86R5111 KKR-D
 
  By: Thompson of Harris H.B. No. 1540
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the continuation and functions of the Texas Funeral
  Service Commission.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 711.007(b), Health and Safety Code, is
  amended to read as follows:
         (b)  The proceeding may be brought by:
               (1)  the attorney general;
               (2)  the Banking Commissioner of Texas;
               (3)  the governing body of a municipality with a
  population of more than 25,000, if the cemetery is located in the
  municipality or not farther than five miles from the municipality;
               (4)  the district attorney of the county, if the
  cemetery is located in an area of the county not described by
  Subdivision (3);
               (5)  the owner of a residence:
                     (A)  in or near the municipality in which the
  cemetery is located; or
                     (B)  in the area proscribed for the location of a
  cemetery by Section 711.008; or
               (6)  [the Texas Funeral Service Commission; or
               [(7)]  the owner of a plot in the cemetery.
         SECTION 2.  Section 711.012(b), Health and Safety Code, is
  amended to read as follows:
         (b)  The Texas Funeral Service Commission may adopt rules,
  establish procedures, and prescribe forms to enforce and administer
  Sections 711.003 and [, 711.008,] 711.0105[, 711.021-711.034,
  711.038, 711.0395, 711.041, 711.042, 711.052, 711.061, 711.063,
  and 711.064 relating to cemeteries that are not perpetual care
  cemeteries].
         SECTION 3.  Section 711.0515, Health and Safety Code, is
  amended to read as follows:
         Sec. 711.0515.  ENFORCEMENT BY ATTORNEY GENERAL; INJUNCTIVE
  RELIEF. In addition to bringing an action under Section 711.051,
  the attorney general [at the request of the Texas Funeral Service
  Commission] may bring an action for injunctive relief to enforce
  this chapter or a rule or order adopted by the Texas Funeral Service
  Commission [commission] under this chapter.
         SECTION 4.  Section 715.003, Health and Safety Code, is
  amended to read as follows:
         Sec. 715.003.  PARTIES TO ACTION. An action commenced under
  this chapter shall be brought by the incorporators of the nonprofit
  corporation on behalf of the nonprofit corporation. The necessary
  parties to the action on which citation shall be served under
  Section 715.006 are:
               (1)  the record owners of the real property comprising
  the historic cemetery;
               (2)  the owners of plots in the cemetery, who may be
  designated as a class in the petition; and
               (3)  the Texas Historical Commission[; and
               [(4)  the Texas Funeral Service Commission].
         SECTION 5.  Section 715.006(a), Health and Safety Code, is
  amended to read as follows:
         (a)  Before the 31st day after the date an action is
  commenced by a nonprofit corporation under this chapter, the
  nonprofit corporation shall cause citation to be issued and served
  by certified mail, return receipt requested, on:
               (1)  the record owners of the real property comprising
  the cemetery at their last known addresses;
               (2)  the owners of plots in the cemetery at their last
  known addresses;
               (3)  the Texas Historical Commission at its office in
  Austin, Texas; and
               (4)  [the Texas Funeral Service Commission; and
               [(5)]  the county auditor of the county in which the
  cemetery is located.
         SECTION 6.  The heading to Subtitle L, Title 3, Occupations
  Code, is amended to read as follows:
  SUBTITLE L. [CEMETERY AND] CREMATORY SERVICES, FUNERAL DIRECTING,
  AND EMBALMING
         SECTION 7.  The heading to Chapter 651, Occupations Code, is
  amended to read as follows:
  CHAPTER 651. [CEMETERY AND] CREMATORY SERVICES, FUNERAL DIRECTING,
  AND EMBALMING
         SECTION 8.  Section 651.002, Occupations Code, is amended to
  read as follows:
         Sec. 651.002.  APPLICATION OF SUNSET ACT. The Texas Funeral
  Service Commission is subject to Chapter 325, Government Code
  (Texas Sunset Act). Unless continued in existence as provided by
  that chapter, the commission is abolished and this chapter expires
  September 1, 2031 [2019].
         SECTION 9.  Section 651.004, Occupations Code, is amended to
  read as follows:
         Sec. 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 651.051(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 a crematory [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 11.  Section 651.0511, Occupations Code, is amended
  by amending Subsection (b) and adding Subsection (d) to read as
  follows:
         (b)  The training program must provide the person with
  information regarding:
               (1)  the law governing commission operations [this
  chapter];
               (2)  the programs, functions, rules, and budget of
  [operated by] the commission;
               (3)  the scope of and limitations on the rulemaking
  authority [the role and functions] of the commission;
               (4)  [the rules of the commission, with an emphasis on
  the rules that relate to disciplinary and investigatory authority;
               [(5)  the current budget for the commission;
               [(6)]  the results of the most recent formal audit of
  the commission;
               (5) [(7)]  the requirements of:
                     (A)  laws relating to [the] open meetings [law],
  [Chapter 551, Government Code;
                     [(B)  the] public information [law], [Chapter
  552, Government Code;
                     [(C)  the] administrative procedure [law], and
  disclosing conflicts of interest [Chapter 2001, Government Code];
  and
                     (B) [(D)]  other laws applicable to members of a
  state policymaking body in performing their duties [relating to
  public officials, including conflict-of-interest laws]; and
               (6) [(8)]  any applicable ethics policies adopted by
  the commission or the Texas Ethics Commission.
         (d)  The executive director of the commission shall create a
  training manual that includes the information required by
  Subsection (b). The executive director shall distribute a copy of
  the training manual annually to each member of the commission. On
  receipt of the training manual, each member of the commission shall
  sign and submit to the executive director a statement acknowledging
  receipt of the training manual.
         SECTION 12.  Section 651.151, Occupations Code, is amended
  by adding Subsection (d) to read as follows:
         (d)  The commission may appoint advisory committees to
  perform the advisory functions assigned to the committees by the
  commission. An advisory committee appointed under this subsection
  is subject to Chapter 2110, Government Code.
         SECTION 13.  Section 651.1525(a), Occupations Code, is
  amended to read as follows:
         (a)  Before publishing a proposed rule for public comment,
  the commission shall seek advice and opinions from persons who will
  be most affected by the rule. At a minimum, those persons must
  include consumer groups and trade associations that represent
  persons from each group regulated by the commission, including
  funeral directors and [cemetery and] crematory operators.
         SECTION 14.  Section 651.154(a), Occupations Code, is
  amended to read as follows:
         (a)  The commission by rule shall establish [set the
  following] fees in amounts reasonable and necessary to cover the
  costs of administering [administer] this chapter[:
               [(1)     the funeral director's and embalmer's application
  fee, license fee, duplicate license fee, and reciprocal license
  fee; and
               [(2)     the cemetery, crematory, or funeral
  establishment license fee, renewal fee, and late renewal penalty].
         SECTION 15.  The heading to Section 651.157, Occupations
  Code, is amended to read as follows:
         Sec. 651.157.  INSPECTION OF [CEMETERY,] CREMATORY[,] OR
  FUNERAL ESTABLISHMENT.
         SECTION 16.  Sections 651.157(a), (b), (d), and (f),
  Occupations Code, are amended to read as follows:
         (a)  Except as provided by Subsection (b), a licensed
  [cemetery,] crematory[,] or funeral establishment shall be
  inspected at least once every three [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 establishment is free of violations.
         (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
  establishment's inspection and complaint history, regarding when
  the commission should inspect an establishment based on the risk of
  a violation at an establishment.
         (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 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 an establishment.
         SECTION 17.  Section 651.162, Occupations Code, is amended
  to read as follows:
         Sec. 651.162.  ANNUAL [BIENNIAL] REPORT. (a) The
  commission shall prepare [file biennially with the governor] a
  written annual report describing [description of] the activities of
  the commission during the [two] preceding fiscal year [years]. The
  report must include information regarding:
               (1)  licensing, inspection, and enforcement
  activities;
               (2)  changes to commission policies; and
               (3)  complaint information.
         (b)  The commission shall post the report on the commission's
  Internet website.
         SECTION 18.  Section 651.164, Occupations Code, is amended
  to read as follows:
         Sec. 651.164.  LICENSE EXPIRATION; TERM. (a) A license
  issued under this chapter, other than a provisional license, is
  valid for a term of one or two years as provided by commission rule.
         (b)  The commission by rule may adopt a system under which
  licenses expire on various dates during the year. For 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 19.  Subchapter E, Chapter 651, Occupations Code, is
  amended by adding Section 651.2035 to read as follows:
         Sec. 651.2035.  CONFIDENTIALITY OF COMPLAINT INFORMATION.
  (a) Except as provided by Subsection (b), a complaint and
  investigation and all information and materials compiled by the
  commission in connection with the complaint and investigation are
  not subject to:
               (1)  disclosure under Chapter 552, Government Code; or
               (2)  disclosure, discovery, subpoena, or other means of
  legal compulsion for release of information to any person.
         (b)  A complaint or investigation subject to Subsection (a)
  and all information and materials compiled by the commission in
  connection with the complaint may be disclosed to:
               (1)  the commission and commission employees or agents
  involved in license holder discipline;
               (2)  a party to a disciplinary action against the
  license holder or that party's designated representative;
               (3)  a law enforcement agency; or
               (4)  a governmental agency, if the disclosure is
  required or permitted by law.
         (c)  Notwithstanding Subsection (a), on the dismissal or
  final resolution of a complaint or investigation, a final order of
  the commission is subject to disclosure under Chapter 552,
  Government Code.
         SECTION 20.  Section 651.259(e), Occupations Code, is
  amended to read as follows:
         (e)  The commission shall conduct a criminal background
  check 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.
         SECTION 21.  Section 651.2595(e), Occupations Code, is
  amended to read as follows:
         (e)  The commission may establish a fee for the issuance of a
  provisional license [licenses] in an amount provided by rule
  [reasonable and necessary to cover the cost of issuing the
  license].
         SECTION 22.  Sections 651.260(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  A [If a license issued under this chapter is lost or
  destroyed, the] license holder may apply to the commission for a
  duplicate license:
               (1)  if a license issued under this chapter is lost or
  destroyed; or
               (2)  as needed to comply with Section 651.261.
         (b)  The license holder must submit the application on a form
  prescribed by the commission and must submit with the application
  an affidavit verifying:
               (1)  for an applicant under Subsection (a)(1), the loss
  or destruction of the license;
               (2)  that the license holder is the person to whom the
  license was issued; and
               (3)  for an applicant under Subsection (a)(1), any
  other information concerning the loss or destruction of the license
  the commission requires.
         SECTION 23.  The heading to Subchapter H, Chapter 651,
  Occupations Code, is amended to read as follows:
  SUBCHAPTER H. LICENSE REQUIREMENTS: [CEMETERY,] FUNERAL[,] AND
  COMMERCIAL EMBALMER ESTABLISHMENTS
         SECTION 24.  Section 651.351(g), Occupations Code, is
  amended to read as follows:
         (g)  The commission may exempt a funeral establishment from
  the requirements of Subsection (d)(5) if the establishment meets
  the requirements for the exemption provided by commission rule[:
               [(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:
                     [(A)  the establishment's name and address;
                     [(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
                     [(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].
         SECTION 25.  Section 651.354, Occupations Code, is amended
  to read as follows:
         Sec. 651.354.  RENEWAL OF [CEMETERY OR] FUNERAL
  ESTABLISHMENT LICENSE. (a) The commission shall mail written
  notice to a [cemetery or] funeral establishment of the impending
  expiration of the establishment's license not later than the 30th
  day before the expiration date of the license. The notice must
  state that:
               (1)  to renew the license, the [cemetery or] funeral
  establishment must pay the renewal fee in an amount provided by rule
  not later than the license expiration date; and
               (2)  the license is automatically renewed on receipt of
  the renewal fee.
         (b)  A [cemetery or] funeral establishment that fails to pay
  the license renewal fee by the due date is subject to a late payment
  penalty equal to the amount charged for the license renewal fee.
         (c)  If the license is expired for longer than 30 days, the
  [cemetery or] funeral establishment may not operate as a [cemetery
  or] funeral establishment until the renewal fee and the late
  payment penalty are paid.
         [(d)     This section does not apply to a perpetual care
  cemetery.]
         SECTION 26.  Section 651.401, Occupations Code, is amended
  by amending Subsections (a), (b), and (d) and adding Subsection (e)
  to read as follows:
         (a)  A funeral director or embalmer must direct and
  personally supervise the removal or transfer [pickup] of a dead
  human body on first call.
         (b)  A dead human body may be transferred without a funeral
  director personally supervising [making] the transfer:
               (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.
         (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.
         (e)  The removal or transfer of a dead human body that does
  not occur on first call is exempt from the supervision requirements
  of this section.
         SECTION 27.  The heading to Section 651.4055, Occupations
  Code, is amended to read as follows:
         Sec. 651.4055.  RETAIL PRICE LIST; [CEMETERY OR] CREMATORY.
         SECTION 28.  Sections 651.4055(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  In this section, "retail price list" means a printed or
  typewritten list of the retail price of items or services provided
  by a [cemetery or] crematory.
         (b)  A retail price list must contain:
               (1)  the name, address, and telephone number of the
  [cemetery or] crematory;
               (2)  the effective date for the stated prices;
               (3)  notice required by Subsection (c); and
               (4)  any other items that the commission may by rule
  require.
         SECTION 29.  The heading to Section 651.4065, Occupations
  Code, is amended to read as follows:
         Sec. 651.4065.  PURCHASE AGREEMENT; [CEMETERY OR]
  CREMATORY.
         SECTION 30.  Section 651.4065(a), Occupations Code, is
  amended to read as follows:
         (a)  A purchase agreement must state:
               (1)  the name, address, and telephone number of the
  [cemetery or] crematory;
               (2)  the amount paid or owed to another person by the
  [cemetery or] crematory on behalf of the customer and each fee
  charged the customer for the cost of advancing funds or becoming
  indebted to another person on behalf of the customer;
               (3)  the printed notice required by Subsection (b);
               (4)  the name, mailing address, and telephone number of
  the commission;
               (5)  a statement that complaints may be directed to the
  commission; and
               (6)  any other items that the commission may by rule
  require.
         SECTION 31.  Section 651.455, Occupations Code, is amended
  to read as follows:
         Sec. 651.455.  FALSE OR MISLEADING STATEMENTS REGARDING
  FUNERAL MERCHANDISE OR FUNERAL[, CEMETERY,] OR CREMATORY SERVICES.
  [(a)] A person violates this chapter if the person uses a statement
  that misleads or deceives the public, including a fraudulent
  statement or any other type of a false or misleading statement
  regarding:
               (1)  a legal, religious, or cemetery requirement for
  funeral merchandise or funeral[, cemetery,] or crematory services;
               (2)  the preservative qualities of funeral merchandise
  or funeral[, cemetery,] or crematory services in preventing or
  substantially delaying natural decomposition of human remains;
               (3)  the airtight or watertight properties of a casket
  or outer enclosure;
               (4)  the licenses held by the personnel in the
  operation of the [cemetery,] crematory[,] or funeral
  establishment; or
               (5)  an activity regulated under this chapter,
  including the sale of funeral-related goods or services.
         SECTION 32.  Section 651.460, Occupations Code, is amended
  by amending Subsection (b) and adding Subsection (c) to read as
  follows:
         (b)  A funeral establishment violates this chapter if:
               (1)  the funeral establishment fails to substantially
  comply with Section 651.351;
               (2)  the funeral establishment or a person acting on
  behalf of the funeral establishment violates Chapter 193 or 361,
  Health and Safety Code; [or]
               (3)  the funeral establishment, a person acting on
  behalf of the funeral establishment, or a person directly or
  indirectly connected with the funeral establishment violates
  Chapter 154, Finance Code, or a rule adopted under that chapter; or
               (4)  the funeral establishment or a person acting on
  behalf of a funeral establishment allows or assists an unlicensed
  person to engage in an activity for which a person is required to
  hold a license under this chapter.
         (c)  A crematory violates this chapter if the crematory or a
  person acting on behalf of the crematory allows or assists an
  unlicensed person to engage in an activity for which a person is
  required to hold a license under this chapter.
         SECTION 33.  Section 651.501(a), Occupations Code, is
  amended to read as follows:
         (a)  After a hearing as provided by this subchapter, the
  commission may issue a reprimand, assess an administrative penalty,
  revoke, suspend, or probate the suspension of a license or
  provisional license, order a license holder to pay a refund under
  Section 651.603, or impose any combination of those penalties for a
  violation of this chapter or a rule adopted under this chapter.
         SECTION 34.  Section 651.601, Occupations Code, is amended
  by adding Subsection (a-2) to read as follows:
         (a-2)  The commission may bring an action for appropriate
  injunctive relief against a person who is not licensed under this
  chapter to enjoin a violation of this chapter or a rule adopted
  under this chapter.
         SECTION 35.  Subchapter M, Chapter 651, Occupations Code, is
  amended by adding Section 651.603 to read as follows:
         Sec. 651.603.  REFUND. (a) The commission may order a
  license holder to pay a refund to a person harmed by the license
  holder's violation of this chapter or failure to fulfill the terms
  of a purchase agreement with the person.
         (b)  The amount of a refund ordered under this section may
  not exceed the actual amount paid by the person to the license
  holder.
         SECTION 36.  Section 651.657, Occupations Code, is amended
  by adding Subsection (d) to read as follows:
         (d)  The application form for renewal of a license as a
  crematory establishment must allow the applicant to provide a
  written statement that the information previously provided to the
  commission under Subsection (b) has not changed, if applicable.
         SECTION 37.  Section 651.658, Occupations Code, is amended
  by amending Subsections (a) and (f) and adding Subsection (a-1) to
  read as follows:
         (a)  A [To renew a crematory establishment license, the]
  crematory establishment must annually[:
               [(1)]  file a report with the commission that lists the
  number of cremations performed at the crematory during the previous
  year.
         (a-1)  An applicant for renewal of a crematory establishment
  license shall apply to the commission and[;
               [(2)]  pay the required [license renewal] fee[; and
               [(3)     provide the information required by Section
  651.657 or a written statement that the information has not changed
  since previously provided].
         (f)  The commission shall impose a [$100] late fee in an
  amount provided by rule for each day a crematory establishment
  fails to submit the annual report required by this section if an
  extension has not been granted.
         SECTION 38.  The following provisions of the Occupations
  Code are repealed:
               (1)  Sections 651.154(b) and (c);
               (2)  Section 651.1571;
               (3)  Section 651.203(b);
               (4)  Section 651.353;
               (5)  Section 651.355; and
               (6)  Section 651.4065(c).
         SECTION 39.  The change in law made by this Act to Section
  651.051(a), Occupations Code, does not affect the entitlement of a
  member serving on the Texas Funeral Service Commission immediately
  before the effective date of this Act to continue to serve for the
  remainder of the member's term. As the terms of commission members
  expire, the governor shall appoint or reappoint members who have
  the qualifications required for members under Section 651.051(a),
  Occupations Code, as amended by this Act.
         SECTION 40.  (a) Except as provided by Subsection (b) of
  this section, Section 651.0511, Occupations Code, as amended by
  this Act, applies to a member of the Texas Funeral Service
  Commission appointed before, on, or after the effective date of
  this Act.
         (b)  A member of the Texas Funeral Service Commission who,
  before the effective date of this Act, completed the training
  program required by Section 651.0511, Occupations Code, as that law
  existed before the effective date of this Act, is required to
  complete additional training only on subjects added by this Act to
  the training program as required by Section 651.0511, Occupations
  Code, as amended by this Act. A member of the commission described
  by this subsection may not vote, deliberate, or be counted as a
  member in attendance at a meeting of the commission held on or after
  December 1, 2019, until the member completes the additional
  training.
         SECTION 41.  Section 651.259(e), Occupations Code, as
  amended by this Act, applies only to an application for a license
  submitted on or after the effective date of this Act.  An
  application for a license submitted before that date is governed by
  the law in effect immediately before the effective date of this Act,
  and the former law is continued in effect for that purpose.
         SECTION 42.  Section 651.351(g), Occupations Code, as
  amended by this Act, applies only to an exemption requested by a
  funeral establishment on or after the date the Texas Funeral
  Service Commission adopts rules providing for the requirements for
  an exemption under that subsection. A request made before that date
  is governed by the law in effect immediately before the effective
  date of this Act, and the former law is continued in effect for that
  purpose.
         SECTION 43.  Sections 651.460(b) and 651.501(a),
  Occupations Code, as amended by this Act, and Sections 651.460(c),
  651.601(a-2), and 651.603, Occupations Code, as added by this Act,
  apply only to conduct that occurs on or after the effective date of
  this Act. Conduct that occurs before that date is governed by the
  law in effect on the date the conduct occurred, and the former law
  is continued in effect for that purpose.
         SECTION 44.  The changes made by this Act to Chapter 651,
  Occupations Code, relating to fees under that chapter apply only to
  a fee that becomes due on or after the effective date of this Act.  A
  fee that became due before that date is governed by the law in
  effect on the date the fee became due, and the former law is
  continued in effect for that purpose.
         SECTION 45.  (a) Except as provided by Subsection (b) of
  this section, this Act takes effect September 1, 2019.
         (b)  Section 651.162, Occupations Code, as amended by this
  Act, takes effect September 1, 2020.