78R904 MXM-D
By: Chisum H.B. No. 1538
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.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 2. 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
perform financial regulation of perpetual care cemeteries under
Chapter 712, Health and Safety Code.
SECTION 3. 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.
(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 4. Sections 651.151(a) and (b), Occupations Code,
are amended to read as follows:
(a) The commission shall establish proficiency,
professionalism, ethics, and qualification standards for persons
issued a license under this chapter [funeral directors and
embalmers].
(b) The commission shall examine each applicant for a
crematory operator's license, funeral director's license,
embalmer's license, or provisional license and shall issue the
appropriate license to a person who meets the licensing
requirements.
SECTION 5. Section 651.152, Occupations Code, is amended to
read as follows:
Sec. 651.152. RULES; PROCEDURES; FORMS; STANDARDS OF
CONDUCT. (a) The commission shall [may] adopt rules, establish
procedures, and prescribe forms necessary to administer and enforce
this chapter and Chapters 711, 714, and 715, Health and Safety Code.
(b) The commission shall adopt rules to establish standards
of professional conduct and ethical behavior for a license holder
under this chapter.
SECTION 6. 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 7. Section 651.154(a), Occupations Code, is amended
to read as follows:
(a) The commission shall set the following fees in amounts
reasonable and necessary to administer this chapter:
(1) the crematory operator's, funeral director's, and
embalmer's application fee, license fee, duplicate license fee, and
reciprocal license fee; and
(2) the cemetery, crematory, or funeral establishment
license fee, renewal fee, and late renewal penalty.
SECTION 8. 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, or 715, 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, 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 9. 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 10. 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 11. 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 12. The heading to Subchapter F, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER F. LICENSE REQUIREMENTS: CREMATORY OPERATORS, FUNERAL
DIRECTORS, AND EMBALMERS
SECTION 13. Section 651.251, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) Cremation may be performed only by a licensed crematory
operator. A person may not engage or profess to be engaged in the
business of cremation or hold the person out to the public as a
crematory operator unless the person is licensed as a crematory
operator.
SECTION 14. Section 651.252(a), Occupations Code, is
amended to read as follows:
(a) An applicant for a [funeral director's] license under
this subchapter [or an embalmer's license] must submit a written
license application to the commission and pay the application fee.
SECTION 15. Section 651.253, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) To be eligible for a crematory operator's license, an
applicant must:
(1) be at least 18 years of age;
(2) have graduated from an accredited high school or
passed an examination prescribed by the Texas Education Agency; and
(3) have successfully completed the applicable
written examination.
SECTION 16. Section 651.254(a), Occupations Code, is
amended to read as follows:
(a) The examinations for a crematory operator's license,
funeral director's license, and [an] embalmer's license shall be
held at least annually. The examinations shall be given at the time
and place designated by the commission. The commission shall give
notice of the examinations.
SECTION 17. Subchapter F, Chapter 651, Occupations Code, is
amended by adding Section 651.2565 to read as follows:
Sec. 651.2565. EXAMINATIONS REQUIRED FOR CREMATORY
OPERATOR'S LICENSE. The commission shall administer or arrange for
the administration of:
(1) a written professionally prepared examination on:
(A) the art and technique of cremation;
(B) the signs of death;
(C) the manner by which death may be determined;
(D) sanitation and hygiene;
(E) cremation law; and
(F) business and professional ethics; and
(2) a written examination developed by the commission
or developed for the commission by contract on:
(A) laws applicable to vital statistics
pertaining to dead human bodies; and
(B) local and state rules and laws relating to
the transportation, care, and disposition of dead human bodies.
SECTION 18. 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 19. 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 20. The heading to Subchapter H, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER H. LICENSE REQUIREMENTS: CEMETERY, CREMATORY, FUNERAL,
[ESTABLISHMENTS] AND COMMERCIAL EMBALMER ESTABLISHMENTS
SECTION 21. Subchapter H, Chapter 651, Occupations Code, is
amended by adding Sections 651.353 and 651.3535 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.
Sec. 651.3535. CREMATORY ESTABLISHMENT REQUIREMENTS. (a)
A crematory may not conduct a crematory business unless it is
licensed by the commission.
(b) This chapter does not require a crematory to be owned by
a person licensed under this chapter.
(c) To obtain an initial crematory license, an applicant
must apply for a license and pay the licensing fee. The commission
shall issue an initial crematory license on determining that the
applicant satisfies the requirements of this chapter.
(d) A crematory must meet the building and fire safety
standards and health ordinances of this state and of the
municipality in which the crematory is located.
(e) A crematory must be operated by a licensed crematory
operator.
SECTION 22. Section 651.354, Occupations Code, is amended
to read as follows:
Sec. 651.354. RENEWAL OF CEMETERY, CREMATORY, OR FUNERAL
ESTABLISHMENT LICENSE. (a) The commission shall mail written
notice to a cemetery, crematory, 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.
The notice must state that:
(1) to renew the license, the cemetery, crematory, 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, crematory, 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, crematory, or funeral establishment may not renew the
license and may not operate as a cemetery, crematory, or funeral
establishment until the establishment is issued a new license in
the manner provided for issuing an original license.
SECTION 23. 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,
and a licensed crematory operator shall sign a purchase agreement
for a crematory.
SECTION 24. 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 25. 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) exhibits disrespect for dead human bodies by
violating any state law governing the transportation, storage,
refrigeration, inurnment, interment, or disinterment of a dead
human body.
SECTION 26. 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 27. 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 28. 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 29. 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 30. 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 31. The following laws are repealed:
(1) Section 651.1575, Occupations Code;
(2) Section 651.455(b), Occupations Code; and
(3) Section 651.506(j), Occupations Code.
SECTION 32. 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 33. On March 1, 2004, Subchapter N, Chapter 651,
Occupations Code, is repealed.
SECTION 34. (a) A cemetery or crematory establishment is
not required to hold a license under Chapter 651, Occupations Code,
as amended by this Act, until March 1, 2004.
(b) A crematory operator is not required to hold a license
under Chapter 651, Occupations Code, as amended by this Act, until
September 1, 2004.
SECTION 35. This Act takes effect September 1, 2003.