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A BILL TO BE ENTITLED
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AN ACT
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relating to regulation by the Texas Funeral Service Commission of |
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the disposition of a deceased human body. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 651.001(5), Occupations Code, is amended |
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to read as follows: |
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(5) "First call" means the beginning of the |
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relationship and duty of a funeral director to take charge of a dead |
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human body and have the body prepared for burial or disposition by |
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embalming, cremation, or another method. The term does not |
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include: |
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(A) an ambulance call if the person dispatching |
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the ambulance does not know whether a dead human body is to be |
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picked up; or |
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(B) the removal of a dead human body ordered by a |
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justice of the peace, a death investigator, local law enforcement, |
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or a medical examiner for the purpose of performing an autopsy or |
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inquest under Chapter 49, Code of Criminal Procedure. |
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SECTION 2. Section 651.060(b), Occupations Code, is |
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amended to read as follows: |
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(b) The commission may not contract for outside [employ] |
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legal counsel except as provided by Section 402.0212, Government |
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Code. The commission may employ legal counsel for the commission. |
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SECTION 3. Subchapter D, Chapter 651, Occupations Code, is |
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amended by adding Sections 651.1521 and 651.1522 to read as |
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follows: |
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Sec. 651.1521. RULES REGARDING DISPOSITION OF BODY; FUNERAL |
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ARRANGEMENTS. (a) The commission shall adopt rules to establish a |
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maximum period for disposition of a dead human body. The rules must |
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provide an exception to the maximum period when additional time is |
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necessary for the conduct of an autopsy, inquest, or investigation. |
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(b) The commission shall adopt rules to prohibit funeral or |
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cremation arrangements from being made over the Internet or without |
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the signature of the purchaser. |
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(c) To protect the public health and safety, the commission |
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shall adopt rules to require a consultant who arranges for: |
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(1) the disposition of a dead human body by brokering |
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the funeral arrangements to hold a funeral director's license under |
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this chapter; or |
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(2) the cremation of a dead human body to hold a |
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license under this chapter. |
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Sec. 651.1522. RULES REGARDING METAL OBJECTS AND IMPLANTS. |
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The commission shall adopt rules on the disposal of metal objects |
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and other implants in a dead human body by funeral establishments or |
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crematories. The rules must comply with applicable state and |
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federal laws. |
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SECTION 4. Section 651.154, Occupations Code, is amended by |
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amending Subsection (a) and adding Subsection (d) to read as |
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follows: |
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(a) The commission shall set the following fees in amounts |
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reasonable and necessary to administer this chapter and other laws |
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under the commission's jurisdiction: |
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(1) the funeral director's and embalmer's application |
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fee, license fee, duplicate license fee, and reciprocal license |
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fee; and |
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(2) the cemetery, crematory, or funeral establishment |
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license fee, renewal fee, and late renewal penalty. |
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(d) The commission may charge a fee for a check issued to the |
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commission and returned for insufficient funds. |
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SECTION 5. Section 651.163, Occupations Code, is amended to |
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read as follows: |
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Sec. 651.163. REQUEST FOR ATTORNEY GENERAL'S OPINION. A |
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request for an opinion under Subchapter C, Chapter 402, Government |
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Code, must be approved by the presiding officer of the commission |
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[commissioners]. |
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SECTION 6. Section 651.202, Occupations Code, is amended by |
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amending Subsections (a), (b), (d), (e), and (f) and adding |
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Subsection (g) to read as follows: |
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(a) The commission by rule shall establish methods by which |
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the legal next of kin or person authorized to make funeral |
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arrangements under Section 711.002, Health and Safety Code, |
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[consumers] and service recipients are notified of the name, |
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mailing address, and telephone number of the commission for the |
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purpose of directing complaints to the commission. The commission |
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may provide for that notice: |
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(1) on each license form, application, or written |
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contract for services of a person regulated under this chapter; |
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(2) on a sign prominently displayed in the place of |
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business of each person regulated under this chapter; or |
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(3) in a bill for service provided by a person |
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regulated under this chapter. |
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(b) The commission shall adopt rules concerning a complaint |
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filed under this section. The rules adopted under this subsection |
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must: |
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(1) establish procedures regarding the receipt, |
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investigation, and disposition of complaints; |
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(2) allow for an informal hearing process; |
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(3) establish a formal hearing process; |
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(4) ensure that the legal next of kin or person |
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authorized to make funeral arrangements under Section 711.002, |
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Health and Safety Code, and the service recipient have [who filed
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the complaint has] an opportunity to explain the allegations made |
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in the complaint; |
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(5) ensure that the license holder who is the subject |
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of the complaint has an opportunity to be heard regarding the |
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complaint; and |
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(6) establish procedures by which a commission |
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employee may dismiss a complaint, subject to approval by the |
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executive director or the executive director's designee, if the |
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investigation does not reveal a violation. |
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(d) The commission shall provide to the legal next of kin or |
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person authorized to make funeral arrangements under Section |
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711.002, Health and Safety Code, the service recipient, [filing the
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complaint] and [to] each person who is a subject of the complaint a |
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copy of the commission's policies and procedures relating to |
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complaint investigation and resolution, including an explanation |
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of the remedies that are available to the legal next of kin, |
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authorized person, or service recipient under this chapter and |
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information about other appropriate state or local agencies or |
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officials with which the legal next of kin, authorized person, or |
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service recipient may file a complaint. |
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(e) The commission, at least quarterly until final |
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disposition of the complaint, shall notify the legal next of kin or |
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person authorized to make funeral arrangements under Section |
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711.002, Health and Safety Code, the service recipient, [filing the
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complaint] and each person who is a subject of the complaint of the |
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status of the investigation unless the notice would jeopardize an |
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undercover investigation. |
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(f) The legal next of kin or person authorized to make |
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funeral arrangements under Section 711.002, Health and Safety Code, |
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and the service recipient who filed the complaint are [is] entitled |
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to attend any proceeding resulting from the complaint. |
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(g) A complaint against the holder of a license issued under |
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this chapter must be filed with the commission not later than the |
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second anniversary of the date of the act or omission alleged as the |
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ground for disciplinary action. This subsection does not |
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constitute a defense to an accusation alleging fraud or |
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misrepresentation as a ground for disciplinary action. |
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SECTION 7. Section 651.253(a), Occupations Code, is amended |
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to read as follows: |
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(a) To be eligible for a funeral director's license or an |
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embalmer's license, an applicant must: |
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(1) be at least 18 years of age; |
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(2) have graduated from an accredited high school or |
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passed an examination prescribed by the Texas Education Agency; |
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(3) have graduated from an accredited school or |
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college of mortuary science, except that an applicant for an |
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embalmer's license may hold an associate of applied science degree |
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conferred by an accredited school or college of mortuary science; |
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(4) unless the applicant holds a reciprocal embalmer's |
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license, have served as a provisional license holder for not less |
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than one year under the personal supervision and instruction of a |
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funeral director or embalmer, as applicable; and |
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(5) have successfully completed the applicable |
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written examination described by Section 651.255 or 651.256. |
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SECTION 8. Sections 651.302(a) and (b), Occupations Code, |
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are amended to read as follows: |
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(a) The commission shall issue a provisional license to |
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practice funeral directing to an applicant who: |
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(1) is at least 18 years of age; |
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(2) has completed the educational requirements of |
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Section 651.253 [or is enrolled in an accredited school or college
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of mortuary science]; |
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(3) takes the written examination given by the |
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commission [is employed by a funeral director to learn funeral
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directing or embalming under the instruction and supervision of the
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funeral director]; |
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(4) files an application for a provisional license on |
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a form provided by the commission and verified under oath by the |
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applicant; and |
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(5) pays any required application or license fee. |
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(b) The commission shall issue a provisional license to |
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practice embalming to an applicant who: |
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(1) is at least 18 years of age; |
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(2) has completed the educational requirements of |
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Section 651.253 [or is enrolled in an accredited school or college
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of mortuary science]; |
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(3) takes the written examination given by the |
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commission; |
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(4) files an application for a provisional license; |
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(5) [(4)] pays any required application or license |
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fee; and |
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(6) [(5)] complies with the requirements of this |
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chapter and of the commission. |
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SECTION 9. Section 651.304(a), Occupations Code, is amended |
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to read as follows: |
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(a) The commission by rule shall define reporting |
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requirements for provisional license holders. On entering |
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employment with a funeral director or embalmer, a provisional |
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license holder shall immediately notify the commission of the name |
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and place of business of the funeral director or embalmer under whom |
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the provisional license holder will train. The funeral director or |
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embalmer shall sign the notification. |
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SECTION 10. Section 651.351(d), Occupations Code, is |
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amended to read as follows: |
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(d) A funeral establishment must: |
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(1) meet the building, fire safety, and health |
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standards and health ordinances of this state and of the |
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municipality in which the establishment is located; |
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(2) be located at a fixed place that is not tax-exempt |
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property or a cemetery; |
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(3) include facilities in which funeral services may |
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be conducted; |
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(4) have access to rolling stock consisting of at |
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least one motor hearse; |
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(5) include a preparation room containing the |
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facilities, equipment, and supplies required by commission rule to |
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ensure the provision of adequate embalming services; |
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(6) include other facilities as necessary to comply |
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with the sanitary codes of this state and of the municipality in |
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which the room is located; and |
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(7) include a display containing sufficient |
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merchandise to permit reasonable selection, including at least five |
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adult caskets: |
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(A) [,] two of which must be full-size and be the |
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least expensive on display; and |
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(B) three of which may be displayed in a quarter |
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panel display or through the use of computer generated graphics. |
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SECTION 11. Subchapter I, Chapter 651, Occupations Code, is |
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amended by adding Sections 651.4031 and 651.4032 to read as |
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follows: |
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Sec. 651.4031. DESIGNATION OF EMBALMER IN CHARGE; EFFECT |
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OF VIOLATION. (a) A commercial embalmers establishment as defined |
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by Section 651.352(a) shall: |
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(1) designate to the commission an embalmer in charge; |
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and |
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(2) promptly notify the commission of any change in |
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that designation. |
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(b) The embalmer in charge is directly responsible for the |
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embalming business of the commercial embalming establishment. |
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(c) The embalmer in charge is ultimately responsible for |
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compliance with the mortuary laws. The embalmer in charge may be |
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charged with a violation of this chapter if a violation occurs in |
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the commercial embalming establishment. |
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Sec. 651.4032. DESIGNATION OF OPERATOR IN CHARGE; EFFECT |
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OF VIOLATION. (a) A crematory shall: |
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(1) designate to the commission an operator in charge; |
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and |
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(2) promptly notify the commission of any change in |
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that designation. |
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(b) The operator in charge is directly responsible for the |
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business of the crematory. |
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(c) The operator in charge is ultimately responsible for |
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compliance with the laws of this state related to crematories. The |
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operator in charge may be charged with a violation of this chapter |
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if a violation occurs in the crematory. |
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SECTION 12. Section 651.459, Occupations Code, is amended |
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by adding Subsection (d) to read as follows: |
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(d) In this section, "unprofessional conduct" means conduct |
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prohibited under rules adopted by the state licensing agency for |
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the respective profession. |
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SECTION 13. Section 651.651, Occupations Code, is amended |
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by adding Subdivision (2-a) to read as follows: |
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(2-a) "Crematory operator" is the person in charge of |
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the crematory establishment. |
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SECTION 14. Subchapter N, Chapter 651, Occupations Code, is |
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amended by adding Section 651.655 to read as follows: |
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Sec. 651.655. CREMATORY OPERATOR'S LICENSE REQUIRED. (a) A |
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person may not own or operate a crematory establishment in this |
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state unless the person holds a crematory operator's license issued |
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by the commission. |
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(b) The commission by rule shall establish the |
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qualifications necessary for an operator's license, the |
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application procedure, the renewal procedure, the amount of the |
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license fee, and the continuing education requirements for a |
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crematory operator's license. |
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SECTION 15. Sections 694.001, 694.002, and 694.003, Health |
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and Safety Code, are amended to read as follows: |
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Sec. 694.001. DUTIES OF TEXAS FUNERAL SERVICE COMMISSION |
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[TEXAS DEPARTMENT OF HEALTH]. The Texas Funeral Service Commission |
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[Department of Health] shall regulate the disposal, |
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transportation, interment, and disinterment of dead bodies to the |
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extent reasonable and necessary to protect public health and |
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safety. |
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Sec. 694.002. DUTY OF TEXAS FUNERAL SERVICE COMMISSION |
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[COMMISSIONERS COURT] CONCERNING DISPOSITION OF BODY OF DECEASED |
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PAUPERS. (a) The Texas Funeral Service Commission [commissioners
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court of each county] shall provide for the disposition of the body |
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of a deceased pauper. The Texas Funeral Service Commission |
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[commissioners court] may adopt rules to implement this section. |
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(b) The Texas Funeral Service Commission [commissioners
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court] shall consider any information, including the religious |
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affiliation of the deceased pauper, provided by a person listed in |
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Section 711.002(a). |
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Sec. 694.003. POWER OF TEXAS FUNERAL SERVICE COMMISSION |
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[GOVERNING BODY OF TYPE A GENERAL-LAW MUNICIPALITY] CONCERNING |
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BURIAL. The Texas Funeral Service Commission [governing body of a
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Type A general-law municipality] may regulate the burial of the |
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dead. |
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SECTION 16. Section 711.002(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Unless a decedent has left directions in writing for the |
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disposition of the decedent's remains as provided in Subsection |
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(g), the following persons, in the priority listed, have the right |
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to control the disposition, including cremation, of the decedent's |
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remains, shall inter the remains, and are liable for the reasonable |
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cost of interment: |
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(1) the person designated in a written instrument |
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signed by the decedent; |
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(2) the decedent's surviving or common law spouse; |
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(3) any one of the decedent's surviving adult |
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children; |
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(4) either one of the decedent's surviving parents; |
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(5) any one of the decedent's surviving adult |
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siblings; or |
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(6) any adult person in the next degree of kinship in |
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the order named by law to inherit the estate of the decedent. |
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SECTION 17. Section 716.251(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) A record must be kept on file at least until the second |
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[fifth] anniversary of the cremation. |
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SECTION 18. The following sections of the Health and Safety |
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Code are repealed: |
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(1) Section 651.259(g); |
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(2) Sections 651.304(b) and (c); |
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(3) Section 651.5026; and |
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(4) Section 651.559. |
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SECTION 19. Not later than March 1, 2010, the Texas Funeral |
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Service Commission shall adopt the rules necessary to implement the |
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changes in law made by this Act. |
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SECTION 20. (a) Except as provided by Subsection (b) of this |
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section, this Act takes effect September 1, 2009. |
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(b) Sections 651.4031, 651.4032, and 651.655, Occupations |
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Code, as added by this Act, take effect March 1, 2010. |