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MortSci 2012

Texas Funeral Law

Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid


Texas Administrative Code EXAMINING BOARDS PART 10 TEXAS FUNERAL SERVICE COMMISSION CHAPTER LICENSING AND ENFORCEMENT--PRACTICE AND 201 PROCEDURE TITLE 22

Rules RULE ยง201.1

Computation of Time

In computing any period of time prescribed or allowed by this chapter, by order of the agency, or by any applicable statute, the period shall begin on the day after the act, event, or default in controversy and conclude on the last day of such computed period, unless it be a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Source Note: The provisions of this ยง201.1 adopted to be effective April 5, 1976, 1 TexReg 694. RULE ยง201.2

Procedures and Criteria for Inspections of Funeral Establishments

(a) Inspection Procedures (1) All licensed funeral establishments shall be inspected at least once every two years. (2) All inspections shall be unannounced. (3) The inspector shall review prior inspection reports before inspecting a funeral establishment. If prior reports reveal problems, the inspector shall determine whether the establishment has corrected the previously identified problems or whether a pattern of violations or new violations exist. (4) Inspectors shall use reasonable efforts to conduct most of their inspections between the hours of 8:00 a.m. and 5:00 p.m., but funeral establishments are required to be open at all times to inspections for violations of Texas Occupations Code, Chapter 651, and Texas Health and Safety Code, Chapters 193 and 361. (b) Criteria for Risk-Based Inspections (1) History of Prior Violation. Funeral establishments shall be inspected annually until they are free of violations, if the commission previously found violations of Texas Occupations Code, Chapter 651, and Texas Health and Safety Code, Chapters 193 and 361 following biennial inspections. (2) Sanctions. Funeral establishments that have received a reprimand or letter of warning, that have been assessed administrative penalties, that have had licenses suspended, or that have been restrained or enjoined for violations of Texas Occupations Code, Chapter 651 or commission rules are subject to inspection at anytime within three (3) years following the date that the commission's


action became final. (3) Pendency of Investigation. If the commission is in the process of conducting an investigation of a funeral establishment based on a consumer complaint, staff may determine that an inspection is warranted for the limited purpose of proving or disproving the validity of the complaint. The scope of inspections under this subsection shall be limited to matters relating to the subject of the complaint. For example, if the consumer complaint relates to a variance between price charged for an item on the funeral purchase agreement and the published price for the item on the retail price list, the inspector may inspect a representative number of documents to determine or disprove the existence of a pattern of similar variances. RULE ยง201.3

Complaints and Investigations

Nothing in this rule shall be deemed to vest substantive or procedural rights in any person. The rule's purpose is twofold: to give affected persons notice of the process the commission follows in the processing of complaints; and to comply with the rulemaking requirements imposed by Texas Occupations Code, ยง651.202. (1) Any person may file a complaint with the commission concerning alleged violations of any statute over which the commission has regulatory authority as well as commission rules. Complaints should be addressed to the Commission's address that appears on its website at www.tfsc.state.tx.us. (2) Staff will provide Complaint forms to a person who wishes to file a complaint. Complaint forms may also printed from the commission's website in both Word and PDF format. The commission-approved form provides space for the following information: (A) the name and business address of the person or establishment Complained of; (B) the time and place where the acts occurred; (C) the nature of the acts set out in sufficient detail to enable the Commission to investigate the complaint and the person or entity complained of to identify the incident and prepare a defense; and (D) the names, addresses, and telephone numbers of any persons who witnessed the acts. (3) The form also asks for any pertinent contracts, photographs, letters, advertisements or other documents. (4) All complaints must be in writing, other than complaints alleging conduct which, if true, would constitute an imminent or continuing threat to the public health, safety, or welfare. These latter complaints must be reduced to writing before the conclusion of the investigative process. (5) Complaints are initially referred to an investigator who will acknowledge receipt of the complaint in writing to the complainant. The investigator next will send a copy of the complaint to the respondent by certified mail. The letter of transmittal will request a written narrative response and possibly documents from the respondent within 15 days of receipt of the letter. (6) The investigator, at the conclusion of the investigation, will prepare a preliminary summary of the allegations, the investigator's findings, and a recommendation for disposition to the executive director. (7) The director will determine first if the substance of the complaint falls within the commission's jurisdiction. If not, staff will dismiss the complaint, notify the complainant, and possibly refer the matter to an entity having authority over the matter, if the facts show a probable


violation of law. If the investigator determines that the facts indicate a probable violation of law or rule over which the commission has regulatory authority, the investigator will prepare a Preliminary Report. This Report will state the facts, upon which it is based and that a violation has occurred. The director will assess the penalty amount based on the disciplinary guidelines described in ยง201.11 of this title (relating to Disciplinary Guidelines). (8) The investigator will send the person charged with the violation (respondent) a copy of the Preliminary Report and notification of an informal conference. (9) Staff will send the report by first class mail, certified and regular, to the respondent's address on file with the Commission. (10) The executive director presides over informal conferences. The conferences are usually attended by the legal assistant, the administrator of compliance and consumer affairs and the investigator who investigated the complaint. The commission's legal counsel may attend. The complainant is entitled to attend the conference as well. In this event the panel typically hears first from the complainant followed by the person charged with the violation. The respondent is entitled to counsel. (11) No court reporter will be present, the parties will not be placed under oath, and no audio or video recording of the conference will be made or allowed for use in any subsequent proceeding. Staff may notate whether or not the complainant and/or the respondent attended the informal conference as well as any pertinent information provided by either participant relating to the complaint. The executive director or legal counsel will first explain the process used at the informal conference. The respondent is then given the opportunity to show compliance with all applicable laws and rules. (12) The conference panel will confer about the complaint following the respondent's presentation. The executive director makes a decision after receiving input from the legal assistant, the administrator of compliance and consumer affairs, the investigator, and counsel, if in attendance. The executive director may decide to dismiss the complaint, investigate further, or take disciplinary action. The executive director will give respondent verbal notice of the director's decision at the conclusion of the conference. If the complaint is dismissed, staff will notify the complainant. (13) The executive director, administrator of compliance and consumer affairs, or the investigator will provide a case summary, informal conference notes, respondent's complaint history and the executive director's recommendation to the commission at the next scheduled meeting, unless further investigation is needed. The commission may affirm the executive director's decision made at the informal conference, increase or decrease a penalty imposed, dismiss or order further investigation. (14) Staff will mail notice of the commission's decision to the respondent by first class mail, certified and regular, within 10 days of the meeting date to the respondent's address on file with the Commission. If the decision imposes sanctions, respondent shall, within 30 days accept the decision and pay the penalty amount; request a SOAH formal hearing; or request mediation at the SOAH. (A) Staff will notify the complainant if respondent accepts the decision and pays the penalty imposed. (B) The Administrative Procedure Act, Texas Government Code Chapter 2001, ยง2001.051 et seq. and SOAH's Rules of Practice and Procedure, 1 TAC Chapter 155 et seq. govern SOAH formal hearings and subsequent decisions. (C) The commission's Alternate Dispute Resolution Policy and Procedure Rule, ยง207.1 of this


title govern SOAH meditations. (15) The commission will notify complainants upon the final disposition of any complaint. (16) The Office of the Attorney General represents the commission before SOAH and in court. RULE ยง201.4

Subpoenas

The executive director may issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, documents and/or other material relevant to the complaint under investigation or pending at the State Office of Administrative Hearings. RULE ยง201.8

Procedures for the Petition for Adoption of Rules

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission--Texas Funeral Service Commission. (2) Person--Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency. (3) Rule--Any commission statement of general applicability that implements interprets, or prescribes law or policy or describes the procedure or practice requirements of the commission. The term includes the amendment or repeal of a prior rule. It does not include statements concerning only the internal management or organization of the commission not affecting private rights or procedures. (b) Any interested person may submit a petition to the commission requesting the adoption, amendment, or repeal of a rule. Petitions will be deemed submitted only when actually received in printed or typewritten form by the executive director. (c) Each petition will clearly state: (1) the proposed rule(s), including the specific language recommended; (2) a brief explanation of the proposed rule; (3) the statutory or other authority under which the rule is proposed to be promulgated, including a concise explanation of the particular statutory or other provisions under which the rule is proposed; (4) the rationale or justification for the adoption, amendment, or repeal of the rule, including the public benefit to be expected. (d) When a petition is received that meets the requirements of subsection (c) of this section, the executive director will forward the petition to the presiding officer who will either assign the task to staff or an appropriate group of interested persons to study the petition and make a recommendation to the commission. (e) The commission will consider the submission of a petition and may either deny the petition or instruct the executive director to initiate rulemaking proceedings in accordance with the Administrative Procedure and Texas Register Act, ยง5. In the event a petition is denied, the executive director will advise the interested person in writing of the denial and will state the reason for the denial of the commission. RULE ยง201.9

Preparation and Dissemination of Consumer


Information (a) The commission shall prepare and disseminate to the general public information of consumer interest explaining matters relating to funerals, describing the regulatory functions of the commission, and describing the commission's procedure by which consumer complaints are filed and resolved by the commission. (b) The commission shall review and revise the information of consumer interest prepared and disseminated by the commission on a biennial basis. (1) Any person or groups of persons may submit in writing any proposal concerning the content and/or the methods of dissemination of information of consumer interest prepared and disseminated by the commission. Once submitted, such proposal shall become the property of the commission and will not be returned. (2) The commission shall annually review any proposals submitted to the commission in writing concerning the content and/or method of dissemination of information of consumer interest. (c) Information of consumer interest prepared and disseminated by the commission shall be available to the general public through funeral establishments. The funeral director in charge shall prominently display commission consumer brochures in the public view within the funeral establishment. Information of consumer interest prepared and disseminated by the commission shall also be available, upon request, to individuals, and to the following types of groups, organizations, and institutions, i.e., better business bureaus, hospice groups, consumer groups, libraries, and legislators. RULE §201.10

Witness Travel Reimbursement

The commission will reimburse a witness in a formal disciplinary hearing for travel expenses at the rates established by the General Appropriations Act for classified employees of the commission. All documentation required of classified employees will also be required of witnesses. RULE §201.11

Disciplinary Guidelines

When the commission finds that a licensee has violated Occupations Code Chapter 651; Health and Safety Code Chapter 695, §§711.003, 711.008, 711.010, 711.011, 711.021 - 711.035, 711.038, 711.041, 711.042, 711.061, 711.062, Chapter 716 or any of the commission's rules, it shall: (1) before a SOAH hearing, issue Preliminary finding of facts and conclusions of law, in addition to imposing appropriate penalties ranging from a letter of warning to monetary administrative penalties of not less $100 but not more than $5,000 for each violation in accordance with Texas Occupation Code §651.552. (2) The following guidelines will be utilized in the setting of administrative penalties. (A) Texas Occupation Code §651.451, Certain Fraudulent and Deceptive Acts. (i) Presentation to the Commission of any license, certificate or diploma that was illegally or fraudulently obtained, or when fraud or deception was used in passing an examination. The impersonation of, or acting as a proxy for, another in any examination required by this Act for a funeral director and/or embalmer, (1) & (2)--$1,000 - $5,000;


(ii) The purchase, sale, barter, or use, or any offer to purchase, sale, barter, or use any license, certificate, or transcript of license or certificate, in or incident to an application to the Commission for license to practice as a funeral director and/or embalmer, (3)--$1,000 - $5,000; (iii) Altering, with fraudulent intent, any funeral director and/or embalmer license certificate, or transcript of license or certificate, (4)--$1,000 - $5,000; (iv) The use of any funeral director and/or embalmer license, certificate, diploma or transcript of any such funeral director and/or embalmer license, certificate, or diploma that has been fraudulently purchased, issued, counterfeited, or materially altered, (5)--$1,000 - $5,000; (v) The impersonation of a licensed funeral director or embalmer as authorized by the Act, or permitting or allowing another to use a person's license or certificate to practice as a funeral director or embalmer in this state, (6) & (7)--$1,000 - $5,000; (vi) Presentation of false certificate of work done as a provisional licensee (8)--$100 - $2,000. (B) Texas Occupation Code 651.452, Lack of Fitness to Practice. (i) Conviction of a misdemeanor related to the practice of embalming or funeral directing; or a felony, (1)--$500 - $5,000; (ii) Being unfit to practice as a funeral director and/or embalmer by reason of insanity and having been adjudged by a court of competent jurisdiction to be of unsound mind, NONE; (iii) Unfitness by reason of present substance abuse, NONE. (C) Texas Occupation Code 651.453, Unethical Advertising. The use of any advertising statement of a character that misleads or deceives the public or use of, in connection with advertisements, the names of person who do not hold a license as a funeral director or embalmer and representing them as being so licensed, (1)--$500 - $3,000. (D) Texas Occupation Code 651.454, Other Unethical Conduct in Soliciting Customers. (i) Failure by any person arranging for funeral services or merchandise to: provide a prospective consumer with a copy of the brochure required by Section 651.404 at the beginning of the arrangement process (1)--$500 - $5,000; (ii) provide a retail price list to an individual inquiring in person about any funeral service or merchandise for that person to keep, (2)--$500 - $5,000; (iii) explain to the customer or prospective customer that a contractual agreement for funeral services or merchandise may not be entered into before the presentation of the retail price list to that person; or (3)--$500 - $5,000 (iv) provide general price information by telephone within a reasonable time, (4)--$500 $5,000; (v) restricting, hindering, or attempting to restrict or hinder: (I) the advertising or disclosure of prices and other information regarding the availability of funeral services and funeral merchandise that is not deceptive or unfair to consumers, or (II) agreements for funeral services between any consumer or group of consumers and funeral directors and embalmers, (b)(1) & (2)--$500 - $5,000; (vi) Whenever a licensee, provisional licensee, or any other person, whether an employee, agent, or representative or one in any manner associated with a funeral establishment shall solicit business or offer any inducement, pecuniary or otherwise, for the purpose of securing or attempting to secure business of such funeral establishment, unless such solicitation is made pursuant to a permit issued under Chapter 154 Texas Finance Code, (c)--$1,000 - $5,000. (E) Texas Occupation Code 651.455, False or Misleading Statements Regarding Funeral Merchandise or Funeral Services. (i) The use of any statement that misleads or deceives the public, including but not limited to


false or misleading statements regarding any legal, religious, or cemetery requirement for funeral merchandise or funeral services, (1)--$500 - $5,000; (ii) the preservative qualities of funeral merchandise or funeral services in preventing or substantially delaying natural decomposition or decay of human remains, (2)--$500 - $5,000; (iii) the airtight or watertight properties of a casket or outer enclosure, (3)--$500 - $5,000; (iv) representations as to licensed personnel in the operation of a funeral establishment, (4)-$500 - $5,000. (F) Texas Occupation Code 651.456, Unethical Conduct Regarding Custody of Dead Human Body (i) Taking custody of a dead human body without the permission of the person or the agent of the person authorized to make funeral arrangements for the deceased, (1)(A)--$250 - $5,000; (ii) or without the permission of the medical examiner or the justice of the peace when a medical examiner or justice of the peace has jurisdiction over the body under Articles 49.02, 49.03, 49.04, and 49.05, Code of Criminal Procedure, (1)(B)--$250 - $5,000; (iii) refusing to promptly surrender a dead human body to a person or agent authorized to make funeral arrangements for the deceased, (2)--$250 - $5,000. (G) Texas Occupation Code 651.457, Unethical Conduct Regarding Embalming. (i) embalming a body without the expressed written or oral permission of a person authorized to make funeral arrangements for the deceased, (a)(1)(A)--$250 - $5,000, or; (ii) without making a documented reasonable effort over a period of at least three (3) hours to obtain the permission, (B)--$250 - $5,000; (iii) embalming or attempting to embalm without proper authority a dead human 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, (2)--$250 - $5,000; (iv) 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, (3)--$250 - $5,000; (v) 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, (4)--$250 $5,000. (H) Texas Occupation Code 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 regardless of any affiliation of the customer or whether the customer has a present need for the services or merchandise, $100 - $5,000; (I) Texas Occupation Code 651.459, Other Unethical Conduct In Providing Funeral Services. (i) willfully makes a false statement on a death certificate or a document required by this chapter or a rule adopted under this chapter, (a)(1)--$500 - $2,000; (ii) engages in fraudulent, unprofessional, or deceptive conduct in providing funeral services or merchandise to a customer, (2)--$1,000 - $5,000; (iii) dishonest conduct, willful conduct, negligence, or gross negligence in the practice of embalming or funeral directing that is likely to or does deceive, defraud, or otherwise injure the public, (3) $500 - $5,000; (iv) causes the execution of a document by the use of fraud, deceit, or misrepresentation, (4)-$750 - $5,000; (v) directly or indirectly employs a person to solicit individuals or institutions by whose influence dead bodies may be turned over to a particular funeral director, embalmer or funeral


establishment, (5)--$1,000 -$5,000; (vi) 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, (6)--$250 - $5,000; (vii) performing acts of funeral directing or embalming that are outside the licensed scope and authority of the licensee, or performing 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, (7)--$500 - $5,000; (viii) Statement or implication by a funeral director or embalmer that a consumer's concern with the cost of any funeral service or funeral merchandise is improper or indicates a lack of respect for the deceased, (b)--$500 - $5,000; (ix) Failure by the Funeral Director in Charge to provide a funeral director or an embalmer for direction or personal supervision for a "first call", (c)--$500 - $5,000. (J) Texas Occupation Code 651.460, Prohibited Practices Related To Failure to Comply With Other Legal Requirements. (i) arranges for funeral services or merchandise and fails to provide a customer with a purchase agreement as required by Section 651.406, (a)(1)--$500 - $5,000; (ii) fails to retain and make available to the commission, on request, copies of all price lists, written notices, embalming documents, and memoranda of agreement required by this chapter for two years after the date of distribution or signing, (2)--$250 - $5,000; (iii) violation of this chapter, any rule adopted under this chapter, an order by the commission revoking, suspending, or probating a license, an order assessing and administrative penalty, or an agreement to pay an administrative penalty regardless of whether the agreement is express or implied by Section 651.554, (3)--$500 - $5,000; (iv) allows the use of a dead human body by an embalming establishment for research or educational purposes without complying with Section 651.407, (4)--$500 - $5,000; (v) associated with the funeral establishment, whether as an employee, agent, subcontractor, assignee, owner, or otherwise, and whether licensed or unlicensed, to comply with chapter or a rule adopted under this chapter, (5)--$100 - $5,000; (vi) failure of a funeral establishment to substantially comply with Section 651.351 Licensed Required violation is against the funeral establishment, (b)(1)--$250 - $5,000; (vii) the funeral establishment or a person acting on behalf of the funeral establishment violates Chapter 193 or 361, Health & Safety Code - violation is against the funeral establishment, (2)-$250 - $5,000; (viii) any violation by a funeral establishment or a person acting on behalf of a funeral establishment or any person directly or indirectly connected with a funeral establishment of Chapter 154, Finance Code or a rule adopted under that chapter, (3)--$250 - $5,000. (3) Based upon consideration of the following factors, the Executive Director may use the following criteria in the recommendation to the commissioners for the assessment of administrative penalties: (A) the severity of the offense plus 0 - 10 points (B) the danger to the public plus 0 - 10 points (C) the number of repetitions of offense plus 0 - 10 points (D) the number of complaints previously found justified against the licensee plus 0 - 10 points (E) the length of the time licensee has practiced plus 0 - 10 points


(F) the actual damage, physical or otherwise, caused by the violations; plus 0 - 10 points (G) the deterrent effect of the penalty imposed plus 0 - 10 points (H) refusal by licensee to correct or stop violations plus 0 - 10 points (I) penalties imposed for related offenses plus 0 - 10 points (J) any other mitigating or aggravating circumstances plus or minus 0 - 10 points (K) attempts by licensee to correct or stop violations minus 0 - 10 points (4) Penalties imposed by the commission using the guidelines of paragraphs (2) and (3) of this section may be imposed for each violation, but may not exceed the following limitations: (A) imposition of an administrative penalty not to exceed $5,000 for each count or separate offense; (B) utilizing the point system described in paragraph (3), a total point accumulation of 0 - 10 results in a penalty less than $1,000; 10 - 20 points result in a penalty between $1,000 - $2,000; 20 - 30 points result in a $2,000 penalty; 30 - 40 points result in a penalty between $2,000 $3,000; 40 - 50 points result in a penalty of $3,000; 50 - 60 points result in a penalty of between $3,000 - $4,000; 60 - 70 points result in a penalty of $4,000; 70 - 80 points results in a penalty of $4,500; 80 - 100 points results in a penalty of $5,000. (5) The provisions of paragraphs (1) - (4) of this section shall not be construed so as to prohibit other appropriate civil or criminal action and remedy and enforcement under other laws. (6) After a hearing, or with the waiver of a hearing, the commission may, in it's discretion, using the disciplinary guidelines in paragraph (2) - (3), (A) place a license on probation for a period of time and subject to such conditions as the commission may specify; (B) suspend or revoke a license; or (C) deny the application for a license.

RULE ยง201.12

Retired Licenses

(a) Upon written application to the commission, any licensed funeral director, embalmer or dual licensee aged 65 or older or who has a disability of 75% or greater will be placed in a retired active or retired inactive status. Such application will be accepted only at the time of that individual's regularly scheduled license renewal. (b) Any individual holding a retired inactive status license may convert at any time to a retired active status license upon written notification to the commission and payment of 50% of the current renewal fee charged licensees not in a retired status, plus show compliance with continuing education requirements or pay a $300 continuing education non-compliance fee. Fees are nonrefundable. (c) An individual may not convert from a retired active status to a retired inactive status until his regular license renewal period. (d) Any individual holding a retired inactive status license will be subject to disciplinary action if the individual performs, for compensation, any act of funeral directing and/or embalming. (e) Proof of disability will be required. Certification from an organization such as Veteran's Administration, the United States armed forces, a state, county, or local government agency, or competent medical authority may be submitted to the commission. If the commission questions the validity of the certification, a certification from a second source may be required. Submission of


required documentation does not imply a guarantee of acceptance of documentation. RULE §201.14

Introduction to Joint Memorandum of Understanding

(a) Texas Civil Statutes, Article 4582(b), §4(I), mandates the Texas Department of Banking, the Texas Funeral Service Commission, and the Texas Department of Insurance to adopt by rule a Joint Memorandum of Understanding relating to prepaid funeral services and transactions that: (1) outlines the responsibilities of each agency in regulating these services and transactions; (2) establishes procedures to be used by each agency in referring complaints to one of the other agencies; (3) establishes procedures to be used by each agency in investigating complaints; (4) establishes procedures to be used by each agency in notifying the other agencies of a complaint or of the investigation of a complaint; (5) describes actions the agencies regard as deceptive trade practices; (6) specifies the information the agencies provide consumers and when that information is to be provided; and (7) sets the administrative penalties each agency imposes for violations. (b) Any revisions to the Joint Memorandum of Understanding will be adopted by rule by each agency. (c) The Joint Memorandum of Understanding entered into by the three agencies is found at §201.15 of this title (relating to Joint Memorandum of Understanding). RULE §201.15

Joint Memorandum of Understanding

(a) Pursuant to Texas Occupations Code, Chapter 651, the Texas Funeral Service Commission (herein referred to as the TFSC), the Texas Department of Insurance (herein referred to as the TDI), and the Texas Department of Banking (herein referred to as the DOB) hereby adopt the following joint memorandum of understanding (JMOU) relating to prepaid funeral services and transactions. The TFSC, TDI, and DOB intend this memorandum of understanding to serve as a vehicle to assist the three agencies in their regulatory activities, and to make it as easy as possible for a consumer with a complaint to have the complaint acted upon by all three agencies, where appropriate. In order to accomplish this end, where not statutorily prohibited, the three agencies will share information between the agencies which may not be available to the public generally under the Texas Public Information Act, Government Code §§552.001-552.321. Such information will be transmitted between agencies with the notation on the information that it is considered confidential, is being furnished to the other agencies in furtherance of their joint responsibilities as state agencies in enforcing their respective statutes, and that it may not be disseminated to others except as required. (b) Responsibilities of each agency in regulating prepaid funeral services and transactions: (1) the Texas Funeral Service Commission is responsible for the following: (A) licensing funeral directors, embalmers, provisional funeral directors, provisional embalmers and funeral establishments. The TFSC may refuse to license a person or establishment that violates Chapter 154, Texas Finance Code under Texas Occupations Code 651.460 (b)(3). (B) taking action against any licensee violating Chapter 154, Texas Finance Code under Texas


Occupations Code 651.460 (b)(3). (C) taking action against any funeral director in charge and/or funeral establishment for violations of Chapter 154, Texas Finance Code, by persons directly or indirectly connected to the funeral establishment, under Texas Occupations Code 651. 460(b)(3). (2) The Texas Department of Banking is responsible for administering Chapter 154, Texas Finance Code, including, but not limited to, the following: (A) issuing permits to sell prepaid funeral services or funeral merchandise pursuant to Chapter 154, Texas Finance Code. (B) approving forms for sales contracts pursuant to Chapter 154, Texas Finance Code. (C) canceling or refusing to renew permits pursuant to Chapter 154, Texas Finance Code; providing notice of alleged violations to the attorney general of Texas and to sellers pursuant to Chapter 154, Texas Finance Code; (D) approving the release or withdrawal of funds under certain circumstances or for certain purposes, pursuant to Chapter 154, Texas Finance Code; (E) providing for reporting requirements and performing examinations under Chapter 154, Texas Finance Code; (F) maintaining a guaranty fund with respect to prepaid funeral benefits owned by trusts, pursuant to Chapter 154, Texas Finance Code; (3) The Texas Department of Insurance is responsible for the following: (A) regulating licensed insurers that issue or propose to issue life insurance/annuity contracts which may fund prepaid funeral contracts; (B) regulating individuals/entities that perform the acts of an insurance agent(s) as defined in the Insurance Code, Articles 21.02 and Chapter 101, TIC; (C) regulating insurance/annuity contracts that may fund prepaid funeral contracts; (D) regulating unfair trade practices relating to the insurance/annuity contracts which may fund prepaid funeral contracts pursuant to Insurance Code, Article 21.21; (E) regulating unfair claims settlement practices by insurance companies pursuant to the Insurance Code, Article 21.21.2. (c) Procedures used by each agency in exchanging information with or referring complaint to one of the other agencies. (1) Exchanging information. If, upon receipt of a complaint, or during the course of an investigation, an agency (referred to as the receiving agency) receives any information that might be deemed of value to another of the agencies (referred to as the reviewing agency), the receiving agency will contact the reviewing agency and will forward the relevant information to the reviewing agency at its request. (2) Referral of complaints for handling. When an agency receiving a complaint refers the complaint to another agency for handling, the receiving agency will contact the complainant in writing informing him or her of the referral, and providing contact information to the reviewing agency, and encouraging the complainant to re-contact the receiving agency if she or he has any problem with the reviewing agency's processing of the complaint. (3) Complaint procedures. The three agencies will work together to establish procedures to ensure complaints will be fully resolved by the reviewing agency. (d) Procedures to be used by each agency in investigating a complaint. (1) All agencies. (A) Each agency will develop an internal complaint procedures manual for violations relating to prepaid funeral services and/or transactions. The manual should at a minimum provide for:


(i) cross-checking the other two agencies' list of licensees against the investigating agency's list; (ii) background checks on disciplinary proceedings and license eligibility-including background checks into the two other agencies' complaints, disciplinary proceedings, and licensing process involving the same licensee if any, where not prohibited by law; (iii) outlining of relevant law for each agency with check-point steps to ensure all relevant information has been obtained from complainant and references to applicable legal provisions; (iv) identification of necessary data and documents to be obtained from the complainant; and (v) such other steps deemed necessary for the agency to perform an adequate and appropriate investigation. (B) Each agency will maintain its centralized complaint resolution process with a long-term goal of integrating the complaint resolution process, which includes the complaint tracking system, with the other agencies in the most effective, cost-efficient manner. (C) Within four months from the final adoption of the JMOU by rule making, the DOB, TFSC, and TDI will develop one or more complaint and referral forms that are substantially similar in content and format to be used by each agency in processing complaints relating to prepaid funeral services and/or transactions. (D) Each reviewing agency will provide periodic, no less than quarterly, status reports on the complaint investigation to the receiving agency or agencies. In addition, the reviewing will contact the complainant to inform him or her of the status of the investigation. (E) Each agency will develop with the other agency, or other two agencies, a written plan for conducting joint investigations where appropriate which, at a minimum, establishes a case manager for the investigation, establishes the divisions of duties among the agencies, and establishes a timeline for completion of the investigation. (F) As soon as possible following the final adoption of the JMOU by rule making the DOB, TFSC, and TDI will each ensure its complaint resolution procedure is accessible to the public by reviewing its procedures, forms, brochures, and letters to determine what steps, if any, are needed to remedy problems of accessibility. The DOB, TFSC, and TDI will implement the needed steps as soon as possible thereafter. (G) The TDI, DOB, and TFSC commit to a long-term goal with a five-year planning horizon to develop an efficient and cost-effective way to ensure that the three agencies can readily exchange information and that there is effective and easy access by each of the three agencies to the information and data held by the other agencies relating to complaints and information regarding licenses in the prepaid funeral services area. (2) The Texas Funeral Service Commission. (A) The TFSC, in accordance with Texas Occupations Code, Chapter 651, will investigate violations of prepaid funeral services only if the investigation does not interfere with or duplicate an investigation conducted by the DOB. (B) The TFSC will, upon request, assist the DOB and/or the TDI with investigations. (3) Texas Department of Banking. (A) Complaints received by the Special Audit Division will be entered into a complaint log and assigned a reference number. If, after agency notice to the subject of the complaint, the complaint is not resolved, the DOB will investigate. (B) If disciplinary action against a DOB permittee is appropriate, the matter will be referred to the agency's legal staff. (C) If the complaint involves a matter handled by either the TDI or TFSC, as well as a violation


of the DOB statutes or regulations, the DOB will coordinate the investigation with either or both of these agencies, as appropriate. The DOB will, upon request, assist the TFSC and/or TDI with investigations. (D) In the event that a license under the TFSC's jurisdiction is found to have violated one or more provisions of Chapter 154, Texas Finance Code, the DOB will inform the TFSC of the violation(s) in writing and provide documentation supporting the occurrence of the violation(s). (4) Texas Department of Insurance. (A) Complaints received by the Consumer Services area of the TDI will be logged in and investigated. Other areas of the agency can be called upon for assistance in the investigation of the complaint where appropriate. (B) If disciplinary action against a licensee of the TDI is found to be appropriate, the matter will be referred to the Compliance Intake Unit of the TDI. (C) If the complaint involves a matter handled by either the DOB or TFSC, as well as a violation of the TDI statutes or regulations, the investigation will be coordinated with either or both of those agencies. (D) The TDI will, upon request, assist the TFSC and/or DOB with investigations. (e) Actions the agencies regard as deceptive trade practices. (1) The TFSC, the DOB, and the TDI regard as deceptive trade practices those actions found under the Texas Business and Commerce Code, sec. 17.46. (2) With respect to trade practices within the business of insurance, the TDI regards as deceptive trade practices those actions found under the Insurance Code, Article 21.21, and other articles of the Code and the regulations promulgated by the TDI thereunder. (f) Information the agencies will provide consumers and when that information is to be provided. (1) The TFSC, DOB, and TDI will continue to provide consumers with the brochure entitled "Facts About Funerals" developed by TFSC (in Spanish and in English). As soon as possible after the final adoption of the JMOU by rule making, the agencies will update the brochure to provide information about insolvency, the guaranty funds, and consumer complaints, and make the brochure accessible under the terms of the American with Disabilities Act. The agencies will provide other relevant consumer brochures to each other. (2) The TDI will maintain its toll-free number, and TFSC and DOB will each work toward consumer access via a toll-free number. Each agency will include its toll-free number as a prepaid funeral consumer protection resource in the respective agency's consumer information materials. The DOB, TFSC, and TDI will routinely inform consumers of options within the agency's knowledge available to them to resolve the complaint. (3) The TFSC, DOB, and TDI, as state agencies, are subject to the Texas Public Information Act, Government Code §§552.001 -552.321. Upon written request, the three agencies will provide consumers with public information which is not exempt from disclosure under that Act. As noted in the preamble to this JMOU, the agencies may, where not statutorily prohibited, exchange information necessary to fulfill their statutory responsibilities among each other, without making such information public information under the Open Records Act. (g) Administrative penalties each agency imposes for violations. (1) All agencies. (A) The DOB, TDI, and TFSC will create a working group to develop recommendations concerning the three agencies working together on enforcement actions using the resources of the attorney general and/or prosecutorial or investigative agencies, where appropriate. (B) The DOB, TDI, and TFSC will refer DTPA and other such violations to the Federal Trade


Commission and/or the attorney general whenever appropriate. (2) Texas Funeral Service Commission. The TFSC may impose an administrative penalty, issue a reprimand, or revoke, suspend, or place on probation any licensee who violates Chapter 154, Texas Finance Code. The recommended range of administrative penalty for a violation of Chapter 154, Texas Finance Code is $1,000 - $5,000 for each violation of Chapter 154, Texas Finance Code by a person directly or indirectly connected to the funeral establishment, under 201.11(2)(D)(vi) of this title (relating to Disciplinary Guidelines). (3) Texas Department of Banking. The DOB

may impose the following administrative penalties: (A) cancel a permit or refuse to renew a permit pursuant to Chapter 154, Texas Finance Code. (B) seize prepaid funeral funds and records of a prior permit holder pursuant to Chapter 154, Texas Finance Code. (4) Texas Department of Insurance. TDI administrative penalties vary based on the violation; TDI sanctions are imposed under the Insurance Code, Article 1.10. (h) Meetings for developing cooperative efforts in regulation. (1) The DOB and TDI will develop an insolvency alert among themselves to minimize the drain of trust funds and premiums consistent with their respective statutory provisions. They will also clarify each agency's responsibility to access the respective guaranty fund vis-Ă -vis the other agency. (2) The DOB, TDI, and TFSC will develop methods to coordinate the efforts of the agencies to articulate the funeral provider's responsibility in the event of seller and/or insurance company insolvency. (3) Each agency should seek input from the other agencies on any proposed agency regulations relating to prepaid funeral services and/or transactions; and, where appropriate, legislative recommendations concerning prepaid funeral services and/or transactions. (4) The three agencies will provide lists of their key contact personnel and their telephone numbers to each other. (5) In order to better accomplish the exchange of information and coordination of regulation described in this memorandum of understanding, the appropriate staff of the TFSC, DOB, and TDI shall meet, at a minimum, once a year, to discuss matters of mutual regulatory concern and share updates of the regulations promulgated by the respective agencies.

RULE §201.16

Memorandum of Understanding with the Texas Department of State Health Services

(a) Purpose. The purpose of this section is to implement Texas Occupations Code, Chapter 651, 76th Legislature, 1999, and Health and Safety Code, Chapters 193 and 195. In an effort to better protect the public health, safety and welfare, it is the legislative intent of the laws of the Texas Department of State Health Services (Department) and the Texas Funeral Service Commission


(TFSC) to adopt by rule a memorandum of understanding to facilitate cooperation between the agencies by establishing joint procedures and describing the actual duties of each agency for the referral, investigation, and resolution of complaints affecting the administration and enforcement of state laws relating to vital statistics and the licensing of funeral directors and funeral establishments. (b) Scope. (1) The Memorandum of Understanding (MOU) includes the respective responsibilities of the Department and the TFSC in regulating any person or entity under the Health and Safety Code, Chapters 193 and 195, concerning the completion and filing of death records. (2) The Department and the TFSC will implement the cooperative procedure described in this memorandum to refer complaints to the other agency when that complaint falls within the other agency's jurisdiction or may have an effect on the administration and enforcement of the law for which the other agency is responsible. (3) The Department and the TFSC will implement the cooperative procedure described in this MOU in order to notify the other agency of violations of Health and Safety Code, Chapters 193 and 195; and Texas Occupations Code, Chapter 651 by funeral directors and funeral establishments, and to assist and encourage funeral directors, embalmers, and funeral establishments to conform their activities relating to the completion and filing of death records. (4) The MOU does not limit the authority of either agency, acting in its own capacity under state or federal law, to investigate complaints that fall within that agency's statutory jurisdiction. (c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Agency--Texas Department of State Health Services or the Texas Funeral Service Commission. (2) Death record--A report of death, death certificate, or a burial-transit permit, and such other forms as the Texas Department of State Health Services determine to be necessary. (3) Department--The Texas Department of State Health Services or any local registrar. (4) Funeral Director--A person who for compensation engages in or conducts, or who holds himself out as being engaged, for compensation, in preparing, other than the embalming, for the burial or disposition of dead human bodies, and maintaining or operating a funeral establishment for the preparation and disposition, or for the care of dead human bodies. (5) Funeral establishment--A place of business used in the care and preparation for burial or transportation of dead human bodies, or any other place where one or more persons, either as sole owner, in co-partnership, or through corporate status, represent themselves to be engaged in the business of embalming and/or funeral directing, or is so engaged. (6) Local registrar-(A) The justice of the peace is a local registrar of births and deaths in a justice of the peace precinct. However, the duty of registering births and deaths may be transferred to the county clerk if the justice of the peace and the county clerk agree in writing and the agreement is ratified by the commissioners court. (B) The municipal clerk or secretary is the local registrar of births and deaths in a municipality with a population of 2,500 or more. (C) If a local registrar fails or refuses to register each birth and death in the district or neglects duties, the county judge or the mayor, as appropriate, shall appoint a new local registrar and shall send the name and mailing address of the appointee to the state registrar. (7) Person--


(A) includes corporation, organization, government, or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity; or (B) includes individual, corporation, or association where enforcement of Health and Safety Code, Chapter 195 is involved. (8) Physician--Any individual licensed by the Texas Medical Board to practice medicine in this state. (d) Delegation of responsibilities. The Department and TFSC agree that the agencies shall have the following responsibilities. (1) The Department shall have primary responsibility for the enforcement of the laws, rules, and policies governing the collection and maintenance of a system of vital statistics, including the collection and maintenance of death records for the State of Texas. Except as may be otherwise provided by law, the Department shall: (A) design the format and prescribe the data to be entered on all forms that constitute the death records of the state; (B) prescribe the rules and procedures to be followed by a funeral director licensed by TFSC in executing his/her responsibility to secure the required data and file the completed death record; (C) establish rules or policies to determine when a local registrar may accept the filing of a death record by a funeral director or the funeral director's designee and the purposes for which each record may be used, including the filing and uses of a delayed death certificate; and (D) enforce the provisions of the Health & Safety Code (Code), Chapter 193, in accordance with Chapter 195 of the Code relating to criminal penalties for violations of laws relating to vital statistics. These laws include Chapters 191, 192, and 193 of the Code and rules adopted thereunder. If the state registrar knows or suspects that a funeral director or a funeral establishment has violated the provisions of ยง195.003 or other provisions of Title 3 of the Code, he or she shall report the violation to the appropriate district or county attorney for prosecution. (2) The Texas Funeral Service Commission (TFSC) shall have primary responsibility for the enforcement of the laws, rules, and policies governing the licensing of funeral directors, embalmers, funeral and commercial embalming establishments. Except as may be otherwise provided by law, the TFSC has authority: (A) to inspect a funeral establishment for violations of Chapter 193 of the Code; and (B) to assess an administrative penalty or to reprimand, revoke, suspend, probate, deny or impose any combination of sanctions against a licensee in accordance with Texas Occupations Code Chapter 651, if the licensee has violated Chapter 193 or 195 of the Code or 25 TAC Chapter 181 of the Department rules; (3) Referral, investigation, and resolution of complaint. (A) If the Department receives a complaint that alleges conduct by a funeral director or a funeral establishment that constitutes possible violations of Texas Occupations Code, Chapter 651, or the rules adopted by TFSC under authority of Texas Occupations Code, Chapter 651, the Department may refer the complaint to the TFSC for investigation and disposition; however, if the complaint describes conduct by any person or entity licensed under Texas Occupations Code, Chapter 651 that constitutes possible violations of Chapters 193 and 195 of the Code, the Department shall retain jurisdiction over the subject matter of the complaint, investigate the complaint, and if valid, shall file a complaint with TFSC; or the Department or any local vital statistics registrar may refer the complaint to TFSC for investigation and adjudication. (B) If TFSC receives a complaint that alleges conduct by any person that constitutes possible violations of Title 3 of the Code, TFSC shall immediately notify the Department of the complaint


for any appropriate action by the Department. (C) If either agency receives a complaint that alleges facts that constitute a violation of any other law, the complaint shall be referred to the appropriate state administrative agency or state or local law enforcement agency. (D) Each agency shall appoint at least one person to an interagency team that will meet at least biannually and at that time review each unresolved complaint that affects the agencies jointly. (i) If the complaint has not been referred for investigation and resolution, the team will refer the complaint to the Department, TFSC, or other appropriate state administrative or law enforcement agency, including the State Board of Medical Examiners, or local law enforcement agency. (ii) If the Department and the TFSC determine that a complaint has been incorrectly referred, they will refer the complaint appropriately. (E) To the extent allowed by law, each agency shall cooperate and assist the other in the investigation and resolution of complaints. The following actions may be taken where indicated in the other's enforcement actions. (i) Either agency may request the assistance of the other in the investigation of a complaint. (ii) Each agency may share information obtained during the complaint investigation with the other agency when the subject matter of the complaint affects both agencies. (iii) Any information obtained by the TFSC as a result of a complaint investigation is not subject to public disclosure under the Government Code, §552.101, by virtue of Texas Occupations Code, Chapter 651, §651.203, until the case has reached its final disposition. (iv) Each agency shall make its personnel available to testify in an administrative or judicial proceeding brought on behalf of the other agency, when the personnel has knowledge of information that is material to the subject matter of the proceeding. (e) Effective date. This section shall become effective on August 1, 1994. The MOU may be amended at any time upon mutual agreement of the agencies and the amendments are effective as to each agency 20 days after the adopted amendments are filed with the Texas Register. RULE §201.18

Charges for Providing Copies of Public Information

The Commission determines charges for public information in accordance with the rules of the Building and Procurement Commission at 1 TAC §§111.61 - 111.71 et seq. RULE §201.19

Correspondence and Notice

(a) All correspondence to an establishment or to the funeral director in charge shall be sent to: the street address of the establishment as reflected on the license application, a post office box, or any other location as requested by the establishment's owner or the funeral director in charge, as the case may be. (b) Notice shall be deemed complete upon deposit by the Commission of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. CHAPTER

LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE


203

RULES RULE ยง203.1

Definitions

The following words and terms, when used in this chapter, shall have the following meanings. (1) Alternative container--An unfinished wood box or other non-metal receptacle or enclosure, without ornamentation or a fixed interior lining, which is designed for the encasement of human remains and which is made of fiberboard, pressed-wood, composition materials (with or without an outside covering) or like materials. (2) At-need--the time of need of funeral services or merchandise when a human being has become deceased. (3) Cash Advance item--Any item of service or merchandise described to a purchaser as a "cash advance", "accommodation", "cash disbursement" or similar term. A cash advance item is also any item obtained from a third party and paid for by the funeral provider on the purchaser's behalf. Cash advance items may include, but are not limited to: cemetery or crematory services; pallbearers; public transportation; clergy honoraria; flowers, musicians or singers; nurses; obituary notices; gratuities and death certificates. (4) Casket--A rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal, fiberglass, plastic, or like material, and ornamented and lined with fabric. (5) Commission--The Texas Funeral Service Commission. (6) Cremation--A heating process which incinerates human remains. (7) Direct Cremation--Disposition of human remains by cremation, without formal viewing, visitation, or ceremony with the body present. (8) Funeral ceremony--A service commemorating the deceased with the body present. (9) Funeral goods--Goods which are sold or offered for sale directly to the public for use in connection with funeral services. Also referred to as funeral merchandise. (10) Funeral provider--Any person, partnership or corporation that sells or offers to sell funeral merchandise and funeral services to the public at need. (11) Graveside service--a funeral ceremony with the body present held at the burial site. (12) Holding the body hostage--Refusing for any reason to transfer or allow the transfer of a dead human body to the person responsible for making arrangements for final disposition. (13) Immediate burial--Disposition of human remains by burial, without formal viewing, visitation, or ceremony with the body present, except for a graveside service. (14) Memorial service--A ceremony commemorating the deceased without the body present. (15) Morgue--A place where bodies of unidentified persons or those who have died of violence or unknown causes are kept until release for burial or other lawful disposition. (16) Person--Any individual, partnership, corporation, association, government or governmental subdivision or agency or other entity. (17) Pre-need--Prearranged or prepaid funeral or cemetery services or funeral merchandise, including an alternative container, casket, or outer burial container. The term does not include a grave, marker, monument, tombstone, crypt, niche, plot, or lawn crypt unless it is sold in contemplation of trade for funeral services or funeral merchandise as defined by Chapter 154 Texas Finance Code.


(18) Refrigeration of body--Maintenance of an unembalmed dead human body at a temperature of 34-40 degrees Fahrenheit. (19) Unreasonable Time--the retention of excess funds for a period that exceeds ten days from the time the funds were received by the funeral establishment or its agent. RULE ยง203.2

Clarification of First Call Definition

(a) First Call is the beginning of the relationship between the consumer and the licensed funeral director and licensed funeral establishment to prepare the body for burial or other disposition. The relationship is initiated by the consumer or the person responsible for making arrangements for final disposition. (b) Transportation of a body sent to a morgue for identification or autopsy at the request of a justice of the peace, medical examiner, or other official under Chapter 49, Texas Code of Criminal Procedure does not constitute a First Call. Any expenses or items used specifically for the transportation of a body to a morgue are not items of choice for the consumer, including storage, and are therefore not the responsibility of the consumer to pay. (c) Commercial embalming establishment licensees are prohibited from authorizing first calls or dealing directly with the public for services or merchandise; such first calls must be authorized by a licensed funeral establishment as defined in Chapter 651, Texas Occupations Code, ยง351, prior to such removal. Any such removal must bear the name of the funeral establishment authorizing the removal on the release form. RULE ยง203.3

Funeral Director in Charge

(a) Each licensed funeral establishment must at all times have a designated funeral director in charge, who is ultimately responsible for compliance with all mortuary, health, and vital statistics laws in the funeral establishment. A funeral establishment must designate a funeral director in charge at the time it receives its establishment license, and any time the funeral director in charge changes, the funeral establishment must notify the commission, on a form prescribed by the commission, within 15 days. (b) The funeral director in charge must be generally available in the routine functions of the funeral establishment in order to personally carry out his or her responsibilities. (c) The funeral director in charge may be served with administrative process when violations are alleged to have been committed in a funeral establishment. (d) An individual may not be designated as the funeral director in charge of more than one establishment unless the additional establishments are operated as branches or satellites of a primary establishment, all of the establishments are under the same ownership, same general management, and no establishment is more than 60 miles from any other establishment held under the same ownership conditions. (e) In order to be designated funeral director in charge of more than one establishment, the licensee must submit a petition to the commission that clearly explains how each of the criteria in subsection (d) of this section have been met. The executive director shall decide whether to grant the petition. The request and decision will be made part of the permanent licensing file. The executive director's decision may be appealed, in writing, to the commission, and the appeal will


be considered at the commission's next regularly scheduled meeting. The executive director shall advise interested parties of the action taken by the commission in writing. (f) If the establishment employs a provisional licensee it is the responsibility of the designated funeral director in charge and the provisional licensee to schedule case work sufficient for the provisional program. It is also the responsibility of the designated funeral director in charge to ensure that each provisional licensee is properly supervised while performing cases. The provisional licensee must file a report with funeral director in charge outlining the number of cases performed during the month and the name of the funeral director or embalmer under whom the cases were supervised. (g) The funeral director in charge shall retain copies of all reports with supporting documentation for all case credit claimed for 2 years from the completion date of the provisional program. (h) The funeral director in charge of the facility where the provisional licensee is employed shall notify the commission in writing upon the completion of the provisional license program, as defined as the provisional licensee meeting all the requirements for regular licensure, by submitting the number of cases performed while the licensee was under the employment of said funeral director. RULE ยง203.4

Licensure of Funeral Establishments and Commercial Embalming Establishments and Display of License

(a) New License Applications (1) Applications for licensure must be submitted on forms developed by the commission. Applications shall be accompanied by applicable licensing fees and embalming case report forms reflecting the establishment's name. Additionally, funeral establishments shall submit copies of all price lists and purchase agreement forms. (2) The passage of an inspection is mandatory for a new establishment seeking its initial licensure and for previously licensed establishments that have changed physical location. (3) The license shall be issued to the establishment's owner. (4) A change of ownership, name, or physical address requires the submission of a new establishment license application. The application must be filed with the commission within 30 days following the occurrence of the event requiring the license application. The failure to timely file the application will result in the assessment of a late application fee of $100. (5) A license will not be issued unless all fees and outstanding penalties, if any, have been paid or the commission is in possession of evidence that the applicant is current on a payment plan or that penalties previously assessed are the subject of an administrative hearing or judicial review. Staff shall notify the applicant of any unpaid penalties. (6) A license issued under this subsection expires on the last day of the month twelve months from the date of issue. (b) Outstanding Licenses and Fees (1) Initial Expiration Date: Licenses outstanding on the effective date hereof expire September 30, 2003. (2) Initial Renewal Period: The initial renewal period for a license described in paragraph (1) of this subsection is the number of months, not less than seven, from September to the month of the establishment's original licensure date. If the number of months under the first sentence hereof would be less than seven, then the initial renewal period is determined by adding twelve months to


the number of months from September to the month of the establishment's original licensure date. The monthly fee for the initial renewal license, payable in a lump sum, is equal to one-twelfth (1/12) of the annual license fee. (3) Subsequent Renewal Periods. The renewal period of a license described in paragraph (2) of this subsection is twelve months beginning on the 1st day of the month following the expiration of the initial renewal period and annually thereafter. (4) A late renewal fee will be assessed for an application for renewal date stamped after its renewal date. (5) Establishments may be inspected upon the submission of a renewal application. (6) A renewal license will not be issued unless all fees and outstanding penalties, if any, have been paid or the Commission's records reflect that the applicant is current on a payment plan or that penalties previously assessed are the subject of an administrative hearing or judicial review. Staff shall notify the applicant of any unpaid penalties. (c) Certain Grounds for Denial or Revocation of a License. The commission may refuse to issue a new license or to renew an outstanding license or may revoke an establishment's license if it determines that the license application contains material false information or that a person whose individual license to practice funeral directing or embalming is currently suspended or revoked owns the establishment or an interest in the establishment. (d) Conspicuous Display of License. The license shall be conspicuously displayed in an area of the establishment open and accessible to the general public. A license is conspicuously displayed when it is placed in an area of the funeral establishment generally accessed by a consumer making funeral arrangements. RULE ยง203.5

Right of Investigation

The commission may investigate any circumstances involved with the renewal of any license provided for in Chapter 651, Texas Occupations Code. RULE ยง203.6

Provisional Licensees

(a) Participants in the provisional licensure program may serve as provisional licensees only in funeral establishments or commercial embalming establishments licensed by the commission, and all work must be performed under the direct and personal supervision of a duly licensed funeral director or embalmer, depending on the provisional license. The provisional funeral director program may not be served in a commercial embalming establishment. (b) Provisional licensees must work in a funeral establishment or commercial embalming establishment a minimum of 17 hours per week or 73 hours per month, or as otherwise permitted by the commission, under actual working conditions directly related to funeral directing and/or embalming. (c) The provisional licensure period is a minimum of 12 and a maximum of 24 consecutive months, beginning on the issue date of the provisional license. The provisional licensure programs for funeral director and embalmer may be served simultaneously. (d) Provisional licenses expire on the last day of the month 12 months from their issue date. No fees shall be refunded to provisional licensees who fail to complete the program.


(e) Of the 60 cases required for each provisional licensure program, at least 10 must be complete cases. A complete funeral directing case consists of all major actions from the time of first call through interment or other disposition of the body; a complete embalming requires the provisional embalmer to handle all major actions included in ยง203.16 of this title (relating to Requirements Relating to Embalming) performed on a particular body. Cases performed in mortuary college may count toward the required cases if the college certifies to the commission that the cases were performed provided the student holds a current provisional license at the time the cases were performed. (f) Provisional licensees shall retain copies of all monthly reports with supporting documentation for all case credit claimed for 2 years from the completion date of the provisional program date of the training report. (g) The provisional licensee must file a report with the funeral director in charge or the embalmer in charge, whichever is applicable, outlining the number of cases performed during the month and the name of the funeral director or embalmer under whom the cases were supervised. (h) It is the responsibility of the funeral director in charge of the establishment, or the embalmer in charge if a commercial embalming facility and the provisional licensee to schedule case work sufficient for the provisional program. (i) Each monthly report shall be certified by the licensee under whom the provisional licensee performed the work. The supervising licensee and the provisional licensee both are subject to disciplinary action if the information submitted is not true and accurate. (j) Examination Requirements (1) Applicants for licensure as a funeral director from the certificate program must sit for the Texas State Board Examination as described in the Texas Occupations Code ยง651.255, examinations required for funeral director's license. (2) Applicants for licensure who hold associate of applied science degrees are required to sit, as applicable, for either or both of the examinations as described in the Texas Occupations Code ยง651.255 and ยง651.256, examinations required for funeral director's license and/or embalmer license. (3) All applicants for licensure shall sit for the State Mortuary Law Examination administered by the commission. If full licensure has not been met within 24 months from the date the applicant initially took the State Mortuary Law Examination the applicant must retake the examination before full licensure can be accomplished regardless if the applicant passed or failed the examination. (4) A passing score is 75% for each examination described in paragraphs (1) - (3) of this subsection. Passing scores are not determined by averaging scores on two or more examinations. (k) If a provisional licensee leaves the employment of a funeral director in charge or embalmer in charge, the funeral director in charge or embalmer in charge must file an affidavit as described in Texas Occupations Code, ยง651.304(d) within 15 days of employment termination. (l) A student enrolled in an accredited mortuary college must have the college forward a letter of enrollment prior to entering the provisional program. (m) Upon the completion of the provisional license program, as defined as the provisional licensee meeting all the requirements for regular licensure, the funeral director in charge or embalmer in charge of the facility where the provisional licensee is employed shall notify the commission in writing of the same by submitting the number of cases performed while the licensee was under the employment of said funeral director or embalmer. The commission shall verify the information held by the commission to ensure each provisional licensee has met all requirements. All


information submitted to the funeral director in charge or embalmer in charge is subject to inspection. Once confirmed the commission shall issue to the provisional licensee a written affidavit to be completed by the funeral director in charge or the embalmer in charge. In addition the commission shall issue a written letter outlining the fees required for regular licensure. The funeral director in charge or the embalmer in charge shall execute and provide to the commission the written affidavit attesting to the proficiency of the provisional licensee in those areas observed. (n) While, pursuant to ยง651.253, Texas Occupations Code, a person is not eligible for a funeral director's or embalmer's license from the commission unless the person shall have graduated from an accredited school or college of mortuary science, the commission may, pursuant to ยง651.302, Texas Occupations Code, issue a provisional license to practice funeral directing or embalming to a person who is enrolled in a school or college of mortuary science that has lost its accreditation if the school or college or mortuary science was accredited at the time the student enrolled. The commission will not issue such a provisional license to practice funeral directing or embalming unless: (1) the person signs an acknowledgement that the person understands that the person is not eligible for a funeral director's or embalmer's license unless the school or college of mortuary science regains its accreditation during the maximum 24 consecutive months provided by subsection (c) of this section; or (2) the student transfers to an accredited school or college of mortuary science. RULE ยง203.7

Price Disclosure

(a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider to fail to furnish accurate price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies, including at least the price of embalming, transportation of remains, use of facilities, caskets, outer burial containers, urns, immediate burials, or direct cremations, to persons inquiring about the purchase of funerals. Any funeral provider who complies with the preventive requirements in subsection (b) of this section is not engaged in the unfair or deceptive acts or practices defined here. (b) Preventive requirements. To prevent these unfair or deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in ยง203.9(b)(1) of this title (relating to Other required purchases of funeral goods or funeral services), funeral providers must: (1) Telephone price disclosure. Tell persons who ask by telephone about the funeral provider's offerings or prices any accurate information from the price lists described in paragraphs (2) - (5) of this subsection and any other readily available information that reasonably answers the question. (2) Casket price list. (A) Give a printed or typewritten price list to people who inquire in person about the offerings or prices of caskets or alternative containers. The funeral provider must offer the list upon beginning discussion of, but in any event before showing caskets. In lieu of a written list, other formats, such as notebooks, brochures, or charts may be used if they contain the same information as would the printed or typewritten list, and display it in a clear and conspicuous manner. Provided, however, that funeral providers do not have to make a casket price list available if the funeral providers place on the general price list, specified in paragraph (5) of this subsection, the


information required by this subsection. (B) The list must contain the effective date and the retail prices of all caskets and alternative containers offered which do not require special ordering, and must include, at a minimum, the following specifications: (i) The type of material that is predominately used in the construction of the merchandise, i.e.: (I) steel, identified as stainless or by gauge, e.g., 18 gauge; (II) wood, identified by type, e.g., pecan or cherry; (III) bronze, described by weight, e.g., 32 oz.; (IV) copper, described by weight, e.g., 32 oz.; or (V) other specifically named material, e.g., such as cardboard or corrugated wood; (ii) The type of sealing feature, e.g., sealer, non-sealer, gasketed, or non-gasketed, if specified on the funeral provider's general price list; and (iii) The material lining the interior of the casket, e.g., crepe, velvet, satin, twill or silk. (C) Place on the list, however produced, the name of the funeral provider's place of business and a caption describing the list as a "casket price list." (3) Outer burial container price list. (A) Give a printed or typewritten price list to persons who inquire in person about outer burial container offerings or prices. The funeral provider must offer the list upon beginning discussion of, but in any event before showing the containers. The list must contain at least the retail prices of all outer burial containers offered which do not require special ordering, enough information to identify each container, and the effective date for the prices listed. In lieu of a written list, the funeral provider may use other formats, such as notebooks, brochures, or charts, if they contain the same information as the printed or typewritten list, and display it in a clear and conspicuous manner. Provided, however, that funeral providers do not have to make an outer burial container price list available if the funeral providers place on the general price list, specified in paragraph (5) of this subsection, the information required by this subsection. The description of an outer burial container under this section must, at a minimum, include the following specifications: (i) The type of material that is predominantly used in the construction of the merchandise, i.e.: (I) concrete, specifying type of construction, e.g., liner, box, or vault; (II) steel, identified as stainless or by gauge, e.g., 12 gauge (or described as galvanized of a particular gauge); (III) wood; (IV) bronze or copper, described by weight or gauge, e.g., 32 oz. or 18 gauge; or (V) other specifically named material; and (ii) The type of sealing feature, e.g., sealer, non-sealer, gasketed, or non-gasketed, if specified on the funeral establishment price list. (B) Place on the list, however produced, the name of the funeral provider's place of business, address, and telephone number, and a caption describing the list as an "outer burial container price list." (4) Urn price list. (A) Give a printed or typewritten price list to persons who inquire in person about urn offerings or prices. The funeral provider must offer the list upon beginning discussion of, but in any event, before showing the containers. The list must contain at least the retail prices of all urns offered which do not require special ordering, the description of an urn under this section must, at a minimum, include the type of material predominately used in its construction. Bronze urns must be described as sheet bronze or caste bronze, whichever is applicable. The price list must include the


effective date for the prices listed. In lieu of a written list, the funeral provider may use other formats, such as notebooks, brochures, or charts, if they contain the same information as the printed or typewritten list, and display it in a clear and conspicuous manner. Provided, however, that funeral providers do not have to make an urn price list available if the funeral providers place on the general price list, specified in paragraph (5) of this subsection, the information required by this subsection. (B) Place on the list, however produced, the name of the funeral provider's place of business, address and telephone number and a caption describing the list as an "urn price list." (5) General price list. (A) Availability of general price list. (i) Give a printed or typewritten price list for retention to persons who inquire in person about the funeral goods, funeral services or prices of funeral goods or services offered by the funeral provider. The funeral provider must give the list upon beginning discussion of any of the following: (I) the prices of funeral goods or funeral services; (II) the overall type of funeral service or disposition; or (III) specific funeral goods or funeral services offered by the funeral provider. (ii) The requirement in clause (i) of this subparagraph applies whether the discussion takes place in the funeral home or elsewhere. Provided, however, that when the deceased is removed for transportation to the funeral home, an in-person request at that time for authorization to embalm, required by ยง203.10(a)(2) of this title (relating to Prior approval for embalming), does not, by itself, trigger the requirement to offer the general price list if the provider in seeking prior embalming approval discloses that embalming is not required by law except in certain special cases, if any. Any other discussion during that time about prices or the selection of funeral goods or services triggers the requirement under clause (i) of this subparagraph to give consumers a general price list. (iii) The list required in clause (i) of this subparagraph must contain at least the following information: (I) the name, address, and telephone number of the funeral provider's place of business; (II) a caption describing the list as a "general price list"; and (III) the effective date for the price list. (B) Include on the price list, in any order, the retail prices (expressed either as the flat fee, or as the price per hour, mile or other unit of computation) and the other information specified below for at least each of the following items, if offered for sale: (i) forwarding of remains to another funeral home, together with a list of the services provided for any quoted price; (ii) receiving remains from another funeral home, together with a list of the services provided for any quoted price; (iii) the price range for the direct cremations offered by the funeral provider, together with: (I) a separate price for a direct cremation where the purchaser provides the container; (II) separate prices for each direct cremation offered including an alternative container; and (III) a description of the services and container (where applicable), included in each price; (iv) the price range for the immediate burials offered by the funeral provider, together with: (I) a separate price for an immediate burial where the purchaser provides the casket; (II) separate prices for each immediate burial offered including a casket or alternative container; and


(III) a description of the services and container (where applicable) included in that price; (v) transfer of remains to funeral home; (vi) embalming; (vii) other preparation of the body; (viii) use of facilities and staff for viewing; (ix) use of facilities and staff for funeral ceremony; (x) use of facilities and staff for memorial service; (xi) use of equipment and staff for graveside service; (xii) hearse; and (xiii) limousine. (C) Include on the general price list, in any order, the following information: (i) Either of the following: (I) The price range for the caskets offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral home."; or (II) The prices of individual caskets, disclosed in the manner specified by paragraph (2)(A) of this subsection; and (ii) Either of the following: (I) The price range for the outer burial containers offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral home."; or (II) The prices of individual outer burial containers, disclosed in the manner specified by paragraph (3)(A) of this subsection; and (iii) Either of the following: (I) The price for the basic services of funeral director and staff, together with a list of the principal basic services provided for any quoted price and, if the charge cannot be declined by the purchaser, the statement: "This fee for our basic services will be added to the total cost of the funeral arrangements you select. (This fee is already included in our charges for direct cremations, immediate burials, and forwarding or receiving remains.)". If the charge cannot be declined by the purchaser, the quoted price shall include all charges for the recovery of unallocated funeral provider overhead, and funeral providers may include in the required disclosure the phrase "and overhead" after the word "services"; or (II) The following statement: "Please note that a fee of (specify dollar amount) for the use of our basic services is included in the price of our caskets. This same fee shall be added to the total cost of your funeral arrangements if you provide the casket. Our services include (specify)." The fee shall include all charges for the recovery of unallocated funeral provider overhead, and funeral providers may include in the required disclosure the phrase "and overhead" after the word "services." The statement must be placed on the general price list together with the casket price range, required by clause (i)(I) of this subparagraph, or together with the prices of individual caskets, required by clause (i)(II) of this subparagraph. (D) The services fee permitted by subparagraph (C)(iii)(I) or (II) of this paragraph is the only funeral provider fee for services, facilities or unallocated overhead permitted by this part to be non-declinable, unless otherwise required by law. (6) Statement of funeral goods and services selected. (A) Give an itemized written statement for retention to each person who arranges a funeral or other disposition of human remains, at the conclusion of the discussion of arrangements. The statement must list at least the following information: (i) the funeral goods and funeral services selected by that person and the prices to be paid for


each of them, unless there is a discounted package arrangement that itemizes the discount provided by the package arrangement; (ii) specifically itemized cash advance items. (These prices must be given to the extent then known or reasonably ascertainable. If the prices are not known or reasonably ascertainable, a good faith estimate shall be given and a written statement of the actual charges shall be provided before the final bill is paid.); (iii) the total cost of the goods and services selected; and (iv) the complete description of all goods as described in paragraphs (2) - (5) of this subsection. (B) The information required by this paragraph may be included on any contract, statement, or other document which the funeral provider would otherwise provide at the conclusion of discussion of arrangements. (7) Other pricing methods. Funeral providers may give persons any other price information, in any other format, in addition to that required by paragraphs (2) - (5) of this subsection so long as the statement required by paragraph (6) of this subsection is given when required by the rule. RULE ยง203.8

Misrepresentations

(a) Embalming provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local law requires that a deceased person be embalmed when such is not the case; (B) fail to disclose that embalming is not required by law except in certain special cases, if any. (2) Preventive requirements. To prevent these deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in ยง203.9(b)(1) of this title (relating to Other required purchase of funeral goods or funeral services) and ยง203.10(a) of this title (relating to Services provided without prior approval), funeral providers must: (A) not represent that a deceased person is required to be embalmed for: (i) Direct cremation; (ii) Immediate burial; or (iii) A closed casket funeral without viewing or visitation when refrigeration is available and when state or local law does not require embalming; and (B) Place the following disclosure on the general price list, required by ยง203.7(b)(4) of this title (relating to General price list), in immediate conjunction with the price shown for embalming: "Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing. If you do not want embalming, you usually have the right to choose an arrangement that does not require you to pay for it, such as direct cremation or immediate burial." The phrase "except in certain special cases" need not be included in this disclosure if state or local law in the area(s) where the provider does business does not require embalming under any circumstances. (b) Casket for cremation provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local law requires a casket for direct cremations; (B) represent that a casket is required for direct cremations.


(2) Preventive requirements. To prevent these deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in ยง203.9(a)(1) of this title (relating to Casket for cremation purposes), funeral providers must place the following disclosure in immediate conjunction with the price range shown for direct cremations: "If you want to arrange a direct cremation, you can use an alternative container. Alternative containers encase the body and can be made of materials like fiberboard or composition materials (with or without an outside covering). The containers we provide are (specify containers)." This disclosure only has to be placed on the general price list if the funeral provider arranges direct cremations. (c) Outer burial container provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods and funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local laws or regulations, or particular cemeteries, require outer burial containers when such is not the case; (B) fail to disclose to persons arranging funerals that state law does not require the purchase of an outer burial container. (2) Preventive requirement. To prevent these deceptive acts or practices, funeral providers must place the following disclosure on the outer burial container price list, required by ยง203.7(b)(3)(A) of this title (relating to Outer burial container price list), or, if the prices of outer burial containers are listed on the general price list, required by ยง203.7(b)(4) of this title (relating to General price list), in immediate conjunction with those prices: "In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave liner or a burial vault will satisfy these requirements." The phrase "in most areas of the country" need not be included in this disclosure if state or local law in the area(s) where the provider does business does not require a container to surround the casket in the grave. (d) General provisions on legal and cemetery requirements. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for funeral providers to represent that federal, state, or local laws, or particular cemeteries or crematories, require the purchase of any funeral goods or funeral services when such is not the case. (2) Preventive requirements. To prevent these deceptive acts or practices, as well as the deceptive acts or practices identified in subsections (a)(1), (b)(1), and (c)(1) of this section, funeral providers must identify and briefly describe in writing on the statement of funeral goods and services selected (required by ยง203.7(b)(5) of this title (relating to Statement of funeral goods and services selected) any legal, cemetery, or crematory requirement which the funeral provider represents to persons as compelling the purchase of funeral goods or funeral services for the funeral which that person is arranging. (e) Provisions on preservative and protective value claims. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (1) represent that funeral goods or funeral services will delay the natural decomposition of human remains for a long-term or indefinite time; (2) represent that funeral goods have protective features or will protect the body from gravesite substances, when such is not the case. (f) Cash advance provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to:


(A) represent that the price charged for a cash advance item is the same as the cost to the funeral provider for the item when such is not the case; (B) fail to disclose to persons arranging funerals that the price being charged for a cash advance item is not the same as the cost to the funeral provider for the item when such is the case. (2) Preventive requirements. To prevent these deceptive acts or practices, funeral providers must place the following sentence in the itemized statement of funeral goods and services selected, in immediate conjunction with the list of itemized cash advance items required by ยง203.7(b)(5)(A)(ii) of this title (relating to Statement of funeral goods and services selected): "We charge you for our services in obtaining: (specify cash advance items)," if the funeral provider makes a charge upon, or receives and retains a rebate, commission or trade or volume discount upon a cash advance item. RULE ยง203.9

Required Purchase of Funeral Goods or Funeral Services

(a) Casket for cremation provisions. (1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider, or a crematory, to require that a casket be purchased for direct cremation. (2) Preventive requirement. To prevent this unfair or deceptive act or practice, funeral providers must make an alternative container available for direct cremations, if they arrange direct cremations. (b) Other required purchases of funeral goods or funeral services. (1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services, it is an unfair or deceptive act or practice for a funeral provider to: (A) condition the furnishing of any funeral good or funeral service to a person arranging a funeral upon the purchase of any other funeral good or funeral service, except as required by law or as otherwise permitted by this part; (B) charge any fee as a condition to furnishing any funeral goods or funeral services to a person arranging a funeral, other than the fees for: (i) services of funeral director and staff, permitted by ยง203.7(b)(4)(C)(iii) of this title (relating to General price list); (ii) other funeral services and funeral goods selected by the purchaser; and (iii) other funeral goods or services required to be purchased, as explained on the itemized statement in accordance with ยง203.8(d)(2) of this title (relating to General provisions on legal and cemetery requirements). (2) Preventive requirements. (A) To prevent these unfair or deceptive acts or practices, funeral providers must: (i) Place the following disclosure in the general price list, immediately above the prices required by ยง203.7(b)(4)(B) and (C) of this title (relating to General price list): "The goods and services shown below are those we can provide to our customers. You may choose only the items you desire. If legal or other requirements mean you must buy any items you did not specifically ask for, we will explain the reason in writing on the statement we provide describing the funeral goods and services you selected." Provided, however, that if the charge for "services of funeral director and staff" cannot be declined by the purchaser, the statement shall include the sentence: "However, any funeral arrangements you select will include a charge for our basic services"


between the second and third sentences of the statement specified above herein. The statement may include the phrase "and overhead" after the word "services" if the fee includes a charge for the recovery of unallocated funeral provider overhead; (ii) Place the following disclosure in the statement of funeral goods and services selected, required by §203.7(b)(5)(A) of this title (relating to Statement of funeral goods and services selected): "Charges are only for those items that you selected or that are required. If we are required by law or by a cemetery or crematory to use any items, we will explain the reasons in writing below." (B) A funeral provider shall not violate this section by failing to comply with a request for a combination of goods or services which would be impossible, impractical, or excessively burdensome to provide. RULE §203.10

Services Provided Without Prior Approval

(a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for any provider to embalm a deceased human body for a fee unless: (1) state or local law or regulation requires embalming in the particular circumstances regardless of any funeral choice which the family might make; or (2) prior approval for embalming (expressly so described) has been obtained from a family member or other authorized person; or (3) the funeral provider is unable to contact a family member or other authorized person after exercising due diligence, has no reason to believe the family does not want embalming performed, and obtains subsequent approval for embalming already performed (expressly so described). In seeking approval, the funeral provider must disclose that a fee will be charged if the family selects a funeral which requires embalming, such as a funeral with viewing, and that no fee will be charged if the family selects a service which does not require embalming, such as direct cremation or immediate burial. (b) Preventive requirement. To prevent these unfair or deceptive acts or practices, funeral providers must include on the itemized statement of funeral goods and services selected, required by §203.7(b)(5) of this title (relating to Statement of funeral goods and services selected), the statement: "If you selected a funeral that may require embalming, such as a funeral with viewing, you may have to pay for embalming. You do not have to pay for embalming you did not approve if you selected arrangements such as a direct cremation or immediate burial. If we charged for embalming, we will explain why below." RULE §203.11

Retention of Documents

To prevent the unfair or deceptive acts or practices specified in §203.7 of this title (relating to Price disclosures) and §203.8 of this title (relating to Misrepresentations) of this rule, funeral providers must retain and make available for inspection by Commission officials true and accurate copies of the price lists specified in §203.7(b)(2)-(4) of this title (relating to Casket price list, outer burial container price list, and general price list), as applicable, for at least two years after the date of their last distribution to customers, and a copy of each statement of funeral goods and services


selected, as required by §203.7(b)(5) of this title (relating to Statement of funeral goods and services selected), for at least two years from the date of the arrangements conference. RULE §203.12

Comprehension of Disclosures

To prevent the unfair or deceptive acts or practices specified in §§203.7-203.10 of this title (relating to Price disclosures, misrepresentations, required purchase of funeral goods or services, and services provided without prior approval), funeral providers must make all disclosures required by those sections in a clear and conspicuous manner. Providers shall not include in the casket, outer burial container, and general price lists, required by §203.7(b)(2)-(4) of this title (relating to Casket price list, outer burial container price list, and general price list), any statement or information that alters or contradicts the information required by this Part to be included in those lists. RULE §203.13

Declaration of Intent

(a) Except as otherwise provided in §203.7(a) of this title (relating to Price disclosures), it is a violation of this rule to engage in any unfair or deceptive acts or practices specified in this rule, or to fail to comply with any of the preventive requirements specified in this rule. (b) The provisions of this rule are separate and severable from one another. If any provision is determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect. (c) This rule shall not apply to the business of insurance or to acts in the conduct thereof. RULE §203.14

Display of Funeral Merchandise

The commission will approve only those display rooms in licensed funeral establishments which meet the requirement of Chapter 651, Texas Occupations Code, that are designed and utilized to allow the public to make a private inspection and selection. Regardless of the type or method of overall merchandise selection used by the licensed funeral establishment, there must be a display of at least five adult size caskets, two of which are actual full sized caskets, one of which is the lowest priced casket offered for sale by the establishment. The three adult caskets that are not required to be full-size may be displayed: (1) in a partial panel display; or (2) by video or brochure, online, or in any other manner. RULE §203.16

Requirements Relating to Embalming

(a) In order to ensure the maximum inhibition of pathogenic organisms in the dead human body, the following minimum standards of performance shall be required of each licensed embalmer in the State of Texas in each instance in which he or she is authorized or required to embalm a dead human body.


(1) Embalming shall be performed only by embalmers licensed by the commission, in properly equipped and licensed establishments, or in the event of a disaster of major proportions, in facilities designated by a medical examiner, coroner, or state health official. Only three types of people may under certain circumstances assist licensed embalmers in embalming: provisional licensed embalmers under the personal supervision of a licensed embalmer; students who are enrolled in an accredited school of mortuary science working on a case intended toward completion of the student's clinical requirements, under the personal supervision of a licensed embalmer and with written permission to assist the embalmer from the person responsible for making arrangements or next of kin; and, in the event of a disaster of major proportions and with the prior approval of the executive director of the commission, embalmers licensed in another state as long as they are working with or under the general supervision of a person licensed as an embalmer in this state. It is not the intent of this rule to supersede ยง203.22 of this title (relating to Required Documentation for Embalming) which authorizes embalming using mortuary students. (2) In order to prevent those involved in the embalming procedure from becoming unwitting carriers of pathogenic organisms into the community, they shall be required to utilize all personal protective equipment (PPE) such as is required by either OSHA or its corresponding state agency during the embalming procedure. While the use of disposable items is suggested, those items capable of being sterilized or properly sanitized are permitted. (3) Clothing and/or personal effects of the decedent shall either be thoroughly disinfected before delivery to any person or discarded in a manner consistent with the disposal of biohazardous material. (4) The technique utilized to effect eye, mouth, and lip closure shall be any technique accepted as standard in the profession. Regardless of the technique chosen, the embalmer shall be required to achieve the best results possible under prevailing conditions. (5) The entire body may be thoroughly cleaned before arterial injection and shall be cleaned immediately after the embalming procedure with an antiseptic soap or detergent. (6) Body orifices (nostrils, mouth, anus, vagina, ear canals, and urethra) open lesions, and other surgical incisions shall be treated with appropriate topical disinfectants either before or immediately after arterial injection. After cavity treatment has been completed, body orifices shall be packed in cotton saturated with a suitable disinfectant of a phenol coefficient not less than one in cases where purge is evident or is likely to occur and/or when the body is to be transported out of state or by common carrier. (7) The arterial fluid to be injected shall be one commercially prepared and marketed with its percent of formaldehyde, or other approved substance, by volume (index) clearly marked on the label or in printed material supplied by the manufacturer. (8) The fluids selected shall be injected into all bodies in such dilutions and at such pressures as the professional experience of the embalmer shall indicate, except that in no instance shall dilute solution contain less than 1.0% formaldehyde, or an approved substance that acts the same as formaldehyde, and as the professional experience of the embalmer indicates, one gallon of dilute solution shall be used for each 50 pounds of body weight. Computation of solution strength is as follows: C x V = C' x V' C = strength of concentrated fluid V = volume of ounces of concentrated fluid C' = strength of dilute fluid V' = volume of ounces of dilute fluid. (9) Abdominal and thoracic cavities shall be treated in the following manner. (A) Liquid, semi-solid, and gaseous contents which can be withdrawn through a trocar shall be aspirated by the use of the highest vacuum pressure attainable. (B) Concentrated, commercially prepared cavity fluid which is acidic in nature (6.5 pH or


lower) and contains at least two preservative chemicals shall be injected and evenly distributed throughout the aspirated cavities. A minimum of 16 ounces of concentrated cavity fluid shall be used in any embalming case in which a minimum of two gallons of arterial solution has been injected. (C) Should distension and/or purge occur after treatment, aspiration and injection as required shall be repeated as necessary. (10) The embalmer shall be required to check each body thoroughly after treatment has been completed. Any area not adequately disinfected by arterial and/or cavity treatment shall be injected hypodermically with disinfectant and preservative fluid of maximum results. A disinfectant and preservative medium shall be applied topically in those cases which require further treatment. (11) On bodies in which the arterial circulation is incomplete or impaired by advance decomposition, burns, trauma, autopsy, or any other cause, the embalmer shall be required to use the hypodermic method to inject all areas which cannot be properly treated through whatever arterial circulation remains intact (if any). (12) In the event that the procedures in paragraphs (1) - (11) of this subsection leave a dead human body in condition to constitute a high risk of infection to anyone handling the body, the embalmer shall be required to apply to the exterior of the body an appropriate embalming medium in powder or gel form and to enclose the body in a zippered plastic or rubber pouch prior to burial or other disposal. (13) Dead human bodies donated to the State Anatomical Board shall be embalmed as required by the State Anatomical Board and where conflicting requirements exist, those requirements of the State Anatomical Board shall prevail. (14) Nothing in this section shall be interpreted to require embalming if the next-of kin does not authorize embalming. (15) All bodies should be treated in such manner and maintained in such an atmosphere as to avoid infestation by vermin, maggots, ants, and other insects; however, should these conditions occur, the body should be treated with an effective vermicide and/or insecticide to eliminate these conditions. (16) No licensed establishment or licensed embalmer shall take into its or the embalmer's care any dead human body for embalming without exerting every professional effort, and employing every possible technique or chemical, to achieve the highest level of disinfecting. (17) Nothing in this section shall be interpreted to prohibit the use of supplemental or additional procedures or chemicals which are known to and accepted in the funeral service profession and which are not specifically mentioned in this subsection. (b) Minor variations in these procedures shall be permitted as long as they do not compromise the purpose of this rule as stated in subsection (a) of this section. (c) All embalming case reports must contain, at a minimum, all the information on the case-report form published following this subsection. This form is also on file in the commission's offices and may be accessed from the commission's website at www.tfsc.state.tx.us. Staff will make a copy of this form available upon request. Funeral establishments may use other forms, so long as the forms contain all the information on the published form. A case report shall be completed for each embalming procedure not later than the date of disposition of the body which was embalmed. The embalmer shall ensure that all information contained in the case report is correct and legible. The embalmer is encouraged to employ electronic resources to the extent possible for completing the case report. The completed form shall be retained for two years following the procedure date and made available to the commission, upon request.


RULE ยง203.17

Clarification of Other Facilities Necessary in a Preparation Room

The commission will approve only those preparation rooms which meet the requirements of Chapter 651, Texas Occupations Code, and the following minimum standards listed in paragraphs (1) - (12) of this subsection prescribed by the commission: (1) must be of sufficient size and dimensions to accommodate an operating table, a sink with water connections, and an instrument table, cabinet, or shelves: (A) the operating table must have a rust proof metal or porcelain top, with edges raised at least 3/4 inch around the entire table and a drain opening at the lower end; (B) the sink must have hot and cold running water and drain freely; (C) the faucet must be equipped with an aspirator; (2) must contain an injection/embalming machine and sufficient supplies and equipment for normal operations; (3) must be clean, sanitary, and not used for other purposes; (4) must not have defective construction which permits the entrance of rodents; (5) must not have evidence of infestation of insects or rodents; (6) must be private and have no general passageway through it; (7) must be properly ventilated with an exhaust fan that provides at least five room air exchanges per hour; (8) must not have unenclosed or public restroom facilities located within the room; (9) must have walls which run from floor to ceiling and be covered with tile, or by plaster or sheetrock painted with washable paint; (10) must have floors of concrete with a glazed surface, or tiled in order to provide the greatest sanitary condition possible; (11) must have doors, windows, and walls constructed to prevent odors from entering any other part of the building; (12) must have all windows and openings to the outside screened. RULE ยง203.20

Cash Advance Items

(a) The funeral purchase agreement must state the amount paid or owed to another person by the funeral establishment 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. (b) In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to represent that the price charged for a cash advance item is the same as the cost to the funeral provider for the item when such is not the case. RULE ยง203.21

Presentation of Consumer Brochure

(a) Consumer brochures shall be prominently displayed in the public view, offered free of charge for keeping to any person, and presented during the arrangement conference if not before.


(b) Consumer brochures are designed and printed by the Commission and may be copied only when the Commission is unable to furnish the funeral establishment with an ordered supply. (c) The Commission determines the minimum order size and the fees for the brochures. RULE ยง203.22

Required Documentation for Embalming

(a) If permission to embalm is oral, the funeral establishment must maintain for two years written documentation of the name of the person authorizing embalming, that person's relationship to the deceased, and the time permission was obtained. (b) When oral or written permission to embalm cannot be obtained from the person authorized to make funeral arrangements, the funeral establishment must maintain for two years written documentation of the efforts taken as mandated by ยง651.457, Texas Occupations Code to obtain permission to embalm. (1) In cases where a medical examiner of justice of the peace has given permission to a funeral establishment to take custody of a body, the receiving funeral establishment may not embalm the body until the person authorized to make funeral arrangements has given permission. Nothing in this subsection shall be construed as allowing a funeral establishment to initiate contact with the person authorized to make funeral arrangements. (2) Chapter 694, Texas Health and Safety Code authorizes county officials to dispose of unclaimed bodies, and Chapter 691, Texas Health and Safety Code authorizes the Anatomical Board to receive unclaimed bodies. (c) The Authorization to Embalm Form 10.1.01b adopted by reference in this section, must be signed by a family member, preferably the next of kin, or the person authorized to make funeral arrangements when written authorization is secured if embalming is performed. The authorization to embalm form may not be altered, and must be used in its adopted form but may be reproduced by a licensed embalming establishment and/or a licensed funeral establishment. If a mortuary student is to assist the licensed embalmer, the authorization must be in writing pursuant to ยง651.407, Texas Occupations Code and in the possession of the funeral establishment and/or embalmer at the time of the embalming. (d) Nothing in this rule diminishes the requirement of the establishment to abide by the Federal Trade Commission funeral rule regarding embalming disclosures. In the event of a conflict between this rule and the Federal Trade Commission funeral rule, the Federal Trade Commission funeral rule prevails. (e) A copy of the Embalming Authorization shall be retained by the school or college according to ยง651.407, Texas Occupations Code. The funeral establishment or embalming establishment shall retain the documents for a minimum of two years. (f) The commission shall randomly audit these authorizations. (g) A copy of this form may be obtained from the commission and may be reproduced by a licensed embalming establishment and/or a licensed funeral establishment. (h) The embalming case report shall be completed and signed by the licensed embalmer performing the embalming procedure. RULE ยง203.23

Location of Retained Records


(a) All records required for retention by Texas Occupations Code Chapter 651 and rules of this title, will be maintained for a minimum of two years within the physical confines of the licensed establishment where the funeral arrangements were made. The records must be made available to the Texas Funeral Service Commission through its staff and members, or to the next of kin or person authorized for the making of funeral arrangements during regular business hours, and copies must be provided upon request to the commission. (b) Any interested persons as defined in ยง201.8(a)(2) of this title (relating to Procedures for the Petition for Adoption of Rules), may submit a petition to the commission requesting an exemption to the portion of subsection (a) of this section which requires that retained records be kept within the physical confines of the licensed funeral establishment where the funeral arrangements were made. (c) Each petition will clearly state: (1) a brief explanation of the problem(s) created by that portion of the rules; (2) the rational or justification for the granting of the exemption; (3) the specific remedy requested, including the alternative location selected; (4) assurances that the commission or its representatives will be able to easily access all records by name of the establishment, name of individual, or by date of service. (d) The executive director will grant, deny, or modify the requested relief. (e) The executive director will advise interested parties in writing of the action taken by the commission. (f) Each petition will be considered separately and upon its own merit. When considering the petition, the executive director will take into account the proposed geographical location of the records, and the licensee's demonstrated ability to substantially comply with the mortuary laws and the rules and regulations of the Texas Funeral Service Commission as demonstrated in prior inspection reports and other documents submitted to the commission. RULE ยง203.24

Unprofessional Conduct

(a) The commission may, in its discretion, refuse to issue or renew a license or may fine, revoke, or suspend any license granted by the commission, and may probate any license suspension if the commission finds that the applicant or licensee has engaged in unprofessional conduct as defined in this section. (b) For the purpose of this section, unprofessional conduct shall include but not be limited to: (1) providing funeral goods and services or performing acts of embalming in violation of Texas Occupations Code, Chapter 651, the adopted rules of the Texas Funeral Service Commission and applicable health and vital statistics laws and rules; (2) refusing or failing to keep, maintain or furnish any record or information required by law or rule, including a failure to file with the commission any documentation as and when requested during the course of a commission or staff investigation; (3) operating a funeral establishment in an unsanitary manner; (4) failing to practice funeral directing or embalming in a manner consistent with the public health or welfare; (5) obstructing a commission employee in the lawful performance of such employee's duties of enforcing Texas Occupations Code, Chapter 651 and commission rules or instructions; (6) copying, retaining, repeating, or transmitting in any manner the questions contained in any


examination administered by the commission; (7) physically abusing or threatening to physically abuse a commission employee during the performance of his lawful duties; (8) conduct which is willful, flagrant, or shameless or which shows a moral indifference to the standards of the community; (9) in the practice of funeral directing or embalming, engaging in: (A) fraud, which means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to surrender a legal right, or to issue a license; a false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives or is intended to deceive another; (B) deceit, which means the assertion, as a fact, of that which is not true by any means whatsoever to deceive or defraud another; (C) misrepresentation, which means a manifestation by words or other conduct which is a false representation of a matter of fact; (10) communicating directly or indirectly with a member of the Board of Commissioners during the pendency of a contested case proceeding in connection with an issue of fact or law, except upon notice and opportunity for each party to participate; (11) attempting to influence a complainant or witness in any complaint case to change the nature of the complaint, or withdraw the complaint by means of coercion, harassment, bribery, or by force, or threat of force; (12) retaliating or threatening to retaliate against a complainant who has filed a complaint with the Commission in good faith; (13) violating any Texas law, or Administrative Rules governing the transportation, storage, refrigeration, interment, cremation, or disinterment of the dead. RULE ยง203.25

Franchise Tax

(a) Any corporation contracting with the Texas Funeral Service Commission and/or any corporate applicant for a license or permit issued by the agency must certify in writing, on a form provided by the agency, that its franchise taxes are current, that the corporation is exempt from payment of the franchise tax or that it is an out-of-state corporation that is not subject to the franchise tax. (b) The making of a false statement as to corporate franchise tax status on any license or permit application shall be grounds for disciplinary action. (c) The making of a false statement as to corporate franchise tax status with regards to a state contract shall be grounds for cancellation of the contract at the option of the agency by treating the statement as a material breach of contract. RULE ยง203.26

Funeral Directors and Embalmers License Requirements and Procedure

(a) License Required: A person may not engage in funeral directing or embalming in this state without holding a license issued by the commission, unless the person is a mortuary student acting under the supervision and direction of a licensed funeral director or embalmer.


(b) Initial License and Fees: (1) An applicant for an initial license must meet the eligibility requirements of Texas Occupations Code, §651.253. (2) Initial licenses issued after March 5, 2003, expire on the last day of the licensee's birth month not less than one year nor more than two years following the license issue date. The monthly fee for the initial license, payable in a lump sum, is equal to one twenty-fourth (1/24) of the biennial license fee. (3) The renewal period of a license issued under subsection (a) of this section is two years beginning on the 1st day of the month following the licensee's birth month. (4) The licensing fee shall accompany the application for licensure. The amount of the licensing and renewal fees is posted on the commission's website at www.tfsc.state.tx.us. (5) All applicants for an initial license must submit to an FBI background check. (c) Outstanding Licenses (1) Individual licenses outstanding on March 5, 2003 expire on May 31 or November 30 two years from their issue date. (2) The first renewal period for a license described in paragraph (1) of this subsection is the number of months from its expiration date to the last day of the licensee's birth month not less than one year nor more than two years following the license issue date. The monthly fee for the initial license, payable in a lump sum, is equal to one twenty-fourth (1/24) of the biennial license fee. (3) A license described in paragraph (2) of this subsection must be renewed within two years following the last day of the licensee's birth month and biennially thereafter. (d) Renewal Procedures and Conditions (1) A license may be renewed prior to its expiration if the licensee has paid the renewal fee and met the requirements of §203.30 of this chapter (relating to Continuing Education). (2) A person whose license is expired for 90 days or less may renew the license by meeting the requirements of this subsection, except that the renewal fee is 1-1/2 times the amount of the normal renewal fee. (3) A person whose license is expired for more than 90 days but less than one year may renew the license by meeting the requirements of this subsection, except the renewal fee is two times the amount of the normal renewal fee. (4) A person whose license has been expired for one (1) year or more prior to September 1, 2009, may not renew the license, but may reinstate the license by meeting the following requirements: (A) the examination described in Texas Occupations Code, Chapter 651, §651.255 for a funeral director and §651.256 for an embalmer; (B) payment of applicable fees, which include all back renewal fees and penalty fees as determined by the commission; and (C) completion of the mandatory continuing education requirements of §203.30(f)(2) of this chapter. (5) A person whose license has expired after September 1, 2009, and has been expired for one (1) year or more may renew the license by meeting the following requirements: (A) retaking and passing the applicable examination; (B) payment of any applicable fees, including a renewal fee that is equal to two times the normally required renewal fee; and (C) completion of the mandatory continuing education requirements of §203.30(f)(2) of this chapter.


RULE ยง203.29

Funeral Establishment Names

(a) Each funeral establishment's application for licensure shall contain the name to be used on the license. (b) Upon receiving an application for a new or changed funeral establishment license, the executive director shall review establishment names in the commission's database. The executive director shall issue the license in the requested name when all licensing requirements are satisfied, unless the director determines that the name is deceptively or substantially similar to the name of another licensed funeral establishment in the same county, metropolitan area, municipality, or service area. A license shall not be issued to an establishment for a name that is deceptively or substantially similar to the name of another establishment, unless that establishment agrees in writing to the name's use. (c) A funeral establishment's name may be changed by following the procedure for obtaining the original name. (d) An applicant for approval of a new or changed name may appeal the executive director's denial of the request to the commission. The commission's decision is final. (e) No funeral establishment may advertise under an assumed name, unless the entity has filed an assumed name certificate with the appropriate county clerk or the secretary of state, as required by the Texas Assumed Business or Professional Name Act. (f) No funeral establishment, commercial embalming establishment, crematory, or cemetery shall advertise in a manner which is false, misleading, or deceptive. After November 15, 2011, each advertisement that offers the service of an commercial embalming establishment, funeral establishment, crematory, or cemetery in Texas and is found in a telephone directory, on a radio, on a television, on a domain site, e-mail directory, web site, or newspaper must clearly display the funeral establishment, commercial embalming establishment, cemetery, or crematory license number on all advertisements. The license number shall be preceded with the TFSC License #. (g) No licensed entity shall directly advertise after November 15, 2011 on a web site, telephone directory, domain site, on a radio, on a television, e-mail directory, or newspaper with an establishment name without the establishment name and license number clearly listed. The license number shall be preceded with the TFSC License #. RULE ยง203.30

Continuing Education

(a) Purpose. Each person holding an active license and practicing as a funeral director or embalmer in this state is required to participate in continuing education as a condition of license renewal. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Approved provider--Any person or organization conducting or sponsoring a specific program of instruction that has been approved by the commission. (2) Approved program--A continuing education program activity that has been approved by the commission. The program shall contribute to the advancement, extension, and enhancement of the professional skills and knowledge of the licensee in the practice of funeral directing and embalming by providing information relative to the funeral service industry and be open to all licensees. (3) Hour of continuing education--A 50 minute clock hour completed by a licensee in attendance


at an approved continuing education program. (c) Types of acceptable continuing education. Acceptable sources of continuing education are institutes, seminars, workshops, conferences, independent study programs, college academic or continuing education courses which are related to or enhance the practice of funeral directing or embalming and are offered or sponsored by an approved provider and open to all licensees. (d) Approval of continuing education. (1) A person or entity seeking approval as a continuing education provider shall file a completed application on a form provided by the commission and include the continuing education provider fee and the fee for each course submitted. Governmental agencies are exempt from paying this fee. (2) National or state funeral industry professional organizations may apply for approval of seminars or other courses of study given during a convention. (3) An application for approval must be accompanied by a syllabus for each course submitted which specifies the course objectives, course content and teaching methods to be used, and the number of credit hours each course is requesting to be granted, and a brief resume or description of the instructor and the instructor's qualifications. (4) A provider is not approved until the executive director communicates in writing that the application has been accepted and issues a Provider Number for the provider and a course number for each course offered under that Provider Number. The commission may refuse to approve a provider's application for any valid reason, as determined by the commission. (5) A Provider Number and course number are valid for one year, expiring on December 31st of each year, regardless of when the number was granted. (e) Responsibilities of approved providers. (1) The provider shall verify attendance at each program and provide a certificate of attendance to each attendee. The certificate of attendance shall contain: (A) the name of the provider and approval number; (B) the name of the participant; (C) the title of the course or program, including the course or program number; (D) the number of credit hours given; (E) the date and place the course was held; (F) the signature of the provider or provider's representative; and (G) the signature of each attendee. (2) The provider shall maintain the attendance records for a minimum of two years on each course provided. (3) The provider shall provide a mechanism for evaluation of the program by the participants, to be completed on-site or at the time the program concludes. A copy of the evaluations and/or attendance roster shall be submitted to the commission upon request. Providers shall keep evaluations for two years after the course is presented. (4) The provider shall provide a syllabus of each course offered, which may include a copy of any video offered for home study. (5) The provider shall be responsible for ensuring that no licensee receives continuing education credit for time not actually spent attending the program. (6) Commission staff may monitor any continuing education with or without prior notice. (f) Credit hours required. (1) Licensed funeral directors and embalmers who actively practice in this state are required to obtain 16 hours of continuing education every two year renewal period. A licensee may receive credit for a course only once during a renewal period.


(2) The following are mandatory continuing education hours and subjects for each renewal period: (A) Ethics--2 credit hours--this course must at least cover principals of right and wrong, the philosophy of morals, and standards of professional behavior. (B) Law Updates--2 credit hours--this course must at least cover the most current versions of Texas Occupations Code Chapter 651, and Chapters 201 and 203 of this title. (C) Vital Statistics Requirements and Regulations--2 credit hours--this course must at least cover Texas Health and Safety Code Chapters 193, 711 - 715 and 25 TAC Chapter 181. (g) Credit hour eligibility. The commission will grant the following credit hours toward the continuing education requirements for license renewal. (1) One credit hour is given for each hour of participation, except in accredited college courses taken for school credit. Such college courses will be evaluated by the executive director on an individual basis for a certification fee set by the commission. College hour credit does not count toward the mandatory hours and subjects described in subsection (f)(2) of this section. (2) A person is eligible for a maximum of 5 credit hours per renewal period for provisional licensee supervision, regardless of the number of provisionals supervised. (3) A presenter or instructor of approved continuing education is eligible for a maximum of 5 credit hours per renewal period for instruction, regardless of the number of times the course is presented. (4) All required hours may be obtained through independent study, including home study or Internet presentation with a maximum of 3 hours credit per course. (5) A person is eligible for a maximum of 4 credit hours per renewal period for attendance at commission meetings, provided the licensee signs in and out and is present during this period of time. (6) A licensee may carry over to the next renewal period up to 10 credit hours earned in excess of the continuing education renewal requirements, except for those courses listed in subsection (f)(2) of this section. (7) It is the responsibility of the licensee to track the number of hours accumulated during a licensing period. (8) When excessive hours are to be carried over to the next licensing period, the licensee must request and obtain permission in writing to carry over continuing education hours. This request will be kept in the permanent licensing file of the individual. (h) Exemptions, waivers, reactivation, and conversion. (1) An individual newly licensed by examination whose initial renewal date is 12 months or less following original licensure is not required to obtain continuing education hours prior to renewal of the license. An individual newly licensed by examination whose initial renewal date is more than 12 months following original licensure is required to complete the hours of the three mandatory courses described in subsection (f)(2) of this section. (2) Individuals licensed in Texas, but not practicing in the state, are required to obtain the 6 mandatory hours of continuing education set forth in this section. Any individual who returns to practice in this state shall, before the next license renewal period, meet the continuing education requirements before resuming any funeral directing and/or embalming activities in the state. (3) Persons in a "Retired, Inactive" status are exempt from the continuing education requirements. (4) Persons in a "Retired, Active" status are required to obtain 10 hours of continuing education, including the mandatory hours and subjects of subsection (f)(2) of this section. (5) Persons converting from a "Retired, Inactive" status to a "Retired, Active" status shall obtain


the continuing education hours required in paragraph (4) of this subsection. (6) Persons in an active military status are eligible for exemption from the continuing education requirements, upon request. A copy of the active duty orders must be included in the request. Upon release from active duty and return to residency in the state, the individual shall meet the continuing education requirements before the next renewal period after the release and return. (7) The executive director may authorize full or partial hardship exemptions from the requirements of this section based on personal or family circumstances and may require documentation of such circumstances. (A) The hardship request must be submitted in writing at least 30 days prior to the expiration of the license. (B) Hardship exemptions will not be granted for consecutive licensing periods. (i) Failure to comply. (1) The commission will not renew the license of an individual who fails to obtain the continuing education requirements of this section, except as provided by paragraph (2) of this subsection. (2) A $300 noncompliance fee must be paid before a license is subject to renewal if the individual has not obtained the required continuing education. (A) The $300 noncompliance fee may only be used in lieu of obtaining the required continuing education for every other biennial renewal period. (B) The noncompliance penalty fee and allowance for every other renewal period does not eliminate the necessity of obtaining continuing education hours in the mandatory courses listed in subsection (f)(2) of this section. (C) The mandatory courses must be taken before the license expiration. If the mandatory courses do not total 16 hours, the noncompliance fee of $300 is due upon application for renewal. (j) Any licensee receiving continuing education in a fraudulent manner shall be required to obtain all continuing education on site for two consecutive renewal periods. RULE ยง203.31

Inspections of Licensed or Registered Facilities

(a) The Commission will inspect a facility licensed or registered by the commission if: (1) the facility was found to be deficient on a prior inspection; failed to prove compliance following a deficient finding during a prior inspection; or failed to be open for a follow-up inspection following a finding of a deficiency during a prior inspection; (2) the Commission receives a complaint regarding the establishment or facility; or (3) the Commission opens a complaint investigation in its own name against the establishment or facility. (b) If an inspector in unable to contact the establishment or facility owner, its funeral director in charge, manager of the property, or any other employee or agent of the establishment or facility to provide notice of the attempted inspection before leaving the general area, the inspector shall notify the establishment or facility by mail of the attempted inspection. (c) If an establishment or facility is unavailable for inspection twice during a six month period, the Commission may file a complaint against the establishment or facility, making the establishment or facility subject to an administrative penalty or other action. RULE ยง203.32

State Agency Action as Basis for License Suspension, Revocation, or Denial


(a) The purpose of this rule is to give force and effect to statutory actions by other state agencies regarding licensing of individuals who are in default of their obligations under state law. (b) Any licensed funeral director or embalmer shall be subject to license suspension, revocation, or denial of license renewal upon a verified showing by any state agency with statutory authority that such licensee is delinquent or in default of an obligation to, a guarantee by, or an interest protected by the state. (c) Any licensee subject to action under this section shall be afforded an opportunity for a hearing under this act in the same manner as other licensees subject to commission action unless such hearing has been provided under other applicable laws. RULE ยง203.33

Consequences of Criminal Conviction

(a) The commission may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of an occupation required to be licensed by Texas Occupations Code, Chapter 651 (Chapter 651). (b) The commission shall revoke the license of a person who is imprisoned following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision. (c) A person in prison is ineligible for licensure. (d) The commission shall revoke the license of a person for any felony conviction which results in incarceration. (e) The commission shall consider the following factors in determining whether a criminal conviction directly relates to an occupation required to be licensed by Chapter 651: (1) the nature and seriousness of the crime; (2) the relationship of the crime to the purposes for requiring a license to engage in the occupation; (3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and (4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. (f) If a person has been convicted of a crime, the commission shall consider the following in determining a person's fitness to perform the duties and discharge the responsibilities of a Chapter 651 occupation: (1) the extent and nature of the person's past criminal activity; (2) the age of the person when the crime was committed; (3) the amount of time that has elapsed since the person's last criminal activity; (4) the conduct and work activity of the person before and after the criminal activity; (5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; (6) letters of recommendation from: (A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;


(B) the sheriff or chief of police in the community where the person resides; and (C) any other person in contact with the convicted person; and (7) evidence that the applicant has: (A) maintained a record of steady employment; (B) supported the applicant's dependents; (C) maintained a record of good conduct; and (D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted. (g) The following are related to the occupations of funeral directing or embalming because they are classified as Class B misdemeanors by Texas Occupations Code, ยง651.602: (1) acting or holding oneself out as a funeral director, embalmer, or provisional license holder without being licensed under this chapter; (2) making a first call in a manner that violates Texas Occupations Code, ยง651.401; (3) engaging in a funeral practice that violates Chapter 651 or a rule adopted under Chapter 651; or (4) violating Chapter 154, Texas 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. (h) The commission of acts within the definition of Abuse of Corpse, Penal Code, ยง42.08, is related to the Chapter 651 occupations because those acts indicate a lack of respect for the dead. (i) The crimes listed in paragraphs (1) - (3) of this subsection relate to the Chapter 651 occupations because the commission of each reflects a lack of respect for human life and dignity or a lack of fitness to practice the occupations. (1) a misdemeanor or felony offense involving: (A) murder; (B) assault; (C) burglary; (D) robbery; (E) theft; (F) sexual assault; (G) injury to a child; (H) injury to an elderly person; (I) child abuse or neglect; (J) tampering with a governmental record; (K) forgery; (L) perjury; (M) bribery; (N) harassment; (O) insurance claim fraud; or (P) mail fraud; (2) delivery, possession, manufacture, or use of or the dispensing or prescribing a controlled substance, dangerous drug, or narcotic; or (3) violations of the Penal Code, Titles 4, 5, 7, 9, and 10, which indicate an inability or tendency for the person to be unable to perform as a licensee or to be unfit for licensure or registration if action or inaction by the commission will protect the public health, safety, and welfare. (j) An applicant for licensure shall disclose in writing to the commission any conviction against


him or her at the time of application. A current licensee shall disclose in writing to the commission any conviction at the time of renewal or no later than 30 days after judgment in the trial court, whichever date is earlier. (k) Upon notification of a conviction, the commission shall provide a copy of this section to the person and request that the person respond by filing information demonstrating why the commission should not deny the application or take disciplinary action against the person, if already licensed or registered. The response must be filed with the commission within 21 days of the date of receipt of notice from the commission. An applicant for licensure is responsible for filing documentation that will allow the commission to conduct an analysis under subsection (f) of this section. RULE ยง203.35

Clarification of Establishment Chapel Requirements

All funeral establishments must have a chapel in which funeral services may be conducted. All chapels shall provide, at a minimum: (1) seating for ten; (2) public access; (3) space for the casket; and (4) a lectern or a podium. RULE ยง203.36

Temporary Operation Authorization--Damaged Establishments

(a) The commission may grant a temporary operation authorization to a licensed funeral or crematory establishment to operate at a temporary location if the establishment is damaged by fire, flood, or other natural disaster. (b) The temporary location must meet all the requirements for funeral and crematory establishments under Texas Occupations Code, Chapter 651 and these rules. (c) The application for a temporary operation authorization shall be in writing, shall detail the circumstances which prevent the conduct of business at the licensed location, and shall provide an estimated date by which the licensed location will be made ready for operation. (d) All crematory services shall be performed by a person certified to operate the cremation chamber whose name is on file with the commission as required by Texas Occupations Code. ยง651.657 and ยง205.3(a) of this title (relating to Crematory License Requirement and Procedure). RULE ยง203.38

Reinstatement of Funeral Director and/or Embalmer Licenses

(a) A person whose license to practice funeral directing and/or embalming has been cancelled or revoked may, after five (5) years from the effective date of such cancellation or revocation, petition the Board for reinstatement of the license, unless another time is provided in the cancellation or revocation order. This rule does not apply to licensees who let their licenses lapse for non-payment of renewal fees.


(b) The petition shall be in writing and in the form prescribed by the Commission or Board. (c) The Commission or Board may grant or deny the petition. If the petition is denied by the Commission or Board, a subsequent petition may not be considered by the Commission or Board until twelve (12) months have lapsed from the date of denial of the previous petition. (d) The petitioner or his legal representative shall appear before the Commission or Board to present the request for reinstatement of the license. (e) The petitioner shall have the burden of showing good cause why the license should be reinstated. (f) In considering a petition for reinstatement, the Commission or Board may consider the petitioner's: (1) moral character; (2) employment history; (3) status of financial support to his family; (4) participation in continuing education programs or other methods of staying current with the practice of funeral directing and/or embalming; (5) criminal history record, including felonies or misdemeanors relating to the practice of funeral directing, embalming and/or moral turpitude; (6) offers of employment as a funeral director and/or embalmer; (7) involvement in public service activities in the community; (8) compliance with the provisions of the Commission or Board order revoking or canceling the petitioner's license; (9) compliance with provisions of the Funeral Directing and/or Embalming Act regarding unauthorized practice; (10) history of acts or actions by any other state and federal regulatory agencies; and (11) any physical, chemical, emotional, or mental impairment. (g) In considering a petition, the Commission or Board may also consider: (1) the gravity of the offense for which the petitioner's license was cancelled or revoked; (2) the length of time since the petitioner's license was cancelled or revoked as a factor in determining whether the time period has been sufficient for the petitioner to have rehabilitated himself to be able to practice funeral directing or embalming in a manner consistent with the public health, safety and welfare; (3) whether the license was submitted voluntarily for cancellation or revocation at the request of the licensee; and (4) other rehabilitative actions taken by the petitioner. (h) If the Commission or Board grants the petition for reinstatement, the petitioner must successfully complete the Texas State Mortuary Law Exam during the regularly scheduled examination times. The Commission or Board may also require the petitioner to complete additional training to assure the petitioner's competency to practice funeral directing and/or embalming. With an agreed order, the commission may probate the license not less than two (2) years. RULE ยง203.39

Embalmer in Charge

(a) Each licensed commercial embalming establishment must at all times have a designated embalmer in charge, who is ultimately responsible for compliance with all mortuary, health, and


vital statistics laws in the commercial embalming establishment. A commercial embalming establishment must designate an embalmer in charge at the time it receives its establishment license, and any time the embalmer in charge changes, the commercial embalming establishment must notify the commission, on a form prescribed by the commission, within 15 days. (b) The embalmer in charge must be generally available in the routine functions of the commercial embalming establishment in order to personally carry out his or her responsibilities. (c) The embalmer in charge may be served with administrative process when violations are alleged to have been committed in a commercial embalming establishment. (d) An individual may not be designated as the embalmer in charge of more than one establishment unless the additional establishments are operated as branches or satellites of a primary establishment, all of the establishments are under the same ownership, same general management, and no establishment is more than 60 miles from any other establishment held under the same ownership conditions. (e) In order to be designated embalmer in charge of more than one establishment, the licensee must submit a petition to the commission that clearly explains how each of the criteria in subsection (d) of this section have been met. The executive director shall decide whether to grant the petition. The request and decision will be made part of the permanent licensing file. The executive director's decision may be appealed, in writing, to the commission, and the appeal will be considered at the commission's next regularly scheduled meeting. The executive director shall advise interested parties of the action taken by the commission in writing. (f) If the commercial embalming establishment employs a provisional licensee it is the responsibility of the designated embalmer in charge and the provisional licensee to schedule case work sufficient for the provisional program. It is also the responsibility of the designated embalmer in charge to ensure that each provisional licensee is properly supervised while performing cases. The provisional licensee must file a report with embalmer in charge outlining the number of cases performed during the month and the name of the embalmer under whom the cases were supervised. The embalmer in charge shall retain copies of all reports with supporting documentation for all case credit claimed for 2 years from the completion date of the provisional program. (g) The embalmer in charge of the facility where the provisional licensee is employed shall notify the commission in writing upon the completion of the provisional license program, as defined as the provisional licensee meeting all the requirements for regular licensure, by submitting the number of cases performed while the licensee was under the employment of said embalmer. ULE ยง203.40

Provisional License; Hardship

(a) Notwithstanding the provisions of ยง203.38(a) of this chapter, a person whose provisional license is cancelled for failure to comply with ยง203.6 of this chapter may within 60 days of such cancellation notify the Executive Director that the person wishes to petition the Commission for reinstatement in the provisional program by demonstrating that the failure to comply with ยง203.6 of this chapter was because of a personal situation that made such compliance unreasonable under the circumstances. (b) Upon timely receipt of a notice, the Executive Director shall cause the matter of the person's petition for reinstatement to be placed on an agenda for consideration by the Commission. (c) If the Commission determines that the person has made a compelling case for reinstatement in


the provisional program by demonstrating that the failure to comply with ยง203.6 of this chapter was because of a personal situation that made such compliance unreasonable under the circumstances, the Commission may reinstate the person in the provisional program under terms and conditions that it may prescribe. (d) If the Commission determines that the person has not made a compelling case for reinstatement in the provisional program, the Commission shall so find and the person's status with respect to licensure will be governed thereafter by the provisions of ยง203.38 of this chapter. RULE ยง203.41

In-Casket Identification

Each funeral home shall ensure each casket contains a durable, waterproof identification of the deceased person, including the person's name, date of birth, and date of death. This information shall be inside the casket. RULE ยง203.42

New License Applications

(a) Applications for licensure must be submitted on forms developed by the commission. Applications shall be accompanied by applicable licensing fees and annual registration fees. (b) A licensee may request the commission to issue a criminal history evaluation letter regarding the person's eligibility for a license issued if the person is enrolled or planning to enroll in an educational program that prepares a person for an initial license or is planning to take an examination for an initial license. (c) A licensee may request a criminal history evaluation letter if they have reason to believe ineligible for a license due to a conviction or deferred adjudication for a felony or misdemeanor offense. The request must state the basis for the potential ineligibility. (d) The commission shall investigate a request submitted under this section and the requestor's eligibility that the authority has to investigate a person applying for a license. (e) The commission must provide notice under subsection (a) of this section or issue a letter under subsection (b) of this section not later than the 90th day after the date of receipt of the request. (f) If the commission determines that a ground for ineligibility does not exist, the commission shall notify the requestor in writing of the commission's determination on each ground of potential ineligibility. (g) If the commission determines that the requestor is ineligible for a license, the licensing authority shall issue a letter setting out each basis for potential ineligibility and the commission's determination as to eligibility. In the absence of new evidence known to but not disclosed by the requestor or not reasonably available to the commission at the time the letter is issued, the commission ruling on the request determines the requestor's eligibility with respect to the grounds for potential ineligibility set out in the letter. (h) The commission may charge a person requesting an evaluation under this section a fee adopted by the authority. Fees adopted by a licensing authority under this section must be in an amount sufficient to cover the cost of administering this section. (i) The commission may charge a licensee requesting an evaluation under this section a fee adopted by the authority. Fees adopted by a licensing authority under this section must be in an amount sufficient to cover the cost of administering this section.


(j) Certain Grounds for Denial or Revocation of a License. The commission may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of an offense that directly relates to the duties and responsibilities of the licensed occupation. (k) An offense that does not directly relate to the duties and responsibilities of the licensed occupation and that was committed less than five years before the date the person applies for the license. (l) An offense listed in ยง3g, Article 42.12, Code of Criminal Procedure; or a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure. (m) The commission may issue a provisional license for a term of six months to an applicant who has been convicted of an offense. (n) The commission shall revoke a provisional license if the provisional license holder commits a new offense; commits an act or omission that causes the person's community supervision, mandatory supervision, or parole to be revoked, if applicable; or violates the law or rules governing the practice of the occupation for which the provision license is issued. (o) The commission shall issue the license for which the applicant originally applied to a provisional holder on the expiration of the provisional license term if the provisional license holder does not engage in conduct described by subsection (n) of this section. (p) If the commission revokes a provisional license under subsection (n) of this section, the provisional license holder is disqualified from receiving the license for which the applicant originally applied. (q) A licensee who is on community supervision, mandatory supervision, or parole and who is issued a provisional license under this section shall provide to the commission the name and contact information of the probation or parole department to which the person reports. (r) The commission shall notify the probation or parole department that a provisional license has been issued. The probation or parole department shall notify the commission if the person's community supervision, mandatory supervision, or parole supervision is revoked during the term of the provisional license. (s) An evaluation fee in the amount of $95 is due at the time of application.

TEXAS FUNERAL SERVICE COMMISSION CHAPTER 205 CEMETERIES AND CREMATORIES PART 10

Rules RULE ยง205.1

Cemetery License Requirements and Procedure

(a) All cemeteries that conduct business, other than those described in Texas Occupations Code, ยง651.353, are required to be licensed by the commission. (b) The licensing fee for cemeteries shall accompany the application for licensure. The amount of the licensing and renewal fees are posted on the commission's website at www.tfsc.state.tx.us. (c) A license is for one year and is automatically renewed upon timely receipt of the renewal fee by the commission.


(d) A cemetery that renews its license on or before the 30th day following the license expiration date shall pay, in addition to the renewal fee, a late payment penalty equal in amount to the renewal fee. (e) A cemetery that fails to renew its license on or before the 30th day following the license renewal date may not renew the license and may not operate as a cemetery until receipt of a new license. (f) The license of a perpetual care cemetery is automatically renewed upon receipt by the commission of a timely filed renewal form. RULE §205.2

Ingress and Egress to Cemeteries and Private Burial Grounds Which Have No Public Ingress or Egress

(a) Section 711.012(b), Texas Health and Safety Code, authorizes the Texas Funeral Service Commission (commission) to promulgate rules to effectuate §711.041, Texas Health and Safety Code. (b) Section 711.041(a), Texas Health and Safety Code, provides that any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have, for the purposes usually associated with cemetery visits and during reasonable hours, as determined under §711.041(b), Texas Health and Safety Code, the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds. (c) Section 711.041(b), Texas Health and Safety Code, provides that the owner or owners of lands surrounding a cemetery or private burial grounds may designate the route or routes of reasonable ingress and egress and reasonable hours of availability. (d) The term "owner or owners of lands surrounding a cemetery or private burial grounds" as used in §711.041(b), Texas Health and Safety Code, means any person, persons, entity, or entities that own lands that lie between a public road and a cemetery or private burial grounds that has no public ingress or egress irrespective of whether such lands are contiguous to the cemetery or private burial grounds or to the public road. (e) The commission finds that the term "reasonable hours" as used in §711.041(b), Texas Health and Safety Code, should be interpreted to mean 8:00 a.m. to 5:00 p.m. on any day of the week. It is provided, however, that the hours during the day and the days of the week during which ingress and egress shall be allowed may be more particularly circumscribed by an agreement reached or an order entered pursuant to subsections (i) - (n) of this section. (f) The phrase "purposes usually associated with cemetery visits" as used in §711.041(1), Texas Health and Safety Code, means a visit by any person or group of persons for the purpose of interring a person or persons in a cemetery or private burial grounds or for the purpose of paying respect to a person or persons interred in a cemetery or private burial grounds. (g) The use by the Texas Legislature of the word "reasonable" in the phrase "designate the routes of reasonable ingress and egress" as set out in §711.041(b), Texas Health and Safety Code, means: (1) that an "owner or owners of land surrounding the cemetery or private burial grounds" may not designate a route or routes of ingress and egress that discourages visits to a cemetery or private burial grounds during "reasonable hours" for the "purposes usually associated with cemetery visits" as defined in subsections (e) and (f) of this section; and (2) that an "owner or owners of land surrounding a cemetery or private burial grounds" may not thwart the right of ingress and egress guaranteed by §711.041, Texas Health and Safety Code, by


the imposition of liability insurance or other indemnification requirements that render impractical or impossible visits during "reasonable hours" for the "purposes usually associated with cemetery visits" as defined in subsections (e) and (f) of this section. (h) Within the framework provided by subsections (d) - (g) of this section, persons or entities that interested in establishing a visitation schedule and a route or routes of reasonable ingress and egress with respect to a particular cemetery or private burial grounds shall make contact with and negotiate with each owner or owners of lands that surround the cemetery or private burial grounds for the purpose of agreeing to and reducing to writing the visitation schedule and route or routes of reasonable ingress and egress to a cemetery or private burial grounds for which no public ingress and egress is available. The person or entities making contact with the owner or owners of land that surround such a cemetery or public burial grounds shall inform the executive director of the commission that such contact is being initiated. (i) If the parties reach agreement during the negotiations prescribed by subsection (h) of this section, the persons or entities making contact with the owner or owners of lands shall file a written agreement signed by all parties with the executive director of the commission. (j) If the parties cannot reach agreement during the negotiations prescribed by subsection (h) of this section, any party to the negotiations may request of the executive director of the commission that the dispute be mediated pursuant to the commission's alternate dispute resolution policy and procedure as set out in ยง207.1, of this title (relating to Examining Boards). (k) If the mediation is successful, the mediated agreement shall be reduced to writing and filed with the executive director of the commission. (l) If the mediation is not successful, the executive director shall propose to the commission the adoption of an order setting out a reasonable visitation schedule and a route or routes of reasonable ingress to the cemetery or private burial grounds for which no public ingress or egress is available. (m) Notice and a copy of the proposed order will be sent by certified mail to all interested parties no less than 30 days prior to the commission meeting at which the adoption of an order will be considered. At the meeting at which the adoption of an order will be considered, each affected party will be given an opportunity to offer testimony with respect to the proposed order. Subject to expansion by the commission on the day of the meeting, time limits on testimony shall be set by the executive director in the notice accompanying a copy of the proposed order. (n) After consideration of the proposed order and any testimony taken, the commission may adopt the order as proposed, may adopt the order with changes, or may defer action to a future meeting. An order adopted by the commission under this section is final as of the date of the commission's adoption of the order, as proposed or with changes, at a meeting. A copy of the commission's final order will be sent to the parties by certified mail. RULE ยง205.3

Crematory License Requirement and Procedure

(a) The crematory establishment license application shall be on a form furnished by the commission and shall contain all information required by Texas Occupations Code, ยง651.657, including: (1) a statement that all operators of the cremation chamber are certified by a reputable organization approved by the commission; and (2) the names of all persons certified to operate the cremation chamber. (b) The completed application, including all required documentation, shall be paid before the


commission inspects the crematory establishment. (c) A license is for one year. (d) The license may be renewed by filing with the commission a renewal application accompanied by the renewal fee and the Crematory Annual Report required by Texas Occupations Code, §651.658(a)(1) and §205.9 of this chapter (relating to Crematory Annual Report, Extensions for Good Cause, and Late Fees). (e) The renewal application must contain the information required by Texas Occupations Code, §651.657 and subsection (a) of this section or a statement that the information previously furnished has not changed. (f) The commission may not renew an application until the applicant has met the requirements of Texas Occupations Code, §651.658(a). (g) A crematory that fails to renew its license by its renewal date shall pay, in addition to the renewal fee, a late payment penalty equal in amount to the renewal fee. (h) The license that is not renewed within 30 days of its expiration date may be renewed by paying the renewal fee and late payment penalty. RULE §205.5

Acceptance of Remains

A crematory not licensed as a funeral establishment may not accept deceased human remains for cremation until cremation is authorized by a justice of the peace or a medical examiner in the county in which the death occurred. RULE §205.6

Contracts for Direct Cremation Services

An authorizing agent authorized to dispose of the remains of a deceased individual may contract directly for cremation services if the crematory is also licensed as a funeral establishment or if the authorizing agent receives written authorization from either a justice of the peace or medical examiner of the county in which the death occurred. RULE §205.7

Waiting Period for Cremation

Cremation may not occur sooner than 48 hours following the time of death indicated on the death certificate unless the waiting period is waived in writing by a justice of the peace, a medical examiner in the county in which the death occurred or a court order. RULE §205.9

Crematory Annual Report, Extensions for Good Cause, and Late Fees

(a) The annual report required by Texas Occupation Code §651.658 shall cover the period from January 1 to December 31. (b) The report must be postmarked by January 30 of the following year. (c) The commission shall grant an extension for filing the annual report for no more than 60 days upon proof of good cause.


(d) Good cause for purposes Texas Occupation Code §651.658(e) and subsection (c) of this section is an event beyond the control of the crematory owner or operator that prevents the owner or operator from timely completing and filing the annual report. (e) Requests for extensions of time to file the annual report based on good cause will not be approved if received by the commission later than January 4 following the end of the year for which the report is due. (f) A $100 late fee will be imposed for each day a crematory establishment fails to submit the annual report if the commission has not granted an extension of time for filing the report. The commission has no authority to waive or reduce the late fee. RULE §205.11

Prerequisites for Cremation

(a) Health and Safety Code §716.051 provides that a crematory may cremate deceased human remains upon receipt of a cremation authorization form signed an authorizing agent and either a death certificate or other death record issued by a local registrar reflecting that the deceased human remains may be cremated. (b) As a practical matter, however, three documents are required to accomplish the cremation of deceased human remains: (1) a cremation authorization form; (2) a death certificate; and (3) a burial transit permit. (c) The Department of State Health Services (DSHS) remains authorized to regulate the transportation of dead bodies under Health and Safety Code, §694.001. DSHS 25 TAC §181.2 (relating to Assuming Custody of Body) requires a funeral director or person acting as such to obtain a burial-transit permit from the local registrar if a body is to be cremated. RULE §205.13

Written Waiver of Identification Required

A waiver of a right of identification under Health and Safety Code, §716.104(b) is valid only if given in writing. RULE §205.15

Commingling Limitations

(a) A crematory establishment may not simultaneously cremate the deceased human remains of more than one person in the same cremation chamber unless authorized by the authorizing agent of each deceased person in a cremation authorization form or other written document. (b) A crematory establishment may not simultaneously cremate deceased human remains with items of value, pacemakers or other potentially hazardous implants that are specifically disclosed by the authorizing agent on the cremation authorization form and are not authorized by the authorizing agent to be cremated with the deceased human remains. CHAPTER 206 GUARANTEED STUDENT LOANS


Rules RULE ยง206.1

Default and Repayment Agreements

Applicability of Education Code. All individual license renewals are subject to Texas Education Code, ยง57.491 relating to defaults on guaranteed student loans and repayment agreements. (1) The commission may issue an initial license to a person who is in default on a guaranteed student loan but shall not renew the license, unless the applicant furnishes a certification from the Texas Guaranteed Student Loan Corporation that the licensee has entered into a repayment plan on the loan or that the licensee is no longer in default on the loan. (2) The commission shall not renew the license of a person who is in default on a guaranteed student loan, unless the renewal is the first renewal following the commission's receipt of notice of the licensee's default or the licensee has furnished the certification described in paragraph (1) of this section. (3) The commission shall not renew the license of a person who defaults on a repayment agreement on a defaulted loan, unless the commission receives a certification that the licensee has entered into another repayment agreement or that the licensee is no longer in default. (4) The commission shall give the licensee an opportunity for hearing before taking action concerning the non-renewal of a license for default on a guaranteed student loan or a repayment agreement.

CHAPTER 207 ALTERNATIVE DISPUTE RESOLUTION

Rules RULE ยง207.1

Alternative Dispute Resolution Policy and Procedure

(a) Policy. The Texas Funeral Service Commission encourages the resolution and early settlement of all contested matters through voluntary settlement procedures. Commission employees shall implement this policy. (b) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) ADR--Alternative Dispute Resolution. (2) Alternative dispute resolution director or ADR procedure--A nonjudicial and informally conducted forum for the voluntary settlement of contested matter through intervention of an impartial third party. (3) Alternative dispute resolution director or ADR director--The director of the agency office empowered by the commission to coordinate and oversee ADR procedures and mediators. (4) Contested matter--A request for an order or other formal or informal authorization from the commission that is opposed. (5) Mediator--The person appointed by the ADR office director to preside over ADR proceedings


regardless of which ADR method is used. (6) Parties--The agencies, employees, managers, supervisors or customers who are in conflict. (7) Participants--The executive director, the agency legal counsel, the complainant, the respondent, the person who timely filed hearing requests which gave rise to the dispute or if parties have been named, the named parties. (8) Private mediator--A person in the profession of mediation who is not a Texas state employee and who has met all the qualifications prescribed by Texas law for mediators. (c) Referral of Contested Matter for Alternative Dispute Resolution Procedures. The commission or the ADR director may seek to resolve a contested matter through any ADR procedure. Such procedures may include, but are not limited to, those applied to resolve matters pending at the State Office of Administrative Hearing (SOAH) and in the state's district courts. (d) Appointment of Mediator. (1) For each matter referred for ADR procedures, the ADR director shall assign a mediator, unless the participants agree upon the use of a private mediator. The ADR director may assign a substitute or additional mediator to a proceeding as the ADR director deems necessary. (2) A private mediator may be hired for commission ADR procedures provided that: (A) the participants unanimously agree to use a private mediator; (B) the participants unanimously agree to the selection of the person to serve as the mediator; (C) the mediator agrees to be subject to the direction of the commission's ADR director and to all time limits imposed by the director, the judge, statute or regulation. (3) If a private mediator is used, the costs for the services of the mediator shall be apportioned equally among the participants, unless otherwise agreed upon by the participants, and shall be paid directly to the mediator. In no event, however, shall any such costs be apportioned to a governmental subdivision or entity that is a statutory party to the hearing. (4) All mediators in commission mediation proceedings shall subscribe to the ethical guidelines for mediators adopted by the ADR Section of the State Bar of Texas. (e) Qualifications of Mediators. (1) The commission shall establish a list of mediators to resolve contested matters through ADR procedures. (A) To the extent practicable, each mediator shall receive 40 hours of formal training in ADR procedures through programs approved by the ADR director. (B) Other individuals may serve as mediators on an ad hoc basis in light of particular skills or experience which will facilitate the resolution of individual contested matters. (2) SOAH mediators, employees of other agencies who are mediators and private pro bono mediators may be assigned to contested matters as needed. (A) Each mediator shall first have received 40 hours of Texas mediation training as prescribed. (B) Each mediator shall have some knowledge in the area of the contested matter. (C) If the mediator is a SOAH judge, that person will not also sit as the judge for the case if the contested matter goes to public hearing. (f) Commencement of ADR. (1) The commission encourages the resolution of disputes at any time, whether under this policy and procedure or not. ADR procedures under this policy may begin, at the discretion of the ADR director, anytime once deemed administratively complete and at least one letter of appeal has been filed with commission. (2) Upon unanimous motion of the parties and the discretion of the judge, the provisions of this subsection may apply to contested hearings. In such cases, it is within the discretion of the judge to


continue the hearing to allow use of the ADR procedures. (g) Stipulations. When ADR procedures do not result in the full settlement of a contested matter, the participants, in conjunction with the mediator, shall limit the contested issues through the entry of written stipulations. Such stipulations shall be forwarded or formally presented to the judge assigned to conduct the hearing on the merits and shall be included in the hearing record. (h) Agreements. Agreements of the participants reached as a result of ADR must be in writing and are enforceable in the same manner as any other written contract. (i) Confidentiality of Communications in Alternative Dispute Resolution Procedures. (1) Except as provided in subsections (3) and (4) of this section a communication relating to the subject matter made by the participant in an ADR procedure whether before or after the institution of formal proceedings, is confidential, is not subject to disclosure and may not be used as evidence in any further proceedings. (2) Any notes or record made of an ADR procedure are confidential, and participants, including the mediator, may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute. (3) An oral communication or written material used in or made a part of and ADR procedure is admissible or discoverable independent of the procedure. (4) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may; be presented to the judge to determine, in camera, whether the facts, circumstances and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure. (5) The mediator may not, directly or indirectly, communicate with the judge or any commissioner, of any aspect of ADR negotiations made confidential by this section.

CHAPTER ETHICAL STANDARDS FOR PERSONS LICENSED BY THE 209 COMMISSION

Rules RULE ยง209.1

Ethical Standards

(a) Individuals licensed by the commission serve the consumer during one of the most demanding periods that a consumer will experience. Many services provided require knowledge in the mortuary arts and sciences which most bereaved families do not have. Licensees should strive to attain the highest degree of ethical and professional conduct using honesty, candor and respect. (b) Applicability. These policies are intended to set forth ethical precepts to which individuals licensed by the commission should aspire to achieve. These standards are not intended to be used by parties to litigation over whether or not they have been observed. State and federal law and rules dictate the minimum standards to which each individual licensee must conform. These policies are adopted to set a higher goal and standard of ethics and professionalism which individual licensees should strive to attain, because it is right and just.


(c) Competency. The licensee shall be knowledgeable of and adhere to the laws, the rules, applicable codes, and all procedures established by the commission for licensees. It is the obligation of the licensee to exercise reasonable judgment and skill in the performance of all duties and work performed as a licensee. (d) Integrity. (1) A licensee shall be honest and trustworthy in the performance of all duties and work performed as a licensee and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. (2) A licensee shall refrain from engaging in acts or practices that constitute threats, coercion, or extortion. (3) A licensee shall respect a consumer's right of personal choice and decisions with regard to making arrangements. (e) Interest. The primary interest of the licensee is to ensure compliance with the Act, the rules, and all applicable codes. The licensee's position, in this respect, should be clear to all parties concerned while in the performance of all duties and work performed as a licensee. (f) Specific Rules of Conduct. (1) A licensee shall provide services to client families without regard to religion, race, color, national origin, sex, sexual orientation or disability. (2) A licensee shall provide to consumers and prospective consumers, where applicable, all statutorily required documentation, pricing information, and any other information concerning funerals, cremations, burials, pricing, merchandise, and services, including a consumer brochure and retail price list, in a manner which is neither unfair nor deceptive. (3) A licensee shall protect from disclosure confidential information pertaining to the deceased or the family of the deceased. (4) A licensee shall account properly for and remit any monies, documents, or personal property that belongs to others that comes into the licensees' possession. (5) A licensee shall not participate, whether individually or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the laws, the rules, or the standards adopted by the commission. (6) A licensee shall not knowingly furnish inaccurate, deceitful, or misleading information to the Commission or a consumer while performing as a licensee. (7) A licensee shall not engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing as a licensee. (8) A licensee shall not solicit business or offer inducement to secure or attempt to secure business except where authorized by law. (9) A licensee shall not violate any statute, ordinance, or regulation affecting the handling, custody, care or transportation of a decedent.


HEALTH SERVICES PART 1 DEPARTMENT OF STATE HEALTH SERVICES CHAPTER 181 VITAL STATISTICS SUBCHAPTER A MISCELLANEOUS PROVISIONS TITLE 25

Rules RULE ยง181.1

Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Applicant--A person who requests a service pertaining to a record of birth or death, verification of marriage or divorce, or release of personal data. (Also, see definition for properly qualified applicant). (2) Birth records--Records governing births filed pursuant to the Texas Vital Statistics Act, the Health and Safety Code, Title 3. (3) Bureau of Vital Statistics (Bureau)--The office within the Texas Department of Health charged with the implementation of the Texas Vital Statistics Act. (4) Certified--A certified statement, form, or letter, of the facts stated on the form or document as filed in the Bureau of Vital Statistics, certified by the state registrar or duly appointed designee, over the respective signature and may bear the seal of the Bureau of Vital Statistics. (5) Certified copy--An abstract or photocopy of the original record issued as filed with the Bureau of Vital Statistics, and issued on a designated form or security paper which shall bear the "state seal", the Texas Department of Health-Bureau of Vital Statistics or the seal of their office, and the facsimile signature of the State Registrar or the local registration official. (6) Dead body--A lifeless human body or such parts of the human body or the bones thereof from the state of which it may be reasonably concluded that death occurred. (7) Disinterment--To exhume, unbury, or take out of the grave. (8) Death records--Records governing deaths and fetal deaths filed pursuant to the Texas Vital Statistics Act. (9) Department--The Texas Department of Health. (10) Embalming--The act of disinfecting or preserving a human dead body, entire or in part, by the use of chemical substances, fluids, or gases in the body; or by the introduction of the same into the body by vascular or hypodermic injection; or by direct application into the organs or cavities; or by any other method intended to disinfect or preserve a dead body or restore body tissues and structures. (11) Fetal death (stillbirth)--Death prior to the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy; the death is indicated by the fact that after such separation, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. (12) Genealogist--An individual who traces the descent of persons or families. He or she may be an individual family member or a person hired by the family to trace a family tree or do family


research. (13) Identification of applicant--Each applicant must present a current form of government issued photo identification along with his or her application. If the applicant is unable to present a current form of photo identification, two valid supporting forms of identification may be presented, one of which bears the applicant's signature. (14) Immediate family member--The registrant, his or her guardian, or the children, spouses, parents, siblings, or grandparents of the registrant. (15) Indexes--An index to or listing of birth records, death records, applications for marriage licenses, and reports of divorce or annulment of marriage. (A) Consolidated indexes--These indexes are vital records consisting of more than one event year. Consolidated indexes may be prepared for any vital event at the discretion of the State Registrar in the form prescribed. (B) General birth and death indexes--These indexes are maintained or established by the bureau of vital statistics or a local registration official which shall be prepared by event year, in alphabetical order by surname of the registrant, followed by any given names or initials, the date of the event, the county of occurrence, the state or local file number, the name of the father, the maiden name of the mother, and sex of the registrant. (C) Summary birth and death index--These indexes are maintained or established by the Bureau of Vital Statistics or a local registration official which shall be prepared by event year, in alphabetical order by surname of the registrant, followed by any given names or initials, the date of the event, the county of occurrence, and sex of the registrant. (16) Interment--Burial or the act of placing in a grave. (17) Legal representative (personal representative or agent)--An attorney in fact, a funeral director, or any other person designated by affidavit, contract, or court order acting on behalf and for the benefit of the registrant or his or her immediate family. In order to determine the need for protection for personal property rights when the legal representative is acting on behalf and for the benefit of the registrant or the registrant's immediate family or other entity having a direct and tangible interest in the record, the state registrar, local registrar, or county clerk shall require a designation document or an attested statement to that effect. (18) Live birth--The complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; each product of such a birth is considered live born. (19) Local registration official--A county clerk or person authorized by the Vital Statistics Act to maintain a duplicate system of records for each birth, death, or fetal death that occurs in the person's jurisdiction. (20) Non-institutional Birth--A birth occurring outside a hospital or birthing center licensed by the Texas Department of Health. (21) Person in charge of interment--Any person who places or causes to be placed a fetus, dead body or the ashes, after cremation, in a grave, vault, urn, or other receptacle, or otherwise disposes thereof. (22) Properly qualified applicant (qualified applicant)--The registrant, or immediate family member either by blood, marriage or adoption, his or her guardian, or his or her legal agent or representative. Local, state and federal law enforcement or governmental agencies and other persons may be designated as properly qualified applicants by demonstrating a direct and tangible


interest in the record when the information in the record is necessary to implement a statutory provision or to protect a personal legal property right. A properly qualified applicant may also be a person who has submitted an application for a request to release personal information and has been approved as outlined in ยง181.11 of this title (relating to Requests for Personal Data). (23) Registrant--The individual named on the certificate of birth, death, or fetal death; application for marriage license; or report of divorce or annulment of marriage. (24) Registrar--The State Registrar or a local registrar as recognized by the Texas Department of Health, Bureau of Vital Statistics. (25) Research copy--A plain paper noncertified reproduction of the complete original document or a portion of the original document. (26) Search--The act of examining the files and/or indexes maintained by the Bureau of Vital Statistics for a specific record or information. (27) Signature--The name of a person written with his or her own hand; or by an electronic process approved by the State Registrar. (28) State Registrar--The Chief, Bureau of Vital Statistics, Texas Department of Health. (29) Supplemental Birth Certificate--A new birth certificate prepared and filed by the Bureau, which is based upon a paternity determination, or adoption. This new birth certificate replaces the original certificate of birth. (30) Birth Verification--A noncertified statement only of the registrant's name, date of birth, and place of birth as it appears on the birth index filed with the Bureau of Vital Statistics. (31) Death Verification--A noncertified statement only of the registrant's name, date of death, and place of death as it appears on the death index filed with the Bureau of Vital Statistics. (32) Fetal Death Verification--A noncertified statement only of the registrant's name, date of delivery, and place of delivery as it appears on the fetal death index filed with the Bureau of Vital Statistics. (33) Marriage Verification--A noncertified statement only of the registrant's name, date of marriage, and place of marriage as it appears on the application for marriage license index filed with the Bureau of Vital Statistics. (34) Report of Divorce or Annulment of Marriage Verification--A noncertified statement only of the registrant's name, date of divorce, and place of divorce as it appears on the report of divorce or annulment of marriage index as it appears on the birth index filed with the Bureau of Vital Statistics. (35) Vital statistics--The registration, preparation, transcription, collection, compilation, distribution and preservation of data pertaining to births, adoptions, paternity determinations, deaths, fetal deaths, suits affecting parent child relationship, court of continuing jurisdiction, marital status, and such other data as deemed necessary by the department. (36) Vital Statistics Act--The Health and Safety Code, Title 3. RULE ยง181.2

Assuming Custody of Body

(a) The funeral director, or person acting as such, who assumes custody of a dead body or fetus shall obtain an electronically filed report of death through a Bureau of Vital Statistics system or complete a report of death before transporting the body. The report of death shall within 24 hours be mailed or otherwise transmitted to the local registrar of the district in which the death occurred or in which the body was found. A copy of the completed or electronically filed report of death as


prescribed by the Bureau of Vital Statistics shall serve as authority to transport or bury the body or fetus within this state. (b) If a dead body or fetus is to be removed from this state, transported by common carrier within this state, or cremated, the funeral director, or person acting as such, shall obtain a burial-transit permit from the local registrar where the death certificate is or will be filed, or from the state registrar electronically through a Bureau of Vital Statistics electronic death registration system. The registrar shall not issue a burial-transit permit until a certificate of death, completed in so far as possible, has been presented (See ยง181.6 of this title (relating to Disinterment)). (c) The funeral director, or person acting as such, shall furnish the sexton or other person in charge of a cemetery with the information required. RULE ยง181.3

Transportation of Dead Bodies

(a) Bodies shipped by common carrier. (1) Any body shipped by common carrier must be placed in either: (A) a sound casket enclosed in a strong outside shipping case; or (B) a metal container specifically designed for this purpose. (2) If the body is not embalmed or is in a state of decomposition, it may be shipped only after enclosure in an air-tight metal casket encased in a strong outside shipping case or in a sound casket encased in an air-tight metal or metal lined shipping case. (3) Shipping containers and requirements for the shipping of dead bodies must meet or exceed any requirement imposed by the shipping company, the receiving state or foreign country. (4) When any body is to be transported by common carrier, the burial-transit permit shall be enclosed in a strong envelope and attached to the shipping case. No separate transit permit shall be required. (b) Bodies transported by means other than common carrier. (1) Any body transported by means other than a common carrier must be encased in a container which insures against seepage of fluid and the escape of offensive odors, provided, however, that bodies transported by a licensed funeral director in a vehicle used for such purpose need not be so encased. (2) If a dead body is to be transported by means other than a common carrier and for a purpose other than preparation or storage, the report of death form shall be enclosed in a strong envelope and attached to the container in which the body is enclosed. (c) Duties of transportation companies. No transportation company shall accept any body for shipment until it has been ascertained that a properly completed burial-transit permit accompanies the body. RULE ยง181.4

Preservation of Bodies

No human body may be held in any place or be in transit more than 24 hours after death and pending final disposition unless either maintained at a temperature within the range of 34 degrees 40 degrees Fahrenheit, or is embalmed by a licensed embalmer in a manner approved by the Texas Funeral Service Commission, or by an embalmer licensed to practice in the state where death occurred or is encased in a container which insures against seepage of fluid and the escape of


offensive odors. RULE ยง181.5

Embalming and Standards of the Funeral Industry

(a) The department adopts by reference the rules of the Texas Funeral Service Commission in 22 TAC ยง203.16, covering minimum standards for embalming. (b) The rules adopted by reference in subsection (a) of this section shall not require or infer a requirement for the embalming of a dead body prior to burial or cremation. RULE ยง181.6

Disinterment

(a) Except as is authorized for a justice of the peace acting as coroner or medical examiner under the Code of Criminal Procedure, Chapter 49, remains may not be removed from a cemetery except on written order of the state registrar or the state registrar's designee. (b) The licensed funeral director to whom the disinterment permit is issued shall be responsible for the proper conduct of the disinterment and removal. (c) The state registrar shall issue a disinterment permit so as to provide a copy for the state registrar, a copy retained by the funeral director to whom issued, a copy filed with the sexton or person in charge of the cemetery in which the disinterment is to be made, and a copy for the local registrar of the district in which the death occurred. The state registrar and the local registrar shall amend the certificate of death filed in their respective offices. (d) A disinterment permit shall not be required if a body is to be disinterred and reinterred in the same cemetery. (e) A disinterment permit shall not be required to remove cremains. (f) Cremation is considered to be a final disposition of remains. (g) A disinterred body must be transported in a container which insures against the seepage of fluid or the escape of offensive odors. When shipped by common carrier, a disinterred body must be enclosed in an airtight metal casket encased in a strong outside shipping case, or in a sound casket encased in an airtight metal or metal-lined shipping case. This requirement shall not apply if the disinterred remains involve no soft parts. (h) The disinterment permit issued by the state registrar shall serve as the authority to disinter, transport by means other than a common carrier, and re-inter a body within this state. (See ยง181.2 of this title (relating to Assuming Custody of Body). (i) A body kept in a receiving vault shall not be regarded as a disinterred body until after the expiration of 30 days. (j) All disinterred remains kept in receiving vaults shall be thoroughly embalmed in a manner approved by the Texas Funeral Service Commission and shall be enclosed in a permanently sealed casket. (k) The licensed funeral director or embalmer requesting a disinterment permit shall be responsible for obtaining a written consent of the cemetery, the owner of the plot, and the decedent's next-ofkin. (l) The licensed funeral director or embalmer requesting a disinterment permit shall be responsible for obtaining a written consent order from the county judge to disinter a body from a grave when the cemetery, plot owner, and the decedent's next-of-kin are unknown.


RULE ยง181.7

Fetal Death (Stillbirth)

(a) A certificate of fetal death shall be filed for any fetus weighing 350 grams or more, or if the weight is unknown, a fetus aged 20 weeks or more as calculated from the start date of the last normal menstrual period to the date of delivery. (b) A certificate of fetal death shall be considered properly filed: (1) when all of the items thereon have been satisfactorily and definitely answered; and (2) when the certificate has been presented for filing to the local registrar of the registration district in which the fetal death (stillbirth) occurred or the fetus was found. A certificate of fetal death (stillbirth) shall be filed with the local registrar within five days after the date of fetal death (stillbirth). RULE ยง181.8

Supplemental Birth Certificates

(a) When a supplemental certificate of birth is prepared and filed based on adoption or paternity determination, a copy of the supplemental birth certificate shall be forwarded to each local registration official in whose office is recorded the original birth record of such child. (b) Wherever possible, the local registration official shall remove from his or her files the original birth record and forward it to the bureau. Where it is not possible to remove the original birth record, the local registration official shall cancel such record in such manner as to preclude the disclosure of any information contained therein. In its place he or she shall substitute the supplemental certificate of birth. (c) A certificate of adoption for a child born outside the State of Texas shall, when received by the bureau be forwarded to the proper registration official of the state or territory in which such birth occurred. (For foreign adoptions, see ยง181.29 of this title (relating to Foreign Adoptions)). (d) Where application is made for the filing of a supplemental certificate based on paternity, the applicant shall submit to the bureau an Application for New Birth Certificate Based on Parentage (VS-166) signed by both parents in the presence of a Notary Public, and: (1) a certified copy of the certificate of marriage indicating the subsequent marriage of the parents; or (2) an Acknowledgment of Paternity (VS-159.1) if an Acknowledgment of Paternity is not already in the bureau files; or (3) a certified copy of the court decree establishing paternity if the information concerning the court decree is not already in the bureau files. If a court decree is in the bureau files, the Application for New Birth Certificate Based on Parentage only has to be signed by one of the parents in the presence of a Notary Public. (4) a certified copy of the court decree establishing a gestational agreement. The Application for New Birth Certificate Based on Parentage must be signed by at least one parent in the presence of a Notary Public. (e) Voluntary Paternity must have a written consent of both parents. RULE ยง181.9

Access to Paternity Files


(a) After the supplemental certificate of birth based on paternity is filed, any information disclosed from the record shall be made from the supplemental certificate, and access to the original certificate of birth and related documents shall not be authorized except upon order of a court of competent jurisdiction. (b) The bureau shall notify the Office of the Attorney General, the Title IV-D agency for the State of Texas, in a manner agreed by both agencies of any supplemental birth records based upon acknowledgement of paternity. RULE ยง181.10

Availability of Birth Records to Ensure Confidentiality of Adoption Placement

(a) This section establishes requirements governing the control of public accessibility to birth records and in order to ensure the confidentiality of adoption placements. (b) Availability of birth records generally. (1) Copies of birth records are available to the public for searching or inspection on or after the 75th anniversary of the date of birth as shown on the record filed with the bureau or the local registration official. Original birth records shall not be made available to the public in the interest of preservation of the records. (2) The local registration official, upon receipt of a record of birth based on adoption or paternity must delete or expunge the birth record filed at the time of the event. RULE ยง181.11

Requests for Personal Data

(a) The purpose of this section is to describe the criteria that the Committee on Requests for Personal Data will use in reviewing and recommending disposition when an application for personal data is received. (b) The Commissioner and/or his designee shall appoint a Committee on Requests for Personal Data (Committee) that serves in an advisory capacity. The committee reviews and makes recommendations regarding requests for personal data to be used for research purposes or for the official use of governmental agencies. (c) Procedures. (1) If the department receives a request for personal data, the release of which has been determined to be legally discretionary, and there is a question as to whether the data should be released, the request shall be referred to the committee for its review and recommendation. The committee will review the request and make a recommendation regarding release to the commissioner or his designee. (2) The committee will require each applicant for personal data to complete the application form as prescribed by the committee. (3) If the personal data is released, a copy of the final project report, any publication, or presentation must be furnished to the committee. The department will be given credit as the source of the data. (4) It is department policy to disapprove applications involving contact with any person, institution, or agency identified on the record unless the committee determines that there are substantial overriding reasons for the contact.


(5) It is department policy to disapprove applications involving research that does not serve a valid scientific or public health purpose. (6) The Bureau shall charge the statutory fee for each vital record research copy as provided in the Health and Safety Code, §§191.005 and 192.006. (7) Personal data application requests need to be submitted to the department's Institutional Review Committee if any of the following apply to the requested research: (A) sponsored by the department; (B) conducted by or under the direction of department employees or agents; (C) conducted by or under the direction of department employees or agents using department property of facilities, or; (D) involves the use of department nonpublic information to identify or contact human research subjects or prospective subjects. RULE §181.13

Birth Certificate Form and Content

(a) The State Registrar shall determine the items of information to be contained on certificates of birth. The format of the items will be designated on department forms. (b) The State Registrar shall prescribe a User Agreement for the orderly implementation of electronic birth registration. (c) Hospitals, licensed birthing centers, midwives, and local registration officials must comply with the User Agreement in order to participate in electronic birth registration. (d) The bureau may discontinue any institution or individual's participation in electronic birth registration for failure to comply with the User Agreement. RULE §181.14

Death and Fetal Death Certificate Form and Content

(a) The State Registrar shall determine the items of information to be contained on certificates of death and fetal death. The format of the items will be designated in forms entitled "Certificate of Death" and "Certificate of Fetal Death". (b) Funeral directors or other persons in charge of disposition or in charge of removal of a body from a registration district for disposition may prepare and file the Certificate of Death and the Certificate of Fetal Death.


HEALTH AND SAFETY CODE TITLE 3. VITAL STATISTICS CHAPTER 193. DEATH RECORDS Sec. 193.001. FORM OF CERTIFICATE. (a) The department shall prescribe the form and contents of death certificates and fetal death certificates. (b) The social security number shall be recorded on the death certificate and on any other records related to the death. (c) The department shall require death certificates and fetal death certificates to include the name of the place and the specific number of the plot, crypt, lawn crypt, or niche in which a decedent's remains will be interred or, if the remains will not be interred, the place and manner of other disposition. (d) The bureau of vital statistics and each local registrar shall make the information provided under Subsection (c) available to the public and may charge a fee in an amount prescribed under Section 191.0045 for providing that service. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 502, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 556, Sec. 73, eff. Sept. 1, 1999.

Sec. 193.002. PERSON REQUIRED TO FILE. The person in charge of interment or in charge of removal of a body from a registration district for disposition shall: (1) obtain and file the death certificate or fetal death certificate; (2) enter on the certificate the information relating to disposition of the body; (3) sign the certificate; and (4) file the certificate electronically as specified by the state registrar.


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by: Acts 2007, 80th Leg., R.S., Ch. 302, Sec. 1, eff. September 1, 2007.

Sec. 193.003. TIME AND PLACE FOR FILING DEATH CERTIFICATE. (a) Not later than the 10th day after the date of a death that occurs in this state, a death certificate shall be filed with the local registrar of the registration district in which: (1) the death occurs; or (2) the body is found, if the place of death is not known. (b) Subject to board rules, a certificate of a fetal death that occurs in this state shall be filed with the local registrar of the registration district in which: (1) the fetal death occurs; or (2) the body is found, if the place of fetal death is not known. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 193.004. PERSONAL AND MEDICAL INFORMATION. (a) The person required to file a death certificate shall obtain the required personal information from a competent person with knowledge of the facts. (b) The person required to file a fetal death certificate shall obtain the required personal information from the person best qualified to furnish the information. (c) A person required to obtain information under this section shall obtain the information over the signature of the person who furnishes the information. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1425, Sec. 1, eff. Sept. 1, 1997.


Sec. 193.0041. DISCIPLINARY ACTION PROHIBITED. A state agency that licenses a person required to file a death certificate under this chapter may not take disciplinary action against the person for failure to timely file the certificate if the person supplies written documentation that the person has made a good faith effort to file the certificate within the time required by Section 193.003(a) and the failure to timely file the certificate results from circumstances beyond the person's control. Added by Acts 2007, 80th Leg., R.S., Ch. 636, Sec. 1, eff. September 1, 2007.

Sec. 193.005. PERSONAL INFORMATION. (a) A person required to file a death certificate or fetal death certificate shall obtain the required medical certification from an attending physician if the death occurred under medical attendance for the care and treatment of the condition or disease process that contributed to the death. (b) The attending physician shall complete the medical certification not later than five days after receiving the death certificate. (c) An associate physician, the chief medical officer of the institution where the death occurred, or the physician who performed an autopsy on the decedent may complete the medical certification if: (1) the attending physician is unavailable; (2) the attending physician approves; and (3) the person completing the medical certification has access to the medical history of the case and the death is due to natural causes. (d) If a death or fetal death occurs without medical attendance or is otherwise subject to Chapter 49, Code of Criminal Procedure, the person required to file the death or fetal death certificate shall notify the appropriate authority of the death.


(e) A person conducting an inquest required by Chapter 49, Code of Criminal Procedure, shall: (1) complete the medical certification not later than five days after receiving the death or fetal death certificate; and (2) state on the medical certification the disease that caused the death or, if the death was from external causes, the means of death and whether the death was probably accidental, suicidal, or homicidal, and any other information required by the state registrar to properly classify the death. (f) If the identity of the decedent is unknown, the person conducting the inquest shall obtain and forward to the Department of Public Safety: (1) the decedent's fingerprints; (2) information concerning the decedent's hair color, eye color, height, weight, deformities, and tattoo marks; and (3) other facts required for assistance in identifying the decedent. (g) If the medical certification cannot be completed in a timely manner, the person required to complete the medical certification shall give the funeral director or the person acting as funeral director notice of the reason for the delay. Final disposition of the body may not be made unless specifically authorized by the person responsible for completing the medical certification. (h) The person completing the medical certification shall submit the information and attest to its validity using an electronic process approved by the state registrar. (i) On receipt of autopsy results or other information that would change the information in the medical certification on the death certificate, the appropriate certifier shall immediately report the change in a manner prescribed by the department to amend the death certificate. (j) The death certificate of a decedent who was an inmate of the Texas Department of Criminal Justice at the time of death


and who was lawfully executed shall classify the manner of death as death caused by judicially ordered execution. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1425, Sec. 2, eff. Sept. 1, 1997. Amended by: Acts 2005, 79th Leg., Ch. 285, Sec. 1, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 302, Sec. 2, eff. September 1, 2007.

Sec. 193.006. INFORMATION RELATING TO VETERANS. (a) This section applies to the death certificate of a person who: (1) served in a war, campaign, or expedition of the United States, the Confederate States of America, or the Republic of Texas; (2) was the wife or widow of a person who served in a war, campaign, or expedition of the United States, the Confederate States of America, or the Republic of Texas; or (3) at the time of death was in the service of the United States. (b) The funeral director or the person in charge of the disposition of the body shall supply on the reverse side of the death certificate: (1) the organization in which service was rendered; (2) the serial number on the discharge papers or the adjusted service certificate; and (3) the name and mailing address of the decedent's next of kin or next friend. (c) When the death certificate is filed locally, the local registrar shall immediately notify the nearest congressionally chartered veteran organizations. (d) When the death certificate is filed with the bureau of vital statistics, the state registrar shall notify the Texas Veterans Commission.


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 260, Sec. 3, eff. Sept. 1, 1991.

Sec. 193.007. DELAYED REGISTRATION OF DEATH. (a) A death that occurred more than 10 days but less than one year before the date of an application for registration of death may be recorded on a death certificate and submitted for filing with the local registrar of the registration district in which the death occurred. (b) To file a record of a death that occurred in this state but was not registered within one year of the date of death, a person shall submit a record of the death to the county probate court in the county in which the death occurred. (c) The bureau of vital statistics shall furnish a form for filing records under this section. Records submitted under this section must be on the form furnished by the bureau. The state registrar may accept a certificate that is verified as provided by this section. (d) The certificate must be supported by the affidavit of: (1) the physician last in attendance on the decedent or the funeral director who buried the body; or (2) if the affidavit of the physician or funeral director cannot be obtained: (A) any person who was acquainted with the facts surrounding the death when the death occurred; and (B) another person who was acquainted with the facts surrounding the death but who is not related to the decedent by consanguinity or affinity, as determined under Chapter 573, Government Code. (e) For each application under this section, the court shall collect a $1 fee. The court retains 50 cents of the fee and the remaining 50 cents is allocated to the clerk of the court for recording the certificate.


(f) Not later than the seventh day after the date on which a certificate is accepted and ordered filed by a court under this section, the clerk of the court shall forward to the bureau of vital statistics: (1) the certificate; and (2) an order from the court that the state registrar accept the certificate. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 29, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(27), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1425, Sec. 3, eff. Sept. 1, 1997.

Sec. 193.008. BURIAL-TRANSIT PERMIT. (a) A burial-transit permit issued under the law and rules of a place outside of this state in which a death or fetal death occurred authorizes the transportation of the body in this state. A cemetery or crematory shall accept the permit as authorization for burial, cremation, or other disposal of the body in this state. (b) The department shall prescribe the form and contents of the burial-transit permit. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 193.009. BURIAL RECORDS. (a) The person in charge of premises on which interments are made shall keep a record of the bodies interred or otherwise disposed of on the premises. (b) The records must include for each decedent: (1) the decedent's name; (2) the place of death; (3) the date of interment or disposal; (4) the name and address of the funeral director; and (5) any other information required by the state registrar. (c) The records are open to official inspection at all times.


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 193.010. CERTIFICATE OF DEATH BY CATASTROPHE. (a) In this section, "catastrophe" means the occurrence of a substantial force that causes widespread or severe damage, injury, or loss of life or property and from which it is not reasonable to assume that a person could survive, including: (1) flood, earthquake, tornado, or other natural disaster; (2) explosion, fire, or destruction of a building; (3) the crash of a motor vehicle, train, or airplane involving more than one person; or (4) the overtaking of more than one person by fire, water, earth, or other substance. (b) A local registrar shall issue and file a certificate of death by catastrophe for a person if: (1) an affidavit is submitted to the registrar stating that: (A) the person was last reasonably believed to be at the scene of a catastrophe; (B) at least 10 days have passed since the day of the catastrophe; (C) a diligent search has been made by a governmental authority and the authority has concluded the search for the person; (D) the catastrophe was not intentionally caused by the person; and (E) the affiant: (i) does not know whether the person is alive or dead; (ii) has not received any information about the person's status since the catastrophe and, barring the person's death, would have received information about the person's status;


(iii) is not aware of any custody or guardianship issues involving the person, if the person is a minor or a person for whom a guardian has been appointed; and (iv) is not aware of any reasonable motive for the person to disappear or for another person to abduct the person; and (2) a written statement signed by an agent of the governmental authority that conducts a search under Subdivision (1)(C) is submitted to the registrar stating that the governmental authority conducted and concluded a search for the person. (c) The department may issue a certificate of death by catastrophe for a minor or a person for whom a guardian has been appointed who is the subject of a custody or guardianship dispute only if all parties to the dispute submit an affidavit under Subsection (b). (d) An insurer shall accept as proof of death of an insured a certificate of death by catastrophe issued under this section. Added by Acts 2003, 78th Leg., ch. 1098, Sec. 1, eff. Sept. 1, 2003.

Sec. 193.011. MEMORANDUM OF UNDERSTANDING ON SUICIDE DATA. (a) In this section, "authorized entity" means a medical examiner, a local registrar, a local health authority, a local mental health authority, a community mental health center, a mental health center that acts as a collection agent for the suicide data reported by community mental health centers, or any other political subdivision of this state. (b) An authorized entity may enter into a memorandum of understanding with another authorized entity to share suicide data that does not name a deceased individual. The shared data may include: (1) the deceased individual's date of birth, race or national origin, gender, and zip code of residence; (2) any school or college the deceased individual was attending at the time of death;


(3) the suicide method used by the deceased individual; (4) the deceased individual's status as a veteran or member of the armed services; and (5) the date of the deceased individual's death. (c) The suicide data an authorized entity receives or provides under Subsection (b) is not confidential. (d) An authorized entity that receives suicide data under a memorandum of understanding authorized by this section may periodically release suicide data that does not name a deceased individual to an agency or organization with recognized expertise in suicide prevention. The agency or organization may use suicide data received by the agency or organization under this subsection only for suicide prevention purposes. (e) An authorized entity or an employee or agent of an authorized entity is not civilly or criminally liable for receiving or providing suicide data that does not name a deceased individual and that may be shared under a memorandum of understanding authorized by this section. (f) This section does not prohibit the sharing of data as authorized by other law. Added by Acts 2009, 81st Leg., R.S., Ch. 100, Sec. 2, eff. May 23, 2009.


OCCUPATIONS CODE TITLE 3. HEALTH PROFESSIONS SUBTITLE L. CEMETERY AND CREMATORY SERVICES, FUNERAL DIRECTING, AND EMBALMING CHAPTER 651. CEMETERY AND CREMATORY SERVICES, FUNERAL DIRECTING, AND EMBALMING

SUBCHAPTER A. GENERAL PROVISIONS

Sec.A651.001.AADEFINITIONS.

In this chapter:

(1)AA"Cemetery" means a place that is used or intended to be used for interment, and includes a graveyard, burial park, or mausoleum. (2)AA"Commission"

means

the

Texas

Funeral

Service

Commission. (3)AA"Crematory" means a structure containing a furnace used or intended to be used for the cremation of human remains. (4)AA"Embalmer" chapter

who

for

means

compensation,

a

person

wholly

or

licensed

partly,

under

this

disinfects

or

preserves a dead human body by: (A)AAusing chemical substances, fluids, or gases, including by introducing those substances, fluids, or gases into the body by: (i)AAvascular or hypodermic injection;

or

(ii)AAdirect application into the organs or cavities;

or (B)AAanother

preserve

a

dead

human

body

method or

to

intended

to

disinfect

restore

body

tissues

or and

structures. (5)AA"First

call"

means

the

beginning

of

the

relationship and duty of a funeral director to take charge of a dead human body and have the body prepared for burial or disposition by embalming, cremation, or another method.

The term does not include

an ambulance call if the person dispatching the ambulance does not know whether a dead human body is to be picked up. (6)AA"Funeral director" means a person licensed under this chapter who engages in for compensation, or represents to the

1


public as being engaged in for compensation, the preparation, other than

by

embalming,

of

a

dead

human

body

for

burial

or

other

disposition. (7)AA"Funeral directing" means acts associated with or arranging for the disposition of a dead human body, performed by a person for compensation, from the time of first call until: (A)AAinurnment, interment, or entombment services are complete;

or (B)AAthe body is permanently transported out of

this state. (8)AA"Funeral establishment" means: (A)AAa

place

of

business

used

in

the

care

and

preparation for burial or transportation of a dead human body; or (B)AAany other place in which a person engages in, or represents the person to be engaged in, the business of embalming or funeral directing. (9)AA"Funeral

merchandise"

means

merchandise

sold

primarily for use in: (A)AAa funeral ceremony; (B)AAembalming;

or

(C)AAthe care and preparation of a dead human body for burial, cremation, or other disposition. (10)AA"Funeral

service"

means

a

service

performed

incident to a funeral ceremony or for the care and preparation of a dead human body for burial, cremation, or other disposition.

The

term includes embalming. (11)AA"Mortuary

science"

means

the

scientific,

professional, and practical aspects, with consideration given to accepted

practices,

transportation

of

a

of

the

dead

care,

human

preparation

body.

The

for

term

burial,

includes

or the

preservation and sanitation of a dead human body and restorative art. (12)AA"Outer enclosure" means an enclosure or container placed in a grave above or around the casket.

The term includes a

burial vault, grave box, or grave liner. (12-a)AA"Perpetual

care

cemetery"

means

regulated under Chapter 712, Health and Safety Code.

2

a

cemetery


(13)AA"Prospective enters

a

funeral

customer"

establishment

and

means

inquires

a

consumer

about

a

who

funeral

service, cremation, or merchandise. (14)AA"Provisional license holder" means a person who: (A)AAis

engaged

in

learning

the

practice

of

funeral directing or embalming under the instruction, direction, and personal supervision of a funeral director or embalmer; (B)AAholds a

provisional

license

and

issued by

the

commission under this chapter. (15)AA"Purchase agreement" means a written statement that itemizes the cost of funeral services or merchandise selected by a customer from the retail price list. (16)AA"Solicitation" means a direct or indirect contact by

a

funeral

director,

embalmer,

or

employee,

agent,

or

representative of a licensed funeral establishment or any other entity with a person near death or the family of, next of kin of, or person responsible for making funeral arrangements for a person who is deceased or near death, if the contact is not initiated by the person near death or the family, next of kin, or person responsible for making funeral arrangements and the contact is to secure the right to provide funeral services or merchandise or occurs in a situation that might influence the contacted person to choose a particular funeral establishment. The term does not include: (A)AAexcept in the case of contact with a person near

death

or

the

person

responsible

for

making

funeral

arrangements for a person near death, an attempt to secure funeral business under a permit issued under Chapter 154, Finance Code; or (B)AAany method of advertising by publication or broadcasting. (17)AA"Unit pricing" means a method of pricing that offers a discount to a purchaser who buys various funeral services and merchandise as a package. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.03, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 1, eff. Sept. 1, 2003.

Sec.A651.002.AAAPPLICATION OF SUNSET ACT.

3

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, 2015. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.04, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 2, eff. Sept. 1, 2003.

Sec.A651.003.AACONSTRUCTION

WITH

OTHER

LAW.

(a)

This

chapter does not affect the authority of the Texas Department of Banking

to

enforce

Chapter

154,

Finance

Code,

or

to

regulate

perpetual care cemeteries. (b)AAThe

authority

of

the

commission

under

Chapter

154,

Finance Code, is limited to: (1)AAimposing an administrative penalty; (2)AAissuing a reprimand; (3)AAsuspending,

or

revoking,

or

probating

a

license

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

issued by the commission.

by Acts 2003, 78th Leg., ch. 562, Sec. 3, eff. Sept. 1, 2003.

Sec.A651.004.AAREGULATION SERVICES.

(a)

The

OF

commission

CEMETERY

shall

AND

regulate

CREMATORY

cemetery

and

crematory services as provided by this chapter and Chapter 716, Health and Safety Code. (b)AAThe 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. Added by Acts 2003, 78th Leg., ch. 562, Sec. 4, eff. Sept. 1, 2003.

SUBCHAPTER B. TEXAS FUNERAL SERVICE COMMISSION

Sec.A651.051.AACOMMISSION

MEMBERSHIP.

(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)AAtwo members who are licensed as both an embalmer

4


and

a

funeral

director

for

at

least

the

five

years

preceding

appointment to the commission; (2)AAone member who is a registered cemetery owner or operator;

and (3)AAfour members who represent the public and who: (A)AAare not regulated under this chapter; (B)AAhave

consistently

shown

an

and

interest

in

supporting consumer protection. (b)AAAppointments to the commission shall be made without regard

to

the

race,

color,

disability,

sex,

religion,

age,

or

national origin of the appointee. (c)AAEach member of the commission must be a United States citizen. (d)AABefore commissioner

shall

entering take

and

on

the

duties

subscribe

prescribed for other state officials.

to

of

the

office, oath

of

each office

The oath shall be filed in

the office of the secretary of state after having been administered under proper authority. (e)AAEach

person

appointed

to

the

commission

shall

be

furnished with a certificate of appointment by the governor that evidences that the person took the official oath of office. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.05, eff. Sept. 1, 2001.

Sec.A651.0511.AATRAINING.

(a)

A person who is appointed to

and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section. (b)AAThe

training

program

must

provide

the

person

with

information regarding: (1)AAthis chapter; (2)AAthe programs operated by the commission; (3)AAthe role and functions of the commission; (4)AAthe rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority; (5)AAthe current budget for the commission;

5


(6)AAthe results of the most recent formal audit of the commission; (7)AAthe requirements of: (A)AAthe

open

(B)AAthe

public

(C)AAthe

administrative

meetings

law,

Chapter

551,

Government Code; information

law,

Chapter

552,

Government Code; procedure

law,

Chapter

2001, Government Code; and (D)AAother

laws

relating

to

public

officials,

including conflict-of-interest laws; and (8)AAany

applicable

ethics

policies

adopted

by

the

commission or the Texas Ethics Commission. (c)AAA person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.06, eff. Sept. 1, 2001.

Sec.A651.052.AAELIGIBILITY OF PUBLIC MEMBERS.

(a)

A person

may not be a public member of the commission if the person or the person ’s spouse: (1)AAis

registered,

certified,

or

licensed

by

a

regulatory agency in the funeral service industry; (2)AAis employed by or participates in the management of

a

business

entity

or

other

organization

regulated

by

or

receiving money from the commission; (3)AAowns than

a

10

percent

or

controls,

interest

in

directly a

or

business

indirectly, entity

or

more other

organization regulated by or receiving money from the commission; or (4)AAuses or receives a substantial amount of tangible goods,

services,

compensation

or

or

money

reimbursement

from

the

commission,

authorized

membership, attendance, or expenses.

6

by

law

for

other

than

commission


(b)AAA public member of the commission may not, except as a consumer: (1)AAhave establishment;

a

financial

interest

in

a

funeral

or

(2)AAbe related to a person within the second degree by affinity or third degree by consanguinity, as determined under Subchapter B, Chapter 573, Government Code, who has a financial interest in a funeral establishment. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.07, eff. Sept. 1, 2001.

Sec.A651.053.AAMEMBERSHIP AND EMPLOYEE RESTRICTIONS.

(a)

In this section, "Texas trade association" means a cooperative and voluntarily

joined

association

of

business

or

professional

competitors in this state designed to assist its members and its industry

or

profession

in

dealing

with

mutual

business

or

professional problems and in promoting their common interest. (b)AAA person may not be a member of the commission and may not be a commission employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for

purposes

of

establishing

an

exemption

to

the

overtime

provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if: (1)AAthe

person

is

an

officer,

employee,

or

paid

consultant of a Texas trade association in the funeral service industry;

or (2)AAthe person ’s spouse is an officer, manager, or paid

consultant of a Texas trade association in the funeral service industry. (c)AAA person may not be a member of the commission or act as the general counsel if the person is required to register as a lobbyist

under

Chapter

305,

Government

Code,

because

of

the

person ’s activities for compensation on behalf of a profession related to the operation of the commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.08, eff. Sept. 1, 2001.

7


Sec.A651.054.AATERMS; commission

serve

VACANCY.

staggered

six-year

(a)

terms,

Members with

the

of

the

terms

of

one-third of the members expiring in each odd-numbered year.

A

member may not be appointed for more than one full term, except that a member appointed to fill an unexpired term with less than three years remaining in the unexpired term may be reappointed to the commission for one full term. (b)AAThe governor shall appoint a person to fill a vacancy on the commission to serve for the remainder of the unexpired term. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.374(a), eff. Sept. 1, 2001.

Sec.A651.055.AAGROUNDS FOR REMOVAL.

(a)

The governor shall

remove from the commission a commissioner whose license to practice funeral directing or embalming has been revoked or suspended. (b)AAThe governor may remove a commissioner for neglect of duty, incompetence, or fraudulent or dishonest conduct. (c)AAIt is a ground for removal from the commission that a member: (1)AAdoes qualifications

not

have

required

by

at

the

time

Sections

of

appointment

651.051(a)

and

(c)

the and

651.052(a); (2)AAdoes not maintain during service on the commission the qualifications required by Sections 651.051(a) and (c) and 651.052(a); (3)AAviolates

a

prohibition

established

by

Sections

651.053(a)-(e) or 651.506(h); (4)AAcannot because of illness or disability discharge the member ’s duties for a substantial part of the term for which the member is appointed; (5)AAis

or 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. (d)AAThe

validity

of

an

action

of

the

commission

is

not

affected by the fact that it is taken when a ground for removal of a

8


commission member exists. (e)AAIf the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the commission of the ground.

The presiding

officer shall then notify the governor that a potential ground for removal exists. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

shall

Sec.A651.056.AAREIMBURSEMENT;

PER DIEM.

be

travel

reimbursed

for

necessary

(a)

A commissioner

expenses

incurred

in

performing the business of the commission. (b)AAIn addition to reimbursement under Subsection (a), a commissioner shall receive a per diem allowance for each day spent by the commissioner on business of the commission not to exceed 60 days in any calendar year. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.057.AAOFFICERS. one

member

commission

of to

designating

the

commission

serve

presiding

in

(a) as

that

The governor shall designate

the

presiding

capacity

officers,

the

for

officer

three

governor

of

years.

shall

the In

alternate

between public and nonpublic members. (b)AAAfter

30

days ’

written

notice

is

given

to

the

commissioners, the commission shall elect from its public members an assistant presiding officer. The assistant presiding officer serves in that capacity for one year. (c)AAThe presiding officer shall preside at all meetings of the commission, unless otherwise ordered, and shall exercise all duties

and

officer.

performances

incident

to

the

office

of

presiding

In the absence of the presiding officer, the assistant

presiding officer shall preside. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.375(a), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 5, eff. Sept. 1, 2003.

Sec.A651.058.AAOFFICE LOCATION. are located in Austin, Texas.

9

The commission ’s offices


Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.059.AAMEETINGS; meet

in

regular

session

in

NOTICE.

Austin

at

(a) least

The commission shall once

each

calendar

quarter to transact business. (b)AAThe commission may hold a special meeting or hearing on the call of the presiding officer, assistant presiding officer, or three members. The person calling the special meeting or hearing shall determine the time and place of the meeting or hearing. (c)AANotice of the time, place, and purpose of a regular meeting of the commission must be filed with the Texas Register at least seven days before the date of the meeting.

All meetings,

including meetings of the committees of the members, are open and public. (d)AAThe commission ’s duties under Chapter 551, Government Code, include the requirement under Sections 551.021 and 551.022 of that code to prepare and maintain the minutes of each open meeting. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.376(a), eff. Sept. 1, 2001.

Sec.A651.060.AALEGAL general

shall

designate

at

REPRESENTATION. least

one

(a)

employee

of

The

attorney

the

attorney

general ’s office to advise the commission and to represent the commission in legal proceedings. (b)AAThe commission may not employ legal counsel except as provided by Section 402.0212, Government Code. Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.377(a), eff. Sept. 1, 2001.

SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL

Sec.A651.101.AAEXECUTIVE

DIRECTOR;

BOND.

(a)

The

commission shall employ and supervise an executive director to manage the administrative affairs of the commission under this chapter. of

the

The commission shall determine the terms and conditions executive

director ’s

employment

10

and

set

the

executive


director ’s salary at an amount not to exceed the maximum salary for the position as set in the General Appropriations Act.

In the

absence of an executive director, the commission may appoint an acting executive director. (b)AARepealed by Acts 2003, 78th Leg., ch. 285, Sec. 31(38). (c)AAThe commission may delegate the commissioners ’ duties to the executive director. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.377(b), eff. Sept. 1, 2001;

Acts 2003, 78th Leg., ch. 285, Sec. 31(38), eff. Sept. 1,

2003.

Sec.A651.102.AAPERSONNEL.

The

commission

may

employ

inspectors and clerical and technical assistants as the commission determines

to

be

necessary

to

administer

this

chapter.

The

commission shall determine the terms and expenses of its employees. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.377(c), eff. Sept. 1, 2001.

Sec.A651.103.AAINVESTIGATORS. one

or

more

persons

to

investigate

The commission shall employ complaints

received

by

the

commission, including consumer interest complaints. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.378(a), eff. Sept. 1, 2001.

Sec.A651.104.AADIVISION OF RESPONSIBILITIES.

The commission

shall develop and implement policies that clearly separate the policy-making

responsibilities

of

the

commission

and

the

management responsibilities of the executive director and staff of the commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.09, eff. Sept. 1, 2001.

Sec.A651.105.AAQUALIFICATIONS INFORMATION.

The

commission

shall

11

AND

STANDARDS

provide

to

its

OF

CONDUCT

members

and


employees, as often as necessary, information regarding their: (1)AAqualifications for office or employment under this chapter;

and (2)AAresponsibilities under applicable laws relating

to the standards of conduct for state officers or employees. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.106.AACAREER EVALUATIONS.

(a)

The

LADDER

executive

PROGRAM; director

or

PERFORMANCE the

executive

director ’s designee shall develop an intra-agency career ladder program.

The program must require intra-agency posting of all

nonentry-level positions concurrently with any public posting. (b)AAThe

executive

director

or

the

executive

director ’s

designee shall develop a system of annual performance evaluations. All merit pay for commission employees must be based on the system established under this subsection. (c)AAThe programs required under Subsections (a) and (b) must cover an annual period, be updated at least annually, and be filed with the governor. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.379(a), eff. Sept. 1, 2001.

Sec.A651.107.AAEQUAL EMPLOYMENT OPPORTUNITY POLICY; (a) shall

REPORT.

The executive director or the executive director ’s designee prepare

and

maintain

a

written

policy

statement

that

implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. (b)AAThe policy statement must include: (1)AApersonnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the commission to avoid the unlawful employment practices described by Chapter 21, Labor Code; and (2)AAan analysis of the extent to which the composition of the commission ’s personnel is in accordance with federal and

12


state

law

and

a

description

of

reasonable

methods

to

achieve

compliance with federal and state law. (c)AAThe policy statement must: (1)AAbe updated at least annually; (2)AAbe

reviewed

by

the

state

Commission

on

Human

Rights for compliance with Subsection (b)(1); and (3)AAbe filed with the governor ’s office. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.10, eff. Sept. 1, 2001.

SUBCHAPTER D. COMMISSION POWERS AND DUTIES

Sec.A651.151.AAGENERAL

POWERS

AND

DUTIES.

(a)

The

commission shall establish proficiency, professionalism, ethics, and qualification standards for individuals issued a license under this chapter. (b)AAThe funeral

commission

director ’s

shall

license,

examine

embalmer ’s

each

applicant

license,

or

for

a

provisional

license and shall issue the appropriate license to a person who meets the licensing requirements. (c)AAThe commission may appoint a committee from its members to consider and make a recommendation on a matter referred to the committee by the commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 6, eff. Sept. 1, 2003.

Sec.A651.152.AARULES; shall

adopt

rules,

PROCEDURES;

establish

FORMS.

procedures,

and

The commission prescribe

forms

necessary to administer and enforce this chapter and Chapters 714 and 715, Health and Safety Code. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 7, eff. Sept. 1, 2003.

Sec.A651.1525.AAEARLY PARTICIPATION IN RULEMAKING PROCESS; GUIDELINES.

(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.

13

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. (b)AAThe commission shall develop guidelines to implement this section.

The guidelines must establish a method to determine

who will be most affected by a proposed rule. Added by Acts 2003, 78th Leg., ch. 562, Sec. 8, eff. Sept. 1, 2003.

Sec.A651.153.AARULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING.

(a)

The

commission

may

not

adopt

rules

restricting

advertising or competitive bidding by a person regulated by the commission

except

to

prohibit

false,

misleading,

or

deceptive

practices by the person. (b)AAThe commission may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the commission a rule that: (1)AArestricts the use of any medium for advertising; (2)AArestricts the person ’s personal appearance or use of the person ’s voice in an advertisement; (3)AArelates

to

the

size

or

duration

of

an

advertisement by the person; or (4)AArestricts the person ’s advertisement under a trade name. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.154.AAFEES.

(a)

The

commission

shall

set

the

following fees in amounts reasonable and necessary to administer this chapter: (1)AAthe funeral director ’s and embalmer ’s application fee, license fee, duplicate license fee, and reciprocal license fee; and (2)AAthe cemetery, crematory, or funeral establishment license fee, renewal fee, and late renewal penalty. (b)AAThe commission shall set the provisional license fee, examination fee, renewal fee, and late renewal penalty in amounts reasonable

and

necessary

to

administer

program.

14

the

provisional

license


(c)AAThe commission may not charge a fee to a perpetual care cemetery, including a fee for issuing or renewing a license issued under this chapter. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 9, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 19, eff. September 1, 2009.

Sec.A651.155.AAFEE EXEMPTION FOR MILITARY SERVICE.

(a)

On

presentation to the commission of evidence as prescribed by the commission, a license holder or provisional license holder actively engaged in the military service of the United States is exempt from the

payment

of

license

fees

for

the

duration

of

the

holder ’s

military service or from the amount of fees and for the time the commission considers advisable. (b)AAThe commission may not consider the period of military service in determining whether a funeral director ’s license or embalmer ’s license is revoked, suspended, or lapsed. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.156.AASUBPOENA.

(a)

The commission may issue a

subpoena or subpoena duces tecum. (b)AAThe subpoena or subpoena duces tecum must be served by personal service or certified mail, return receipt requested. (c)AAThe commission by rule shall establish standards that enable the executive director to issue subpoenas and subpoenas duces tecum in connection with a complaint under investigation by the commission. (d)AAA subpoena or subpoena duces tecum issued under this section is not effective unless it is issued in compliance with: (1)AAstate and federal law; and (2)AAcommission rules adopted under Subsection (c). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.380(a), eff. Sept. 1, 2001. Amended by:

15


Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 20, eff. September 1, 2009.

Sec.A651.157.AAINSPECTION OF CEMETERY, CREMATORY, OR FUNERAL ESTABLISHMENT.

(a)

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)AAIf 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. (c)AAA report of each inspection made under this section shall be filed with the commission. (d)AAThe commission by rule shall establish: (1)AAprocedures

for

the

inspection

of

a

cemetery,

crematory, or funeral establishment required by this section; and (2)AAcriteria,

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. (e)AAA

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)AAan agent of the commission; (2)AAan authorized agent of the state; or (3)AAan authorized agent of the county or municipality in which the premises is located. (f)AABefore

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

16


from the inspection reports in determining whether a penalty should be imposed against an establishment. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.11, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 10, eff. Sept. 1, 2003.

Sec.A651.1571.AAINSPECTION

REQUIREMENTS

FOR

CEMETERIES;

EXCEPTION FOR PERPETUAL CARE CEMETERIES.

section

Section

and

651.157

do

not

apply

to

CERTAIN (a)

This

perpetual

care

cemeteries. (b)AAExcept as provided by Section 651.157(b): (1)AAa cemetery may not be inspected unless: (A)AAan

interment

has

occurred in

within the two years preceding the inspection;

the

cemetery

or

(B)AAthe commission has received a complaint about the cemetery;

and

(2)AAthe commission shall give lower priority to an inspection of a cemetery than to an inspection of a crematory or funeral establishment. Added by Acts 2003, 78th Leg., ch. 562, Sec. 11, eff. Sept. 1, 2003.

Sec.A651.158.AAINSPECTION 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

Health

to

obtain

inspection

of

those

facilities by an entity other than the Texas Department of Health. (b)AAThe commission by rule shall establish procedures for an inspection required under this section. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.159.AAMEMORANDUM OF UNDERSTANDING: SERVICES.

(a)

PREPAID FUNERAL

The commission, the Texas Department of Insurance,

and the Texas Department of Banking shall adopt a joint memorandum of

understanding

transactions.

relating

to

prepaid

funeral

services

and

The memorandum must:

(1)AAoutline

the

responsibilities

of

each

regulating prepaid funeral services and transactions;

17

agency

in


(2)AAestablish procedures to be used by each agency in: (A)AAreferring a complaint to one of the other agencies; (B)AAinvestigating a complaint;

and

(C)AAnotifying the other agencies of a complaint or a complaint investigation; (3)AAspecify: (A)AAan action the agencies regard as a deceptive trade practice;

and (B)AAthe

information

the

agencies

consumers and when that information is to be provided;

provide

and

(4)AAset the administrative penalty each agency imposes for a violation. (b)AANot later than the last month of each state fiscal year, the commission and the other agencies shall review and update the memorandum of understanding. (c)AAEach

agency

by

rule

shall

adopt

the

memorandum

of

understanding and any revision to the memorandum. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.160.AAMEMORANDUM ESTABLISHMENT REQUIREMENTS. Department

of

Health

OF

(a)

shall

UNDERSTANDING:

FUNERAL

The commission and the Texas

adopt

a

joint

memorandum

of

understanding that: (1)AAoutlines the responsibilities of each agency in enforcing

requirements

under

Chapters

193

and

361,

Health

and

Safety Code, that affect funeral establishments; (2)AAestablishes procedures by which each agency: (A)AAmay refer a complaint to the other; and (B)AAwill notify the other of a violation by a funeral establishment of Chapter 193 or 361, Health and Safety Code; and (3)AAcoordinates 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)AANot later than the last month of each state fiscal year, the commission and the Texas Department of Health shall review and

18


update the memorandum of understanding. (c)AAEach

agency

by

rule

shall

adopt

the

memorandum

of

understanding and any revision to the memorandum. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.161.AAREGISTER.

(a)

The

commission

shall

file

annually with the governor a list of the names of all funeral directors, embalmers, and licensed funeral establishments. (b)AAA certified copy of the list is admissible as evidence in all courts. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.381(a), eff. Sept. 1, 2001.

Sec.A651.162.AAANNUAL REPORTS.

(a)

The commission shall

file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year. form

and

reported

in

the

The annual report must be in the

time

provided

by

the

General

Appropriations Act. (b)AAThe commission shall file annually with the governor a written description of the activities of the commission during the preceding fiscal year. (c)AAThe commission shall file annually with the governor a report

on

the

commission ’s

compliance

with

Sections

651.104,

651.105, and 651.204(b). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.382(a), eff. Sept. 1, 2001.

Sec.A651.163.AAREQUEST FOR ATTORNEY GENERAL ’S OPINION.

A

request for an opinion under Subchapter C, Chapter 402, Government Code, must be approved by the commissioners. Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.383(a), eff. Sept. 1, 2001.

19


Sec.A651.164.AALICENSE EXPIRATION.

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. Acts

1999,

76th

Leg.,

ch.

388,

Sec.

1,

eff.

Sept.

1,

1999.

Renumbered from Sec. 651.262 and amended by Acts 2001, 77th Leg., ch. 682, Sec. 1.17, eff. Sept. 1, 2001;

Acts 2003, 78th Leg., ch.

562, Sec. 12, eff. Sept. 1, 2003.

Sec.A651.165.AARENEWAL 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

commission before the expiration date of the license.

to

the

A person

whose license has expired may not engage in activities that require a license until the license has been renewed. (b)AAA 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)AAA 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)AAA person whose license has been expired for one year or more may renew the license by: (1)AAretaking and passing the applicable examination; (2)AApaying any applicable fees, including a renewal fee that is equal to two times the normally required renewal fee; and (3)AAcompleting

any

continuing

education

required

under Section 651.266. (e)AAA

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

20


may obtain a new license without reexamination.

The person must pay

to the commission a fee that is equal to two times the normally required renewal fee for the license. (f)AAAt 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. Acts

1999,

76th

Leg.,

ch.

388,

Sec.

1,

eff.

Sept.

1,

1999.

Renumbered from Sec. 651.263 and amended by Acts 2001, 77th Leg., ch. 682, Sec. 1.18, eff. Sept. 1, 2001. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 21, eff. September 1, 2009.

Sec.

651.1655.AAREINSTATEMENT

OF

SUSPENDED

LICENSE.

A

person whose license has been suspended may renew the license by paying to the commission a renewal fee that is equal to two times the

normally

required

renewal

fee

in

addition

to

any

penalty

assessed by the commission. Added

by

Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

Sec.

22,

eff.

September 1, 2009.

Sec.A651.166.AAUSE

OF

TECHNOLOGY.

The

commission

shall

develop and implement a policy requiring the executive director and commission

employees

technological

to

solutions

perform its functions. (1)AAensure

to

research

and

improve

propose

appropriate

commission ’s

the

ability

to

The technological solutions must: that

the

public

is

able

to

easily

find

information about the commission on the Internet; (2)AAensure

that

persons

who

want

to

use

the

commission ’s services are able to: (A)AAinteract Internet;

with

the

commission

through

the

and (B)AAaccess

any

effectively through the Internet; (3)AAbe

service

21

can

be

provided

and

cost-effective

commission ’s planning processes.

that

and

developed

through

the


Added by Acts 2003, 78th Leg., ch. 562, Sec. 13, eff. Sept. 1, 2003.

Sec.A651.167.AANEGOTIATED

RULEMAKING

DISPUTE RESOLUTION PROCEDURES.

(a)

AND

ALTERNATIVE

The commission shall develop

and implement a policy to encourage the use of: (1)AAnegotiated

rulemaking

procedures

under

Chapter

2008, Government Code, for the adoption of commission rules; and (2)AAappropriate

alternative

dispute

resolution

procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the commission ’s jurisdiction. (b)AAThe

commission ’s

procedures

relating

to

alternative

dispute resolution must conform, to the extent possible, to any model

guidelines

issued

by

the

State

Office

of

Administrative

Hearings for the use of alternative dispute resolution by state agencies. (c)AAThe commission shall designate a trained person to: (1)AAcoordinate

the

implementation

of

the

policy

adopted under Subsection (a); (2)AAserve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution;

and

(3)AAcollect data concerning the effectiveness of those procedures, as implemented by the commission. Added by Acts 2003, 78th Leg., ch. 562, Sec. 13, eff. Sept. 1, 2003.

SUBCHAPTER E. PUBLIC INTEREST AND COMPLAINT INFORMATION

Sec.A651.201.AAPUBLIC

INTEREST

INFORMATION.

(a)

The

commission shall prepare a brochure with information of public interest: (1)AAexplaining matters relating to funerals;

and

(2)AAdescribing: (A)AAthe functions of the commission;

and

(B)AAthe commission ’s procedures for filing and resolving a public complaint. (b)AAThe commission shall:

22


(1)AAprovide each licensed funeral establishment with the number of brochures the commission considers appropriate; (2)AAmake

the

brochure

available

to

the

and

public

and

appropriate state agencies. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.202.AACOMPLAINTS.

(a)

The commission by rule shall

establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission

for

commission.

the

purpose

of

directing

complaints

to

the

The commission may provide for that notice: (1)AAon

each

license

form,

application,

or

written

contract for services of a person regulated under this chapter; (2)AAon a sign prominently displayed in the place of business of each person regulated under this chapter; or (3)AAin

a

bill

for

service

provided

by

a

person

regulated under this chapter. (b)AAThe commission shall adopt rules concerning a complaint filed under this section.

The rules adopted under this subsection

must: (1)AAestablish

procedures

regarding

the

receipt,

investigation, and disposition of complaints; (2)AAallow for an informal hearing process; (3)AAestablish a formal hearing process; (4)AAensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; (5)AAensure that the license holder who is the subject of

the

complaint

complaint;

has

an

opportunity

be

heard regarding

the

and (6)AAestablish

employee

to

may

dismiss

a

procedures

complaint,

by

which

subject

to

a

commission

approval

by

the

executive director or the executive director ’s designee, if the investigation does not reveal a violation. (c)AAThe received

by

commission

the

commission

shall

investigate

relating

to

a

each

funeral

complaint director,

embalmer, provisional license holder, funeral establishment, or other person licensed or registered under this chapter.

23


(d)AAThe commission shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy

of

the

commission ’s

policies

and

procedures

relating

to

complaint investigation and resolution, including an explanation of the remedies that are available to the person under this chapter and information about other appropriate state or local agencies or officials with which the person may file a complaint. (e)AAThe

commission,

at

least

quarterly

until

final

disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation. (f)AAThe person who filed the complaint is entitled to attend any proceeding resulting from the complaint. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.13, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 14, eff. Sept. 1, 2003.

Sec.A651.203.AARECORD OF COMPLAINTS.

(a)

The commission

shall maintain a file on each written complaint filed with the commission. The file must include: (1)AAthe subject matter of the complaint; (2)AAthe

date

the

complaint

is

received

by

the

commission; (3)AAthe name of the person who filed the complaint; (4)AAthe name of each person contacted in relation to the complaint; (5)AAa

summary

of

investigation of the complaint;

the

results

of

the

review

or

and

(6)AAan explanation of the reason the file was closed, if the commission closed the file without taking action other than to investigate the complaint. (b)AAInformation in a file maintained under this section, other than information relating to a complaint that has not reached a final disposition, is public information. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.14, eff. Sept. 1, 2001;

24


Acts 2001, 77th Leg., ch. 1420, Sec. 14.378(b), eff. Sept. 1, 2001.

Sec.A651.204.AAPUBLIC PARTICIPATION.

(a)

The commission

shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission ’s jurisdiction. (b)AAThe commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical,

mental,

or

developmental

disability

may

be

provided

reasonable access to the commission ’s programs. (c)AAA member of the public is not required to provide notice to

the

commission

before

appearing

and

speaking

before

the

commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.376(b), eff. Sept. 1, 2001.

SUBCHAPTER F. LICENSE REQUIREMENTS:

FUNERAL DIRECTORS AND

EMBALMERS

Sec.A651.251.AALICENSE REQUIRED.

(a)

Funeral directing may

be performed only by a funeral director or a provisional license holder or qualified mortuary student under the supervision and direction of a funeral director.

A person may not engage or profess

to be engaged in the business of funeral directing or hold the person out to the public as a funeral director unless the person is licensed as a funeral director. (b)AAEmbalming may be performed only by an embalmer or a provisional license holder or qualified mortuary student under the supervision and direction of an embalmer.

A person may not engage

or profess to be engaged in the business of embalming or hold the person

out

to

the

public

as

an

embalmer

unless

the

person

is

licensed as an embalmer. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.252.AALICENSE APPLICATION.

(a)

An applicant for a

funeral director ’s license or an embalmer ’s license must submit a

25


written

license

application

to

the

commission

and

pay

the

application fee. (b)AAThe commission may 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)AAThe

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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.253.AAGENERAL

LICENSE

REQUIREMENTS.

(a)

To

be

eligible for a funeral director ’s license or an embalmer ’s license, an applicant must: (1)AAbe at least 18 years of age; (2)AAhave graduated from an accredited high school or passed an examination prescribed by the Texas Education Agency; (3)AAhave

graduated

from

an

accredited

school

or

college of mortuary science; (4)AAunless the applicant holds a reciprocal embalmer ’s license, have served as a provisional license holder for not less than one year under the personal supervision and instruction of a funeral director or embalmer, as applicable; (5)AAhave

successfully

and

completed

the

applicable

written examination described by Section 651.255 or 651.256. (b)AAAn applicant for a funeral director ’s license or an embalmer ’s license may not be considered for that license until the applicant: (1)AAcompletes

all

provisional license program; (2)AAattains

a

of

the

requirements

of

the

and

grade

of

at

least

75

percent

on

the

written examination given by the commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.254.AALICENSE

EXAMINATIONS;

RESULTS.

(a)

The

examinations for a funeral director ’s license and an embalmer ’s

26


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)AANot 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)AAIf the examination is graded or reviewed by a testing service: (1)AAthe

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)AAif

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)AAThe commission may require a testing service to notify a person of the results of the person ’s examination. (e)AAIf licensing commission

requested

examination shall

in

writing

administered

furnish

the

by

a

person

under

person

this

with

an

who

fails

chapter,

analysis

a

the

of

the

person ’s performance on the examination. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.15, eff. Sept. 1, 2001.

Sec.A651.255.AAEXAMINATIONS REQUIRED FOR FUNERAL DIRECTOR ’S LICENSE.

The

commission

shall

administer

or

arrange

for

the

administration of: (1)AAa written professionally prepared examination on: (A)AAthe art and technique of funeral directing; (B)AAthe signs of death; (C)AAthe manner by which death may be determined; (D)AAsanitation and hygiene; (E)AAmortuary management and mortuary law; (F)AAbusiness and professional ethics; and (G)AAother

subjects

that

may

be

recognized school or college of mortuary science; and

27

taught

in

a


(2)AAa written examination developed by the commission or developed for the commission by contract on: (A)AAlaws

applicable

pertaining to dead human bodies;

to

vital

statistics

and

(B)AAlocal and state rules and laws relating to the

preparation,

transportation,

care,

and

disposition

of

dead

human bodies. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.256.AAEXAMINATIONS LICENSE.

The

commission

shall

REQUIRED administer

FOR or

EMBALMER ’S

arrange

for

the

administration of: (1)AAa written professionally prepared examination on: (A)AAthe anatomy of the human body, including: (i)AAthe cavities of the human body; and (ii)AAthe arterial and venous system of the human body; (B)AAblood and discoloration; (C)AAbacteriology and hygiene; (D)AApathology; (E)AAchemistry and embalming; (F)AAarterial and cavity embalming; (G)AArestorative art; (H)AAdisinfecting; (I)AAembalming special cases; (J)AAcontagious and infectious diseases; (K)AAmortuary management; (L)AAcare,

preservation,

transportation,

and

disposition of dead human bodies; (M)AAsanitary science; (N)AAother

subjects

and

that

may

be

taught

in

a

recognized school or college of mortuary science; and (2)AAa written examination developed by the commission or developed for the commission by contract on: (A)AAlaws

applicable

pertaining to dead human bodies;

to

vital

statistics

and

(B)AAlocal and state rules and laws relating to

28


the care and disposition of dead human bodies. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.257.AAFOREIGN STUDENTS; A

citizen

of

completed

a

a

country full

other

course

CERTIFICATE OF MERIT.

than

the

United

of

mortuary

States

who

science

at

(a) has a

commission-approved college in this state may take the commission examination in embalming, funeral directing, or both after: (1)AAapplying to the commission; (2)AApaying

the

examination

and

fee

required

of

other

applicants. (b)AAThe commission may award the applicant a certificate of merit

if

the

applicant

successfully

required of other applicants.

makes

the

minimum

grades

The certificate of merit does not

authorize the holder of the certificate to practice embalming or funeral directing in this state unless the holder is otherwise licensed as an embalmer or funeral director under this chapter. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.258.AALICENSE 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. license

authorizes

the

license

holder

to

practice

The

embalming,

funeral directing, or both. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.259.AAAPPLICATION 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.

29


(b)AAAny applicant for a license under this section shall file a sworn application that includes: (1)AAa statement that: (A)AAthe

applicant

is

the

person

to

whom

the

license was issued; (B)AAno proceeding has been instituted against the applicant for the cancellation, suspension, or revocation of the license

in

license;

the

state,

country,

or

territory

that

issued

the

and (C)AAno

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)AAan affidavit of a person described by Subsection (c) verifying that: (A)AAthe

accompanying

canceled, suspended, or revoked;

license

has

not

been

and

(B)AAthe statement of the qualifications made in the application for licensure in this state is correct. (c)AAThe affidavit must be made by: (1)AAthe

presiding

officer

or

governmental entity that issued the license;

secretary

of

the

or

(2)AAa registration officer of the state, country, or territory that issued the license. (d)AAThe 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)AAThe

commission

check on each applicant.

shall

conduct

a

criminal

background

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. (f)AAAn applicant for a license under this section must: (1)AAprovide proof that: (A)AAthe license is in good standing; (B)AAthe applicant has practiced under the license

30


for at least: (i)AAone year in the state that issued the license

if

that

state

has

license

requirements

substantially

equivalent to those of this state; or (ii)AAfive years in the state that issued the license

if

that

state

does

not

have

license

requirements

substantially equivalent to those of this state; and (C)AAthe

applicant

has

accredited college of mortuary science;

graduated

from

an

and

(2)AApass a written examination of not more than 50 questions on applicable state laws and commission rules. (g)AAThe Subsection

commission

(f)(2)

at

shall

each

conduct

regularly

the

examination

scheduled

meeting

under of

the

commission. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.384(a), eff. Sept. 1, 2001.

Sec.A651.2595.AAPROVISIONAL LICENSE.

(a)

The commission

may issue a provisional license to an applicant currently licensed in another jurisdiction who seeks a license in this state and who: (1)AAhas been licensed in good standing as a funeral director

or

embalmer

jurisdiction,

for

including

a

at

least

foreign

two

country,

years that

in

has

another licensing

requirements substantially equivalent to the requirements of this chapter; (2)AAhas

passed

a

national

or

other

examination

recognized by the commission relating to the practice of funeral director or embalmer; (3)AAis

and sponsored

by

a

person

licensed

by

the

commission under this chapter with whom the provisional license holder will practice during the time the person holds a provisional license. (b)AAThe commission may waive the requirement of Subsection (a)(3)

for

compliance

an with

applicant that

if

the

subsection

applicant.

31

commission would

be

a

determines hardship

to

that the


(c)AAA commission

provisional

approves

or

license

denies

application for a license.

is

the

valid

until

provisional

the

date

license

the

holder ’s

The commission shall issue a license

under this chapter to the provisional license holder if: (1)AAthe provisional license holder is eligible to be licensed under Section 651.259;

or

(2)AAthe provisional license holder: (A)AApasses Subsection

(a)

that

the

relates

to

part the

of

the

examination

applicant ’s

under

knowledge

and

understanding of the laws and rules relating to the practice of funeral directing or embalming in this state; (B)AAmeets

the

academic

requirements for a license under this chapter;

and

experience

and

(C)AAsatisfies any other licensing requirements under this chapter. (d)AAThe license

commission

holder ’s

shall

application

for

approve a

or

license

deny not

a

provisional

later

than

the

second anniversary of the date on which the provisional license is issued.

The

commission

may

extend

the

two-year

period

if

the

results of an examination have not been received by the commission before the end of that period. (e)AAThe

commission

may

establish

a

fee

for

provisional

licenses in an amount reasonable and necessary to cover the cost of issuing the license. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.16, eff. Sept. 1, 2001.

Amended by Acts 2003, 78th Leg., ch. 562, Sec. 15, eff. Sept.

1, 2003.

Sec.A651.260.AADUPLICATE LICENSE.

(a)

If a license issued

under this chapter is lost or destroyed, the license holder may apply to the commission for a duplicate license. (b)AAThe license holder must submit the application on a form prescribed by the commission and must submit with the application an affidavit verifying: (1)AAthe loss or destruction of the license; (2)AAthat the license holder is the person to whom the license was issued; and

32


(3)AAany

other

information

concerning

the

loss

or

destruction of the license the commission requires. (c)AAThe commission shall issue a duplicate license after receipt

of

the

information

and

payment

of

the

fee

set

by

the

commission for the duplicate license. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.261.AAPOSTING OF LICENSE. conspicuously

display

holder ’s

the

A license holder shall

license

in

each

place

of

business at which the license holder practices. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 16, eff. Sept. 1, 2003.

Sec.A651.264.AARENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER.

(a)

The commission may renew without reexamination

an expired license of a person who was licensed in this state, moved to another state, and is licensed and has been in practice in the other state for the two years before the person applied for a renewal license. (b)AAThe person must pay to the commission a fee equal to the renewal fee for the license. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.265.AARENEWAL INACTIVE STATUS.

(a)

FOR

CERTAIN

RETIRED

APPLICANTS;

A license holder who is at least 65 years of

age or who has a disability of 75 percent or greater at the time an application for renewal is submitted may apply for renewal of the license

in

the

category

of

retired,

inactive

status,

or

the

category of retired, active status. (b)AAOn application, the commission may renew the license of a retired license holder who does not provide funeral or embalming services

in

the

category

of

retired,

inactive

status.

The

commission may not charge a fee for the renewal of a license for retired, inactive status. (c)AAOn application, the commission may renew in the category of retired, active status, the license of a retired license holder who

participates

in

any

manner,

33

nominal

or

otherwise,

in

the


provision of funeral or embalming services.

The commission shall

charge a fee equal to one-half of the amount of the license renewal fee charged other active license holders. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.266.AACONTINUING 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

commission

renewal

requires

described

continuing

by

Section

education,

651.265.

the

If

commission

the

shall

require completion of a minimum number of hours of ethics training as a required part of that education. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.19, eff. Sept. 1, 2001.

Sec.

651.267.AAREISSUANCE

OF

REVOKED

LICENSE.

(a)

On

application, the commission may reissue a license issued under this subchapter

to

a

person

whose

license

has

been

revoked.AAAn

application to reissue a license may not be made before the third anniversary of the date of the revocation. (b)AAThe application shall be made in the manner and form required by the commission. (c)AAA hearing to determine whether to reissue a license shall be held before the commission unless the commission requires the hearing to be held before a hearings officer. (d)AAA license that has been revoked may be reinstated only after the applicant: (1)AAretakes and passes the applicable examination; (2)AApays a fee that is equal to two times the normally required renewal fee; and (3)AAsatisfies including

any

continuing

any

other

education

commission

requirements

requirements, under

Section

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

651.266.

by Acts 2003, 78th Leg., ch. 562, Sec. 17, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 23, eff. September

34


1, 2009. Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 24, eff. September 1, 2009.

SUBCHAPTER G. LICENSE REQUIREMENTS:

PROVISIONAL LICENSE HOLDERS

Sec.A651.301.AAPROVISIONAL LICENSE REQUIRED. obtain

a

provisional

license

before

the

person

A person must may

engage

in

learning the practice of funeral directing or embalming under the instruction, direction, and personal supervision in this state of a licensed funeral director or embalmer. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.302.AAAPPLICATION; LICENSE.

(a)

ISSUANCE

OF

PROVISIONAL

The commission shall issue a provisional license to

practice funeral directing to an applicant who: (1)AAis at least 18 years of age; (2)AAhas

completed

the

educational

requirements

of

Section 651.253 or is enrolled in an accredited school or college of mortuary science; (3)AAis employed by a funeral director to learn funeral directing or embalming under the instruction and supervision of the funeral director; (4)AAfiles an application for a provisional license on a form provided by the commission and verified under oath by the applicant;

and (5)AApays any required application or license fee.

(b)AAThe

commission

shall

issue

a

provisional

license

to

requirements

of

practice embalming to an applicant who: (1)AAis at least 18 years of age; (2)AAhas

completed

the

educational

Section 651.253 or is enrolled in an accredited school or college of mortuary science; (3)AAfiles an application for a provisional license; (4)AApays any required application or license fee;

and

(5)AAcomplies with the requirements of this chapter and of the commission.

35


(c)AARepealed by Acts 2003, 78th Leg., ch. 562, Sec. 42(2). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 18, 42(2), eff. Sept. 1, 2003.

Sec.A651.303.AAPROVISIONAL

LICENSE

PROGRAM.

(a)

The

commission shall prescribe and supervise the course of instruction received by a provisional license holder while participating in a provisional license program. (b)AAThe employment

of

commission a

by

rule

provisional

shall

license

define

holder.

the

terms

of

The

terms

of

employment: (1)AAmust include service by the provisional license holder: (A)AAof at least 17 hours a week or 73 hours a month; and (B)AAunder actual working conditions and under the personal supervision of a funeral director or embalmer;

and

(2)AAmay not require more than 17 hours a week or 73 hours a month. (c)AAThe term of the provisional license program must be at least 12 consecutive months. (d)AAThe provisional license program must include assisting with at least 60 cases.

Not more than two provisional license

holders may receive credit for work done on any one body.

The

commission by rule shall: (1)AAdefine the standards for a case; (2)AAset

the

number

of

cases

a

provisional

holder is required to complete during the program;

license

and

(3)AAestablish guidelines for supervision under which a provisional license holder is granted increased responsibilities during the course of the provisional license program. (e)AAThe standards required for a complete case include: (1)AAfor an embalmer, all the duties and activities necessary for embalming; (2)AAfor necessary

from

the

a

and funeral

time

the

director, body

36

is

all

the

obtained

activities until

final


disposition. (f)AAThe funeral director provisional license program may be served concurrently with the embalmer provisional license program. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 19, eff. Sept. 1, 2003.

Sec.A651.3035.AAMORTUARY LICENSE PROGRAM. serve

as

(a)

credit

for

COLLEGE

CREDIT

FOR

PROVISIONAL

A case completed under Section 651.303(d) may both

mortuary

school

or

college

and

the

provisional license holder program. (b)AAA mortuary school or college may designate a funeral director holder

or

under

embalmer Section

who

is

651.303

supervising as

a

a

provisional

clinical

instructor

license for

the

provisional license holder. Added by Acts 2003, 78th Leg., ch. 562, Sec. 20, eff. Sept. 1, 2003.

Sec.A651.304.AAEMPLOYMENT employment

with

a

funeral

REPORTS.

director

or

(a)

embalmer,

On a

entering

provisional

license holder shall immediately notify the commission of the name and place of business of the funeral director or embalmer under whom the provisional license holder will train.

The funeral director or

embalmer shall sign the notification. (b)AARepealed by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 33(2), eff. September 1, 2009. (c)AARepealed by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 33(2), eff. September 1, 2009. (d)AAIf a provisional license holder leaves the employment of a funeral director or embalmer, the funeral director or embalmer shall

prepare

an

affidavit

showing

the

length

of

time

the

provisional license holder was employed and the number of cases handled while employed by the funeral director or embalmer.

The

original affidavit shall be filed with the commission and made a matter of record.

A copy of the affidavit shall be furnished to the

provisional license holder. (e)AAThe

commission

by

rule

shall

prescribe

reporting

requirements for provisional license holders. The commission shall furnish report forms to be used by a provisional license holder.

37


Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 21, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 25, eff. September 1, 2009. Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

Sec.

33(2),

eff.

September 1, 2009.

Sec.A651.305.AARENEWAL LICENSE.

(a)

OR

REINSTATEMENT

OF

PROVISIONAL

, (b) Repealed by Acts 2001, 77th Leg., ch. 682, Sec.

3.01(a), eff. Sept. 1, 2001. (c)AAIf a provisional license holder fails to timely pay the renewal fee, the commission shall: (1)AAimpose a late payment penalty equal to the amount of the license renewal fee; (2)AAsuspend the license for nonpayment; (3)AAnotify

the

provisional

license

and holder

of

the

suspension. (d)AAIf the renewal fee and penalty are not paid before the 91st day after the date of the notice of suspension, the commission shall cancel the license. subsection,

the

If the license is canceled under this

provisional later

than

license 18

holder

months

may

after

apply

the

date

for

reinstatement

not

of

cancellation.

The commission may reinstate the canceled license

if: (1)AAall other commission requirements are satisfied; and (2)AAthe license fee and a late payment penalty equal to the amount of the license fee for the period of the cancellation are paid. (e)AAA provisional license may be renewed after the second anniversary of the date of its issuance only if the person requests and receives from the commission an extension based on hardship. (f)AAA

provisional

license

that

has

been

canceled

or

suspended or has lapsed for a period of at least five years may be reinstated only if the applicant passes the written embalming or funeral directing examination.

38


(g)AAThe

commission

may

adopt

rules

relating

to

the

reinstatement of a provisional license under this section. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 3.01(a), eff. Sept. 1, 2001.

Sec.A651.306.AAPERSONAL SUPERVISION.

For the purposes of

this chapter, personal supervision requires the physical presence of a funeral director or embalmer at the specified place and time a funeral service is provided. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER H. LICENSE REQUIREMENTS:

CEMETERY, FUNERAL, AND

COMMERCIAL EMBALMER ESTABLISHMENTS

Sec.A651.351.AAFUNERAL ESTABLISHMENT LICENSE REQUIREMENTS. (a)

A funeral establishment may not conduct a funeral business

unless it is licensed by the commission. (b)AAThis chapter does not require a funeral establishment to be owned by a person licensed under this chapter. (c)AATo obtain an initial funeral establishment license, an applicant must apply for a license and pay the licensing fee.

The

commission shall issue an initial funeral establishment license on determining that the applicant satisfies the requirements of this section. (d)AAA funeral establishment must: (1)AAmeet standards

and

the

health

building,

ordinances

fire

of

safety,

this

state

and and

health of

the

municipality in which the establishment is located; (2)AAexcept as provided by Subsection (i), be located at a fixed place that is not tax-exempt property or a cemetery; (3)AAinclude facilities in which funeral services may be conducted; (4)AAhave

access

to

rolling

stock

consisting

of

at

least one motor hearse; (5)AAinclude

a

preparation

room

containing

the

facilities, equipment, and supplies required by commission rule to ensure the provision of adequate embalming services;

39


(6)AAinclude 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)AAinclude

a

display

containing

sufficient

merchandise to permit reasonable selection, including at least five adult caskets, two of which must be full-size and displayed in a casket showroom. (e)AAEach licensed

funeral

personnel

to

establishment conduct

the

must

have

operation

of

sufficient the

funeral

establishment. (f)AAThe 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.AAThe three adult

caskets

that

are

not

required

to

be

full-size

under

or

other

Subsection (d)(7) may be displayed: (1)AAin a partial panel display; or (2)AAby

video

or

brochure,

online,

in

any

manner. (g)AAThe commission may exempt a funeral establishment from the requirements of Subsection (d)(5) if: (1)AAthe majority owner or designated agent of record of

a

funeral

establishment

submits

a

written

petition

to

the

commission requesting an exemption and stating: (A)AAthe establishment ’s name and address; (B)AAthat the establishment is located within 50 miles

of

a

facility

owned

by

the

establishment

requesting

exemption and at which embalming services may be performed;

the

and

(C)AAthat no embalming services will be performed at the establishment; (2)AAthe

and commission

determines

that

the

criteria

in

Subdivision (1) have been met. (h)AAThe executive director shall notify the petitioner of the commission ’s decision. The exemption remains in effect until: (1)AAthe 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)AAan embalming service has been performed at the

40


establishment. (i)AASubsection

(d)(2)

does

not

apply

to

a

funeral

establishment that is: (1)AAlocated on the real property of a public junior college; and (2)AAoperated educational

program

in

in

connection

funeral

services

with

an

offered

by

accredited the

public

junior college. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.385(a), eff. Sept. 1, 2001. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 26, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 492, Sec. 1, eff. June 19, 2009.

Sec.A651.352.AACOMMERCIAL REQUIREMENTS.

(a)

In

EMBALMERS

ESTABLISHMENT

section,

"commercial

this

LICENSE

embalmers

establishment" means an establishment that: (1)AAembalms for licensed funeral establishments; (2)AAdoes not sell services or merchandise directly or at retail to the public; and (3)AAmeets the requirements for an embalmers license. (b)AAAn establishment that functions solely as a commercial embalmers establishment is required to hold a commercial embalmers establishment

license

but

is

not

required

to

comply

with

the

requirements for a funeral establishment license under Sections 651.351(d)(3), (d)(6), and (f). (c)AAA

commercial

embalmers

establishment

may

employ

an

embalmer only if the embalmer is licensed under this chapter. (d)AAAn establishment

embalming

service,

or

embalming

other

whether

provided

facility

at

licensed

a

funeral

under

this

chapter, must comply with this chapter or a rule adopted under this chapter. (e)AAA

licensed

commercial

embalmers

establishment

that

meets the licensing requirements under Subchapter N may hold a

41


crematory establishment license. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.385(b), eff. Sept. 1, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 596, Sec. 2, eff. September 1, 2007.

Sec.A651.353.AACEMETERY ESTABLISHMENT REQUIREMENTS.

(a)

A

cemetery may not conduct a cemetery business unless the facility is licensed by the commission. (b)AAThis chapter does not require a cemetery to be owned by a person licensed under this chapter. (c)AATo obtain an initial cemetery license, an applicant must apply for a license and pay the licensing fee.

The commission shall

issue an initial cemetery license on determining that the applicant satisfies the requirements of this chapter. (d)AAThis section does not apply to: (1)AAa family, fraternal, or community cemetery that is not larger than 10 acres; (2)AAan unincorporated association of plot owners not operated for profit; (3)AAa church, a religious society or denomination, or an entity solely administering the temporalities of a church or religious society or denomination; (4)AAa public cemetery owned by this state, a county, or a municipality; or (5)AAa perpetual care cemetery. Added by Acts 2003, 78th Leg., ch. 562, Sec. 23, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 27, eff. September 1, 2009.

Sec.A651.354.AARENEWAL 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

42


expiration date of the license.AAThe notice must state that: (1)AAto

renew

the

license,

the

cemetery

or

funeral

establishment must pay the renewal fee not later than the license expiration date; and (2)AAthe license is automatically renewed on receipt of the renewal fee. (b)AAA 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)AAIf 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)AAThis

section

does

not

apply

to

a

perpetual

care

cemetery. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 24, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 28, eff. September 1, 2009.

Sec. 651.355.AAPERPETUAL CARE CEMETERY REGISTRATION. The

Texas

Department

commission address

a

and

list other

of

of

Banking

perpetual

contact

shall care

provide

annually

cemeteries,

information

for

each

(a)

to

the

including

the

cemetery.AAThe

commission shall annually register each perpetual care cemetery on that list. (b)AAA

perpetual

care

cemetery

is

not

required

to

pay

a

registration fee or renewal fee under this chapter. Added

by

Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

Sec.

29,

eff.

September 1, 2009.

SUBCHAPTER I. PRACTICE BY LICENSE HOLDER

Sec.A651.401.AAFIRST

CALL.

(a)

A

funeral

director

or

embalmer must direct and personally supervise the pickup of a dead human body on first call.

43


(b)AAA dead human body may be transferred without a funeral director personally making the transfer: (1)AAfrom one funeral establishment to another; (2)AAfrom a funeral establishment to and from a morgue in which an autopsy is performed; (3)AAto and from an airport, crematory, or both; or (4)AAin 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)AAIf

an

unlicensed

person

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)AAidentifying the unlicensed person ’s employer; (2)AAarranging

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; (3)AAmaking

any

disclosure

to

the

family

and member

or

other person that is required by federal or state law or regulation. (d)AAA 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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.386(a), eff. Sept. 1, 2001.

Sec.A651.402.AARELATIONSHIP OF FUNERAL DIRECTOR TO FUNERAL ESTABLISHMENT.

A person may act as a funeral director in directly

or indirectly providing funeral services for compensation only if the person: (1)AAis acting as a licensed employee of a licensed funeral establishment that has contracted to provide those funeral services;

or (2)AAis a licensed agent, subcontractor, or assignee of

the licensed funeral establishment that has contracted to provide

44


those funeral services. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.403.AADESIGNATION OF FUNERAL DIRECTOR IN CHARGE; EFFECT OF VIOLATION.

(a) A funeral establishment shall:

(1)AAdesignate to the commission a funeral director in charge; and (2)AApromptly notify the commission of any change in that designation. (b)AAThe funeral director in charge is directly responsible for the funeral directing and embalming business of the funeral establishment. (c)AAThe

funeral

director

in

charge

is

responsible for compliance with the mortuary laws.

ultimately The funeral

director in charge may be charged with a violation of this chapter if a violation occurs in the funeral establishment. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.404.AACONSUMER 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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.405.AARETAIL PRICE LIST; (a)

FUNERAL ESTABLISHMENT.

"Retail price list" means a printed or typewritten list of the

retail

price

of

items

or

services

provided

by

a

funeral

establishment and must include the retail price of: (1)AAtransferring

a

deceased

person

to

the

funeral

establishment; (2)AAembalming; (3)AAusing a funeral establishment facility for viewing the deceased; (4)AAusing a funeral establishment facility for funeral

45


services; (5)AAusing a hearse; (6)AAusing a limousine; (7)AAcaskets; (8)AAouter enclosures;

and

(9)AAother itemized services provided by the funeral establishment staff. (b)AAA retail price list must contain the name, address, and telephone number of the funeral establishment, the effective date for the stated prices, and the following printed notice:

"The goods

and services shown below are those we can provide to our customers. You may choose only the items you desire. arrangements

you

select

services and overhead.

will

include

However, any funeral

a

charge

for

our

basic

If legal or other requirements mean you must

buy any items you did not specifically ask for, we will explain the reason

in

writing

on

the

statement

we

provide

describing

the

funeral goods and services you selected." Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.20, eff. Sept. 1, 2001.

Sec.A651.4055.AARETAIL PRICE LIST; (a)

In

this

section,

"retail

price

CEMETERY OR CREMATORY.

list"

means

a

printed

or

typewritten list of the retail price of items or services provided by a cemetery or crematory. (b)AAA retail price list must contain: (1)AAthe name, address, and telephone number of the cemetery or crematory; (2)AAthe effective date for the stated prices; (3)AAnotice required by Subsection (c);

and

(4)AAany other items that the commission may by rule require. (c)AAThe retail price list must contain the following printed notice:

"The goods and services shown below are those we can

provide to our customers.

You may choose only the items you desire.

If legal or other requirements mean you must buy any items you did not specifically ask for, we will explain the reason in writing on the statement we provide describing the goods and services you

46


selected." Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.21, eff. Sept. 1, 2001.

Sec.A651.406.AAPURCHASE AGREEMENT; (a)

FUNERAL ESTABLISHMENT.

A purchase agreement must state: (1)AAthe name, address, and telephone number of the

funeral establishment; (2)AAthe amount paid or owed to another person by the funeral

establishment

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)AAthe printed notice required by Subsection (b); (4)AAthe name, mailing address, and telephone number of the commission;

and

(5)AAa statement that complaints may be directed to the commission. (b)AAThe printed notice:

purchase

agreement

must

contain

the

following

"Charges are only for those items that you selected

or that are required.

If we are required by law or by a cemetery or

crematory to use any items, we will explain the reasons in writing below." (c)AAThe purchase agreement shall be signed by the funeral director making the arrangements. (d)AAIf the customer selects a package arrangement based on unit pricing, the itemization requirement is satisfied by providing a purchase agreement that itemizes the discount provided by the package arrangement. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.22, eff. Sept. 1, 2001.

Sec.A651.4065.AAPURCHASE AGREEMENT; (a)

CEMETERY OR CREMATORY.

A purchase agreement must state: (1)AAthe name, address, and telephone number of the

cemetery or crematory; (2)AAthe amount paid or owed to another person by the cemetery or crematory on behalf of the customer and each fee charged

47


the customer for the cost of advancing funds or becoming indebted to another person on behalf of the customer; (3)AAthe printed notice required by Subsection (b); (4)AAthe name, mailing address, and telephone number of the commission; (5)AAa statement that complaints may be directed to the commission;

and (6)AAany other items that the commission may by rule

require. (b)AAThe printed notice:

purchase

agreement

must

contain

the

following

"Charges are only for those items that you selected

or that are required.

If we are required by law to use any items, we

will explain the reasons in writing below." (c)AAThe

operator

of

a

cemetery

shall

sign

a

purchase

agreement for a cemetery. (d)AAIf the customer selects a package arrangement based on unit pricing, the itemization requirement is satisfied by providing a purchase agreement that itemizes the discount provided by the package arrangement. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.23, eff. Sept. 1, 2001.

Amended by Acts 2003, 78th Leg., ch. 562, Sec. 25, eff. Sept.

1, 2003.

Sec.A651.407.AAUSE OF BODY BY SCHOOL OF MORTUARY SCIENCE. (a)

A school or college of mortuary science may not use a dead human

body for educational or instructional purposes without the written consent of a person authorized to consent to the use. (b)AAA funeral director or embalmer may not release a dead human body for delivery to a school or college of mortuary science, and a school or college of mortuary science may not accept a dead human body, without possession of the written consent required by Subsection (a). (c)AAThe 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)AAthe commission; (2)AAthe person who provided the consent;

48

and


(3)AAthe next of kin of the deceased person. (d)AAThe school or college of mortuary science shall retain a copy of the written consent permanently and shall make the records of the school or college of mortuary science reasonably available for inspection by the commission. (e)AAA written consent form used under this section must contain, in the same size print as the remainder of the form, the following statement immediately above the signature line for the form: "The

undersigned

authorizes

and

directs

the

funeral

establishment, including apprentices, and mortuary students under the direct supervision of a licensed embalmer, and the funeral establishment ’s employees, independent contractors, and agents to care

for,

embalm,

undersigned

and

prepare

acknowledges

the

that

body

this

of

the

decedent.

authorization

The

encompasses

permission to embalm at the funeral establishment or at another facility equipped for embalming, including a school or college of mortuary science." (f)AAThis

section

does

not

apply

to

a

dead

human

body

obtained by a school or college of mortuary science under Chapter 691 or 692A, Health and Safety Code. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 10, eff. September 1, 2009.

Sec.A651.408.AAUSE OF CEMETERY AND CREMATORY SERVICES.

The

fact that a funeral director contracts for cemetery or crematory services, including as part of a package arrangement, does not limit the director ’s liability to the customer for those services. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.24, eff. Sept. 1, 2001.

Sec. OFFICER.

651.409.AANOTICE

TO

NEXT

OF

KIN

OF

DECEASED

PEACE

A funeral director who prepares a deceased peace officer

for burial or other disposition shall make every effort to advise the next of kin of the officer that the next of kin of a person who

49


at the time of death was a peace officer or an honorably retired peace officer who voluntarily terminated employment with a law enforcement agency of this state or a political subdivision of this state is eligible on request to receive a state flag from the Commission on Law Enforcement Officer Standards and Education at no cost to the next of kin. Added by Acts 2001, 77th Leg., ch. 476, Sec. 4, eff. Sept. 1, 2001. Renumbered from Occupations Code Sec. 651.408 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(115), eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 744, Sec. 3, eff. September 1, 2005.

SUBCHAPTER J. PROHIBITED PRACTICES

Sec.A651.451.AACERTAIN

FRAUDULENT

AND

DECEPTIVE

ACTS.

A

person violates this chapter if the person: (1)AApresents to the commission a license, certificate, registration,

or

diploma

that

was

illegally

or

fraudulently

obtained; (2)AAuses examination,

fraud

including

or

deception

impersonating

or

in

acting

passing as

a

the

proxy

for

another person in the examination; (3)AApurchases, sells, barters, or uses, or offers to purchase,

sell,

certificate,

or

barter,

or

transcript

use, of

a

a

license,

license,

registration,

registration,

or

certificate in or incident to an application to the commission for a license or registration issued under this chapter; (4)AAalters, registration,

or

with

fraudulent

certificate

issued

under

intent, this

a

license,

chapter

or

a

transcript of a license, registration, or certificate; (5)AAuses

a

license,

registration,

certificate,

or

diploma issued under this chapter or a transcript of a license, registration, certificate, or diploma that has been fraudulently purchased, issued, counterfeited, or materially altered; (6)AAimpersonates

a

funeral

director,

embalmer,

or

other person regulated under this chapter; (7)AApermits

another

to

50

use

the

person ’s

license

or


registration to perform an activity regulated under this chapter; or (8)AApresents false certification of work done as a provisional license holder. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.25, eff. Sept. 1, 2001.

Sec.A651.452.AALACK

OF

FITNESS

TO

PRACTICE.

A

person

violates this chapter if the person is: (1)AAconvicted of: (A)AAa

misdemeanor

related

to

the

practice

of

embalming, funeral directing, or another activity regulated under this chapter;

or (B)AAa felony;

(2)AAunfit

to

practice

as

a

funeral

director

or

embalmer because of insanity and determined by a court to be of unsound mind; or (3)AAunfit

to

practice

because

of

current

substance

abuse. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.26, eff. Sept. 1, 2001.

Sec.A651.453.AAUNETHICAL this

chapter

character connection

if

that with

the

person

misleads an

ADVERTISING.

uses

or

an

person

advertising

deceives

advertisement,

A

the

the

statement

public

name

of

violates

a

or

of

uses,

person

who

a in is

falsely represented to be a license holder. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.454.AAOTHER CUSTOMERS.

(a)

UNETHICAL

CONDUCT

IN

SOLICITING

A person violates this chapter if the person, in

arranging for funeral services or merchandise, fails to: (1)AAprovide a prospective customer at the beginning of the arrangement process with a copy of the brochure required by Section 651.404; (2)AAprovide

to

a

prospective

customer

inquiring

in

person about any funeral service or merchandise a retail price list

51


for the prospective customer to keep; (3)AAexplain

to

a

prospective

customer

that

a

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)AAprovide

general

price

information

by

telephone

within a reasonable time. (b)AAA person violates this chapter if the person restricts, hinders, or attempts to restrict or hinder: (1)AAadvertising information

regarding

the

or

disclosure

availability

of

of

prices

funeral

and

other

services

and

funeral merchandise that is not unfair or deceptive to consumers; or (2)AAan

agreement

for

funeral

services

between

a

consumer and a funeral director or embalmer. (c)AAA

person

associated

with

a

funeral

establishment

violates this chapter if the person solicits business or offers an inducement to secure or attempt to secure business for the funeral establishment unless the solicitation is made under a permit issued under Chapter 154, Finance Code. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.455.AAFALSE

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)AAa legal, religious, or cemetery requirement for funeral merchandise or funeral, cemetery, or crematory services; (2)AAthe preservative qualities of funeral merchandise or

funeral,

cemetery,

or

crematory

services

in

preventing

or

substantially delaying natural decomposition of human remains; (3)AAthe airtight or watertight properties of a casket or outer enclosure; (4)AAthe

licenses

held

by

the

personnel

in

operation of the cemetery, crematory, or funeral establishment;

52

the or


(5)AAan

activity

regulated

under

this

chapter,

including the sale of funeral-related goods or services. (b)AARepealed by Acts 2003, 78th Leg., ch. 562, Sec. 42(3). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.27, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 26, 42(3), eff. Sept. 1, 2003.

Sec.A651.456.AAUNETHICAL CONDUCT REGARDING CUSTODY OF DEAD HUMAN BODY.

A person violates this chapter if the person: (1)AAtakes custody of a dead human body without the

permission of: (A)AAthe

person

or

the

agent

of

the

authorized to make funeral arrangements for the deceased;

person

or

(B)AAa medical examiner or a justice of the peace who has jurisdiction over the body under Articles 49.02-49.05, Code of Criminal Procedure; (2)AArefuses to promptly surrender a dead human body to a person or agent authorized to make funeral arrangements for the deceased;

or (3)AAviolates

any

state

law

governing

the

transportation, storage, refrigeration, inurnment, interment, or disinterment of a dead human body. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 27, eff. Sept. 1, 2003.

Sec.A651.457.AAUNETHICAL CONDUCT REGARDING EMBALMING.

(a)

A person violates this chapter if the person: (1)AAembalms a body without: (A)AAreceiving

the

express

written

or

oral

permission of a person authorized to make funeral arrangements for the deceased;

or (B)AAmaking a documented reasonable effort over a

period of at least three hours to obtain the permission; (2)AAembalms 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;

53


(3)AAallows the presence or participation of a student for credit or satisfaction of academic requirements during the embalming 651.407;

of

a

dead

human

body

without

complying

with

Section

or (4)AAplaces 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)AANotwithstanding

Subsection

(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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.458.AAUNETHICAL CONDUCT BY FUNERAL ESTABLISHMENT. A person violates this chapter if the person makes a distinction in providing

funeral

information

to

a

customer

regardless

of

any

affiliation of the customer or whether the customer has a present need for the services or merchandise. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.459.AAOTHER UNETHICAL CONDUCT IN PROVIDING FUNERAL SERVICES.

(a)

A person violates this chapter if the person:

(1)AAwilfully makes a false statement on: (A)AAa death certificate, including forgery of a physician ’s signature;

or

(B)AAa document required by this chapter or a rule adopted under this chapter; (2)AAengages

in

fraudulent,

unprofessional,

or

deceptive conduct in providing funeral services or merchandise to a customer; (3)AAengages in dishonest conduct, wilful conduct, or negligence in the practice of embalming or funeral directing that is likely to or does deceive, defraud, or otherwise injure the public; (4)AAcauses the execution of a document by the use of fraud, deceit, or misrepresentation;

54


(5)AAdirectly 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)AAmisappropriates 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)AAperforms 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. (b)AAA funeral director or embalmer violates this chapter if the

funeral

director

or

embalmer

states

or

implies

that

a

customer ’s concern with the cost of any funeral service or funeral merchandise is improper or indicates a lack of respect for the deceased. (c)AAA 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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2003, 78th Leg., ch. 562, Sec. 28, eff. Sept. 1, 2003.

Sec.A651.460.AAPROHIBITED PRACTICES RELATED TO FAILURE TO COMPLY WITH OTHER LEGAL REQUIREMENTS.

(a)

A person violates this

chapter if the person: (1)AAarranges for funeral services or merchandise and fails to provide a customer with a purchase agreement as required by Section 651.406; (2)AAfails

to

retain

and

make

available

to

the

commission, on request, copies of all price lists, written notices, embalming documents, and memoranda of agreement required by this

55


chapter for two years after the date of distribution or signing; (3)AAviolates this chapter, a rule adopted under this chapter,

an

order

by

the

commission

revoking,

suspending,

or

probating a license, an order assessing an administrative penalty, or an agreement to pay an administrative penalty; (4)AAallows the use of a dead human body by an embalming establishment

for

research

or

complying with Section 651.407; (5)AAis

associated

educational

purposes

without

or with

a

funeral

establishment,

whether as an employee, agent, subcontractor, assignee, owner, or otherwise, and fails to comply with this chapter or a rule adopted under this chapter. (b)AAA funeral establishment violates this chapter if: (1)AAthe funeral establishment fails to substantially comply with Section 651.351; (2)AAthe funeral establishment or a person acting on behalf of the funeral establishment violates Chapter 193 or 361, Health and Safety Code; (3)AAthe behalf

of

the

indirectly

funeral

funeral

connected

or establishment,

establishment, with

the

or

funeral

a

a

person

person

acting

on

directly

or

establishment

violates

Chapter 154, Finance Code, or a rule adopted under that chapter. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.385(c), eff. Sept. 1, 2001.

Sec. 651.461.AADEFENSE 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)AArepresents to the license holder that the person is authorized to make funeral arrangements for the deceased; and (2)AAprovides written directions to the license holder in the manner provided by Section 711.002, Health and Safety Code. Added

by

Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

Sec.

30,

eff.

September 1, 2009.

SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES AND LICENSE

56


DENIALS

Sec.A651.501.AAGENERAL (a)

DISCIPLINARY

POWERS

OF

COMMISSION.

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,

or

impose

any

combination

of

those

penalties

for

a

violation of this chapter or a rule adopted under this chapter. (b)AAWith 651.454(c),

respect

to

651.459(c),

a

violation

of

651.460(a)(5),

Section

651.453,

651.460(b)(2),

or

651.460(b)(3), the commission may not initiate action against a funeral establishment if the complaint is based on the conduct of an employee, agent, or representative of the establishment: (1)AAperformed employment;

outside

the

scope

and

authority

of

or (2)AAcontrary

to

the

instructions

of

the

funeral

establishment. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.502.AALICENSE CONVICTION.

(a)

DENIAL;

EFFECT

OF

CRIMINAL

The commission may, before a hearing or a waiver

of a right to a hearing, refuse to issue: (1)AAa license or provisional license to a person who has violated this chapter or a rule adopted under this chapter; (2)AAan

establishment

license

to

an

or

individual,

partnership, or corporation if the individual, a partner, or an officer or director of the corporation: (A)AAhas violated this chapter or a rule adopted under this chapter; (B)AApreviously

held

an

establishment

license

that was suspended or revoked; or (C)AAattempts to avoid a revocation, suspension, or license refusal by subterfuge or other evasive means. (b)AAA

person

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

57


refusal. (c)AAThe commission and the person to whom the commission refuses

to

issue

a

license

may

agree

to

the

issuance

of

a

probationary license, or the commission may, after a hearing, order that a license be issued on a probationary basis. (d)AAA person applying for a funeral director ’s or embalmer ’s license who has a criminal conviction described by Section 651.452 may

request

a

hearing

on

whether

the

conviction

prevents

the

commission from issuing a license or a provisional license.

A

hearing under this subsection must be requested before the person enters

mortuary

Section

school

651.506.

A

and

shall

decision

be

made

conducted in

a

as

hearing

required under

by

this

subsection, unless modified on appeal, is binding on the commission and on the person who requests the hearing when the person applies to the commission for the license or provisional license. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.385(d), eff. Sept. 1, 2001.

Sec.A651.5025.AAIMMEDIATE CERTAIN FELONY CONVICTIONS.

LICENSE

(a)

REVOCATION;

EFFECT

OF

The commission may revoke the

license of a license holder without a hearing if the commission determines from the information presented to it that the license holder has been convicted of a felony related to the practice of embalming, funeral directing, or another activity regulated by the commission under this chapter.

The commission shall notify the

license holder if it decides to revoke the license. (b)AAThe 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 revocation. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.28, eff. Sept. 1, 2001.

Sec.A651.5026.AATEMPORARY RESTRICTION; commission

LICENSE

DISCIPLINARY PANEL. shall

appoint

a

(a)

OR

The presiding officer of the

three-member

58

SUSPENSION

disciplinary

panel


composed of two funeral industry members and one public member of the

commission

to

determine

whether

a

director ’s

funeral

or

embalmer ’s license should be temporarily suspended or restricted. (b)AAChapter

551,

Government

Code,

does

not

prohibit

the

disciplinary panel from holding a meeting by telephone conference call if convening the panel at one location is inconvenient for any member of the panel. (c)AAThe

disciplinary

panel

shall

temporarily

suspend

or

restrict the license if the panel determines from the information presented to it with or without a hearing, that the license holder has violated this chapter or a rule adopted under this chapter and would, by the license holder ’s continued unrestricted activity, constitute a continuing threat to the public welfare. (d)AAThe suspension or restriction may be without notice or hearing if: (1)AAthe commission immediately provides notice of the suspension or restriction to the funeral director or embalmer; (2)AAproceedings for a hearing under Section 651.506 are initiated simultaneously with the suspension or restriction; and (3)AAthe hearing is held as required by Chapter 2001, Government Code, and this chapter not later than 48 hours after the suspension or restriction. (e)AAIf suspension

or

the

disciplinary

restriction

at

a

panel

affirms

hearing,

the

the

temporary

commission

shall

schedule an informal compliance meeting that meets the requirements of Section 2001.054(c), Government Code, and this chapter to be held as soon as practicable unless: (1)AAit is evident from the determination of the panel that

the

funeral

director

or

embalmer

would

be

unable

to

show

compliance at the informal meeting regarding the issues that are the basis for the temporary suspension or restriction; (2)AAan regarding

the

informal

issues

that

meeting are

the

has basis

or

already for

been

the

held

temporary

suspension or restriction. (f)AAIf the funeral director or embalmer is unable to show compliance

at

the

informal

meeting

59

under

Subsection

(e),

the


commission shall file a formal complaint under this chapter as soon as practicable. (g)AAIf the disciplinary panel does not temporarily suspend or restrict the license after considering the information presented to it at a hearing under Subsection (c), the facts that were the basis for the temporary suspension or restriction may not be the sole basis of another proceeding to temporarily suspend or restrict the funeral director ’s or embalmer ’s license. use

those

same

facts

in

a

later

The commission may

investigation

to

obtain

new

information that may be the basis for the temporary suspension or restriction

of

a

director ’s

funeral

embalmer ’s

or

license,

including facts presented to the disciplinary panel and facts known to

the

commission

at

the

time

evidence

was

presented

to

the

disciplinary panel. Added by Acts 2003, 78th Leg., ch. 562, Sec. 29, eff. Sept. 1, 2003.

Sec.A651.503.AAWARNING;

REPORT BY LICENSE HOLDER.

(a)

The

commission shall issue a written warning to a license holder if the commission: (1)AAconducts

an

investigation

that

violation of this chapter by the license holder; (2)AAdoes

not

issue

a

identifies

a

and

reprimand,

assess

an

administrative penalty, or impose any other penalty against the license holder. (b)AAThe warning must: (1)AAdescribe the identified violation;

and

(2)AAstate the date by which the license holder must file with the commission a written report that describes: (A)AAthe

measures

holder to correct the violation;

implemented

by

the

license

and

(B)AAthe dates those measures were implemented. (c)AAThe commission shall assess an administrative penalty against a license holder who fails to timely file the report. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.504.AAREPRIMAND.

The

commission

may,

after

a

hearing as provided by Section 651.506 or without a hearing if the

60


person waives a hearing, reprimand a person regulated under this chapter if the commission determines that the person violated this chapter or a rule adopted under this chapter. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.387(a), eff. Sept. 1, 2001.

Sec.A651.505.AAPROBATION.

(a)

If the commission places on

probation a person whose license has been suspended, the commission may impose conditions on the probation that are reasonable and related to the violation for which the license was suspended.

If

the commission orders probation, the commission may require the license holder to: (1)AAreport regularly to the commission on matters that are the basis of the probation; (2)AAlimit commission;

practice

to

the

areas

prescribed

by

the

or (3)AAcontinue 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. (b)AAThe commission shall notify in writing a license holder placed on probation of the probation.

The commission shall furnish

the license holder with written probationary orders that detail the actions required by the commission of the license holder during the probation period. (c)AAThe commission shall develop and adopt a system to: (1)AAmonitor the actions of a license holder during the probation period;

and

(2)AAdetermine whether the license holder has complied with the probationary orders. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.506.AADISCIPLINARY PROCEEDINGS.

(a)

A

proceeding

PROCEEDINGS; conducted

by

HEARING the

commission

relating to 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 assessed after a

61


hearing as provided by Section 651.551 and judicial review of the proceeding are governed by Chapter 2001, Government Code. (b)AAA proceeding brought under Subsection (a) shall be held before an administrative law judge employed by the State Office of Administrative Hearings. (c)AAIn the course of a proceeding, the administrative law judge may: (1)AAadminister an oath; (2)AAtake testimony; (3)AArule on a question of evidence; (4)AAmake a determination of fact; or (5)AAorder compliance with a proper discovery request. (d)AAThe

commission

shall

provide

the

administrative

law

judge with a written statement of all commission rules or policies that govern the proceeding. (e)AAAt the conclusion of the proceeding, the administrative law judge shall make a ruling on the matter accompanied by written findings of fact and conclusions of law. (f)AAThe

commission

shall

review

the

findings

of

fact,

conclusions of law, and ruling of the administrative law judge 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. (g)AAThe

commission

shall

inform

each

interested

person,

including a person filing the complaint, of the right to obtain at that person ’s cost a tape or transcript of a hearing or proceeding under this section. (h)AAA member or agent of the commission who carries out the functions of the commission and is assigned to make a decision, finding of fact, or conclusion of law in a proceeding pending before the commission may not communicate directly or indirectly with a party to the proceeding or a party ’s representative unless notice and an opportunity to participate is given to all parties to the

62


proceeding. (i)AARepealed by Acts 2001, 77th Leg., ch. 682, Sec. 3.01(a), eff. Sept. 1, 2001. (j)AARepealed by Acts 2003, 78th Leg., ch. 562, Sec. 42(4). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 3.01(a), eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 14.388, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 562, Sec. 42(4), eff. Sept. 1, 2003.

Sec.A651.5061.AAWAIVER OF HEARING BY FUNERAL OR CREMATORY ESTABLISHMENT.

A funeral or crematory establishment alleged to

have violated this chapter or a rule adopted under this chapter may waive the right to a hearing as provided by Section 651.506 by written notification to the commission. Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.388(b), eff. Sept. 1, 2001.

Amended by Acts 2003, 78th Leg., ch. 178, Sec. 3, eff.

Sept. 1, 2003.

Sec.A651.507.AAEFFECT

OF

MULTIPLE

VIOLATIONS.

(a)

The

commission or an administrative law judge employed by the State Office of Administrative Hearings shall review each disciplinary proceeding to determine whether the license holder has previously violated the same provision of this chapter or rule adopted under this chapter.AAIf it is determined that the license holder has previously violated the same provision of this chapter or rule adopted under this chapter, the commission or administrative law judge shall impose a disciplinary action that is more severe than that imposed on the previous occasion. (b)AAIn

a

disciplinary

proceeding

involving

multiple

violations of this chapter, the commission or the administrative law judge shall impose a disciplinary action that is more severe than the disciplinary action that would be imposed cumulatively for each of the individual violations. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.390(a), eff. Sept. 1, 2001. Amended by:

63


Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 31, eff. September 1, 2009.

Sec.A651.508.AAENFORCEMENT

OF

LAW

REGULATING

CREMATORIES.

For purposes of this subchapter, a person regulated under this chapter that violates Chapter 716, Health and Safety Code, violates this chapter. Added by Acts 2003, 78th Leg., ch. 178, Sec. 4, eff. Sept. 1, 2003.

SUBCHAPTER L. ADMINISTRATIVE PENALTIES

Sec.A651.551.AAASSESSMENT OF ADMINISTRATIVE PENALTY. The

commission

may

assess

an

administrative

penalty

(a)

against

a

person regulated under this chapter if the commission determines that the person has violated this chapter or a rule adopted under this chapter. (b)AAThe penalty may be assessed in the manner provided by this subchapter or after a hearing under Section 651.506.

If an

administrative penalty is assessed after a hearing under Section 651.506, the commission shall follow the procedures described in Sections 651.555 through 651.558. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.5515.AAPENALTY GUIDELINES. rule

shall

violations

adopt that

guidelines occur

under

(a)

The commission by

that

define

and

this

subchapter

summarize to

assist

the 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)AAthe most common violations; (2)AAthe penalty amounts assessed for those violations; and (3)AAthe factors used to grade each type of violation before determining the penalty amount under Section 651.552. (b)AAThe

commission

shall

consider

using

focus

groups

to

obtain business and consumer input to match appropriate penalties

64


to violations before proposing the rules under this section. (c)AAThe

commission

shall

post

the

guidelines

on

the

commission ’s Internet site. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.29, eff. Sept. 1, 2001.

Sec.A651.552.AAAMOUNT OF PENALTY.

(a)

The amount of the

administrative penalty shall be not less than $100 or more than $5,000 for each violation. (b)AAIn determining the amount of the penalty, the commission shall base its decision on: (1)AAthe seriousness of the violation; (2)AAthe

threat

the

violation

poses

to

health

and

safety; (3)AAthe history of previous violations; (4)AAthe amount necessary to deter a future violation; (5)AAefforts made to correct the violation; (6)AAthe

guidelines

adopted

under

Section

651.5515;

and (7)AAany other matter that justice requires. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.30, eff. Sept. 1, 2001.

Sec.A651.553.AAREPORT 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)AAthe facts on which the determination is based; (2)AAthat an administrative penalty is to be imposed; and (3)AAthe amount of the penalty. (b)AANot later than the 10th day after the date the report is issued, the commission shall send to the person charged with the violation: (1)AAa copy of the report; (2)AAa statement of the right of the person to a hearing relating to the alleged violation;

65


(3)AAa statement of the amount of the penalty;

and

(4)AAan explanation for any significant deviation from the penalty amount assessed for similar violations. (c)AAUntil a hearing has been held on the possible violation, the amount to be assessed 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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 682, Sec. 1.31, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 14.389(a), eff. Sept. 1, 2001.

Sec.A651.554.AAPENALTY TO BE PAID OR HEARING REQUESTED.

(a)

Not later than the 30th day after the date the preliminary report is sent, the person charged may: (1)AAmake a written request for a hearing;

or

(2)AApay the administrative penalty to the commission. (b)AAFailure to request a hearing or pay the penalty within the time provided by this section waives the right to a hearing under this chapter.

If the right to a hearing is waived, the

penalty is due not later than the 30th day after the date the preliminary report is sent. (c)AAIf

the

person

fails

to

timely

pay

the

penalty,

the

person ’s license is automatically suspended for six months. (d)AAIf the person requests a hearing, the hearing shall be conducted in the manner provided by Section 651.506. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.555.AAOPTIONS AFTER DECISION:

PAY OR APPEAL.

(a)

If an administrative penalty is assessed after a hearing conducted under Section 651.506, not later than the 30th day after the date the order is sent or a motion for rehearing is denied, the person charged shall: (1)AApay the penalty;

or

(2)AAwithout paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both. (b)AANot later than the 30-day period, a person who acts

66


under Subsection (a)(2) must, if the penalty that the person wishes to contest is greater than $5,000: (1)AApost a supersedeas bond in a form approved by the commission for the amount of the penalty;

or

(2)AAif the person cannot afford to pay the penalty or file the bond, file an affidavit in the manner required by the Texas Rules of Civil Procedure for a person who cannot afford to file security for costs. (c)AAThe commission may file a contest, as provided by the Texas

Rules

of

Civil

Procedure,

to

an

affidavit

filed

under

Subsection (b)(2). Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.389(b), eff. Sept. 1, 2001.

Sec.A651.556.AACOLLECTION OF PENALTY.

On the commission ’s

request, the attorney general shall bring a civil action to recover an administrative penalty owed under this chapter. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.557.AAREMITTANCE OF PENALTY.

If, after judicial

review, the court determines that a violation did not occur, the court shall order, when the court ’s judgment becomes final, the release of the bond if the person gave a supersedeas bond.

If the

person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.389(c), eff. Sept. 1, 2001.

Sec.A651.558.AALICENSE (a)

SUSPENSION

FOR

FAILURE

TO

COMPLY.

The commission shall suspend for six months the license of a

person

who

fails

to

pay

an

administrative

penalty

or

post

a

supersedeas bond within the time required by Section 651.555, or within a longer period agreed to by the commission. (b)AAAfter notice and a hearing, the commission may extend

67


the license suspension for a longer period or may revoke the license for failure to pay the penalty or post a supersedeas bond. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec.A651.559.AAENFORCEMENT

OF

LAW

REGULATING

CREMATORIES.

For purposes of this subchapter, a person regulated under this chapter that violates Chapter 716, Health and Safety Code, violates this chapter. Added by Acts 2003, 78th Leg., ch. 178, Sec. 5, eff. Sept. 1, 2003.

SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec.A651.601.AAINJUNCTION. name

or

an

adversely

affected

(a)

The commission in its own

party

may

bring

an

action

for

appropriate injunctive relief against a funeral establishment, an embalmer, or a funeral director who violates this chapter or a rule adopted under this chapter. (a-1)AAThe commission may bring an action for appropriate injunctive relief against a crematory establishment that violates this chapter or a rule adopted under this chapter. (b)AAIn an action brought by the commission, the commission shall be represented by the attorney general or a county or district attorney. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended

by Acts 2001, 77th Leg., ch. 1420, Sec. 14.391(a), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 178, Sec. 6, eff. Sept. 1, 2003.

Sec.A651.602.AACRIMINAL PENALTY.

(a)

A person commits an

offense if the person: (1)AAacts or holds the person out as a funeral director, embalmer,

or

provisional

license

holder

without

being

licensed

that

violates

under this chapter; (2)AAmakes

a

first

call

in

a

manner

Section 651.401; (3)AAis 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

68


(4)AAviolates adopted

under

that

Chapter

chapter,

154,

Finance

regardless

of

Code,

or

whether

a

the

rule Texas

Department of Banking or another governmental agency takes action relating to the violation. (b)AAAn offense under this section is a Class B misdemeanor. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER N. LICENSING REQUIREMENTS:

Sec.A651.651.AADEFINITIONS. (1)AA"Cremation"

CREMATORIES

In this subchapter:

means

the

irreversible

process

of

reducing human remains to bone fragments through direct flame, extreme heat, and evaporation.

The term may include pulverization,

which is the process of reducing identifiable bone fragments after cremation

and

processing

granulated

particles

by

manual

or

mechanical means. (2)AA"Crematory licensed

under

this

establishment"

subchapter

to

operate

means a

a

business

crematory

and

to

perform cremation services. (3)AARepealed by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 33(2), eff. September 1, 2009. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.32, eff. Sept. 1, 2001.

Amended by Acts 2003, 78th Leg., ch. 178, Sec. 8, eff. Sept.

1, 2003. Amended by: Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

(a)

This subchapter applies

Sec.

33(2),

eff.

September 1, 2009.

Sec.A651.652.AAAPPLICABILITY.

only to a crematory that sells goods or services related to the burial or final disposition of a body. (b) Repealed by Acts 2003, 78th Leg., R.S., Ch. 562, Sec. 44, eff. March 1, 2004. Added by Acts 2001, 77th Leg., ch. 682, Sec. 1.32, eff. Sept. 1, 2001.

Amended by Acts 2003, 78th Leg., ch. 178, Sec. 9, eff. Sept.

1, 2003;

Acts 2003, 78th Leg., ch. 562, Sec. 31, eff. Sept. 1, 2003;

Acts 2003, 78th Leg., ch. 562, Sec. 44, eff. March 1, 2004.

69


Sec.A651.656.AACREMATORY (a)

ESTABLISHMENT

LICENSE

REQUIRED.

A person may not conduct a crematory business in this state

unless the person who is the owner or operator of the crematory holds a crematory establishment license issued by the commission. (b)AAA person may not hold a crematory establishment license unless the person: (1)AAholds

a

funeral

establishment

or

commercial

embalmers establishment license; or (2)AAowns or operates a perpetual care cemetery. (c)AASubsection (b) does not apply to the owner or operator of a crematory registered with the commission on September 1, 2003. (d)AARepealed by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 33(2), eff. September 1, 2009. Added by Acts 2003, 78th Leg., ch. 178, Sec. 14, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 596, Sec. 1, eff. September 1, 2007. Acts

2009,

81st

Leg.,

R.S.,

Ch.

263,

Sec.

33(2),

eff.

September 1, 2009.

Sec.A651.657.AACREMATORY ESTABLISHMENT LICENSE APPLICATION. (a)

An applicant for a crematory establishment license must: (1)AAsubmit

a

written

license

application

to

the

commission; (2)AApay the application fee;

and

(3)AAprovide proof satisfactory to the commission that the owner or operator of the crematory is trained and certified by a reputable organization approved by the commission, such as the Cremation Association of North America. (b)AAAn application for a license or renewal of a license as a crematory establishment must include: (1)AAthe

full

business

name

of

the

crematory

establishment; (2)AAthe address of: (A)AAthe applicant if the business is owned by an individual;

70


(B)AAeach

partner

if

the

business

is

a

partnership; (C)AAeach member of the board of directors if the business is an association; (D)AAeach

or shareholder

who

owns

more

than

25

percent of the corporate stock and each officer and director if the business is a corporation; (3)AAa

statement

from

each

individual

named

under

Subdivision (2) that details: (A)AAthe individual ’s business experience for the previous 10 years; (B)AAany felony or misdemeanor conviction of the individual; (C)AAany

involvement

of

the

individual

defendant in a civil action involving allegations of fraud;

as

a

and

(D)AAa suspension by this state or any other state of any license related to funeral directing or the operation of a cemetery or crematory; (4)AAthe location of the crematory;

and

(5)AAthe date the business was established. (c)AAAn application for a license or renewal of a license must be on a form furnished by the commission. Added by Acts 2003, 78th Leg., ch. 178, Sec. 14, eff. Sept. 1, 2003.

Sec.A651.658.AACREMATORY ESTABLISHMENT LICENSE RENEWAL AND ANNUAL REPORT;

PENALTY.

(a)

To renew a crematory establishment

license, the crematory establishment must annually: (1)AAfile a report with the commission that lists the number of cremations performed at the crematory during the previous year; (2)AApay the license renewal fee; (3)AAprovide

the

information

and required

by

Section

651.657 or a written statement that the information has not changed since previously provided. (b)AAThe commission shall mail written notice to a license holder of the impending expiration of the license not later than the 30th day before the expiration date of the license.

71

The notice must


state that to renew the license, the license holder must pay the renewal fee not later than the date on which the license expires. (c)AAA license holder who fails to pay the renewal fee on or before the expiration date is subject to a late payment penalty equal to the amount of the renewal fee. (d)AAIf the license is expired for longer than 30 days, the crematory

establishment

may

not

operate

a

crematory

until

the

renewal fee and late payment penalty are paid. (e)AAThe commission shall grant an extension for filing the annual report required by this section on the written request of a crematory

establishment

exceed 60 days.

for

good

cause.

An

extension

may

not

The commission may grant additional extensions for

good cause. (f)AAThe commission shall impose a $100 late fee for each day a

crematory

establishment

fails

to

submit

the

annual

report

required by this section if an extension has not been granted. Added by Acts 2003, 78th Leg., ch. 178, Sec. 14, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 32, eff. September 1, 2009.

72


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE A. DEATH CHAPTER 671. DETERMINATION OF DEATH AND AUTOPSY REPORTS

SUBCHAPTER A. DETERMINATION OF DEATH

Sec.A671.001.AASTANDARD USED IN DETERMINING DEATH.

(a)

A

person is dead when, according to ordinary standards of medical practice,

there

is

irreversible

cessation

of

person ’s

the

spontaneous respiratory and circulatory functions. (b)AAIf artificial means of support preclude a determination that a person ’s spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease. (c)AADeath

must

be

pronounced

before

artificial

means

of

supporting a person ’s respiratory and circulatory functions are terminated. (d)AAA registered nurse or physician assistant may determine and

pronounce

a

person

dead

in

situations

other

than

those

described by Subsection (b) if permitted by written policies of a licensed health care facility, institution, or entity providing services to that person.

Those policies must include physician

assistants who are credentialed or otherwise permitted to practice at

the

facility,

institution,

or

institution,

entity

has

an

or

entity.

organized

If

nursing

the

facility,

staff

and

an

organized medical staff or medical consultant, the nursing staff and medical staff or consultant shall jointly develop and approve those policies.

The board shall adopt rules to govern policies for

facilities, institutions, or entities that do not have organized nursing staffs and organized medical staffs or medical consultants. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 201, Sec. 1, eff. Sept. 1, 1991; 1995, 74th Leg., ch. 965, Sec. 8, eff. June 16, 1995.

1

Acts


Sec.A671.002.AALIMITATION OF LIABILITY. determines

death

in

accordance

with

(a)

Section

A physician who

671.001(b)

or

a

registered nurse or physician assistant who determines death in accordance with Section 671.001(d) is not liable for civil damages or subject to criminal prosecution for the physician ’s, registered nurse ’s, or physician assistant ’s actions or the actions of others based on the determination of death. (b)AAA

person

physician ’s,

who

registered

acts

in

good

nurse ’s,

faith

or

in

reliance

on

a

assistant ’s

physician

determination of death is not liable for civil damages or subject to criminal prosecution for the person ’s actions. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 201, Sec. 2, eff. Sept. 1, 1991;

Acts

1995, 74th Leg., ch. 965, Sec. 9, eff. June 16, 1995.

SUBCHAPTER B. AUTOPSY REPORTS

Sec.A671.011.AADEFINITION.

(a)

In

this

subchapter,

"autopsy report" includes: (1)AAthe report of the postmortem examination of the body of a person, including x-rays and photographs taken during the actual postmortem examination;

and

(2)AAthe toxicology report, if any, and other reports that involve an examination of the internal organs and structures of the body after dissection. (b)AAAn reports

and

autopsy

other

report

documents

does

that

not

the

include

physician

investigative performing

the

autopsy may review to assist in determining the cause of death. Added by Acts 1999, 76th Leg., ch. 607, Sec. 1, eff. Sept. 1, 1999.

Sec.A671.012.AAFILING

AUTOPSY

REPORT.

A

designated

physician who performs an autopsy provided for by state law shall file an autopsy report with the office designated by the autopsy order not later than the 30th day after the date of request for the autopsy unless: (1)AAa required test cannot be completed within that time; and

2


(2)AAthe physician certifies when the autopsy report is filed that a required test could not be completed within the 30-day limit. Acts

1989,

71st

Leg.,

ch.

678,

Sec.

1,

eff.

Sept.

1,

1989.

Renumbered from Health & Safety Code Sec. 671.011 by Acts 1999, 76th Leg., ch. 607, Sec. 1, eff. Sept. 1, 1999.

Sec.A671.013.AARELEASE OF REPORTS;

FEES.

(a)

An autopsy

report shall be released on request to an authorized person in connection with the determination of the cause of death in relation to a workers ’ compensation or insurance claim. (b)AAA person who receives information under Subsection (a) may

disclose

the

information

to

others

only

to

the

extent

consistent with the authorized purposes for which the information was obtained. (c)AAThe commissioners court of the county having custody of an autopsy report shall establish a fee to be charged for a copy of the autopsy report as follows: (1)AAfor

written

portions

of

the

report,

an

amount

reasonably necessary to recover the cost of providing the copy, not to exceed $25;

and

(2)AAfor x-rays and photographs, the actual cost of reproduction, including the reasonable cost of overhead. (d)AAExcept as provided by Subsection (e), an autopsy report released in connection with the determination of the cause of death in relation to a workers ’ compensation claim under Subsection (a) shall be released not later than the 15th business day after the date the request is received from the authorized person. (e)AAIf the report has not been filed as provided by Section 671.012, a representative of the office designated by the autopsy order shall, not later than the 10th business day after the date of the request, notify the requesting person that the report has not been filed and of the date, to the best of the knowledge of the representative,

that

the

requesting

person

may

anticipate

receiving the report. Acts

1989,

71st

Leg.,

ch.

678,

Sec.

1,

eff.

Sept.

1,

1989.

Renumbered from Health & Safety Code Sec. 671.012 and amended by

3


Acts 1999, 76th Leg., ch. 607, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1190, Sec. 2, eff. June 18, 2005.

4


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE A. DEATH CHAPTER 673. SUDDEN INFANT DEATH SYNDROME

Sec.A673.001.AADEFINITIONS.

In this chapter:

(1)AA"Commissioner" means the commissioner of health. (2)AA"Department" means the Texas Department of Health. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A673.002.AAAUTOPSY.

(a)

The death in this state of a

child 12 months old or younger shall be immediately reported to the justice of the peace, medical examiner, or other proper official as prescribed by law if the child dies suddenly or is found dead and if the cause of death is unknown. (b)AAThe

justice

of

the

peace

or

medical

examiner

shall

inform the child ’s legal guardian or parents that an autopsy shall be performed on the child.

The state shall reimburse a county $500

for the cost of the autopsy if the primary cause of death of the child is sudden infant death syndrome.

The department shall adopt

rules that: (1)AAdefine sudden infant death syndrome;

and

(2)AAdescribe the method for obtaining reimbursement for the cost of an autopsy. (c)AAReimbursement

required

by

Subsection

(b)

of

this

section is subject to the availability of funds. (d)AAAfter the autopsy is completed, the child ’s parents or legal guardian shall be notified of the autopsy results. (e)AAThis section does not affect the duties of the justice of the peace or medical examiner prescribed by other laws. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1999, 76th Leg., ch. 785, Sec. 1, eff. Sept. 1, 1999.

Sec.A673.003.AADESIGNATION OF SUDDEN INFANT DEATH SYNDROME AS PRIMARY CAUSE OF DEATH.

Sudden infant death syndrome may be used

as a primary cause of death on a death certificate required by Chapter 193.

1


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A673.004.AAMODEL

PROGRAM.

(a)

The

department

shall

develop a model program that can be used to provide information and follow-up consultation about sudden infant death syndrome and its characteristic grief-guilt reaction.

The program should humanize

and maximize understanding and the handling of sudden infant death syndrome in this state. (b)AAThe department shall distribute the program to proper agencies,

governmental

bodies,

officials,

physicians,

nurses,

health professionals, and citizens. (c)AAThe

department

may

appoint

an

advisory

committee

provide assistance in developing the program. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

2

to


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE B. DISPOSITION OF THE BODY CHAPTER 691. ANATOMICAL BOARD OF THE STATE OF TEXAS

SUBCHAPTER A. ORGANIZATION OF ANATOMICAL BOARD OF THE STATE OF TEXAS

Sec.A691.001.AADEFINITIONS.

In this chapter:

(1)AA"Board" means the Anatomical Board of the State of Texas. (2)AA"Body" means a human corpse. (3)AA"Anatomical

specimen"

means

a

part

of

a

human

corpse. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 1, eff. Sept. 1, 2003.

Sec.A691.002.AACOMPOSITION OF BOARD.

(a)

The Anatomical

Board of the State of Texas is composed of one representative from each school or college of chiropractic, osteopathy, medicine, or dentistry incorporated in this state. (b)AAOn

March

1

of

each

odd-numbered

year,

the

chief

executive officer of each institution described by Subsection (a) shall appoint as the institution ’s representative on the board one professor

of

surgery

or

of

basic

anatomical

sciences

who

is

associated with the institution. (c)AAAppointments to the board shall be made without regard to

the

race,

creed,

sex,

religion,

or

national

origin

of

the

may

not

appointees. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.004.AALOBBYIST

RESTRICTIONS.

A

person

serve as a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person ’s activities for compensation on behalf of a profession related to the operation of the board.

1


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.005.AAREMOVAL OF BOARD MEMBER.

(a)

It is a ground

for removal from the board if a member: (1)AAdoes

not

have

at

the

time

of

appointment

the

qualifications required by Section 691.002(a) for appointment to the board; (2)AAdoes not maintain during the service on the board the qualifications required by Section 691.002(a) for appointment to the board; (3)AAviolates

a

prohibition

established

by

Section

691.004; (4)AAcannot

discharge

member ’s

the

duties

for

a

substantial portion of the term for which the member is appointed because of illness or disability;

or

(5)AAis absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during any two calendar years, unless the absence is excused by a majority of the board members. (b)AAThe validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a member of the board exists. (c)AAIf the secretary-treasurer of the board believes that a potential ground for removal exists, the secretary-treasurer shall notify the chairman of the board of that ground.

The chairman shall

notify the chief executive officer of the institution represented by that member that a potential ground for removal exists. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.006.AAREIMBURSEMENT. entitled

to

compensation

but

is

A

board

entitled

to

member

is

reimbursement

not for

actual travel expenses incurred in serving on the board. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.007.AAMINUTES;

RECORDS.

(a)

The board may adopt

rules for its administration. (b)AAThe

board

shall

keep

2

complete

minutes

of

its


transactions. (c)AAThe board shall keep identification records of each body donated

to

the

board

and

of

each

body

or

anatomical

specimen

distributed by the board. (d)AAA board member or a district or county attorney may at any time inspect minutes or records required under this section. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 2, eff. Sept. 1, 2003.

Sec.A691.008.AAFEES;

REPORTS;

AUDITS.

(a)

The board may

set and collect reasonable and necessary fees for receiving and distributing bodies and anatomical specimens. (b)AAThe secretary-treasurer of the board may deposit fees collected under this section in local accounts outside the state treasury. (c)AAThe board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed

written

report

accounting

for

all

funds

disbursed by the board during the preceding year.

received

and

The form of the

annual report and the reporting time are as provided by the General Appropriations Act. (d)AAThe financial transactions of the board are subject to audit

by

the

state

auditor

in

accordance

with

Chapter

321,

Government Code. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 14, Sec. 210, eff. Sept. 1, 1991;

Acts

2003, 78th Leg., ch. 948, Sec. 3, eff. Sept. 1, 2003.

Sec.A691.009.AAINFORMATION TO MEMBERS AND EMPLOYEES. board

shall

provide

to

its

members

and

employees,

as

often

The as

necessary, information regarding their qualifications under this chapter and their responsibilities under applicable laws relating to standards of conduct for state officers or employees. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.010.AAPUBLIC COMPLAINTS.

(a)

INFORMATION

AND

PARTICIPATION;

The board shall prepare information of public

3


interest describing the functions of the board and the board ’s procedures by which complaints are filed with and resolved by the board.

The board shall make the information available to the public

and appropriate state agencies. (b)AAThe

board

by

rule

shall

establish

methods

by

which

service recipients can be notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints

to

the

board.

The

board

may

provide

for

that

notification by including the information on each written contract relating to bodies willed or donated to an entity regulated by the board or authorized by the board to receive bodies. (c)AAThe board shall keep an information file about each complaint filed with the board relating to its functions. If a written complaint is filed with the board relating to a person or an entity regulated by the board, the board, at least as frequently as quarterly

and

until

final

disposition

of

the

complaint,

shall

notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (d)AAThe

board shall

develop

and

implement

policies

that

provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

SUBCHAPTER B. DONATION AND DISTRIBUTION OF BODIES AND ANATOMICAL SPECIMENS

Sec.A691.021.AADEFINITION.

In this subchapter, "political

subdivision" means a municipality, county, or special district. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.022.AAGENERAL distribute

bodies

and

DUTIES.

anatomical

(a) specimens

The to

board

shall

institutions

authorized to receive them. (b)AAThe board shall adopt rules to ensure that each body and anatomical specimen in the custody of the board or an institution represented on the board is treated with respect.

4


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 5, eff. Sept. 1, 2003.

Sec.A691.023.AADUTY TO DELIVER CERTAIN BODIES TO BOARD. An

officer,

political

employee,

or

representative

subdivision,

or

of

an

of

the

institution

state,

having

(a)

of

charge

a or

control of a body not claimed for burial or a body required to be buried at public expense shall: (1)AAnotify the board or the board ’s representative of the

body ’s

existence

when

the

body

comes

into

the

person ’s

possession, charge, or control if notified in writing to do so by the board or the board ’s representative; (2)AAdeliver the body in accordance with the direction of the board;

and

(3)AAallow the board, the board ’s representative, or a physician designated by the board who complies with this chapter to remove the body to be used for the advancement of medical science. (b)AAIf the board does not require a political subdivision or agency of the political subdivision to deliver a body under this section,

the

political

subdivision

shall

pay

all

costs

of

preparation for burial, including costs of embalming. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.024.AAPERSONS WHO MAY CLAIM BODY FOR BURIAL. An

officer,

employee,

or

representative

of

the

state,

(a) of

a

political subdivision, or of an institution is not required to give notice or deliver a body as required by Section 691.023 if the body is claimed for burial. (b)AAA relative, bona fide friend, or representative of an organization to which the deceased belonged may claim the body for burial.

The person in charge of the body shall release the body to

the claimant without requiring payment when the person is satisfied that the claimed relationship exists. (c)AAA

claimant

alleging

to

be

a

bona

fide

friend

or

a

representative of an organization to which the deceased belonged must present a written statement of the relationship under which the

claimant

qualifies

as

a

bona

5

fide

friend

or

organization


representative. (d)AAFor purposes of this section, a bona fide friend means a person who is like one of the family, and does not include: (1)AAan ordinary acquaintance; (2)AAan

officer,

employee,

or

representative

of

the

state, of a political subdivision, or of an institution having charge of a body not claimed for burial or a body required to be buried at public expense; (3)AAan employee of an entity listed in Subdivision (2) with which the deceased was associated;

or

(4)AAa patient, inmate, or ward of an institution with which the deceased was associated. (e)AAA person covered by Subsection (d) may qualify as a bona fide friend if the friendship existed before the deceased entered the institution. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.025.AAPROCEDURE AFTER DEATH. claimed

for

burial

immediately

after

(a)

death,

If a body is not

the

body

shall

be

embalmed within 24 hours. (b)AAFor 72 hours after death, the person in charge of the institution having charge or control of the body shall make due effort to find a relative of the deceased and notify the relative of the death.

If the person is not able to find a relative, the person

shall file with the county clerk an affidavit stating that the person has made a diligent inquiry to find a relative and stating the inquiry the person made. (c)AAA body that is not claimed for burial within 48 hours after a relative receives notification shall be delivered as soon as possible to the board or the board ’s representative. (d)AAA relative of the deceased may claim the body within 60 days after the body has been delivered to an institution or other entity authorized to receive the body.

The body shall be released

without charge. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.026.AABODY OF TRAVELER.

6

If an unclaimed body is the


body of a traveler who died suddenly, the board shall direct the institution receiving the body to retain the body for six months for purposes of identification. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.027.AAAUTOPSY.

Only the board may grant permission

to perform an autopsy on an unclaimed body.

The board may grant

permission after receiving a specific request for an autopsy that shows sufficient evidence of medical urgency. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.028.AADONATION OF BODY BY WRITTEN INSTRUMENT.

(a)

An adult living in this state who is of sound mind may donate his body by will or other written instrument to the board, a medical or dental school, or another donee authorized by the board, to be used for the advancement of medical science. (b)AATo be effective, the donor must sign the will or other written instrument and it must be witnessed by two adults.

The

donor is not required to use a particular form or particular words in

making

the

donation,

but

the

will

or

other

instrument

must

clearly convey the donor ’s intent. (c)AAAppointment

of

an

administrator

or

executor

or

acquisition of a court order is not necessary before the body may be delivered under this chapter. (d)AAA donor may revoke a donation made under this section by executing a written instrument in a manner similar to the original donation. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 6, eff. Sept. 1, 2003.

Sec.A691.029.AAAUTHORITY TO ACCEPT BODIES FROM OUTSIDE THE STATE.

The board may receive a body transported to the board from

outside this state. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A691.030.AABOARD ’S AUTHORITY TO DISTRIBUTE BODIES AND ANATOMICAL SPECIMENS.

(a)

The board or the board ’s representative

7


shall distribute bodies donated to it and may redistribute bodies donated to medical or dental schools or other donees authorized by the board to schools and colleges of chiropractic, osteopathy, medicine, or dentistry incorporated in this state, to physicians, and to other persons as provided by this section. (b)AAIn

making

the

distribution,

the

board

shall

give

priority to the schools and colleges that need bodies for lectures and demonstrations. (c)AAIf the board has remaining bodies, the board or the board ’s

representative

shall

distribute

or

redistribute

those

bodies to the schools and colleges proportionately and equitably according

to

the

number

of

students

in

each

school

or

college

receiving instruction or demonstration in normal or morbid anatomy and operative surgery.

The dean of each school or college shall

certify that number to the board when required by the board. (d)AAThe board may transport a body or anatomical specimen to an authorized recipient in another state if the board determines that the supply of bodies or anatomical specimens in this state exceeds the need for bodies or anatomical specimens in this state and if: (1)AAthe deceased donated his body in compliance with Section 691.028 and at the time of the donation authorized the board to transport the body outside this state; or (2)AAthe body was donated in compliance with Chapter 692A and the person authorized to make the donation under Section 692A.009 authorized the board to transport the body outside this state. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 7, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 3, eff. September 1, 2009.

Sec.A691.031.AATRANSPORTATION OF BODIES;

RECORDS.

(a)

The

board shall adopt rules to ensure that each body or anatomical specimen

received

or

distributed

transported.

8

by

the

board

is

properly


(b)AAThe bodies

or

board

may

anatomical

employ

specimens

a

public

received

carrier

or

to

transport

distributed

by

the

board. (c)AAEach

body

or

anatomical

specimen

shall

be

carefully

deposited and transported with the least possible public display. (d)AAA person or institution who sends a body or anatomical specimen

under

this

chapter

shall

keep

on

permanent

file

a

description of the body or anatomical specimen that includes the deceased ’s name, if known, color, sex, age, place and supposed cause

of

death,

and

any

other

information

available

for

identification of the body or anatomical specimen, such as the existence of scars or deformities. (e)AAThe sender shall mail or otherwise safely convey to the person

or

institution

to

whom

the

body

description required by Subsection (d).

is

sent

a

copy

of

the

The person or institution

receiving the body or anatomical specimen shall immediately and safely transmit to the sender a receipt containing the full terms of the description furnished by the sender. (f)AAThe

sender

and

receiver

of

each

body

or

anatomical

specimen shall file the records required under this section in accordance with board rules so that the board or a district or county attorney may inspect the records at any time. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 8, eff. Sept. 1, 2003.

Sec.A691.032.AACOSTS

OF

DISTRIBUTION.

A

person

or

institution receiving a body or anatomical specimen under this chapter

shall

pay

in

a

manner

specified

by

the

board,

or

as

otherwise agreed on, all costs incurred in distributing the body or anatomical specimen so that the state, a county, a municipality, or an officer, employee, or representative of the state, a county, or a municipality does not incur any expense. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 9, eff. Sept. 1, 2003.

Sec.A691.033.AAUSE OF BODIES AND ANATOMICAL SPECIMENS.

(a)

To further medical science, a school, college, or person designated

9


by the board may dissect, operate on, examine, and experiment on a body or anatomical specimen distributed under this chapter. (b)AAA school, college, or person shall keep a permanent record of each body or anatomical specimen received from the board or the board ’s representative.

The record must be sufficient to

identify the body or anatomical specimen and may be inspected by the board or the board ’s representative. (c)AAA law relating to the prevention of mutilation of a body does

not

apply

to

a

dissection,

operation,

examination,

or

experiment performed under this section. (d)AATo aid prosecutions under Section 42.08, Penal Code, the board shall adopt rules that clearly state the activities that are authorized by the board in relation to the dissection of a body. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1995, 74th Leg., ch. 76, Sec. 14.42, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 948, Sec. 10, eff. Sept. 1, 2003.

Sec.A691.034.AAREGULATION OF PERSONS AND INSTITUTIONS USING BODIES AND ANATOMICAL SPECIMENS.

(a)

The board shall inspect and

may approve institutions for the receipt and use of bodies and anatomical specimens under this chapter. (b)AAThe board may investigate a person or institution if the board has reason to believe that the person or institution has improperly used a body or anatomical specimen. (c)AAThe institution ’s

board

may

authorization

suspend to

or

receive

revoke and

a

person ’s

dissect

bodies

or or

anatomical specimens if the board determines that the person or institution has improperly used a body or anatomical specimen. (d)AAA person or institution is entitled to a hearing before the board or a hearing examiner appointed by the board before the board may revoke the person ’s or institution ’s authorization to receive and dissect bodies or anatomical specimens. shall

make

all

final

decisions

to

suspend

or

The board revoke

an

authorization. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 948, Sec. 11, eff. Sept. 1, 2003.

10


Sec.A691.035.AACRIMINAL PENALTY.

(a)

A person commits an

offense if the person has a duty imposed under this chapter and refuses, neglects, or omits to perform the duty as required by this chapter. (b)AAAn offense under this section is punishable by a fine of not less than $100 or more than $500. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

11


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE B. DISPOSITION OF THE BODY CHAPTER 692. TEXAS ANATOMICAL GIFT ACT Text of chapter as repealed by Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 11 effective September 1, 2009

Sec.A692.003.AAMANNER OF EXECUTING GIFT OF OWN BODY. A Without reference to the amendment of this subsection, this subsection was repealed by Acts 2009, 81st Leg., R.S., Ch.

186,

Sec. 11(2), eff. Sept. 1, 2009. A (d)AAA gift made by a document other than a will is effective on the death of the donor.AAThe document may be a card designed to be carried by the donor or another record signed by the donor or other person making the gift.AAA statement or symbol in an online donor registry and authorized by the donor indicating the donor has made an anatomical gift may also serve as a document making a gift.AATo be effective, the document must be signed by the donor in the

presence

of

two

witnesses

except

as

otherwise

provided

by

Subchapter Q, Chapter 521, Transportation Code, this subsection, or other law.AAIf the donor cannot sign the document, a person may sign the document for the donor at the donor ’s direction and in the presence of the donor and two witnesses.AAThe witnesses to the signing of a document under this subsection must sign the document in the presence of the donor.AADelivery of the document during the donor ’s online

lifetime donation

is

not

necessary

registration

does

to not

make

the

require

gift the

valid.AAAn consent

of

another person or require two witnesses.AAThe online registration constitutes a legal document under this chapter and remains binding after the donor ’s death. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 291, Sec. 2, eff. Sept. 1, 1991;

Acts

1997, 75th Leg., ch. 165, Sec. 30.211, eff. Sept. 1, 1997;

Acts

1997, 75th Leg., ch. 225, Sec. 3, eff. Sept. 1, 1997. Amended by:

1


Acts 2009, 81st Leg., R.S., Ch. 831, Sec. 2, eff. September 1, 2009.

2


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE B. DISPOSITION OF THE BODY CHAPTER 693. REMOVAL OF BODY PARTS, BODY TISSUE, AND CORNEAL TISSUE

SUBCHAPTER A. REMOVAL OF BODY PARTS OR TISSUE

Sec.A693.001.AADEFINITION.

In this subchapter, "visceral

organ" means the heart, kidney, liver, or other organ or tissue that requires a patient support system to maintain the viability of the organ or tissue. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A693.002.AAREMOVAL OF BODY PART OR TISSUE FROM DECEDENT WHO DIED UNDER CIRCUMSTANCES REQUIRING AN INQUEST.

(a)

request

from

as

defined

Section

692A.002,

of

the

an

organ the

procurement medical

organization,

examiner,

justice

(1)AAOn a by

peace,

county judge, or physician designated by the justice of the peace or county judge may permit the removal of organs from a decedent who died

under

examiner,

circumstances

justice

of

the

requiring

an

peace,

county

or

inquest

by

judge

the

if

medical

consent

is

obtained pursuant to Sections 692A.005 through 692A.010 or Section 693.003. (2)AAIf

no

autopsy

is

required,

the

organs

to

be

transplanted shall be released in a timely manner to the organ procurement

organization,

as

defined

by

Section

692A.002,

for

removal and transplantation. (3)AAIf

an

examiner,

justice

of

physician

determines

interfere

with

the

autopsy the

that

is

peace, the

subsequent

required county

and

judge,

removal

of

the

course

of

an

the or

medical

designated

organs

will

investigation

not or

autopsy, the organs shall be released in a timely manner for removal and transplantation.

The autopsy will be performed in a timely

manner following the removal of the organs. (4)AAIf the medical examiner is considering withholding one or more organs of a potential donor for any reason, the medical examiner shall be present during the removal of the organs.AAIn

1


such case, the medical examiner may request a biopsy of those organs or deny removal of the anatomical gift.AAIf the medical examiner denies removal of the anatomical gift, the medical examiner shall explain

in

writing

the

reasons

for

the

denial.AAThe

medical

examiner shall provide the explanation to: (A)AAthe organ procurement organization; and (B)AAany

person listed

in

Section 692A.009

who

consented to the removal. (5)AAIf the autopsy is not being performed by a medical examiner and one or more organs may be withheld, the justice of the peace,

county

judge,

or

designated

physician

shall

be

present

during the removal of the organs and may request the biopsy or deny removal of the anatomical gift.

If removal of the anatomical gift

is denied, the justice of the peace, county judge, or physician shall

provide

the

written

explanation

required

by

Subdivisions

(4)(A) and (B). (6)AAIf,

in

performing

the

duties

required

by

this

subsection, the medical examiner or, in those cases in which an autopsy is not performed by a medical examiner, the justice of the peace, county judge, or designated physician is required to be present at the hospital to examine the decedent prior to removal of the

organs

qualified

or

during

organ

the

procedure

procurement

to

remove

organization

the

shall

organs, on

the

request

reimburse the county or the entity designated by the county for the actual costs incurred in performing such duties, not to exceed $1,000. Such reimbursements shall be deposited in the general fund of the county.

The payment shall be applied to the additional costs

incurred by the office of the medical examiner, justice of the peace, or county judge in performing such duties, including the cost

of

payment

providing shall

be

coverage used

to

beyond

regular

facilitate

the

business

timely

hours.

procurement

The of

organs in a manner consistent with the preservation of the organs for the purposes of transplantation. (7)AAAt the request of the medical examiner or, in those cases in which an autopsy is not performed by a medical examiner, the justice of the peace, county judge, or designated physician, the health care professional removing organs from a decedent who

2


died under circumstances requiring an inquest shall file with the medical examiner, justice of the peace, or county judge a report detailing

the

condition

of

the

organs

removed

and

their

relationship, if any, to the cause of death. (b)AAOn a request from a tissue bank, as defined by Section 692A.002, the medical examiner may permit the removal of tissue believed to be clinically usable for transplants or other therapy or treatment from a decedent who died under circumstances requiring an inquest if consent is obtained pursuant to Sections 692A.005 through 692A.010 or Section 693.003 or, if consent is not required by

those

sections,

no

objection

by

a

person

listed

in

Section

692A.009 is known by the medical examiner.AAIf the medical examiner denies removal of the tissue, the medical examiner shall explain in writing the reasons for the denial.AAThe medical examiner shall provide the explanation to: (1)AAthe tissue bank;AAand (2)AAthe

person

listed

in

Section

692A.009

who

consented to the removal. (c)AAIf

the

autopsy

is

not

being

performed

by

a

medical

examiner, the justice of the peace, county judge, or designated physician may permit the removal of tissue in the same manner as a medical

examiner

under

Subsection

(b).

If

removal

of

the

anatomical gift is denied, the justice of the peace, county judge, or physician shall provide the written explanation required by Subsections (b)(1) and (2). Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1995, 74th Leg., ch. 523, Sec. 1, eff. June 13, 1995;

Acts

2003, 78th Leg., ch. 1220, Sec. 1, eff. July 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 4, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 5, eff. September 1, 2009.

Sec.

693.003.AACONSENT

CIRCUMSTANCES. identified

and

NOT

REQUIRED

IN

CERTAIN

If a person listed in Section 692A.009 cannot be contacted

within

3

four

hours

after

death

is


pronounced

and

the

county

court

determines

that

no

reasonable

likelihood exists that a person can be identified and contacted during

the

four-hour

period,

the

county

court

may

permit

the

removal of a nonvisceral organ or tissue. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 6, eff. September 1, 2009.

Sec. 693.005.AAIMMUNITY FROM DAMAGES IN CIVIL ACTION.

In a

civil action brought by a person listed in Section 692A.009 who did not object before the removal of tissue or a body part specified by Section 693.002, a medical examiner, justice of the peace, county judge,

medical

facility,

physician

acting

on

permission

of

a

medical examiner, justice of the peace, or county judge, or person assisting a physician is not liable for damages on a theory of civil recovery based on a contention that the plaintiff ’s consent was required before the body part or tissue could be removed. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 2003, 78th Leg., ch. 1220, Sec. 1, eff. July 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 7, eff. September 1, 2009.

Sec. 693.006.AAREMOVAL OF CORNEAL TISSUE.

On a request from

an eye bank, as defined in Section 692A.002, the medical examiner, justice of the peace, county judge, or physician designated by the justice of the peace or county judge may permit the removal of corneal tissue subject to the same provisions that apply to removal of a visceral organ on the request of a procurement organization under this subchapter.AAThe provisions of Chapter 692A relating to immunity and consent apply to the removal of the corneal tissue. Added by Acts 2005, 79th Leg., Ch. 1069, Sec. 2, eff. September 1, 2005. Amended by: Acts 2009, 81st Leg., R.S., Ch. 186, Sec. 8, eff. September 1, 2009.

4


SUBCHAPTER C. EYE ENUCLEATION

Sec.A693.021.AADEFINITION.

In

this

chapter,

"ophthalmologist" means a person licensed to practice medicine who specializes in treating eye diseases. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A693.022.AAPERSONS WHO MAY ENUCLEATE EYE AS ANATOMICAL GIFT.

Only the following persons may enucleate an eye that is an

anatomical gift: (1)AAa licensed physician; (2)AAa licensed doctor of dental surgery or medical dentistry; (3)AAa licensed embalmer;

or

(4)AAa technician supervised by a physician. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A693.023.AAEYE ENUCLEATION COURSE.

Each person, other

than a licensed physician, who performs an eye enucleation must complete a course in eye enucleation taught by an ophthalmologist and must possess a certificate showing that the course has been completed. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A693.024.AAREQUISITES OF EYE ENUCLEATION COURSE. course

in

eye

enucleation

prescribed

by

Section

693.023

The must

include instruction in: (1)AAthe anatomy and physiology of the eye; (2)AAmaintaining a sterile field during the procedure; (3)AAuse of the appropriate instruments;

and

(4)AAprocedures for the sterile removal of the corneal button and the preservation of it in a preservative fluid. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

5


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE B. DISPOSITION OF THE BODY CHAPTER 694. BURIAL

Sec.A694.001.AADUTIES OF TEXAS DEPARTMENT OF HEALTH. Texas

Department

of

Health

shall

regulate

the

The

disposal,

transportation, interment, and disinterment of dead bodies to the extent

reasonable

and

necessary

to

protect

public

health

and

safety. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec.A694.002.AADUTY

OF

COMMISSIONERS

DISPOSITION OF BODY OF DECEASED PAUPERS.

COURT

(a)

CONCERNING

The commissioners

court of each county shall provide for the disposition of the body of a deceased pauper.

The commissioners court may adopt rules to

implement this section. (b)AAThe commissioners court shall consider any information, including

the

religious

affiliation

of

the

deceased

pauper,

provided by a person listed in Section 711.002(a). (c)AAIf

a

county

discovers

cash

in

the

possession

of

a

deceased pauper, a county may use the cash to pay the actual costs incurred by the county in disposing of the pauper ’s body. (d)AAIf any cash remains after the county has paid the costs of disposing of the body under Subsection (c), the county shall place the cash in trust.AAA person having a claim to the money in trust must exercise the right to collect the money not later than the first anniversary of the date of disposition of the pauper ’s body. (e)AAA county may create a fund to be used by the county to pay

the

paupers

costs and

incurred

in

disposing

administering

the

of

the

county ’s

bodies body

of

deceased

disposition

activities.AAIf money placed in a trust under Subsection (d) is not claimed by the first anniversary of the date of disposition of the pauper ’s body, the county may transfer the money to the fund created under this subsection. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

1

Amended


by Acts 1991, 72nd Leg., ch. 14, Sec. 211, eff. Sept. 1, 1991;

Acts

1999, 76th Leg., ch. 929, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2009, 81st Leg., R.S., Ch. 404, Sec. 1, eff. June 19, 2009. Acts 2009, 81st Leg., R.S., Ch. 480, Sec. 1, eff. June 19, 2009.

Sec.A694.003.AAPOWER OF GOVERNING BODY OF TYPE A GENERAL-LAW MUNICIPALITY CONCERNING BURIAL.

The governing body of a Type A

general-law municipality may regulate the burial of the dead. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

2


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE B. DISPOSITION OF THE BODY CHAPTER 695.

IN-CASKET IDENTIFICATION

Sec. 695.001. DEFINITIONS. In this chapter: (1) "Casket" means a container used to hold the remains of a deceased person. (2) "Commission" means the Texas Funeral Service Commission. Added by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 2, eff. September 1, 2009. Added by Acts 2009, 81st Leg., R.S., Ch. 1280, Sec. 3.03, eff. September 1, 2009.

Sec. 695.002. IDENTIFICATION OF DECEASED PERSON. The commission shall ensure a casket contains identification of the deceased person, including the person's name, date of birth, and date of death. Added by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 2, eff. September 1, 2009. Added by Acts 2009, 81st Leg., R.S., Ch. 1280, Sec. 3.03, eff. September 1, 2009.

Sec. 695.003. RULES. to enforce this chapter.

The commission may adopt rules

Added by Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 2, eff. September 1, 2009. Added by Acts 2009, 81st Leg., R.S., Ch. 1280, Sec. 3.03, eff. September 1, 2009.


HEALTH AND SAFETY CODE TITLE 8. DEATH AND DISPOSITION OF THE BODY SUBTITLE C. CEMETERIES AND CREMATORIES CHAPTER 711. GENERAL PROVISIONS RELATING TO CEMETERIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec.A711.001.AADEFINITIONS.

In this chapter:

(1)AA"Burial park" means a tract of land that is used or intended to be used for interment in graves. (1-a)AA"Campus" means the area: (A)AAwithin the boundaries of one or more adjacent tracts, parcels, or lots under common ownership; (B)AAon which the principal church building and related structures and facilities of an organized religious society or sect are located; and (C)AAthat may be subject to one or more easements for street, utility, or pipeline purposes. (2)AA"Cemetery" means a place that is used or intended to be used for interment, and includes a graveyard, burial park, mausoleum, or any other area containing one or more graves. (2-a)AA"Cemetery

element"

means

a

grave,

memorial,

crypt, mausoleum, columbarium, or other item that is associated with the cemetery, including a fence, road, curb, wall, path, gate, or bench and the lighting and landscaping. (3)AA"Cemetery organization" means: (A)AAan unincorporated association of plot owners not

operated

for

profit

that

is

authorized

by

its

articles

association to conduct a business for cemetery purposes;

of

or

(B)AAa corporation, either for profit or not for profit, that is authorized by its articles of incorporation to conduct a business for cemetery purposes. (4)AA"Cemetery purpose" means a purpose necessary or incidental

to

establishing,

maintaining,

managing,

operating,

improving, or conducting a cemetery, interring remains, or caring for, preserving, and embellishing cemetery property. (5)AA"Columbarium"

means

1

a

durable,

fireproof


structure,

or

a

room

or

other

space

in

a

durable,

fireproof

structure, containing niches and used or intended to be used to contain cremated remains. (6)AA"Cremated remaining

after

the

remains"

cremation

means

process,

the

which

bone may

fragments

include

the

residue of any foreign materials that were cremated with the human remains. (7)AA"Cremation"

means

the

irreversible

process

of

reducing human remains to bone fragments through extreme heat and evaporation, which may include the processing or the pulverization of bone fragments. (8)AA"Crematory" means a structure containing a furnace used or intended to be used for the cremation of human remains. (9)AA"Crematory

and

columbarium"

means

a

durable,

fireproof structure containing both a crematory and columbarium. (10)AA"Crypt"

means

a

chamber

in

a

mausoleum

of

sufficient size to inter human remains. (11)AA"Directors"

means

the

governing

body

of

a

cemetery organization. (12)AA"Entombment" means interment in a crypt. (13)AA"Funeral establishment" means a place of business used in the care and preparation for interment or transportation of human remains, or any place where one or more persons, either as sole owner, in copartnership, or through corporate status, are engaged or represent themselves to be engaged in the business of embalming or funeral directing. (14)AA"Grave" means a space of ground that contains interred human remains or is in a burial park and that is used or intended to be used for interment of human remains in the ground. (15)AA"Human remains" means the body of a decedent. (16)AA"Interment" means the permanent disposition of remains by entombment, burial, or placement in a niche. (17)AA"Interment right" means the right to inter the remains of one decedent in a plot. (18)AA"Inurnment"

means

the

placement

of

cremated

remains in an urn. (19)AA"Lawn

crypt"

means

2

a

subsurface

receptacle


installed in multiple units for ground burial of human remains. (20)AA"Mausoleum" means a durable, fireproof structure used or intended to be used for entombment. (20-a)AA"Memorial"

means

a

headstone,

tombstone,

gravestone, monument, or other marker denoting a grave. (21)AA"Niche" means a space in a columbarium used or intended to be used for the placement of cremated remains in an urn or other container. (22)AA"Nonperpetual

care

cemetery"

means

a

cemetery

that is not a perpetual care cemetery. (23)AA"Perpetual care" or "endowment care" means the maintenance, repair, and care of all places in the cemetery. (24)AA"Perpetual

care

cemetery"

or

"endowment

care

cemetery" means a cemetery for the benefit of which a perpetual care trust fund is established as provided by Chapter 712. (25)AA"Plot"

means

space

in

a

cemetery

owned

by

an

individual or organization that is used or intended to be used for interment,

including

a

grave

or

adjoining

graves,

a

crypt

or

adjoining crypts, a lawn crypt or adjoining lawn crypts, or a niche or adjoining niches. (26)AA"Plot owner" means a person: (A)AAin whose name a plot is listed in a cemetery organization ’s sepulture;

office

as

the

owner

of

the

exclusive

right

of

or (B)AAwho holds, from a cemetery organization, a

certificate of ownership or other instrument of conveyance of the exclusive

right

of

sepulture

in

a

particular

plot

in

the

organization ’s cemetery. (27)AA"Prepaid

funeral

contract"

means

a

written

contract providing for prearranged or prepaid funeral services or funeral merchandise. (28)AA"Remains" means either human remains or cremated remains. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 14, Sec. 212, eff. Sept. 1, 1991; 1993, 73rd Leg., ch. 634, Sec. 1, eff. Sept. 1, 1993; 75th Leg., ch. 1389, Sec. 3, eff. Sept. 1, 1997.

3

Acts

Acts 1997,


Amended by: Acts 2005, 79th Leg., Ch. 106, Sec. 1, eff. September 1, 2005. Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 1, eff. September 1, 2009.

Sec.A711.002.AADISPOSITION OF REMAINS; Unless

a

decedent

has

left

directions

DUTY TO INTER.

in

writing

for

(a) the

disposition of the decedent ’s remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent ’s remains, shall inter the remains, and are liable for the reasonable cost of interment: (1)AAthe

person

designated

in

a

written

instrument

signed by the decedent; (2)AAthe decedent ’s surviving spouse; (3)AAany

one

of

the

decedent ’s

surviving

adult

children; (4)AAeither one of the decedent ’s surviving parents; (5)AAany siblings;

one

of

the

decedent ’s

surviving

adult

or (6)AAany adult person in the next degree of kinship in

the order named by law to inherit the estate of the decedent. (b)AAThe written instrument referred to in Subsection (a)(1) shall be in substantially the following form: APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS I,A_____________________________________________________, A A A A(your name and address) being of sound mind, willfully and voluntarily make known my desire that,

upon

my

death,

the

disposition

of

my

remains

shall

be

controlled byA__________________________________________________ (name of agent) in accordance with Section 711.002 of the Health and Safety Code and, with respect to that subject only, I hereby appoint such person as my agent (attorney-in-fact). All

decisions

made

by

my

agent

with

respect

to

the

disposition of my remains, including cremation, shall be binding. SPECIAL DIRECTIONS: Set forth below are any special directions limiting the power

4


granted to my agent: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ AGENT: Name:A____________________________________________________ Address:A_________________________________________________ Telephone Number:A________________________________________ Acceptance of Appointment:A________________________________ (signature of agent) Date of Signature:A________________________________________ SUCCESSORS: If

my

agent

dies,

becomes

legally

disabled,

resigns,

or

refuses to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent (attorney-in-fact) to control the disposition of my remains as authorized by this document: 1.AAFirst Successor Name:A____________________________________________________ Address:A_________________________________________________ Telephone Number:A________________________________________ Acceptance of Appointment:A________________________________ (signature of first successor) Date of Signature:A________________________________________ 2.AASecond Successor Name:A____________________________________________________ Address:A_________________________________________________ Telephone Number:A________________________________________ Acceptance of Appointment:A________________________________ (signature of second successor) Date of Signature:A________________________________________ DURATION: This appointment becomes effective upon my death. PRIOR APPOINTMENTS REVOKED: I

hereby

revoke

any

prior

appointment

control the disposition of my remains. 5

of

any

person

to


RELIANCE: I

hereby

agree

that

any

cemetery

organization,

business

operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document may act under it.

Any modification or revocation of this

document is not effective as to any such party until that party receives actual notice of the modification or revocation. party

shall

be

liable

because

of

reliance

on

a

copy

No such of

this

ACCEPTING

THIS

document. ASSUMPTION: THE

AGENT,

AND

EACH

SUCCESSOR

AGENT,

BY

APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND SAFETY CODE. Signed this ________ day of _____________________, 19___. __________________________ (your signature) State of ____________________ County of ___________________ This document was acknowledged before me on ______ (date) by _____________________________ (name of principal). _________________________________ (signature of notarial officer) (Seal, if any, of notary) _________________________________ (printed name) My commission expires: _________________________________ (c)AAA Subsection

written

(a)(1)

substantially

with

if

instrument the

is

wording

Subsection

(b),

legally

of the

the

sufficient

instrument

instrument

is

under

complies properly

completed, the instrument is signed by the decedent, the agent, and each

successor

acknowledged.

agent,

and

the

signature

of

the

decedent

is

Such written instrument may be modified or revoked

only by a subsequent written instrument that complies with this subsection. (d)AAA person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person

6


in a priority listed before the person. (e)AAIf

there

is

no

person

with

the

duty

to

inter

under

Subsection (a) and: (1)AAan

inquest

is

held,

inquest shall inter the remains;

the

person

conducting

the

and

(2)AAan inquest is not held, the county in which the death occurred shall inter the remains. (f)AAA

person

who

represents

that

the

person

knows

the

identity of a decedent and, in order to procure the disposition, including cremation, of the decedent ’s remains, signs an order or statement, other than a death certificate, warrants the identity of the decedent and is liable for all damages that result, directly or indirectly, from that warrant. (g)AAA

person

may

provide

written

directions

for

the

disposition, including cremation, of the person ’s remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person.

The directions may govern the

inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and

in

which

plot

the

decedent

is

subsequently

interred.

The

directions may be modified or revoked only by a subsequent writing signed

and

acknowledged

by

such

person.

The

person

otherwise

entitled to control the disposition of a decedent ’s remains under this

section

shall

faithfully

carry

out

the

directions

of

the

decedent to the extent that the decedent ’s estate or the person controlling the disposition are financially able to do so. (h)AAIf the directions are in a will, they shall be carried out immediately without the necessity of probate.

If the will is

not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith. (i)AAA crematory

or

embalmer,

or

cemetery

organization,

columbarium a

funeral

or

both,

a a

establishment

business funeral

shall

not

operating

director be

or

liable

a an for

carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent ’s remains.

7


(j)AAIn the absence of evidence of a contrary intent, it is presumed that a married woman directs that her name, as it appears on the grave marker for the plot in which she is interred, include the same last name she used at the time of her death. (k)AAAny

dispute

among

any

of

the

persons

listed

in

Subsection (a) concerning their right to control the disposition, including cremation, of a decedent ’s remains shall be resolved by a court

of

competent

jurisdiction.

A

cemetery

organization

or

funeral establishment shall not be liable for refusing to accept the decedent ’s remains, or to inter or otherwise dispose of the decedent ’s suitable

remains,

until

confirmation

it

that

receives

the

a

dispute

court has

order

been

or

other

resolved

or

settled. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 14, Sec. 213, eff. Sept. 1, 1991; 1993, 73rd Leg., ch. 634, Sec. 2, eff. Sept. 1, 1993; 75th Leg., ch. 967, Sec. 1, eff. Sept. 1, 1997;

Acts

Acts 1997,

Acts 1999, 76th

Leg., ch. 1385, Sec. 1, eff. Aug. 30, 1999.

Sec.A711.003.AARECORDS OF INTERMENT. of each interment in a cemetery.

A record shall be kept

The record must include:

(1)AAthe date the remains are received; (2)AAthe date the remains are interred; (3)AAthe name and age of the person interred if those facts can be conveniently obtained;

and

(4)AAthe identity of the plot in which the remains are interred. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1993, 73rd Leg., ch. 634, Sec. 3, eff. Sept. 1, 1993.

Sec.A711.004.AAREMOVAL OF REMAINS.

(a)

Remains interred in

a cemetery may be removed from a plot in the cemetery with the written consent of the cemetery organization operating the cemetery and the written consent of the current plot owner or owners and the following persons, in the priority listed: (1)AAthe decedent ’s surviving spouse; (2)AAthe decedent ’s surviving adult children;

8


(3)AAthe decedent ’s surviving parents; (4)AAthe decedent ’s adult siblings;

or

(5)AAthe adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent. (b)AAA person listed in Subsection (a) may consent to the removal only if there is no person in a priority listed before that person. (c)AAIf the consent required by Subsection (a) cannot be obtained, the remains may be removed by permission of a district court of the county in which the cemetery is located.AABefore the date of application to the court for permission to remove remains under this subsection, notice must be given to: (1)AAthe cemetery organization operating the cemetery in which the remains are interred or if the cemetery organization cannot

be

located

or

does

not

exist,

the

Texas

Historical

Commission; (2)AAeach person whose consent is required for removal of the remains under Subsection (a); and (3)AAany other person that the court requires to be served. (d)AAFor

the

purposes

of

Subsection

(c)

and

except

as

provided by this subsection or Subsection (k), personal notice must be given not later than the 11th day before the date of application to the court for permission to remove the remains, or notice by certified or registered mail must be given not later than the 16th day before the date of application.

In an emergency circumstance

described by Subsection (l) that necessitates immediate removal of remains

from

a

plot,

the

court

shall

hear

an

application

for

permission to remove remains under Subsection (c) not later than the

first

emergency

business

day

circumstance

after

the

described

application by

this

is

made.

subsection,

In

an

personal

notice may be given on the date the application is made. (e)AASubsections (a)-(d) and (k) do not apply to the removal of remains: (1)AAfrom one plot to another plot in the same cemetery, if the cemetery: (A)AAis a family, fraternal, or community cemetery

9


that is not larger than 10 acres; (B)AAis

owned or

operated

by

an unincorporated

association of plot owners not operated for profit; (C)AAis owned or operated by a church, a religious society or denomination, or an entity solely administering the temporalities of a church or religious society or denomination;

or

(D)AAis a public cemetery owned by this state, a county, or a municipality; (2)AAby the cemetery organization from a plot for which the purchase price is past due and unpaid, to another suitable place; (3)AAon the order of a court or person who conducts inquests;

or (4)AAfrom a plot in a cemetery owned and operated by the

Veterans ’ Land Board. (f)AAExcept

as

is

authorized

for

a

justice

of

the

peace

acting as coroner or medical examiner under Chapter 49, Code of Criminal Procedure, remains may not be removed from a cemetery except on the written order of the state registrar or the state registrar ’s

designee.

The

cemetery

organization

shall

duplicate copy of the order as part of its records. Funeral

Service

Commission

may

adopt

rules

to

keep

a

The Texas

implement

this

subsection. (g)AAA person who removes remains from a cemetery shall keep a record of the removal that includes: (1)AAthe date the remains are removed; (2)AAthe name and age at death of the decedent if those facts can be conveniently obtained; (3)AAthe place to which the remains are removed;

and

(4)AAthe cemetery and plot from which the remains are removed. (h)AAIf

the

remains

are

not

reinterred,

the

person

who

removes the remains shall: (1)AAmake and keep a record of the disposition of the remains; and (2)AAnot later than the 30th day after the date the remains are removed, provide notice by certified mail to the Texas

10


Funeral

Service

Commission

and

the

Department

of

State

Health

Services of the person ’s intent not to reinter the remains and the reason the remains will not be reinterred. (i)AAA person who removes remains from a cemetery shall give the cemetery organization operating the cemetery a copy of the record made as required by Subsections (g) and (h). (j)AAA cemetery organization may remove remains from a plot in the cemetery and transfer the remains to another plot in the same cemetery without the written consent required under Subsection (a) if

the

cemetery

seeks

consent

by

sending

written

notice

by

certified mail, return receipt requested, to the last known address of the current owner of the plot from which the remains are to be removed or to the person designated under Subsection (a).

The

notice must indicate that the remains will be removed, the reason for the removal of the remains, and the proposed location of the reinterment of the remains.

The cemetery may transfer the remains

to another plot in accordance with this subsection if an objection is not received in response to the notice before the 31st day after the date the notice is sent.

A cemetery may not remove remains

under this subsection for a fraudulent purpose or to allow the sale of the plot in which the remains are located to another person. (k)AAIn an emergency circumstance described by Subsection (l) that necessitates immediate removal of remains before the date on which the court is required to hear an application for permission to remove remains under Subsection (d), a cemetery organization may remove remains from a plot in the cemetery and transfer the remains to another plot in the same cemetery without the court hearing.

A

cemetery association that removes remains under this subsection shall send written notice of the removal by certified mail, return receipt

requested,

to

the

last

known

address

of

the

person

designated under Subsection (a) not later than the fifth day after the date the remains are removed.

The notice must indicate that the

remains were removed, the reason for the removal of the remains, and the location of the reinterment of the remains. (l)AAFor

purposes

of

Subsections

circumstance" means: (1)AAa natural disaster;

11

or

(d)

and

(k),

"emergency


(2)AAan error in the interment of remains. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 14, Sec. 214, eff. Sept. 1, 1991; 1991, 72nd Leg., ch. 488, Sec. 1, eff. Sept. 1, 1991; 73rd Leg., ch. 634, Sec. 4, eff. Sept. 1, 1993; Leg., ch. 504, Sec. 1, eff. Sept. 1, 2003;

Acts

Acts 1993,

Acts 2003, 78th

Acts 2003, 78th Leg., ch.

562, Sec. 32, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 2, eff. September 1, 2009.

Sec.A711.007.AANUISANCE;

ABATEMENT AND INJUNCTION.

(a)

A

district court of the county in which a cemetery is located may, by order, abate the cemetery as a nuisance and enjoin its continuance if the cemetery is: (1)AAmaintained, located, or used in violation of this chapter or Chapter 712; or (2)AAneglected

so

that

it

is

offensive

to

the

inhabitants of the surrounding section. (b)AAThe proceeding may be brought by: (1)AAthe attorney general; (2)AAthe Banking Commissioner of Texas; (3)AAthe

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)AAthe

district

attorney

of

the

county,

if

the

cemetery is located in an area of the county not described by Subdivision (3); (5)AAthe owner of a residence: (A)AAin cemetery is located;

or

near

the

municipality

in

which

the

or

(B)AAin the area proscribed for the location of a cemetery by Section 711.008; (6)AAthe Texas Funeral Service Commission;

or

(7)AAthe owner of a plot in the cemetery. (c)AAThe court shall grant a permanent injunction against each person responsible for the nuisance if a cemetery nuisance

12


exists or is threatened. (d)AAIf

a

cemetery

nuisance

under

Subsection

(a)(2)

is

located in a municipality, the governing body of the municipality may authorize the removal of all bodies, monuments, tombs, or other similar items from the cemetery to a perpetual care cemetery. (e)AANotice of an action under this section must be provided to the Texas Historical Commission and to the county historical commission of the county in which the cemetery is located.AAThe Texas Historical Commission and the county historical commission may intervene and become parties to the suit. (f)AAIn

an

action

under

this

section,

the

court

shall

determine: (1)AAwhether the cemetery nuisance must be abated by repair and restoration or by removal of the cemetery; and (2)AAthe

party

or

parties

liable

for

the

costs

associated with the abatement. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1993, 73rd Leg., ch. 634, Sec. 6, eff. Sept. 1, 1993;

Acts

2003, 78th Leg., ch. 562, Sec. 33, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 3, eff. September 1, 2009.

Sec.A711.008.AALOCATION OF CEMETERY.

(a)

Except as provided

by Subsections (b), (f), (g), and (k), an individual, corporation, partnership,

firm,

trust,

or

association

may

not

establish

or

operate a cemetery, or use any land for the interment of remains, located: (1)AAin

or

within

one

mile

of

the

boundaries

of

a

boundaries

of

a

municipality with a population of 5,000 to 25,000; (2)AAin

or

within

two

miles

of

the

municipality with a population of 25,000 to 50,000; (3)AAin or within three miles of the boundaries of a municipality with a population of 50,000 to 100,000; (4)AAin or within four miles of the boundaries of a municipality with a population of 100,000 to 200,000; or (5)AAin or within five miles of the boundaries of a

13


municipality with a population of at least 200,000. (b)AASubsection (a) does not apply to: (1)AAa cemetery heretofore established and operating; (2)AAthe establishment and use of a columbarium by an organized religious society or sect that is exempt from income taxation under Section 501(a), Internal Revenue Code of 1986, by being listed under Section 501(c)(3) of that code, as part of or attached to the principal church building owned by the society or sect; (3)AAthe establishment and use of a columbarium by an organized religious society or sect that is exempt from income taxation under Section 501(a), Internal Revenue Code of 1986, by being listed under Section 501(c)(3) of that code, on land that: (A)AAis owned by the society or sect; and (B)AAis part of the campus on which an existing principal church building is located; (4)AAthe establishment and use of a columbarium on the campus of a private or independent institution of higher education, as defined by Section 61.003, Education Code, that is wholly or substantially

controlled,

managed,

owned,

or

supported

by

or

otherwise affiliated with an organized religious society or sect that is exempt from income taxation under Section 501(a), Internal Revenue Code of 1986, by being listed under Section 501(c)(3) of that code, if a place of worship is located on the campus; or (5)AAthe establishment and use of a mausoleum that is: (A)AAconstructed

beneath

the

principal

church

building owned by an organized religious society or sect that: (i)AAis

exempt

from

income

taxation

under

Section 501(a), Internal Revenue Code of 1986, by being listed under Section 501(c)(3) of that code; and (ii)AAhas

recognized

religious

traditions

and practices of interring the remains of ordained clergy in or below the principal church building; and (B)AAused only for the interment of the remains of ordained clergy of that organized religious society or sect. (c)AASubsection

(a)

does

not

apply

to

a

private

family

cemetery established and operating on or before September 1, 2009.

14


(d)AASubsection (a) does not apply to a cemetery established and

operating

before

September

1,

1995,

in

a

county

with

a

population of more than 250,000 and less than 251,000 that borders the Gulf of Mexico. (e)AAFor the purpose of determining where a cemetery may be located under Subsection (a), the boundary of an area annexed by a municipality is not considered to be a boundary of the municipality if no more than 10 percent of the boundary of the annexed area is composed of a part of the boundary of the annexing municipality as it existed immediately before the annexation. (f)AAThis subsection applies only to a municipality with a population of at least 60,000 that is located in a county with a population of no more than 155,000. 2001,

a

charitable

nonprofit

Not later than December 1,

corporation

may

file

a

written

application with the governing body of a municipality to establish or

use

a

cemetery

municipality.

located

inside

the

boundaries

of

the

The municipality by ordinance shall prescribe the

information to be included in the application.

The governing body

by ordinance may authorize the establishment or use of a cemetery located

inside

municipality

the

boundaries

determines

and

of

states

the in

municipality

the

ordinance

if

the

that

the

establishment or use of the cemetery does not adversely affect public health, safety, and welfare. (g)AANot later than December 1, 2003, a corporation may file a written application with the governing body of a municipality that has a population of at least 27,000 and not more than 30,000 and that is located in a county with a population of at least 245,000 and not more than 250,000 to establish or use a cemetery located

outside

municipal

the

municipality

boundaries.

The

but

within

municipality

by

two

miles

ordinance

of

the

shall

prescribe the information to be included in the application.

The

governing body by ordinance may authorize the establishment or use of the cemetery if the municipality determines and states in the ordinance that the establishment or use of the cemetery does not adversely affect public health, safety, and welfare. (h)AAto (j) Deleted by Acts 1993, 73rd Leg., ch. 634, Sec. 7, eff. Sept. 1, 1993.

15


(k)AAThis subsection applies only to a municipality with a population of 110,000 or more that is located in a county with a population of less than 127,000. Not later than September 1, 1994, a person may file a written application with the governing body of the municipality to establish or use a cemetery located inside the boundaries of the municipality.

The municipality by ordinance

shall prescribe the information to be included in the application. The governing body by ordinance may authorize the establishment or use of a cemetery located inside the boundaries of the municipality if the municipality determines and states in the ordinance that the establishment or use of the cemetery does not adversely affect public health, safety, and welfare. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1991, 72nd Leg., ch. 14, Sec. 215, 216, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 597, Sec. 77, eff. Sept. 1, 1991; 1993, 73rd Leg., ch. 634, Sec. 7, eff. Sept. 1, 1993; 73rd Leg., ch. 736, Sec. 1, eff. Sept. 1, 1993; Leg., ch. 200, Sec. 1, eff. May 21, 2001; 631, Sec. 1, eff. June 13, 2001; 39, eff. Sept. 1, 2001;

Acts

Acts 1993,

Acts 2001, 77th

Acts 2001, 77th Leg., ch.

Acts 2001, 77th Leg., ch. 669, Sec.

Acts 2003, 78th Leg., ch. 98, Sec. 1, eff.

May 20, 2003. Amended by: Acts 2005, 79th Leg., Ch. 106, Sec. 2, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 1026, Sec. 1, eff. September 1, 2007. Acts 2009, 81st Leg., R.S., Ch. 263, Sec. 3, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 373, Sec. 1, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 487, Sec. 1, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 4, eff. September 1, 2009.

Sec.A711.009.AAAUTHORITY

OF

CEMETERY

KEEPER.

(a)

The

superintendent, sexton, or other person in charge of a cemetery has the same powers, duties, and immunities granted by law to:

16


(1)AAa police officer in the municipality in which the cemetery is located;

or

(2)AAa constable or sheriff of the county in which the cemetery is located if the cemetery is outside a municipality. (b)AAA person who is granted authority under Subsection (a) shall maintain order and enforce the cemetery organization ’s rules, state law, and municipal ordinances in the cemetery over which that person has charge and as near the cemetery as necessary to protect cemetery property. (c)AAThis section applies only to a cemetery located in a municipality with a popluation of 40,000 or more or in a county with aAApopulation of 290,000 or more. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended

by Acts 1993, 73rd Leg., ch. 634, Sec. 8, eff. Sept. 1, 1993. Amended by: Acts 2005, 79th Leg., Ch. 345, Sec. 5, eff. September 1, 2005.

Sec.A711.010.AAUNKNOWN OR ABANDONED CEMETERY.

(a)

The owner

of property on which an unknown cemetery is discovered or on which an abandoned cemetery is located may not construct improvements on the property in a manner that would further disturb the cemetery until the human remains interred in the cemetery are removed under a written

order

issued

by

the

state

registrar

or

the

state

registrar ’s designee under Section 711.004(f) and under an order of a district court as provided by this section. (b)AAOn petition of the owner of the property, a district court of the county in which an unknown cemetery is discovered or an abandoned

cemetery

is

located

may

order

the

removal

of

any

dedication for cemetery purposes that affects the property if the court finds that the removal of the dedication is in the public interest.AAIf

a

court

orders

the

removal

of

a

dedication

of

a

cemetery and all human remains on the property have not previously been removed, the court shall order the removal of the human remains from the cemetery to a perpetual care cemetery. (c)AAIn addition to any notice required by Section 711.004, notice of a petition filed under Subsection (b) must be given to the Texas Historical Commission and to the county historical commission

17


of

the

county

Historical

in

which

Commission

and

the

cemetery

the

county

is

located.AAThe

historical

Texas

commission

may

intervene and become parties to the suit. Added by Acts 1999, 76th Leg., ch. 703, Sec. 1, eff. June 18, 1999. Amended by: Acts 2005, 79th Leg., Ch. 251, Sec. 1, eff. September 1, 2005. Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 5, eff. September 1, 2009.

Sec. removal

711.0105.AAMETHOD

of

remains

OF

REMOVAL

authorized

under

OF this

REMAINS. chapter

(a) shall

The be

supervised by a cemetery keeper, a licensed funeral director, a medical examiner, a coroner, or a professional archeologist. (b)AAThe person removing the remains shall make a good faith effort to locate and remove all human remains, any casket or other covering of the remains, and any funerary objects associated with the remains. (c)AARemains that have been moved must be reburied unless a court, medical examiner, coroner, other authorized official, or next of kin approves a different disposition of the remains. Added by Acts 2009, 81st Leg., R.S., Ch. 914, Sec. 6, eff. September 1, 2009.

Sec.A711.011.AAFILING RECORD OF UNKNOWN CEMETERY.

(a)

A

person who discovers an unknown or abandoned cemetery shall file notice of the cemetery with the county clerk of the county in which the cemetery is located not later than the 10th day after the date of the discovery.AAThe notice must contain a legal description of the land on which the unknown or abandoned cemetery was found and describe the approximate location of the cemetery and the evidence of the cemetery that was discovered. (b)AAA county clerk ma