By Carona S.B. No. 1077
76R5056 MXM-F
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 the
1-8 relationship and duty of the funeral director to take charge of a
1-9 dead human body and have same prepared by embalming, cremation, or
1-10 otherwise, for burial or disposition, provided all laws pertaining
1-11 to public health in this state are complied with. "First call"
1-12 does not include calls made by ambulance, when the person
1-13 dispatching the ambulance does not know whether a dead human body
1-14 is to be picked up. A dead human body shall be picked up on first
1-15 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. Subsection E, Section 2, Chapter 251, Acts of the
2-20 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
2-21 Texas Civil Statutes), is amended to read as follows:
2-22 E. (1) The commission shall file annually with the Governor
2-23 and the presiding officer of each house of the legislature a
2-24 complete and detailed written report accounting for all funds
2-25 received and disbursed by the commission during the preceding
2-26 fiscal year. The annual report must be in the form and reported in
2-27 the time provided by the General Appropriations Act.
3-1 (2) The commission shall file annually with the
3-2 Governor a list of the names of all duly licensed funeral
3-3 directors, embalmers, and funeral establishments. A copy shall be
3-4 filed with the Secretary of State for permanent record, a certified
3-5 copy of which, under the hand of the Secretary of State and the
3-6 state seal, shall be admissible as evidence in all courts.
3-7 (3) The commission shall file annually with the
3-8 Governor a written description of the activities of the commission
3-9 during the preceding fiscal year.
3-10 (4) The commission shall file annually with the
3-11 Governor a report on the commission's compliance with Subsections P
3-12 and Q of this section.
3-13 SECTION 3. Subsection H, Section 2, Chapter 251, Acts of the
3-14 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
3-15 Texas Civil Statutes), is amended to read as follows:
3-16 H. The commission may employ such inspectors, clerical and
3-17 technical assistants, and legal counsel other than the attorney
3-18 general, [and an Executive Director,] as may be determined by it to
3-19 be necessary to carry out the provisions of this Act, and the
3-20 terms, conditions and expenses of such employment shall be
3-21 determined by the commission. The commission shall employ and
3-22 supervise an executive director to manage the administrative
3-23 affairs of the commission under this Act. The commission shall
3-24 determine the terms and conditions of the employment and set the
3-25 salary of the executive director. The commission may delegate the
3-26 commissioner's duties to the executive director.
3-27 SECTION 4. Subsection K, Section 2, Chapter 251, Acts of the
4-1 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-2 Texas Civil Statutes), is amended to read as follows:
4-3 K. All meetings, including meetings of the committees of the
4-4 commissioners, [of the commission] shall be open and public. The
4-5 commission shall develop and implement policies that provide the
4-6 public with a reasonable opportunity to appear before the
4-7 commission and to speak on any issue under the jurisdiction of the
4-8 commission. A member of the public is not required to provide
4-9 notice to the commission before appearing and speaking before the
4-10 commissioner under this subsection.
4-11 SECTION 5. Subsection L, Section 2, Chapter 251, Acts of the
4-12 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-13 Texas Civil Statutes), is amended to read as follows:
4-14 L. The commission may issue[, or delegate to the executive
4-15 director the power to issue,] subpoenas and subpoenas duces tecum.
4-16 A subpoena or subpoena duces tecum issued under this subsection
4-17 must be served either by personal service or by certified mail,
4-18 return receipt requested. The commission by order may grant the
4-19 executive director the power to issue subpoenas and subpoenas duces
4-20 tecum in connection with a complaint under investigation by the
4-21 commission.
4-22 SECTION 6. Subsection O, Section 2, Chapter 251, Acts of the
4-23 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
4-24 Texas Civil Statutes), is amended to read as follows:
4-25 O. The commission is subject to the open meetings law,
4-26 Chapter 551, Government Code [Chapter 271, Acts of the 60th
4-27 Legislature, Regular Session, 1967, as amended (Article 6252-17,
5-1 Vernon's Texas Civil Statutes)], and the Administrative Procedure
5-2 [and Texas Register] Act, Chapter 2001, Government Code [as amended
5-3 (Article 6252-13a, Vernon's Texas Civil Statutes)].
5-4 SECTION 7. Section 2, Chapter 251, Acts of the 53rd
5-5 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
5-6 Civil Statutes), is amended by adding Subsection U to read as
5-7 follows:
5-8 U. A commission employee may not be compensated by the
5-9 commission if that employee is an officer of a state executive
5-10 committee of a political party under Subchapter A, Chapter 171,
5-11 Election Code.
5-12 SECTION 8. Section 2, Chapter 251, Acts of the 53rd
5-13 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
5-14 Civil Statutes), is amended by adding Subsection V to read as
5-15 follows:
5-16 V. If procedural or substantive advice is sought from the
5-17 attorney general by the commission it must be through an opinion
5-18 requested under Subchapter C, Chapter 402, Government Code. A
5-19 request for an opinion must be approved by a majority of the
5-20 commissioners.
5-21 SECTION 9. Section 2A(d), Chapter 251, Acts of the 53rd
5-22 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
5-23 Civil Statutes), is amended to read as follows:
5-24 (d) The programs required under Subsections (a) and (b) of
5-25 this section and a [A] policy statement prepared under Subsection
5-26 (c) of this section must cover an annual period, be updated at
5-27 least annually, and be filed with the Governor's office.
6-1 SECTION 10. Subsection F, Section 3, Chapter 251, Acts of
6-2 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
6-3 Vernon's Texas Civil Statutes), is amended to read as follows:
6-4 F. The commission shall [may] waive any license requirement
6-5 for an applicant with a valid license from another state if the
6-6 applicant meets the requirements established under this subsection
6-7 [having license requirements substantially equivalent to those of
6-8 this state]. An applicant shall pay a reciprocal license fee. The
6-9 person's application shall be accompanied by an affidavit made by
6-10 the Chairman or Secretary of the commission which issued the
6-11 license, or by a duly constituted registration officer of the
6-12 state, country, or territory by which the certificate or license
6-13 was granted, and on which the application for registration in Texas
6-14 is based, reciting that the accompanying certificate or license has
6-15 not been cancelled, suspended or revoked, and that the statement of
6-16 the qualifications made in the application for a license in Texas
6-17 is true and correct. Applicants for a license under the provisions
6-18 of this Act shall subscribe to an oath in writing before an officer
6-19 authorized by law to administer oaths, which shall be a part of
6-20 such application, stating that the license, certificate, or
6-21 authority under which the applicant practiced as a funeral director
6-22 or embalmer in the state, country, or territory from which the
6-23 applicant removed, was at the time of such removal in full force
6-24 and effect and not cancelled or suspended or revoked. Said
6-25 application shall also state that the applicant is the identical
6-26 person to whom the said certificate, license, or commission was
6-27 issued, and that no proceeding has been instituted against the
7-1 applicant for the cancellation, suspension or revocation of such
7-2 certificate or license in the state, country, or territory in which
7-3 the same was issued; and that no prosecution is pending against the
7-4 applicant in any state or federal court for any offense which,
7-5 under the laws of the State of Texas, is a felony, or is a
7-6 misdemeanor related to the practice of embalming or funeral
7-7 directing. The commission shall set the reciprocal license fee in
7-8 an amount that is reasonable and necessary for the administration
7-9 of this Act. An applicant for a reciprocal license must:
7-10 (1) provide proof that:
7-11 (a) the license is in good standing;
7-12 (b) the applicant has practiced under the
7-13 license for at least one year in the state that issued the license;
7-14 and
7-15 (c) the applicant has graduated from an
7-16 accredited college of mortuary science; and
7-17 (2) pass a written examination of not more than 50
7-18 questions on applicable state laws and commission rules, which the
7-19 commission shall administer at each regularly scheduled meeting of
7-20 the commission.
7-21 SECTION 11. Subsection H, Section 3, Chapter 251, Acts of
7-22 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
7-23 Vernon's Texas Civil Statutes), is amended to read as follows:
7-24 H. The commission may, after a hearing as provided by
7-25 Section 6C of this Act, reprimand, assess an administrative
7-26 penalty, revoke, suspend, or probate the suspension of a license or
7-27 provisional license, or impose any combination of these sanctions
8-1 against a licensed funeral director, a licensed embalmer, or a
8-2 provisional licensee. [The commission may assess an administrative
8-3 penalty without a hearing if the penalty is assessed in the manner
8-4 provided by Section 6G of this Act.] Action taken by the
8-5 commission under this section may be based only on a violation of
8-6 this Act or a rule adopted under this Act. The commission may
8-7 refuse after [without] a hearing to license a person or to permit a
8-8 person to serve as a provisional licensee if the person has been
8-9 found to have violated this Act or a rule adopted under this Act.
8-10 [A person whose license or provisional license application is
8-11 refused under this subsection may appeal the decision by requesting
8-12 a hearing not later than the 30th day after the date of the
8-13 refusal.] The commission and the person whose application for
8-14 license or provisional license is refused may agree to the issuance
8-15 of a probationary license or the commission may, after a hearing,
8-16 order that a license be issued on a probationary basis. A
8-17 violation of this Act includes the following:
8-18 1. The presentation to the commission of any license,
8-19 certificate, or diploma that was illegally or fraudulently
8-20 obtained, or when fraud or deception has been practiced in passing
8-21 the examination;
8-22 2. Conviction of:
8-23 (A) a felony; or
8-24 (B) a misdemeanor related to the practice of
8-25 embalming or funeral directing;
8-26 3. Being unfit to practice as a funeral director
8-27 and/or embalmer by reason of insanity and having been adjudged by a
9-1 court of competent jurisdiction to be of unsound mind;
9-2 4. The use of any statement that misleads or deceives
9-3 the public, including but not limited to false or misleading
9-4 statements regarding (1) any legal, religious, or cemetery
9-5 requirement for funeral merchandise or funeral services, (2) the
9-6 preservative qualities of funeral merchandise or funeral services
9-7 in preventing or substantially delaying natural decomposition or
9-8 decay of human remains, (3) the airtight or watertight properties
9-9 of a casket or outer enclosure, or (4) representations as to
9-10 licensed personnel in the operation of a funeral establishment;
9-11 5. The purchase, sale, barter, or use, or any offer to
9-12 purchase, sell, barter, or use any license, certificate, or
9-13 transcript of license or certificate, in or incident to an
9-14 application to the commission for license to practice as a funeral
9-15 director and/or embalmer;
9-16 6. Altering, with fraudulent intent, any funeral
9-17 director and/or embalmer license, certificate, or transcript of
9-18 license or certificate;
9-19 7. The use of any funeral director and/or embalmer
9-20 license, certificate, diploma or transcript of any such funeral
9-21 director and/or embalmer license, certificate, or diploma that has
9-22 been fraudulently purchased, issued, counterfeited, or materially
9-23 altered;
9-24 8. The impersonation of, or acting as proxy for,
9-25 another in any examination required by this Act for a funeral
9-26 director and/or embalmer license;
9-27 9. The impersonation of a licensed funeral director or
10-1 embalmer as authorized by this Act, or permitting or allowing
10-2 another to use a person's license or certificate to practice as a
10-3 funeral director or embalmer in this state;
10-4 10. A violation of Chapter 154, Finance Code [Section
10-5 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular
10-6 Session, 1955 (Article 548b, Vernon's Texas Civil Statutes)], or a
10-7 rule adopted under that chapter [Act];
10-8 11. Taking custody of a dead human body without the
10-9 permission of the person or the agent of the person authorized to
10-10 make funeral arrangements for the deceased, or without the
10-11 permission of the medical examiner or justice of the peace when a
10-12 medical examiner or justice of the peace has jurisdiction over the
10-13 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
10-14 Criminal Procedure, refusing to promptly surrender a dead human
10-15 body to a person or agent authorized to make funeral arrangements
10-16 for the deceased, or embalming a body without the express written
10-17 or oral permission of a person authorized to make funeral
10-18 arrangements for the deceased or without making a documented
10-19 reasonable effort over a period of at least three (3) hours to
10-20 obtain the permission;
10-21 11A. Embalming or attempting to embalm without proper
10-22 authority a dead human body. Evidence of embalming or attempting
10-23 to embalm includes, but is not limited to, the making of any
10-24 incision on the body, the raising of any circulatory vessel of the
10-25 body, or the injection of any chemical into the body;
10-26 12. Wilfully making any false statement on a
10-27 certificate of death or on a document required by this Act or by a
11-1 rule adopted under this Act;
11-2 13. Employment directly or indirectly of any
11-3 provisional licensee, agent, assistant, embalmer, funeral director,
11-4 employee, or other person on a part or full-time basis, or on
11-5 commission, for the purpose of soliciting individuals or
11-6 institutions by whose influence dead human bodies may be turned
11-7 over to a particular funeral director, embalmer, or funeral
11-8 establishment;
11-9 14. Presentation of false certification of work done
11-10 as a provisional licensee;
11-11 15. Unfitness by reason of present substance abuse;
11-12 16. Whenever a licensee, provisional licensee, or any
11-13 other person, whether employee, agent, representative, or one in
11-14 any manner associated with a funeral establishment engages in
11-15 solicitation as defined in this Act;
11-16 17. Failure by the Funeral Director in Charge to
11-17 provide licensed personnel for direction or personal supervision
11-18 for a "first call," as that term is defined in this Act;
11-19 18. Misappropriation of any funds held by a licensee,
11-20 funeral establishment, including its employees and agents, or other
11-21 depository, that create an obligation to provide a funeral service
11-22 or merchandise, including retention for an unreasonable time of
11-23 excess funds paid by or on behalf of the consumer for which the
11-24 consumer is entitled to a refund;
11-25 19. Performing acts of funeral directing or embalming,
11-26 as those terms are defined in this Act, that are outside the
11-27 licensed scope and authority of the licensee, or performing acts of
12-1 funeral directing or embalming in a capacity other than that of an
12-2 employee, agent, subcontractor, or assignee of a licensed funeral
12-3 establishment that has contracted to perform those acts;
12-4 20. Engaging in fraudulent, unprofessional, or
12-5 deceptive conduct in providing funeral services or merchandise to a
12-6 consumer;
12-7 21. Statement or implication by a funeral director or
12-8 embalmer that a customer's concern with the cost of any funeral
12-9 service or funeral merchandise is improper or indicates a lack of
12-10 respect for the deceased;
12-11 22. Failure by any person arranging for funeral
12-12 services or merchandise to:
12-13 (A) provide a prospective customer with a copy
12-14 of the brochure required by Section 6E of this Act at the beginning
12-15 of the arrangement process;
12-16 (B) provide a retail price list to an individual
12-17 inquiring in person about any funeral service or merchandise for
12-18 that person to keep;
12-19 (C) explain to the customer or prospective
12-20 customer that a contractual agreement for funeral services or
12-21 merchandise may not be entered into before the presentation of the
12-22 retail price list to that person; or
12-23 (D) provide general price information by
12-24 telephone within a reasonable time;
12-25 23. Failure by any person arranging for funeral
12-26 services or merchandise to provide each customer at the conclusion
12-27 of the arrangement process a written memorandum or funeral purchase
13-1 agreement signed by the funeral director making the arrangements
13-2 itemizing the cost of funeral services and funeral merchandise
13-3 selected by the customer; however, if the customer selects a
13-4 package arrangement based on unit pricing, the itemization
13-5 requirement is satisfied by providing a written memorandum that
13-6 itemizes the discount provided by the package arrangement. The use
13-7 of unit pricing does not affect the presentation of the retail
13-8 price list as required by Subdivision 22 of this subsection;
13-9 24. Restricting, hindering, or attempting to restrict
13-10 or hinder (1) the advertising or disclosure of prices and other
13-11 information regarding the availability of funeral services and
13-12 funeral merchandise that is not unfair or deceptive to consumers,
13-13 or (2) agreements for funeral services between any consumer or
13-14 group of consumers and funeral directors or embalmers;
13-15 25. Failure to retain and make available to the
13-16 commission, upon request, copies of all price lists, written
13-17 notices, embalming documents, and memoranda of agreement required
13-18 by this Act for two (2) years after the date of their distribution
13-19 or signing;
13-20 26. Violation of this Act, any rule adopted under this
13-21 Act, an order by the commission revoking, suspending, or probating
13-22 a license, an order assessing an administrative penalty, or an
13-23 agreement to pay an administrative penalty [regardless of whether
13-24 the agreement is express or implied by Section 6G(d) of this Act];
13-25 27. Dishonest conduct, wilful conduct, negligence, or
13-26 gross negligence in the practice of embalming or funeral directing
13-27 that is likely to or does deceive, defraud, or otherwise injure the
14-1 public;
14-2 28. Allowing the use of a dead human body by an
14-3 embalming establishment for research or educational purposes
14-4 without complying with Section 4A of this Act;
14-5 29. Causing the execution of a document by the use of
14-6 fraud, deceit, or misrepresentation; and
14-7 30. Allowing the presence or participation of a
14-8 student for credit or satisfaction of academic requirements during
14-9 the embalming of a dead human body without complying with Section
14-10 4A of this Act.
14-11 SECTION 12. Subsection I, Section 3, Chapter 251, Acts of
14-12 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
14-13 Vernon's Texas Civil Statutes), is amended to read as follows:
14-14 I. The commission may issue such rules and regulations as
14-15 may be necessary [or desirable] to effect the intent of the
14-16 provisions of this Section.
14-17 SECTION 13. Section 4, Chapter 251, Acts of the 53rd
14-18 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
14-19 Civil Statutes), is amended to read as follows:
14-20 Sec. 4. FUNERAL ESTABLISHMENTS. A. All funeral
14-21 establishments shall be licensed by the commission. All licenses
14-22 shall expire at midnight on September 30th of each year. Funeral
14-23 establishments shall apply for a license, and upon satisfaction to
14-24 the commission that this Section has been complied with and upon
14-25 receipt of the licensing fee, an initial license shall be duly
14-26 issued to such new establishments. Not later than thirty (30) days
14-27 prior to the expiration date of licenses, the commission shall
15-1 cause to be issued notification in writing by mail to each licensed
15-2 funeral establishment that a renewal fee must be paid not later
15-3 than September 30th before such license shall be renewed, and upon
15-4 due receipt of such fees all existing licenses shall be considered
15-5 automatically renewed. Any establishment which fails to pay its
15-6 license renewal fee by the due date is subject to a late payment
15-7 penalty equal in amount to the license renewal fee, and if the
15-8 delinquency is more than thirty (30) days, the establishment shall
15-9 not be permitted to operate as a funeral home until it has applied
15-10 for and has been granted a new license as in the case of original
15-11 applications and licenses for new funeral establishments. The
15-12 commission shall set the funeral establishment license fee, the
15-13 renewal fee, and the penalty in an amount that is reasonable and
15-14 necessary for the administration of this Act.
15-15 B. No funeral establishment shall conduct funeral business
15-16 as intended under this Act unless duly licensed. The commission
15-17 may refuse to issue an establishment license to an individual,
15-18 partnership, or corporation if the individual, a partner, or an
15-19 officer or director of the corporation:
15-20 (1) has been convicted of a felony, or a misdemeanor
15-21 related to the practice of embalming or funeral directing;
15-22 (2) previously held an establishment license that was
15-23 suspended or revoked;
15-24 (3) has violated this Act, a rule adopted under this
15-25 Act, or Chapter 512, Acts of the 54th Legislature, Regular Session,
15-26 1955 (Article 548b, Vernon's Texas Civil Statutes);
15-27 (4) submits false information on the application for
16-1 an establishment license; or
16-2 (5) attempts to avoid a revocation, suspension, or
16-3 license refusal by subterfuge or other evasive means.
16-4 C. 1. Each funeral establishment shall be required to have a
16-5 physical plant, equipment and personnel consisting of the
16-6 following:
16-7 (A)[1]. Some facilities in which funeral
16-8 services may be conducted;
16-9 (B)[2]. A physical plant which meets building
16-10 standards and fire safety standards of the state and of the
16-11 municipality in which the establishment is located;
16-12 (C)[3]. Access to rolling stock consisting of at
16-13 least one motor hearse;
16-14 (D)[4]. A preparation room containing
16-15 facilities, equipment, and supplies required by commission rule to
16-16 ensure the provision of adequate embalming services and other
16-17 facilities necessary to comply with the sanitary code of the state
16-18 and the municipality in which the room is located;
16-19 (E)[5]. A display containing sufficient
16-20 merchandise to permit reasonable selection, including five (5) or
16-21 more adult caskets, provided that the least expensive casket
16-22 offered for sale by a funeral establishment must be visibly
16-23 displayed without concealment in the same general manner as other
16-24 caskets are displayed;
16-25 (F)[6]. Sufficient licensed personnel who will
16-26 be available to conduct the operation of the funeral establishment;
16-27 (G)[7]. A physical plant located at a fixed
17-1 place, and not located on any tax-exempt property or cemetery; and
17-2 (H)[8]. A physical plant which meets the health
17-3 standards or health ordinances of the state and of the municipality
17-4 in which the establishment is located.
17-5 2. It is expressly provided, however, that an
17-6 establishment which functions solely as a commercial embalmer, as
17-7 that term is defined in this Act, shall have a commercial embalmers
17-8 establishment license, but shall not be required to meet the
17-9 requirements of Paragraphs (A) [sub-sections 1] and (E) [5] of
17-10 Subdivision 1 of this Subsection [paragraph] C.
17-11 3. An embalming service, whether provided at a funeral
17-12 establishment or other embalming facility licensed under this Act,
17-13 must comply with this Act or a rule adopted under this Act.
17-14 D. 1. The commission may exempt a funeral establishment from
17-15 the requirements of Subsection C. 1.(D) of this section if:
17-16 (A) the majority owner or designated agent of
17-17 record of a funeral establishment submits a written petition to the
17-18 commission requesting an exemption and stating:
17-19 (i) the establishment's name and address;
17-20 (ii) that the establishment is located
17-21 within 50 miles of a facility at which embalming services are
17-22 performed; and
17-23 (iii) that no embalming services will be
17-24 performed at the establishment; and
17-25 (B) the commission determines that the criteria
17-26 in Paragraph (A) of this subsection have been met.
17-27 2. The executive director shall notify the petitioner
18-1 of the commission's decision.
18-2 3. The exemption remains in effect until:
18-3 (A) the establishment is no longer located
18-4 within 50 miles of a facility at which embalming services are
18-5 performed; or
18-6 (B) an embalming service has been performed at
18-7 the establishment.
18-8 E[D]. 1. The commission may, after a hearing as provided by
18-9 Section 6C of this Act, reprimand, assess an administrative
18-10 penalty, revoke, suspend, or probate the suspension of a license,
18-11 or impose any combination of these sanctions against a licensed
18-12 funeral establishment. [The commission may assess an
18-13 administrative penalty without a hearing if the penalty is assessed
18-14 as provided by Section 6G of this Act.] Action taken by the
18-15 commission under this section may only be based on a violation of
18-16 this Act or a rule adopted under this Act. The commission may
18-17 refuse after [without] a hearing to license an establishment if an
18-18 owner of the establishment has been found to have committed an act
18-19 listed in Subsection B of this section. [An establishment whose
18-20 license is refused under this subsection may appeal the decision by
18-21 requesting a hearing not later than the 30th day after the date of
18-22 the refusal.] The commission and the establishment whose
18-23 application for license is refused may agree to the issuance of a
18-24 probationary license or the commission may, after a hearing, order
18-25 that a license be issued on a probationary basis. A funeral
18-26 establishment alleged to have violated this section may waive the
18-27 right to a hearing as provided by Section 6C of this Act. A
19-1 violation of this Act includes the following:
19-2 (a) Failure of a funeral establishment to
19-3 substantially comply with the provisions of Subsection B or C of
19-4 this Section.
19-5 (b) Failure by any person associated with the
19-6 funeral establishment, whether as an employee, agent,
19-7 subcontractor, assignee, owner, or otherwise, and whether licensed
19-8 or unlicensed, to comply with this Act or a rule adopted under this
19-9 Act.
19-10 (c) The use of any advertising statement of a
19-11 character that misleads or deceives the public, or use of, in
19-12 connection with advertisements, the names of persons who do not
19-13 hold a license as a funeral director or embalmer and representing
19-14 them as being so licensed.
19-15 (d) Whenever a licensee, provisional licensee,
19-16 or any other person, whether an employee, agent, or representative,
19-17 or one in any manner associated with a funeral establishment shall
19-18 solicit business or offer any inducement, pecuniary or otherwise,
19-19 for the purpose of securing or attempting to secure business for
19-20 such funeral establishment, unless such solicitation is made
19-21 pursuant to a permit issued under Subchapter C, Chapter 154,
19-22 Finance Code [512, Acts of the 54th Legislature, Regular Session,
19-23 1955 (Article 548b, Vernon's Texas Civil Statutes)].
19-24 (e) Failure by the funeral director in charge to
19-25 provide a licensed funeral director for direction or personal
19-26 supervision of a "first call" as that term is defined in this Act.
19-27 (f) Any violation by a funeral establishment or
20-1 a person acting on behalf of a funeral establishment or any person
20-2 directly or indirectly connected with a funeral establishment of
20-3 Chapter 154, Finance Code [512, Acts of the 54th Legislature,
20-4 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
20-5 Statutes)] or a rule adopted under that chapter [Act].
20-6 (g) Any violation by a funeral establishment or
20-7 a person acting on behalf of a funeral establishment of Chapter 193
20-8 or 361, Health and Safety Code.
20-9 2. With respect to violations of Subsection D. 1.(b),
20-10 (c), (d), (e), (f), or (g), the commission may not initiate action
20-11 against a funeral establishment or in regard to the license of a
20-12 funeral establishment if the complaint is based on the conduct of
20-13 employees, agents, or representatives of such establishment
20-14 performed outside the scope and authority of their employment or
20-15 contrary to the instructions of the funeral establishment and its
20-16 management.
20-17 F[E]. Each funeral establishment shall designate to the
20-18 commission a funeral director in charge, and such funeral director
20-19 in charge shall be directly responsible for the funeral directing
20-20 and embalming business of the licensee. The funeral director in
20-21 charge is ultimately responsible for compliance with the mortuary
20-22 laws. The funeral director in charge may be charged with a
20-23 violation of this Act if a violation occurs in the funeral
20-24 establishment. Any change or changes in such designation of
20-25 funeral director shall be given to the commission promptly.
20-26 G[F]. The commission may issue such rules and regulations as
20-27 shall comply with and shall effect the intent of the provisions of
21-1 this Section.
21-2 H[G]. (1) Any premises on which funeral directing or
21-3 embalming is practiced shall be open at all times to inspection for
21-4 violations of this Act and of Chapters 193 and 361, Health and
21-5 Safety Code, by any agent of the commission or by any duly
21-6 authorized agent of the state or of the county or municipality in
21-7 which the premises are located. Each licensed funeral
21-8 establishment shall be thoroughly inspected annually by an agent of
21-9 the commission or by an agent of the state or a political
21-10 subdivision thereof whom the commission has authorized to make
21-11 inspections on its behalf. A report of this annual inspection
21-12 shall be filed with the commission.
21-13 (2) Before an agent of the commission conducts an
21-14 inspection of an establishment, the agent shall review the
21-15 inspection reports on the establishment filed with the commission.
21-16 During the inspection, the agent shall determine whether previously
21-17 identified problems have been corrected and whether a pattern of
21-18 violations exists. The commission shall consider the information
21-19 from inspection reports when the commission determines whether a
21-20 penalty should be imposed against an establishment.
21-21 (3) When an agent inspects an establishment, the agent
21-22 shall inspect for violations under this Act and under Chapters 193
21-23 and 361, Health and Safety Code.
21-24 (4) The commission by rule shall establish procedures
21-25 for the inspection of a funeral establishment required by this
21-26 subsection.
21-27 I[H]. The commission may require funeral establishments with
22-1 solid waste disposal and sanitation facilities that have not been
22-2 inspected by the Texas Department of Health to obtain inspection of
22-3 those facilities by an entity other than the Texas Department of
22-4 Health. The commission by rule shall establish procedures for
22-5 inspections required under this subsection.
22-6 J[I]. (1) The commission, the Texas Department [State
22-7 Board] of Insurance, and the Banking Department of Texas shall
22-8 adopt a joint memorandum of understanding relating to prepaid
22-9 funeral services and transactions that:
22-10 (a) outlines the responsibilities of each agency
22-11 in regulating these services and transactions;
22-12 (b) establishes procedures to be used by each
22-13 agency in referring complaints to one of the other agencies;
22-14 (c) establishes procedures to be used by each
22-15 agency in investigating a complaint;
22-16 (d) establishes procedures to be used by each
22-17 agency in notifying the other agencies of a complaint or of the
22-18 investigation of a complaint;
22-19 (e) specifies actions the agencies regard as
22-20 deceptive trade practices;
22-21 (f) specifies the information the agencies
22-22 provide consumers and when that information is to be provided; and
22-23 (g) sets the administrative penalties each
22-24 agency imposes for violations.
22-25 (2) Not later than the last month of each state fiscal
22-26 year, the commission and other agencies shall review and update the
22-27 memorandum of understanding.
23-1 (3) Each agency by rule shall adopt the memorandum of
23-2 understanding and all revisions to the memorandum.
23-3 K[J]. (1) The commission and the Texas Department of Health
23-4 shall adopt a joint memorandum of understanding that:
23-5 (a) outlines the responsibilities of each agency
23-6 in regulating funeral establishment requirements under Chapters 193
23-7 and 361, Health and Safety Code;
23-8 (b) establishes procedures by which each agency
23-9 may refer complaints to the other;
23-10 (c) establishes procedures by which each agency
23-11 will notify the other of violations by funeral establishments under
23-12 Chapters 193 and 361, Health and Safety Code; and
23-13 (d) coordinates inspection and enforcement
23-14 efforts by both agencies for measures that funeral establishments
23-15 are required to implement under Chapters 193 and 361, Health and
23-16 Safety Code.
23-17 (2) Not later than the last month of each state fiscal
23-18 year, the commission and the Texas Department of Health shall
23-19 review and update the memorandum of understanding.
23-20 (3) Each agency by rule shall adopt the memorandum of
23-21 understanding and all revisions to the memorandum.
23-22 SECTION 14. Subsection B, Section 5, Chapter 251, Acts of
23-23 the 53rd Legislature, Regular Session, 1953 (Article 4582b,
23-24 Vernon's Texas Civil Statutes), is amended to read as follows:
23-25 B. All rules adopted by the commission are subject to the
23-26 Administrative Procedure [and Texas Register] Act, Chapter 2001,
23-27 Government Code [(Article 6252-13a, Vernon's Texas Civil
24-1 Statutes)].
24-2 SECTION 15. Section 6C, Chapter 251, Acts of the 53rd
24-3 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
24-4 Civil Statutes), is amended to read as follows:
24-5 Sec. 6C. APPLICATION OF ADMINISTRATIVE PROCEDURE [AND TEXAS
24-6 REGISTER] ACT. (a) A person who is denied a license or
24-7 provisional license by the commission is entitled to a hearing
24-8 before the commission in accordance with the Administrative
24-9 Procedure [and Texas Register] Act, Chapter 2001, Government Code
24-10 [(Article 6252-13a, Vernon's Texas Civil Statutes)], if the person
24-11 requests the hearing in writing not later than the 30th day after
24-12 the date the notice of denial is sent.
24-13 (b) A proceeding conducted by the commission relating to the
24-14 denial of a license or provisional license, the suspension or
24-15 revocation of a license, [or] the imposition of an administrative
24-16 penalty, or a reprimand [other than an administrative penalty
24-17 assessed without a hearing as provided by Section 6G of this Act,]
24-18 is governed by the Administrative Procedure [and Texas Register]
24-19 Act, Chapter 2001, Government Code [as amended (Article 6252-13a,
24-20 Vernon's Texas Civil Statutes)]. Judicial review of the proceeding
24-21 is subject to the substantial evidence rule and is governed by the
24-22 Administrative Procedure [and Texas Register] Act.
24-23 (c)(1) A proceeding brought under Subsection (b) of this
24-24 section shall [may] be held before an administrative law judge
24-25 employed by the State Office of Administrative Hearings [a hearings
24-26 officer]. [The executive director shall set a time and place for
24-27 the hearing.]
25-1 (2) [The hearings officer must be an attorney licensed
25-2 in this state.] In the course of a proceeding the judge [hearings
25-3 officer] may:
25-4 (A) administer oaths;
25-5 (B) take testimony;
25-6 (C) rule on questions of evidence;
25-7 (D) make determinations of fact; or
25-8 (E) order compliance with proper discovery
25-9 requests.
25-10 (3) The commission shall provide the judge [hearings
25-11 officer] with a written statement of all commission rules or
25-12 policies that govern the proceeding.
25-13 (4) At the conclusion of the proceeding the judge
25-14 [hearings officer] shall make a ruling on the matter accompanied by
25-15 written findings of facts and conclusions of law.
25-16 (5) The commission shall review the findings of fact,
25-17 conclusions of law, and ruling of the judge [hearings officer]
25-18 before making its final ruling in the proceeding. The commission
25-19 may also review a transcript of the proceeding before making its
25-20 final ruling. The commission shall adopt the ruling of the judge
25-21 [hearings officer] as its ruling unless it finds good cause to
25-22 issue a different ruling. The commission shall explain in writing
25-23 the reasons for adopting a ruling other than the one issued by the
25-24 judge [hearings officer].
25-25 (d) The commission shall inform each interested person,
25-26 including a person filing the complaint, of the right to obtain at
25-27 that person's cost a tape or transcript of a hearing or proceeding
26-1 under this section.
26-2 (e) A funeral establishment alleged to have violated this
26-3 Act or a rule adopted under this Act may waive the right to a
26-4 hearing as provided by this section by written notification to the
26-5 commission.
26-6 SECTION 16. Section 6D, Chapter 251, Acts of the 53rd
26-7 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
26-8 Civil Statutes), is amended to read as follows:
26-9 Sec. 6D. COMPLAINTS. (a) The commission shall investigate
26-10 each complaint received by the commission relating to a funeral
26-11 director, embalmer, apprentice, or funeral establishment. The
26-12 commission shall keep an information file about each complaint
26-13 filed with the commission that the commission has authority to
26-14 resolve.
26-15 (b) The commission shall include in each information file a
26-16 description of the complaint, the date on which the complaint was
26-17 filed, the name of the complainant, a description of any
26-18 information obtained by the commission after investigating the
26-19 complaint, a description and date of any formal actions taken by
26-20 the commission relating to the complaint, a description of the
26-21 current status of the complaint, and other information that the
26-22 commission considers appropriate.
26-23 (c) If a written complaint is filed with the commission that
26-24 the commission has authority to resolve, the commission, at least
26-25 quarterly until final disposition of the complaint and on final
26-26 disposition of the complaint, shall notify the parties to the
26-27 complaint of the status of the complaint [unless the notice would
27-1 jeopardize an undercover investigation].
27-2 (d) The information file[, except for information in the
27-3 file obtained by the commission after investigating the complaint,]
27-4 is public information, except for[. The] information obtained
27-5 after an inspection or an investigation of a [investigating the]
27-6 complaint, which may not be made public [is not public
27-7 information].
27-8 (e) If a person files a complaint with the commission
27-9 relating to a licensed funeral director, embalmer, provisional
27-10 licensee, or funeral establishment, the commission shall furnish to
27-11 the person an explanation of the remedies that are available to the
27-12 person under this Act and information about appropriate state or
27-13 local agencies or officials with which the person may file a
27-14 complaint.
27-15 (f) The commission shall employ or contract for the services
27-16 of one or more persons to investigate complaints of consumer
27-17 interest and other complaints received by the commission. A person
27-18 who is subject to regulation under this Act may not serve as an
27-19 investigator. To serve in this position in a contractual capacity,
27-20 a person must be licensed as a private investigator under state
27-21 law. To serve in this position as an employee of the commission, a
27-22 person must:
27-23 (1) hold a current license as a private investigator
27-24 in this state;
27-25 (2) have been previously licensed under state or
27-26 federal law as a private investigator; or
27-27 (3) have been previously employed by a local, state,
28-1 or federal law enforcement agency as an investigator for at least
28-2 12 months.
28-3 (g) The complainant is entitled to attend any proceeding
28-4 resulting from the complaint.
28-5 SECTION 17. Section 6F, Chapter 251, Acts of the 53rd
28-6 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
28-7 Civil Statutes), is amended to read as follows:
28-8 Sec. 6F. EX PARTE COMMUNICATIONS. The commissioners and the
28-9 employees of the commission are subject to the provisions of the
28-10 Administrative Procedure [and Texas Register] Act, Chapter 2001,
28-11 Government Code [as amended (Article 6252-13a, Vernon's Texas Civil
28-12 Statutes)], relating to ex parte communications.
28-13 SECTION 18. Section 6G, Chapter 251, Acts of the 53rd
28-14 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
28-15 Civil Statutes), is amended to read as follows:
28-16 Sec. 6G. ADMINISTRATIVE PENALTY. (a) If the commission
28-17 determines that a person or establishment regulated under this Act
28-18 has violated this Act or a rule adopted under this Act, the
28-19 commission may assess an administrative penalty against that person
28-20 or establishment as a result of a hearing conducted in the manner
28-21 provided by Section 6C of this Act [or as provided by this section.
28-22 If an administrative penalty is assessed after a hearing conducted
28-23 under Section 6C of this Act, the commission shall follow the
28-24 procedures described in Subsections (e) through (h) of this
28-25 section].
28-26 (b) The commission may assess the administrative penalty in
28-27 an amount not less than One Hundred Dollars ($100) or more than
29-1 Five Thousand Dollars ($5,000) for each act of violation, not to
29-2 exceed Ten Thousand Dollars ($10,000) for any single complaint. In
29-3 determining the amount of the penalty, the commission shall employ
29-4 guidelines established by commission rule.
29-5 [(c) If, after examination of a possible violation and the
29-6 facts relating to that possible violation, the commission concludes
29-7 that a violation has occurred, the commission shall issue a
29-8 preliminary report that states the facts on which the conclusion is
29-9 based, the fact that an administrative penalty is to be imposed,
29-10 and the amount to be assessed. Not later than the tenth (10th) day
29-11 after the day on which the commission issues the preliminary
29-12 report, the commission shall send a copy of the report to the
29-13 person or establishment charged with the violation, together with a
29-14 statement of the right of the person or establishment to a hearing
29-15 relating to the alleged violation and the amount of the penalty.]
29-16 [(d) Not later than the thirtieth (30th) day after the date
29-17 on which the preliminary report is sent, the person or
29-18 establishment charged either may make a written request for a
29-19 hearing or may remit the amount of the administrative penalty to
29-20 the commission. Failure either to request a hearing or to remit
29-21 the amount of the penalty within the time provided by this
29-22 subsection results in a waiver of a right to a hearing under this
29-23 Act. Unless a hearing is requested, the penalty is due on the
29-24 thirtieth (30th) day after the date the preliminary report is sent.
29-25 Failure to pay the penalty by that date automatically suspends the
29-26 affected license for six (6) months. If the person or
29-27 establishment charged requests a hearing, the hearing shall be
30-1 conducted in the manner provided by Section 6C of this Act.]
30-2 [(e)(1) If an administrative penalty is assessed after a
30-3 hearing conducted under Section 6C of this Act, not later than the
30-4 thirtieth (30th) day after the date on which the order is sent or a
30-5 motion for rehearing is denied, the person or establishment charged
30-6 shall pay the administrative penalty in full, or, if the person or
30-7 establishment wishes to contest either the amount of the penalty or
30-8 the fact of the violation, the person or establishment shall not
30-9 later than the thirtieth (30th) day after the date on which the
30-10 order is sent or a motion for rehearing is denied:]
30-11 [(A) remit the assessed amount to the commission
30-12 for deposit in an escrow account; or]
30-13 [(B) post a supersedeas bond in a form approved
30-14 by the commission for the amount of the penalty.]
30-15 [(2) If, after judicial review, it is determined that
30-16 no violation occurred or that the amount of the penalty should be
30-17 reduced, the commission shall remit the appropriate amount to the
30-18 person or establishment charged with the violation not later than
30-19 the thirtieth (30th) day after the date on which the judicial
30-20 determination becomes final.]
30-21 [(f) Failure to remit the amount of the administrative
30-22 penalty to or post bond with the commission within the time
30-23 provided by this Act results in a waiver of all legal rights to
30-24 contest the violation or the amount of the penalty. If the person
30-25 or establishment fails to remit the amount of the administrative
30-26 penalty to or post bond with the commission within that time, or
30-27 within a longer period with the consent of the commission, the
31-1 license of that person or establishment is suspended for six (6)
31-2 months. After notice and a hearing, the commission may extend the
31-3 license suspension for a longer period or may revoke or cancel the
31-4 license for failure to remit the penalty or post bond.]
31-5 [(g) An administrative penalty owed under this Act shall be
31-6 recovered in a civil action brought by the Attorney General at the
31-7 request of the commission.]
31-8 [(h) A penalty collected under this Act shall be deposited
31-9 to the credit of an account in the general revenue fund that may be
31-10 used only for the purpose of administering the continuing education
31-11 program under Section 3 of this Act.]
31-12 SECTION 19. Section 6H, Chapter 251, Acts of the 53rd
31-13 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
31-14 Civil Statutes), is amended to read as follows:
31-15 Sec. 6H. REPRIMAND. [(a)] If the commission determines
31-16 that a person or establishment regulated under this Act has
31-17 violated this Act or a rule adopted under this Act, the commission
31-18 may issue a reprimand against that person or establishment. The
31-19 commission may issue the reprimand without any other sanction or in
31-20 conjunction with the assessment of an administrative penalty or the
31-21 revocation, suspension, or probation of the license. The
31-22 commission may issue a letter of reprimand:
31-23 (1) after a hearing conducted in the manner provided
31-24 by Section 6C of this Act; or
31-25 (2) without a hearing if the person or establishment
31-26 waives a hearing [or as provided by this section].
31-27 [(b) If, after examination of a possible violation and the
32-1 facts relating to that possible violation, the commission concludes
32-2 that a violation has occurred, the commission may issue a
32-3 preliminary report that states the facts on which the conclusion is
32-4 based and that a reprimand is to be issued. If the reprimand is to
32-5 be issued in addition to the assessment of an administrative
32-6 penalty under Section 6G of this Act, the preliminary reports may
32-7 be combined. Not later than the tenth (10th) day after the day on
32-8 which the commission issues the preliminary report, the commission
32-9 shall send a copy of the report to the person or establishment
32-10 charged with the violation, together with a statement of the right
32-11 of the person or establishment to a hearing relating to the alleged
32-12 violations.]
32-13 [(c) Not later than the thirtieth (30th) day after the date
32-14 on which the preliminary report is sent, the person or
32-15 establishment charged may make a written request for a hearing.
32-16 Failure to request a hearing within the time provided by this
32-17 subsection results in a waiver of a right to a hearing under this
32-18 Act and the reprimand shall be issued by the commission and placed
32-19 in the permanent files of the commission. If the person or
32-20 establishment charged requests a hearing, the hearing shall be
32-21 conducted in the manner provided by Section 6C of this Act. If it
32-22 is determined after hearing that the person or establishment has
32-23 committed the alleged violation, the commission is not limited to
32-24 the issuance of a reprimand but may also take any action allowed
32-25 under this Act.]
32-26 SECTION 20. Section 6I, Chapter 251, Acts of the 53rd
32-27 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
33-1 Civil Statutes), is amended to read as follows:
33-2 Sec. 6I. REPEAT AND MULTIPLE OFFENDERS. (a) The commission
33-3 or an administrative law judge employed by the State Office of
33-4 Administrative Hearings [a hearings officer] shall review each
33-5 disciplinary proceeding to determine whether the licensee has
33-6 committed the same type of violation on one or more previous
33-7 occasions. If it is determined that the licensee has previously
33-8 committed the same type of violation, the commission or the judge
33-9 [hearings officer] shall impose a disciplinary action that is more
33-10 severe than that imposed on the previous occasion.
33-11 (b) In a disciplinary proceeding involving multiple
33-12 violations of this Act, the commission or the judge [hearings
33-13 officer] shall impose a disciplinary action that is more severe
33-14 than the disciplinary action that would be imposed cumulatively for
33-15 each of the individual violations.
33-16 SECTION 21. (a) This Act takes effect September 1, 1999.
33-17 (b) The changes in law made by this Act apply only to an
33-18 offense committed on or after the effective date of this Act. For
33-19 purposes of this section, an offense is committed before the
33-20 effective date of this Act if any element of the offense occurs
33-21 before that date. An offense committed before the effective date
33-22 of this Act is covered by the law in effect when the offense was
33-23 committed, and the former law is continued in effect for that
33-24 purpose.
33-25 (c) The changes in law made by this Act apply only to a
33-26 proceeding commenced on or after the effective date of this Act. A
33-27 proceeding that is commenced before the effective date of this Act
34-1 is governed by the law in effect when the proceeding was commenced,
34-2 and that law is continued in effect for that purpose.
34-3 SECTION 22. The importance of this legislation and the
34-4 crowded condition of the calendars in both houses create an
34-5 emergency and an imperative public necessity that the
34-6 constitutional rule requiring bills to be read on three several
34-7 days in each house be suspended, and this rule is hereby suspended.