Bill Text: TX SB983 | 2017-2018 | 85th Legislature | Introduced

---

Bill Title: Relating to the Texas Funeral Service Commission; authorizing fees.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2017-03-06 - Referred to Business & Commerce [SB983 Detail]

Download: Texas-2017-SB983-Introduced.html

---

85R1887 BEF-F
By: Estes S.B. No. 983

A BILL TO BE ENTITLED
AN ACT
relating to the Texas Funeral Service Commission; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 651.051(a), Occupations Code, is amended
to read as follows:
(a) The Texas Funeral Service Commission consists of seven
members appointed by the governor, with the advice and consent of
the senate as follows:
(1) two members who are licensed as both an embalmer
and a funeral director for at least the five years preceding
appointment to the commission;
(2) one member who is licensed as a funeral director
and is a registered cemetery owner or operator; and
(3) four members who represent the public and who:
(A) are not regulated under this chapter; and
(B) have consistently shown an interest in
supporting consumer protection.
SECTION 2. Section 651.055(c), Occupations Code, is amended
to read as follows:
(c) It is a ground for removal from the commission that a
member:
(1) does not have at the time of appointment the
qualifications required by Sections 651.051(a) and (c) and
651.052(a);
(2) does not maintain during service on the commission
the qualifications required by Sections 651.051(a) and (c) and
651.052(a);
(3) violates a prohibition established by Section
651.053 [Sections 651.053(a)-(e) or 651.506(h)];
(4) cannot because of illness or disability discharge
the member's duties for a substantial part of the term for which the
member is appointed; or
(5) is absent for more than half of the regularly
scheduled commission meetings that the member is eligible to attend
during a calendar year unless the absence is excused by majority
vote of the commission.
SECTION 3. The heading to Section 651.101, Occupations
Code, is amended to read as follows:
Sec. 651.101. EXECUTIVE DIRECTOR[; BOND].
SECTION 4. The heading to Section 651.151, Occupations
Code, is amended to read as follows:
Sec. 651.151. GENERAL LICENSING POWERS AND DUTIES.
SECTION 5. Section 651.151(c), Occupations Code, is
redesignated as Section 651.1511, Occupations Code, and amended to
read as follows:
Sec. 651.1511. COMMITTEES. [(c)] The commission may
appoint a committee from its members to consider and make a
recommendation on a matter referred to the committee by the
commission.
SECTION 6. Section 651.154, Occupations Code, is amended to
read as follows:
Sec. 651.154. FEES. (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, renewal fee, late renewal penalty, duplicate
license fee, replacement license fee, and reciprocal license fee;
and
(2) the cemetery, crematory, or funeral establishment
license fee, renewal fee, and late renewal penalty.
(b) The commission shall set the provisional license
application fee, examination fee, renewal fee, and late renewal
penalty in amounts reasonable and necessary to administer the
provisional license program.
(c) The commission shall set the following fees in amounts
reasonable and necessary to administer the continuing education
program under this chapter:
(1) the continuing education provider fee and
continuing education course fee; and
(2) the continuing education noncompliance fee [may
not charge a fee to a perpetual care cemetery, including a fee for
issuing or renewing a license issued under this chapter].
SECTION 7. Sections 651.157, 651.1571, and 651.158,
Occupations Code, are amended to read as follows:
Sec. 651.157. INSPECTION OF [CEMETERY,] CREMATORY[,] OR
FUNERAL ESTABLISHMENT. (a) A crematory or funeral establishment
must be inspected before an initial license may be issued to the
crematory or funeral establishment.
(a-1) Except as provided by Subsection (b), a [licensed
cemetery,] crematory[,] or funeral establishment shall be
inspected at least once every two years by an agent of the
commission or by an agent of the state or a political subdivision
authorized by the commission to make inspections on its behalf.
(b) If the commission finds a violation of this chapter or
of Chapter 193, 361, 711, 714, 715, or 716, Health and Safety Code,
the commission shall inspect the [cemetery,] crematory[,] or
funeral establishment annually until the commission determines
that the crematory or funeral establishment is free of violations.
(c) A report of each inspection made under this section
shall be retained in the crematory's or funeral establishment's
licensing file [filed with the commission].
(d) The commission by rule shall establish:
(1) procedures for the inspection of a [cemetery,]
crematory[,] or funeral establishment required by this section; and
(2) criteria, including consideration of the
crematory's or funeral establishment's inspection and complaint
history, regarding when the commission should inspect a crematory
or funeral [an] establishment based on the risk of a violation at a
crematory or funeral [an] establishment.
(e) A premises on which funeral directing, [interment,]
cremation, or embalming is practiced shall be open at all times to
inspection for any violation of this chapter or of Chapter 193, 361,
or 716, Health and Safety Code, by:
(1) an agent of the commission;
(2) an authorized agent of the state; or
(3) an authorized agent of the county or municipality
in which the premises is located.
(f) Before a commission agent inspects a [cemetery,]
crematory[,] or funeral establishment, the agent shall review the
inspection reports filed with the commission on the crematory or
funeral establishment. During the inspection, the agent shall
determine whether previously identified problems have been
corrected and whether a pattern of violations exists. The
commission shall consider the information from the inspection
reports in determining whether a penalty should be imposed against
a crematory or funeral [an] establishment.
Sec. 651.1571. INSPECTION REQUIREMENTS FOR CERTAIN
CEMETERIES[; EXCEPTION FOR PERPETUAL CARE CEMETERIES]. (a) A
cemetery licensed by the commission [This section and Section
651.157 do not apply to perpetual care cemeteries.
[(b) Except as provided by Section 651.157(b):
[(1) a cemetery] may not be inspected unless:
(1) [(A)] an interment has occurred in the cemetery
within the two years preceding the inspection; or
(2) [(B)] the commission has received a complaint
about the cemetery.
(b) The[; and
[(2) the] commission shall give lower priority to an
inspection of a cemetery than to an inspection of a crematory or
funeral establishment.
Sec. 651.158. INSPECTION OF CERTAIN FACILITIES. (a) The
commission may require a funeral establishment that has solid waste
disposal and sanitation facilities that have not been inspected by
the [Texas] Department of State Health Services to obtain
inspection of those facilities by an entity other than the [Texas]
Department of State Health Services.
(b) The commission by rule shall establish procedures for an
inspection required under this section.
SECTION 8. Sections 651.160(a) and (b), Occupations Code,
are amended to read as follows:
(a) The commission and the [Texas] Department of State
Health Services shall adopt a joint memorandum of understanding
that:
(1) outlines the responsibilities of each agency in
enforcing requirements under Chapters 193 and 361, Health and
Safety Code, that affect funeral establishments;
(2) establishes procedures by which each agency:
(A) may refer a complaint to the other; and
(B) will notify the other of a violation by a
funeral establishment of Chapter 193 or 361, Health and Safety
Code; and
(3) coordinates inspection and enforcement efforts by
both agencies for measures that a funeral establishment is required
to implement under Chapters 193 and 361, Health and Safety Code.
(b) Not later than the last month of each state fiscal year,
the commission and the [Texas] Department of State Health Services
shall review and update the memorandum of understanding.
SECTION 9. Section 651.004, Occupations Code, is
transferred to Subchapter D, Chapter 651, Occupations Code, and
redesignated as Section 651.168, Occupations Code, to read as
follows:
Sec. 651.168 [651.004]. REGULATION OF CEMETERY AND
CREMATORY SERVICES. (a) The commission shall regulate cemetery
and crematory services as provided by this chapter and Chapter 716,
Health and Safety Code.
(b) The commission may not regulate cemetery or crematory
services that occur after burial or inurnment unless the services
relate to the care and treatment of the remains in an urn, casket,
or outer enclosure.
SECTION 10. Section 651.201, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) A funeral establishment may print additional copies of
the brochure only if the commission is unable to provide the number
of brochures needed by the funeral establishment.
SECTION 11. Subchapter E, Chapter 651, Occupations Code, is
amended by adding Section 651.2015 to read as follows:
Sec. 651.2015. INTERNET WEBSITES. The commission may allow
a funeral establishment that maintains an Internet website to link
to the commission's Internet website.
SECTION 12. Section 651.203, Occupations Code, is amended
to read as follows:
Sec. 651.203. RECORD OF COMPLAINTS. (a) The commission
shall maintain a record [file] on each written complaint filed with
the commission. The record [file] must include:
(1) the subject matter of the complaint;
(2) the date the complaint is received by the
commission;
(3) the name of the person who filed the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the complaint [file]
was closed, if the commission closed the complaint [file] without
taking action other than to investigate the complaint.
(b) Information in a record [file] maintained under this
section, other than information relating to a complaint that has
not reached a final disposition, is public information.
SECTION 13. Section 651.252, Occupations Code, is amended
to read as follows:
Sec. 651.252. LICENSE APPLICATION. (a) The commission may
adopt license application requirements [An applicant] for a funeral
director's license or an embalmer's license [must submit a written
license application to the commission and pay the application fee].
(b) The commission may provide that a person applies for a
funeral director's or embalmer's license by completing a
provisional license program under Subchapter G [require an
applicant to appear before at least one member of the commission for
approval of the person's application. The approval is subject to
review by the entire commission.
[(c) The commission shall keep a permanent, alphabetical
record of each license application and the action taken on the
application. The record must indicate the current status of each
application and license issued].
SECTION 14. Section 651.164, Occupations Code, is
transferred to Subchapter F, Chapter 651, Occupations Code,
redesignated as Section 651.2525, Occupations Code, and amended to
read as follows:
Sec. 651.2525 [651.164]. LICENSE EXPIRATION. (a) A funeral
director's or embalmer's license is valid for 24 months.
(b) The commission by rule shall [may] adopt a system under
which licenses expire on various dates during the year. For an
initial license that is issued for a term of less than 24 months
[the year in which the license expiration date is changed], the
commission shall prorate license fees on a monthly basis so that
each license holder pays only that portion of the license fee that
is allocable to the number of months during which the license is
valid. On renewal of the license on the new expiration date, the
total license renewal fee is payable.
SECTION 15. Section 651.253, Occupations Code, is amended
to read as follows:
Sec. 651.253. GENERAL LICENSE REQUIREMENTS. (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;
(4) unless the applicant holds a reciprocal license,
have completed the requirements of the provisional license program;
and
(5) have successfully completed the [applicable]
written examinations [examination] described by Section 651.254
and by Section 651.255 or 651.256, as applicable.
(b) Unless the applicant is seeking a reciprocal license, an
[An] applicant for a funeral director's license or an embalmer's
license may not be considered for that license until the
applicant[:
[(1)] completes all of the requirements of the
provisional license program[; and
[(2) attains a grade of at least 75 percent on the
written examination given by the commission].
(c) Notwithstanding Subsection (a)(3), the commission may
adopt rules to allow an applicant who graduated from a school or
college of mortuary science that is no longer accredited to become
licensed as a funeral director or embalmer.
SECTION 16. Section 651.254, Occupations Code, is amended
to read as follows:
Sec. 651.254. MORTUARY LAW EXAMINATION. (a) The
commission shall administer or arrange for the administration of a
written examination developed by the commission or developed for
the commission under a contract on:
(1) laws applicable to vital statistics pertaining to
dead human bodies; and
(2) local and state rules and laws relating to the
preparation, transportation, care, and disposition of dead human
bodies.
(b) To pass the examination, an individual must receive a
grade of at least 75 percent. [LICENSE EXAMINATIONS; RESULTS. (a)
The examinations for a funeral director's license and an embalmer's
license shall be held at least annually. The examinations shall be
given at the time and place designated by the commission. The
commission shall give notice of the examinations.
[(b) Not later than the 30th day after the date a person
takes a licensing examination under this chapter, the commission
shall notify the person of the results of the examination.
[(c) If the examination is graded or reviewed by a testing
service:
[(1) the commission shall notify the person of the
results of the examination not later than the 14th day after the
date the commission receives the results from the testing service;
and
[(2) if notice of the examination results will be
delayed for longer than 90 days after the examination date, the
commission shall notify the person of the reason for the delay
before the 90th day.
[(d) The commission may require a testing service to notify
a person of the results of the person's examination.
[(e) If requested in writing by a person who fails a
licensing examination administered under this chapter, the
commission shall furnish the person with an analysis of the
person's performance on the examination.]
SECTION 17. Sections 651.255, 651.256, 651.258, and
651.259, Occupations Code, are amended to read as follows:
Sec. 651.255. EXAMINATION [EXAMINATIONS] REQUIRED FOR
FUNERAL DIRECTOR'S LICENSE. The commission shall administer or
arrange for the administration of[:
[(1)] a written professionally prepared examination
on:
(1) [(A)] the art and technique of funeral directing;
(2) [(B)] the signs of death;
(3) [(C)] the manner by which death may be determined;
(4) [(D)] sanitation and hygiene;
(5) [(E)] mortuary management and mortuary law;
(6) [(F)] business and professional ethics; and
(7) [(G)] other subjects that may be taught in a
recognized school or college of mortuary science[; and
[(2) a written examination developed by the commission
or developed for the commission by contract on:
[(A) laws applicable to vital statistics
pertaining to dead human bodies; and
[(B) local and state rules and laws relating to
the preparation, transportation, care, and disposition of dead
human bodies].
Sec. 651.256. EXAMINATION [EXAMINATIONS] REQUIRED FOR
EMBALMER'S LICENSE. The commission shall administer or arrange for
the administration of[:
[(1)] a written professionally prepared examination
on:
(1) [(A)] the anatomy of the human body, including:
(A) [(i)] the cavities of the human body; and
(B) [(ii)] the arterial and venous system of the
human body;
(2) [(B)] blood and discoloration;
(3) [(C)] bacteriology and hygiene;
(4) [(D)] pathology;
(5) [(E)] chemistry and embalming;
(6) [(F)] arterial and cavity embalming;
(7) [(G)] restorative art;
(8) [(H)] disinfecting;
(9) [(I)] embalming special cases;
(10) [(J)] contagious and infectious diseases;
(11) [(K)] mortuary management;
(12) [(L)] care, preservation, transportation, and
disposition of dead human bodies;
(13) [(M)] sanitary science; and
(14) [(N)] other subjects that may be taught in a
recognized school or college of mortuary science[; and
[(2) a written examination developed by the commission
or developed for the commission by contract on:
[(A) laws applicable to vital statistics
pertaining to dead human bodies; and
[(B) local and state rules and laws relating to
the care and disposition of dead human bodies].
Sec. 651.258. LICENSE ISSUANCE. On issuance of a funeral
director's license or an embalmer's license under this chapter, a
majority of the commission members shall sign the license. A [The]
license issued by the commission authorizes the license holder to
practice embalming, funeral directing, or both.
Sec. 651.259. APPLICATION BY OUT-OF-STATE LICENSE HOLDER.
(a) The commission shall waive any requirement for a funeral
director's license or an embalmer's license for an applicant who
holds a license issued by another state, country, or territory that
has license requirements substantially equivalent to the
requirements of this state and who meets the requirements of this
section. The commission may waive any license requirement for an
applicant who holds a license issued by another state that does not
have license requirements substantially equivalent to those of this
state and who meets the requirements of this section. [The
applicant shall pay a license fee in an amount set by the
commission.]
(b) Any applicant for a license under this section shall
file an [a sworn] application that includes:
(1) a sworn statement that:
(A) the applicant is the person to whom the
license was issued;
(B) the license under which the applicant
practiced as a funeral director or embalmer in the state, country,
or territory from which the applicant moved was, at the time the
applicant left, in effect;
(C) no proceeding has been instituted against the
applicant for the cancellation, suspension, or revocation of the
license in the state, country, or territory that issued the
license; and
(D) [(C)] no prosecution is pending against the
applicant in a state or federal court for an offense that, under the
laws of this state, is a felony, or is a misdemeanor related to the
practice of embalming or funeral directing; [and]
(2) an affidavit of a person described by Subsection
(c) verifying that:
(A) the accompanying license has not been
canceled, suspended, or revoked; and
(B) the statement of the qualifications made in
the application for licensure in this state is correct; and
(3) documentation that the applicant has graduated
from an accredited college of mortuary science.
(c) The affidavit must be made by:
(1) the presiding officer or secretary of the
governmental entity that issued the license; or
(2) a registration officer of the state, country, or
territory that issued the license.
(d) [The applicant must affirm in the statement that the
license under which the applicant practiced as a funeral director
or embalmer in the state, country, or territory from which the
applicant moved was, at the time the applicant left, in effect.
[(e)] An applicant must submit to [The commission shall
conduct] a criminal background check before submitting a license
application [on each applicant]. An applicant is not eligible for a
license under this section if the applicant has, in the 10 years
preceding the date of the application, been finally convicted of a
misdemeanor involving moral turpitude or a felony.
(e) [(f)] An applicant for a license under this section
must[:
[(1)] provide proof that[:
[(A) the license is in good standing;
[(B)] the applicant has practiced under the
license for at least:
(1) [(i)] one year in the state, country, or territory
that issued the license if that state, country, or territory has
license requirements substantially equivalent to those of this
state; or
(2) [(ii)] five years in the state, country, or
territory that issued the license if that state, country, or
territory does not have license requirements substantially
equivalent to those of this state.
(f) An applicant under this section must successfully
complete the written examination described by Section 651.254[; and
[(C) the applicant has graduated from an
accredited college of mortuary science; and
[(2) pass a written examination of not more than 50
questions on applicable state laws and commission rules].
(g) On approval of the application, the applicant shall pay
a license fee in an amount set by the commission [The commission
shall conduct the examination under Subsection (f)(2) at each
regularly scheduled meeting of the commission].
SECTION 18. The heading to Section 651.260, Occupations
Code, is amended to read as follows:
Sec. 651.260. REPLACEMENT [DUPLICATE] LICENSE.
SECTION 19. Sections 651.260(a) and (c), Occupations Code,
are amended to read as follows:
(a) If a license issued under this chapter is lost or
destroyed, the license holder may apply to the commission for a
replacement [duplicate] license.
(c) The commission shall issue a replacement [duplicate]
license after receipt of the information and payment of the fee set
by the commission for the replacement [duplicate] license.
SECTION 20. Section 651.261, Occupations Code, is amended
to read as follows:
Sec. 651.261. POSTING OF LICENSE. (a) A license holder
shall conspicuously display the holder's original license,
duplicate original license, or replacement license in each place of
business at which the license holder practices.
(b) The commission shall issue a duplicate original license
on application and payment of a fee set by the commission for the
license if the license holder needs a license to display in multiple
locations.
SECTION 21. Section 651.266, Occupations Code, is amended
to read as follows:
Sec. 651.266. CONTINUING EDUCATION. The commission by rule
may require continuing education as a condition for license renewal
except for a license holder described by Section 651.155 or an
applicant for renewal described by Section 651.265(b) [651.265].
If the commission requires continuing education, the commission
shall require completion of a minimum number of hours of ethics
training as a required part of that education.
SECTION 22. Section 651.165, Occupations Code, is
transferred to Subchapter F, Chapter 651, Occupations Code,
redesignated as Section 651.2661, Occupations Code, and amended to
read as follows:
Sec. 651.2661 [651.165]. RENEWAL OR REINSTATEMENT OF
LICENSE. (a) A person who is otherwise eligible to renew a license
may renew an unexpired license by paying the required renewal fee to
the commission before the expiration date of the license. A person
whose license has expired may not engage in activities that require
a license until the license has been renewed.
(b) A person whose license has been expired for 90 days or
less may renew the license by paying to the commission a renewal fee
that is equal to 1-1/2 times the normally required renewal fee.
(c) A person whose license has been expired for more than 90
days but less than one year may renew the license by paying to the
commission a renewal fee that is equal to two times the normally
required renewal fee.
(d) A person whose license has been expired for one year or
more may reinstate [renew] the license by:
(1) retaking and passing the [applicable] examination
under Section 651.254;
(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.
(e) A person who was licensed in this state, moved to
another state, and is currently licensed and has been in practice in
the other state for the two years preceding the date of application
may obtain a new license without reexamination if both licenses are
in good standing. The person must pay to the commission a fee that
is equal to two times the normally required renewal fee for the
license.
(f) At least 30 days before the expiration of a person's
license, the commission shall send written notice of the impending
license expiration to the person at the person's last known address
according to the records of the commission.
SECTION 23. Section 651.1655, Occupations Code, is
transferred to Subchapter F, Chapter 651, Occupations Code,
redesignated as Section 651.2662, Occupations Code, and amended to
read as follows:
Sec. 651.2662 [651.1655]. REINSTATEMENT OF SUSPENDED
LICENSE. If authorized by the commission, a [A] person whose
license has been suspended may reinstate [renew] the license by:
(1) paying to the commission a renewal fee that is
equal to two times the normally required renewal fee;
(2) paying [in addition to] any penalty assessed by
the commission;
(3) completing any continuing education required
under Section 651.266; and
(4) passing with a score of at least 75 percent the
examination under Section 651.254.
SECTION 24. Sections 651.267(c) and (d), Occupations Code,
are amended to read as follows:
(c) A hearing to determine whether to reissue a license
shall be held before the commission unless the commission requires
the hearing to be held before an administrative law judge [a
hearings officer].
(d) A license that has been revoked may be reissued
[reinstated] only after the applicant:
(1) retakes and passes the [applicable] examination
under Section 651.254;
(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; and
(4) pays any penalty assessed by the commission.
SECTION 25. The heading to Subchapter H, Chapter 651,
Occupations Code, is amended to read as follows:
SUBCHAPTER H. LICENSE REQUIREMENTS: CEMETERY, FUNERAL, AND
COMMERCIAL EMBALMING [EMBALMER] ESTABLISHMENTS
SECTION 26. Section 651.351, Occupations Code, is amended
by amending Subsections (d), (f), (g), and (h) and adding
Subsection (h-1) 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 vehicles [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 caskets, one
of which must be the least expensive casket offered, that are [and]
displayed in a setting that allows for private selection; and
(8) conspicuously display the funeral establishment's
license [casket showroom].
(f) Other than the two full-size caskets, the merchandise
[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.
(g) The commission may exempt a funeral establishment from
the requirements of Subsection (d)(5) if[:
[(1)] the majority owner or designated agent of record
of a funeral establishment submits a written petition to the
commission requesting an exemption and stating:
(1) [(A)] the establishment's name and address;
(2) [(B)] that the establishment is located within 50
miles of a facility owned by the establishment requesting the
exemption and at which embalming services may be performed; and
(3) [(C)] that no embalming services will be performed
at the establishment[; and
[(2) the commission determines that the criteria in
Subdivision (1) have been met].
(h) The executive director shall notify the petitioner of
the commission's decision on an exemption request under Subsection
(g).
(h-1) An [The] exemption under Subsection (g) remains in
effect until the conditions required for the exemption are no
longer met[:
[(1) the establishment is no longer located within 50
miles of a facility owned by the exempt establishment or at which
embalming services may be performed; or
[(2) an embalming service has been performed at the
establishment].
SECTION 27. The heading to Section 651.352, Occupations
Code, is amended to read as follows:
Sec. 651.352. COMMERCIAL EMBALMING [EMBALMERS]
ESTABLISHMENT LICENSE REQUIREMENTS.
SECTION 28. Sections 651.352(a), (b), (c), and (e),
Occupations Code, are amended to read as follows:
(a) In this section, "commercial embalming [embalmers]
establishment" means a funeral [an] establishment that:
(1) embalms for other licensed funeral
establishments; and
(2) does not sell services or merchandise directly or
at retail to the public[; and
[(3) meets the requirements for an embalmers license].
(b) An establishment that functions solely as a commercial
embalming [embalmers] establishment is required to hold a
commercial embalming [embalmers] establishment license and [but]
is [not] required to comply with the requirements for a funeral
establishment license under Section 651.351 except for the
requirements of Sections 651.351(d)(3)[, (d)(6),] and (7) [(f)].
(c) A commercial embalming [embalmers] establishment may
employ an embalmer only if the embalmer is licensed under this
chapter.
(e) A licensed commercial embalming [embalmers]
establishment that meets the licensing requirements under
Subchapter N may hold a crematory establishment license.
SECTION 29. Section 651.401, Occupations Code, is amended
to read as follows:
Sec. 651.401. REMOVAL OF DEAD HUMAN BODY [FIRST CALL]. (a)
A funeral director [or embalmer] must direct [and personally
supervise] the pickup of a dead human body [on first call].
(b) A dead human body may be transferred without a funeral
director directing [personally making] the transfer at the
direction of a justice of the peace or other law enforcement
official[:
[(1) from one funeral establishment to another;
[(2) from a funeral establishment to and from a morgue
in which an autopsy is performed;
[(3) to and from an airport, crematory, or both; or
[(4) in circumstances in which there is no reasonable
probability that an unlicensed person will encounter a family
member or other person with whom funeral arrangements are normally
made by a funeral director or embalmer].
(c) A funeral director may direct an unlicensed person, a
provisional license holder, or an embalmer in the removal of a dead
human body. A funeral director who directs the removal of a dead
human body by an unlicensed person is strictly accountable for
compliance with the requirements of this chapter. If an unlicensed
person, a provisional license holder, or an embalmer inadvertently
encounters a family member or other person with whom funeral
arrangements are normally made, the [unlicensed] person shall
restrict communication with the family member or other person to:
(1) identifying the [unlicensed] person's employer;
and
(2) [arranging an appointment with the unlicensed
person's employer for a family member or other person who indicates
a desire to make funeral arrangements for the deceased; and
[(3)] making any disclosure to the family member or
other person that is required by federal or state law or regulation.
[(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 30. Subchapter I, Chapter 651, Occupations Code, is
amended by adding Section 651.4031 to read as follows:
Sec. 651.4031. DESIGNATION OF EMBALMER IN CHARGE; EFFECT
OF VIOLATION. (a) A commercial embalming establishment 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 mortuary laws. The embalmer in charge may be
charged with a violation of this chapter if a violation occurs in
the commercial embalming establishment.
SECTION 31. Section 651.404, Occupations Code, is amended
to read as follows:
Sec. 651.404. CONSUMER BROCHURE. When funeral services are
discussed, a funeral director or agent of the funeral establishment
shall provide each prospective customer with a copy of the brochure
prepared by the commission under Section 651.201. [The funeral
establishment shall print additional copies of the brochure if the
commission is unable to provide the number of brochures needed by
the funeral establishment.]
SECTION 32. Section 651.407(c), Occupations Code, is
amended to read as follows:
(c) The funeral establishment shall retain a copy of the
written consent for at least two years and shall make the records of
the funeral establishment reasonably available for inspection by:
(1) the commission; and
(2) the person who provided the consent, as provided
by Section 711.002, Health and Safety Code [; and
[(3) the next of kin of the deceased person].
SECTION 33. The heading to Section 651.454, Occupations
Code, is amended to read as follows:
Sec. 651.454. [OTHER] UNETHICAL CONDUCT IN SOLICITING
CUSTOMERS.
SECTION 34. 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 retail price list
for the prospective customer to keep;
(3) explain to a prospective customer that a purchase
[contractual] agreement for funeral services or merchandise may not
be entered into before a retail price list is provided to the
prospective customer; or
(4) provide general price information by telephone
within a reasonable time.
SECTION 35. Sections 651.457 and 651.458, Occupations Code,
are amended to read as follows:
Sec. 651.457. UNETHICAL CONDUCT REGARDING EMBALMING. (a)
A person violates this chapter if the person:
(1) embalms a body without:
(A) receiving the express written or oral
permission of a person authorized to make funeral arrangements for
the deceased; or
(B) making a documented reasonable effort over a
period of at least three hours to obtain the permission;
(2) [embalms or attempts to embalm a dead human body
without proper authority, evidence of which includes making an
incision on the body, raising a circulatory vessel of the body, or
injecting a chemical into the body;
[(3)] allows the presence or participation of a
student for credit or satisfaction of academic requirements during
the embalming of a dead human body without complying with Section
651.407; or
(3) [(4)] places a chemical or substance on or in a
dead human body to disinfect or preserve the body or to restore body
tissues and structures without holding an embalmer's license.
(b) Notwithstanding Subsection (a)(3) [(a)(4)], a
provisional license holder does not violate this chapter if the
provisional license holder places a chemical or substance on or in a
dead human body to disinfect or preserve the body or to restore body
tissues and structures under the supervision of an embalmer.
(c) For purposes of this section, "embalms a body" includes
an attempt to embalm a body, evidence of which includes making an
incision on the body, raising a circulatory vessel of the body, or
injecting a chemical into the body.
Sec. 651.458. UNETHICAL CONDUCT BY FUNERAL ESTABLISHMENT.
A person violates this chapter if the person makes a distinction in
providing funeral information to a customer because [regardless] of
any affiliation of the customer or because [whether] the customer
does or does not have [has] a present need for the services or
merchandise.
SECTION 36. The heading to Section 651.459, Occupations
Code, is amended to read as follows:
Sec. 651.459. [OTHER] UNETHICAL CONDUCT IN PROVIDING
FUNERAL SERVICES.
SECTION 37. Sections 651.459(a) and (c), Occupations Code,
are amended 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 [conduct], wilful,
unprofessional, or negligent conduct in providing [, or negligence
in the practice of] embalming services or funeral services or
merchandise to a customer [directing] that is likely to or does
deceive, defraud, or otherwise injure the public;
(3) [(4)] causes the execution of a document by the
use of fraud, deceit, or misrepresentation;
(4) [(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;
(5) [(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
(6) [(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 ensure that a dead human
body is removed in the manner provided by Section 651.401 [provide a
funeral director or an embalmer for direction or personal
supervision for a first call].
SECTION 38. Section 651.461, Occupations Code, is amended
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 in writing 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 39. Section 651.508, Occupations Code, is
transferred to Subchapter J, Chapter 651, Occupations Code,
redesignated as Section 651.462, Occupations Code, and amended to
read as follows:
Sec. 651.462 [651.508]. ENFORCEMENT OF LAW REGULATING
CREMATORIES. A [For purposes of this subchapter, a] person
regulated under this chapter that violates Chapter 716, Health and
Safety Code, violates this chapter.
SECTION 40. Section 651.501(a), Occupations Code, is
amended to read as follows:
(a) The [After a hearing as provided by this subchapter,
the] commission may issue a letter of warning [reprimand], assess
an administrative penalty, revoke or [,] suspend a license, place a
license holder on probation [or probate the suspension of a license
or provisional license], or impose any combination of those
penalties if the commission determines that a person regulated
under this chapter has violated [for a violation of] this chapter or
a rule adopted under this chapter.
SECTION 41. The heading to Section 651.502, Occupations
Code, is amended to read as follows:
Sec. 651.502. LICENSE DENIAL[; EFFECT OF CRIMINAL
CONVICTION].
SECTION 42. Section 651.502, Occupations Code, is amended
by amending Subsections (a) and (b) and adding Subsection (a-1) to
read as follows:
(a) After a hearing before the commission, the [The]
commission may[, before a hearing or a waiver of a right to a
hearing,] refuse to issue or renew:
(1) a license or provisional license to a person who
has violated this chapter or a rule adopted under this chapter or
who has a criminal conviction; or
(2) an establishment license to an individual,
partnership, or corporation if the individual, a partner, or an
officer or director of the corporation:
(A) has violated this chapter or a rule adopted
under this chapter;
(B) previously held an establishment license
that was suspended or revoked; or
(C) attempts to avoid a revocation, suspension,
or license denial [refusal] by subterfuge or other evasive means.
(a-1) The commission may, after a hearing held under
Subsection (a), order that a license be issued or renewed on a
probationary basis through execution of an agreed order.
(b) A person who is refused the issuance or renewal of [to
whom the commission refuses to issue] a license under Subsection
(a) may appeal the decision by submitting a written request for a
hearing in accordance with Chapter 2001, Government Code, not later
than the 30th day after the date of the refusal.
SECTION 43. Subchapter K, Chapter 651, Occupations Code, is
amended by adding Section 651.5029 to read as follows:
Sec. 651.5029. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If, after examining a possible violation and the facts relating
to that violation, the commission determines that a violation has
occurred, the commission shall issue a preliminary report stating:
(1) the facts on which the determination is based;
(2) that a sanction may be imposed; and
(3) the types of sanctions that may be imposed for the
violation.
(b) Not later than the 10th day after the date the report is
issued, the commission shall send to the person charged with the
violation:
(1) a copy of the report;
(2) a statement of the right of the person to a hearing
relating to the alleged violation;
(3) a statement of the types of sanctions that may be
imposed for the violation; and
(4) a statement that the person may request an
informal proceeding.
(c) Until a hearing has been held on the possible violation,
the possible violation and the sanctions that may be imposed may be
disclosed only to the person charged with the violation, unless
that person has waived the right to a hearing or paid the amount to
the commission.
SECTION 44. The heading to Section 651.503, Occupations
Code, is amended to read as follows:
Sec. 651.503. LETTER OF WARNING; REPORT BY LICENSE HOLDER.
SECTION 45. Section 651.503(a), Occupations Code, is
amended to read as follows:
(a) The commission shall issue a written warning to a
license holder if the commission:
(1) conducts an investigation that identifies a
violation of this chapter by the license holder; and
(2) does not [issue a reprimand, assess an
administrative penalty, or] impose any other penalty against the
license holder.
SECTION 46. Section 651.505, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) If the commission places a license holder on probation
[a person whose license has been suspended], the commission may
impose conditions on the probation that are reasonable and related
to the reason the license holder was placed on probation [violation
for which the license was suspended]. If the commission orders
probation, the commission may require the license holder to:
(1) report regularly to the commission on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
commission; or
(3) continue or renew professional education until the
license holder attains a degree of skill satisfactory to the
commission in those areas that are the basis of the probation.
(d) The commission may suspend or revoke the license of a
license holder without a hearing if the commission determines the
license holder violated the terms of probation. The license holder
may appeal the decision by submitting a written request for a
hearing in accordance with this chapter and Chapter 2001,
Government Code, not later than the 30th day after the date of the
suspension or revocation.
SECTION 47. Section 651.506(a), Occupations Code, is
amended to read as follows:
(a) A proceeding conducted by the commission relating to an
appeal of the denial of a license or provisional license, the
suspension or revocation of a license, [the issuance of a
reprimand,] or the imposition of an administrative penalty under
Subchapter L [assessed after a hearing as provided by Section
651.551] and judicial review of the proceeding are governed by
Chapter 2001, Government Code.
SECTION 48. Section 651.506(f), Occupations Code, is
redesignated as Section 651.50601, Occupations Code, and amended to
read as follows:
Sec. 651.50601. DECISION BY COMMISSION. [(f)] The
commission shall review the findings of fact, conclusions of law,
and ruling of the administrative law judge in a proceeding under
Section 651.506 before making its final ruling in the proceeding.
The commission may also review a transcript of the proceeding
before making its final ruling. The commission shall adopt the
ruling of the administrative law judge as its ruling unless it finds
good cause to issue a different ruling. The commission shall
explain in writing the reasons for adopting a ruling other than the
one issued by the administrative law judge.
SECTION 49. Subchapter K, Chapter 651, Occupations Code, is
amended by adding Section 651.5065 to read as follows:
Sec. 651.5065. INFORMAL PROCEEDINGS. (a) The commission
by rule shall adopt procedures governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with
Section 2001.054, Government Code.
(b) Rules adopted under this section must:
(1) provide the complainant and the license holder an
opportunity to be heard; and
(2) require the presence of a representative of the
commission's legal staff or of the attorney general to advise the
commission or the commission's employees.
SECTION 50. Section 651.5515, Occupations Code, is
transferred to Subchapter K, Chapter 651, Occupations Code,
redesignated as Section 651.5075, Occupations Code, and amended to
read as follows:
Sec. 651.5075 [651.5515]. SANCTIONS SCHEDULE [PENALTY
GUIDELINES]. (a) The commission by rule shall adopt a sanctions
schedule [guidelines that define and summarize the violations that
occur under this subchapter to assist the commission in maintaining
consistency in determining the amount of an administrative penalty
assessed under Section 651.552. Using those guidelines and the
summary, the commission shall establish and maintain a chart] that
lists:
(1) the most common violations that occur under this
chapter;
(2) the types of sanctions, including administrative
penalties, that may be imposed [penalty amounts assessed] for those
violations; and
(3) the factors used to determine the sanction that
may be imposed for [grade] each [type of] violation [before
determining the penalty amount under Section 651.552].
(b) The commission shall [consider using focus groups to]
obtain business and consumer input to match appropriate sanctions
[penalties] to violations before proposing the rules under this
section.
(c) The commission shall post the schedule [guidelines] on
the commission's Internet website [site].
SECTION 51. Section 651.552(b), Occupations Code, is
amended to read as follows:
(b) In determining the amount of the penalty, the commission
shall base its decision on:
(1) the seriousness of the violation;
(2) the threat the violation poses to health and
safety;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation;
(6) the sanctions schedule [guidelines] adopted under
Section 651.5075 [651.5515]; and
(7) any other matter that justice requires.
SECTION 52. Section 651.602(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person:
(1) acts or holds the person out as a funeral director,
embalmer, or provisional license holder without being licensed
under this chapter;
(2) [makes a first call in a manner that] violates
Section 651.401;
(3) is a funeral director, embalmer, or provisional
license holder and engages in a funeral practice that violates this
chapter or a rule adopted under this chapter; or
(4) violates Chapter 154, Finance Code, or a rule
adopted under that chapter, regardless of whether the Texas
Department of Banking or another governmental agency takes action
relating to the violation.
SECTION 53. Section 651.652, Occupations Code, is amended
to read as follows:
Sec. 651.652. APPLICABILITY. (a) This subchapter applies
only to a crematory that sells goods or services related to the
[burial or] final disposition of a body.
SECTION 54. The following sections of the Occupations Code
are repealed:
(1) Section 651.257;
(2) Section 651.2595;
(3) Section 651.264;
(4) Section 651.354(d);
(5) Section 651.355;
(6) Sections 651.502(c) and (d);
(7) Section 651.5026;
(8) Section 651.504;
(9) Sections 651.506(g) and (h);
(10) Section 651.5061; and
(11) Section 651.559.
SECTION 55. Section 651.051(a)(2), Occupations Code, as
amended by this Act, applies only to a member of the Texas Funeral
Service Commission appointed on or after the effective date of this
Act. A member appointed before the effective date of this Act may
continue to serve until the expiration of the member's term.
SECTION 56. Sections 651.253 and 651.259, Occupations Code,
as amended by this Act, apply only to a person who applies for a
funeral director's license or embalmer's license on or after the
effective date of this Act. A person who applies for a funeral
director's license or embalmer's license before the effective date
of this Act is governed by the law in effect on the date the person
applied for that license, and the former law is continued in effect
for that purpose.
SECTION 57. Section 651.2661, Occupations Code, as
transferred, redesignated, and amended by this Act, applies only to
a person who applies for reinstatement of a license on or after the
effective date of this Act. A person who applies for renewal of a
license under former Section 651.165, Occupations Code, before the
effective date of this Act is governed by the law in effect on the
date the person applied for renewal, and the former law is continued
in effect for that purpose.
SECTION 58. Section 651.2662, Occupations Code, as
transferred, redesignated, and amended by this Act, applies only to
a person who applies for reinstatement of a license on or after the
effective date of this Act. A person who applies for renewal of a
license under former Section 651.1655, Occupations Code, before the
effective date of this Act is governed by the law in effect on the
date the person applied for renewal, and the former law is continued
in effect for that purpose.
SECTION 59. Section 651.267, Occupations Code, as amended
by this Act, applies only to a person who applies for reissuance of
a license on or after the effective date of this Act. A person who
applies for reissuance of a license before the effective date of
this Act is governed by the law in effect on the date the person
applied for reissuance, and the former law is continued in effect
for that purpose.
SECTION 60. Section 651.502, Occupations Code, as amended
by this Act, applies only to a person who applies for the issuance
or renewal of a license on or after the effective date of this Act. A
person who applies for the issuance or renewal of a license before
the effective date of this Act is governed by the law in effect on
the date the person applied, and the former law is continued in
effect for that purpose.
SECTION 61. Section 651.5029, Occupations Code, as added by
this Act, applies only to a violation that occurs on or after the
effective date of this Act. A violation that occurs before the
effective date of this Act is governed by the law in effect on the
date the violation occurred, and the former law is continued in
effect for that purpose.
SECTION 62. Section 651.505, Occupations Code, as amended
by this Act, applies only to a person placed on probation on or
after the effective date of this Act. A person placed on probation
before the effective date of this Act is governed by the law in
effect on the date the person was placed on probation, and the
former law is continued in effect for that purpose.
SECTION 63. Section 651.506, Occupations Code, as amended
by this Act, and Section 651.50601, Occupations Code, as
redesignated and amended by this Act, apply only to a proceeding
initiated on or after the effective date of this Act. A proceeding
initiated before the effective date of this Act is governed by the
law in effect on the date the proceeding was initiated, and the
former law is continued in effect for that purpose.
SECTION 64. This Act takes effect September 1, 2017.