
7-1 Texas Civil Statutes), is amended to read as follows:
7-2 E. (1) The commission shall file annually with the Governor
7-3 and the presiding officer of each house of the legislature a
7-4 complete and detailed written report accounting for all funds
7-5 received and disbursed by the commission during the preceding
7-6 fiscal year. The annual report must be in the form and reported in
7-7 the time provided by the General Appropriations Act.
7-8 (2) The commission shall file annually with the
7-9 Governor a list of the names of all duly licensed funeral
7-10 directors, embalmers, and funeral establishments. A copy shall be
7-11 filed with the Secretary of State for permanent record, a certified
7-12 copy of which, under the hand of the Secretary of State and the
7-13 state seal, shall be admissible as evidence in all courts.
7-14 (3) The commission shall file annually with the
7-15 Governor a written description of the activities of the commission
7-16 during the preceding fiscal year.
7-17 (4) The commission shall file annually with the
7-18 governor a report on the commission's compliance with Subsections P
7-19 and Q of this section.
7-20 SECTION 9. Subsection H, Section 2, Chapter 251, Acts of the
7-21 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
7-22 Texas Civil Statutes), is amended to read as follows:
7-23 H. The commission may employ such inspectors, and clerical
7-24 and technical assistants[, legal counsel other than the attorney
7-25 general, and an Executive Director,] as may be determined by it to
7-26 be necessary to carry out the provisions of this Act, and the
7-27 terms, conditions and expenses of such employment shall be
8-1 determined by the commission. The commission shall employ and
8-2 supervise an executive director to manage the administrative
8-3 affairs of the commission under this Act. The commission shall
8-4 determine the terms and conditions of the employment and set the
8-5 salary of the executive director at an amount not to exceed the
8-6 maximum salary for the position as set in the General
8-7 Appropriations Act. The commission may delegate the commissioner's
8-8 duties to the executive director. The attorney general shall
8-9 designate at least one employee of the attorney general's office to
8-10 advise the commission and to represent the commission in legal
8-11 proceedings. The commission may not employ legal counsel except as
8-12 provided by Section 402.0212, Government Code.
8-13 SECTION 10. Subsection K, Section 2, Chapter 251, Acts of
8-14 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
8-15 Vernon's Texas Civil Statutes), is amended to read as follows:
8-16 K. All meetings, including meetings of the committees of the
8-17 commissioners, [of the commission] shall be open and public. The
8-18 commission shall develop and implement policies that provide the
8-19 public with a reasonable opportunity to appear before the
8-20 commission and to speak on any issue under the jurisdiction of the
8-21 commission. A member of the public is not required to provide
8-22 notice to the commission before appearing and speaking before the
8-23 commissioner under this subsection.
8-24 SECTION 11. Subsection L, Section 2, Chapter 251, Acts of
8-25 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
8-26 Vernon's Texas Civil Statutes), is amended to read as follows:
8-27 L. The commission may issue[, or delegate to the executive
9-1 director the power to issue,] subpoenas and subpoenas duces tecum.
9-2 A subpoena or subpoena duces tecum issued under this subsection
9-3 must be served either by personal service or by certified mail,
9-4 return receipt requested. The commission by order may grant the
9-5 executive director the power to issue subpoenas and subpoenas duces
9-6 tecum in connection with a complaint under investigation by the
9-7 commission.
9-8 SECTION 12. Subsection O, Section 2, Chapter 251, Acts of
9-9 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
9-10 Vernon's Texas Civil Statutes), is amended to read as follows:
9-11 O. The commission is subject to the open meetings law,
9-12 Chapter 551, Government Code [Chapter 271, Acts of the 60th
9-13 Legislature, Regular Session, 1967, as amended (Article 6252-17,
9-14 Vernon's Texas Civil Statutes)], and the Administrative Procedure
9-15 [and Texas Register] Act, Chapter 2001, Government Code [as amended
9-16 (Article 6252-13a, Vernon's Texas Civil Statutes)]. The
9-17 commission's duties under Chapter 551, Government Code, include the
9-18 requirement under Sections 551.021 and 551.022 to prepare and
9-19 maintain the minutes of each open meeting.
9-20 SECTION 13. Section 2, Chapter 251, Acts of the 53rd
9-21 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
9-22 Civil Statutes), is amended by adding Subsection V to read as
9-23 follows:
9-24 V. A request for an opinion under Subchapter C, Chapter 402,
9-25 Government Code, must be approved by a majority of the
9-26 commissioners.
9-27 SECTION 14. Subsection T, Section 2, Chapter 251, Acts of
10-1 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
10-2 Vernon's Texas Civil Statutes), is amended to read as follows:
10-3 T. The commission may institute an action in its own name to
10-4 enjoin the violation of this Act. An action under this subsection
10-5 is in addition to any other action, proceeding, or remedy
10-6 authorized by law. In an action under this subsection, the
10-7 commission shall be represented by the attorney general or[,] a
10-8 county or district attorney[, or counsel designated and authorized
10-9 by the commission].
10-10 SECTION 15. Section 2A(d), Chapter 251, Acts of the 53rd
10-11 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
10-12 Civil Statutes), is amended to read as follows:
10-13 (d) The programs required under Subsections (a) and (b) of
10-14 this section and a [A] policy statement prepared under Subsection
10-15 (c) of this section must cover an annual period, be updated at
10-16 least annually, and be filed with the Governor's office.
10-17 SECTION 16. Subsection F, Section 3, Chapter 251, Acts of
10-18 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
10-19 Vernon's Texas Civil Statutes), is amended to read as follows:
10-20 F. If the applicant meets the requirements established under
10-21 this subsection, the [The] commission shall [may] waive any license
10-22 requirement for an applicant with a [valid] license from another
10-23 state having license requirements substantially equivalent to
10-24 those of this state and may waive any license requirement for an
10-25 applicant with a license from another state that does not have
10-26 license requirements substantially equivalent to those of this
10-27 state. An applicant shall pay a reciprocal license fee. The
11-1 person's application shall be accompanied by an affidavit made by
11-2 the presiding officer [Chairman or Secretary] of the commission
11-3 which issued the license, or by a duly constituted registration
11-4 officer of the state, country, or territory by which the
11-5 certificate or license was granted, and on which the application
11-6 for registration in Texas is based, reciting that the accompanying
11-7 certificate or license has not been cancelled, suspended or
11-8 revoked, and that the statement of the qualifications made in the
11-9 application for a license in Texas is true and correct. Applicants
11-10 for a license under the provisions of this Act shall subscribe to
11-11 an oath in writing before an officer authorized by law to
11-12 administer oaths, which shall be a part of such application,
11-13 stating that the license, certificate, or authority under which the
11-14 applicant practiced as a funeral director or embalmer in the state,
11-15 country, or territory from which the applicant removed, was at the
11-16 time of such removal in full force and effect and not cancelled or
11-17 suspended or revoked. Said application shall also state that the
11-18 applicant is the identical person to whom the said certificate,
11-19 license, or commission was issued, and that no proceeding has been
11-20 instituted against the applicant for the cancellation, suspension
11-21 or revocation of such certificate or license in the state, country,
11-22 or territory in which the same was issued; and that no prosecution
11-23 is pending against the applicant in any state or federal court for
11-24 any offense which, under the laws of the State of Texas, is a
11-25 felony, or is a misdemeanor related to the practice of embalming or
11-26 funeral directing. The commission shall conduct a criminal
11-27 background check on each applicant. An applicant is not eligible
12-1 for a reciprocal license if the applicant has, in the ten years
12-2 preceding the date of the reciprocal license application, been
12-3 finally convicted of a misdemeanor involving moral turpitude or a
12-4 felony. The commission shall set the reciprocal license fee in an
12-5 amount that is reasonable and necessary for the administration of
12-6 this Act. An applicant for a reciprocal license must:
12-7 (1) provide proof that:
12-8 (a) the license is in good standing;
12-9 (b) the applicant has practiced under the
12-10 license for at least:
12-11 (i) one year in the state that issued the
12-12 license if that state has license requirements substantially
12-13 equivalent to those of this state; or
12-14 (ii) five years in the state that issued
12-15 the license, if that state does not have license requirements
12-16 substantially equivalent to those of this state; and
12-17 (c) the applicant has graduated from an
12-18 accredited college of mortuary science; and
12-19 (2) pass a written examination of not more than 50
12-20 questions on applicable state laws and commission rules, which the
12-21 commission shall administer at each regularly scheduled meeting of
12-22 the commission.
12-23 SECTION 17. Subsection H, Section 3, Chapter 251, Acts of
12-24 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
12-25 Vernon's Texas Civil Statutes), is amended to read as follows:
12-26 H. The commission may, after a hearing as provided by
12-27 Section 6C of this Act, reprimand, assess an administrative
13-1 penalty, revoke, suspend, or probate the suspension of a license or
13-2 provisional license, or impose any combination of these sanctions
13-3 against a licensed funeral director, a licensed embalmer, or a
13-4 provisional licensee. The commission may assess an administrative
13-5 penalty before [without] a hearing or a waiver of a right to a
13-6 hearing if the penalty is assessed in the manner provided by
13-7 Section 6G of this Act. Action taken by the commission under this
13-8 section may be based only on a violation of this Act or a rule
13-9 adopted under this Act. The commission may refuse before [without]
13-10 a hearing or a waiver of a right to a hearing to license a person
13-11 or to permit a person to serve as a provisional licensee if the
13-12 person has been found to have violated this Act or a rule adopted
13-13 under this Act. A person whose license or provisional license
13-14 application is refused under this subsection may appeal the
13-15 decision by requesting a hearing not later than the 30th day after
13-16 the date of the refusal. The commission and the person whose
13-17 application for license or provisional license is refused may agree
13-18 to the issuance of a probationary license or the commission may,
13-19 after a hearing, order that a license be issued on a probationary
13-20 basis. A violation of this Act includes the following:
13-21 1. The presentation to the commission of any license,
13-22 certificate, or diploma that was illegally or fraudulently
13-23 obtained, or when fraud or deception has been practiced in passing
13-24 the examination;
13-25 2. Conviction of:
13-26 (A) a felony; or
13-27 (B) a misdemeanor related to the practice of
14-1 embalming or funeral directing;
14-2 3. Being unfit to practice as a funeral director
14-3 and/or embalmer by reason of insanity and having been adjudged by a
14-4 court of competent jurisdiction to be of unsound mind;
14-5 4. The use of any statement that misleads or deceives
14-6 the public, including but not limited to false or misleading
14-7 statements regarding (1) any legal, religious, or cemetery
14-8 requirement for funeral merchandise or funeral services, (2) the
14-9 preservative qualities of funeral merchandise or funeral services
14-10 in preventing or substantially delaying natural decomposition or
14-11 decay of human remains, (3) the airtight or watertight properties
14-12 of a casket or outer enclosure, or (4) representations as to
14-13 licensed personnel in the operation of a funeral establishment;
14-14 5. The purchase, sale, barter, or use, or any offer to
14-15 purchase, sell, barter, or use any license, certificate, or
14-16 transcript of license or certificate, in or incident to an
14-17 application to the commission for license to practice as a funeral
14-18 director and/or embalmer;
14-19 6. Altering, with fraudulent intent, any funeral
14-20 director and/or embalmer license, certificate, or transcript of
14-21 license or certificate;
14-22 7. The use of any funeral director and/or embalmer
14-23 license, certificate, diploma or transcript of any such funeral
14-24 director and/or embalmer license, certificate, or diploma that has
14-25 been fraudulently purchased, issued, counterfeited, or materially
14-26 altered;
14-27 8. The impersonation of, or acting as proxy for,
15-1 another in any examination required by this Act for a funeral
15-2 director and/or embalmer license;
15-3 9. The impersonation of a licensed funeral director or
15-4 embalmer as authorized by this Act, or permitting or allowing
15-5 another to use a person's license or certificate to practice as a
15-6 funeral director or embalmer in this state;
15-7 10. A violation of Chapter 154, Finance Code [Section
15-8 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular
15-9 Session, 1955 (Article 548b, Vernon's Texas Civil Statutes)], or a
15-10 rule adopted under that chapter [Act];
15-11 11. Taking custody of a dead human body without the
15-12 permission of the person or the agent of the person authorized to
15-13 make funeral arrangements for the deceased, or without the
15-14 permission of the medical examiner or justice of the peace when a
15-15 medical examiner or justice of the peace has jurisdiction over the
15-16 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
15-17 Criminal Procedure, refusing to promptly surrender a dead human
15-18 body to a person or agent authorized to make funeral arrangements
15-19 for the deceased, or embalming a body without the express written
15-20 or oral permission of a person authorized to make funeral
15-21 arrangements for the deceased or without making a documented
15-22 reasonable effort over a period of at least three (3) hours to
15-23 obtain the permission;
15-24 11A. Embalming or attempting to embalm without proper
15-25 authority a dead human body. Evidence of embalming or attempting
15-26 to embalm includes, but is not limited to, the making of any
15-27 incision on the body, the raising of any circulatory vessel of the
16-1 body, or the injection of any chemical into the body;
16-2 12. Wilfully making any false statement on a
16-3 certificate of death or on a document required by this Act or by a
16-4 rule adopted under this Act;
16-5 13. Employment directly or indirectly of any
16-6 provisional licensee, agent, assistant, embalmer, funeral director,
16-7 employee, or other person on a part or full-time basis, or on
16-8 commission, for the purpose of soliciting individuals or
16-9 institutions by whose influence dead human bodies may be turned
16-10 over to a particular funeral director, embalmer, or funeral
16-11 establishment;
16-12 14. Presentation of false certification of work done
16-13 as a provisional licensee;
16-14 15. Unfitness by reason of present substance abuse;
16-15 16. Whenever a licensee, provisional licensee, or any
16-16 other person, whether employee, agent, representative, or one in
16-17 any manner associated with a funeral establishment engages in
16-18 solicitation as defined in this Act;
16-19 17. Failure by the Funeral Director in Charge to
16-20 provide licensed personnel for direction or personal supervision
16-21 for a "first call," as that term is defined in this Act;
16-22 18. Misappropriation of any funds held by a licensee,
16-23 funeral establishment, including its employees and agents, or other
16-24 depository, that create an obligation to provide a funeral service
16-25 or merchandise, including retention for an unreasonable time of
16-26 excess funds paid by or on behalf of the consumer for which the
16-27 consumer is entitled to a refund;
17-1 19. Performing acts of funeral directing or embalming,
17-2 as those terms are defined in this Act, that are outside the
17-3 licensed scope and authority of the licensee, or performing acts of
17-4 funeral directing or embalming in a capacity other than that of an
17-5 employee, agent, subcontractor, or assignee of a licensed funeral
17-6 establishment that has contracted to perform those acts;
17-7 20. Engaging in fraudulent, unprofessional, or
17-8 deceptive conduct in providing funeral services or merchandise to a
17-9 consumer;
17-10 21. Statement or implication by a funeral director or
17-11 embalmer that a customer's concern with the cost of any funeral
17-12 service or funeral merchandise is improper or indicates a lack of
17-13 respect for the deceased;
17-14 22. Failure by any person arranging for funeral
17-15 services or merchandise to:
17-16 (A) provide a prospective customer with a copy
17-17 of the brochure required by Section 6E of this Act at the beginning
17-18 of the arrangement process;
17-19 (B) provide a retail price list to an individual
17-20 inquiring in person about any funeral service or merchandise for
17-21 that person to keep;
17-22 (C) explain to the customer or prospective
17-23 customer that a contractual agreement for funeral services or
17-24 merchandise may not be entered into before the presentation of the
17-25 retail price list to that person; or
17-26 (D) provide general price information by
17-27 telephone within a reasonable time;
18-1 23. Failure by any person arranging for funeral
18-2 services or merchandise to provide each customer at the conclusion
18-3 of the arrangement process a written memorandum or funeral purchase
18-4 agreement signed by the funeral director making the arrangements
18-5 itemizing the cost of funeral services and funeral merchandise
18-6 selected by the customer; however, if the customer selects a
18-7 package arrangement based on unit pricing, the itemization
18-8 requirement is satisfied by providing a written memorandum that
18-9 itemizes the discount provided by the package arrangement. The use
18-10 of unit pricing does not affect the presentation of the retail
18-11 price list as required by Subdivision 22 of this subsection;
18-12 24. Restricting, hindering, or attempting to restrict
18-13 or hinder (1) the advertising or disclosure of prices and other
18-14 information regarding the availability of funeral services and
18-15 funeral merchandise that is not unfair or deceptive to consumers,
18-16 or (2) agreements for funeral services between any consumer or
18-17 group of consumers and funeral directors or embalmers;
18-18 25. Failure to retain and make available to the
18-19 commission, upon request, copies of all price lists, written
18-20 notices, embalming documents, and memoranda of agreement required
18-21 by this Act for two (2) years after the date of their distribution
18-22 or signing;
18-23 26. Violation of this Act, any rule adopted under this
18-24 Act, an order by the commission revoking, suspending, or probating
18-25 a license, an order assessing an administrative penalty, or an
18-26 agreement to pay an administrative penalty [regardless of whether
18-27 the agreement is express or implied by Section 6G(d) of this Act];
19-1 27. Dishonest conduct, wilful conduct, negligence, or
19-2 gross negligence in the practice of embalming or funeral directing
19-3 that is likely to or does deceive, defraud, or otherwise injure the
19-4 public;
19-5 28. Allowing the use of a dead human body by an
19-6 embalming establishment for research or educational purposes
19-7 without complying with Section 4A of this Act;
19-8 29. Causing the execution of a document by the use of
19-9 fraud, deceit, or misrepresentation; and
19-10 30. Allowing the presence or participation of a
19-11 student for credit or satisfaction of academic requirements during
19-12 the embalming of a dead human body without complying with Section
19-13 4A of this Act.
19-14 SECTION 18. Subsection I, Section 3, Chapter 251, Acts of
19-15 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
19-16 Vernon's Texas Civil Statutes), is amended to read as follows:
19-17 I. The commission may issue such rules and regulations as
19-18 may be necessary [or desirable] to effect the intent of the
19-19 provisions of this Section.
19-20 SECTION 19. Section 4, Chapter 251, Acts of the 53rd
19-21 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
19-22 Civil Statutes), is amended to read as follows:
19-23 Sec. 4. FUNERAL ESTABLISHMENTS. A. All funeral
19-24 establishments shall be licensed by the commission. All licenses
19-25 shall expire at midnight on September 30th of each year. Funeral
19-26 establishments shall apply for a license, and upon satisfaction to
19-27 the commission that this Section has been complied with and upon
20-1 receipt of the licensing fee, an initial license shall be duly
20-2 issued to such new establishments. Not later than thirty (30) days
20-3 prior to the expiration date of licenses, the commission shall
20-4 cause to be issued notification in writing by mail to each licensed
20-5 funeral establishment that a renewal fee must be paid not later
20-6 than September 30th before such license shall be renewed, and upon
20-7 due receipt of such fees all existing licenses shall be considered
20-8 automatically renewed. Any establishment which fails to pay its
20-9 license renewal fee by the due date is subject to a late payment
20-10 penalty equal in amount to the license renewal fee, and if the
20-11 delinquency is more than thirty (30) days, the establishment shall
20-12 not be permitted to operate as a funeral home until it has applied
20-13 for and has been granted a new license as in the case of original
20-14 applications and licenses for new funeral establishments. The
20-15 commission shall set the funeral establishment license fee, the
20-16 renewal fee, and the penalty in an amount that is reasonable and
20-17 necessary for the administration of this Act.
20-18 B. No funeral establishment shall conduct funeral business
20-19 as intended under this Act unless duly licensed. The commission
20-20 may refuse to issue an establishment license to an individual,
20-21 partnership, or corporation if the individual, a partner, or an
20-22 officer or director of the corporation:
20-23 (1) has been convicted of a felony, or a misdemeanor
20-24 related to the practice of embalming or funeral directing;
20-25 (2) previously held an establishment license that was
20-26 suspended or revoked;
20-27 (3) has violated this Act, a rule adopted under this
21-1 Act, or Chapter 154, Finance Code [512, Acts of the 54th
21-2 Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
21-3 Civil Statutes)];
21-4 (4) submits false information on the application for
21-5 an establishment license; or
21-6 (5) attempts to avoid a revocation, suspension, or
21-7 license refusal by subterfuge or other evasive means.
21-8 C. 1. Each funeral establishment shall be required to have a
21-9 physical plant, equipment and personnel consisting of the
21-10 following:
21-11 (A) [1.] Some facilities in which funeral
21-12 services may be conducted;
21-13 (B) [2.] A physical plant which meets building
21-14 standards and fire safety standards of the state and of the
21-15 municipality in which the establishment is located;
21-16 (C) [3.] Access to rolling stock consisting of
21-17 at least one motor hearse;
21-18 (D) [4.] A preparation room containing
21-19 facilities, equipment, and supplies required by commission rule to
21-20 ensure the provision of adequate embalming services and other
21-21 facilities necessary to comply with the sanitary code of the state
21-22 and the municipality in which the room is located;
21-23 (E) [5.] A display containing sufficient
21-24 merchandise to permit reasonable selection, including five (5) or
21-25 more adult caskets, provided that the least expensive casket
21-26 offered for sale by a funeral establishment must be visibly
21-27 displayed without concealment in the same general manner as other
22-1 caskets are displayed;
22-2 (F) [6.] Sufficient licensed personnel who will
22-3 be available to conduct the operation of the funeral establishment;
22-4 (G) [7.] A physical plant located at a fixed
22-5 place, and not located on any tax-exempt property or cemetery; and
22-6 (H) [8.] A physical plant which meets the health
22-7 standards or health ordinances of the state and of the municipality
22-8 in which the establishment is located.
22-9 2. It is expressly provided, however, that an
22-10 establishment which functions solely as a commercial embalmer, as
22-11 that term is defined in this Act, shall have a commercial embalmers
22-12 establishment license, but shall not be required to meet the
22-13 requirements of Paragraphs (A) [sub-sections 1] and (E) [5] of
22-14 Subdivision 1 of this Subsection [paragraph] C.
22-15 3. An embalming service, whether provided at a funeral
22-16 establishment or other embalming facility licensed under this Act,
22-17 must comply with this Act or a rule adopted under this Act.
22-18 D. 1. The commission may exempt a funeral establishment from
22-19 the requirements of Subsection C. 1.(D) of this section if:
22-20 (A) the majority owner or designated agent of
22-21 record of a funeral establishment submits a written petition to the
22-22 commission requesting an exemption and stating:
22-23 (i) the establishment's name and address;
22-24 (ii) that the establishment is located
22-25 within 50 miles of a facility owned by the establishment requesting
22-26 the exemption and at which embalming services may be performed; and
22-27 (iii) that no embalming services will be
23-1 performed at the establishment; and
23-2 (B) the commission determines that the criteria
23-3 in Paragraph (A) of this subsection have been met.
23-4 2. The executive director shall notify the petitioner
23-5 of the commission's decision.
23-6 3. The exemption remains in effect until:
23-7 (A) the establishment is no longer located
23-8 within 50 miles of a facility owned by the exempt establishment or
23-9 at which embalming services may be performed; or
23-10 (B) an embalming service has been performed at
23-11 the establishment.
23-12 E [D]. 1. The commission may, after a hearing as provided by
23-13 Section 6C of this Act, reprimand, assess an administrative
23-14 penalty, revoke, suspend, or probate the suspension of a license,
23-15 or impose any combination of these sanctions against a licensed
23-16 funeral establishment. The commission may assess an administrative
23-17 penalty before [without] a hearing or a waiver of a right to a
23-18 hearing if the penalty is assessed as provided by Section 6G of
23-19 this Act. Action taken by the commission under this section may
23-20 only be based on a violation of this Act or a rule adopted under
23-21 this Act. The commission may refuse before [without] a hearing or
23-22 a waiver of a right to a hearing to license an establishment if an
23-23 owner of the establishment has been found to have committed an act
23-24 listed in Subsection B of this section. An establishment whose
23-25 license is refused under this subsection may appeal the decision by
23-26 requesting a hearing not later than the 30th day after the date of
23-27 the refusal. The commission and the establishment whose
24-1 application for license is refused may agree to the issuance of a
24-2 probationary license or the commission may, after a hearing, order
24-3 that a license be issued on a probationary basis. A funeral
24-4 establishment alleged to have violated this section may waive the
24-5 right to a hearing as provided by Section 6C of this Act. A
24-6 violation of this Act includes the following:
24-7 (a) Failure of a funeral establishment to
24-8 substantially comply with the provisions of Subsection B or C of
24-9 this Section.
24-10 (b) Failure by any person associated with the
24-11 funeral establishment, whether as an employee, agent,
24-12 subcontractor, assignee, owner, or otherwise, and whether licensed
24-13 or unlicensed, to comply with this Act or a rule adopted under this
24-14 Act.
24-15 (c) The use of any advertising statement of a
24-16 character that misleads or deceives the public, or use of, in
24-17 connection with advertisements, the names of persons who do not
24-18 hold a license as a funeral director or embalmer and representing
24-19 them as being so licensed.
24-20 (d) Whenever a licensee, provisional licensee,
24-21 or any other person, whether an employee, agent, or representative,
24-22 or one in any manner associated with a funeral establishment shall
24-23 solicit business or offer any inducement, pecuniary or otherwise,
24-24 for the purpose of securing or attempting to secure business for
24-25 such funeral establishment, unless such solicitation is made
24-26 pursuant to a permit issued under Subchapter C, Chapter 154,
24-27 Finance Code [512, Acts of the 54th Legislature, Regular Session,
25-1 1955 (Article 548b, Vernon's Texas Civil Statutes)].
25-2 (e) Failure by the funeral director in charge to
25-3 provide a licensed funeral director for direction or personal
25-4 supervision of a "first call" as that term is defined in this Act.
25-5 (f) Any violation by a funeral establishment or
25-6 a person acting on behalf of a funeral establishment or any person
25-7 directly or indirectly connected with a funeral establishment of
25-8 Chapter 154, Finance Code [512, Acts of the 54th Legislature,
25-9 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
25-10 Statutes)] or a rule adopted under that chapter [Act].
25-11 (g) Any violation by a funeral establishment or
25-12 a person acting on behalf of a funeral establishment of Chapter 193
25-13 or 361, Health and Safety Code.
25-14 2. With respect to violations of Subsection E [D].
25-15 1.(b), (c), (d), (e), (f), or (g), the commission may not initiate
25-16 action against a funeral establishment or in regard to the license
25-17 of a funeral establishment if the complaint is based on the conduct
25-18 of employees, agents, or representatives of such establishment
25-19 performed outside the scope and authority of their employment or
25-20 contrary to the instructions of the funeral establishment and its
25-21 management.
25-22 F [E]. Each funeral establishment shall designate to the
25-23 commission a funeral director in charge, and such funeral director
25-24 in charge shall be directly responsible for the funeral directing
25-25 and embalming business of the licensee. The funeral director in
25-26 charge is ultimately responsible for compliance with the mortuary
25-27 laws. The funeral director in charge may be charged with a
26-1 violation of this Act if a violation occurs in the funeral
26-2 establishment. Any change or changes in such designation of
26-3 funeral director shall be given to the commission promptly.
26-4 G [F]. The commission may issue such rules and regulations
26-5 as shall comply with and shall effect the intent of the provisions
26-6 of this Section.
26-7 H [G]. (1) Any premises on which funeral directing or
26-8 embalming is practiced shall be open at all times to inspection for
26-9 violations of this Act and of Chapters 193 and 361, Health and
26-10 Safety Code, by any agent of the commission or by any duly
26-11 authorized agent of the state or of the county or municipality in
26-12 which the premises are located. Each licensed funeral
26-13 establishment shall be thoroughly inspected annually by an agent of
26-14 the commission or by an agent of the state or a political
26-15 subdivision thereof whom the commission has authorized to make
26-16 inspections on its behalf. A report of this annual inspection
26-17 shall be filed with the commission.
26-18 (2) Before an agent of the commission conducts an
26-19 inspection of an establishment, the agent shall review the
26-20 inspection reports on the establishment filed with the commission.
26-21 During the inspection, the agent shall determine whether previously
26-22 identified problems have been corrected and whether a pattern of
26-23 violations exists. The commission shall consider the information
26-24 from inspection reports when the commission determines whether a
26-25 penalty should be imposed against an establishment.
26-26 (3) When an agent inspects an establishment, the agent
26-27 shall inspect for violations under this Act and under Chapters 193
27-1 and 361, Health and Safety Code.
27-2 (4) The commission by rule shall establish procedures
27-3 for the inspection of a funeral establishment required by this
27-4 subsection.
27-5 I [H]. The commission may require funeral establishments
27-6 with solid waste disposal and sanitation facilities that have not
27-7 been inspected by the Texas Department of Health to obtain
27-8 inspection of those facilities by an entity other than the Texas
27-9 Department of Health. The commission by rule shall establish
27-10 procedures for inspections required under this subsection.
27-11 J [I]. (1) The commission, the Texas Department [State
27-12 Board] of Insurance, and the Banking Department of Texas shall
27-13 adopt a joint memorandum of understanding relating to prepaid
27-14 funeral services and transactions that:
27-15 (a) outlines the responsibilities of each agency
27-16 in regulating these services and transactions;
27-17 (b) establishes procedures to be used by each
27-18 agency in referring complaints to one of the other agencies;
27-19 (c) establishes procedures to be used by each
27-20 agency in investigating a complaint;
27-21 (d) establishes procedures to be used by each
27-22 agency in notifying the other agencies of a complaint or of the
27-23 investigation of a complaint;
27-24 (e) specifies actions the agencies regard as
27-25 deceptive trade practices;
27-26 (f) specifies the information the agencies
27-27 provide consumers and when that information is to be provided; and
28-1 (g) sets the administrative penalties each
28-2 agency imposes for violations.
28-3 (2) Not later than the last month of each state fiscal
28-4 year, the commission and other agencies shall review and update the
28-5 memorandum of understanding.
28-6 (3) Each agency by rule shall adopt the memorandum of
28-7 understanding and all revisions to the memorandum.
28-8 K [J]. (1) The commission and the Texas Department of
28-9 Health shall adopt a joint memorandum of understanding that:
28-10 (a) outlines the responsibilities of each agency
28-11 in regulating funeral establishment requirements under Chapters 193
28-12 and 361, Health and Safety Code;
28-13 (b) establishes procedures by which each agency
28-14 may refer complaints to the other;
28-15 (c) establishes procedures by which each agency
28-16 will notify the other of violations by funeral establishments under
28-17 Chapters 193 and 361, Health and Safety Code; and
28-18 (d) coordinates inspection and enforcement
28-19 efforts by both agencies for measures that funeral establishments
28-20 are required to implement under Chapters 193 and 361, Health and
28-21 Safety Code.
28-22 (2) Not later than the last month of each state fiscal
28-23 year, the commission and the Texas Department of Health shall
28-24 review and update the memorandum of understanding.
28-25 (3) Each agency by rule shall adopt the memorandum of
28-26 understanding and all revisions to the memorandum.
28-27 SECTION 20. Subsection B, Section 5, Chapter 251, Acts of
29-1 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
29-2 Vernon's Texas Civil Statutes), is amended to read as follows:
29-3 B. All rules adopted by the commission are subject to the
29-4 Administrative Procedure [and Texas Register] Act, Chapter 2001,
29-5 Government Code [(Article 6252-13a, Vernon's Texas Civil
29-6 Statutes)].
29-7 SECTION 21. Section 6C, Chapter 251, Acts of the 53rd
29-8 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
29-9 Civil Statutes), is amended to read as follows:
29-10 Sec. 6C. APPLICATION OF ADMINISTRATIVE PROCEDURE [AND TEXAS
29-11 REGISTER] ACT. (a) A person who is denied a license or
29-12 provisional license by the commission is entitled to a hearing
29-13 before the commission in accordance with the Administrative
29-14 Procedure [and Texas Register] Act, Chapter 2001, Government Code
29-15 [(Article 6252-13a, Vernon's Texas Civil Statutes)], if the person
29-16 requests the hearing in writing not later than the 30th day after
29-17 the date the notice of denial is sent.
29-18 (b) A proceeding conducted by the commission relating to the
29-19 denial of a license or provisional license, the suspension or
29-20 revocation of a license, [or] the imposition of an administrative
29-21 penalty, or a reprimand other than an administrative penalty
29-22 assessed before [without] a hearing or a waiver of a hearing as
29-23 provided by Section 6G of this Act, is governed by the
29-24 Administrative Procedure [and Texas Register] Act, Chapter 2001,
29-25 Government Code [as amended (Article 6252-13a, Vernon's Texas Civil
29-26 Statutes)]. Judicial review of the proceeding is subject to the
29-27 substantial evidence rule and is governed by the Administrative
30-1 Procedure [and Texas Register] Act.
30-2 (c)(1) A proceeding brought under Subsection (b) of this
30-3 section shall [may] be held before an administrative law judge
30-4 employed by the State Office of Administrative Hearings [a hearings
30-5 officer]. [The executive director shall set a time and place for
30-6 the hearing.]
30-7 (2) [The hearings officer must be an attorney licensed
30-8 in this state.] In the course of a proceeding the administrative
30-9 law judge [hearings officer] may:
30-10 (A) administer oaths;
30-11 (B) take testimony;
30-12 (C) rule on questions of evidence;
30-13 (D) make determinations of fact; or
30-14 (E) order compliance with proper discovery
30-15 requests.
30-16 (3) The commission shall provide the administrative
30-17 law judge [hearings officer] with a written statement of all
30-18 commission rules or policies that govern the proceeding.
30-19 (4) At the conclusion of the proceeding the
30-20 administrative law judge [hearings officer] shall make a ruling on
30-21 the matter accompanied by written findings of facts and conclusions
30-22 of law.
30-23 (5) The commission shall review the findings of fact,
30-24 conclusions of law, and ruling of the administrative law judge
30-25 [hearings officer] before making its final ruling in the
30-26 proceeding. The commission may also review a transcript of the
30-27 proceeding before making its final ruling. The commission shall
31-1 adopt the ruling of the administrative law judge [hearings officer]
31-2 as its ruling unless it finds good cause to issue a different
31-3 ruling. The commission shall explain in writing the reasons for
31-4 adopting a ruling other than the one issued by the administrative
31-5 law judge [hearings officer].
31-6 (d) The commission shall inform each interested person,
31-7 including a person filing the complaint, of the right to obtain at
31-8 that person's cost a tape or transcript of a hearing or proceeding
31-9 under this section.
31-10 (e) A funeral establishment alleged to have violated this
31-11 Act or a rule adopted under this Act may waive the right to a
31-12 hearing as provided by this section by written notification to the
31-13 commission.
31-14 SECTION 22. Section 6D, Chapter 251, Acts of the 53rd
31-15 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
31-16 Civil Statutes), is amended to read as follows:
31-17 Sec. 6D. COMPLAINTS. (a) The commission shall investigate
31-18 each complaint received by the commission relating to a funeral
31-19 director, embalmer, apprentice, or funeral establishment. The
31-20 commission shall keep an information file about each complaint
31-21 filed with the commission that the commission has authority to
31-22 resolve.
31-23 (b) The commission shall include in each information file a
31-24 description of the complaint, the date on which the complaint was
31-25 filed, the name of the complainant, a description of any
31-26 information obtained by the commission after investigating the
31-27 complaint, a description and date of any formal actions taken by
32-1 the commission relating to the complaint, a description of the
32-2 current status of the complaint, and other information that the
32-3 commission considers appropriate.
32-4 (c) If a written complaint is filed with the commission that
32-5 the commission has authority to resolve, the commission, at least
32-6 quarterly until final disposition of the complaint and on final
32-7 disposition of the complaint, shall notify the parties to the
32-8 complaint of the status of the complaint unless the notice would
32-9 jeopardize an undercover investigation.
32-10 (d) The information file[, except for information in the
32-11 file obtained by the commission after investigating the complaint,]
32-12 is public information, except for information relating to a
32-13 complaint that has not reached a final disposition. [The
32-14 information obtained after investigating the complaint is not
32-15 public information.]
32-16 (e) If a person files a complaint with the commission
32-17 relating to a licensed funeral director, embalmer, provisional
32-18 licensee, or funeral establishment, the commission shall furnish to
32-19 the person an explanation of the remedies that are available to the
32-20 person under this Act and information about appropriate state or
32-21 local agencies or officials with which the person may file a
32-22 complaint.
32-23 (f) The commission shall employ [or contract for the
32-24 services of] one or more persons to investigate complaints of
32-25 consumer interest and other complaints received by the commission.
32-26 [A person who is subject to regulation under this Act may not serve
32-27 as an investigator. To serve in this position in a contractual
33-1 capacity, a person must be licensed as a private investigator under
33-2 state law. To serve in this position as an employee of the
33-3 commission, a person must:]
33-4 [(1) hold a current license as a private investigator
33-5 in this state;]
33-6 [(2) have been previously licensed under state or
33-7 federal law as a private investigator; or]
33-8 [(3) have been previously employed by a local, state,
33-9 or federal law enforcement agency as an investigator.]
33-10 (g) The complainant is entitled to attend any proceeding
33-11 resulting from the complaint.
33-12 SECTION 23. Section 6F, Chapter 251, Acts of the 53rd
33-13 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
33-14 Civil Statutes), is amended to read as follows:
33-15 Sec. 6F. EX PARTE COMMUNICATIONS. The commissioners and the
33-16 employees of the commission are subject to the provisions of the
33-17 Administrative Procedure [and Texas Register] Act, Chapter 2001,
33-18 Government Code [as amended (Article 6252-13a, Vernon's Texas Civil
33-19 Statutes)], relating to ex parte communications.
33-20 SECTION 24. Subsections (c) and (e), Section 6G, Chapter
33-21 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
33-22 4582b, Vernon's Texas Civil Statutes), are amended to read as
33-23 follows:
33-24 (c) If, after examination of a possible violation and the
33-25 facts relating to that possible violation, the commission concludes
33-26 that a violation has occurred, the commission shall issue a
33-27 preliminary report that states the facts on which the conclusion is
34-1 based, the fact that an administrative penalty is to be imposed,
34-2 and the amount to be assessed. Until an order has been entered
34-3 after a hearing on the possible violation, the amount to be
34-4 assessed may be disclosed only to the person or establishment
34-5 charged with the violation, unless that person or establishment has
34-6 waived the right to a hearing or paid the amount to the commission.
34-7 Not later than the tenth (10th) day after the day on which the
34-8 commission issues the preliminary report, the commission shall send
34-9 a copy of the report to the person or establishment charged with
34-10 the violation, together with a statement of the right of the person
34-11 or establishment to a hearing relating to the alleged violation and
34-12 the amount of the penalty.
34-13 (e)(1) If an administrative penalty is assessed after a
34-14 hearing conducted under Section 6C of this Act, not later than the
34-15 thirtieth (30th) day after the date on which the order is sent or a
34-16 motion for rehearing is denied, the person or establishment charged
34-17 shall pay the administrative penalty in full, or[, if] the person
34-18 or establishment may, not later than the 30th day after the date
34-19 the order is sent or a motion for rehearing is denied, [wishes to]
34-20 contest either the amount of the penalty or the fact of the
34-21 violation, but if the penalty that the person or establishment
34-22 wishes to contest is greater than $5,000, the person or
34-23 establishment shall not later than the thirtieth (30th) day after
34-24 the date on which the order is sent or a motion for rehearing is
34-25 denied:
34-26 (A) [remit the assessed amount to the commission
34-27 for deposit in an escrow account; or]
35-1 [(B)] post a supersedeas bond in a form approved
35-2 by the commission for the amount of the penalty; or
35-3 (B) if the person or establishment cannot afford
35-4 to pay the penalty or file the bond, files an affidavit in the
35-5 manner required by the Texas Rules of Civil Procedure for a person
35-6 who cannot afford to file security for costs, subject to the right
35-7 of the commission to contest the affidavit as provided by those
35-8 rules.
35-9 (2) If, after judicial review, it is determined that
35-10 no violation occurred [or that the amount of the penalty should be
35-11 reduced], the court shall order, when the court's judgment becomes
35-12 final, the release of the bond if the person or establishment gave
35-13 a supersedeas bond. If the person or establishment gave a
35-14 supersedeas bond and the amount of the penalty is reduced, the
35-15 court shall order the release of the bond after the person or
35-16 establishment pays the reduced amount. [commission shall remit the
35-17 appropriate amount to the person or establishment charged with the
35-18 violation not later than the thirtieth (30th) day after the date on
35-19 which the judicial determination becomes final.]
35-20 SECTION 25. Section 6H, Chapter 251, Acts of the 53rd
35-21 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
35-22 Civil Statutes), is amended to read as follows:
35-23 Sec. 6H. REPRIMAND. [(a)] If the commission determines
35-24 that a person or establishment regulated under this Act has
35-25 violated this Act or a rule adopted under this Act, the commission
35-26 may issue a reprimand against that person or establishment. The
35-27 commission may issue the reprimand without any other sanction or in
36-1 conjunction with the assessment of an administrative penalty or the
36-2 revocation, suspension, or probation of the license. The
36-3 commission may issue a letter of reprimand:
36-4 (1) after a hearing conducted in the manner provided
36-5 by Section 6C of this Act; or
36-6 (2) without a hearing if the person or establishment
36-7 waives a hearing [or as provided by this section].
36-8 [(b) If, after examination of a possible violation and the
36-9 facts relating to that possible violation, the commission concludes
36-10 that a violation has occurred, the commission may issue a
36-11 preliminary report that states the facts on which the conclusion is
36-12 based and that a reprimand is to be issued. If the reprimand is to
36-13 be issued in addition to the assessment of an administrative
36-14 penalty under Section 6G of this Act, the preliminary reports may
36-15 be combined. Not later than the tenth (10th) day after the day on
36-16 which the commission issues the preliminary report, the commission
36-17 shall send a copy of the report to the person or establishment
36-18 charged with the violation, together with a statement of the right
36-19 of the person or establishment to a hearing relating to the alleged
36-20 violations.]
36-21 [(c) Not later than the thirtieth (30th) day after the date
36-22 on which the preliminary report is sent, the person or
36-23 establishment charged may make a written request for a hearing.
36-24 Failure to request a hearing within the time provided by this
36-25 subsection results in a waiver of a right to a hearing under this
36-26 Act and the reprimand shall be issued by the commission and placed
36-27 in the permanent files of the commission. If the person or
37-1 establishment charged requests a hearing, the hearing shall be
37-2 conducted in the manner provided by Section 6C of this Act. If it
37-3 is determined after hearing that the person or establishment has
37-4 committed the alleged violation, the commission is not limited to
37-5 the issuance of a reprimand but may also take any action allowed
37-6 under this Act.]
37-7 SECTION 26. Section 6I, Chapter 251, Acts of the 53rd
37-8 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
37-9 Civil Statutes), is amended to read as follows:
37-10 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The commission
37-11 or an administrative law judge employed by the State Office of
37-12 Administrative Hearings [a hearings officer] shall review each
37-13 disciplinary proceeding to determine whether the licensee has
37-14 committed the same type of violation on one or more previous
37-15 occasions. If it is determined that the licensee has previously
37-16 committed the same type of violation, the commission or the
37-17 administrative law judge [hearings officer] shall impose a
37-18 disciplinary action that is more severe than that imposed on the
37-19 previous occasion.
37-20 (b) In a disciplinary proceeding involving multiple
37-21 violations of this Act, the commission or the administrative law
37-22 judge [hearings officer] shall impose a disciplinary action that is
37-23 more severe than the disciplinary action that would be imposed
37-24 cumulatively for each of the individual violations.
37-25 SECTION 27. (a) This Act takes effect September 1, 1999.
37-26 (b) The changes in law made by this Act apply only to an
37-27 offense committed on or after the effective date of this Act. For
38-1 purposes of this section, an offense is committed before the
38-2 effective date of this Act if any element of the offense occurs
38-3 before that date. An offense committed before the effective date
38-4 of this Act is covered by the law in effect when the offense was
38-5 committed, and the former law is continued in effect for that
38-6 purpose.
38-7 (c) The changes in law made by this Act apply only to a
38-8 proceeding commenced on or after the effective date of this Act. A
38-9 proceeding that is commenced before the effective date of this Act
38-10 is governed by the law in effect when the proceeding was commenced,
38-11 and that law is continued in effect for that purpose.
38-12 SECTION 28. (a) The terms of the members of the Texas
38-13 Funeral Service Commission serving on the effective date of this
38-14 Act expire, and that policymaking body as it existed immediately
38-15 before the effective date of this Act is abolished on the effective
38-16 date of this Act.
38-17 (b) As soon as practicable after the effective date of this
38-18 Act, the governor shall make appointments to the Texas Funeral
38-19 Service Commission to accomplish the membership plan for the
38-20 commission established by Section 2, Chapter 251, Acts of the 53rd
38-21 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-22 Civil Statutes), as amended by this Act. This section does not
38-23 prohibit a person who is a member of the commission on the
38-24 effective date of this Act and who possesses the qualifications
38-25 required under Section 2, Chapter 251, Acts of the 53rd
38-26 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
38-27 Civil Statutes), as amended by this Act, from being reappointed to
39-1 the commission under this subsection.
39-2 (c) In making appointments under this section, the governor
39-3 shall appoint:
39-4 (1) two members for terms expiring on February 1,
39-5 2001;
39-6 (2) two members for terms expiring on February 1,
39-7 2003; and
39-8 (3) two members for terms expiring on February 1,
39-9 2005.
39-10 SECTION 29. Subsection C, Section 2, Chapter 251, Acts of
39-11 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
39-12 Vernon's Texas Civil Statutes), is amended to read as follows:
39-13 C. The commission shall meet in Austin, Texas, in regular
39-14 session at least once each calendar quarter [two (2) times] for the
39-15 transaction of business. Examination for funeral directors and
39-16 embalmers shall be held at least once during each year at such
39-17 times and places as the commission may designate and give due
39-18 notice thereof. Special meetings or hearings may be held at such
39-19 time and place as may be determined by and upon call of the
39-20 presiding officer [Chairman], assistant presiding officer
39-21 [Vice-chairman], or three (3) members [commissioners].
39-22 SECTION 30. The importance of this legislation and the
39-23 crowded condition of the calendars in both houses create an
39-24 emergency and an imperative public necessity that the
39-25 constitutional rule requiring bills to be read on three several
39-26 days in each house be suspended, and this rule is hereby suspended.