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AN ACT
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relating to the regulation of funeral services, funeral homes, |
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cemeteries, and crematories; providing penalties. |
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�������BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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�������SECTION�1.��Subchapter F, Chapter 154, Finance Code, is |
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amended by adding Section 154.265 to read as follows: |
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�������Sec.�154.265.��DEFAULT UNDER CERTAIN CONTRACTS. (a)� |
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Notwithstanding any other law, the purchaser of a trust-funded |
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prepaid funeral benefits contract may not be considered in default |
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under the contract if: |
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�������������(1)��the purchaser has paid at least 85 percent of the |
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contract price; and |
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�������������(2)��the purchaser was unable to pay due to extenuating |
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financial circumstances. |
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�������(b)��A funeral provider is not required to provide funeral |
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merchandise or services under a trust-funded prepaid funeral |
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benefits contract unless any remaining balance, including any |
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applicable finance charge, owed under the contract is paid before |
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the funeral service or the funeral provider agrees in writing to |
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another payment arrangement. |
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�������(c)��This section does not affect a purchaser's right to |
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cancel a trust-funded prepaid funeral benefits contract. |
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�������SECTION�2.��Subtitle B, Title 8, Health and Safety Code, is |
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amended by adding Chapter 695 to read as follows: |
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CHAPTER 695. �IN-CASKET IDENTIFICATION |
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�������Sec.�695.001.��DEFINITIONS. �In this chapter: |
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�������������(1)��"Casket"�means a container used to hold the |
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remains of a deceased person. |
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�������������(2)��"Commission"�means the Texas Funeral Service |
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Commission. |
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�������Sec.�695.002.��IDENTIFICATION OF DECEASED PERSON. �The |
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commission shall ensure a casket contains identification of the |
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deceased person, including the person's name, date of birth, and |
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date of death. |
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�������Sec.�695.003.��RULES. �The commission may adopt rules to |
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enforce this chapter. |
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�������SECTION�3.��Section 711.008(b), Health and Safety Code, is |
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amended to read as follows: |
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�������(b)��Subsection (a) does not apply to: |
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�������������(1)��a cemetery heretofore established and operating; |
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�������������(2)��the establishment and use of a columbarium by an |
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organized religious society or sect that is exempt from income |
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taxation under Section 501(a), Internal Revenue Code of 1986, by |
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being listed under Section 501(c)(3) of that code, as part of or |
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attached to the principal church building owned by the society or |
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sect; |
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�������������(3)��the establishment and use of a columbarium: |
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�������������������(A)��in a municipality with a population of at |
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least 1.8 million; and |
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�������������������(B)��by an organized religious society or sect, |
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that is exempt from income taxation under Section 501(a), Internal |
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Revenue Code of 1986, by being listed under Section 501(c)(3) of |
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that code, on land that: |
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�������������������������(i)��is owned by the society or sect; and |
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�������������������������(ii)��is part of the campus on which an |
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existing principal church building is located; [or] |
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�������������(4)��the establishment and use of a columbarium on the |
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campus of a private or independent institution of higher education, |
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as defined by Section 61.003, Education Code, that is wholly or |
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substantially controlled, managed, owned, or supported by or |
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otherwise affiliated with an organized religious society or sect |
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that is exempt from income taxation under Section 501(a), Internal |
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Revenue Code of 1986, by being listed under Section 501(c)(3) of |
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that code, if a place of worship is located on the campus; or |
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�������������(5)��the establishment and use of a mausoleum that is: |
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�������������������(A)��constructed beneath the principal church |
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building owned by an organized religious society or sect that: |
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�������������������������(i)��is exempt from income taxation under |
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Section 501(a), Internal Revenue Code of 1986, by being listed |
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under Section 501(c)(3) of that code; and |
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�������������������������(ii)��has recognized religious traditions |
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and practices of interring the remains of ordained clergy in or |
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below the principal church building; and |
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�������������������(B)��used only for the interment of the remains of |
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ordained clergy of that organized religious society or sect. |
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�������SECTION�4.��Section 711.012(b), Health and Safety Code, is |
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amended to read as follows: |
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�������(b)��The Texas Funeral Service Commission may adopt rules, |
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establish procedures, and prescribe forms to enforce and administer |
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Sections 711.003, 711.008, 711.010, 711.011, 711.021-711.035, |
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711.038, 711.0395, 711.041, 711.042, 711.052,�711.061, and 711.062 |
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relating to cemeteries that are not perpetual care cemeteries. |
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�������SECTION�5.��Section 711.038, Health and Safety Code, is |
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amended by adding Subsection (f) to read as follows: |
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�������(f)��A cemetery organization may not resell the exclusive |
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right of sepulture in a plot unless the exclusive right of sepulture |
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has been reacquired by the cemetery organization. A sanction or |
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other penalty may not be imposed on a cemetery organization that |
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violates this subsection unless: |
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�������������(1)��the state agency authorized to enforce this |
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section provides the cemetery organization written notice of the |
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violation; and |
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�������������(2)��the cemetery organization does not correct the |
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violation before the 91st day after the date on which the cemetery |
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organization received the notice. |
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�������SECTION�6.��Subchapter C, Chapter 711, Health and Safety |
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Code, is amended by adding Section 711.0395 to read as follows: |
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�������Sec.�711.0395.��MULTIPLE INTERMENTS IN SAME PLOT. A |
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cemetery organization may not make more than one interment in a plot |
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unless each owner of the plot consents to the interment. |
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�������SECTION�7.��Section 711.041, Health and Safety Code, is |
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amended to read as follows: |
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�������Sec.�711.041.��ACCESS TO CEMETERY. (a) �Any person who |
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wishes to visit a cemetery or private burial grounds for which no |
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public ingress or egress is available shall have the right to |
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reasonable ingress and egress for the purpose of visiting the |
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cemetery or private burial grounds. This right of access extends |
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only to visitation during the�[reasonable] hours determined by the |
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owner or owners of the lands under Subsection (b) or at a reasonable |
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time as provided by Subsection (c)�and only for purposes usually |
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associated with cemetery visits. |
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�������(b)��The owner or owners of the lands surrounding the |
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cemetery or private burial grounds may designate the routes of |
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reasonable ingress and egress and reasonable hours of availability. |
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�������(c)��At a time other than the time provided by Subsection |
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(b), the owner or owners of the lands surrounding a cemetery or |
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private burial grounds must allow a person to enter and exit the |
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owner's land for the purpose of visiting the cemetery or private |
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burial grounds if: |
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�������������(1)��the person provides written notice to the owner or |
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owners of the lands surrounding the cemetery or private burial |
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grounds of the person's visit; |
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�������������(2)��the person provides the notice required by |
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Subdivision (1) not later than the 14th day before the date the |
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person wishes to visit the cemetery; and |
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�������������(3)��the time of the visit is reasonable. |
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�������SECTION�8.��Subchapter D, Chapter 711, Health and Safety |
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Code, is amended by adding Section 711.0515 to read as follows: |
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�������Sec.�711.0515.��INJUNCTIVE RELIEF. �In addition to bringing |
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an action under Section 711.051, the attorney general at the |
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request of the Texas Funeral Service Commission may bring an action |
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for injunctive relief to enforce this chapter or a rule or order |
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adopted by the commission under this chapter. |
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�������SECTION�9.��Subchapter D, Chapter 711, Health and Safety |
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Code, is amended by adding Section 711.0521 to read as follows: |
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�������Sec.�711.0521.��ACCESS TO CEMETERIES; CRIMINAL PENALTIES. � |
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(a) �A person who is an individual, firm, association, corporation, |
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or municipality, or an officer, agent, or employee of an |
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individual, firm, association, corporation, or municipality, |
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commits an offense if the person interferes with a person's |
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reasonable right to ingress and egress under Section 711.041. |
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�������(b)��An offense under this section is a Class C misdemeanor. |
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�������SECTION�10.��Subchapter A, Chapter 716, Health and Safety |
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Code, is amended by adding Section 716.0035 to read as follows: |
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�������Sec.�716.0035.��ACCEPTANCE OF REMAINS. A crematory |
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establishment may accept deceased human remains for refrigeration |
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before it receives authorization to cremate the remains under |
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Subchapter B. |
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�������SECTION�11.��Subchapter B, Chapter 716, Health and Safety |
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Code, is amended by adding Section 716.054 to read as follows: |
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�������Sec.�716.054.��EXCEPTION; WRITTEN DIRECTIONS. (a) This |
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section applies and a cremation authorization form is not required |
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under this chapter if: |
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�������������(1)��the deceased person has left written directions |
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for the disposition by cremation of the deceased person's human |
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remains as provided by Section 711.002(g); and |
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�������������(2)��the authorizing agent refuses for any reason to |
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sign a cremation authorization form. |
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�������(b)��The crematory establishment may cremate the deceased |
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person's human remains without receipt of a cremation authorization |
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form signed by the authorizing agent if: |
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�������������(1)��cremation costs are paid; and |
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�������������(2)��the authorizing agent provides positive written |
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identification that the human remains to be cremated are the human |
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remains of the deceased person. |
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�������SECTION�12.��Section 716.103, Health and Safety Code, is |
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amended to read as follows: |
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�������Sec.�716.103.��IDENTIFICATION RESPONSIBILITY OF CREMATORY. |
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(a) A crematory establishment shall place on the exterior of a |
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cremation container a label with the deceased person's name as |
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provided by the authorizing agent unless the crematory |
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establishment knows the name is incorrect. |
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�������(b)��A crematory establishment shall place, with the |
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cremated remains, in the temporary container, urn, or other |
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permanent container, a permanent metal identification disc, |
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bracelet, or other item that can be used to identify the deceased |
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person. |
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�������SECTION�13.��Section 716.104(a), Health and Safety Code, is |
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amended to read as follows: |
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�������(a)��Except as provided by Section 716.054, a [A] funeral |
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director or funeral establishment shall provide a signed written |
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statement to a crematory establishment that the human remains |
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delivered to the crematory establishment were positively |
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identified as the deceased person listed on the cremation |
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authorization form by the authorizing agent or a representative of |
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the authorizing agent delegated as provided by Section 716.053. |
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�������SECTION�14.��Section 716.152(d), Health and Safety Code, is |
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amended to read as follows: |
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�������(d)��To the extent practicable, the crematory establishment |
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shall remove all recoverable cremation residue from the cremation |
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chamber following cremation and pulverize any bone fragments to a |
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particle size of one-eighth inch or less as necessary. The |
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crematory establishment shall remove and dispose of any other |
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material included with the residue. |
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�������SECTION�15.��Section 716.156(a), Health and Safety Code, is |
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amended to read as follows: |
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�������(a)��A crematory establishment shall: |
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�������������(1)��release the cremated remains to a representative |
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of the funeral establishment that delivered the deceased human |
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remains to the crematory establishment; |
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�������������(2)��release the cremated remains to the person |
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authorized to receive the remains on the cremation authorization |
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form; [or] |
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�������������(3)��ship the remains to the shipping address provided |
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by the authorizing agent on the cremation authorization form not |
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later than the 30th day following the date of cremation; or |
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�������������(4)��release the cremated remains according to written |
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directions for the disposition by cremation of the deceased |
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person's human remains as provided by Section 711.002(g). |
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�������SECTION�16.��Subchapter E, Chapter 716, Health and Safety |
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Code, is amended by adding Section 716.204 to read as follows: |
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�������Sec.�716.204.��IMMUNITY FROM CRIMINAL AND CIVIL LIABILITY; |
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WRITTEN DIRECTIONS. (a) �In this section: |
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�������������(1)��"Cemetery organization" has the meaning assigned |
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by Section 711.001. |
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�������������(2)��"Embalmer" has the meaning assigned by Section |
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651.001, Occupations Code. |
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�������(b)��If Section 716.054(a) applies, a cemetery organization, |
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a business operating a crematory or columbarium, a funeral |
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director, an embalmer, or a funeral establishment is not criminally |
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liable or liable in a civil action for: |
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�������������(1)��cremating the human remains of a deceased person; |
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or |
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�������������(2)��carrying out the written directions of the |
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deceased person. |
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�������SECTION�17.��Section 716.304, Health and Safety Code, is |
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amended to read as follows: |
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�������Sec.�716.304.��SCATTERING REMAINS.��A person may scatter |
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cremated remains over uninhabited public land, over a public |
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waterway or sea, or on the private property of a consenting owner[,
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if the remains are reduced to a particle size of one-eighth inch or
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less]. Unless the container is biodegradable, the cremated remains |
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must be removed from the container before being scattered. |
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�������SECTION�18.��Section 716.351(a), Health and Safety Code, is |
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amended to read as follows: |
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�������(a)��A person commits an offense if the person: |
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�������������(1)��cremates human remains without receipt of: |
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�������������������(A)��a cremation authorization form signed by an |
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authorizing agent; or |
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�������������������(B)��written directions for the disposition by |
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cremation of the deceased person's human remains as provided in |
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Section 711.002(g); |
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�������������(2)��signs a cremation authorization form with actual |
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knowledge that the form contains false or incorrect information; or |
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�������������(3)��represents to the public that the person may |
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cremate human remains without being licensed as provided by |
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Subchapter N, Chapter 651, Occupations Code. |
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�������SECTION�19.��Section 651.154(a), Occupations Code, is |
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amended to read as follows: |
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�������(a)��The commission shall set the following fees in amounts |
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reasonable and necessary to administer this chapter: |
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�������������(1)��the funeral director's and embalmer's application |
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fee, license fee, duplicate license fee, and reciprocal license |
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fee; and |
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�������������(2)��the cemetery, crematory, or funeral establishment |
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license fee, renewal fee, and late renewal penalty. |
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�������SECTION�20.��Section 651.156, Occupations Code, is amended |
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by adding Subsection (d) to read as follows: |
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�������(d)��A subpoena or subpoena duces tecum issued under this |
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section is not effective unless it is issued in compliance with: |
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�������������(1)��state and federal law; and |
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�������������(2)��commission rules adopted under Subsection (c). |
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�������SECTION�21.��Section 651.165(d), Occupations Code, is |
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amended to read as follows: |
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�������(d)��A person whose license has been expired for one year or |
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more may [not] renew the license by: |
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�������������(1)��retaking and passing the applicable examination; |
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�������������(2)��paying any applicable fees, including a renewal |
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fee that is equal to two times the normally required renewal fee; |
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and |
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�������������(3)��completing any continuing education required |
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under Section 651.266. [The person may obtain a new license by
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complying with the requirements and procedures, including the
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examination requirements, for obtaining an original license.] |
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�������SECTION�22.��Subchapter D, Chapter 651, Occupations Code, is |
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amended by adding Section 651.1655 to read as follows: |
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�������Sec.�651.1655.��REINSTATEMENT OF SUSPENDED LICENSE. �A |
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person whose license has been suspended may renew the license by |
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paying to the commission a renewal fee that is equal to two times |
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the normally required renewal fee in addition to any penalty |
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assessed by the commission. |
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�������SECTION�23.��The heading to Section 651.267, Occupations |
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Code, is amended to read as follows: |
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�������Sec.�651.267.��REISSUANCE OF REVOKED LICENSE. |
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�������SECTION�24.��Sections 651.267(a) and (d), Occupations Code, |
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are amended to read as follows: |
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�������(a)��On application, the commission may reissue a license |
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issued under this subchapter to a person whose license has been |
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[suspended or] revoked. An application to reissue a license may not |
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be made before the third [first] anniversary of the date of the |
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[suspension or] revocation. |
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�������(d)��A license that has been revoked [or suspended for a
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period of five years or more] may be reinstated only after the |
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applicant: |
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�������������(1)��retakes and passes the applicable examination; |
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�������������(2)��pays a fee that is equal to two times the normally |
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required renewal fee; and |
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�������������(3)��satisfies any other commission requirements, |
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including any continuing education requirements under Section |
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651.266. |
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�������SECTION�25.��Section 651.304(e), Occupations Code, is |
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amended to read as follows: |
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�������(e)��The commission by rule shall prescribe reporting |
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requirements for provisional license holders. The commission shall |
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furnish report forms to be used by a provisional license holder. |
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�������SECTION�26.��Section 651.351, Occupations Code, is amended |
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by amending Subsections (d) and (f) and adding Subsection (i) to |
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read as follows: |
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�������(d)��A funeral establishment must: |
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�������������(1)��meet the building, fire safety, and health |
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standards and health ordinances of this state and of the |
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municipality in which the establishment is located; |
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�������������(2)��except as provided by Subsection (i),�be located |
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at a fixed place that is not tax-exempt property or a cemetery; |
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�������������(3)��include facilities in which funeral services may |
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be conducted; |
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�������������(4)��have access to rolling stock consisting of at |
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least one motor hearse; |
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�������������(5)��include a preparation room containing the |
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facilities, equipment, and supplies required by commission rule to |
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ensure the provision of adequate embalming services; |
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�������������(6)��include other facilities as necessary to comply |
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with the sanitary codes of this state and of the municipality in |
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which the room is located; and |
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�������������(7)��include a display containing sufficient |
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merchandise to permit reasonable selection, including at least five |
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adult caskets, two of which must be full-size and displayed in a |
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casket showroom. |
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�������(f)��The least expensive casket displayed under Subsection |
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(d)(7) must be a full-size casket displayed in the same general |
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manner as the other full-size caskets are displayed. The three |
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adult caskets that are not required to be full-size under |
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Subsection (d)(7) may be displayed: |
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�������������(1)��in a partial panel display; or |
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�������������(2)��by video or brochure, online, or in any other |
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manner. |
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�������(i)��Subsection (d)(2) does not apply to a funeral |
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establishment that is: |
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�������������(1)��located on the real property of a public junior |
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college; and |
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�������������(2)��operated in connection with an accredited |
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educational program in funeral services offered by the public |
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junior college. |
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�������SECTION�27.��Section 651.353(d), Occupations Code, is |
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amended to read as follows: |
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�������(d)��This section does not apply to: |
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�������������(1)��a family, fraternal, or community cemetery that is |
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not larger than 10 acres; |
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�������������(2)��an unincorporated association of plot owners not |
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operated for profit; |
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�������������(3)��a church, a religious society or denomination, or |
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an entity solely administering the temporalities of a church or |
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religious society or denomination; [or] |
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�������������(4)��a public cemetery owned by this state, a county, or |
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a municipality; or |
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�������������(5)��a perpetual care cemetery. |
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�������SECTION�28.��Sections 651.354(a), (c), and (d), Occupations |
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Code, are amended to read as follows: |
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�������(a)��The commission shall mail written notice to a cemetery |
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or funeral establishment of the impending expiration of the |
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establishment's license not later than the 30th day before the |
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expiration date of the license. The�[Except as provided by
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Subsection (d), the] notice must state that: |
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�������������(1)��to renew the license, the cemetery or funeral |
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establishment must pay the renewal fee not later than the license |
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expiration date [September 30]; and |
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�������������(2)��the license is automatically renewed on receipt of |
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the renewal fee. |
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�������(c)��If the license is expired for longer than 30 days, the |
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cemetery or funeral establishment [may not renew the license and] |
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may not operate as a cemetery or funeral establishment until the |
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renewal fee and the late payment penalty are paid [establishment is
|
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issued a new license in the manner provided for issuing an original
|
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license]. |
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�������(d)��This section does not apply to [To renew a license for] a |
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perpetual care cemetery [, the cemetery must submit a renewal on a
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form prescribed by the commission. The license is renewed on
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receipt of the form by the commission]. |
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�������SECTION�29.��Subchapter H, Chapter 651, Occupations Code, is |
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amended by adding Section 651.355 to read as follows: |
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�������Sec.�651.355.��PERPETUAL CARE CEMETERY REGISTRATION. (a) |
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The Texas Department of Banking shall provide annually to the |
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commission a list of perpetual care cemeteries, including the |
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address and other contact information for each cemetery. The |
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commission shall annually register each perpetual care cemetery on |
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that list. |
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�������(b)��A perpetual care cemetery is not required to pay a |
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registration fee or renewal fee under this chapter. |
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�������SECTION�30.��Subchapter J, Chapter 651, Occupations Code, is |
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|
amended by adding Section 651.461 to read as follows: |
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�������Sec.�651.461.��DEFENSE TO VIOLATION. A person licensed |
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|
under this chapter does not violate this chapter by engaging in |
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|
conduct regarding funeral arrangements under the direction of a |
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person who: |
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�������������(1)��represents to the license holder that the person |
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|
is authorized to make funeral arrangements for the deceased; and |
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|
�������������(2)��provides written directions to the license holder |
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|
in the manner provided by Section 711.002, Health and Safety Code. |
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|
�������SECTION�31.��Section 651.507(a), Occupations Code, is |
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|
amended to read as follows: |
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�������(a)��The commission or an administrative law judge employed |
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|
by the State Office of Administrative Hearings shall review each |
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|
disciplinary proceeding to determine whether the license holder has |
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|
previously violated [committed] the same provision of this chapter |
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|
or rule adopted under this chapter [type of violation on one or more
|
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|
previous occasions]. �If it is determined that the license holder |
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|
has previously violated [committed] the same provision of this |
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|
chapter or rule adopted under this chapter [type of violation], the |
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|
commission or administrative law judge shall impose a disciplinary |
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|
action that is more severe than that imposed on the previous |
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|
occasion. |
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|
�������SECTION�32.��Section 651.658(d), Occupations Code, is |
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|
amended to read as follows: |
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|
�������(d)��If the license is expired for longer than 30 days, the |
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|
crematory establishment may not operate a crematory until the |
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|
renewal fee and late payment penalty are paid [A person may not
|
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|
renew a license that has been expired for more than 30 days. A
|
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|
person holding a license that has been expired for more than 30 days
|
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|
must apply for a new license as required by this subchapter to
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|
conduct a crematory business]. |
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|
�������SECTION�33.��The following are repealed: |
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|
�������������(1)��Section 716.004(b), Health and Safety Code; and |
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|
�������������(2)��Sections 651.304(b) and (c), 651.651(3), and |
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|
651.656(d), Occupations Code. |
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|
�������SECTION�34.��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 |
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|
in effect for that purpose. |
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|
�������SECTION�35.��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 |
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|
section, an offense was committed before the effective date of this |
�
|
Act if any element of the offense was committed before that date. |
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|
�������SECTION�36.��Sections 651.165(d), 651.354, and 651.658(d), |
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|
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. |
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|
�������SECTION�37.��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. |
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|
�������SECTION�38.��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. |
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|
�������SECTION�39.��Not later than January 1, 2010, the Texas |
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|
Department of Banking shall provide the initial list of perpetual |
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|
care cemeteries to the Texas Funeral Service Commission as required |
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|
by Section 651.355, Occupations Code, as added by this Act. |
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|
�������SECTION�40.��This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
� |
���President of the Senate |
Speaker of the House����� |
� |
� |
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|
�������I certify that H.B. No. 1468 was passed by the House on April |
�
|
22, 2009, by the following vote:��Yeas 145, Nays 0, 1 present, not |
�
|
voting; and that the House concurred in Senate amendments to H.B. |
�
|
No. 1468 on May 18, 2009, by the following vote:��Yeas 142, Nays 0, |
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|
2 present, not voting. |
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|
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|
______________________________ |
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|
Chief Clerk of the House��� |
� |
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|
�������I certify that H.B. No. 1468 was passed by the Senate, with |
�
|
amendments, on May 14, 2009, by the following vote:��Yeas 31, Nays |
�
|
0. |
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______________________________ |
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|
Secretary of the Senate��� |
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|
APPROVED: __________________ |
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����������������Date������� |
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� |
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�������� __________________ |
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��������������Governor������� |