SRC-SEW C.S.H.B. 3067 77(R)BILL ANALYSIS


Senate Research CenterC.S.H.B. 3067
77R15365 TBy: Chisum (Zaffirini)
State Affairs
5/9/2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

The legislature created the State Board of Embalming in 1903 to license and
regulate embalmers.  In 1987, the legislature changed the board's name to
the Texas Funeral Service Commission (commission) and expanded its
authority.  Currently, the commission licenses both funeral directors and
embalmers, and enforces violations of the commission's statute.  The
commission is subject to the Texas Sunset Act and will be abolished on
September 1, 2001 unless continued by the legislature.  As a result of its
review of the commission, the Sunset Advisory Commission recommended a
two-year continuation and several other statutory modifications.  C.S.H.B.
3067 continues the commission and incorporates recommendations of the
Sunset Advisory Commission.  

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Funeral Service
Commission in SECTION 1.11 (Section 651.157, Occupations Code), SECTION
1.12 (Section 651.1575, Occupations Code), SECTION 1.13 (Section 651.202,
Occupations Code), SECTION 1.17 (Section 651.164, Occupations Code),
SECTION 1.23 (Section 651.4065, Occupations Code), SECTION 1.29 (Section
651.5515, Occupations Code), SECTION 1.32 (Section 651.653, Occupations
Code) of this bill. 

SECTION BY SECTION ANALYSIS

ARTICLE 1.  TEXAS FUNERAL SERVICE COMMISSION AMENDMENTS
 
SECTION 1.01.  Amends Section 101.002, Occupations Code, to provide that
the Health Professions Council (council) consists of 15 (rather than 14)
members, with one member appointed by the Texas Funeral Service Commission
(commission).  Makes nonsubstantive changes. 

SECTION 1.02.  Amends Chapter 101B, Occupations Code, by adding Section
101.0515, as follows: 
 
Sec. 101.0515.  APPLICABILITY OF SUBCHAPTER.  Provides that this subchapter
does not apply to the commission. 

SECTION 1.03.  Amends Section 651.001, Occupations Code, to define
"cemetery" and "crematory," and to redefine "funeral directing."  Makes
nonsubstantive changes.   
 
SECTION 1.04.  Amends Section 651.002, Occupations Code, to provide that
the Texas Funeral Service Commission is subject to Chapter 325, Government
Code (Texas Sunset Act) and that,  unless continued in existence as
provided by that chapter, the commission is abolished and this chapter
expires September 1, 2003.   

SECTION 1.05.  Amends Section 651.051(a), Occupations Code, to provide that
the commission consists of seven (rather than six) members appointed by the
governor, with the advice and consent of the senate, with one member who is
a registered cemetery owner or operator. 
  
SECTION 1.06.  Amends Chapter 651B, Occupations Code, by adding Sections
651.0511 and 651.0512, as follows: 
 
Sec. 651.0511.  TRAINING. Prohibits a person who is appointed to and
qualifies for office as a member of the  commission from voting,
deliberating, or being counted as a member in attendance at a meeting of
the commission until the person completes a training program that complies
with this section.  Sets forth requirements for the training program.
Provides that a person appointed to the commission is entitled to
reimbursement, as provided by the General Appropriations Act, for the
travel expenses incurred in attending the training program regardless of
whether the attendance at the program occurs before or after the person
qualifies for office. 

Sec. 651.0512.  TRAINING FOR EMPLOYEES ON STATE INCENTIVE PROGRAM. Requires
the executive director or the executive director's designee to provide to
commission employees information and training on the benefits and methods
of participation in the state employee incentive program under Chapter
2108B, Government Code. 

SECTION 1.07.  Amends Section 651.052, Occupations Code, to prohibit a
person from being (rather than providing that a person is not eligible for
appointment as) a public member of the commission under certain conditions.

SECTION 1.08.  Amends Section 651.053, Occupations Code, as follows:
 
 Sec. 651.053.  (a) Redefines "Texas trade association" by deleting the
term "nonprofit."  

(b)   Deletes existing Subsection (b). Prohibits a person may from being a
member of the commission and from being a commission employee employed in a
"bona fide executive, administrative, or professional capacity," as that
phrase is used for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C.
Section 201 et seq.), and its subsequent amendments, under certain
conditions.  

(c)  Deletes existing Subsection (c).  Prohibits a person from being,
rather than serving as, a member of the commission or acting as the general
counsel if the person is required to register as a lobbyist under Chapter
305, Government Code, because of the person's activities for compensation
on behalf of a profession related to the operation of the commission. 

  Deletes existing Subsections (d) - (g).

SECTION 1.09.  Amends Section 651.104, Occupations Code, to require the
commission to develop and implement policies that clearly separate (rather
than define) the policy-making responsibilities of the commission and the
management responsibilities of the executive director and staff of the
commission.   

SECTION 1.10.  Amends Section 651.107, Occupations Code, to require the
executive director or the executive director's designee to prepare and
maintain a written policy statement that implements a program of equal
employment opportunity to ensure that all personnel decisions are made
without regard to race, color, disability, sex, religion, age, or national
origin.  Sets forth requirements for the policy.  Deletes existing
Subsection (c). 
 
SECTION 1.11.  Amends Section 651.157, Occupations Code, to require a
licensed funeral establishment, except as otherwise provided by this
section, to be inspected at least once every two years (rather than
annually) by an agent of the commission or by an agent of the state or a
political subdivision authorized by the commission to make inspections on
its behalf.  Requires the commission, if  it finds a violation of this
chapter or of Chapter 193 or 361, Health and Safety Code, to inspect the
establishment annually until the commission determines that the
establishment is free of violations. Makes conforming and nonsubstantive
changes.  Requires the commission by rule to establish certain procedures
and criteria.   

SECTION 1.12.  Amends Chapter 651D, Occupations Code, by adding Section
651.1575, as follows:   

Sec.  651.1575.  INSPECTION OF CEMETERY OR CREMATORY.  Authorizes the
commission to inspect a cemetery or crematory only under certain
conditions.  Requires a report of an inspection made under this section to
be filed with the commission.  Requires the commission by rule to establish
procedures for the inspection of a cemetery or crematory required by this
section. 

SECTION 1.13.  Amends Section 651.202, Occupations Code, to authorize the
commission to provide for a certain notice on each registration form of a
person regulated under this chapter. Requires the commission to adopt rules
concerning a complaint filed under this section.  Sets forth requirements
for the rules adopted under this subsection.  Requires the commission to
investigate each complaint received by the commission relating to a funeral
director, embalmer, provisional license holder, funeral establishment, or
other person licensed under this chapter.  Requires the commission to
provide to the person filing the complaint and to each person who is a
subject of the complaint a copy of the commission's policies and procedures
relating to complaint investigation and resolution, including an
explanation of the remedies that are available to the person under this
chapter and information about other appropriate state or local agencies or
officials with which the person may file a complaint. Deletes text
regarding a written complaint.  Makes conforming and nonsubstantive
changes.  Deletes existing Subsection (c).   

SECTION 1.14.  Amends Section 651.203(a), Occupations Code, to require the
commission to maintain a file (rather than keep information) on each
written (rather than about each) complaint filed with the commission.
Deletes text regarding the commission's authority.  Sets forth requirements
for the file. 

SECTION 1.15.  Amends Section 651.254, Occupations Code, to require the
commission, not later than the 30th day after the date a person takes a
licensing examination (rather than on which a funeral director's or
embalmer's licensing examination is administered) under this chapter, to
notify the person (rather than each examinee) of the results of the
examination.  Deletes text regarding a national testing service.  Makes
conforming and nonsubstantive changes.  Authorizes the commission to
require a testing service to notify a person of the results of the person's
examination.  Deletes existing Subsection (e).   

SECTION 1.16.  Amends Chapter 651F, Occupations Code, by adding Section
651.2595, as follows: 
 
Sec. 651.2595.  PROVISIONAL LICENSE. (a) Authorizes the commission to issue
a provisional license to an applicant currently licensed in another
jurisdiction who seeks a license in this state and who meets certain
requirements.   
  
(b)  Authorizes the commission to waive the requirement of Subsection
(a)(3) for an applicant if the commission determines that compliance with
that subsection would be a hardship to the applicant. 
 
(c)  Provides that a provisional license is valid until the date the
commission approves or denies the provisional license holder's application
for a license.  Requires the commission to issue a license under this
chapter to the provisional license holder under certain conditions.   
  
(d)  Requires the commission to approve or deny a provisional license
holder's application for a license not later than the 180th day after the
date the provisional license is issued.  Authorizes the commission to
extend the 180-day period if the results of an examination have not been
received by the commission before the end of that period. 
 
(e)  Authorizes the commission to establish a fee for provisional licenses
in an amount reasonable and necessary to cover the cost of issuing the
license. 
 
SECTION  1.17.  Transfers Section 651.262, Occupations Code, to Chapter
651D, Occupations Code, redesignates it as Section 651.164, Occupations
Code, and amends it as follows: 
 
Sec. 651.164. New heading:  LICENSE OR REGISTRATION EXPIRATION.
Redesignated from original Section 651.262.  Authorizes the commission by
rule to adopt a system under which licenses or registrations expire on
various dates during the year.  Makes conforming changes.  Deletes text
requiring the commission to adjust dates for sending notice regarding
payment of fees and license suspension for nonpayment according to the
system, if any, adopted under this subsection.  Requires the commission,
for the year in which the license or registration expiration date is
changed, to prorate license or registration fees on a monthly basis so that
each license holder or registrant pays only that portion of the license or
registration fee that is allocable to the number of months during which the
license or registration is valid.  
 
SECTION 1.18.  Transfers Section 651.263, Occupations Code, to Chapter
651D, Occupations Code, redesignates it as Section 651.165, Occupations
Code, and amends it as follows: 
 
Sec. 651.165.  Redesignated from original Section 651.263.  Authorizes a
person who is otherwise eligible to renew a license to renew an unexpired
license by paying the required renewal fee to the commission before the
expiration date of the license.  Prohibits a person whose license has
expired from engaging in activities that require a license until the
license has been renewed.  Sets forth guidelines regarding the renewal of a
license.  Prohibits certain persons from renewing a license and sets forth
guidelines regarding obtaining a new license. Makes nonsubstantive changes.

SECTION 1.19.  Amends Section 651.266, Occupations Code, to authorize the
commission  
by rule to require continuing education as a condition for license renewal
except for a license holder described by Section 651.155 or an applicant
for renewal described by Section 651.265.  Requires the commission, if it
requires continuing education, to require completion of a minimum number of
hours of ethics training as a required part of that education. 
 
SECTION 1.20.  Amends the heading to Section 651.405, Occupations Code, to
read as follows: 
 
 Sec. 651.405.  RETAIL PRICE LIST; FUNERAL ESTABLISHMENT.
 
SECTION 1.21.  Amends Chapter 651I, Occupations Code, by adding Section
651.4055, as follows: 

Sec. 651.4055.  RETAIL PRICE LIST; CEMETERY OR CREMATORY. (a)  Defines
"retail price list." Sets forth requirements for a retail price list.   
 
SECTION 1.22.  Amends the heading to Section 651.406, Occupations Code, to
read as follows: 

 Sec.  651.406.  PURCHASE AGREEMENT; FUNERAL ESTABLISHMENT.  

SECTION 1.23.  Amends Chapter 651I, Occupations Code, by adding Section
651.4065, as follows: 
 
 Sec. 651.4065.  PURCHASE AGREEMENT; CEMETERY OR CREMATORY. Sets forth
requirements for a purchase agreement.  Requires the registrant for the
cemetery or crematory to sign the purchase agreement.  Provides that, if
the customer selects a package arrangement based on unit pricing, the
itemization requirement is satisfied by providing a purchase agreement that
itemizes the discount provided by the package arrangement. 
 
SECTION 1.24.  Amends Chapter 651I, Occupations Code, by adding Section
651.408, as follows: 

Sec. 651.408.  USE OF CEMETERY AND CREMATORY SERVICES.  Provides that the
fact that a funeral director contracts for cemetery or crematory services,
including as part of a package arrangement, does not limit the director's
liability to the customer for those services. 

SECTION 1.25.  Amends Section 651.451, Occupations Code, to sets forth
guidelines regarding circumstances in which a person violates this chapter. 

SECTION 1.26.  Amends Section 651.452, Occupations Code, to sets forth
guidelines regarding circumstances in which a person violates this chapter. 
 
SECTION 1.27.  Amends Section 651.455, Occupations Code, as follows:
 
Sec.  651.455.  New heading:  FALSE OR MISLEADING STATEMENTS REGARDING
FUNERAL MERCHANDISE OR FUNERAL, CEMETERY, OR CREMATORY SERVICES.  Provides
that a person violates this chapter if the person uses a statement that
misleads or deceives the public, including certain specific false or
misleading statements. Makes conforming changes.  Provides that this
section does not apply to cemetery or crematory services that occur after
burial or inurnment. 
 
SECTION 1.28.  Amends Chapter 651K, Occupations Code, by adding Section
651.5025, as follows: 
 
Sec. 651.5025.  IMMEDIATE LICENSE REVOCATION; EFFECT OF CERTAIN FELONY
CONVICTIONS. Authorizes the commission to revoke the license of a license
holder without a hearing under certain conditions.  Requires the commission
to notify the license holder if it decides to revoke the license.
Authorizes the license holder to appeal the decision by submitting a
written request for a hearing in accordance with this chapter and Chapter
2001, Government Code, not later than the 30th day after the date of the
revocation. 
 
SECTION 1.29.  Amends Chapter 651L, Occupations Code, by adding Section
651.5515, as follows: 
 
Sec. 651.5515.  PENALTY GUIDELINES. Requires the commission by rule to
adopt certain guidelines.  Requires the commission, using those guidelines
and the summary, to establish and maintain a chart that meets certain
requirements.  Requires the commission to consider using focus groups to
obtain business and consumer input to match appropriate penalties to
violations before proposing the rules under this section.  Requires the
commission to post the guidelines on the commission's Internet site. 
 
SECTION 1.30.  Amends Section 651.552, Occupations Code, to require the
commission, in determining the amount of the penalty, to base its decisions
on certain factors.   
  
SECTION 1.31.  Amends Section 651.553(b), Occupations Code, to require the
commission, not later than the 10th day after the date the report is
issued, to send to the person charged with the violation an explanation for
any significant deviation from the penalty amount assessed for similar
violations. 

 SECTION 1.32.  Amends Chapter 651, Occupations Code, by adding Subchapter
N, as follows: 

SUBCHAPTER N.  REGISTRATION REQUIREMENTS:
CEMETERIES AND CREMATORES

 Sec. 651.651.  DEFINITION.  Defines "perpetual care cemetery."

Sec.  651.652.  APPLICABILITY.  Provides that this chapter applies only to
certain cemeteries or crematories and does not apply to the maintenance of
a cemetery or crematory. 

Sec.  651.653.  CEMETERY OR CREMATORY REGISTRATION REQUIREMENTS. Sets forth
guidelines regarding cemetery or crematory registration requirements, and
requires the commission by rule to establish the fee to register under this
subchapters.  Sets forth requirements for the fee. 

Sec.  651.654.  PERPETUAL CARE CEMETERIES.  Requires the Texas Department
of Banking, on request by the commission, to provide the commission a list
of perpetual care cemeteries, including the address and other contact
information for each cemetery.  Requires the commission to annually
register, under this subchapter, each perpetual care cemetery on that list.
Provides that a perpetual care cemetery is not required to pay a
registration fee under this subchapter.   

Sec.  651.655.  RENEWAL OF CEMETERY OR CREMATORY REGISTRATION.  Sets forth
guidelines regarding the renewal of cemetery or crematory registration. 

SECTION 1.33.  Amends the heading to Title 3L, Occupations Code, to read as
follows: 

SUBTITLE L.  CEMETERY AND CREMATORY SERVICES, 
FUNERAL DIRECTING, AND EMBALMING

SECTION 1.34.  Amends the heading to Chapter 651, Occupations Code, to read
as follows: 

CHAPTER 651.  CEMETERY AND CREMATORY SERVICES, FUNERAL DIRECTING, AND
EMBALMING 

ARTICLE 2.  INFORMATION AND LEGAL RESOURCES
 
SECTION 2.01.  DEFINITIONS.  Defines "funeral commission" and "task force."
  
SECTION 2.02.  INFORMATION RESOURCES. (a) Requires the Texas Funeral
Services Commission (funeral commission) to contract with the Department of
Information Resources to improve the compilation of statistics and other
information using information resources.  Requires the contract to expire
before the fiscal year that begins September 1, 2003.  Sets forth
requirements for the contract.  
 
(b)  Requires the statistics and other information compiled under
Subsection (a)  of this section to include certain items. 

SECTION 2.03.  LEGAL RESOURCES.  Requires the commission to contract with
the attorney general to ensure adequate access to certain legal services
from the attorney general. 
 
SECTION 2.04.  PLAN.  Requires the commission, not later than December 1,
2001, to develop a plan that details the manner in which it will  implement
the requirements of Sections 2.02 and 2.03 of this article.  Sets forth
requirements for the plan.   
 
 SECTION 2.05.  STATUS REPORTS.  Requires the commission to report once
each quarter on the status of its efforts under Sections 2.02, 2.03, and
2.04 of this article to the Sunset Advisory Commission; and the task force. 
 
SECTION 2.06.  TASK FORCE.  Provides that a task force is created to
perform certain functions. Sets forth guidelines regarding the composition
of the task force.  Requires the task force to meet at least once a month.
Provides that the task force is abolished and this section expires January
15, 2003. 
 
SECTION 2.07.  Provides that this article expires September 1, 2003.

ARTICLE 3. REPEALER; TRANSITION; EFFECTIVE DATE

SECTION 3.01.  (a) Repealers:  Sections 651.305(a) and (b), 651.354, and
651.506(i), Occupations Code. 
 
(b)  Provides that Section 651.353, Occupations Code, is repealed effective
September 30, 2001. 

SECTION 3.02.  (a) Defines " funeral commission" and "sunset commission."
 
(b)  Authorizes the sunset commission, in performing its duties under
Section 651.002, Occupations Code, as amended by this Act, and Chapter 325,
Government Code (Texas Sunset Act), to limit the scope of its review of the
funeral commission. 
 
(c)  Authorizes the sunset commission, as part of the review, to determine
how much progress the funeral commission has made in addressing and
implementing certain solutions required by this Act. 

(d)  Requires the funeral commission, not later than September 1, 2002, to
report to the sunset commission on the status of its progress under this
Act. 
 
(e)  Requires the sunset commission, if it determines that the funeral
commission has not made substantial progress, to consider whether to
recommend that the legislature abolish the funeral commission and transfer
its functions to the Texas Department of Licensing and Regulation. 
 
SECTION 3.03.  Requires the commission, not later than March 1, 2002, to
adopt the rules required by Section 651.202(b), Occupations Code, as
amended by this Act.  Requires the commission, in adopting these rules, to
examine, and use as a guide, the rules adopted by the Board of Nurse
Examiners relating to complaint investigation, disposition, and related
proceedings. 
 
SECTION 3.04.  Requires the commission, not later than March 1, 2002, to
adopt the rules required by Section 651.5515, Occupations Code, as added by
this Act. 
 
SECTION 3.05. (a) Requires the commission to study the risk-based
assessment methods used by the Texas Department of Health and the Texas
Department of Licensing and Regulation in conducting inspections required
by law. 
 
(b)  Requires the commission, based on the study conducted under Subsection
(a) of this section, not later than March 1, 2002, to adopt the rules
required by Section 651.157(d)(2), Occupations Code, as added by this Act. 
 
SECTION 3.06.  (a) Requires the governor, not later than November 1, 2001,
to appoint the additional member of the commision required under Section
651.051(a)(2), Occupations Code, as amended by this Act. 
  
(b)  Provides that the changes in law made by this Act in the
qualifications of, and the prohibitions applying to, the members of the
commission do not affect the entitlement of a person serving as a member of
the commission immediately before September 1, 2001, to continue to carry
out the functions of the person's office for the remainder of the person's
term. Provides that the changes in law apply only to a person appointed on
or after September 1, 2001.  Provides that this Act does not prohibit a
person who is a member of the commission immediately before September 1,
2001, from being reappointed as a commission member if the person has the
qualifications required for the position under Chapter 651B, Occupations
Code, as amended by this Act. 
 
SECTION 3.07. (a) Provides that, in accordance with Section 311.031(c),
Government Code, which gives effect to a substantive amendment enacted by
the same legislature that codifies the amended statute, the text of the
following gives effect to changes made by Chapters 1201 and 1476, Acts of
the 76th Legislature, Regular Session, 1999: 

(1)  Section 651.002, Occupations Code, as set out in Section 1.04 of this
Act, gives effect to changes made by Section 1, Chapter 1201;  

(2)  Section 651.051(a), Occupations Code, as set out in Section 1.05 of
this Act, gives effect to changes made by Section 2, Chapter 1476; and  

(3)  Section 651.053, Occupations Code, as set out in Section 1.08 of this
Act, gives effect to changes made by Sections 5 and 6, Chapter 1476. 
 
(b)  Provides that, to the extent of any conflict, this Act prevails over
another Act of the 77th Legislature, Regular Session, 2001, relating to
nonsubstantive additions to and corrections in enacted codes. 
 
SECTION 3.08.  Effective date:  September 1, 2001.