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79R4517 MXM-F
By: Carona S.B. No. 385
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of funeral homes, cemeteries, and
crematories.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 711.004, Health and Safety Code, is
amended by adding Subsection (m) to read as follows:
(m) If a removal of remains is made to correct an error by a
cemetery organization, the cemetery organization is responsible
for all costs involved in the removal and reinterment of the
remains.
SECTION 2. Section 711.012(b), Health and Safety Code, is
amended to read as follows:
(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, 711.0395, 711.041, 711.042, 711.061, and 711.062 relating
to cemeteries that are not perpetual care cemeteries.
SECTION 3. Section 711.038, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) A cemetery organization may not resell the exclusive
right of sepulture in a plot unless the exclusive right of sepulture
has been reacquired by the cemetery organization. A sanction or
other penalty may not be imposed on a cemetery organization that
violates this subsection unless:
(1) the state agency authorized to enforce this
section provides the cemetery organization written notice of the
violation; and
(2) the cemetery organization does not correct the
violation before the 91st day after the date on which the cemetery
organization received the notice.
SECTION 4. Subchapter C, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0395 to read as follows:
Sec. 711.0395. MULTIPLE INTERMENTS IN SAME PLOT. A
cemetery organization may not make more than one interment in a plot
unless each owner of the plot consents to the interment.
SECTION 5. Subchapter A, Chapter 716, Health and Safety
Code, is amended by adding Section 716.0035 to read as follows:
Sec. 716.0035. ACCEPTANCE OF REMAINS. A crematory
establishment may accept deceased human remains for refrigeration
before it receives authorization to cremate the remains under
Subchapter B.
SECTION 6. Section 716.051, Health and Safety Code, is
amended to read as follows:
Sec. 716.051. CREMATION AUTHORIZATION. A [Except as
otherwise provided in this chapter, a] crematory establishment may
not cremate deceased human remains until it receives:
(1) a cremation authorization form signed by:
(A) an authorizing agent; and
(B) a funeral director of the funeral
establishment that contracted to provide for the cremation; and
(2) a death certificate or other death record that
indicates the deceased human remains may be cremated.
SECTION 7. Sections 716.052(a) and (c), Health and Safety
Code, are amended to read as follows:
(a) A cremation authorization form must:
(1) identify the deceased person and the time and date
of death;
(2) include the name and address of the funeral
establishment [director or other person] that contracted to provide
for the cremation;
(3) identify the authorizing agent and the
relationship between the authorizing agent and the deceased person;
(4) include a statement by the authorizing agent that:
(A) the authorizing agent has the right to
authorize the cremation of the deceased person and is not aware of
any person with a superior or equal priority right; or
(B) if another person has an equal priority right
to authorize cremation, the authorizing agent:
(i) has made all reasonable efforts but
failed to contact that person and believes the person would not
object to the cremation; and
(ii) agrees to indemnify and hold harmless
the funeral establishment and the crematory establishment for any
liability arising from performing the cremation without the
person's authorization;
(5) authorize the crematory establishment to cremate
the human remains;
(6) declare that to their knowledge the human remains
do not contain a pacemaker or any other material or implant that may
potentially be hazardous or cause damage to the cremation chamber
or the person performing the cremation;
(7) include the name of the funeral establishment or
other person authorized to receive the cremated remains from the
crematory establishment;
(8) detail the manner of permanent disposition of the
cremated remains, if known;
(9) list any items of value delivered to the crematory
establishment along with the human remains and include instructions
on the handling of the items;
(10) specify whether the authorizing agent has
arranged for a viewing of the deceased person or service with the
deceased person present before cremation and the date and time of
the viewing or service; and
(11) include the signature of the authorizing agent
attesting to the accuracy of all representations contained on the
cremation authorization form.
(c) A funeral director [or other representative] of a
funeral establishment that contracts to provide for the cremation
of deceased human remains must sign the cremation authorization
form.
SECTION 8. Section 716.102(a), Health and Safety Code, is
amended to read as follows:
(a) A crematory establishment shall furnish to a
representative of a funeral establishment who delivers deceased
human remains to the crematory establishment a receipt that
includes:
(1) the signature and printed name of the
representative who delivered the remains;
(2) the date and time of the delivery;
(3) the type of cremation container in which the
remains were delivered;
(4) the name of the funeral establishment [or other
entity] that contracted to provide for the cremation;
(5) the name of the individual who received the human
remains on behalf of the crematory; and
(6) the name of the deceased person.
SECTION 9. Section 716.103, Health and Safety Code, is
amended to read as follows:
Sec. 716.103. IDENTIFICATION RESPONSIBILITY OF CREMATORY.
(a) A crematory establishment shall place on the exterior of a
cremation container a label with the deceased person's name as
provided by the authorizing agent unless the crematory
establishment knows the name is incorrect.
(b) A crematory establishment shall place, with the
cremated remains, in the temporary container, urn, or other
permanent container, a permanent metal identification disc,
bracelet, or other item that can be used to identify the deceased
person.
SECTION 10. Section 716.156(b), Health and Safety Code, is
amended to read as follows:
(b) A crematory establishment shall furnish to a person who
receives the cremated remains a receipt that includes:
(1) the date and time of release;
(2) the printed name of the person who receives the
cremated remains;
(3) the name of the funeral establishment that [or
other entity who] contracted to provide for the cremation;
(4) the printed name of the person who released the
cremated remains on behalf of the crematory establishment; and
(5) the name of the deceased person.
SECTION 11. Section 651.001(15), Occupations Code, is
amended to read as follows:
(15) "Purchase agreement" means a written statement
that itemizes the cost of funeral services or merchandise selected
by a customer from the general [retail] price list.
SECTION 12. 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 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 13. Section 651.156, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) A subpoena or subpoena duces tecum issued under this
section is not effective unless it is issued in compliance with:
(1) state and federal law; and
(2) commission rules adopted under Subsection (c).
SECTION 14. Section 651.165(d), Health and Safety Code, is
amended to read as follows:
(d) A person whose license has been expired for one year or
more may [not] renew the license by:
(1) retaking and passing the applicable examination;
(2) paying any applicable fees, including a renewal
fee that is equal to two times the normally required renewal fee;
and
(3) completing any continuing education required
under Section 651.266. [The person may obtain a new license by
complying with the requirements and procedures, including the
examination requirements, for obtaining an original license.]
SECTION 15. Subchapter D, Chapter 651, Occupations Code, is
amended by adding Section 651.1655 to read as follows:
Sec. 651.1655. REINSTATEMENT OF SUSPENDED LICENSE. A
person whose license has been suspended may renew the license by
paying to the commission a renewal fee that is equal to two times
the normally required renewal fee.
SECTION 16. The heading to Section 651.267, Occupations
Code, is amended to read as follows:
Sec. 651.267. REISSUANCE OF REVOKED LICENSE.
SECTION 17. Sections 651.267(a) and (d), Occupations Code,
are amended to read as follows:
(a) On application, the commission may reissue a 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 third [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:
(1) retakes and passes the applicable examination;
(2) pays a fee that is equal to two times the normally
required renewal fee; and
(3) satisfies any other commission requirements,
including any continuing education requirements under Section
651.266.
SECTION 18. Section 651.304(e), Occupations Code, is
amended to read as follows:
(e) The commission by rule shall prescribe reporting
requirements for provisional license holders. The commission shall
furnish report forms to be used by a provisional license holder.
SECTION 19. Sections 651.351(d) and (f), Occupations Code,
are amended to read as follows:
(d) A funeral establishment must:
(1) meet the building, fire safety, and health
standards and health ordinances of this state and of the
municipality in which the establishment is located;
(2) be located at a fixed place that is not tax-exempt
property or a cemetery;
(3) include facilities in which funeral services may
be conducted;
(4) have access to rolling stock consisting of at
least one motor hearse;
(5) include a preparation room containing the
facilities, equipment, and supplies required by commission rule to
ensure the provision of adequate embalming services;
(6) include other facilities as necessary to comply
with the sanitary codes of this state and of the municipality in
which the room is located; and
(7) include a display containing sufficient
merchandise to permit reasonable selection, including at least five
adult caskets, two of which must be full-size and displayed in a
casket showroom.
(f) The least expensive casket displayed under Subsection
(d)(7) must be a full-size casket displayed in the same general
manner as the other full-size caskets are displayed. The three
adult caskets that are not required to be full-size under
Subsection (d)(7) may be displayed:
(1) in a partial panel display; or
(2) by video or brochure, online, or in any other
manner.
SECTION 20. Section 651.353(d), Occupations Code, is
amended to read as follows:
(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; or
(5) a perpetual care cemetery.
SECTION 21. Sections 651.354(a), (c), and (d), Occupations
Code, are amended to read as follows:
(a) The commission shall mail written notice to a cemetery
or funeral establishment of the impending expiration of the
establishment's license not later than the 30th day before the
expiration date of the license. The [Except as provided by
Subsection (d), the] notice must state that:
(1) to renew the license, the cemetery or funeral
establishment must pay the renewal fee not later than the license
expiration date [September 30]; and
(2) the license is automatically renewed on receipt of
the 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
renewal fee and the late payment penalty are paid [establishment is
issued a new license in the manner provided for issuing an original
license].
(d) This section does not apply to [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 22. Subchapter H, Chapter 651, Occupations Code, is
amended by adding Section 651.355 to read as follows:
Sec. 651.355. PERPETUAL CARE CEMETERY REGISTRATION. (a)
The Texas Department of Banking shall provide annually to the
commission a list of perpetual care cemeteries, including the
address and other contact information for each cemetery. The
commission shall annually register each perpetual care cemetery on
that list.
(b) A perpetual care cemetery is not required to pay a
registration fee or renewal fee under this chapter.
SECTION 23. Section 651.405, Occupations Code, is amended
to read as follows:
Sec. 651.405. GENERAL [RETAIL] PRICE LIST; FUNERAL
ESTABLISHMENT. (a) "General [Retail] price list" means a printed
or typewritten list of the retail price of items or services
provided by a funeral establishment and must include the retail
price of:
(1) transferring a deceased person to the funeral
establishment;
(2) embalming;
(3) using a funeral establishment facility for viewing
the deceased;
(4) using a funeral establishment facility for funeral
services;
(5) using a hearse;
(6) using a limousine;
(7) caskets, which may be provided at a range of retail
prices;
(8) outer enclosures, which may be provided at a range
of retail prices; and
(9) the basic services of the funeral director and
other [itemized services provided by the] funeral establishment
staff.
(b) A general [retail] price list must contain the name,
address, and telephone number of the funeral establishment, the
effective date for the stated prices, and the following printed
notice: "The goods and services shown below are those we can
provide to our customers. You may choose only the items you desire.
However, any funeral arrangements you select will include a charge
for our basic services and overhead. If legal or other requirements
mean you must buy any items you did not specifically ask for, we
will explain the reason in writing on the statement we provide
describing the funeral goods and services you selected."
SECTION 24. Section 651.4055, Occupations Code, is amended
to read as follows:
Sec. 651.4055. GENERAL [RETAIL] PRICE LIST; CEMETERY OR
CREMATORY. (a) In this section, "general [retail] price list"
means a printed or typewritten list of the retail price of items or
services provided by a cemetery or crematory.
(b) A general [retail] price list must contain:
(1) the name, address, and telephone number of the
cemetery or crematory;
(2) the effective date for the stated prices;
(3) notice required by Subsection (c); and
(4) any other items that the commission may by rule
require.
(c) The general [retail] price list must contain the
following printed notice: "The goods and services shown below are
those we can provide to our customers. You may choose only the
items you desire. If legal or other requirements mean you must buy
any items you did not specifically ask for, we will explain the
reason in writing on the statement we provide describing the goods
and services you selected."
SECTION 25. Sections 651.406(a) and (d), Occupations Code,
are amended to read as follows:
(a) A purchase agreement must state:
(1) the name, address, and telephone number of the
funeral establishment;
(2) the amount paid or owed to another person by the
funeral establishment on behalf of the customer for a cash advance
item and each fee charged the customer for a cash advance item [the
cost of advancing funds or becoming indebted to another person on
behalf of the customer];
(3) the printed notice required by Subsection (b);
(4) the name, mailing address, and telephone number of
the commission; and
(5) a statement that complaints may be directed to the
commission.
(d) If the customer selects a package arrangement based on
unit pricing, the itemization requirement is satisfied by providing
a purchase agreement that discloses the total amount of [itemizes]
the discount provided by the package arrangement.
SECTION 26. Sections 651.4065(a) and (d), Occupations Code,
are amended to read as follows:
(a) A purchase agreement must state:
(1) the name, address, and telephone number of the
cemetery or crematory;
(2) the amount paid or owed to another person by the
cemetery or crematory on behalf of the customer for a cash advance
item and each fee charged the customer for a cash advance item [the
cost of advancing funds or becoming indebted to another person on
behalf of the customer];
(3) the printed notice required by Subsection (b);
(4) the name, mailing address, and telephone number of
the commission;
(5) a statement that complaints may be directed to the
commission; and
(6) any other items that the commission may by rule
require.
(d) If the customer selects a package arrangement based on
unit pricing, the itemization requirement is satisfied by providing
a purchase agreement that discloses the total amount of [itemizes]
the discount provided by the package arrangement.
SECTION 27. Section 651.454(a), Occupations Code, is
amended to read as follows:
(a) A person violates this chapter if the person, in
arranging for funeral services or merchandise, fails to:
(1) provide a prospective customer at the beginning of
the arrangement process with a copy of the brochure required by
Section 651.404;
(2) provide to a prospective customer inquiring in
person about any funeral service or merchandise a general [retail]
price list for the prospective customer to keep;
(3) explain to a prospective customer that a
contractual agreement for funeral services or merchandise may not
be entered into before a general [retail] price list is provided to
the prospective customer; or
(4) provide general price information by telephone
within a reasonable time.
SECTION 28. Subchapter J, Chapter 651, Occupations Code, is
amended by adding Section 651.461 to read as follows:
Sec. 651.461. DEFENSE TO VIOLATION. A person licensed
under this chapter does not violate this chapter by engaging in
conduct regarding funeral arrangements under the direction of a
person who:
(1) represents to the license holder that the person
is authorized to make funeral arrangements for the deceased; and
(2) provides written directions to the license holder
in the manner provided by Section 711.002, Health and Safety Code.
SECTION 29. Section 651.507(a), Occupations Code, is
amended to read as follows:
(a) The commission or an administrative law judge employed
by the State Office of Administrative Hearings shall review each
disciplinary proceeding to determine whether the license holder has
previously violated [committed] the same provision of this chapter
or rule adopted under this chapter [type of violation on one or more
previous occasions]. If it is determined that the license holder
has previously violated [committed] the same provision of this
chapter or rule adopted under this chapter [type of violation], the
commission or administrative law judge shall impose a disciplinary
action that is more severe than that imposed on the previous
occasion.
SECTION 30. Section 651.658(d), Occupations Code, is
amended to read as follows:
(d) If the license is expired for longer than 30 days, the
crematory establishment may not operate a crematory until the
renewal fee and late payment penalty are paid [A person may not
renew a license that has been expired for more than 30 days. A
person holding a license that has been expired for more than 30 days
must apply for a new license as required by this subchapter to
conduct a crematory business].
SECTION 31. The following are repealed:
(1) Section 716.004(b), Health and Safety Code; and
(2) Sections 651.304(b) and (c), 651.651(3), and
651.656(d), Occupations Code.
SECTION 32. Section 711.004(m), Health and Safety Code, as
added by this Act, applies only to costs incurred as a result of an
error that occurs on or after the effective date of this Act. Costs
incurred as a result of an error that occurred before the effective
date of this Act is governed by the law in effect at the time the
error occurred, and the former law is continued in effect for that
purpose.
SECTION 33. Sections 651.165(d), 651.354, and 651.658(d),
Occupations Code, as amended by this Act, apply only to a license
that expires on or after the effective date of this Act. A license
that expired before the effective date of this Act is governed by
the law in effect at the time the license expired, and the former
law is continued in effect for that purpose.
SECTION 34. Section 651.1655, Occupations Code, as added by
this Act, applies only to a license suspended on or after the
effective date of this Act. A license suspended before the
effective date of this Act is governed by the law in effect at the
time the license was suspended, and the former law is continued in
effect for that purpose.
SECTION 35. Section 651.267, Occupations Code, as amended
by this Act, applies only to a license revoked on or after the
effective date of this Act. A license revoked before the effective
date of this Act is governed by the law in effect at the time the
license was revoked, and the former law is continued in effect for
that purpose.
SECTION 36. Not later than January 1, 2006, the Texas
Department of Banking shall provide the initial list of perpetual
care cemeteries to the Texas Funeral Service Commission as required
by Section 651.355, Occupations Code, as added by this Act.
SECTION 37. Sections 651.406 and 651.4065, Occupations
Code, as amended by this Act, apply only to a purchase agreement
entered into on or after the effective date of this Act. A purchase
agreement entered into before the effective date of this Act is
governed by the law in effect on the date the agreement was entered
into, and the former law is continued in effect for that purpose.
SECTION 38. This Act takes effect September 1, 2005.