By: Chisum H.B. No. 1468
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of funeral homes, cemeteries, and
crematories; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter F, Chapter 154, Finance Code, is
amended by adding Section 154.265 to read as follows:
Sec. 154.265. DEFAULT UNDER CERTAIN CONTRACTS. (a)
Notwithstanding any other law, the purchaser of a trust-funded
prepaid funeral benefits contract may not be considered in default
under the contract if:
(1) the purchaser has paid at least 85 percent of the
contract price; and
(2) the purchaser was unable to pay due to extenuating
financial circumstances.
(b) A funeral provider is not required to provide funeral
merchandise or services under a trust-funded prepaid funeral
benefits contract unless any remaining balance, including any
applicable finance charge, owed under the contract is paid before
the funeral service or the funeral provider agrees in writing to
another payment arrangement.
(c) This section does not affect a purchaser's right to
cancel a trust-funded prepaid funeral benefits contract.
SECTION 2. Section 711.008(b), Health and Safety Code, is
amended to read as follows:
(b) Subsection (a) does not apply to:
(1) a cemetery heretofore established and operating;
(2) the 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) the establishment and use of a columbarium:
(A) in a municipality with a population of at
least 1.8 million; and
(B) 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:
(i) is owned by the society or sect; and
(ii) is part of the campus on which an
existing principal church building is located; [or]
(4) the 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) the establishment and use of a mausoleum that is:
(A) constructed beneath the principal church
building owned by an organized religious society or sect that:
(i) 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; and
(ii) has recognized religious traditions
and practices of interring the remains of ordained clergy in or
below the principal church building; and
(B) used only for the interment of the remains of
ordained clergy of that organized religious society or sect.
SECTION 3. Section 711.012(b), Health and Safety Code, is
amended to read as follows:
(b) The Texas Funeral Service Commission may enforce
Section 711.052 and may adopt rules, establish procedures, and
prescribe forms to enforce and administer Sections 711.003,
711.008, 711.010, 711.011, 711.021-711.035, 711.038, 711.0395,
711.041, 711.042, 711.061, and 711.062 relating to cemeteries that
are not perpetual care cemeteries.
SECTION 4. Section 711.038, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) A cemetery organization may not resell the exclusive
right of sepulture in a plot unless the exclusive right of sepulture
has been reacquired by the cemetery organization. A sanction or
other penalty may not be imposed on a cemetery organization that
violates this subsection unless:
(1) the state agency authorized to enforce this
section provides the cemetery organization written notice of the
violation; and
(2) the cemetery organization does not correct the
violation before the 91st day after the date on which the cemetery
organization received the notice.
SECTION 5. Subchapter C, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0395 to read as follows:
Sec. 711.0395. MULTIPLE INTERMENTS IN SAME PLOT. A
cemetery organization may not make more than one interment in a plot
unless each owner of the plot consents to the interment.
SECTION 6. Section 711.041, Health and Safety Code, is
amended to read as follows:
Sec. 711.041. ACCESS TO CEMETERY. (a) Any person who
wishes to visit a cemetery or private burial grounds for which no
public ingress or egress is available shall have the right to
reasonable ingress and egress for the purpose of visiting the
cemetery or private burial grounds. This right of access extends
only to visitation during the [reasonable] hours determined by the
owner or owners of the lands under Subsection (b) or at a reasonable
time as provided by Subsection (c) and only for purposes usually
associated with cemetery visits.
(b) The owner or owners of the lands surrounding the
cemetery or private burial grounds may designate the routes of
reasonable ingress and egress and reasonable hours of availability.
(c) At a time other than the time provided by Subsection
(b), the owner or owners of the lands surrounding a cemetery or
private burial grounds must allow a person to enter and exit the
owner's land for the purpose of visiting the cemetery or private
burial grounds if:
(1) the person provides written notice to the owner or
owners of the lands surrounding the cemetery or private burial
grounds of the person's visit;
(2) the person provides the notice required by
Subdivision (1) not later than the 14th day before the date the
person wishes to visit the cemetery; and
(3) the time of the visit is reasonable.
SECTION 7. Subchapter D, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0515 to read as follows:
Sec. 711.0515. INJUNCTIVE RELIEF. In addition to bringing
an action under Section 711.051, the attorney general at the
request of the Texas Funeral Service Commission may bring an action
for injunctive relief to enforce this chapter or a rule or order
adopted by the commission under this chapter.
SECTION 8. Subchapter D, Chapter 711, Health and Safety
Code, is amended by adding Section 711.0521 to read as follows:
Sec. 711.0521. ACCESS TO CEMETERIES; CRIMINAL PENALTIES.
(a) A person who is an individual, firm, association, corporation,
or municipality, or an officer, agent, or employee of an
individual, firm, association, corporation, or municipality,
commits an offense if the person interferes with a person's
reasonable right to ingress and egress under Section 711.041.
(b) An offense under this section is a Class C misdemeanor.
SECTION 9. Subchapter A, Chapter 716, Health and Safety
Code, is amended by adding Section 716.0035 to read as follows:
Sec. 716.0035. ACCEPTANCE OF REMAINS. A crematory
establishment may accept deceased human remains for refrigeration
before it receives authorization to cremate the remains under
Subchapter B.
SECTION 10. Subchapter B, Chapter 716, Health and Safety
Code, is amended by adding Section 716.054 to read as follows:
Sec. 716.054. EXCEPTION; WRITTEN DIRECTIONS. (a) This
section applies and a cremation authorization form is not required
under this chapter if:
(1) the deceased person has left written directions
for the disposition by cremation of the deceased person's human
remains as provided by Section 711.002(g); and
(2) the authorizing agent refuses for any reason to
sign a cremation authorization form.
(b) The crematory establishment may cremate the deceased
person's human remains without receipt of a cremation authorization
form signed by the authorizing agent if:
(1) cremation costs are paid; and
(2) the authorizing agent provides positive written
identification that the human remains to be cremated are the human
remains of the deceased person.
SECTION 11. Section 716.103, Health and Safety Code, is
amended to read as follows:
Sec. 716.103. IDENTIFICATION RESPONSIBILITY OF CREMATORY.
(a) A crematory establishment shall place on the exterior of a
cremation container a label with the deceased person's name as
provided by the authorizing agent unless the crematory
establishment knows the name is incorrect.
(b) A crematory establishment shall place, with the
cremated remains, in the temporary container, urn, or other
permanent container, a permanent metal identification disc,
bracelet, or other item that can be used to identify the deceased
person.
SECTION 12. Section 716.104(a), Health and Safety Code, is
amended to read as follows:
(a) Except as provided by Section 716.054, a [A] funeral
director or funeral establishment shall provide a signed written
statement to a crematory establishment that the human remains
delivered to the crematory establishment were positively
identified as the deceased person listed on the cremation
authorization form by the authorizing agent or a representative of
the authorizing agent delegated as provided by Section 716.053.
SECTION 13. Section 716.152(d), Health and Safety Code, is
amended to read as follows:
(d) To the extent practicable, the crematory establishment
shall remove all recoverable cremation residue from the cremation
chamber following cremation and pulverize any bone fragments to a
particle size of one-eighth inch or less as necessary. The
crematory establishment shall remove and dispose of any other
material included with the residue.
SECTION 14. Section 716.156(a), Health and Safety Code, is
amended to read as follows:
(a) A crematory establishment shall:
(1) release the cremated remains to a representative
of the funeral establishment that delivered the deceased human
remains to the crematory establishment;
(2) release the cremated remains to the person
authorized to receive the remains on the cremation authorization
form; [or]
(3) ship the remains to the shipping address provided
by the authorizing agent on the cremation authorization form not
later than the 30th day following the date of cremation; or
(4) release the cremated remains according to written
directions for the disposition by cremation of the deceased
person's human remains as provided by Section 711.002(g).
SECTION 15. Subchapter E, Chapter 716, Health and Safety
Code, is amended by adding Section 716.204 to read as follows:
Sec. 716.204. IMMUNITY FROM CRIMINAL AND CIVIL LIABILITY;
WRITTEN DIRECTIONS. (a) In this section:
(1) "Cemetery organization" has the meaning assigned
by Section 711.001.
(2) "Embalmer" has the meaning assigned by Section
651.001, Occupations Code.
(b) If Section 716.054(a) applies, a cemetery organization,
a business operating a crematory or columbarium, a funeral
director, an embalmer, or a funeral establishment is not criminally
liable or liable in a civil action for:
(1) cremating the human remains of a deceased person;
or
(2) carrying out the written directions of the
deceased person.
SECTION 16. Section 716.304, Health and Safety Code, is
amended to read as follows:
Sec. 716.304. SCATTERING REMAINS. A person may scatter
cremated remains over uninhabited public land, over a public
waterway or sea, or on the private property of a consenting owner[,
if the remains are reduced to a particle size of one-eighth inch or
less]. Unless the container is biodegradable, the cremated remains
must be removed from the container before being scattered.
SECTION 17. Section 716.351(a), Health and Safety Code, is
amended to read as follows:
(a) A person commits an offense if the person:
(1) cremates human remains without receipt of:
(A) a cremation authorization form signed by an
authorizing agent; or
(B) written directions for the disposition by
cremation of the deceased person's human remains as provided in
Section 711.002(g);
(2) signs a cremation authorization form with actual
knowledge that the form contains false or incorrect information; or
(3) represents to the public that the person may
cremate human remains without being licensed as provided by
Subchapter N, Chapter 651, Occupations Code.
SECTION 18. Section 651.154(a), Occupations Code, is
amended to read as follows:
(a) The commission shall set the following fees in amounts
reasonable and necessary to administer this chapter:
(1) the funeral director's and embalmer's application
fee, license fee, duplicate license fee, and reciprocal license
fee; and
(2) the cemetery, crematory, or funeral establishment
license fee, renewal fee, and late renewal penalty.
SECTION 19. Section 651.156, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) A subpoena or subpoena duces tecum issued under this
section is not effective unless it is issued in compliance with:
(1) state and federal law; and
(2) commission rules adopted under Subsection (c).
SECTION 20. Section 651.165(d), Occupations Code, is
amended to read as follows:
(d) A person whose license has been expired for one year or
more may [not] renew the license by:
(1) retaking and passing the applicable examination;
(2) paying any applicable fees, including a renewal
fee that is equal to two times the normally required renewal fee;
and
(3) completing any continuing education required
under Section 651.266. [The person may obtain a new license by
complying with the requirements and procedures, including the
examination requirements, for obtaining an original license.]
SECTION 21. Subchapter D, Chapter 651, Occupations Code, is
amended by adding Section 651.1655 to read as follows:
Sec. 651.1655. REINSTATEMENT 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.
SECTION 22. The heading to Section 651.267, Occupations
Code, is amended to read as follows:
Sec. 651.267. REISSUANCE OF REVOKED LICENSE.
SECTION 23. Sections 651.267(a) and (d), Occupations Code,
are amended to read as follows:
(a) On application, the commission may reissue a license
issued under this subchapter to a person whose license has been
[suspended or] revoked. An application to reissue a license may not
be made before the third [first] anniversary of the date of the
[suspension or] revocation.
(d) A license that has been revoked [or suspended for a
period of five years or more] may be reinstated only after the
applicant:
(1) retakes and passes the applicable examination;
(2) pays a fee that is equal to two times the normally
required renewal fee; and
(3) satisfies any other commission requirements,
including any continuing education requirements under Section
651.266.
SECTION 24. Section 651.304(e), Occupations Code, is
amended to read as follows:
(e) The 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.
SECTION 25. Section 651.351, Occupations Code, is amended
by amending Subsections (d) and (f) and adding Subsection (i) to
read as follows:
(d) A funeral establishment must:
(1) meet the building, fire safety, and health
standards and health ordinances of this state and of the
municipality in which the establishment is located;
(2) except as provided by Subsection (i), be located
at a fixed place that is not tax-exempt property or a cemetery;
(3) include facilities in which funeral services may
be conducted;
(4) have access to rolling stock consisting of at
least one motor hearse;
(5) include a preparation room containing the
facilities, equipment, and supplies required by commission rule to
ensure the provision of adequate embalming services;
(6) include other facilities as necessary to comply
with the sanitary codes of this state and of the municipality in
which the room is located; and
(7) include a display containing sufficient
merchandise to permit reasonable selection, including at least five
adult caskets, two of which must be full-size and displayed in a
casket showroom.
(f) The least expensive casket displayed under Subsection
(d)(7) must be a full-size casket displayed in the same general
manner as the other full-size caskets are displayed. The three
adult caskets that are not required to be full-size under
Subsection (d)(7) may be displayed:
(1) in a partial panel display; or
(2) by video or brochure, online, or in any other
manner.
(i) Subsection (d)(2) does not apply to a funeral
establishment located on tax-exempt property of an accredited
postsecondary educational institution that is operated in
connection with an accredited educational program for funeral
services.
SECTION 26. Section 651.353(d), Occupations Code, is
amended to read as follows:
(d) This section does not apply to:
(1) a family, fraternal, or community cemetery that is
not larger than 10 acres;
(2) an unincorporated association of plot owners not
operated for profit;
(3) a church, a religious society or denomination, or
an entity solely administering the temporalities of a church or
religious society or denomination; [or]
(4) a public cemetery owned by this state, a county, or
a municipality; or
(5) a perpetual care cemetery.
SECTION 27. Sections 651.354(a), (c), and (d), Occupations
Code, are amended to read as follows:
(a) The commission shall mail written notice to a cemetery
or funeral establishment of the impending expiration of the
establishment's license not later than the 30th day before the
expiration date of the license. The [Except as provided by
Subsection (d), the] notice must state that:
(1) to renew the license, the cemetery or funeral
establishment must pay the renewal fee not later than the license
expiration date [September 30]; and
(2) the license is automatically renewed on receipt of
the renewal fee.
(c) If the license is expired for longer than 30 days, the
cemetery or funeral establishment [may not renew the license and]
may not operate as a cemetery or funeral establishment until the
renewal fee and the late payment penalty are paid [establishment is
issued a new license in the manner provided for issuing an original
license].
(d) This section does not apply to [To renew a license for] a
perpetual care cemetery [, the cemetery must submit a renewal on a
form prescribed by the commission. The license is renewed on
receipt of the form by the commission].
SECTION 28. Subchapter H, Chapter 651, Occupations Code, is
amended by adding Section 651.355 to read as follows:
Sec. 651.355. PERPETUAL CARE CEMETERY REGISTRATION. (a)
The Texas Department of Banking shall provide annually to the
commission a list of perpetual care cemeteries, including the
address and other contact information for each cemetery. The
commission shall annually register each perpetual care cemetery on
that list.
(b) A perpetual care cemetery is not required to pay a
registration fee or renewal fee under this chapter.
SECTION 29. Subchapter J, Chapter 651, Occupations Code, is
amended by adding Section 651.461 to read as follows:
Sec. 651.461. DEFENSE TO VIOLATION. A person licensed
under this chapter does not violate this chapter by engaging in
conduct regarding funeral arrangements under the direction of a
person who:
(1) represents to the license holder that the person
is authorized to make funeral arrangements for the deceased; and
(2) provides written directions to the license holder
in the manner provided by Section 711.002, Health and Safety Code.
SECTION 30. Section 651.507(a), Occupations Code, is
amended to read as follows:
(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 [committed] the same provision of this chapter
or rule adopted under this chapter [type of violation on one or more
previous occasions]. If it is determined that the license holder
has previously violated [committed] the same provision of this
chapter or rule adopted under this chapter [type of violation], the
commission or administrative law judge shall impose a disciplinary
action that is more severe than that imposed on the previous
occasion.
SECTION 31. Section 651.658(d), Occupations Code, is
amended to read as follows:
(d) If 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 [A person may not
renew a license that has been expired for more than 30 days. A
person holding a license that has been expired for more than 30 days
must apply for a new license as required by this subchapter to
conduct a crematory business].
SECTION 32. The following are repealed:
(1) Section 716.004(b), Health and Safety Code; and
(2) Sections 651.304(b) and (c), 651.651(3), and
651.656(d), Occupations Code.
SECTION 33. Section 154.265, Finance Code, as added by this
Act, applies only to a contract that is entered into on or after the
effective date of this Act. A contract entered into before the
effective date of this Act is governed by the law in effect on the
date the contract was entered into, and the former law is continued
in effect for that purpose.
SECTION 34. The change in law made by Section 711.0521,
Health and Safety Code, as added by this Act, applies only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect when the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense was committed before that date.
SECTION 35. Sections 651.165(d), 651.354, and 651.658(d),
Occupations Code, as amended by this Act, apply only to a license
that expires on or after the effective date of this Act. A license
that expired before the effective date of this Act is governed by
the law in effect at the time the license expired, and the former
law is continued in effect for that purpose.
SECTION 36. Section 651.1655, Occupations Code, as added by
this Act, applies only to a license suspended on or after the
effective date of this Act. A license suspended before the
effective date of this Act is governed by the law in effect at the
time the license was suspended, and the former law is continued in
effect for that purpose.
SECTION 37. Section 651.267, Occupations Code, as amended
by this Act, applies only to a license revoked on or after the
effective date of this Act. A license revoked before the effective
date of this Act is governed by the law in effect at the time the
license was revoked, and the former law is continued in effect for
that purpose.
SECTION 38. Not later than January 1, 2010, the Texas
Department of Banking shall provide the initial list of perpetual
care cemeteries to the Texas Funeral Service Commission as required
by Section 651.355, Occupations Code, as added by this Act.
SECTION 39. This Act takes effect September 1, 2009.