By Tillery                                             H.B. No. 426
         77R2401 YDB-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to regulation of cemeteries; providing civil and criminal
 1-3     penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Chapter 711, Health and Safety Code, is amended
 1-6     by adding Subchapter F to read as follows:
 1-7                  SUBCHAPTER F.  REGISTRATION OF CEMETERIES
 1-8           Sec. 711.101.  DEFINITION. In this subchapter, "commission"
 1-9     means the Texas Funeral Service Commission.
1-10           Sec. 711.102.  EXEMPTIONS. (a)  A private or family cemetery
1-11     is exempt from the requirements of this subchapter if the cemetery:
1-12                 (1)  is not operated for profit;
1-13                 (2)  is not larger than a maximum size established by
1-14     commission rule; and
1-15                 (3)  meets any other criteria established by the
1-16     commission by rule.
1-17           (b)  In adopting rules or criteria under Subsection (a)(2) or
1-18     (3), the commission shall protect the public interest.
1-19           Sec. 711.103.  REGISTRATION REQUIRED. A person may not
1-20     operate a cemetery unless the person holds a cemetery operator's
1-21     certificate of registration issued under this subchapter.
1-22           Sec. 711.104.  APPLICATION REQUIREMENTS. (a)  An applicant
1-23     for a cemetery operator's certificate of registration must file
1-24     with the commission an application stating:
 2-1                 (1)  the applicant's name, address, and telephone
 2-2     number;
 2-3                 (2)  the applicant's business trade name;
 2-4                 (3)  for an applicant whose business is incorporated:
 2-5                       (A)  the applicant's business name registered
 2-6     with the secretary of state;
 2-7                       (B)  the location of the applicant's registered
 2-8     business office; and
 2-9                       (C)  the name and address of each person who
2-10     directly or indirectly owns or controls 10 percent or more of the
2-11     outstanding shares of stock in the applicant's business;
2-12                 (4)  the date the applicant began, or will begin, the
2-13     operation of the cemetery; and
2-14                 (5)  the address of the cemetery.
2-15           (b)  An application for a certificate of registration must be
2-16     accompanied by the required fee.
2-17           (c)  An applicant must comply with the application
2-18     requirements of this section for each location at which the
2-19     applicant will operate a cemetery.
2-20           Sec. 711.105.  FEES. (a)  Except as provided by Subsection
2-21     (b), the commission shall charge each applicant for a certificate
2-22     of registration or renewal of a certificate a reasonable
2-23     registration fee not to exceed $100 to cover the cost of issuance
2-24     or renewal.
2-25           (b)  A cemetery operated by an entity described by Section
2-26     712.002(4) is exempt from the registration fee.
2-27           Sec. 711.106.  CERTIFICATE OF REGISTRATION NONTRANSFERABLE. A
 3-1     cemetery operator's certificate of registration is not
 3-2     transferable.
 3-3           Sec. 711.107.  TERM; RENEWAL. (a)  A cemetery operator's
 3-4     certificate of registration expires on the first anniversary of the
 3-5     date of issuance.
 3-6           (b)  A certificate of registration must be renewed annually
 3-7     as provided by rules adopted by the commission.
 3-8           Sec. 711.108.  CHANGE OF INFORMATION. If the information
 3-9     provided in an application for a certificate of registration
3-10     changes, the certificate holder shall notify the commission of the
3-11     change before the 90th day after the date the change occurs.
3-12           Sec. 711.109.  ADMINISTRATIVE AND RULEMAKING AUTHORITY. (a)
3-13     The commission shall administer this subchapter.
3-14           (b)  In administering this subchapter, the commission shall:
3-15                 (1)  adopt rules;
3-16                 (2)  issue administrative orders; and
3-17                 (3)  take action necessary to ensure compliance with
3-18     this subchapter.
3-19           Sec. 711.110.  INVESTIGATIVE AUTHORITY. The commission may
3-20     investigate an alleged violation of this subtitle.
3-21           Sec. 711.111.  COMPLAINTS. (a)  The commission by rule shall
3-22     establish methods by which consumer and service recipients are
3-23     notified of the name, mailing address, and telephone number of the
3-24     commission for the purpose of directing complaints to the
3-25     commission.
3-26           (b)  The commission shall investigate each complaint received
3-27     by the commission relating to a cemetery or its operator.
 4-1           (c)  If a person files a complaint with the commission
 4-2     relating to a cemetery or its operator, the commission shall give
 4-3     to the person an explanation of the remedies that are available to
 4-4     the person under this chapter and information about other
 4-5     appropriate state or local agencies or officials with which the
 4-6     person may file a complaint.
 4-7           (d)  If a written complaint is filed with the commission that
 4-8     the commission has authority to resolve, the commission, at least
 4-9     quarterly until final disposition of the complaint, shall notify
4-10     the parties to the complaint of the status of the complaint unless
4-11     the notice would jeopardize an undercover investigation.
4-12           (e)  The complainant is entitled to attend any proceeding
4-13     resulting from the complaint.
4-14           Sec. 711.112.  SUIT FOR ENFORCEMENT. (a)  The attorney
4-15     general, at the request of the commission, shall file suit against
4-16     a person who violates, or threatens to violate, this subtitle to:
4-17                 (1)  enjoin the violation;
4-18                 (2)  recover a civil penalty under Section 711.113; or
4-19                 (3)  both enjoin the violation and recover the penalty.
4-20           (b)  Venue for suit filed under this section is in a district
4-21     court located in:
4-22                 (1)  Travis County; or
4-23                 (2)  the county in which the cemetery is located.
4-24           Sec. 711.113.  AMOUNT OF CIVIL PENALTY; RECOVERY OF EXPENSES.
4-25     (a)  Except as provided by Subsection (b), a person who violates
4-26     this subtitle is liable to the state for a civil penalty in an
4-27     amount not to exceed $1,000 for a single violation.
 5-1           (b)  If more than one civil penalty is assessed against the
 5-2     same person, the total amount of civil penalties assessed may not
 5-3     exceed $25,000.
 5-4           (c)  In addition to the amount of any civil penalty, the
 5-5     commission may recover reasonable expenses, including court costs,
 5-6     attorney's fees, investigative costs, witness fees, and deposition
 5-7     expenses, incurred in recovering a civil penalty or obtaining an
 5-8     injunction under this subtitle.
 5-9           Sec. 711.114.  CRIMINAL OFFENSE:  VIOLATION OF SUBCHAPTER.
5-10     (a)  A person commits an offense if the person knowingly operates
5-11     or attempts to operate a cemetery in violation of this subchapter.
5-12           (b)  An offense under this section is a Class A misdemeanor.
5-13           Sec. 711.115.  CRIMINAL OFFENSE: INTERFERENCE WITH
5-14     INVESTIGATION. (a)  A person commits an offense if, with actual
5-15     notice that the commission, attorney general, or a district or
5-16     county attorney has initiated, or plans to initiate, an
5-17     investigation under this subchapter, the person intentionally
5-18     conceals, alters, destroys, or falsifies a document or record that
5-19     is relevant or material to the investigation.
5-20           (b)  An offense under this section is a Class A misdemeanor.
5-21           SECTION 2.  (a)  Before January 1, 2002, the Texas Funeral
5-22     Service Commission shall adopt rules establishing the registration
5-23     process required by Subchapter F, Chapter 711, Health and Safety
5-24     Code, as added by this Act.
5-25           (b)  The prohibition imposed by Section 711.103, Health and
5-26     Safety Code, as added by this Act, does not apply to a person
5-27     before January 1, 2003.
 6-1           SECTION 3.  This Act takes effect September 1, 2001.