81R8362 YDB-D

By: Darby H.B. No. 3401

A BILL TO BE ENTITLED

AN ACT

relating to regulation by the Texas Funeral Service Commission of the disposition of a deceased human body.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 651.001(5), Occupations Code, is amended 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 dead human body ordered by a justice of the peace, a death investigator, local law enforcement, or a medical examiner for the purpose of performing an autopsy or inquest under Chapter 49, Code of Criminal Procedure.

SECTION 2. Section 651.060(b), Occupations Code, is amended to read as follows:

(b) The commission may not contract for outside [employ] legal counsel except as provided by Section 402.0212, Government Code. The commission may employ legal counsel for the commission.

SECTION 3. Subchapter D, Chapter 651, Occupations Code, is amended by adding Sections 651.1521 and 651.1522 to read as follows:

Sec. 651.1521. RULES REGARDING DISPOSITION OF BODY; FUNERAL ARRANGEMENTS. (a) The commission shall adopt rules to establish a maximum period for disposition of a dead human body. The rules must provide an exception to the maximum period when additional time is necessary for the conduct of an autopsy, inquest, or investigation.

(b) The commission shall adopt rules to prohibit funeral or cremation arrangements from being made over the Internet or without the signature of the purchaser.

(c) To protect the public health and safety, the commission shall adopt rules to require a consultant who arranges for:

(1) the disposition of a dead human body by brokering the funeral arrangements to hold a funeral director's license under this chapter; or

(2) the cremation of a dead human body to hold a license under this chapter.

Sec. 651.1522. RULES REGARDING METAL OBJECTS AND IMPLANTS. The commission shall adopt rules on the disposal of metal objects and other implants in a dead human body by funeral establishments or crematories. The rules must comply with applicable state and federal laws.

SECTION 4. Section 651.154, Occupations Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

(a) The commission shall set the following fees in amounts reasonable and necessary to administer this chapter and other laws under the commission's jurisdiction:

(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.

(d) The commission may charge a fee for a check issued to the commission and returned for insufficient funds.

SECTION 5. Section 651.163, Occupations Code, is amended to read as follows:

Sec. 651.163. REQUEST FOR ATTORNEY GENERAL'S OPINION. A request for an opinion under Subchapter C, Chapter 402, Government Code, must be approved by the presiding officer of the commission [commissioners].

SECTION 6. Section 651.202, Occupations Code, is amended by amending Subsections (a), (b), (d), (e), and (f) and adding Subsection (g) to read as follows:

(a) The commission by rule shall establish methods by which the legal next of kin or person authorized to make funeral arrangements under Section 711.002, Health and Safety Code, [consumers] and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission. The commission may provide for that notice:

(1) on each license form, application, or written contract for services of a person regulated under this chapter;

(2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or

(3) in a bill for service provided by a person regulated under this chapter.

(b) The commission shall adopt rules concerning a complaint filed under this section. The rules adopted under this subsection must:

(1) establish procedures regarding the receipt, investigation, and disposition of complaints;

(2) allow for an informal hearing process;

(3) establish a formal hearing process;

(4) ensure that the legal next of kin or person authorized to make funeral arrangements under Section 711.002, Health and Safety Code, and the service recipient have [who filed the complaint has] an opportunity to explain the allegations made in the complaint;

(5) ensure that the license holder who is the subject of the complaint has an opportunity to be heard regarding the complaint; and

(6) establish procedures by which a commission employee may dismiss a complaint, subject to approval by the executive director or the executive director's designee, if the investigation does not reveal a violation.

(d) The commission shall provide to the legal next of kin or person authorized to make funeral arrangements under Section 711.002, Health and Safety Code, the service recipient, [filing the complaint] and [to] each person who is a subject of the complaint a copy of the commission's policies and procedures relating to complaint investigation and resolution, including an explanation of the remedies that are available to the legal next of kin, authorized person, or service recipient under this chapter and information about other appropriate state or local agencies or officials with which the legal next of kin, authorized person, or service recipient may file a complaint.

(e) The commission, at least quarterly until final disposition of the complaint, shall notify the legal next of kin or person authorized to make funeral arrangements under Section 711.002, Health and Safety Code, the service recipient, [filing the complaint] and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.

(f) The legal next of kin or person authorized to make funeral arrangements under Section 711.002, Health and Safety Code, and the service recipient who filed the complaint are [is] entitled to attend any proceeding resulting from the complaint.

(g) A complaint against the holder of a license issued under this chapter must be filed with the commission not later than the second anniversary of the date of the act or omission alleged as the ground for disciplinary action. This subsection does not constitute a defense to an accusation alleging fraud or misrepresentation as a ground for disciplinary action.

SECTION 7. Section 651.253(a), Occupations Code, is amended to read as follows:

(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, except that an applicant for an embalmer's license may hold an associate of applied science degree conferred by an accredited school or college of mortuary science;

(4) unless the applicant holds a reciprocal embalmer's license, have served as a 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 651.255 or 651.256.

SECTION 8. Sections 651.302(a) and (b), Occupations Code, are amended to read as follows:

(a) The commission shall issue a provisional license to practice funeral directing to an applicant who:

(1) is at least 18 years of age;

(2) has completed the educational requirements of Section 651.253 [or is enrolled in an accredited school or college of mortuary science];

(3) takes the written examination given by the commission [is employed by a funeral director to learn funeral directing or embalming under the instruction and supervision of the funeral director];

(4) files an application for a provisional license on a form provided by the commission and verified under oath by the applicant; and

(5) pays any required application or license fee.

(b) The commission shall issue a provisional license to practice embalming to an applicant who:

(1) is at least 18 years of age;

(2) has completed the educational requirements of Section 651.253 [or is enrolled in an accredited school or college of mortuary science];

(3) takes the written examination given by the commission;

(4) files an application for a provisional license;

(5) [(4)] pays any required application or license fee; and

(6) [(5)] complies with the requirements of this chapter and of the commission.

SECTION 9. Section 651.304(a), Occupations Code, is amended to read as follows:

(a) The commission by rule shall define reporting requirements for provisional license holders. On entering employment with a funeral director or embalmer, a provisional license holder shall immediately notify the commission of the name and place of business of the funeral director or embalmer under whom the provisional license holder will train. The funeral director or embalmer shall sign the notification.

SECTION 10. Section 651.351(d), Occupations Code, is 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:

(A) [,] two of which must be full-size and be the least expensive on display; and

(B) three of which may be displayed in a quarter panel display or through the use of computer generated graphics.

SECTION 11. Subchapter I, Chapter 651, Occupations Code, is amended by adding Sections 651.4031 and 651.4032 to read as follows:

Sec. 651.4031. DESIGNATION OF EMBALMER IN CHARGE; EFFECT OF VIOLATION. (a) A commercial embalmers establishment as defined by Section 651.352(a) shall:

(1) designate to the commission an embalmer in charge; and

(2) promptly notify the commission of any change in that designation.

(b) The embalmer in charge is directly responsible for the embalming business of the commercial embalming establishment.

(c) The embalmer in charge is ultimately responsible for compliance with the mortuary laws. The embalmer in charge may be charged with a violation of this chapter if a violation occurs in the commercial embalming establishment.

Sec. 651.4032. DESIGNATION OF OPERATOR IN CHARGE; EFFECT OF VIOLATION. (a) A crematory shall:

(1) designate to the commission an operator in charge; and

(2) promptly notify the commission of any change in that designation.

(b) The operator in charge is directly responsible for the business of the crematory.

(c) The operator in charge is ultimately responsible for compliance with the laws of this state related to crematories. The operator in charge may be charged with a violation of this chapter if a violation occurs in the crematory.

SECTION 12. Section 651.459, Occupations Code, is amended by adding Subsection (d) to read as follows:

(d) In this section, "unprofessional conduct" means conduct prohibited under rules adopted by the state licensing agency for the respective profession.

SECTION 13. Section 651.651, Occupations Code, is amended by adding Subdivision (2-a) to read as follows:

(2-a) "Crematory operator" is the person in charge of the crematory establishment.

SECTION 14. Subchapter N, Chapter 651, Occupations Code, is amended by adding Section 651.655 to read as follows:

Sec. 651.655. CREMATORY OPERATOR'S LICENSE REQUIRED. (a) A person may not own or operate a crematory establishment in this state unless the person holds a crematory operator's license issued by the commission.

(b) The commission by rule shall establish the qualifications necessary for an operator's license, the application procedure, the renewal procedure, the amount of the license fee, and the continuing education requirements for a crematory operator's license.

SECTION 15. Sections 694.001, 694.002, and 694.003, Health and Safety Code, are amended to read as follows:

Sec. 694.001. DUTIES OF TEXAS FUNERAL SERVICE COMMISSION [TEXAS DEPARTMENT OF HEALTH]. The Texas Funeral Service Commission [Department of Health] shall regulate the disposal, transportation, interment, and disinterment of dead bodies to the extent reasonable and necessary to protect public health and safety.

Sec. 694.002. DUTY OF TEXAS FUNERAL SERVICE COMMISSION [COMMISSIONERS COURT] CONCERNING DISPOSITION OF BODY OF DECEASED PAUPERS. (a) The Texas Funeral Service Commission [commissioners court of each county] shall provide for the disposition of the body of a deceased pauper. The Texas Funeral Service Commission [commissioners court] may adopt rules to implement this section.

(b) The Texas Funeral Service Commission [commissioners court] shall consider any information, including the religious affiliation of the deceased pauper, provided by a person listed in Section 711.002(a).

Sec. 694.003. POWER OF TEXAS FUNERAL SERVICE COMMISSION [GOVERNING BODY OF TYPE A GENERAL-LAW MUNICIPALITY] CONCERNING BURIAL. The Texas Funeral Service Commission [governing body of a Type A general-law municipality] may regulate the burial of the dead.

SECTION 16. Section 711.002(a), Health and Safety Code, is amended to read as follows:

(a) Unless a decedent has left directions in writing for the disposition of the decedent's remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent's remains, shall inter the remains, and are liable for the reasonable cost of interment:

(1) the person designated in a written instrument signed by the decedent;

(2) the decedent's surviving or common law spouse;

(3) any one of the decedent's surviving adult children;

(4) either one of the decedent's surviving parents;

(5) any one of the decedent's surviving adult siblings; or

(6) any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.

SECTION 17. Section 716.251(b), Health and Safety Code, is amended to read as follows:

(b) A record must be kept on file at least until the second [fifth] anniversary of the cremation.

SECTION 18. The following sections of the Health and Safety Code are repealed:

(1) Section 651.259(g);

(2) Sections 651.304(b) and (c);

(3) Section 651.5026; and

(4) Section 651.559.

SECTION 19. Not later than March 1, 2010, the Texas Funeral Service Commission shall adopt the rules necessary to implement the changes in law made by this Act.

SECTION 20. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2009.

(b) Sections 651.4031, 651.4032, and 651.655, Occupations Code, as added by this Act, take effect March 1, 2010.