1-1 By: Marchant (Senate Sponsor - Carona) H.B. No. 3516
1-2 (In the Senate - Received from the House May 7, 1999;
1-3 May 10, 1999, read first time and referred to Committee on
1-4 Administration; May 13, 1999, reported favorably by the following
1-5 vote: Yeas 5, Nays 0; May 13, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the regulation of funeral directing and embalming.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Subsection C, Section 1, Chapter 251, Acts of the
1-11 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-12 Texas Civil Statutes), is amended to read as follows:
1-13 C. (1) The term "first call" shall mean the beginning of
1-14 the relationship and duty of the funeral director to take charge of
1-15 a dead human body and have same prepared by embalming, cremation,
1-16 or otherwise, for burial or disposition, provided all laws
1-17 pertaining to public health in this state are complied with.
1-18 "First call" does not include calls made by ambulance, when the
1-19 person dispatching the ambulance does not know whether a dead human
1-20 body is to be picked up. A dead human body shall be picked up on
1-21 first call only under the direction and personal supervision of a
1-22 licensed funeral director or embalmer.
1-23 (2) A dead human body may be transferred without a
1-24 licensed funeral director personally making the transfer:
1-25 (a) from one funeral home to another funeral
1-26 home; [and]
1-27 (b) from a funeral home to and from a morgue
1-28 where an autopsy is to be performed;
1-29 (c) to and from an airport, a crematory, or both
1-30 an airport and a crematory; or
1-31 (d) in [without a licensed funeral director
1-32 personally making the transfer. In] circumstances in which there
1-33 is no reasonable probability that unlicensed personnel will
1-34 encounter family members or other persons with whom funeral
1-35 arrangements are normally made by licensed funeral directors or
1-36 embalmers[, a dead human body may be picked up or transferred
1-37 without the personal supervision of a funeral director or
1-38 embalmer].
1-39 (3) Any inadvertent contact with family members or
1-40 other persons shall be restricted to unlicensed personnel
1-41 identifying the employer to the person, arranging an appointment
1-42 with the employer for any person who indicates a desire to make
1-43 funeral arrangements for the deceased, and making any disclosure to
1-44 the person that is required by any federal or state regulation. A
1-45 funeral director or embalmer who directs the removal or transfer of
1-46 a dead human body without providing personal supervision shall be
1-47 held strictly accountable for compliance with the requirements of
1-48 and exceptions to "first call" as provided by this Act.
1-49 SECTION 2. Subdivision (1), Subsection A, Section 2, Chapter
1-50 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
1-51 4582b, Vernon's Texas Civil Statutes), is amended to read as
1-52 follows:
1-53 (1) There is hereby created the Texas Funeral Service
1-54 Commission, with offices located in Austin, Texas, consisting of
1-55 six [nine (9)] commissioners who shall be citizens of the United
1-56 States and residents of the State of Texas. Two [Four (4)]
1-57 commissioners must hold a license as both an embalmer and a funeral
1-58 director [be licensed embalmers or funeral directors] in the State
1-59 of Texas and each of these commissioners must have a minimum of
1-60 five [(5)] years, consecutively, of such experience in this state
1-61 immediately preceding appointment. Four [At least three (3) such
1-62 licensed commissioners shall be embalmers. Five (5)] commissioners
1-63 must be representatives of the general public who are not regulated
1-64 under this Act and who have consistently shown an interest in
2-1 supporting consumer protection. A person is not eligible for
2-2 appointment as a public member of the commission if the person or
2-3 the person's spouse:
2-4 (a) is registered, certified, or licensed by an
2-5 occupational regulatory agency in the field of funeral services;
2-6 (b) is employed by or participates in the
2-7 management of a business entity or other organization regulated by
2-8 the commission or receiving funds from the commission;
2-9 (c) owns or controls, directly or indirectly,
2-10 any interest in a business entity or other organization regulated
2-11 by the commission or receiving funds from the commission; or
2-12 (d) uses or receives a substantial amount of
2-13 tangible goods, services, or funds from the commission, other than
2-14 compensation or reimbursement authorized by law for commission
2-15 membership, attendance, or expenses.
2-16 SECTION 3. Subdivision (2), Subsection A, Section 2, Chapter
2-17 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
2-18 4582b, Vernon's Texas Civil Statutes), is amended to read as
2-19 follows:
2-20 (2) The commissioners shall be appointed by the
2-21 Governor, by and with the consent of the Senate for staggered terms
2-22 of six (6) years, with the terms of one-third of the commissioners
2-23 expiring in each odd-numbered year. Each commissioner shall be
2-24 subject to removal by the Governor for neglect of duty,
2-25 incompetence, or fraudulent or dishonest conduct. The Governor
2-26 shall remove from the commission any commissioner whose license to
2-27 practice funeral directing and/or embalming has been voided,
2-28 revoked or suspended. Any vacancy in an unexpired term shall be
2-29 filled by appointment of the Governor for the unexpired term. No
2-30 commissioner shall be appointed for more than one (1) full term of
2-31 service, except that a commissioner appointed to fill an unexpired
2-32 term with less than three years remaining in the unexpired term may
2-33 be reappointed to the commission for one full term of service.
2-34 SECTION 4. Subdivision (5), Subsection A, Section 2, Chapter
2-35 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
2-36 4582b, Vernon's Texas Civil Statutes), is amended to read as
2-37 follows:
2-38 (5) Two commissioners may participate in any informal
2-39 conference relating to a case that awaits a hearing as described by
2-40 Section 6C of this Act. One of the two commissioners must hold
2-41 [be] a license as both a [licensed] funeral director and [or]
2-42 embalmer and one must be a public member of the commission. A
2-43 commissioner who has a personal or private interest, or is employed
2-44 by an entity with a personal or private interest, in a measure,
2-45 proposal, or decision pending before the commission may not vote or
2-46 participate in an informal conference relating to that interest as
2-47 provided by Section 572.058, Government Code.
2-48 SECTION 5. Subdivision (6), Subsection A, Section 2, Chapter
2-49 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
2-50 4582b, Vernon's Texas Civil Statutes), is amended to read as
2-51 follows:
2-52 (6) No person shall be appointed to the commission who
2-53 is an officer or employee of a corporation or other business entity
2-54 controlling or operating, directly or indirectly, more than three
2-55 funeral establishments, if another commissioner is also an officer
2-56 or employee of the same corporation or other business entity. A
2-57 violation of this subdivision that occurs after a member is
2-58 appointed constitutes a vacancy of each of those member's
2-59 positions, as of the date of the completion of the merger or other
2-60 agreement. A vacancy under this subdivision shall be filled by the
2-61 governor as soon as practicable. A member appointed to fill a
2-62 vacancy under this subdivision serves for the remainder of the
2-63 vacated term.
2-64 SECTION 6. Subdivision (7), Subsection A, Section 2, Chapter
2-65 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
2-66 4582b, Vernon's Texas Civil Statutes), is amended to read as
2-67 follows:
2-68 (7) A person may not serve as a member of the
2-69 commission [or act as the general counsel to the commission] if the
3-1 person is required to register as a lobbyist under Chapter 305,
3-2 Government Code, because of the person's activities for
3-3 compensation on behalf of a profession related to the operation of
3-4 the commission.
3-5 SECTION 7. Subsection D, Section 2, Chapter 251, Acts of the
3-6 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-7 Texas Civil Statutes), is amended to read as follows:
3-8 D. The Governor shall designate a public member of the
3-9 commission [one commissioner] as the presiding officer [Chairman]
3-10 of the commission to serve in that capacity at the pleasure of the
3-11 Governor. The commission shall elect, after thirty days [(30)
3-12 days'] written notice is given to the commissioners, a public
3-13 member to [Vice-chairman and Secretary from the commissioners who
3-14 shall] serve as assistant presiding officer for one [(1)] year, or
3-15 until a [their] successor is [shall be] elected and qualified in
3-16 cases of resignation or death. In the absence of an Executive
3-17 Director, the commission may appoint an acting Executive Director.
3-18 The acting Executive Director shall be bonded to the State of Texas
3-19 in a sum equal to the maximum annual anticipated receipts of the
3-20 commission and any premium payable for such bond shall be paid from
3-21 the funds of the commission; likewise, the commission will require
3-22 a bond of the Executive Director, if any, and such bond shall be
3-23 deposited with the comptroller of the State of Texas. The
3-24 presiding officer [Chairman] of the commission shall preside at all
3-25 meetings of the commission unless otherwise ordered, and [he] shall
3-26 exercise all duties and performances incident to the office of
3-27 presiding officer [Chairman] of the commission, and in the
3-28 presiding officer's [his] absence the assistant presiding officer
3-29 [Vice-chairman] shall preside. A majority of the commissioners
3-30 shall constitute a quorum for the transaction of business.
3-31 SECTION 8. Subsection E, Section 2, Chapter 251, Acts of the
3-32 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-33 Texas Civil Statutes), is amended to read as follows:
3-34 E. (1) The commission shall file annually with the Governor
3-35 and the presiding officer of each house of the legislature a
3-36 complete and detailed written report accounting for all funds
3-37 received and disbursed by the commission during the preceding
3-38 fiscal year. The annual report must be in the form and reported in
3-39 the time provided by the General Appropriations Act.
3-40 (2) The commission shall file annually with the
3-41 Governor a list of the names of all duly licensed funeral
3-42 directors, embalmers, and funeral establishments. A copy shall be
3-43 filed with the Secretary of State for permanent record, a certified
3-44 copy of which, under the hand of the Secretary of State and the
3-45 state seal, shall be admissible as evidence in all courts.
3-46 (3) The commission shall file annually with the
3-47 Governor a written description of the activities of the commission
3-48 during the preceding fiscal year.
3-49 (4) The commission shall file annually with the
3-50 governor a report on the commission's compliance with Subsections P
3-51 and Q of this section.
3-52 SECTION 9. Subsection H, Section 2, Chapter 251, Acts of the
3-53 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-54 Texas Civil Statutes), is amended to read as follows:
3-55 H. The commission may employ such inspectors, and clerical
3-56 and technical assistants[, legal counsel other than the attorney
3-57 general, and an Executive Director,] as may be determined by it to
3-58 be necessary to carry out the provisions of this Act, and the
3-59 terms, conditions and expenses of such employment shall be
3-60 determined by the commission. The commission shall employ and
3-61 supervise an executive director to manage the administrative
3-62 affairs of the commission under this Act. The commission shall
3-63 determine the terms and conditions of the employment and set the
3-64 salary of the executive director at an amount not to exceed the
3-65 maximum salary for the position as set in the General
3-66 Appropriations Act. The commission may delegate the commissioner's
3-67 duties to the executive director. The attorney general shall
3-68 designate at least one employee of the attorney general's office to
3-69 advise the commission and to represent the commission in legal
4-1 proceedings. The commission may not employ legal counsel except as
4-2 provided by Section 402.0212, Government Code.
4-3 SECTION 10. Subsection K, Section 2, Chapter 251, Acts of
4-4 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
4-5 Vernon's Texas Civil Statutes), is amended to read as follows:
4-6 K. All meetings, including meetings of the committees of the
4-7 commissioners, [of the commission] shall be open and public. The
4-8 commission shall develop and implement policies that provide the
4-9 public with a reasonable opportunity to appear before the
4-10 commission and to speak on any issue under the jurisdiction of the
4-11 commission. A member of the public is not required to provide
4-12 notice to the commission before appearing and speaking before the
4-13 commissioner under this subsection.
4-14 SECTION 11. Subsection L, Section 2, Chapter 251, Acts of
4-15 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
4-16 Vernon's Texas Civil Statutes), is amended to read as follows:
4-17 L. The commission may issue[, or delegate to the executive
4-18 director the power to issue,] subpoenas and subpoenas duces tecum.
4-19 A subpoena or subpoena duces tecum issued under this subsection
4-20 must be served either by personal service or by certified mail,
4-21 return receipt requested. The commission by rule shall establish
4-22 standards that enable the executive director to issue subpoenas and
4-23 subpoenas duces tecum in connection with a complaint under
4-24 investigation by the commission.
4-25 SECTION 12. Subsection O, Section 2, Chapter 251, Acts of
4-26 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
4-27 Vernon's Texas Civil Statutes), is amended to read as follows:
4-28 O. The commission is subject to the open meetings law,
4-29 Chapter 551, Government Code [Chapter 271, Acts of the 60th
4-30 Legislature, Regular Session, 1967, as amended (Article 6252-17,
4-31 Vernon's Texas Civil Statutes)], and the Administrative Procedure
4-32 [and Texas Register] Act, Chapter 2001, Government Code [as amended
4-33 (Article 6252-13a, Vernon's Texas Civil Statutes)]. The
4-34 commission's duties under Chapter 551, Government Code, include the
4-35 requirement under Sections 551.021 and 551.022 to prepare and
4-36 maintain the minutes of each open meeting.
4-37 SECTION 13. Section 2, Chapter 251, Acts of the 53rd
4-38 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
4-39 Civil Statutes), is amended by adding Subsection V to read as
4-40 follows:
4-41 V. A request for an opinion under Subchapter C, Chapter 402,
4-42 Government Code, must be approved by a majority of the
4-43 commissioners.
4-44 SECTION 14. Subsection T, Section 2, Chapter 251, Acts of
4-45 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
4-46 Vernon's Texas Civil Statutes), is amended to read as follows:
4-47 T. The commission may institute an action in its own name to
4-48 enjoin the violation of this Act. An action under this subsection
4-49 is in addition to any other action, proceeding, or remedy
4-50 authorized by law. In an action under this subsection, the
4-51 commission shall be represented by the attorney general or[,] a
4-52 county or district attorney[, or counsel designated and authorized
4-53 by the commission].
4-54 SECTION 15. Section 2A(d), Chapter 251, Acts of the 53rd
4-55 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
4-56 Civil Statutes), is amended to read as follows:
4-57 (d) The programs required under Subsections (a) and (b) of
4-58 this section and a [A] policy statement prepared under Subsection
4-59 (c) of this section must cover an annual period, be updated at
4-60 least annually, and be filed with the Governor's office.
4-61 SECTION 16. Subsection F, Section 3, Chapter 251, Acts of
4-62 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
4-63 Vernon's Texas Civil Statutes), is amended to read as follows:
4-64 F. If the applicant meets the requirements established under
4-65 this subsection, the [The] commission shall [may] waive any license
4-66 requirement for an applicant with a [valid] license from another
4-67 state having license requirements substantially equivalent to
4-68 those of this state and may waive any license requirement for an
4-69 applicant with a license from another state that does not have
5-1 license requirements substantially equivalent to those of this
5-2 state. An applicant shall pay a reciprocal license fee. The
5-3 person's application shall be accompanied by an affidavit made by
5-4 the presiding officer [Chairman or Secretary] of the commission
5-5 which issued the license, or by a duly constituted registration
5-6 officer of the state, country, or territory by which the
5-7 certificate or license was granted, and on which the application
5-8 for registration in Texas is based, reciting that the accompanying
5-9 certificate or license has not been cancelled, suspended or
5-10 revoked, and that the statement of the qualifications made in the
5-11 application for a license in Texas is true and correct. Applicants
5-12 for a license under the provisions of this Act shall subscribe to
5-13 an oath in writing before an officer authorized by law to
5-14 administer oaths, which shall be a part of such application,
5-15 stating that the license, certificate, or authority under which the
5-16 applicant practiced as a funeral director or embalmer in the state,
5-17 country, or territory from which the applicant removed, was at the
5-18 time of such removal in full force and effect and not cancelled or
5-19 suspended or revoked. Said application shall also state that the
5-20 applicant is the identical person to whom the said certificate,
5-21 license, or commission was issued, and that no proceeding has been
5-22 instituted against the applicant for the cancellation, suspension
5-23 or revocation of such certificate or license in the state, country,
5-24 or territory in which the same was issued; and that no prosecution
5-25 is pending against the applicant in any state or federal court for
5-26 any offense which, under the laws of the State of Texas, is a
5-27 felony, or is a misdemeanor related to the practice of embalming or
5-28 funeral directing. The commission shall conduct a criminal
5-29 background check on each applicant. An applicant is not eligible
5-30 for a reciprocal license if the applicant has, in the ten years
5-31 preceding the date of the reciprocal license application, been
5-32 finally convicted of a misdemeanor involving moral turpitude or a
5-33 felony. The commission shall set the reciprocal license fee in an
5-34 amount that is reasonable and necessary for the administration of
5-35 this Act. An applicant for a reciprocal license must:
5-36 (1) provide proof that:
5-37 (a) the license is in good standing;
5-38 (b) the applicant has practiced under the
5-39 license for at least:
5-40 (i) one year in the state that issued the
5-41 license if that state has license requirements substantially
5-42 equivalent to those of this state; or
5-43 (ii) five years in the state that issued
5-44 the license, if that state does not have license requirements
5-45 substantially equivalent to those of this state; and
5-46 (c) the applicant has graduated from an
5-47 accredited college of mortuary science; and
5-48 (2) pass a written examination of not more than 50
5-49 questions on applicable state laws and commission rules, which the
5-50 commission shall administer at each regularly scheduled meeting of
5-51 the commission.
5-52 SECTION 17. Subsection H, Section 3, Chapter 251, Acts of
5-53 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
5-54 Vernon's Texas Civil Statutes), is amended to read as follows:
5-55 H. The commission may, after a hearing as provided by
5-56 Section 6C of this Act, reprimand, assess an administrative
5-57 penalty, revoke, suspend, or probate the suspension of a license or
5-58 provisional license, or impose any combination of these sanctions
5-59 against a licensed funeral director, a licensed embalmer, or a
5-60 provisional licensee. The commission may assess an administrative
5-61 penalty before [without] a hearing or a waiver of a right to a
5-62 hearing if the penalty is assessed in the manner provided by
5-63 Section 6G of this Act. Action taken by the commission under this
5-64 section may be based only on a violation of this Act or a rule
5-65 adopted under this Act. The commission may refuse before [without]
5-66 a hearing or a waiver of a right to a hearing to license a person
5-67 or to permit a person to serve as a provisional licensee if the
5-68 person has been found to have violated this Act or a rule adopted
5-69 under this Act. A person whose license or provisional license
6-1 application is refused under this subsection may appeal the
6-2 decision by requesting a hearing not later than the 30th day after
6-3 the date of the refusal. The commission and the person whose
6-4 application for license or provisional license is refused may agree
6-5 to the issuance of a probationary license or the commission may,
6-6 after a hearing, order that a license be issued on a probationary
6-7 basis. A violation of this Act includes the following:
6-8 1. The presentation to the commission of any license,
6-9 certificate, or diploma that was illegally or fraudulently
6-10 obtained, or when fraud or deception has been practiced in passing
6-11 the examination;
6-12 2. Conviction of:
6-13 (A) a felony; or
6-14 (B) a misdemeanor related to the practice of
6-15 embalming or funeral directing;
6-16 3. Being unfit to practice as a funeral director
6-17 and/or embalmer by reason of insanity and having been adjudged by a
6-18 court of competent jurisdiction to be of unsound mind;
6-19 4. The use of any statement that misleads or deceives
6-20 the public, including but not limited to false or misleading
6-21 statements regarding (1) any legal, religious, or cemetery
6-22 requirement for funeral merchandise or funeral services, (2) the
6-23 preservative qualities of funeral merchandise or funeral services
6-24 in preventing or substantially delaying natural decomposition or
6-25 decay of human remains, (3) the airtight or watertight properties
6-26 of a casket or outer enclosure, or (4) representations as to
6-27 licensed personnel in the operation of a funeral establishment;
6-28 5. The purchase, sale, barter, or use, or any offer to
6-29 purchase, sell, barter, or use any license, certificate, or
6-30 transcript of license or certificate, in or incident to an
6-31 application to the commission for license to practice as a funeral
6-32 director and/or embalmer;
6-33 6. Altering, with fraudulent intent, any funeral
6-34 director and/or embalmer license, certificate, or transcript of
6-35 license or certificate;
6-36 7. The use of any funeral director and/or embalmer
6-37 license, certificate, diploma or transcript of any such funeral
6-38 director and/or embalmer license, certificate, or diploma that has
6-39 been fraudulently purchased, issued, counterfeited, or materially
6-40 altered;
6-41 8. The impersonation of, or acting as proxy for,
6-42 another in any examination required by this Act for a funeral
6-43 director and/or embalmer license;
6-44 9. The impersonation of a licensed funeral director or
6-45 embalmer as authorized by this Act, or permitting or allowing
6-46 another to use a person's license or certificate to practice as a
6-47 funeral director or embalmer in this state;
6-48 10. A violation of Chapter 154, Finance Code [Section
6-49 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular
6-50 Session, 1955 (Article 548b, Vernon's Texas Civil Statutes)], or a
6-51 rule adopted under that chapter [Act];
6-52 11. Taking custody of a dead human body without the
6-53 permission of the person or the agent of the person authorized to
6-54 make funeral arrangements for the deceased, or without the
6-55 permission of the medical examiner or justice of the peace when a
6-56 medical examiner or justice of the peace has jurisdiction over the
6-57 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
6-58 Criminal Procedure, refusing to promptly surrender a dead human
6-59 body to a person or agent authorized to make funeral arrangements
6-60 for the deceased, or embalming a body without the express written
6-61 or oral permission of a person authorized to make funeral
6-62 arrangements for the deceased or without making a documented
6-63 reasonable effort over a period of at least three (3) hours to
6-64 obtain the permission;
6-65 11A. Embalming or attempting to embalm without proper
6-66 authority a dead human body. Evidence of embalming or attempting
6-67 to embalm includes, but is not limited to, the making of any
6-68 incision on the body, the raising of any circulatory vessel of the
6-69 body, or the injection of any chemical into the body;
7-1 12. Wilfully making any false statement on a
7-2 certificate of death or on a document required by this Act or by a
7-3 rule adopted under this Act;
7-4 13. Employment directly or indirectly of any
7-5 provisional licensee, agent, assistant, embalmer, funeral director,
7-6 employee, or other person on a part or full-time basis, or on
7-7 commission, for the purpose of soliciting individuals or
7-8 institutions by whose influence dead human bodies may be turned
7-9 over to a particular funeral director, embalmer, or funeral
7-10 establishment;
7-11 14. Presentation of false certification of work done
7-12 as a provisional licensee;
7-13 15. Unfitness by reason of present substance abuse;
7-14 16. Whenever a licensee, provisional licensee, or any
7-15 other person, whether employee, agent, representative, or one in
7-16 any manner associated with a funeral establishment engages in
7-17 solicitation as defined in this Act;
7-18 17. Failure by the Funeral Director in Charge to
7-19 provide licensed personnel for direction or personal supervision
7-20 for a "first call," as that term is defined in this Act;
7-21 18. Misappropriation of any funds held by a licensee,
7-22 funeral establishment, including its employees and agents, or other
7-23 depository, that create an obligation to provide a funeral service
7-24 or merchandise, including retention for an unreasonable time of
7-25 excess funds paid by or on behalf of the consumer for which the
7-26 consumer is entitled to a refund;
7-27 19. Performing acts of funeral directing or embalming,
7-28 as those terms are defined in this Act, that are outside the
7-29 licensed scope and authority of the licensee, or performing acts of
7-30 funeral directing or embalming in a capacity other than that of an
7-31 employee, agent, subcontractor, or assignee of a licensed funeral
7-32 establishment that has contracted to perform those acts;
7-33 20. Engaging in fraudulent, unprofessional, or
7-34 deceptive conduct in providing funeral services or merchandise to a
7-35 consumer;
7-36 21. Statement or implication by a funeral director or
7-37 embalmer that a customer's concern with the cost of any funeral
7-38 service or funeral merchandise is improper or indicates a lack of
7-39 respect for the deceased;
7-40 22. Failure by any person arranging for funeral
7-41 services or merchandise to:
7-42 (A) provide a prospective customer with a copy
7-43 of the brochure required by Section 6E of this Act at the beginning
7-44 of the arrangement process;
7-45 (B) provide a retail price list to an individual
7-46 inquiring in person about any funeral service or merchandise for
7-47 that person to keep;
7-48 (C) explain to the customer or prospective
7-49 customer that a contractual agreement for funeral services or
7-50 merchandise may not be entered into before the presentation of the
7-51 retail price list to that person; or
7-52 (D) provide general price information by
7-53 telephone within a reasonable time;
7-54 23. Failure by any person arranging for funeral
7-55 services or merchandise to provide each customer at the conclusion
7-56 of the arrangement process a written memorandum or funeral purchase
7-57 agreement signed by the funeral director making the arrangements
7-58 itemizing the cost of funeral services and funeral merchandise
7-59 selected by the customer; however, if the customer selects a
7-60 package arrangement based on unit pricing, the itemization
7-61 requirement is satisfied by providing a written memorandum that
7-62 itemizes the discount provided by the package arrangement. The use
7-63 of unit pricing does not affect the presentation of the retail
7-64 price list as required by Subdivision 22 of this subsection;
7-65 24. Restricting, hindering, or attempting to restrict
7-66 or hinder (1) the advertising or disclosure of prices and other
7-67 information regarding the availability of funeral services and
7-68 funeral merchandise that is not unfair or deceptive to consumers,
7-69 or (2) agreements for funeral services between any consumer or
8-1 group of consumers and funeral directors or embalmers;
8-2 25. Failure to retain and make available to the
8-3 commission, upon request, copies of all price lists, written
8-4 notices, embalming documents, and memoranda of agreement required
8-5 by this Act for two (2) years after the date of their distribution
8-6 or signing;
8-7 26. Violation of this Act, any rule adopted under this
8-8 Act, an order by the commission revoking, suspending, or probating
8-9 a license, an order assessing an administrative penalty, or an
8-10 agreement to pay an administrative penalty [regardless of whether
8-11 the agreement is express or implied by Section 6G(d) of this Act];
8-12 27. Dishonest conduct, wilful conduct, negligence, or
8-13 gross negligence in the practice of embalming or funeral directing
8-14 that is likely to or does deceive, defraud, or otherwise injure the
8-15 public;
8-16 28. Allowing the use of a dead human body by an
8-17 embalming establishment for research or educational purposes
8-18 without complying with Section 4A of this Act;
8-19 29. Causing the execution of a document by the use of
8-20 fraud, deceit, or misrepresentation; and
8-21 30. Allowing the presence or participation of a
8-22 student for credit or satisfaction of academic requirements during
8-23 the embalming of a dead human body without complying with Section
8-24 4A of this Act.
8-25 SECTION 18. Subsection I, Section 3, Chapter 251, Acts of
8-26 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
8-27 Vernon's Texas Civil Statutes), is amended to read as follows:
8-28 I. The commission may issue such rules and regulations as
8-29 may be necessary [or desirable] to effect the intent of the
8-30 provisions of this Section.
8-31 SECTION 19. Section 4, Chapter 251, Acts of the 53rd
8-32 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
8-33 Civil Statutes), is amended to read as follows:
8-34 Sec. 4. FUNERAL ESTABLISHMENTS. A. All funeral
8-35 establishments shall be licensed by the commission. All licenses
8-36 shall expire at midnight on September 30th of each year. Funeral
8-37 establishments shall apply for a license, and upon satisfaction to
8-38 the commission that this Section has been complied with and upon
8-39 receipt of the licensing fee, an initial license shall be duly
8-40 issued to such new establishments. Not later than thirty (30) days
8-41 prior to the expiration date of licenses, the commission shall
8-42 cause to be issued notification in writing by mail to each licensed
8-43 funeral establishment that a renewal fee must be paid not later
8-44 than September 30th before such license shall be renewed, and upon
8-45 due receipt of such fees all existing licenses shall be considered
8-46 automatically renewed. Any establishment which fails to pay its
8-47 license renewal fee by the due date is subject to a late payment
8-48 penalty equal in amount to the license renewal fee, and if the
8-49 delinquency is more than thirty (30) days, the establishment shall
8-50 not be permitted to operate as a funeral home until it has applied
8-51 for and has been granted a new license as in the case of original
8-52 applications and licenses for new funeral establishments. The
8-53 commission shall set the funeral establishment license fee, the
8-54 renewal fee, and the penalty in an amount that is reasonable and
8-55 necessary for the administration of this Act.
8-56 B. No funeral establishment shall conduct funeral business
8-57 as intended under this Act unless duly licensed. The commission
8-58 may refuse to issue an establishment license to an individual,
8-59 partnership, or corporation if the individual, a partner, or an
8-60 officer or director of the corporation:
8-61 (1) has been convicted of a felony, or a misdemeanor
8-62 related to the practice of embalming or funeral directing;
8-63 (2) previously held an establishment license that was
8-64 suspended or revoked;
8-65 (3) has violated this Act, a rule adopted under this
8-66 Act, or Chapter 154, Finance Code [512, Acts of the 54th
8-67 Legislature, Regular Session, 1955 (Article 548b, Vernon's Texas
8-68 Civil Statutes)];
8-69 (4) submits false information on the application for
9-1 an establishment license; or
9-2 (5) attempts to avoid a revocation, suspension, or
9-3 license refusal by subterfuge or other evasive means.
9-4 C. 1. Each funeral establishment shall be required to have a
9-5 physical plant, equipment and personnel consisting of the
9-6 following:
9-7 (A) [1.] Some facilities in which funeral
9-8 services may be conducted;
9-9 (B) [2.] A physical plant which meets building
9-10 standards and fire safety standards of the state and of the
9-11 municipality in which the establishment is located;
9-12 (C) [3.] Access to rolling stock consisting of
9-13 at least one motor hearse;
9-14 (D)(1) [4.] A preparation room containing
9-15 facilities, equipment, and supplies required by commission rule to
9-16 ensure the provision of adequate embalming services; and (2) other
9-17 facilities necessary to comply with the sanitary code of the state
9-18 and the municipality in which the room is located;
9-19 (E) [5.] A display containing sufficient
9-20 merchandise to permit reasonable selection, including five (5) or
9-21 more adult caskets, provided that the least expensive casket
9-22 offered for sale by a funeral establishment must be visibly
9-23 displayed without concealment in the same general manner as other
9-24 caskets are displayed;
9-25 (F) [6.] Sufficient licensed personnel who will
9-26 be available to conduct the operation of the funeral establishment;
9-27 (G) [7.] A physical plant located at a fixed
9-28 place, and not located on any tax-exempt property or cemetery; and
9-29 (H) [8.] A physical plant which meets the health
9-30 standards or health ordinances of the state and of the municipality
9-31 in which the establishment is located.
9-32 2. It is expressly provided, however, that an
9-33 establishment which functions solely as a commercial embalmer, as
9-34 that term is defined in this Act, shall have a commercial embalmers
9-35 establishment license, but shall not be required to meet the
9-36 requirements of Paragraphs (A) [sub-sections 1] and (E) [5] of
9-37 Subdivision 1 of this Subsection [paragraph] C.
9-38 3. An embalming service, whether provided at a funeral
9-39 establishment or other embalming facility licensed under this Act,
9-40 must comply with this Act or a rule adopted under this Act.
9-41 D. 1. The commission may exempt a funeral establishment from
9-42 the requirements of Subsection C. 1.(D)(1) of this section if:
9-43 (A) the majority owner or designated agent of
9-44 record of a funeral establishment submits a written petition to the
9-45 commission requesting an exemption and stating:
9-46 (i) the establishment's name and address;
9-47 (ii) that the establishment is located
9-48 within 50 miles of a facility owned by the establishment requesting
9-49 the exemption and at which embalming services may be performed; and
9-50 (iii) that no embalming services will be
9-51 performed at the establishment; and
9-52 (B) the commission determines that the criteria
9-53 in Paragraph (A) of this subsection have been met.
9-54 2. The executive director shall notify the petitioner
9-55 of the commission's decision.
9-56 3. The exemption remains in effect until:
9-57 (A) the establishment is no longer located
9-58 within 50 miles of a facility owned by the exempt establishment or
9-59 at which embalming services may be performed; or
9-60 (B) an embalming service has been performed at
9-61 the establishment.
9-62 E [D]. 1. The commission may, after a hearing as provided by
9-63 Section 6C of this Act, reprimand, assess an administrative
9-64 penalty, revoke, suspend, or probate the suspension of a license,
9-65 or impose any combination of these sanctions against a licensed
9-66 funeral establishment. The commission may assess an administrative
9-67 penalty before [without] a hearing or a waiver of a right to a
9-68 hearing if the penalty is assessed as provided by Section 6G of
9-69 this Act. Action taken by the commission under this section may
10-1 only be based on a violation of this Act or a rule adopted under
10-2 this Act. The commission may refuse before [without] a hearing or
10-3 a waiver of a right to a hearing to license an establishment if an
10-4 owner of the establishment has been found to have committed an act
10-5 listed in Subsection B of this section. An establishment whose
10-6 license is refused under this subsection may appeal the decision by
10-7 requesting a hearing not later than the 30th day after the date of
10-8 the refusal. The commission and the establishment whose
10-9 application for license is refused may agree to the issuance of a
10-10 probationary license or the commission may, after a hearing, order
10-11 that a license be issued on a probationary basis. A funeral
10-12 establishment alleged to have violated this section may waive the
10-13 right to a hearing as provided by Section 6C of this Act. A
10-14 violation of this Act includes the following:
10-15 (a) Failure of a funeral establishment to
10-16 substantially comply with the provisions of Subsection B or C of
10-17 this Section.
10-18 (b) Failure by any person associated with the
10-19 funeral establishment, whether as an employee, agent,
10-20 subcontractor, assignee, owner, or otherwise, and whether licensed
10-21 or unlicensed, to comply with this Act or a rule adopted under this
10-22 Act.
10-23 (c) The use of any advertising statement of a
10-24 character that misleads or deceives the public, or use of, in
10-25 connection with advertisements, the names of persons who do not
10-26 hold a license as a funeral director or embalmer and representing
10-27 them as being so licensed.
10-28 (d) Whenever a licensee, provisional licensee,
10-29 or any other person, whether an employee, agent, or representative,
10-30 or one in any manner associated with a funeral establishment shall
10-31 solicit business or offer any inducement, pecuniary or otherwise,
10-32 for the purpose of securing or attempting to secure business for
10-33 such funeral establishment, unless such solicitation is made
10-34 pursuant to a permit issued under Subchapter C, Chapter 154,
10-35 Finance Code [512, Acts of the 54th Legislature, Regular Session,
10-36 1955 (Article 548b, Vernon's Texas Civil Statutes)].
10-37 (e) Failure by the funeral director in charge to
10-38 provide a licensed funeral director for direction or personal
10-39 supervision of a "first call" as that term is defined in this Act.
10-40 (f) Any violation by a funeral establishment or
10-41 a person acting on behalf of a funeral establishment or any person
10-42 directly or indirectly connected with a funeral establishment of
10-43 Chapter 154, Finance Code [512, Acts of the 54th Legislature,
10-44 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
10-45 Statutes)] or a rule adopted under that chapter [Act].
10-46 (g) Any violation by a funeral establishment or
10-47 a person acting on behalf of a funeral establishment of Chapter 193
10-48 or 361, Health and Safety Code.
10-49 2. With respect to violations of Subsection E [D].
10-50 1.(b), (c), (d), (e), (f), or (g), the commission may not initiate
10-51 action against a funeral establishment or in regard to the license
10-52 of a funeral establishment if the complaint is based on the conduct
10-53 of employees, agents, or representatives of such establishment
10-54 performed outside the scope and authority of their employment or
10-55 contrary to the instructions of the funeral establishment and its
10-56 management.
10-57 F [E]. Each funeral establishment shall designate to the
10-58 commission a funeral director in charge, and such funeral director
10-59 in charge shall be directly responsible for the funeral directing
10-60 and embalming business of the licensee. The funeral director in
10-61 charge is ultimately responsible for compliance with the mortuary
10-62 laws. The funeral director in charge may be charged with a
10-63 violation of this Act if a violation occurs in the funeral
10-64 establishment. Any change or changes in such designation of
10-65 funeral director shall be given to the commission promptly.
10-66 G [F]. The commission may issue such rules and regulations
10-67 as shall comply with and shall effect the intent of the provisions
10-68 of this Section.
10-69 H [G]. (1) Any premises on which funeral directing or
11-1 embalming is practiced shall be open at all times to inspection for
11-2 violations of this Act and of Chapters 193 and 361, Health and
11-3 Safety Code, by any agent of the commission or by any duly
11-4 authorized agent of the state or of the county or municipality in
11-5 which the premises are located. Each licensed funeral
11-6 establishment shall be thoroughly inspected annually by an agent of
11-7 the commission or by an agent of the state or a political
11-8 subdivision thereof whom the commission has authorized to make
11-9 inspections on its behalf. A report of this annual inspection
11-10 shall be filed with the commission.
11-11 (2) Before an agent of the commission conducts an
11-12 inspection of an establishment, the agent shall review the
11-13 inspection reports on the establishment filed with the commission.
11-14 During the inspection, the agent shall determine whether previously
11-15 identified problems have been corrected and whether a pattern of
11-16 violations exists. The commission shall consider the information
11-17 from inspection reports when the commission determines whether a
11-18 penalty should be imposed against an establishment.
11-19 (3) When an agent inspects an establishment, the agent
11-20 shall inspect for violations under this Act and under Chapters 193
11-21 and 361, Health and Safety Code.
11-22 (4) The commission by rule shall establish procedures
11-23 for the inspection of a funeral establishment required by this
11-24 subsection.
11-25 I [H]. The commission may require funeral establishments
11-26 with solid waste disposal and sanitation facilities that have not
11-27 been inspected by the Texas Department of Health to obtain
11-28 inspection of those facilities by an entity other than the Texas
11-29 Department of Health. The commission by rule shall establish
11-30 procedures for inspections required under this subsection.
11-31 J [I]. (1) The commission, the Texas Department [State
11-32 Board] of Insurance, and the Banking Department of Texas shall
11-33 adopt a joint memorandum of understanding relating to prepaid
11-34 funeral services and transactions that:
11-35 (a) outlines the responsibilities of each agency
11-36 in regulating these services and transactions;
11-37 (b) establishes procedures to be used by each
11-38 agency in referring complaints to one of the other agencies;
11-39 (c) establishes procedures to be used by each
11-40 agency in investigating a complaint;
11-41 (d) establishes procedures to be used by each
11-42 agency in notifying the other agencies of a complaint or of the
11-43 investigation of a complaint;
11-44 (e) specifies actions the agencies regard as
11-45 deceptive trade practices;
11-46 (f) specifies the information the agencies
11-47 provide consumers and when that information is to be provided; and
11-48 (g) sets the administrative penalties each
11-49 agency imposes for violations.
11-50 (2) Not later than the last month of each state fiscal
11-51 year, the commission and other agencies shall review and update the
11-52 memorandum of understanding.
11-53 (3) Each agency by rule shall adopt the memorandum of
11-54 understanding and all revisions to the memorandum.
11-55 K [J]. (1) The commission and the Texas Department of
11-56 Health shall adopt a joint memorandum of understanding that:
11-57 (a) outlines the responsibilities of each agency
11-58 in regulating funeral establishment requirements under Chapters 193
11-59 and 361, Health and Safety Code;
11-60 (b) establishes procedures by which each agency
11-61 may refer complaints to the other;
11-62 (c) establishes procedures by which each agency
11-63 will notify the other of violations by funeral establishments under
11-64 Chapters 193 and 361, Health and Safety Code; and
11-65 (d) coordinates inspection and enforcement
11-66 efforts by both agencies for measures that funeral establishments
11-67 are required to implement under Chapters 193 and 361, Health and
11-68 Safety Code.
11-69 (2) Not later than the last month of each state fiscal
12-1 year, the commission and the Texas Department of Health shall
12-2 review and update the memorandum of understanding.
12-3 (3) Each agency by rule shall adopt the memorandum of
12-4 understanding and all revisions to the memorandum.
12-5 SECTION 20. Subsection B, Section 5, Chapter 251, Acts of
12-6 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
12-7 Vernon's Texas Civil Statutes), is amended to read as follows:
12-8 B. All rules adopted by the commission are subject to the
12-9 Administrative Procedure [and Texas Register] Act, Chapter 2001,
12-10 Government Code [(Article 6252-13a, Vernon's Texas Civil
12-11 Statutes)].
12-12 SECTION 21. Section 6C, Chapter 251, Acts of the 53rd
12-13 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
12-14 Civil Statutes), is amended to read as follows:
12-15 Sec. 6C. APPLICATION OF ADMINISTRATIVE PROCEDURE [AND TEXAS
12-16 REGISTER] ACT. (a) A person who is denied a license or
12-17 provisional license by the commission is entitled to a hearing
12-18 before the commission in accordance with the Administrative
12-19 Procedure [and Texas Register] Act, Chapter 2001, Government Code
12-20 [(Article 6252-13a, Vernon's Texas Civil Statutes)], if the person
12-21 requests the hearing in writing not later than the 30th day after
12-22 the date the notice of denial is sent.
12-23 (b) A proceeding conducted by the commission relating to the
12-24 denial of a license or provisional license, the suspension or
12-25 revocation of a license, [or] the imposition of an administrative
12-26 penalty, or a reprimand other than an administrative penalty
12-27 assessed before [without] a hearing or a waiver of a hearing as
12-28 provided by Section 6G of this Act, is governed by the
12-29 Administrative Procedure [and Texas Register] Act, Chapter 2001,
12-30 Government Code [as amended (Article 6252-13a, Vernon's Texas Civil
12-31 Statutes)]. Judicial review of the proceeding is subject to the
12-32 substantial evidence rule and is governed by the Administrative
12-33 Procedure [and Texas Register] Act.
12-34 (c)(1) A proceeding brought under Subsection (b) of this
12-35 section shall [may] be held before an administrative law judge
12-36 employed by the State Office of Administrative Hearings [a hearings
12-37 officer]. [The executive director shall set a time and place for
12-38 the hearing.]
12-39 (2) [The hearings officer must be an attorney licensed
12-40 in this state.] In the course of a proceeding the administrative
12-41 law judge [hearings officer] may:
12-42 (A) administer oaths;
12-43 (B) take testimony;
12-44 (C) rule on questions of evidence;
12-45 (D) make determinations of fact; or
12-46 (E) order compliance with proper discovery
12-47 requests.
12-48 (3) The commission shall provide the administrative
12-49 law judge [hearings officer] with a written statement of all
12-50 commission rules or policies that govern the proceeding.
12-51 (4) At the conclusion of the proceeding the
12-52 administrative law judge [hearings officer] shall make a ruling on
12-53 the matter accompanied by written findings of facts and conclusions
12-54 of law.
12-55 (5) The commission shall review the findings of fact,
12-56 conclusions of law, and ruling of the administrative law judge
12-57 [hearings officer] before making its final ruling in the
12-58 proceeding. The commission may also review a transcript of the
12-59 proceeding before making its final ruling. The commission shall
12-60 adopt the ruling of the administrative law judge [hearings officer]
12-61 as its ruling unless it finds good cause to issue a different
12-62 ruling. The commission shall explain in writing the reasons for
12-63 adopting a ruling other than the one issued by the administrative
12-64 law judge [hearings officer].
12-65 (d) The commission shall inform each interested person,
12-66 including a person filing the complaint, of the right to obtain at
12-67 that person's cost a tape or transcript of a hearing or proceeding
12-68 under this section.
12-69 (e) A funeral establishment alleged to have violated this
13-1 Act or a rule adopted under this Act may waive the right to a
13-2 hearing as provided by this section by written notification to the
13-3 commission.
13-4 SECTION 22. Section 6D, Chapter 251, Acts of the 53rd
13-5 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
13-6 Civil Statutes), is amended to read as follows:
13-7 Sec. 6D. COMPLAINTS. (a) The commission shall investigate
13-8 each complaint received by the commission relating to a funeral
13-9 director, embalmer, apprentice, or funeral establishment. The
13-10 commission shall keep an information file about each complaint
13-11 filed with the commission that the commission has authority to
13-12 resolve.
13-13 (b) The commission shall include in each information file a
13-14 description of the complaint, the date on which the complaint was
13-15 filed, the name of the complainant, a description of any
13-16 information obtained by the commission after investigating the
13-17 complaint, a description and date of any formal actions taken by
13-18 the commission relating to the complaint, a description of the
13-19 current status of the complaint, and other information that the
13-20 commission considers appropriate.
13-21 (c) If a written complaint is filed with the commission that
13-22 the commission has authority to resolve, the commission, at least
13-23 quarterly until final disposition of the complaint and on final
13-24 disposition of the complaint, shall notify the parties to the
13-25 complaint of the status of the complaint unless the notice would
13-26 jeopardize an undercover investigation.
13-27 (d) The information file[, except for information in the
13-28 file obtained by the commission after investigating the complaint,]
13-29 is public information, except for information relating to a
13-30 complaint that has not reached a final disposition. [The
13-31 information obtained after investigating the complaint is not
13-32 public information.]
13-33 (e) If a person files a complaint with the commission
13-34 relating to a licensed funeral director, embalmer, provisional
13-35 licensee, or funeral establishment, the commission shall furnish to
13-36 the person an explanation of the remedies that are available to the
13-37 person under this Act and information about appropriate state or
13-38 local agencies or officials with which the person may file a
13-39 complaint.
13-40 (f) The commission shall employ [or contract for the
13-41 services of] one or more persons to investigate complaints of
13-42 consumer interest and other complaints received by the commission.
13-43 [A person who is subject to regulation under this Act may not serve
13-44 as an investigator. To serve in this position in a contractual
13-45 capacity, a person must be licensed as a private investigator under
13-46 state law. To serve in this position as an employee of the
13-47 commission, a person must:]
13-48 [(1) hold a current license as a private investigator
13-49 in this state;]
13-50 [(2) have been previously licensed under state or
13-51 federal law as a private investigator; or]
13-52 [(3) have been previously employed by a local, state,
13-53 or federal law enforcement agency as an investigator.]
13-54 (g) The complainant is entitled to attend any proceeding
13-55 resulting from the complaint.
13-56 SECTION 23. Section 6F, Chapter 251, Acts of the 53rd
13-57 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
13-58 Civil Statutes), is amended to read as follows:
13-59 Sec. 6F. EX PARTE COMMUNICATIONS. The commissioners and the
13-60 employees of the commission are subject to the provisions of the
13-61 Administrative Procedure [and Texas Register] Act, Chapter 2001,
13-62 Government Code [as amended (Article 6252-13a, Vernon's Texas Civil
13-63 Statutes)], relating to ex parte communications.
13-64 SECTION 24. Subsections (c) and (e), Section 6G, Chapter
13-65 251, Acts of the 53rd Legislature, Regular Session, 1953 (Article
13-66 4582b, Vernon's Texas Civil Statutes), are amended to read as
13-67 follows:
13-68 (c) If, after examination of a possible violation and the
13-69 facts relating to that possible violation, the commission concludes
14-1 that a violation has occurred, the commission shall issue a
14-2 preliminary report that states the facts on which the conclusion is
14-3 based, the fact that an administrative penalty is to be imposed,
14-4 and the amount to be assessed. Until a hearing has been held on
14-5 the possible violation, the amount to be assessed may be disclosed
14-6 only to the person or establishment charged with the violation,
14-7 unless that person or establishment has waived the right to a
14-8 hearing or paid the amount to the commission. Not later than the
14-9 tenth (10th) day after the day on which the commission issues the
14-10 preliminary report, the commission shall send a copy of the report
14-11 to the person or establishment charged with the violation, together
14-12 with a statement of the right of the person or establishment to a
14-13 hearing relating to the alleged violation and the amount of the
14-14 penalty.
14-15 (e)(1) If an administrative penalty is assessed after a
14-16 hearing conducted under Section 6C of this Act, not later than the
14-17 thirtieth (30th) day after the date on which the order is sent or a
14-18 motion for rehearing is denied, the person or establishment charged
14-19 shall pay the administrative penalty in full, or[, if] the person
14-20 or establishment may, not later than the 30th day after the date
14-21 the order is sent or a motion for rehearing is denied, [wishes to]
14-22 contest either the amount of the penalty or the fact of the
14-23 violation, but if the penalty that the person or establishment
14-24 wishes to contest is greater than $5,000, the person or
14-25 establishment shall not later than the thirtieth (30th) day after
14-26 the date on which the order is sent or a motion for rehearing is
14-27 denied:
14-28 (A) [remit the assessed amount to the commission
14-29 for deposit in an escrow account; or]
14-30 [(B)] post a supersedeas bond in a form approved
14-31 by the commission for the amount of the penalty; or
14-32 (B) if the person or establishment cannot afford
14-33 to pay the penalty or file the bond, files an affidavit in the
14-34 manner required by the Texas Rules of Civil Procedure for a person
14-35 who cannot afford to file security for costs, subject to the right
14-36 of the commission to contest the affidavit as provided by those
14-37 rules.
14-38 (2) If, after judicial review, it is determined that
14-39 no violation occurred [or that the amount of the penalty should be
14-40 reduced], the court shall order, when the court's judgment becomes
14-41 final, the release of the bond if the person or establishment gave
14-42 a supersedeas bond. If the person or establishment gave a
14-43 supersedeas bond and the amount of the penalty is reduced, the
14-44 court shall order the release of the bond after the person or
14-45 establishment pays the reduced amount. [commission shall remit the
14-46 appropriate amount to the person or establishment charged with the
14-47 violation not later than the thirtieth (30th) day after the date on
14-48 which the judicial determination becomes final.]
14-49 SECTION 25. Section 6H, Chapter 251, Acts of the 53rd
14-50 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
14-51 Civil Statutes), is amended to read as follows:
14-52 Sec. 6H. REPRIMAND. [(a)] If the commission determines
14-53 that a person or establishment regulated under this Act has
14-54 violated this Act or a rule adopted under this Act, the commission
14-55 may issue a reprimand against that person or establishment. The
14-56 commission may issue the reprimand without any other sanction or in
14-57 conjunction with the assessment of an administrative penalty or the
14-58 revocation, suspension, or probation of the license. The
14-59 commission may issue a letter of reprimand:
14-60 (1) after a hearing conducted in the manner provided
14-61 by Section 6C of this Act; or
14-62 (2) without a hearing if the person or establishment
14-63 waives a hearing [or as provided by this section].
14-64 [(b) If, after examination of a possible violation and the
14-65 facts relating to that possible violation, the commission concludes
14-66 that a violation has occurred, the commission may issue a
14-67 preliminary report that states the facts on which the conclusion is
14-68 based and that a reprimand is to be issued. If the reprimand is to
14-69 be issued in addition to the assessment of an administrative
15-1 penalty under Section 6G of this Act, the preliminary reports may
15-2 be combined. Not later than the tenth (10th) day after the day on
15-3 which the commission issues the preliminary report, the commission
15-4 shall send a copy of the report to the person or establishment
15-5 charged with the violation, together with a statement of the right
15-6 of the person or establishment to a hearing relating to the alleged
15-7 violations.]
15-8 [(c) Not later than the thirtieth (30th) day after the date
15-9 on which the preliminary report is sent, the person or
15-10 establishment charged may make a written request for a hearing.
15-11 Failure to request a hearing within the time provided by this
15-12 subsection results in a waiver of a right to a hearing under this
15-13 Act and the reprimand shall be issued by the commission and placed
15-14 in the permanent files of the commission. If the person or
15-15 establishment charged requests a hearing, the hearing shall be
15-16 conducted in the manner provided by Section 6C of this Act. If it
15-17 is determined after hearing that the person or establishment has
15-18 committed the alleged violation, the commission is not limited to
15-19 the issuance of a reprimand but may also take any action allowed
15-20 under this Act.]
15-21 SECTION 26. Section 6I, Chapter 251, Acts of the 53rd
15-22 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
15-23 Civil Statutes), is amended to read as follows:
15-24 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The commission
15-25 or an administrative law judge employed by the State Office of
15-26 Administrative Hearings [a hearings officer] shall review each
15-27 disciplinary proceeding to determine whether the licensee has
15-28 committed the same type of violation on one or more previous
15-29 occasions. If it is determined that the licensee has previously
15-30 committed the same type of violation, the commission or the
15-31 administrative law judge [hearings officer] shall impose a
15-32 disciplinary action that is more severe than that imposed on the
15-33 previous occasion.
15-34 (b) In a disciplinary proceeding involving multiple
15-35 violations of this Act, the commission or the administrative law
15-36 judge [hearings officer] shall impose a disciplinary action that is
15-37 more severe than the disciplinary action that would be imposed
15-38 cumulatively for each of the individual violations.
15-39 SECTION 27. Subsection C, Section 2, Chapter 251, Acts of
15-40 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
15-41 Vernon's Texas Civil Statutes), is amended to read as follows:
15-42 C. The commission shall meet in Austin, Texas, in regular
15-43 session at least once each calendar quarter [two (2) times each
15-44 year] for the transaction of business. Examination for funeral
15-45 directors and embalmers shall be held at least once during each
15-46 year at such times and places as the commission may designate and
15-47 give due notice thereof. Special meetings or hearings may be held
15-48 at such time and place as may be determined by and upon call of the
15-49 presiding officer [Chairman], assistant presiding officer
15-50 [Vice-chairman], or three (3) members [commissioners].
15-51 SECTION 28. (a) This Act takes effect September 1, 1999.
15-52 (b) The changes in law made by this Act apply only to an
15-53 offense committed on or after the effective date of this Act. For
15-54 purposes of this section, an offense is committed before the
15-55 effective date of this Act if any element of the offense occurs
15-56 before that date. An offense committed before the effective date
15-57 of this Act is covered by the law in effect when the offense was
15-58 committed, and the former law is continued in effect for that
15-59 purpose.
15-60 (c) The changes in law made by this Act apply only to a
15-61 proceeding commenced on or after the effective date of this Act. A
15-62 proceeding that is commenced before the effective date of this Act
15-63 is governed by the law in effect when the proceeding was commenced,
15-64 and that law is continued in effect for that purpose.
15-65 SECTION 29. (a) The terms of the members of the Texas
15-66 Funeral Service Commission serving on the effective date of this
15-67 Act expire, and that policymaking body as it existed immediately
15-68 before the effective date of this Act is abolished on the effective
15-69 date of this Act.
16-1 (b) As soon as practicable after the effective date of this
16-2 Act, the governor shall make appointments to the Texas Funeral
16-3 Service Commission to accomplish the membership plan for the
16-4 commission established by Section 2, Chapter 251, Acts of the 53rd
16-5 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
16-6 Civil Statutes), as amended by this Act. This section does not
16-7 prohibit a person who is a member of the commission on the
16-8 effective date of this Act and who possesses the qualifications
16-9 required under Section 2, Chapter 251, Acts of the 53rd
16-10 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
16-11 Civil Statutes), as amended by this Act, from being reappointed to
16-12 the commission under this subsection.
16-13 (c) In making appointments under this section, the governor
16-14 shall appoint:
16-15 (1) two members for terms expiring on February 1,
16-16 2001;
16-17 (2) two members for terms expiring on February 1,
16-18 2003; and
16-19 (3) two members for terms expiring on February 1,
16-20 2005.
16-21 SECTION 30. The importance of this legislation and the
16-22 crowded condition of the calendars in both houses create an
16-23 emergency and an imperative public necessity that the
16-24 constitutional rule requiring bills to be read on three several
16-25 days in each house be suspended, and this rule is hereby suspended.
16-26 * * * * *