78R2993 YDB-D
By: Ellis S.B. No. 471
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of crematories, cemeteries, and funeral
homes; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 651.001, Occupations Code, is amended by
amending Subdivisions (5) and (7) and adding Subdivision (16-a) to
read as follows:
(5) "First call" means the beginning of the
relationship and duty of a funeral director to take charge of a dead
human body and have the body prepared for burial or disposition by
embalming, cremation, or another method. The term does not include:
(A) an ambulance call if the person dispatching
the ambulance does not know whether a dead human body is to be
picked up; or
(B) the removal of a body for an autopsy or
inquest under Chapter 49, Code of Criminal Procedure, as ordered or
directed by a justice of the peace, death investigator, peace
officer, or medical examiner.
(7) "Funeral directing" means acts associated with or
arranging for the disposition of a dead human body [,] performed by
a person for compensation, including the acts described by Section
651.0015 [from the time of first call until:
[(A) inurnment, interment, or entombment
services are complete; or
[(B) the body is permanently transported out of
this state].
(16-a) "Trainee license holder" means a person who:
(A) is engaged in learning the practice of
funeral directing or embalming under the instruction, direction,
and personal supervision of a funeral director or embalmer; and
(B) holds a trainee license issued by the
commission under this chapter.
SECTION 2. Subchapter A, Chapter 651, Occupations Code, is
amended by adding Section 651.0015 to read as follows:
Sec. 651.0015. PRACTICE OF FUNERAL DIRECTING. (a) The
practice of funeral directing consists of acts performed by a
funeral director from the time of first call until:
(1) inurnment, interment, or entombment services are
complete; or
(2) the body is permanently transported out of this
state.
(b) The practice of funeral directing includes acts
performed by a funeral director at the request of the family member
or other person responsible for making arrangements for the final
disposition of the deceased or of a governmental entity responsible
for disposing of dead human bodies to:
(1) direct the funeral service of the deceased;
(2) inform the family member or other person
responsible for making funeral arrangements that a contract will
exist between the funeral director and the family member or other
person;
(3) provide consumer information, including
brochures, price lists, and funeral purchase agreements;
(4) sign the funeral purchase agreement;
(5) assist in the selection of funeral merchandise and
other goods and services;
(6) obtain the information required for the issuance
of a death certificate and file the death certificate;
(7) obtain or file other documents required by law,
including permits;
(8) coordinate with a cemetery or crematory for the
disposal of remains;
(9) ensure the proper burial or disposal of remains;
(10) supervise disinterment and removal of remains
from a place of interment; and
(11) communicate with the deceased's family or other
representatives regarding the acts described by this section.
SECTION 3. Section 651.151(b), Occupations Code, is amended
to read as follows:
(b) The commission shall examine each applicant for a
funeral director's license, embalmer's license, [or] provisional
license, or trainee license and shall issue the appropriate license
to a person who meets the licensing requirements.
SECTION 4. Section 651.152, Occupations Code, is amended to
read as follows:
Sec. 651.152. RULES; PROCEDURES; FORMS; STANDARDS OF
CONDUCT. (a) The commission may:
(1) adopt rules, establish procedures, and prescribe
forms necessary to administer and enforce this chapter; and
(2) adopt rules relating to the final disposition of a
dead human body under Chapters 713, 714, and 715, Health and Safety
Code.
(b) The commission by rule shall establish standards of
professional conduct and ethical behavior for a license holder
under this chapter.
SECTION 5. Section 651.154, Occupations Code, is amended to
read as follows:
Sec. 651.154. FEES. (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 the fee for a
reciprocal license under Section 651.259 [fee]; and
(2) the funeral establishment license fee, renewal
fee, and late renewal penalty.
(b) The commission shall set the trainee [provisional]
license fee, examination fee, renewal fee, and late renewal penalty
in amounts reasonable and necessary to administer the trainee
[provisional] license program.
(c) The commission shall set fees under this chapter in
amounts sufficient to cover the costs of:
(1) processing duplicate, replacement, or additional
license renewal applications;
(2) issuing licenses and wall certificates;
(3) conducting audits to determine whether an
applicant meets the requirements for a provisional or trainee
license;
(4) preparing consumer brochures;
(5) preparing mortuary law books;
(6) collecting penalties for insufficient funds
checks; and
(7) providing postage associated with services
provided under this chapter.
SECTION 6. Sections 651.157(b) and (e), Occupations Code,
are amended to read as follows:
(b) If the commission finds a violation of this chapter, [or
of] Chapter 193 or 361, Health and Safety Code, or the rules adopted
by the Texas Department of Health under those chapters, the
commission shall inspect the funeral establishment annually until
the commission determines that the establishment is free of
violations.
(e) A premises on which funeral directing or embalming is
practiced, regardless of whether the premises are open to the
public, and all funeral purchase agreements and retail price lists
shall be open at all times to inspection for any violation of this
chapter, [or of] Chapter 193 or 361, Health and Safety Code, or a
rule adopted by the Texas Department of Health under those chapters
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.
SECTION 7. Section 651.1575(a), Occupations Code, is
amended to read as follows:
(a) The commission may inspect a cemetery or crematory for a
possible violation of this chapter or Chapters 711-715, Health and
Safety Code [only if the commission receives a complaint about that
facility under Section 651.202].
SECTION 8. Section 651.159(a), Occupations Code, is amended
to read as follows:
(a) The commission, the Texas Department of Insurance, and
the Texas Department of Banking shall adopt a joint memorandum of
understanding relating to prepaid funeral services and
transactions. The memorandum must:
(1) outline the responsibilities of each agency in
regulating prepaid funeral services and transactions;
(2) outline the responsibilities of each agency under
Chapter 712, Health and Safety Code, and rules adopted by the Texas
Department of Banking under that chapter;
(3) establish procedures to be used by each agency in:
(A) referring a complaint to one of the other
agencies;
(B) investigating a complaint; and
(C) notifying the other agencies of a complaint
or a complaint investigation;
(4) [(3)] specify:
(A) an action the agencies regard as a deceptive
trade practice; and
(B) the information the agencies provide
consumers and when that information is to be provided; and
(5) [(4)] set the administrative penalty each agency
imposes for a violation.
SECTION 9. Section 651.160(a), Occupations Code, is amended
to read as follows:
(a) The commission and the Texas Department of Health shall
adopt a joint memorandum of understanding that:
(1) outlines the responsibilities of each agency in
enforcing requirements under Chapters 193, [and] 361, 694, and 711,
Health and Safety Code, the rules adopted by the Texas Department of
Health under those chapters, and rules adopted by the Texas
Department of Health related to vital statistics [that affect
funeral establishments];
(2) establishes procedures by which each agency:
(A) may refer a complaint to the other; and
(B) will notify the other of a violation by a
funeral establishment of Chapter 193 or 361, Health and Safety
Code; and
(3) coordinates inspection and enforcement efforts by
both agencies for measures that a funeral establishment is required
to implement under Chapters 193 and 361, Health and Safety Code.
SECTION 10. Section 651.201(b), Occupations Code, is
amended to read as follows:
(b) The commission shall:
(1) for a fee provide each licensed funeral
establishment with the number of brochures the commission considers
appropriate; and
(2) make the brochure available to the public and
appropriate state agencies.
SECTION 11. Section 651.251, Occupations Code, is amended
to read as follows:
Sec. 651.251. LICENSE REQUIRED. (a) Funeral directing may
be performed only by a funeral director or a provisional license
holder, trainee license holder, or qualified mortuary student under
the supervision and direction of a funeral director. A person may
not engage or profess to be engaged in the business of funeral
directing or hold the person out to the public as a funeral director
unless the person is licensed as a funeral director.
(b) Embalming may be performed only by an embalmer or a
provisional license holder, trainee license holder, or qualified
mortuary student under the supervision and direction of an
embalmer. A person may not engage or profess to be engaged in the
business of embalming or hold the person out to the public as an
embalmer unless the person is licensed as an embalmer.
SECTION 12. Section 651.253, Occupations Code, is amended
to read as follows:
Sec. 651.253. GENERAL LICENSE REQUIREMENTS. (a) To be
eligible for a funeral director's license or an embalmer'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;
(3) have graduated from an accredited school or
college of mortuary science;
(4) unless the applicant holds a reciprocal funeral
director's or embalmer's license under Section 651.259, have served
as a trainee [provisional] license holder for not less than one year
under the personal supervision and instruction of a funeral
director or embalmer, as applicable; and
(5) have successfully completed the applicable
written examination described by Section 651.254 or 651.255 [or
651.256].
(b) An applicant for a funeral director's license or an
embalmer's license may not be considered for that license until the
applicant[:
[(1)] completes all of the requirements of the trainee
[provisional] license program[; and
[(2) attains a grade of at least 75 percent on the
written examination given by the commission].
SECTION 13. Sections 651.254 and 651.255, Occupations Code,
are amended to read as follows:
Sec. 651.254. PROVISIONAL OR RECIPROCAL LICENSE
EXAMINATIONS[; RESULTS]. (a) To be eligible for a provisional
license under Section 651.2595 or a reciprocal license under
Section 651.259, the applicant must pay the examination fee set by
the commission and pass a written examination administered and
developed by the commission on:
(1) the law applicable to vital statistics pertaining
to dead human bodies; and
(2) state and local laws and rules relating to the
preparation, transportation, care, and disposition of dead human
bodies.
(b) An applicant must attain a passing score of at least 75
percent on the written examination required by Subsection (a).
(c) The commission shall provide for the examinations for a
provisional license or a reciprocal [funeral director's license and
an embalmer's] license under Section 651.259 to [shall] be held at
least quarterly [annually. The examinations shall be given at the
time and place designated by the commission. The commission shall
give notice of the examinations].
(d) The [(b) Not later than the 30th day after the date a
person takes a licensing examination under this chapter, the
commission shall notify the person of the results of the
examination.
[(c) If the examination is graded or reviewed by a testing
service:
[(1) the] commission shall notify the person of the
results of the examination not later than the 14th day after the
date the commission receives the examination results [from the
testing service; and
[(2) if notice of the examination results will be
delayed for longer than 90 days after the examination date, the
commission shall notify the person of the reason for the delay
before the 90th day.
[(d) The commission may require a testing service to notify
a person of the results of the person's examination].
(e) If requested in writing by a person who fails the [a
licensing] examination [administered under this chapter], the
commission shall furnish the person with an analysis of the
person's performance on the examination.
Sec. 651.255. LICENSE EXAMINATIONS [REQUIRED FOR FUNERAL
DIRECTOR'S LICENSE]. (a) To be eligible for a license as a funeral
director or embalmer under this chapter, an applicant must pass an
examination administered or approved by the American Board of
Funeral Service Education in conjunction with the International
Conference of Funeral Service Examining Boards or other entity
designated by the [The] commission [shall administer or arrange for
the administration of:
[(1) a written professionally prepared examination]
on:
(1) [(A)] the art and technique of funeral directing;
(2) [(B)] the signs of death;
(3) [(C)] the manner by which death may be determined;
(4) [(D)] sanitation and hygiene;
(5) [(E)] mortuary management and mortuary law;
(6) [(F)] business and professional ethics; [and]
(7) the anatomy of the human body, including the
cavities and the arterial and venous system of the human body;
(8) blood and discoloration;
(9) bacteriology and hygiene;
(10) pathology;
(11) chemistry and embalming;
(12) arterial and cavity embalming;
(13) restorative art;
(14) disinfecting;
(15) embalming special cases;
(16) contagious and infectious diseases;
(17) care, preservation, transportation, and
disposition of dead human bodies;
(18) sanitary science; and
(19) [(G)] other subjects that may be taught in a
recognized school or college of mortuary science[; 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 preparation, transportation, care, and disposition of dead
human bodies].
(b) An applicant must attain a passing score of at least 75
percent on each subject described by Subsection (a).
(c) The commission shall notify the person of the results of
the examination not later than the 14th day after the date the
commission receives the results.
(d) If requested in writing by a person who fails a
licensing examination administered under this chapter, the
commission shall furnish the person with an analysis of the
person's performance on the examination.
SECTION 14. Section 651.259(f), Occupations Code, is
amended to read as follows:
(f) An applicant for a license under this section must:
(1) provide proof that:
(A) the license is in good standing;
(B) the applicant has practiced under the license
for at least:
(i) one year in the state that issued the
license if that state has license requirements substantially
equivalent to those of this state; or
(ii) five years in the state that issued the
license if that state does not have license requirements
substantially equivalent to those of this state; and
(C) the applicant has graduated from an
accredited college of mortuary science; and
(2) pass a written examination of not more than 50
questions on applicable state laws and commission rules as provided
by Section 651.254.
SECTION 15. The heading to Subchapter G, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER G. LICENSE REQUIREMENTS: TRAINEE
[PROVISIONAL] LICENSE HOLDERS
SECTION 16. Sections 651.301-651.305, Occupations Code,
are amended to read as follows:
Sec. 651.301. TRAINEE [PROVISIONAL] LICENSE REQUIRED. A
person must obtain a trainee [provisional] license before the
person may engage in learning the practice of funeral directing or
embalming under the instruction, direction, and personal
supervision in this state of a licensed funeral director or
embalmer.
Sec. 651.302. APPLICATION; ISSUANCE OF TRAINEE
[PROVISIONAL] LICENSE. (a) The commission shall issue a trainee
[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;
(3) passes [takes] the written examination given by
the commission;
(4) files an application for a trainee [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 trainee [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;
(3) passes [takes] the written examination given by
the commission;
(4) files an application for a trainee [provisional]
license;
(5) pays any required application or license fee; and
(6) complies with the requirements of this chapter and
of the commission.
(c) An applicant who does not obtain a trainee [provisional]
license before the second anniversary of the date the applicant
takes the examination must pass the examination again before being
licensed as a trainee [provisional] license holder.
Sec. 651.303. TRAINEE [PROVISIONAL] LICENSE PROGRAM. (a)
The commission shall prescribe and supervise the course of
instruction received by a trainee [provisional] license holder
while participating in a trainee [provisional] license program.
(b) The commission by rule shall define the terms of
employment of a trainee [provisional] license holder. The terms of
employment must include service by the trainee [provisional]
license holder under actual working conditions and under the
personal supervision of a funeral director or embalmer.
(c) The term of the trainee [provisional] license program
must be at least 12 consecutive months.
(d) The trainee [provisional] license program must include
assisting with at least 60 cases. Not more than two trainee
[provisional] license holders may receive credit for work done on
any one body. The commission by rule shall:
(1) define the standards for a case;
(2) set the number of cases a trainee [provisional]
license holder is required to complete during the program; and
(3) establish guidelines for supervision under which a
trainee [provisional] license holder is granted increased
responsibilities during the course of the trainee [provisional]
license program.
(e) The standards required for a complete case include:
(1) for an embalmer, all the duties and activities
necessary for embalming; and
(2) for a funeral director, all the activities
necessary from the time the body is obtained until final
disposition.
(f) The funeral director trainee [provisional] license
program may be served concurrently with the embalmer trainee
[provisional] license program.
Sec. 651.304. EMPLOYMENT REPORTS. (a) On entering
employment with a funeral director or embalmer, a trainee
[provisional] license holder shall immediately notify the
commission of the name and place of business of the funeral director
or embalmer under whom the trainee [provisional] license holder
will train. The funeral director or embalmer shall sign the
notification.
(b) A trainee [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 trainee [provisional]
license holder:
(A) assisted in handling during that month if the
trainee [provisional] license holder is a funeral director
applicant; or
(B) handled or assisted in handling during that
month if the trainee [provisional] license holder is an embalmer
applicant; and
(3) be certified by the funeral director or embalmer
under whom the trainee [provisional] license holder performed the
work.
(c) The trainee [provisional] license holder shall make the
monthly report required by Subsection (b) regardless of whether the
trainee [provisional] license holder performed an activity
described by Subsection (b) during that month for which a report is
required.
(d) If a trainee [provisional] license holder leaves the
employment of a funeral director or embalmer, the funeral director
or embalmer shall prepare an affidavit showing the length of time
the trainee [provisional] license holder was employed and the
number of cases handled while employed by the funeral director or
embalmer. The original affidavit shall be filed with the commission
and made a matter of record. A copy of the affidavit shall be
furnished to the trainee [provisional] license holder.
(e) The commission shall furnish report forms to be used by
a trainee [provisional] license holder.
Sec. 651.305. RENEWAL OR REINSTATEMENT OF TRAINEE
[PROVISIONAL] LICENSE.
(c) If a trainee [provisional] license holder fails to
timely pay the renewal fee, the commission shall:
(1) impose a late payment penalty equal to the amount
of the license renewal fee;
(2) suspend the license for nonpayment; and
(3) notify the trainee [provisional] license holder of
the suspension.
(d) If the renewal fee and penalty are not paid before the
91st day after the date of the notice of suspension, the commission
shall cancel the license. If the license is canceled under this
subsection, the trainee [provisional] license holder may apply for
reinstatement not later than 18 months after the date of
cancellation. The commission may reinstate the canceled license if:
(1) all other commission requirements are satisfied;
and
(2) the license fee and a late payment penalty equal to
the amount of the license fee for the period of the cancellation are
paid.
(e) A trainee [provisional] license may be renewed after the
second anniversary of the date of its issuance only if the person
requests and receives from the commission an extension based on
hardship.
(f) A trainee [provisional] license that has been canceled
or suspended or has lapsed for a period of at least five years may be
reinstated only if the applicant passes the written embalming or
funeral directing examination.
(g) The commission may adopt rules relating to the
reinstatement of a trainee [provisional] license under this
section.
SECTION 17. Section 651.401(b), Occupations Code, is
amended to read as follows:
(b) A dead human body may be transferred without a funeral
director personally making the transfer:
(1) from one funeral establishment to another;
(2) from the place of death or a funeral establishment
to [and from] a morgue in which an autopsy is performed and from the
morgue to a funeral establishment;
(3) to and from an airport, crematory, or both; or
(4) in circumstances in which there is no reasonable
probability that an unlicensed person will encounter a family
member or other person with whom funeral arrangements are normally
made by a funeral director or embalmer.
SECTION 18. Section 651.404, Occupations Code, is amended
to read as follows:
Sec. 651.404. CONSUMER BROCHURE. When funeral services are
discussed, a funeral director or agent of the funeral establishment
shall provide each prospective customer with a copy of the brochure
prepared by the commission under Section 651.201. The funeral
establishment may [shall] print additional copies of the brochure
only if the commission is unable to provide the number of brochures
needed by the funeral establishment.
SECTION 19. Section 651.405, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) A funeral establishment must provide a copy of the
retail price list to a prospective customer before discussing:
(1) the prices of goods or services;
(2) the types of funeral services or final
dispositions offered; or
(3) the funeral merchandise offered by the funeral
establishment.
SECTION 20. Section 651.4055, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) A cemetery or crematory business must provide a copy of
the retail price list to a prospective customer before discussing:
(1) the prices of goods or services;
(2) the types of services or final dispositions
offered; or
(3) the goods or services offered by the crematory or
cemetery business.
SECTION 21. Section 651.406(c), Occupations Code, is
amended to read as follows:
(c) The purchase agreement must include the original
signature of [shall be signed by] the funeral director making the
arrangements.
SECTION 22. Section 651.451, Occupations Code, is amended
to read as follows:
Sec. 651.451. CERTAIN FRAUDULENT AND DECEPTIVE ACTS. A
person violates this chapter if the person:
(1) presents to the commission a license, certificate,
registration, or diploma that was illegally or fraudulently
obtained;
(2) uses fraud or deception in passing the
examination, including impersonating or acting as a proxy for
another person in the examination;
(3) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a license, registration,
certificate, or transcript of a license, registration, or
certificate in or incident to an application to the commission for a
license or registration issued under this chapter;
(4) alters, with fraudulent intent, a license,
registration, or certificate issued under this chapter or a
transcript of a license, registration, or certificate;
(5) uses a license, registration, certificate, or
diploma issued under this chapter or a transcript of a license,
registration, certificate, or diploma that has been fraudulently
purchased, issued, counterfeited, or materially altered;
(6) impersonates a funeral director, embalmer, or
other person regulated under this chapter;
(7) permits another to use the person's license or
registration to perform an activity regulated under this chapter;
or
(8) presents false certification of work done as a
trainee [provisional] license holder.
SECTION 23. 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 or
cremated remains to a person or agent authorized to make funeral
arrangements for the deceased or on the express order of the person
lawfully entitled to the custody of the remains; or
(3) exhibits disrespect for dead human bodies by
violating any state law governing the transportation, storage,
refrigeration, interment, or disinterment of a dead human body.
SECTION 24. Section 651.457, Occupations Code, is amended
to read as follows:
Sec. 651.457. UNETHICAL CONDUCT REGARDING EMBALMING. (a)
A person violates this chapter if the person:
(1) embalms a body without[:
[(A)] receiving the express written or oral
permission of a person authorized to make funeral arrangements for
the deceased[; or
[(B) making a documented reasonable effort over a
period of at least three hours to obtain the permission];
(2) embalms or attempts to embalm a dead human body
without proper authority, evidence of which includes making an
incision on the body, raising a circulatory vessel of the body, or
injecting a chemical into the body;
(3) allows the presence or participation of a student
for credit or satisfaction of academic requirements during the
embalming of a dead human body without complying with Section
651.407; [or]
(4) places a chemical or substance on or in a dead
human body to disinfect or preserve the body or to restore body
tissues and structures without holding an embalmer's license;
(5) embalms a body without completing and signing a
case report that includes:
(A) the name of the licensed embalmer;
(B) the name of any mortuary student or trainee
license holder who assists the embalmer;
(C) the name of the establishment in which the
embalming was conducted; and
(D) the name of the establishment that received
the embalmed remains;
(6) does not retain for at least two years a record of
an embalming performed by the person that includes the information
required by Subdivision (5); or
(7) provides or uses embalming chemicals for any
purpose other than for legitimate embalming procedures.
(b) Notwithstanding Subsection (a)(4), a trainee
[provisional] license holder does not violate this chapter if the
trainee [provisional] license holder places a chemical or substance
on or in a dead human body to disinfect or preserve the body or to
restore body tissues and structures under the supervision of an
embalmer.
(c) Notwithstanding Subsection (a)(1), a person does not
violate this chapter if the person who embalmed the body:
(1) made a documented reasonable effort over a period
of at least three hours to obtain the authorized person's
permission; and
(2) had no reason to believe the authorized person
would object to the embalming.
SECTION 25. Subchapter J, Chapter 651, Occupations Code, is
amended by adding Section 651.4585 to read as follows:
Sec. 651.4585. UNETHICAL CONDUCT REGARDING INVESTIGATIONS,
DISCIPLINARY ACTIONS, AND COMPLAINTS. A person violates this
chapter if the person attempts to:
(1) influence the outcome of any investigation or
adjudicatory proceeding of or against a license holder by directly
communicating with a member of the commission before the final
disposition of the complaint; or
(2) influence a complainant or witness in a complaint
to:
(A) modify the nature of the complaint; or
(B) withdraw the complaint by means of coercion,
harassment, bribery, force, retaliation, or threat of force or
retaliation against a complainant who filed the complaint in good
faith.
SECTION 26. Section 651.459, Occupations Code, is amended
by amending Subsections (a) and (c) and adding Subsection (d) to
read as follows:
(a) A person violates this chapter if the person:
(1) wilfully makes a false statement on a death
certificate or 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; or
(8) fails in any way to substantially fulfill the
person's contractual obligation in a purchase agreement.
(c) A funeral director [in charge] violates this chapter if
the funeral director exploits or encourages a person's emotional
dependency on the funeral director in the funeral director's
professional capacity as an adviser entrusted with the remains of a
deceased family member [in charge fails to provide a funeral
director or an embalmer for direction or personal supervision for a
first call].
(d) A funeral director violates this chapter if the funeral
director assists a person who is not licensed under this chapter to:
(1) represent that the person is a licensed embalmer
or funeral director; or
(2) engage in funeral directing or embalming.
SECTION 27. Section 651.460, Occupations Code, is amended
to read as follows:
Sec. 651.460. PROHIBITED PRACTICES RELATED TO FAILURE TO
COMPLY WITH OTHER LEGAL REQUIREMENTS. (a) A person violates this
chapter if the person:
(1) arranges for funeral services or merchandise and
fails to provide a customer with a retail price list as required by
Sections 651.405 and 651.4055 or a purchase agreement as required
by Sections [Section] 651.406 and 651.4065;
(2) fails to retain and make available to the
commission, on request, copies of all price lists, written notices,
embalming documents, and memoranda of agreement required by this
chapter for two years after the date of distribution or signing;
(3) violates this chapter, a rule adopted under this
chapter, an order by the commission revoking, suspending, or
probating a license, an order assessing an administrative penalty,
or an agreement to pay an administrative penalty;
(4) allows the use of a dead human body by an embalming
establishment for research or educational purposes without
complying with Section 651.407; or
(5) is associated with a funeral establishment,
whether as an employee, agent, subcontractor, assignee, owner, or
otherwise, and fails to comply with this chapter or a rule adopted
under this chapter.
(b) A funeral establishment violates this chapter if:
(1) the funeral establishment fails to substantially
comply with Section 651.351;
(2) the funeral establishment or a person acting on
behalf of the funeral establishment violates Chapter 193 or 361,
Health and Safety Code, or a rule adopted by the Texas Department of
Health related to vital statistics; or
(3) the funeral establishment, a person acting on
behalf of the funeral establishment, or a person directly or
indirectly connected with the funeral establishment violates
Chapter 154, Finance Code, or a rule adopted under that chapter.
SECTION 28. Section 651.501(a), Occupations Code, is
amended to read as follows:
(a) After a hearing as provided by this subchapter, the
commission may issue a reprimand, assess an administrative penalty,
revoke, suspend, or probate the suspension of a license [or
provisional license], or impose any combination of those penalties
for a violation of this chapter or a rule adopted under this
chapter.
SECTION 29. Sections 651.502(a) and (d), Occupations Code,
are amended to read as follows:
(a) The commission may, before a hearing or a waiver of a
right to a hearing, refuse to issue:
(1) a license [or provisional license] to a person who
has violated this chapter or a rule adopted under this chapter; or
(2) an establishment license to an individual,
partnership, or corporation if the individual, a partner, or an
officer or director of the corporation:
(A) has violated this chapter or a rule adopted
under this chapter;
(B) previously held an establishment license
that was suspended or revoked; or
(C) attempts to avoid a revocation, suspension,
or license refusal by subterfuge or other evasive means.
(d) A person applying for a funeral director's or embalmer's
license who has a criminal conviction described by Section 651.452
may request a hearing on whether the conviction prevents the
commission from issuing a license [or a provisional license]. A
hearing under this subsection must be requested before the person
enters mortuary school and shall be conducted as required by
Section 651.506. A decision made in a hearing under this
subsection, unless modified on appeal, is binding on the commission
and on the person who requests the hearing when the person applies
to the commission for the license [or provisional license].
SECTION 30. Section 651.506(a), Occupations Code, is
amended to read as follows:
(a) A proceeding conducted by the commission relating to the
denial of a license [or provisional license], the suspension or
revocation of a license, the issuance of a reprimand, or the
imposition of an administrative penalty assessed after a hearing as
provided by Section 651.551 and judicial review of the proceeding
are governed by Chapter 2001, Government Code.
SECTION 31. Section 651.602(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person:
(1) acts or holds the person out as a funeral director,
embalmer, or trainee [provisional] license holder without being
licensed under this chapter;
(2) makes a first call in a manner that violates
Section 651.401;
(3) is a funeral director, embalmer, or trainee
[provisional] license holder and engages in a funeral practice that
violates this chapter or a rule adopted under this chapter; [or]
(4) violates Chapter 154, Finance Code, or a rule
adopted under that chapter, regardless of whether the Texas
Department of Banking or another governmental agency takes action
relating to the violation; or
(5) without being licensed under this chapter,
operates a funeral establishment, accepts possession of a dead
human body for final disposition, or implies by word or act that the
person operates a licensed establishment allowed under law to
receive and handle the disposition of human remains.
SECTION 32. The heading to Subchapter N, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER N. REGULATION OF [REGISTRATION REQUIREMENTS:]
CEMETERIES AND CREMATORIES
SECTION 33. Section 651.652(a), Occupations Code, is
amended to read as follows:
(a) This subchapter applies [only] to a cemetery or
crematory [that sells goods or services related to the burial or
final disposition of a body].
SECTION 34. Section 651.653, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (f) to read as
follows:
(a) A person may not conduct a cemetery or crematory
business in this state or sell goods and services related to the
final disposition of a body unless an individual who is the owner or
operator of the cemetery or crematory registers with the
commission.
(f) A person, including a cemetery or funeral
establishment, may not cremate human remains unless the person is
registered as a crematory business under this chapter.
SECTION 35. Section 651.654, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) A crematory located at a perpetual care cemetery is
required to pay the registration fee required under this
subchapter.
SECTION 36. Subchapter N, Chapter 651, Occupations Code, is
amended by adding Sections 651.656-651.660 to read as follows:
Sec. 651.656. AUTHORIZATION REQUIRED. A crematory business
may not cremate human remains until the crematory operator
receives:
(1) an authorization for cremation signed by a medical
examiner or local registrar; and
(2) a signed death certificate.
Sec. 651.657. PERSONS AUTHORIZED TO BE PRESENT AT
CREMATION. Only the following persons may be present in the area
adjacent to a cremation chamber used for the cremation of human
remains or in the chapel area while any human remains are in those
areas before cremation, during cremation, or during removal of the
remains from the chamber:
(1) the family member or person responsible for making
arrangements for the deceased;
(2) a medical examiner or law enforcement officer
engaged in the performance of official duties;
(3) a representative of the commission engaged in the
performance of official duties; or
(4) an employee or representative of the crematory.
Sec. 651.658. CREMATION PROCEDURES. (a) A registered
crematory business may cremate only human remains.
(b) A crematory business may not simultaneously cremate the
human remains of more than one person in the same cremation chamber.
(c) A crematory business must place human remains in a
refrigerated holding facility that is in or adjacent to the
crematory and that has a temperature of not less than 34 and not
more than 40 degrees Fahrenheit until the remains are placed in the
cremation chamber.
(d) A crematory operator may not accept human remains for
cremation unless an identification label is placed on the remains
or on a container holding the remains.
(e) A crematory business shall establish written procedures
to ensure that human remains are properly identified while in the
crematory's custody.
Sec. 651.659. CREMATORY DUTIES REGARDING CREMATED REMAINS.
A crematory business shall:
(1) promptly surrender cremated remains to the family
member or other person responsible for making the arrangements for
final disposition;
(2) maintain a record for at least two years of:
(A) the date a dead human body was received by a
crematory;
(B) the identity of the deceased;
(C) the name and relationship of the deceased to
the person authorizing the cremation;
(D) the date the body was cremated;
(E) the date the cremated remains were released
by the crematory to the person who authorized the cremation or to
the funeral establishment in charge of final disposition of the
remains; and
(F) the date, if applicable, that the unclaimed
remains were interred as provided by Section 711.006, Health and
Safety Code; and
(3) comply with Section 10a, Article 49.25, Code of
Criminal Procedure, before cremating a dead human body within 48
hours of death.
Sec. 651.660. FUNERAL ESTABLISHMENT DUTIES REGARDING
CREMATED REMAINS. (a) A funeral establishment may not possess
cremated remains for more than 90 days. A funeral establishment may
dispose of cremated remains that are not claimed before the 91st day
after the date of receiving the remains by:
(1) delivering the remains as directed by the person
who contracted for the cremation;
(2) sending written notice by registered or certified
mail to the person who contracted for the cremation that the
cremated remains will be interred in a cemetery at the expense of
the person; or
(3) interring the cremated remains in a columbarium or
niche designed to hold cremated remains.
(b) After providing notice under Subsection (a)(2), a
funeral establishment may bill the person who contracted for the
cremation for the reasonable costs of interring the remains.
SECTION 37. Section 711.006(a), Health and Safety Code, is
amended to read as follows:
(a) A crematory may be constructed, established, or
maintained only in a burial park that:
(1) consists of at least 10 acres; and
(2) has [having] a columbarium, plot, or mausoleum
equipped for the interment of cremated remains.
SECTION 38. Section 711.0311(c), Health and Safety Code, is
amended to read as follows:
(c) A person commits an offense if the person acts without
proper legal authority and knowingly:
(1) defaces, vandalizes, injures, or removes a
gravestone, monument, or other structure commemorating a deceased
person or group of persons, whether located within or outside of a
cemetery;
(2) obliterates, vandalizes, or desecrates a park or
other area clearly designated to preserve and perpetuate the memory
of a deceased person or group of persons;
(3) obliterates, vandalizes, or desecrates plants,
trees, shrubs, or flowers located on or around a cemetery; [or]
(4) obliterates, vandalizes, or desecrates a fence,
rail, curb, or other structure of a similar nature intended for the
protection or for the ornamentation of any plot, gravestone,
monument, or other structure of similar character;
(5) jeopardizes the integrity or structural soundness
of a grave or disturbs or moves a grave without complying with
Section 711.004;
(6) buries a deceased person in an occupied grave
without the written notification and consent of the owner; or
(7) harms, damages, or destroys a casket during
burial.
SECTION 39. Sections 651.0011(4), 651.163, 651.256, and
651.501(b), Occupations Code, are repealed.
SECTION 40. (a) The changes in law made by this Act to
Chapter 651, Occupations Code, and Section 711.0311, Health and
Safety Code, apply only to an offense committed on or after the
effective date of this Act. For purposes of this subsection, an
offense is committed before the effective date of this Act if any
element of the offense occurs before that date.
(b) An offense committed before the effective date of this
Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose.
SECTION 41. The changes in law made by this Act regarding
grounds for disciplinary action by the Texas Funeral Service
Commission apply only to conduct occurring on or after the
effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
SECTION 42. Not later than March 1, 2004, the Texas Funeral
Service Commission shall:
(1) adopt the rules necessary to administer Chapter
651, Occupations Code, as amended by this Act; and
(2) establish the standards of professional conduct
required by Section 651.152, Occupations Code, as amended by this
Act.
SECTION 43. (a) The change in law made by this Act to
Chapter 651, Occupations Code, applies only to an application for a
license or registration or for renewal of a license or registration
filed on or after the effective date of this Act. An application
for a license or registration or an application to renew a license
or registration filed before the effective date of this Act is
governed by the law in effect on the date the application was filed,
and the former law is continued in effect for that purpose.
(b) The Texas Funeral Service Commission shall treat a
person who holds a provisional license under Subchapter G, Chapter
651, Occupations Code, immediately before the effective date of
this Act, as if the person holds a trainee license under Subchapter
G, Chapter 651, Occupations Code, as amended by this Act. A person
who holds a provisional license under Subchapter G, Chapter 651,
Occupations Code, on the effective date of this Act is entitled to
issuance of a trainee license on expiration of the provisional
license if the person otherwise meets the requirements for renewal
of a trainee license.
SECTION 44. This Act takes effect September 1, 2003.