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|
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A BILL TO BE ENTITLED
|
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AN ACT
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relating to the regulation of funeral homes, cemeteries, and |
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crematories; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter F, Chapter 154, Finance Code, is |
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amended by adding Section 154.265 to read as follows: |
|
Sec. 154.265. DEFAULT UNDER CERTAIN CONTRACTS. (a) |
|
Notwithstanding any other law, the purchaser of a trust-funded |
|
prepaid funeral benefits contract may not be considered in default |
|
under the contract if: |
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(1) the purchaser has paid at least 85 percent of the |
|
contract price; and |
|
(2) the purchaser was unable to pay due to extenuating |
|
financial circumstances. |
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(b) A funeral provider is not required to provide funeral |
|
merchandise or services under a trust-funded prepaid funeral |
|
benefits contract unless any remaining balance, including any |
|
applicable finance charge, owed under the contract is paid before |
|
the funeral service or the funeral provider agrees in writing to |
|
another payment arrangement. |
|
(c) This section does not affect a purchaser's right to |
|
cancel a trust-funded prepaid funeral benefits contract. |
|
SECTION 2. Section 711.008(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) Subsection (a) does not apply to: |
|
(1) a cemetery heretofore established and operating; |
|
(2) the establishment and use of a columbarium by an |
|
organized religious society or sect that is exempt from income |
|
taxation under Section 501(a), Internal Revenue Code of 1986, by |
|
being listed under Section 501(c)(3) of that code, as part of or |
|
attached to the principal church building owned by the society or |
|
sect; |
|
(3) the establishment and use of a columbarium: |
|
(A) in a municipality with a population of at |
|
least 1.8 million; and |
|
(B) by an organized religious society or sect, |
|
that is exempt from income taxation under Section 501(a), Internal |
|
Revenue Code of 1986, by being listed under Section 501(c)(3) of |
|
that code, on land that: |
|
(i) is owned by the society or sect; and |
|
(ii) is part of the campus on which an |
|
existing principal church building is located; [or] |
|
(4) the establishment and use of a columbarium on the |
|
campus of a private or independent institution of higher education, |
|
as defined by Section 61.003, Education Code, that is wholly or |
|
substantially controlled, managed, owned, or supported by or |
|
otherwise affiliated with an organized religious society or sect |
|
that is exempt from income taxation under Section 501(a), Internal |
|
Revenue Code of 1986, by being listed under Section 501(c)(3) of |
|
that code, if a place of worship is located on the campus; or |
|
(5) the establishment and use of a mausoleum that is: |
|
(A) constructed beneath the principal church |
|
building owned by an organized religious society or sect that: |
|
(i) is exempt from income taxation under |
|
Section 501(a), Internal Revenue Code of 1986, by being listed |
|
under Section 501(c)(3) of that code; and |
|
(ii) has recognized religious traditions |
|
and practices of interring the remains of ordained clergy in or |
|
below the principal church building; and |
|
(B) used only for the interment of the remains of |
|
ordained clergy of that organized religious society or sect. |
|
SECTION 3. Section 711.012(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) The Texas Funeral Service Commission may enforce |
|
Section 711.052 and 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 4. 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 5. 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 6. Section 711.041, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 711.041. ACCESS TO CEMETERY. (a) Any person who |
|
wishes to visit a cemetery or private burial grounds for which no |
|
public ingress or egress is available shall have the right to |
|
reasonable ingress and egress for the purpose of visiting the |
|
cemetery or private burial grounds. This right of access extends |
|
only to visitation during the [reasonable] hours determined by the |
|
owner or owners of the lands under Subsection (b) or at a reasonable |
|
time as provided by Subsection (c) and only for purposes usually |
|
associated with cemetery visits. |
|
(b) The owner or owners of the lands surrounding the |
|
cemetery or private burial grounds may designate the routes of |
|
reasonable ingress and egress and reasonable hours of availability. |
|
(c) At a time other than the time provided by Subsection |
|
(b), the owner or owners of the lands surrounding a cemetery or |
|
private burial grounds must allow a person to enter and exit the |
|
owner's land for the purpose of visiting the cemetery or private |
|
burial grounds if: |
|
(1) the person provides written notice to the owner or |
|
owners of the lands surrounding the cemetery or private burial |
|
grounds of the person's visit; |
|
(2) the person provides the notice required by |
|
Subdivision (1) not later than the 14th day before the date the |
|
person wishes to visit the cemetery; and |
|
(3) the time of the visit is reasonable. |
|
SECTION 7. Subchapter D, Chapter 711, Health and Safety |
|
Code, is amended by adding Section 711.0515 to read as follows: |
|
Sec. 711.0515. INJUNCTIVE RELIEF. In addition to bringing |
|
an action under Section 711.051, the attorney general at the |
|
request of the Texas Funeral Service Commission may bring an action |
|
for injunctive relief to enforce this chapter or a rule or order |
|
adopted by the commission under this chapter. |
|
SECTION 8. Subchapter D, Chapter 711, Health and Safety |
|
Code, is amended by adding Section 711.0521 to read as follows: |
|
Sec. 711.0521. ACCESS TO CEMETERIES; CRIMINAL PENALTIES. |
|
(a) A person who is an individual, firm, association, corporation, |
|
or municipality, or an officer, agent, or employee of an |
|
individual, firm, association, corporation, or municipality, |
|
commits an offense if the person interferes with a person's |
|
reasonable right to ingress and egress under Section 711.041. |
|
(b) An offense under this section is a Class C misdemeanor. |
|
SECTION 9. 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 10. Subchapter B, Chapter 716, Health and Safety |
|
Code, is amended by adding Section 716.054 to read as follows: |
|
Sec. 716.054. EXCEPTION; WRITTEN DIRECTIONS. (a) This |
|
section applies and a cremation authorization form is not required |
|
under this chapter if: |
|
(1) the deceased person has left written directions |
|
for the disposition by cremation of the deceased person's human |
|
remains as provided by Section 711.002(g); and |
|
(2) the authorizing agent refuses for any reason to |
|
sign a cremation authorization form. |
|
(b) The crematory establishment may cremate the deceased |
|
person's human remains without receipt of a cremation authorization |
|
form signed by the authorizing agent if: |
|
(1) cremation costs are paid; and |
|
(2) the authorizing agent provides positive written |
|
identification that the human remains to be cremated are the human |
|
remains of the deceased person. |
|
SECTION 11. 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 12. Section 716.104(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) Except as provided by Section 716.054, a [A] funeral |
|
director or funeral establishment shall provide a signed written |
|
statement to a crematory establishment that the human remains |
|
delivered to the crematory establishment were positively |
|
identified as the deceased person listed on the cremation |
|
authorization form by the authorizing agent or a representative of |
|
the authorizing agent delegated as provided by Section 716.053. |
|
SECTION 13. Section 716.152(d), Health and Safety Code, is |
|
amended to read as follows: |
|
(d) To the extent practicable, the crematory establishment |
|
shall remove all recoverable cremation residue from the cremation |
|
chamber following cremation and pulverize any bone fragments to a |
|
particle size of one-eighth inch or less as necessary. The |
|
crematory establishment shall remove and dispose of any other |
|
material included with the residue. |
|
SECTION 14. Section 716.156(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) A crematory establishment shall: |
|
(1) release the cremated remains to a representative |
|
of the funeral establishment that delivered the deceased human |
|
remains to the crematory establishment; |
|
(2) release the cremated remains to the person |
|
authorized to receive the remains on the cremation authorization |
|
form; [or] |
|
(3) ship the remains to the shipping address provided |
|
by the authorizing agent on the cremation authorization form not |
|
later than the 30th day following the date of cremation; or |
|
(4) release the cremated remains according to written |
|
directions for the disposition by cremation of the deceased |
|
person's human remains as provided by Section 711.002(g). |
|
SECTION 15. Subchapter E, Chapter 716, Health and Safety |
|
Code, is amended by adding Section 716.204 to read as follows: |
|
Sec. 716.204. IMMUNITY FROM CRIMINAL AND CIVIL LIABILITY; |
|
WRITTEN DIRECTIONS. (a) In this section: |
|
(1) "Cemetery organization" has the meaning assigned |
|
by Section 711.001. |
|
(2) "Embalmer" has the meaning assigned by Section |
|
651.001, Occupations Code. |
|
(b) If Section 716.054(a) applies, a cemetery organization, |
|
a business operating a crematory or columbarium, a funeral |
|
director, an embalmer, or a funeral establishment is not criminally |
|
liable or liable in a civil action for: |
|
(1) cremating the human remains of a deceased person; |
|
or |
|
(2) carrying out the written directions of the |
|
deceased person. |
|
SECTION 16. Section 716.304, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 716.304. SCATTERING REMAINS. A person may scatter |
|
cremated remains over uninhabited public land, over a public |
|
waterway or sea, or on the private property of a consenting owner[,
|
|
if the remains are reduced to a particle size of one-eighth inch or
|
|
less]. Unless the container is biodegradable, the cremated remains |
|
must be removed from the container before being scattered. |
|
SECTION 17. Section 716.351(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) A person commits an offense if the person: |
|
(1) cremates human remains without receipt of: |
|
(A) a cremation authorization form signed by an |
|
authorizing agent; or |
|
(B) written directions for the disposition by |
|
cremation of the deceased person's human remains as provided in |
|
Section 711.002(g); |
|
(2) signs a cremation authorization form with actual |
|
knowledge that the form contains false or incorrect information; or |
|
(3) represents to the public that the person may |
|
cremate human remains without being licensed as provided by |
|
Subchapter N, Chapter 651, Occupations Code. |
|
SECTION 18. 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 19. 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 20. Section 651.165(d), Occupations 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 21. 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 in addition to any penalty |
|
assessed by the commission. |
|
SECTION 22. The heading to Section 651.267, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 651.267. REISSUANCE OF REVOKED LICENSE. |
|
SECTION 23. 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 24. 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 25. Section 651.351, Occupations Code, is amended |
|
by amending Subsections (d) and (f) and adding Subsection (i) 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) except as provided by Subsection (i), 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. |
|
(i) Subsection (d)(2) does not apply to a funeral |
|
establishment located on tax-exempt property of an accredited |
|
postsecondary educational institution that is operated in |
|
connection with an accredited educational program for funeral |
|
services. |
|
SECTION 26. 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 27. 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 28. 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 29. 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 30. 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 31. 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 32. 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 33. Section 154.265, Finance Code, as added by this |
|
Act, applies only to a contract that is entered into on or after the |
|
effective date of this Act. A contract entered into before the |
|
effective date of this Act is governed by the law in effect on the |
|
date the contract was entered into, and the former law is continued |
|
in effect for that purpose. |
|
SECTION 34. The change in law made by Section 711.0521, |
|
Health and Safety Code, as added by this Act, applies only to an |
|
offense committed on or after the effective date of this Act. An |
|
offense committed before the effective date of this Act is covered |
|
by the law in effect when the offense was committed, and the former |
|
law is continued in effect for that purpose. For purposes of this |
|
section, an offense was committed before the effective date of this |
|
Act if any element of the offense was committed before that date. |
|
SECTION 35. 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 36. 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 37. 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 38. Not later than January 1, 2010, 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 39. This Act takes effect September 1, 2009. |