82R9266 EES-F

By: Gutierrez H.B. No. 1708

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of funeral directing and embalming.

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

SECTION 1. Sections 651.303(b) and (c), Occupations Code, are amended to read as follows:

(b) The commission by rule shall define the terms of employment of a provisional license holder. The terms of employment[:

[(1)] must include service by the provisional license holder[:

[(A) of at least 17 hours a week or 73 hours a month; and

[(B)] under actual working conditions and under the personal supervision of a funeral director or embalmer[; and

[(2) may not require more than 17 hours a week or 73 hours a month].

(c) The term of the provisional license program must be at least 12 consecutive months but not more than 24 consecutive months.

SECTION 2. Sections 651.401(a) and (d), Occupations Code, are amended to read as follows:

(a) A funeral director [or embalmer] must direct and personally supervise the pickup of a dead human body on first call.

(d) A funeral director [or embalmer] who directs the removal or transfer of a dead human body without personally supervising the transfer is strictly accountable for compliance with the requirements of first call as provided by this section.

SECTION 3. Section 651.459, Occupations Code, is amended by amending Subsections (a) and (c) and adding Subsection (d) to read as follows:

(a) A person violates this chapter if the person:

(1) wilfully makes a false statement on:

(A) a death certificate, including forgery of a physician's signature; or

(B) a document required by this chapter or a rule adopted under this chapter;

(2) engages in fraudulent, unprofessional, or deceptive conduct in providing funeral services or merchandise to a customer;

(3) engages in dishonest and [conduct,] wilful conduct[, or negligence] in the practice of embalming or funeral directing that is likely to or does deceive or[,] defraud[, or otherwise injure] the public;

(4) causes the execution of a document by the use of fraud, deceit, or misrepresentation;

(5) directly or indirectly employs a person to solicit individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, embalmer, or funeral establishment;

(6) misappropriates funds held by a license holder, a funeral establishment, an employee or agent of the funeral establishment, or another depository, that create an obligation to provide a funeral service or merchandise, including retaining for an unreasonable time excess funds paid by or on behalf of the customer for which the customer is entitled to a refund; or

(7) performs acts of funeral directing or embalming that are outside the licensed scope and authority of the license holder, or performs acts of funeral directing or embalming in a capacity other than that of an employee, agent, subcontractor, or assignee of a licensed funeral establishment that has contracted to perform those acts.

(c) A funeral director in charge violates this chapter if the funeral director in charge fails to provide a funeral director [or an embalmer] for direction or personal supervision for a first call.

(d) For purposes of this section, a person engages in unprofessional conduct if:

(1) the person knowingly commits an act in connection with providing funeral services or merchandise to a customer that violates federal or state law; and

(2) the act is committed with the intent to deceive or defraud the public.

SECTION 4. Subchapter K, Chapter 651, Occupations Code, is amended by adding Section 651.5011 to read as follows:

Sec. 651.5011. CHARGING FUNERAL DIRECTOR IN CHARGE WITH VIOLATION. In determining whether to charge a funeral director in charge with a violation, the commission shall consider:

(1) the nature and seriousness of the violation;

(2) the extent to which the employee or agent of the funeral establishment whose conduct is the basis of the violation was under the direct supervision of the funeral director in charge or another person at the time the employee or agent engaged in the conduct;

(3) the extent to which a licensed employee of the funeral establishment was directly responsible for the conduct that is the basis of the violation; and

(4) the causal connection between the supervision of the employee or agent of the funeral establishment by the funeral director in charge and the conduct engaged in by the employee or agent that is the basis of the violation.

SECTION 5. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.