By: Chisum, Gallego, Solomons, Dunnam, H.B. No. 1538
McClendon
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Funeral
Service Commission, including certain functions transferred to the
commission from the Texas Department of Health, and the powers and
duties of the Texas Finance Commission and the banking commissioner
of Texas regarding cemeteries; providing administrative and civil
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 651.001, Occupations Code, is amended by
adding Subdivision (12-a) to read as follows:
(12-a) "Perpetual care cemetery" means a cemetery
regulated under Chapter 712, Health and Safety Code.
SECTION 2. Section 651.002, Occupations Code, is amended to
read as follows:
Sec. 651.002. APPLICATION OF SUNSET ACT. The Texas Funeral
Service Commission is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the commission is abolished and this chapter expires
September 1, 2015 [2003].
SECTION 3. Section 651.003(a), Occupations Code, is amended
to read as follows:
(a) This chapter does not affect the authority of the Texas
Department of Banking to enforce Chapter 154, Finance Code, or to
regulate perpetual care cemeteries.
SECTION 4. Subchapter A, Chapter 651, Occupations Code, is
amended by adding Section 651.004 to read as follows:
Sec. 651.004. REGULATION OF CEMETERY AND CREMATORY
SERVICES. (a) The commission shall regulate cemetery and
crematory services as provided by this chapter and Chapter 716,
Health and Safety Code.
(b) The commission may not regulate cemetery or crematory
services that occur after burial or inurnment unless the services
relate to the care and treatment of the remains in an urn, casket,
or outer enclosure.
SECTION 5. Sections 651.057(a) and (b), Occupations Code,
are amended to read as follows:
(a) The governor shall designate one [public] member of the
commission as the presiding officer of the commission to serve in
that capacity at the pleasure of the governor.
(b) After 30 days' written notice is given to the
commissioners, the commission shall elect from its [public] members
an assistant presiding officer. The assistant presiding officer
serves in that capacity for one year.
SECTION 6. Section 651.151(a), Occupations Code, is amended
to read as follows:
(a) The commission shall establish proficiency,
professionalism, ethics, and qualification standards for
individuals issued a license under this chapter [funeral directors
and embalmers].
SECTION 7. Section 651.152, Occupations Code, is amended to
read as follows:
Sec. 651.152. RULES; PROCEDURES; FORMS. The commission
shall [may] adopt rules, establish procedures, and prescribe forms
necessary to administer and enforce this chapter and Chapters 714
and 715, Health and Safety Code.
SECTION 8. Subchapter D, Chapter 651, Occupations Code, is
amended by adding Section 651.1525 to read as follows:
Sec. 651.1525. EARLY PARTICIPATION IN RULEMAKING PROCESS;
GUIDELINES. (a) Before publishing a proposed rule for public
comment, the commission shall seek advice and opinions from persons
who will be most affected by the rule. At a minimum, those persons
must include consumer groups and trade associations that represent
persons from each group regulated by the commission, including
funeral directors and cemetery and crematory operators.
(b) The commission shall develop guidelines to implement
this section. The guidelines must establish a method to determine
who will be most affected by a proposed rule.
SECTION 9. Section 651.154, Occupations Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) The commission shall set the following fees in amounts
reasonable and necessary to administer this chapter:
(1) the funeral director's and embalmer's application
fee, license fee, duplicate license fee, and reciprocal license
fee; and
(2) the cemetery or funeral establishment license fee,
renewal fee, and late renewal penalty.
(c) The commission may not charge a fee to a perpetual care
cemetery, including a fee for issuing or renewing a license issued
under this chapter.
SECTION 10. Section 651.157, Occupations Code, is amended
to read as follows:
Sec. 651.157. INSPECTION OF CEMETERY, CREMATORY, OR FUNERAL
ESTABLISHMENT. (a) Except as provided by Subsection (b), a
licensed cemetery, crematory, or funeral establishment shall be
inspected at least once every two years 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.
(b) If the commission finds a violation of this chapter or
of Chapter 193, [or] 361, 711, 714, 715, or 716, Health and Safety
Code, the commission shall inspect the cemetery, crematory, or
funeral establishment annually until the commission determines
that the establishment is free of violations.
(c) A report of each inspection made under this section
shall be filed with the commission.
(d) The commission by rule shall establish:
(1) procedures for the inspection of a cemetery,
crematory, or funeral establishment required by this section; and
(2) criteria, including consideration of the
establishment's inspection and complaint history, regarding when
the commission should inspect an establishment based on the risk of
a violation at an establishment.
(e) A premises on which funeral directing, interment,
cremation, or embalming is practiced shall be open at all times to
inspection for any violation of this chapter or of Chapter 193, [or]
361, or 716, Health and Safety Code, by:
(1) an agent of the commission;
(2) an authorized agent of the state; or
(3) an authorized agent of the county or municipality
in which the premises is located.
(f) Before a commission agent inspects a cemetery,
crematory, or funeral establishment, the agent shall review the
inspection reports filed with the commission on the establishment.
During the inspection, the agent shall determine whether previously
identified problems have been corrected and whether a pattern of
violations exists. The commission shall consider the information
from the inspection reports in determining whether a penalty should
be imposed against an establishment.
SECTION 11. Subchapter D, Chapter 651, Occupations Code, is
amended by adding Section 651.1571 to read as follows:
Sec. 651.1571. INSPECTION REQUIREMENTS FOR CERTAIN
CEMETERIES; EXCEPTION FOR PERPETUAL CARE CEMETERIES. (a) This
section and Section 651.157 do not apply to perpetual care
cemeteries.
(b) Except as provided by Section 651.157(b):
(1) a cemetery may not be inspected unless:
(A) an interment has occurred in the cemetery
within the two years preceding the inspection; or
(B) the commission has received a complaint about
the cemetery; and
(2) the commission shall give lower priority to an
inspection of a cemetery than to an inspection of a crematory or
funeral establishment.
SECTION 12. Section 651.164, Occupations Code, is amended
to read as follows:
Sec. 651.164. LICENSE [OR REGISTRATION] EXPIRATION. The
commission by rule may adopt a system under which licenses [or
registrations] expire on various dates during the year. For the
year in which the license [or registration] expiration date is
changed, the commission shall 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. On renewal of the license [or
registration] on the new expiration date, the total license [or
registration] renewal fee is payable.
SECTION 13. Subchapter D, Chapter 651, Occupations Code, is
amended by adding Sections 651.166 and 651.167 to read as follows:
Sec. 651.166. USE OF TECHNOLOGY. The commission shall
develop and implement a policy requiring the executive director and
commission employees to research and propose appropriate
technological solutions to improve the commission's ability to
perform its functions. The technological solutions must:
(1) ensure that the public is able to easily find
information about the commission on the Internet;
(2) ensure that persons who want to use the
commission's services are able to:
(A) interact with the commission through the
Internet; and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
commission's planning processes.
Sec. 651.167. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES. (a) The commission shall develop
and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of
those procedures, as implemented by the commission.
SECTION 14. Sections 651.202(a) and (b), Occupations Code,
are amended to read as follows:
(a) The commission by rule shall establish methods by which
consumers and service recipients are notified of the name, mailing
address, and telephone number of the commission for the purpose of
directing complaints to the commission. The commission may provide
for that notice:
(1) on each license [or registration] form,
application, or written contract for services of a person regulated
under this chapter;
(2) on a sign prominently displayed in the place of
business of each person regulated under this chapter; or
(3) in a bill for service provided by a person
regulated under this chapter.
(b) The commission shall adopt rules concerning a complaint
filed under this section. The rules adopted under this subsection
must:
(1) establish procedures regarding the receipt,
investigation, and disposition of complaints;
(2) allow for an informal hearing process;
(3) establish a formal hearing process;
(4) ensure that the person who filed the complaint has
an opportunity to explain the allegations made in the complaint;
(5) ensure that the license holder [or registrant] who
is the subject of the complaint has an opportunity to be heard
regarding the complaint; and
(6) establish procedures by which a commission
employee may dismiss a complaint, subject to approval by the
executive director or the executive director's designee, if the
investigation does not reveal a violation.
SECTION 15. Section 651.2595(d), Occupations Code, is
amended to read as follows:
(d) The commission shall approve or deny a provisional
license holder's application for a license not later than the
second anniversary of [180th day after] the date on which the
provisional license is issued. The commission may extend the
two-year [180-day] period if the results of an examination have not
been received by the commission before the end of that period.
SECTION 16. Section 651.261, Occupations Code, is amended
to read as follows:
Sec. 651.261. POSTING OF LICENSE. A license holder shall
conspicuously display the holder's license in each place of
business at which the license holder practices [funeral directing
or embalming].
SECTION 17. Sections 651.267(a) and (d), Occupations Code,
are amended to read as follows:
(a) On application, the commission may reissue a [funeral
director's or embalmer's] license issued under this subchapter to a
person whose license has been suspended or revoked. An application
to reissue a license may not be made before the first anniversary of
the date of the suspension or revocation.
(d) A license that has been revoked or suspended for a
period of five years or more may be reinstated only after the
applicant passes the applicable [written embalming or funeral
directing] examination.
SECTION 18. Sections 651.302(a) and (b), Occupations Code,
are amended to read as follows:
(a) The commission shall issue a provisional license to
practice funeral directing to an applicant who:
(1) is at least 18 years of age;
(2) has completed the educational requirements of
Section 651.253 or is enrolled in an accredited school or college of
mortuary science;
(3) is employed by a funeral director to learn funeral
directing or embalming under the instruction and supervision of the
funeral director [takes the written examination given by the
commission];
(4) files an application for a provisional license on
a form provided by the commission and verified under oath by the
applicant; and
(5) pays any required application or license fee.
(b) The commission shall issue a provisional license to
practice embalming to an applicant who:
(1) is at least 18 years of age;
(2) has completed the educational requirements of
Section 651.253 or is enrolled in an accredited school or college of
mortuary science;
(3) [takes the written examination given by the
commission;
[(4)] files an application for a provisional license;
(4) [(5)] pays any required application or license
fee; and
(5) [(6)] complies with the requirements of this
chapter and of the commission.
SECTION 19. Section 651.303(b), Occupations Code, is
amended to read as follows:
(b) The commission by rule shall define the terms of
employment of a provisional license holder. The terms of
employment:
(1) must include service by the provisional license
holder:
(A) of at least 17 hours a week or 73 hours a
month; and
(B) under actual working conditions and under the
personal supervision of a funeral director or embalmer; and
(2) may not require more than 17 hours a week or 73
hours a month.
SECTION 20. Subchapter G, Chapter 651, Occupations Code, is
amended by adding Section 651.3035 to read as follows:
Sec. 651.3035. MORTUARY COLLEGE CREDIT FOR PROVISIONAL
LICENSE PROGRAM. (a) A case completed under Section 651.303(d) may
serve as credit for both mortuary school or college and the
provisional license holder program.
(b) A mortuary school or college may designate a funeral
director or embalmer who is supervising a provisional license
holder under Section 651.303 as a clinical instructor for the
provisional license holder.
SECTION 21. Section 651.304(b), Occupations Code, is
amended to read as follows:
(b) A provisional license holder shall report to the
commission monthly. The report must:
(1) be made not later than the 10th day after the end
of the month;
(2) identify each case that the provisional license
holder:
(A) assisted in handling during that month if the
provisional license holder is a funeral director applicant; or
(B) handled or assisted in handling during that
month if the provisional license holder is an embalmer applicant;
(3) list any credit earned for mortuary school or
college under Section 651.3035; and
(4) [(3)] be certified by the funeral director or
embalmer under whom the provisional license holder performed the
work.
SECTION 22. The heading to Subchapter H, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER H. LICENSE REQUIREMENTS: CEMETERY, FUNERAL,
[ESTABLISHMENTS] AND COMMERCIAL EMBALMER ESTABLISHMENTS
SECTION 23. Subchapter H, Chapter 651, Occupations Code, is
amended by adding Section 651.353 to read as follows:
Sec. 651.353. CEMETERY ESTABLISHMENT REQUIREMENTS. (a) A
cemetery may not conduct a cemetery business unless the facility is
licensed by the commission.
(b) This chapter does not require a cemetery to be owned by a
person licensed under this chapter.
(c) To obtain an initial cemetery license, an applicant must
apply for a license and pay the licensing fee. The commission shall
issue an initial cemetery license on determining that the applicant
satisfies the requirements of this chapter.
(d) This section does not apply to:
(1) a family, fraternal, or community cemetery that is
not larger than 10 acres;
(2) an unincorporated association of plot owners not
operated for profit;
(3) a church, a religious society or denomination, or
an entity solely administering the temporalities of a church or
religious society or denomination; or
(4) a public cemetery owned by this state, a county, or
a municipality.
SECTION 24. Section 651.354, Occupations Code, is amended
to read as follows:
Sec. 651.354. RENEWAL OF CEMETERY OR FUNERAL ESTABLISHMENT
LICENSE. (a) The commission shall mail written notice to a
cemetery or funeral establishment of the impending expiration of
the [funeral] establishment's license not later than the 30th day
before the expiration date of the license. Except as provided by
Subsection (d), the [The] notice must state that:
(1) to renew the license, the cemetery or funeral
establishment must pay the renewal fee not later than September 30;
and
(2) the license is automatically renewed on receipt of
the renewal fee.
(b) A cemetery or funeral establishment that fails to pay
the license renewal fee by the due date is subject to a late payment
penalty equal to the amount charged for the license renewal fee.
(c) If the license is expired for longer than 30 days, the
cemetery or funeral establishment may not renew the license and may
not operate as a cemetery or funeral establishment until the
establishment is issued a new license in the manner provided for
issuing an original license.
(d) To renew a license for a perpetual care cemetery, the
cemetery must submit a renewal on a form prescribed by the
commission. The license is renewed on receipt of the form by the
commission.
SECTION 25. Section 651.4065(c), Occupations Code, is
amended to read as follows:
(c) The operator of a [registrant for the] cemetery [or
crematory] shall sign a [the] purchase agreement for a cemetery.
SECTION 26. Section 651.455(a), Occupations Code, is
amended to read as follows:
(a) A person regulated by the commission violates this
chapter if the person uses a statement that misleads or deceives the
public, including a fraudulent statement or any other type of a
false or misleading statement regarding:
(1) a legal, religious, or cemetery requirement for
funeral merchandise or funeral, cemetery, or crematory services;
(2) the preservative qualities of funeral merchandise
or funeral, cemetery, or crematory services in preventing or
substantially delaying natural decomposition of human remains;
(3) the airtight or watertight properties of a casket
or outer enclosure; [or]
(4) the licenses [or registrations] held by the
personnel in the operation of the cemetery, crematory, or funeral
establishment; or
(5) an activity regulated under this chapter,
including the sale of funeral-related goods or services.
SECTION 27. Section 651.456, Occupations Code, is amended
to read as follows:
Sec. 651.456. UNETHICAL CONDUCT REGARDING CUSTODY OF DEAD
HUMAN BODY. A person violates this chapter if the person:
(1) takes custody of a dead human body without the
permission of:
(A) the person or the agent of the person
authorized to make funeral arrangements for the deceased; or
(B) a medical examiner or a justice of the peace
who has jurisdiction over the body under Articles 49.02-49.05, Code
of Criminal Procedure; [or]
(2) refuses to promptly surrender a dead human body to
a person or agent authorized to make funeral arrangements for the
deceased; or
(3) violates any state law governing the
transportation, storage, refrigeration, inurnment, interment, or
disinterment of a dead human body.
SECTION 28. Section 651.459(a), Occupations Code, is
amended to read as follows:
(a) A person violates this chapter if the person:
(1) wilfully makes a false statement on:
(A) a death certificate, including forgery of a
physician's signature; or
(B) a document required by this chapter or a rule
adopted under this chapter;
(2) engages in fraudulent, unprofessional, or
deceptive conduct in providing funeral services or merchandise to a
customer;
(3) engages in dishonest conduct, wilful conduct, or
negligence in the practice of embalming or funeral directing that
is likely to or does deceive, defraud, or otherwise injure the
public;
(4) causes the execution of a document by the use of
fraud, deceit, or misrepresentation;
(5) directly or indirectly employs a person to solicit
individuals or institutions by whose influence dead human bodies
may be turned over to a particular funeral director, embalmer, or
funeral establishment;
(6) misappropriates funds held by a license holder, a
funeral establishment, an employee or agent of the funeral
establishment, or another depository, that create an obligation to
provide a funeral service or merchandise, including retaining for
an unreasonable time excess funds paid by or on behalf of the
customer for which the customer is entitled to a refund; or
(7) performs acts of funeral directing or embalming
that are outside the licensed scope and authority of the license
holder, or performs acts of funeral directing or embalming in a
capacity other than that of an employee, agent, subcontractor, or
assignee of a licensed funeral establishment that has contracted to
perform those acts.
SECTION 29. Subchapter K, Chapter 651, Occupations Code, is
amended by adding Section 651.5026 to read as follows:
Sec. 651.5026. TEMPORARY LICENSE SUSPENSION OR
RESTRICTION; DISCIPLINARY PANEL. (a) The presiding officer of the
commission shall appoint a three-member disciplinary panel
composed of two funeral industry members and one public member of
the commission to determine whether a funeral director's or
embalmer's license should be temporarily suspended or restricted.
(b) Chapter 551, Government Code, does not prohibit the
disciplinary panel from holding a meeting by telephone conference
call if convening the panel at one location is inconvenient for any
member of the panel.
(c) The disciplinary panel shall temporarily suspend or
restrict the license if the panel determines from the information
presented to it with or without a hearing, that the license holder
has violated this chapter or a rule adopted under this chapter and
would, by the license holder's continued unrestricted activity,
constitute a continuing threat to the public welfare.
(d) The suspension or restriction may be without notice or
hearing if:
(1) the commission immediately provides notice of the
suspension or restriction to the funeral director or embalmer;
(2) proceedings for a hearing under Section 651.506
are initiated simultaneously with the suspension or restriction;
and
(3) the hearing is held as required by Chapter 2001,
Government Code, and this chapter not later than 48 hours after the
suspension or restriction.
(e) If the disciplinary panel affirms the temporary
suspension or restriction at a hearing, the commission shall
schedule an informal compliance meeting that meets the requirements
of Section 2001.054(c), Government Code, and this chapter to be
held as soon as practicable unless:
(1) it is evident from the determination of the panel
that the funeral director or embalmer would be unable to show
compliance at the informal meeting regarding the issues that are
the basis for the temporary suspension or restriction; or
(2) an informal meeting has already been held
regarding the issues that are the basis for the temporary
suspension or restriction.
(f) If the funeral director or embalmer is unable to show
compliance at the informal meeting under Subsection (e), the
commission shall file a formal complaint under this chapter as soon
as practicable.
(g) If the disciplinary panel does not temporarily suspend
or restrict the license after considering the information presented
to it at a hearing under Subsection (c), the facts that were the
basis for the temporary suspension or restriction may not be the
sole basis of another proceeding to temporarily suspend or restrict
the funeral director's or embalmer's license. The commission may
use those same facts in a later investigation to obtain new
information that may be the basis for the temporary suspension or
restriction of a funeral director's or embalmer's license,
including facts presented to the disciplinary panel and facts known
to the commission at the time evidence was presented to the
disciplinary panel.
SECTION 30. Subchapter M, Chapter 651, Occupations Code, is
amended by adding Section 651.603 to read as follows:
Sec. 651.603. VOLUNTARY DISCLOSURE; IMMUNITY. (a) Except
as provided by this section, a person who makes a voluntary
disclosure of a violation of this chapter is immune from an
administrative or civil penalty for the violation disclosed.
(b) A disclosure is voluntary only if:
(1) the disclosure was made promptly after knowledge
of the information disclosed is obtained by the person;
(2) the disclosure was made in writing by certified
mail to the commission with regard to the violation disclosed;
(3) an investigation of the violation was not
initiated or the violation was not independently detected by the
commission before the disclosure was made using certified mail;
(4) the disclosure arises out of a voluntary audit;
(5) the person who makes the disclosure initiates an
appropriate effort to achieve compliance, pursues that effort with
due diligence, and corrects the noncompliance within a reasonable
time;
(6) the person making the disclosure cooperates with
the commission in connection with an investigation of the issues
identified in the disclosure; and
(7) the violation did not result in injury or imminent
and substantial risk of serious injury to one or more persons at the
site or off-site substantial actual harm or imminent and
substantial risk of harm to persons or property.
(c) A disclosure is not voluntary for purposes of this
section if it is a report to the commission required solely by a
specific condition of an enforcement order or decree.
(d) The immunity established by Subsection (a) does not
apply and an administrative or civil penalty may be imposed under
applicable law if:
(1) the person who made the disclosure intentionally
or knowingly committed or was responsible within the meaning of
Section 7.02, Penal Code, for the commission of the disclosed
violation;
(2) the person who made the disclosure recklessly
committed or was responsible within the meaning of Section 7.02,
Penal Code, for the commission of the disclosed violation and the
violation resulted in substantial injury to one or more persons at
the site or off-site harm to persons or property;
(3) the offense was committed intentionally or
knowingly by a member of the person's management or an agent of the
person and the person's policies or lack of prevention systems
contributed materially to the occurrence of the violation;
(4) the offense was committed recklessly by a member
of the person's management or an agent of the person, the person's
policies or lack of prevention systems contributed materially to
the occurrence of the violation, and the violation resulted in
substantial injury to one or more persons at the site or off-site
harm to persons or property; or
(5) the violation has resulted in a substantial
economic benefit that gives the violator a clear advantage over its
business competitors.
(e) A penalty imposed under Subsection (d) should, to the
extent appropriate, be mitigated by factors such as:
(1) the voluntariness of the disclosure;
(2) efforts by the disclosing party to conduct audits;
(3) remediation;
(4) cooperation with government officials
investigating the disclosed violation; or
(5) other relevant considerations.
(f) In a civil or administrative enforcement action brought
against a person for a violation for which the person claims to have
made a voluntary disclosure, the person claiming the immunity has
the burden of establishing a prima facie case that the disclosure
was voluntary. After the person claiming the immunity establishes
a prima facie case of voluntary disclosure, other than a case in
which under Subsection (d) immunity does not apply, the enforcement
authority has the burden of rebutting the presumption by a
preponderance of the evidence or, in a criminal case, by proof
beyond a reasonable doubt.
(g) In order to receive immunity under this section, a
person conducting an audit under this section must give notice to
the commission of the fact that the person is planning to commence
the audit. The notice shall specify the facility or portion of the
facility to be audited, the anticipated time the audit will begin,
and the general scope of the audit. The notice may provide
notification of more than one scheduled audit at a time.
(h) The immunity under this section does not apply if a
court or administrative law judge finds that the person claiming
the immunity has:
(1) repeatedly or continuously committed significant
violations; and
(2) not attempted to bring the facility or operation
into compliance, so as to constitute a pattern of disregard of this
chapter.
(i) In order to be considered a "pattern" under Subsection
(h), a series of violations that were due to separate and distinct
events must have been committed within a three-year period at the
same facility or operation.
(j) A violation that has been voluntarily disclosed and to
which immunity applies must be identified in a compliance history
report as being voluntarily disclosed.
SECTION 31. Section 711.004(f), Health and Safety Code, is
amended to read as follows:
(f) Except as is authorized for a justice of the peace
acting as coroner or medical examiner under Chapter 49, Code of
Criminal Procedure, remains may not be removed from a cemetery
except on the written order of the state registrar or the state
registrar's designee. The cemetery organization shall keep a
duplicate copy of the order as part of its records. The Texas
Funeral Service Commission [Board of Health] may adopt rules to
implement this subsection.
SECTION 32. Section 711.007(b), Health and Safety Code, is
amended to read as follows:
(b) The proceeding may be brought by:
(1) the attorney general;
(2) the Banking Commissioner of Texas;
(3) the governing body of a municipality with a
population of more than 25,000, if the cemetery is located in the
municipality or not farther than five miles from the municipality;
(4) the district attorney of the county, if the
cemetery is located in an area of the county not described by
Subdivision (3);
(5) the owner of a residence:
(A) in or near the municipality in which the
cemetery is located; or
(B) in the area proscribed for the location of a
cemetery by Section 711.008;
(6) the Texas Funeral Service Commission; or
(7) [(6)] the owner of a plot in the cemetery.
SECTION 33. Subchapter A, Chapter 711, Health and Safety
Code, is amended by adding Section 711.012 to read as follows:
Sec. 711.012. RULES. (a) The Finance Commission of Texas
may adopt rules to enforce and administer Sections 711.003,
711.008, 711.021-711.024, 711.032-711.035, 711.038,
711.040-711.042, 711.052, 711.061, and 711.062 relating to
perpetual care cemeteries.
(b) The Texas Funeral Service Commission may adopt rules,
establish procedures, and prescribe forms to enforce and administer
Sections 711.003, 711.008, 711.010, 711.011, 711.021-711.035,
711.038, 711.041, 711.042, 711.061, and 711.062 relating to
cemeteries that are not perpetual care cemeteries.
SECTION 34. Subchapter D, Chapter 711, Health and Safety
Code, is amended by adding Sections 711.053-711.056 to read as
follows:
Sec. 711.053. DEFINITION. In this subchapter,
"commissioner" means the banking commissioner of Texas.
Sec. 711.054. ENFORCEMENT BY FINANCE COMMISSION OF TEXAS.
The Finance Commission of Texas may use remedies available under
Chapter 712 to enforce a section listed under Section 711.012(a)
relating to perpetual care cemeteries.
Sec. 711.055. ENFORCEMENT BY COMMISSIONER. (a) Chapter
2001, Government Code, applies to a proceeding under this section.
(b) After notice and opportunity for hearing, the
commissioner may impose an administrative penalty on a person who:
(1) violates this chapter or a final order of the
commissioner or rule of the Finance Commission of Texas and does not
correct the violation before the 31st day after the date the person
receives written notice of the violation from the Texas Department
of Banking; or
(2) engages in a pattern of violations, as determined
by the commissioner.
(c) The amount of the penalty for each violation may not
exceed $1,000 for each day the violation occurs.
(d) In determining the amount of the penalty, the
commissioner shall consider the seriousness of the violation, the
person's history of violations, and the person's good faith in
attempting to comply with this chapter. The commissioner may
collect the penalty in the same manner that a money judgment is
enforced in district court.
(e) In addition to any penalty that may be imposed under
Subsection (b), the commissioner may bring a civil action against a
person to enjoin a violation described in Subsection (b) that has
not been corrected within 30 days after receipt by the person of
written notice of the violation from the commissioner. The civil
action may be brought in the district court of the county in which
the cemetery is operated.
(f) The commissioner may issue an order to cease and desist
if a violation described in Subsection (b) has not been corrected
within 30 days after receipt by the person of written notice of the
violation from the commissioner. Any order proposed under this
subsection shall be served on the person, shall state the grounds
for the proposed order with reasonable certainty, and shall state
the proposed effective date, which may not be less than 15 days
after receipt by the person. Unless the person requests a hearing
within 15 days after the receipt, the order is effective as
proposed.
Sec. 711.056. PATTERN OF WILFUL DISREGARD. (a) If after a
hearing conducted as provided by Chapter 2001, Government Code, the
trier of fact finds that a violation of this chapter or a rule of the
Finance Commission of Texas establishes a pattern of wilful
disregard for the requirements of this chapter or rules of the
finance commission, the trier of fact shall recommend to the
commissioner that the maximum administrative penalty permitted
under Section 711.055 be imposed on the person committing the
violation or that the commissioner cancel or not renew the person's
permit under Chapter 154, Finance Code, if the person holds such a
permit.
(b) For the purposes of this section, violations corrected
as provided by Section 711.055 may be included in determining
whether a pattern of wilful disregard for the requirements of this
chapter or rules of the finance commission exists.
SECTION 35. Section 712.002, Health and Safety Code, is
amended to read as follows:
Sec. 712.002. EXEMPTIONS FROM CHAPTER. This chapter does
not apply to:
(1) a family, fraternal, or community cemetery that is
not larger than 10 acres;
(2) an unincorporated association of plot owners not
operated for profit;
(3) [a nonprofit corporation organized by plot owners;
or
[(4)] a church, a religious society or denomination,
or an entity solely administering the temporalities of a church or
religious society or denomination; or
(4) a public cemetery owned by this state, a county, or
a municipality.
SECTION 36. Section 715.003, Health and Safety Code, is
amended to read as follows:
Sec. 715.003. PARTIES TO ACTION. An action commenced under
this chapter shall be brought by the incorporators of the nonprofit
corporation on behalf of the nonprofit corporation. The necessary
parties to the action on which citation shall be served under
Section 715.006 are:
(1) the record owners of the real property comprising
the historic cemetery;
(2) the owners of plots in the cemetery, who may be
designated as a class in the petition; [and]
(3) the Texas Historical Commission; and
(4) the Texas Funeral Service Commission.
SECTION 37. Section 715.006(a), Health and Safety Code, is
amended to read as follows:
(a) Before the 31st day after the date an action is
commenced by a nonprofit corporation under this chapter, the
nonprofit corporation shall cause citation to be issued and served
by certified mail, return receipt requested, on:
(1) the record owners of the real property comprising
the cemetery at their last known addresses;
(2) the owners of plots in the cemetery at their last
known addresses;
(3) the Texas Historical Commission at its office in
Austin, Texas;
(4) the Texas Funeral Service Commission; and
(5) [(4)] the county auditor of the county in which
the cemetery is located.
SECTION 38. The following laws are repealed:
(1) Section 651.1575, Occupations Code;
(2) Section 651.302(c), Occupations Code;
(3) Section 651.455(b), Occupations Code; and
(4) Section 651.506(j), Occupations Code.
SECTION 39. On September 1, 2003:
(1) all functions and activities related to Chapter
711, Health and Safety Code, performed by the Texas Department of
Health immediately before that date are transferred to the Texas
Funeral Service Commission;
(2) a rule or form of the Texas Department of Health
related to Chapter 711, Health and Safety Code, is a rule or form of
the Texas Funeral Service Commission and remains in effect until
amended or replaced by that commission;
(3) a reference in law or an administrative rule to the
Texas Department of Health that relates to Chapter 711, Health and
Safety Code, means the Texas Funeral Service Commission; and
(4) a complaint, investigation, or other proceeding
before the Texas Department of Health that is related to Chapter
711, Health and Safety Code, is transferred without change in
status to the Texas Funeral Service Commission, and the Texas
Funeral Service Commission assumes, as appropriate and without a
change in status, the position of the Texas Department of Health in
an action or proceeding to which the Texas Department of Health is a
party.
SECTION 40. On March 1, 2004, Subchapter N, Chapter 651,
Occupations Code, is repealed.
SECTION 41. A cemetery is not required to hold a license
under Chapter 651, Occupations Code, as amended by this Act, until
March 1, 2004.
SECTION 42. This Act takes effect September 1, 2003.