77R13017 E
By Chisum, Gray, Hamric, McCall H.B. No. 3067
Substitute the following for H.B. No. 3067:
By Gray C.S.H.B. No. 3067
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and functions of the Texas Funeral
1-3 Service Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. TEXAS FUNERAL SERVICE COMMISSION AMENDMENTS
1-6 SECTION 1.01. Section 101.002, Occupations Code, is amended
1-7 to read as follows:
1-8 Sec. 101.002. COMPOSITION OF COUNCIL. The council consists
1-9 of 15 [14] members, with one member appointed by each of the
1-10 following:
1-11 (1) the Texas Board of Chiropractic Examiners;
1-12 (2) the State Board of Dental Examiners;
1-13 (3) the Texas Optometry Board;
1-14 (4) the Texas State Board of Pharmacy;
1-15 (5) the Texas State Board of Podiatric Medical
1-16 Examiners;
1-17 (6) the State Board of Veterinary Medical Examiners;
1-18 (7) the Texas State Board of Medical Examiners;
1-19 (8) the Board of Nurse Examiners;
1-20 (9) the Texas State Board of Examiners of
1-21 Psychologists;
1-22 (10) the Board of Vocational Nurse Examiners;
1-23 (11) the Texas Funeral Service Commission;
1-24 (12) the entity that regulates the practice of
2-1 physical therapy;
2-2 (13) [(12)] the entity that regulates the practice of
2-3 occupational therapy;
2-4 (14) [(13)] the health licensing division of the Texas
2-5 Department of Health; and
2-6 (15) [(14)] the governor's office.
2-7 SECTION 1.02. Subchapter B, Chapter 101, Occupations Code,
2-8 is amended by adding Section 101.0515 to read as follows:
2-9 Sec. 101.0515. APPLICABILITY OF SUBCHAPTER. This subchapter
2-10 does not apply to the Texas Funeral Service Commission.
2-11 SECTION 1.03. Section 651.001, Occupations Code, is amended
2-12 to read as follows:
2-13 Sec. 651.001. DEFINITIONS. In this chapter:
2-14 (1) "Cemetery" means a place that is used or intended
2-15 to be used for interment, and includes a graveyard, burial park, or
2-16 mausoleum.
2-17 (2) "Commission" means the Texas Funeral Service
2-18 Commission.
2-19 (3) "Crematory" means a structure containing a furnace
2-20 used or intended to be used for the cremation of human remains.
2-21 (4) [(2)] "Embalmer" means a person licensed under
2-22 this chapter who for compensation, wholly or partly, disinfects or
2-23 preserves a dead human body by:
2-24 (A) using chemical substances, fluids, or gases,
2-25 including by introducing those substances, fluids, or gases into
2-26 the body by:
2-27 (i) vascular or hypodermic injection; or
3-1 (ii) direct application into the organs or
3-2 cavities; or
3-3 (B) another method intended to disinfect or
3-4 preserve a dead human body or to restore body tissues and
3-5 structures.
3-6 (5) [(3)] "First call" means the beginning of the
3-7 relationship and duty of a funeral director to take charge of a
3-8 dead human body and have the body prepared for burial or
3-9 disposition by embalming, cremation, or another method. The term
3-10 does not include an ambulance call if the person dispatching the
3-11 ambulance does not know whether a dead human body is to be picked
3-12 up.
3-13 (6) [(4)] "Funeral director" means a person licensed
3-14 under this chapter who engages in for compensation, or represents
3-15 to the public as being engaged in for compensation, the
3-16 preparation, other than by embalming, of a dead human body for
3-17 burial or other disposition.
3-18 (7) [(5)] "Funeral directing" means acts associated
3-19 with or arranging for the disposition of a dead human body,
3-20 performed by a person for compensation, from the time of first call
3-21 until:
3-22 (A) inurnment, interment, or entombment services
3-23 are complete; or
3-24 (B) the body is permanently transported out of
3-25 this state [released:]
3-26 [(i) for transport to a crematorium; or]
3-27 [(ii) to a public carrier].
4-1 (8) [(6)] "Funeral establishment" means:
4-2 (A) a place of business used in the care and
4-3 preparation for burial or transportation of a dead human body; or
4-4 (B) any other place in which a person engages
4-5 in, or represents the person to be engaged in, the business of
4-6 embalming or funeral directing.
4-7 (9) [(7)] "Funeral merchandise" means merchandise sold
4-8 primarily for use in:
4-9 (A) a funeral ceremony;
4-10 (B) embalming; or
4-11 (C) the care and preparation of a dead human
4-12 body for burial, cremation, or other disposition.
4-13 (10) [(8)] "Funeral service" means a service performed
4-14 incident to a funeral ceremony or for the care and preparation of a
4-15 dead human body for burial, cremation, or other disposition. The
4-16 term includes embalming.
4-17 (11) [(9)] "Mortuary science" means the scientific,
4-18 professional, and practical aspects, with consideration given to
4-19 accepted practices, of the care, preparation for burial, or
4-20 transportation of a dead human body. The term includes the
4-21 preservation and sanitation of a dead human body and restorative
4-22 art.
4-23 (12) [(10)] "Outer enclosure" means an enclosure or
4-24 container placed in a grave above or around the casket. The term
4-25 includes a burial vault, grave box, or grave liner.
4-26 (13) [(11)] "Prospective customer" means a consumer
4-27 who enters a funeral establishment and inquires about a funeral
5-1 service, cremation, or merchandise.
5-2 (14) [(12)] "Provisional license holder" means a
5-3 person who:
5-4 (A) is engaged in learning the practice of
5-5 funeral directing or embalming under the instruction, direction,
5-6 and personal supervision of a funeral director or embalmer; and
5-7 (B) holds a provisional license issued by the
5-8 commission under this chapter.
5-9 (15) [(13)] "Purchase agreement" means a written
5-10 statement that itemizes the cost of funeral services or merchandise
5-11 selected by a customer from the retail price list.
5-12 (16) [(14)] "Solicitation" means a direct or indirect
5-13 contact by a funeral director, embalmer, or employee, agent, or
5-14 representative of a licensed funeral establishment or any other
5-15 entity with a person near death or the family of, next of kin of,
5-16 or person responsible for making funeral arrangements for a person
5-17 who is deceased or near death, if the contact is not initiated by
5-18 the person near death or the family, next of kin, or person
5-19 responsible for making funeral arrangements and the contact is to
5-20 secure the right to provide funeral services or merchandise or
5-21 occurs in a situation that might influence the contacted person to
5-22 choose a particular funeral establishment. The term does not
5-23 include:
5-24 (A) except in the case of contact with a person
5-25 near death or the person responsible for making funeral
5-26 arrangements for a person near death, an attempt to secure funeral
5-27 business under a permit issued under Chapter 154, Finance Code; or
6-1 (B) any method of advertising by publication or
6-2 broadcasting.
6-3 (17) [(15)] "Unit pricing" means a method of pricing
6-4 that offers a discount to a purchaser who buys various funeral
6-5 services and merchandise as a package.
6-6 SECTION 1.04. Section 651.002, Occupations Code, is amended
6-7 to read as follows:
6-8 Sec. 651.002. APPLICATION OF SUNSET ACT. The Texas Funeral
6-9 Service Commission is subject to Chapter 325, Government Code
6-10 (Texas Sunset Act). Unless continued in existence as provided by
6-11 that chapter, the commission is abolished and this chapter expires
6-12 September 1, 2003 [2001].
6-13 SECTION 1.05. Section 651.051(a), Occupations Code, is
6-14 amended to read as follows:
6-15 (a) The Texas Funeral Service Commission consists of seven
6-16 [six] members appointed by the governor, with the advice and
6-17 consent of the senate as follows:
6-18 (1) three [two] members who are licensed as both an
6-19 embalmer and a funeral director[in this state] for at least the
6-20 five years preceding appointment to the commission; and
6-21 (2) four members who represent the public and who:
6-22 (A) are not regulated under this chapter; and
6-23 (B) have consistently shown an interest in
6-24 supporting consumer protection.
6-25 SECTION 1.06. Subchapter B, Chapter 651, Occupations Code,
6-26 is amended by adding Sections 651.0511 and 651.0512 to read as
6-27 follows:
7-1 Sec. 651.0511. TRAINING. (a) A person who is appointed to
7-2 and qualifies for office as a member of the commission may not
7-3 vote, deliberate, or be counted as a member in attendance at a
7-4 meeting of the commission until the person completes a training
7-5 program that complies with this section.
7-6 (b) The training program must provide the person with
7-7 information regarding:
7-8 (1) this chapter;
7-9 (2) the programs operated by the commission;
7-10 (3) the role and functions of the commission;
7-11 (4) the rules of the commission, with an emphasis on
7-12 the rules that relate to disciplinary and investigatory authority;
7-13 (5) the current budget for the commission;
7-14 (6) the results of the most recent formal audit of the
7-15 commission;
7-16 (7) the requirements of:
7-17 (A) the open meetings law, Chapter 551,
7-18 Government Code;
7-19 (B) the public information law, Chapter 552,
7-20 Government Code;
7-21 (C) the administrative procedure law, Chapter
7-22 2001, Government Code; and
7-23 (D) other laws relating to public officials,
7-24 including conflict-of-interest laws; and
7-25 (8) any applicable ethics policies adopted by the
7-26 commission or the Texas Ethics Commission.
7-27 (c) A person appointed to the commission is entitled to
8-1 reimbursement, as provided by the General Appropriations Act, for
8-2 the travel expenses incurred in attending the training program
8-3 regardless of whether the attendance at the program occurs before
8-4 or after the person qualifies for office.
8-5 Sec. 651.0512. TRAINING FOR EMPLOYEES ON STATE INCENTIVE
8-6 PROGRAM. The executive director or the executive director's
8-7 designee shall provide to commission employees information and
8-8 training on the benefits and methods of participation in the state
8-9 employee incentive program under Subchapter B, Chapter 2108,
8-10 Government Code.
8-11 SECTION 1.07. Section 651.052, Occupations Code, is amended
8-12 to read as follows:
8-13 Sec. 651.052. ELIGIBILITY OF PUBLIC MEMBERS. (a) A person
8-14 may not be [is not eligible for appointment as] a public member of
8-15 the commission if the person or the person's spouse:
8-16 (1) is registered, certified, or licensed by a [an
8-17 occupational] regulatory agency in the funeral service industry
8-18 [field of funeral services];
8-19 (2) is employed by or participates in the management
8-20 of a business entity or other organization regulated by or
8-21 receiving money from the commission [or receiving funds from the
8-22 commission];
8-23 (3) owns or controls, directly or indirectly, more
8-24 than a 10 percent [any] interest in a business entity or other
8-25 organization regulated by or receiving money from the commission
8-26 [or receiving funds from the commission]; or
8-27 (4) uses or receives a substantial amount of tangible
9-1 goods, services, or money [funds] from the commission, other than
9-2 compensation or reimbursement authorized by law for commission
9-3 membership, attendance, or expenses.
9-4 (b) A public member of the commission may not, except as a
9-5 consumer:
9-6 (1) have a financial interest in a funeral
9-7 establishment; or
9-8 (2) be related to a person within the second degree by
9-9 affinity or third degree by consanguinity, as determined under
9-10 Subchapter B, Chapter 573, Government Code, who has a financial
9-11 interest in a funeral establishment.
9-12 SECTION 1.08. Section 651.053, Occupations Code, is amended
9-13 to read as follows:
9-14 Sec. 651.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
9-15 this section, "Texas trade association" means a [nonprofit,]
9-16 cooperative[,] and voluntarily joined association of business or
9-17 professional competitors in this state designed to assist its
9-18 members and its industry or profession in dealing with mutual
9-19 business or professional problems and in promoting their common
9-20 interest.
9-21 (b) A person may not be a member of the commission and may
9-22 not be a commission employee employed in a "bona fide executive,
9-23 administrative, or professional capacity," as that phrase is used
9-24 for purposes of establishing an exemption to the overtime
9-25 provisions of the federal Fair Labor Standards Act of 1938 (29
9-26 U.S.C. Section 201 et seq.), and its subsequent amendments, if:
9-27 (1) the person is an officer, employee, or paid
10-1 consultant of a Texas trade association in the funeral service
10-2 industry; or
10-3 (2) the person's spouse is an officer, manager, or
10-4 paid consultant of a Texas trade association in the funeral service
10-5 industry. [A commissioner or an employee of the commission who
10-6 carries out the functions of the commission may not be related
10-7 within the second degree by affinity or within the third degree by
10-8 consanguinity, as determined under Subchapter B, Chapter 573,
10-9 Government Code, to a person who is an officer, employee, or paid
10-10 consultant of a trade association in the funeral industry.]
10-11 (c) [An officer, employee, or paid consultant of a Texas
10-12 trade association in the field of funeral services may not be a
10-13 commission member and may not be an employee who is exempt from the
10-14 state's position classification plan or is compensated at or above
10-15 the amount prescribed by the General Appropriations Act for step 1,
10-16 salary group A17, of the position classification salary schedule.]
10-17 [(d) A person who is the spouse of an officer, manager, or
10-18 paid consultant of a Texas trade association in the field of
10-19 funeral services may not be a member of the commission and may not
10-20 be an employee of the commission who is exempt from the state's
10-21 position classification plan or is compensated at or above the
10-22 amount prescribed by the General Appropriations Act for step 1,
10-23 salary group A17, of the position classification salary schedule.]
10-24 [(e) A person may not be appointed to the commission if:]
10-25 [(1) the person is an officer or employee of a
10-26 corporation or other business entity directly or indirectly
10-27 controlling or operating more than three funeral establishments;
11-1 and]
11-2 [(2) a member of the commission is an officer or
11-3 employee of the same corporation or entity.]
11-4 [(f) A violation of Subsection (e) that occurs after a
11-5 member is appointed constitutes a vacancy of each of those members'
11-6 positions, as of the date of the completion of the merger or other
11-7 agreement. The vacancy shall be filled by the governor as soon as
11-8 practicable. A member appointed to fill a vacancy under this
11-9 subsection serves for the remainder of the vacated term.]
11-10 [(g)] A person may not be [serve as] a member of the
11-11 commission or act as the general counsel if the person is required
11-12 to register as a lobbyist under Chapter 305, Government Code,
11-13 because of the person's activities for compensation on behalf of a
11-14 profession related to the operation of the commission.
11-15 SECTION 1.09. Section 651.104, Occupations Code, is amended
11-16 to read as follows:
11-17 Sec. 651.104. DIVISION OF RESPONSIBILITIES. The commission
11-18 shall develop and implement policies that clearly separate [define]
11-19 the policy-making responsibilities of the commission and the
11-20 management responsibilities of the executive director and staff of
11-21 the commission.
11-22 SECTION 1.10. Section 651.107, Occupations Code, is amended
11-23 to read as follows:
11-24 Sec. 651.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
11-25 (a) The executive director or the executive director's designee
11-26 shall prepare and maintain a written policy statement that
11-27 implements a program [to ensure implementation] of [an] equal
12-1 employment opportunity to ensure that [program under which] all
12-2 personnel decisions [transactions] are made without regard to race,
12-3 color, disability, sex, religion, age, or national origin.
12-4 (b) The policy statement must include:
12-5 (1) personnel policies, including policies relating to
12-6 recruitment, evaluation, selection, [appointment,] training, and
12-7 promotion of personnel, that show the intent of the commission to
12-8 avoid the unlawful employment practices described by Chapter 21,
12-9 Labor Code; and
12-10 (2) an [a comprehensive] analysis of the extent to
12-11 which the composition of the commission's personnel is in
12-12 accordance with [commission workforce that meets] federal and state
12-13 law and a description of [guidelines;]
12-14 [(3) procedures by which a determination can be made
12-15 of significant underuse in the commission workforce of all persons
12-16 for whom federal or state guidelines encourage a more equitable
12-17 balance; and]
12-18 [(4)] reasonable methods to achieve compliance with
12-19 federal and state law [appropriately address those areas of
12-20 significant underuse].
12-21 (c) The [(b) A] policy statement [prepared under
12-22 Subsection (a)] must:
12-23 (1) [cover an annual period,] be updated at least
12-24 annually;
12-25 (2) be reviewed by the state Commission on Human
12-26 Rights for compliance with Subsection (b)(1);[,] and
12-27 (3) be filed with the governor's office [governor].
13-1 [(c) The governor shall deliver a biennial report to the
13-2 legislature based on the information received under Subsection (b).
13-3 The report may be made separately or as a part of other biennial
13-4 reports made to the legislature.]
13-5 SECTION 1.11. Section 651.157, Occupations Code, is amended
13-6 to read as follows:
13-7 Sec. 651.157. INSPECTION OF FUNERAL ESTABLISHMENT. (a)
13-8 Except as provided by Subsection (b), a [Each] licensed funeral
13-9 establishment shall be inspected at least once every two years
13-10 [annually] by an agent of the commission or by an agent of the
13-11 state or a political subdivision authorized by the commission to
13-12 make inspections on its behalf.
13-13 (b) If the commission finds a violation of this chapter or
13-14 of Chapter 193 or 361, Health and Safety Code, the commission shall
13-15 inspect the establishment annually until the commission determines
13-16 that the establishment is free of violations.
13-17 (c) A report of each [the annual] inspection made under this
13-18 section shall be filed with the commission.
13-19 (d) The commission by rule shall establish:
13-20 (1) procedures for the inspection of a funeral
13-21 establishment required by this section; and
13-22 (2) criteria, including consideration of the
13-23 establishment's inspection and complaint history, regarding when
13-24 the commission should inspect an establishment based on the risk of
13-25 a violation at an establishment.
13-26 (e) [(b)] A premises on which funeral directing or embalming
13-27 is practiced shall be open at all times to inspection for any
14-1 violation of this chapter or of Chapter 193 or 361, Health and
14-2 Safety Code, by:
14-3 (1) an agent of the commission;
14-4 (2) an authorized agent of the state; or
14-5 (3) an authorized agent of the county or municipality
14-6 in which the premises is located.
14-7 (f) [(c)] Before a commission agent inspects a funeral
14-8 establishment, the agent shall review the inspection reports filed
14-9 with the commission on the establishment. During the inspection,
14-10 the agent shall determine whether previously identified problems
14-11 have been corrected and whether a pattern of violations exists.
14-12 The commission shall consider the information from the inspection
14-13 reports in determining whether a penalty should be imposed against
14-14 an establishment.
14-15 SECTION 1.12. Section 651.202, Occupations Code, is amended
14-16 to read as follows:
14-17 Sec. 651.202. COMPLAINTS. (a) The commission by rule shall
14-18 establish methods by which consumers and service recipients are
14-19 notified of the name, mailing address, and telephone number of the
14-20 commission for the purpose of directing complaints to the
14-21 commission. The commission may provide for that notice:
14-22 (1) on each license form, application, or written
14-23 contract for services of a person regulated under this chapter;
14-24 (2) on a sign prominently displayed in the place of
14-25 business of each person regulated under this chapter; or
14-26 (3) in a bill for service provided by a person
14-27 regulated under this chapter.
15-1 (b) The commission shall adopt rules concerning a complaint
15-2 filed under this section. The rules adopted under this subsection
15-3 must:
15-4 (1) establish procedures regarding the receipt,
15-5 investigation, and disposition of complaints;
15-6 (2) allow for an informal hearing process;
15-7 (3) establish a formal hearing process;
15-8 (4) ensure that the person who filed the complaint has
15-9 an opportunity to explain the allegations made in the complaint;
15-10 (5) ensure that the license holder who is the subject
15-11 of the complaint has an opportunity to be heard regarding the
15-12 complaint; and
15-13 (6) establish procedures by which a commission
15-14 employee may dismiss a complaint, subject to approval by the
15-15 executive director or the executive director's designee, if the
15-16 investigation does not reveal a violation.
15-17 (c) The commission shall investigate each complaint received
15-18 by the commission relating to a funeral director, embalmer,
15-19 provisional license holder, [or] funeral establishment, or other
15-20 person licensed under this chapter.
15-21 (d) The commission shall provide to the person filing the
15-22 complaint and to each person who is a subject of the complaint a
15-23 copy of the commission's policies and procedures relating to
15-24 complaint investigation and resolution, including [(c) If a person
15-25 files a complaint with the commission relating to a funeral
15-26 director, embalmer, provisional license holder, or licensed funeral
15-27 establishment, the commission shall furnish to the person] an
16-1 explanation of the remedies that are available to the person under
16-2 this chapter and information about other appropriate state or local
16-3 agencies or officials with which the person may file a complaint.
16-4 (e) The [(d) If a written complaint is filed with the
16-5 commission that the commission has authority to resolve, the]
16-6 commission, at least quarterly until final disposition of the
16-7 complaint [and on final disposition of the complaint], shall notify
16-8 the person filing [parties to] the complaint and each person who is
16-9 a subject of the complaint of the status of the investigation
16-10 [complaint] unless the notice would jeopardize an undercover
16-11 investigation.
16-12 (f) [(e)] The person who filed the complaint [complainant]
16-13 is entitled to attend any proceeding resulting from the complaint.
16-14 SECTION 1.13. Section 651.203(a), Occupations Code, is
16-15 amended to read as follows:
16-16 (a) The commission shall maintain a [keep an information]
16-17 file on each written [about each] complaint filed with the
16-18 commission [that the commission has authority to resolve]. The
16-19 file must [commission shall] include [in each information file]:
16-20 (1) the subject matter [a description] of the
16-21 complaint;
16-22 (2) the date the complaint is received by the
16-23 commission [filed];
16-24 (3) the name of the person who filed the complaint
16-25 [complainant];
16-26 (4) the name of each person contacted in relation to
16-27 the complaint;
17-1 (5) a summary of the results of the review or
17-2 investigation of the complaint; and
17-3 (6) an explanation of the reason the file was closed,
17-4 if the commission closed the file without taking action other than
17-5 to investigate the complaint [a description of any information
17-6 obtained by the commission after investigating the complaint;]
17-7 [(5) a description of and the date of any formal
17-8 action taken by the commission relating to the complaint;]
17-9 [(6) a description of the current status of the
17-10 complaint; and]
17-11 [(7) any other information the commission considers
17-12 appropriate].
17-13 SECTION 1.14. Section 651.254, Occupations Code, is amended
17-14 to read as follows:
17-15 Sec. 651.254. LICENSE EXAMINATIONS; RESULTS. (a) The
17-16 examinations for a funeral director's license and an embalmer's
17-17 license shall be held at least annually. The examinations shall be
17-18 given at the time and place designated by the commission. The
17-19 commission shall give notice of the examinations.
17-20 (b) Not later than the 30th day after the date a person
17-21 takes a [on which a funeral director's or embalmer's] licensing
17-22 examination [is administered] under this chapter, the commission
17-23 shall notify the person [each examinee] of the results of the
17-24 examination.
17-25 (c) If the [an] examination is graded or reviewed by a
17-26 [national] testing service:
17-27 (1) [,] the commission shall notify the person [each
18-1 examinee] of the results of the examination not later than the 14th
18-2 day after the date [on which] the commission receives the results
18-3 from the testing service; and
18-4 (2) if[.]
18-5 [(c) If the] notice of the examination results [graded or
18-6 reviewed by a national testing service] will be delayed for longer
18-7 than 90 days after the examination date, the commission shall
18-8 notify the person [examinee] of the reason for the delay before the
18-9 90th day.
18-10 (d) The commission may require a testing service to notify a
18-11 person of the results of the person's examination.
18-12 (e) If requested in writing by a person who fails a
18-13 licensing examination administered under this chapter, the
18-14 commission shall furnish the person with an analysis of the
18-15 person's performance on the examination.
18-16 [(e) Notice of the time and place of an examination must be
18-17 filed with the Texas Register at least seven days before the
18-18 examination.]
18-19 SECTION 1.15. Subchapter F, Chapter 651, Occupations Code,
18-20 is amended by adding Section 651.2595 to read as follows:
18-21 Sec. 651.2595. PROVISIONAL LICENSE FOR OUT-OF-STATE
18-22 APPLICANT. (a) The commission may issue a provisional license to
18-23 an applicant currently licensed in another jurisdiction who seeks a
18-24 license in this state and who:
18-25 (1) has been licensed in good standing as a funeral
18-26 director or embalmer for at least two years in another
18-27 jurisdiction, including a foreign country, that has licensing
19-1 requirements substantially equivalent to the requirements of this
19-2 chapter;
19-3 (2) has passed a national or other examination
19-4 recognized by the commission relating to the practice of funeral
19-5 director or embalmer; and
19-6 (3) is sponsored by a person licensed by the
19-7 commission under this chapter with whom the provisional license
19-8 holder will practice during the time the person holds a provisional
19-9 license.
19-10 (b) The commission may waive the requirement of Subsection
19-11 (a)(3) for an applicant if the commission determines that
19-12 compliance with that subsection would be a hardship to the
19-13 applicant.
19-14 (c) A provisional license is valid until the date the
19-15 commission approves or denies the provisional license holder's
19-16 application for a license. The commission shall issue a license
19-17 under this chapter to the provisional license holder if:
19-18 (1) the provisional license holder is eligible to be
19-19 licensed under Section 651.259; or
19-20 (2) the provisional license holder:
19-21 (A) passes the part of the examination under
19-22 Subsection (a) that relates to the applicant's knowledge and
19-23 understanding of the laws and rules relating to the practice of
19-24 funeral directing or embalming in this state;
19-25 (B) meets the academic and experience
19-26 requirements for a license under this chapter; and
19-27 (C) satisfies any other licensing requirements
20-1 under this chapter.
20-2 (d) The commission shall approve or deny a provisional
20-3 license holder's application for a license not later than the 180th
20-4 day after the date the provisional license is issued. The
20-5 commission may extend the 180-day period if the results of an
20-6 examination have not been received by the commission before the end
20-7 of that period.
20-8 (e) The commission may establish a fee for provisional
20-9 licenses in an amount reasonable and necessary to cover the cost of
20-10 issuing the license.
20-11 SECTION 1.16. Section 651.262, Occupations Code, is
20-12 transferred to Subchapter D, Chapter 651, Occupations Code,
20-13 redesignated as Section 651.164, Occupations Code, and amended to
20-14 read as follows:
20-15 Sec. 651.164. [Sec. 651.262.] LICENSE EXPIRATION. The
20-16 commission by rule may adopt a system under which [funeral
20-17 director's and embalmer's] licenses expire on various dates during
20-18 the year. [The commission shall adjust dates for sending notice
20-19 regarding payment of fees and license suspension for nonpayment
20-20 according to the system, if any, adopted under this subsection.]
20-21 For the [a] year in which the license expiration date is changed,
20-22 the commission shall prorate license fees [are prorated] on a
20-23 monthly basis so that each license holder pays only that portion of
20-24 the license fee that is allocable to the number of months during
20-25 which the license is valid. On renewal of the license on the new
20-26 expiration date, the total license renewal fee is payable.
20-27 SECTION 1.17. Section 651.263, Occupations Code, is
21-1 transferred to Subchapter D, Chapter 651, Occupations Code,
21-2 redesignated as Section 651.165, Occupations Code, and amended to
21-3 read as follows:
21-4 Sec. 651.165 [651.263]. RENEWAL OR REINSTATEMENT OF LICENSE.
21-5 (a) A person who is otherwise eligible to renew a license may
21-6 renew an unexpired license by paying the required renewal fee to
21-7 the commission before the expiration date of the license. A person
21-8 whose license has expired may not engage in activities that require
21-9 a license until the license has been renewed.
21-10 (b) A person whose license has been expired for 90 days or
21-11 less may renew the license by paying to the commission a [the
21-12 required] renewal fee that is [and a penalty fee] equal to 1-1/2
21-13 times the normally required [one-half the amount of the] renewal
21-14 fee [for the license].
21-15 (c) A person whose license [If a person's license] has been
21-16 expired for more than 90 days but less than one year [five years,
21-17 the person] may renew the license by paying to the commission a
21-18 [all unpaid] renewal [fees and a penalty] fee that is equal to two
21-19 times the normally required [one-half of the total amount of the
21-20 unpaid] renewal fee [fees].
21-21 (d) A person whose [(c) If a person's] license has been
21-22 expired for one year or more [five years or longer, the person] may
21-23 not renew the license. The person may obtain a new license by
21-24 [submitting to reexamination and] complying with the requirements
21-25 and procedures, including the examination requirements, for
21-26 obtaining an original license.
21-27 (e) A person who was licensed in this state, moved to
22-1 another state, and is currently licensed and has been in practice
22-2 in the other state for the two years preceding the date of
22-3 application may obtain a new license without reexamination. The
22-4 person must pay to the commission a fee that is equal to two times
22-5 the normally required renewal fee for the license.
22-6 (f) [(d)] At least 30 days before the expiration of a
22-7 person's license, the commission shall send written notice of the
22-8 impending license expiration to the person at the person's last
22-9 known address according to the records of the commission.
22-10 SECTION 1.18. Section 651.266, Occupations Code, is amended
22-11 to read as follows:
22-12 Sec. 651.266. CONTINUING EDUCATION. The commission by rule
22-13 may require continuing education as a condition for license renewal
22-14 except for a license holder described by Section 651.155 or an
22-15 applicant for renewal described by [Section 651.155 or] Section
22-16 651.265. If the commission requires continuing education, the
22-17 commission shall require completion of a minimum number of hours of
22-18 ethics training as a required part of that education.
22-19 SECTION 1.19. The heading to Section 651.405, Occupations
22-20 Code, is amended to read as follows:
22-21 Sec. 651.405. RETAIL PRICE LIST; FUNERAL ESTABLISHMENT.
22-22 SECTION 1.20. Subchapter I, Chapter 651, Occupations Code,
22-23 is amended by adding Section 651.4055 to read as follows:
22-24 Sec. 651.4055. RETAIL PRICE LIST; CEMETERY OR CREMATORY.
22-25 (a) In this section, "retail price list" means a printed or
22-26 typewritten list of the retail price of items or services provided
22-27 by a cemetery or crematory.
23-1 (b) A retail price list must contain:
23-2 (1) the name, address, and telephone number of the
23-3 cemetery or crematory;
23-4 (2) the effective date for the stated prices;
23-5 (3) notice required by Subsection (c); and
23-6 (4) any other items that the commission may by rule
23-7 require.
23-8 (c) The retail price list must contain the following printed
23-9 notice: "The goods and services shown below are those we can
23-10 provide to our customers. You may choose only the items you
23-11 desire. If legal or other requirements mean you must buy any items
23-12 you did not specifically ask for, we will explain the reason in
23-13 writing on the statement we provide describing the goods and
23-14 services you selected."
23-15 SECTION 1.21. Subchapter I, Chapter 651, Occupations Code,
23-16 is amended by adding Section 651.4065 to read as follows:
23-17 Sec. 651.4065. PURCHASE AGREEMENT; CEMETERY OR CREMATORY.
23-18 (a) A purchase agreement must state:
23-19 (1) the name, address, and telephone number of the
23-20 cemetery or crematory;
23-21 (2) the amount paid or owed to another person by the
23-22 cemetery or crematory on behalf of the customer and each fee
23-23 charged the customer for the cost of advancing funds or becoming
23-24 indebted to another person on behalf of the customer;
23-25 (3) the printed notice required by Subsection (b);
23-26 (4) the name, mailing address, and telephone number of
23-27 the attorney general's consumer protection division; and
24-1 (5) a statement that complaints may be directed to the
24-2 attorney general's consumer protection division.
24-3 (b) The purchase agreement must contain the following
24-4 printed notice: "Charges are only for those items that you
24-5 selected or that are required. If we are required by law to use
24-6 any items, we will explain the reasons in writing below."
24-7 (c) An authorized person on behalf of the cemetery or
24-8 crematory shall sign the purchase agreement.
24-9 (d) If the customer selects a package arrangement based on
24-10 unit pricing, the itemization requirement is satisfied by providing
24-11 a purchase agreement that itemizes the discount provided by the
24-12 package arrangement.
24-13 SECTION 1.22. Subchapter I, Chapter 651, Occupations Code,
24-14 is amended by adding Section 651.408 to read as follows:
24-15 Sec. 651.408. USE OF CEMETERY AND CREMATORY SERVICES;
24-16 REGISTRATION REQUIRED. (a) Not later than the 30th day after the
24-17 date a funeral director uses a cemetery or crematory, the director
24-18 shall register the cemetery or crematory with the commission,
24-19 unless the director has already registered the cemetery or
24-20 crematory.
24-21 (b) The commission shall prescribe the form used for
24-22 registration. The registration information provided by the funeral
24-23 director must include the name, address, and telephone number of
24-24 the cemetery or crematory and the name of a contact person for the
24-25 cemetery or crematory.
24-26 (c) If necessary because of a change in information, the
24-27 funeral director shall update the registration information with
25-1 regard to cemeteries and crematories used by the director in the
25-2 previous calendar year at least once each year.
25-3 SECTION 1.23. Section 651.455, Occupations Code, is amended
25-4 to read as follows:
25-5 Sec. 651.455. FALSE OR MISLEADING STATEMENTS REGARDING
25-6 FUNERAL MERCHANDISE OR FUNERAL, CEMETERY, OR CREMATORY SERVICES.
25-7 (a) A person violates this chapter if the person uses a statement
25-8 that misleads or deceives the public, including a false or
25-9 misleading statement regarding:
25-10 (1) a legal, religious, or cemetery requirement for
25-11 funeral merchandise or funeral, cemetery, or crematory services;
25-12 (2) the preservative qualities of funeral merchandise
25-13 or funeral, cemetery, or crematory services in preventing or
25-14 substantially delaying natural decomposition of human remains;
25-15 (3) the airtight or watertight properties of a casket
25-16 or outer enclosure; or
25-17 (4) the licenses held by the personnel in the
25-18 operation of the cemetery, crematory, or funeral establishment.
25-19 (b) This section does not apply to cemetery or crematory
25-20 services that occur after burial or inurnment.
25-21 SECTION 1.24. Subchapter K, Chapter 651, Occupations Code,
25-22 is amended by adding Section 651.5025 to read as follows:
25-23 Sec. 651.5025. IMMEDIATE LICENSE REVOCATION; EFFECT OF
25-24 CERTAIN FELONY CONVICTIONS. (a) The commission may revoke the
25-25 license of a license holder without a hearing if the commission
25-26 determines from the information presented to it that the license
25-27 holder has been convicted of a felony related to the practice of
26-1 embalming, funeral directing, or another activity regulated by the
26-2 commission under this chapter. The commission shall notify the
26-3 license holder if it decides to revoke the license.
26-4 (b) The license holder may appeal the decision by submitting
26-5 a written request for a hearing in accordance with this chapter and
26-6 Chapter 2001, Government Code, not later than the 30th day after
26-7 the date of the revocation.
26-8 SECTION 1.25. Subchapter L, Chapter 651, Occupations Code,
26-9 is amended by adding Section 651.5515 to read as follows:
26-10 Sec. 651.5515. PENALTY GUIDELINES. (a) The commission by
26-11 rule shall adopt guidelines that define and summarize the
26-12 violations that occur under this subchapter to assist the
26-13 commission in maintaining consistency in determining the amount of
26-14 an administrative penalty assessed under Section 651.552. Using
26-15 those guidelines and the summary, the commission shall establish
26-16 and maintain a chart that lists:
26-17 (1) the most common violations;
26-18 (2) the penalty amounts assessed for those violations;
26-19 and
26-20 (3) the factors used to grade each type of violation
26-21 before determining the penalty amount under Section 651.552.
26-22 (b) The commission shall consider using focus groups to
26-23 obtain business and consumer input to match appropriate penalties
26-24 to violations before proposing the rules under this section.
26-25 (c) The commission shall post the guidelines on the
26-26 commission's Internet site.
26-27 SECTION 1.26. Section 651.552, Occupations Code, is amended
27-1 to read as follows:
27-2 Sec. 651.552. AMOUNT OF PENALTY. (a) The amount of the
27-3 administrative penalty shall be not less than $100 or more than
27-4 $5,000 for each violation.
27-5 (b) In determining the amount of the penalty, the commission
27-6 shall base its decision on:
27-7 (1) the seriousness of the violation;
27-8 (2) the threat the violation poses to health and
27-9 safety;
27-10 (3) the history of previous violations;
27-11 (4) the amount necessary to deter a future violation;
27-12 (5) efforts made to correct the violation;
27-13 (6) the guidelines adopted under Section 651.5515; and
27-14 (7) any other matter that justice requires [employ
27-15 guidelines established by commission rule].
27-16 SECTION 1.27. Section 651.553(b), Occupations Code, is
27-17 amended to read as follows:
27-18 (b) Not later than the 10th day after the date the report is
27-19 issued, the commission shall send to the person charged with the
27-20 violation:
27-21 (1) a copy of the report;
27-22 (2) a statement of the right of the person to a
27-23 hearing relating to the alleged violation; [and]
27-24 (3) a statement of the amount of the penalty; and
27-25 (4) an explanation for any significant deviation from
27-26 the penalty amount assessed for similar violations.
27-27 ARTICLE 2. INFORMATION AND LEGAL RESOURCES
28-1 SECTION 2.01. DEFINITIONS. In this article:
28-2 (1) "Funeral commission" means the Texas Funeral
28-3 Service Commission.
28-4 (2) "Task force" means the task force created under
28-5 Section 2.06 of this article.
28-6 SECTION 2.02. INFORMATION RESOURCES. (a) The Department of
28-7 Information Resources shall assist the funeral commission in
28-8 negotiating a contract for software and technical support to
28-9 improve the compilation of statistics and other information using
28-10 information resources. The Department of Information Resources is
28-11 not responsible for implementing or providing the technical support
28-12 to the funeral commission regarding the software.
28-13 (b) The statistics and other information compiled under
28-14 Subsection (a) of this section must include:
28-15 (1) data about complaints, licenses, registrations,
28-16 and sanctions, including the number of new individual versus dual
28-17 licenses issued;
28-18 (2) the number of complaints received that are outside
28-19 of the commission's jurisdictions;
28-20 (3) the average cost of complaints resolved;
28-21 (4) summaries of violations and actions taken; and
28-22 (5) any information necessary to help the attorney
28-23 general enforce delinquent child support orders among persons
28-24 licensed or registered by the commission.
28-25 SECTION 2.03. LEGAL RESOURCES. The funeral commission shall
28-26 contract with the attorney general to ensure adequate access to
28-27 legal services from the attorney general, including:
29-1 (1) consultation about the daily operations of the
29-2 funeral commission, including complaint, inspection, and other
29-3 enforcement procedures; and
29-4 (2) legal interpretations regarding Chapter 651,
29-5 Occupations Code.
29-6 SECTION 2.04. PLAN. Not later than December 1, 2001, the
29-7 funeral commission shall develop a plan that details the manner in
29-8 which it will implement the requirements of Sections 2.02 and 2.03
29-9 of this article. The plan must include:
29-10 (1) a priority for each required task;
29-11 (2) the identity of any solutions that may be quickly
29-12 implemented;
29-13 (3) a cost estimate; and
29-14 (4) a schedule for task completion.
29-15 SECTION 2.05. STATUS REPORTS. The funeral commission shall
29-16 report once each quarter on the status of its efforts under
29-17 Sections 2.02, 2.03, and 2.04 of this article to:
29-18 (1) the Sunset Advisory Commission; and
29-19 (2) the task force.
29-20 SECTION 2.06. TASK FORCE. (a) A task force is created to:
29-21 (1) review the plan developed by the funeral
29-22 commission under Section 2.04 of this article; and
29-23 (2) monitor the funeral commission's implementation of
29-24 the changes recommended by the plan.
29-25 (b) The task force is composed of six members, appointed not
29-26 later than October 1, 2001, as follows:
29-27 (1) a representative from and appointed by each of the
30-1 following state officers or agencies:
30-2 (A) the attorney general;
30-3 (B) the comptroller;
30-4 (C) the Department of Information Resources; and
30-5 (D) the state auditor;
30-6 (2) a consumer representative, appointed by the
30-7 comptroller; and
30-8 (3) a representative of the funeral industry,
30-9 appointed by the comptroller.
30-10 (c) The representative of the comptroller shall serve as the
30-11 presiding officer of the task force.
30-12 (d) The task force shall meet at least once a month.
30-13 (e) The task force is abolished and this section expires
30-14 January 15, 2003.
30-15 SECTION 2.07. EXPIRATION. This article expires September 1,
30-16 2003.
30-17 ARTICLE 3. REPEALER; TRANSITION; EFFECTIVE DATE
30-18 SECTION 3.01. (a) Sections 651.305(a) and (b), 651.354, and
30-19 651.506(i), Occupations Code, are repealed.
30-20 (b) Section 651.353, Occupations Code, is repealed effective
30-21 September 30, 2001.
30-22 SECTION 3.02. (a) In this section:
30-23 (1) "Funeral commission" means the Texas Funeral
30-24 Service Commission.
30-25 (2) "Sunset commission" means the Sunset Advisory
30-26 Commission.
30-27 (b) In performing its duties under Section 651.002,
31-1 Occupations Code, as amended by this Act, and Chapter 325,
31-2 Government Code (Texas Sunset Act), the sunset commission may limit
31-3 the scope of its review of the funeral commission.
31-4 (c) As part of the review, the sunset commission shall
31-5 determine how much progress the funeral commission has made in
31-6 addressing and implementing solutions required by this Act,
31-7 including solutions regarding:
31-8 (1) information resources and legal services issues
31-9 under Article 2 of this Act;
31-10 (2) formal rules outlining an open and fair complaint
31-11 system;
31-12 (3) clearer guidelines to ensure a more effective use
31-13 of penalties;
31-14 (4) a risk-based approach to scheduling inspections;
31-15 and
31-16 (5) any other analyses that it determines are
31-17 appropriate.
31-18 (d) Not later than September 1, 2002, the funeral commission
31-19 shall report to the sunset commission on the status of its progress
31-20 under this Act.
31-21 (e) If the sunset commission determines that the funeral
31-22 commission has not made substantial progress, the sunset commission
31-23 shall consider whether to recommend that the legislature abolish
31-24 the funeral commission and transfer its functions to the Texas
31-25 Department of Licensing and Regulation.
31-26 SECTION 3.03. Not later than March 1, 2002, the Texas
31-27 Funeral Service Commission shall adopt the rules required by
32-1 Section 651.202(b), Occupations Code, as amended by this Act. In
32-2 adopting these rules, the commission shall examine, and use as a
32-3 guide, the rules adopted by the Board of Nurse Examiners relating
32-4 to complaint investigation, disposition, and related proceedings.
32-5 SECTION 3.04. Not later than March 1, 2002, the Texas
32-6 Funeral Service Commission shall adopt the rules required by
32-7 Section 651.5515, Occupations Code, as added by this Act.
32-8 SECTION 3.05. (a) The Texas Funeral Service Commission shall
32-9 study the risk-based assessment methods used by the Texas
32-10 Department of Health and the Texas Department of Licensing and
32-11 Regulation in conducting inspections required by law.
32-12 (b) Based on the study conducted under Subsection (a) of
32-13 this section, not later than March 1, 2002, the Texas Funeral
32-14 Service Commission shall adopt the rules required by Section
32-15 651.157(d)(2), Occupations Code, as added by this Act.
32-16 SECTION 3.06. (a) Not later than November 1, 2001, the
32-17 governor shall appoint the additional member of the Texas Funeral
32-18 Service Commission required under Section 651.051(a)(1),
32-19 Occupations Code, as amended by this Act.
32-20 (b) The changes in law made by this Act in the
32-21 qualifications of, and the prohibitions applying to, the members of
32-22 the Texas Funeral Service Commission do not affect the entitlement
32-23 of a person serving as a member of the commission immediately
32-24 before September 1, 2001, to continue to carry out the functions of
32-25 the person's office for the remainder of the person's term. The
32-26 changes in law apply only to a person appointed on or after
32-27 September 1, 2001. This Act does not prohibit a person who is a
33-1 member of the Texas Funeral Service Commission immediately before
33-2 September 1, 2001, from being reappointed as a commission member if
33-3 the person has the qualifications required for the position under
33-4 Subchapter B, Chapter 651, Occupations Code, as amended by this
33-5 Act.
33-6 SECTION 3.07. (a) In accordance with Section 311.031(c),
33-7 Government Code, which gives effect to a substantive amendment
33-8 enacted by the same legislature that codifies the amended statute,
33-9 the text of the following gives effect to changes made by Chapters
33-10 1201 and 1476, Acts of the 76th Legislature, Regular Session, 1999:
33-11 (1) Section 651.002, Occupations Code, as set out in
33-12 Section 1.04 of this Act;
33-13 (2) Section 651.051(a), Occupations Code, as set out
33-14 in Section 1.05 of this Act; and
33-15 (3) Section 651.053, Occupations Code, as set out in
33-16 Section 1.08 of this Act.
33-17 (b) To the extent of any conflict, this Act prevails over
33-18 another Act of the 77th Legislature, Regular Session, 2001,
33-19 relating to nonsubstantive additions to and corrections in enacted
33-20 codes.
33-21 SECTION 3.08. This Act takes effect September 1, 2001.