81(R) HB 1468 - Enrolled version

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�	H.B.�No.�1468

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�	AN ACT
�	relating to the regulation of funeral services, 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.��Subtitle B, Title 8, Health and Safety Code, is
�	amended by adding Chapter 695 to read as follows:
�	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.
�	��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.
�	��Sec.�695.003.��RULES. �The commission may adopt rules to
�	enforce this chapter.
�	��SECTION�3.��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�4.��Section 711.012(b), Health and Safety Code, is
�	amended to read as follows:
�	��(b)��The Texas Funeral Service Commission may adopt rules,
�	establish procedures, and prescribe forms to enforce and administer
�	Sections 711.003, 711.008, 711.010, 711.011, 711.021-711.035,
�	711.038, 711.0395, 711.041, 711.042, 711.052,�711.061, and 711.062
�	relating to cemeteries that are not perpetual care cemeteries.
�	��SECTION�5.��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�6.��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�7.��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�8.��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�9.��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�10.��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�11.��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�12.��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�13.��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�14.��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�15.��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�16.��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�17.��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�18.��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�19.��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�20.��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�21.��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�22.��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�23.��The heading to Section 651.267, Occupations
�	Code, is amended to read as follows:
�	��Sec.�651.267.��REISSUANCE OF REVOKED LICENSE.
�	��SECTION�24.��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�25.��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�26.��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 that is:
�	��(1)��located on the real property of a public junior
�	college; and
�	��(2)��operated in connection with an accredited
�	educational program in funeral services offered by the public
�	junior college.
�	��SECTION�27.��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�28.��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�29.��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�30.��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�31.��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�32.��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�33.��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�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
�	in effect for that purpose.
�	��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
�	section, an offense was committed before the effective date of this
�	Act if any element of the offense was committed before that date.
�	��SECTION�36.��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�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.
�	��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.
�	��SECTION�39.��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�40.��This Act takes effect September 1, 2009.
�
�
�	______________________________	______________________________
�	��President of the Senate	Speaker of the House��
�
�
�	��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,
�	2 present, not voting.
�
�	______________________________
�	Chief Clerk of the House��
�
�	��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.
�
�	______________________________
�	Secretary of the Senate��
�	APPROVED: __________________
�	��Date��
�	�
�	�� __________________
�	��Governor��