HBA-GUM C.S.H.B. 3516 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3516
By: Marchant
Public Health
4/27/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Recently, the commissioners of the Texas Funeral Service Commission, which
has regulated the funeral industry since 1932, voted unanimously to
discharge the executive director.  C.S.H.B. 3516 amends Article 4582b,
V.T.C.S., to clarify the responsibilities of the commissioners in
connection with the governing of the agency and shifts existing authority
of the executive director to the board of the commission.  The substitute
also clarifies language regarding fines that can be imposed and hearings
before such fines become final. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority of the Texas Funeral Service Commission is modified in SECTION 8
of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subsection C, Section 1, Article 4582b, V.T.C.S., to
include a transfer of a dead human body to and from an airport, a
crematory, or both an airport and a crematory among the instances when a
dead human body is authorized to be transferred without a licensed funeral
director personally making the transfer. 

SECTION 2.  Amends Subsection A(1), Section 2, Article 4582b, V.T.C.S., to
provide that the Texas Funeral Service Commission (commission)  consists of
six, rather than nine, commissioners.  Provides that two commissioners must
hold a license as both an embalmer and a funeral director, rather than
providing that four commissioners must be licensed embalmers or funeral
directors, in this state. Provides that four, rather than five,
commissioners must be representatives of the general public. Makes
conforming and nonsubstantive changes. 

SECTION 3.  Amends Subsection A(2), Section 2, Article 4582b, V.T.C.S., to
provide that one-third of the six-year terms of the commissioners expire in
each odd-numbered year.  Creates an exception to a commissioner's
ineligibility to serve for more than one full term of service, to authorize
a commissioner appointed to fill an unexpired term with less than three
years remaining in the unexpired term to be reappointed to the commission
for one full term of service. 

SECTION 4.  Amends Subsection A(5), Section 2, Article 4582b, V.T.C.S., to
provide that one of the two commissioners authorized to participate in an
informal conference relating to a case that awaits a hearing must hold a
license as both a funeral director and embalmer, rather than be a licenced
funeral director or embalmer.  Prohibits a commissioner who has a personal
or private interest, or is employed by an entity with a personal or private
interest in a measure, proposal, or decision pending before the commission,
from voting or participating in an informal conference relating to that
interest. 

SECTION 5.  Amends Subsection A(6), Section 2, Article 4582b, V.T.C.S., to
provide that a violation of this subdivision's prohibition against certain
corporate officers or employees serving on the commission which occurs
after a member is appointed constitutes a vacancy of each of those member's
positions, as of the date of the completion of the merger or other
agreement.  Requires  the governor to fill a vacancy under this subdivision
as soon as practicable, and provides that the appointed member serves for
the remainder of the vacated term. 

 SECTION 6.  Amends Subsection A(7), Section 2, Article 4582b, V.T.C.S., to
delete existing text prohibiting a person from acting as the general
counsel to the commission if the person is required to register as a
lobbyist. 

SECTION 7.  Amends Subsection D, Section 2, Article 4582b, V.T.C.S., to
require the governor to designate a public member of the commission, rather
than one commissioner, as the presiding officer, rather than the chairman,
of the commission to serve in that capacity at the pleasure of the
governor. Requires the commission to elect, as provided by this subsection,
a public member, rather than a vice chairman and secretary from the
commissioners, to serve as assistant presiding officer as provided by this
subsection.  Makes conforming changes. 

SECTION 8.  Amends Subsection E, Section 2, Article 4582b, V.T.C.S., to
require the commission to file annually with the governor a report on the
commission's compliance with Subsections (P) (relating to the development
and implementation of policies that define the responsibilities of the
commission and its staff) and (Q) (relating to a written plan to provide
access to a person who does not speak English or who has a disability to
the commission's program) of this section (The Board). 

SECTION 9.  Amends Subsection H, Section 2, Article 4582b, V.T.C.S., to
require the commission to employ and supervise an executive director to
manage the administrative affairs of the commission under Article 4582b
(Funeral directing and embalming), V.T.C.S.  Requires the commission to
determine the terms and conditions of the employment and set the salary of
the executive director at an amount not to exceed the maximum salary for
the position under the General Appropriations Act. Authorizes the
commission to delegate the commissioner's duties to the executive director.
Requires the attorney general to designate at least one employee of that
office to advise and represent the commission in legal proceedings.
Prohibits the commission from employing legal counsel except as provided by
Section 402.0212 (Provision of Legal Services - Outside Counsel),
Government Code. Deletes existing text to make a conforming change. 

SECTION 10.  Amends Subsection K, Section 2, Article 4582b, V.T.C.S., to
require all meetings, including meetings of the committees of the
commissioners, rather than all meetings of the commission, to be open and
public.  Provides that a member of the public is not required to provide
notice to the commission before appearing and speaking before the
commissioner under this subsection. 

SECTION 11.  Amends Subsection L, Section 2, Article 4582b, V.T.C.S., to
authorize the commission by order to grant the executive director the power
to issue subpoenas and subpoenas duces tecum in connection with a complaint
under investigation by the commission.  Makes a conforming change. 

SECTION 12.  Amends Subsection O, Section 2, Article 4582b, V.T.C.S., to
update statutory references concerning open meetings and administrative
procedure.  Provides that the commission's duties under Chapter 551,
Government Code, include the requirement to prepare and maintain the
minutes of each open meeting under that chapter.  Makes conforming changes. 

SECTION 13.  Amends Section 2, Article 4582b, V.T.C.S., by adding
Subsection V, to provide that a request for an opinion under Subchapter C
(Opinions), Chapter 402, Government Code, must be approved by a majority of
the commissioners. 

SECTION 14.  Amends Subsection T, Section 2, Article 4582b, V.T.C.S., to
make a conforming change. 

SECTION 15.  Amends Section 2A(d), Article 4582b, V.T.C.S., to provide that
the programs required under Subsections (a) (relating to an intra-agency
career ladder program) and (b) (relating to a system of annual evaluation)
along with a policy statement prepared under Subsection (c) (relating to
the implementation of a program of equal employment opportunity) must cover
an annual period, be updated at least annually, and be filed with the
governor's office. 

SECTION 16.  Amends Subsection F, Section 3, Article 4582b, V.T.C.S., to
require, rather than authorize, the commission to waive a license
requirement for an applicant with a valid license from another state having
license requirements substantially equivalent to those of this state, and
to authorize the commission to waive any license requirement for an
applicant with a license from another state that  does not have license
requirements substantially equivalent to those of this state, if the
applicant meets the requirements established under this subsection.
Requires the commission to conduct a criminal background check on each
applicant.  Provides that an applicant is not eligible for a reciprocal
license if the applicant has been convicted of a misdemeanor involving
moral turpitude or a felony within the previous ten years.  Provides that
an applicant for a reciprocal license must provide proof that the applicant
satisfies certain specified conditions. 

SECTION 17.  Amends Subsection H, Section 3, Article 4582b, V.T.C.S., to
authorize the commission to assess an administrative penalty before, rather
than without, a hearing or a waiver of a right to a hearing, if the penalty
is assessed in the manner provided by Section 6G (Administrative Penalty),
Article 4582b, V.T.C.S.  Updates a statutory reference concerning prepaid
funeral services.  Makes conforming and  nonsubstantive changes. 

SECTION 18.  Amends Subsection I, Section 3, Article 4582b, V.T.C.S., to
authorize the commission to issue such rules and regulations as may be
necessary, rather than necessary or desirable, to effect the intent of the
provisions of this section (Licenses-funeral directors and embalmers). 

SECTION 19.  Amends Section 4, Article 4582b, V.T.C.S., as follows:

Sec. 4.  FUNERAL ESTABLISHMENTS.  (A)  Makes no change.

(B)  Updates a statutory reference.

(C)  Provides that an embalming service, whether provided at a funeral
establishment or other embalming facility licensed under this Act, must
comply with this Act or a rule adopted under it.  Makes conforming changes. 

(D)  Authorizes the commission to exempt a funeral establishment from the
requirements of Subsection C.1.(D) (relating to a preparation room for
embalming services) of this section (Licenses-funeral directors and
embalmers) if the majority owner or designated agent of record of a funeral
establishment submits a written petition to the commission requesting an
exemption and stating certain specified information and the commission
determines that the criteria in Subsection (A) (relating to the criteria in
a written petition to the commission requesting an exemption by the
majority owner or designated agent of record of a funeral establishment) of
this subsection have been met.  Requires the executive director to notify
the petitioner of the commission's decision.  Provides that the exemption
remains in effect until the establishment is no longer located within 50
miles of a facility at which embalming services are performed, or an
embalming service has been performed at the establishment.  
(E)  Redesignated from existing Subsection (D).   Authorizes the commission
to assess an administrative penalty before, rather than without, a hearing
or a waiver of a right to a hearing if the penalty is assessed as provided
by Section 6G, Article 4582b, V.T.C.S. Authorizes the commission to refuse
before, rather than without, a hearing to license an establishment if an
owner of the establishment has been found to have committed an act listed
in Subsection (B) (relating to the issuance of an establishment license).
Authorizes a funeral establishment alleged to have violated this section to
waive the right to a hearing as provided by Section 6C, Article 4582b.
Provides that a violation of Article 4582 does not include solicitation
made pursuant to a permit issued under Subchapter C, Chapter 154, Finance
Code, rather than Article 548b, V.T.C.S.  Provides that a violation by a
funeral establishment, a person acting on behalf of a funeral establishment
or a person directly or indirectly connected with a funeral establishment
of Chapter 154, Finance Code, rather than Article 548b, or a rule adopted
under that chapter, rather than article, is a violation of this Act. 

(F)  Redesignated from existing Subsection (E).

(G)  Redesignated from existing Subsection (F).

(H)  Redesignated from existing Subsection (G).
 
(I)  Redesignated from existing Subsection (H).

(J)  Redesignated from existing Subsection (I).  Requires the commission,
the Texas Department of Insurance, rather than the Board of Insurance, and
the Banking Department of Texas to adopt a joint memorandum of
understanding relating to prepaid funeral services and transactions as
provided by this subsection. 

(K)  Redesignated from existing Paragraph (J).

SECTION 20.  Amends Subsection B, Section 5, Article 4582b, V.T.C.S., to
provides that all rules adopted by the commission are subject to Chapter
2001 (Administrative Procedure), Government Code, rather than Article
6252-13a, which was repealed by Acts of the 73rd Legislature, regular
session, 1993. 

SECTION 21.  Amends Section 6C, Article 4582b, V.T.C.S., as follows:

Sec. 6C.  New title:  APPLICATION OF ADMINISTRATIVE PROCEDURE ACT.  (a)
Entitles a person who is denied a license or provisional license by the
commission to a hearing before the commission in accordance with Chapter
2001 (Administrative Procedure), Government Code, rather than Article
6252-13a. 

(b)   Provides that a proceeding conducted by the commission relating to
the denial of a license or provisional license, the suspension or
revocation of a license, the imposition of an administrative penalty, or a
reprimand other than an administrative penalty assessed before, rather than
without, a hearing or waiver of a hearing as provided by Section 6G,
Article 4582b, is governed by the Chapter 2001 (Administrative Procedure),
Government Code, rather than Article 6252-13a. 

(c)  Requires, rather than authorizes, a proceeding brought under
Subsection (b) of this section to be held before an administrative law
judge employed by the State Office of Administrative Hearings, rather than
before a hearings officer.  Makes conforming changes. 

(d)  Makes no change.

(e)  Authorizes a funeral establishment alleged to have violated Article
4582b to waive the right to a hearing as provided by this section by
written notification to the commission. 

SECTION 22.  Amends Sections 6D(d) and (f), Article 4582b, V.T.C.S., as
follows: 

(d)  Deletes Subdivisions (1) and (2) providing that the information file
is public information, except for information obtained after investigating
a complaint, or is not public.  Makes conforming changes. 

(f)  Deletes existing text prohibiting a person who is subject to
regulation under this article from serving as an investigation, setting
forth the provisions for a person contracted to serve as an investigator.
Makes a conforming change. 

SECTION 23.  Amends Section 6F, Article 4582b, V.T.C.S., to provide that
the commissioners and the employees of the commission are subject to the
provisions of Chapter 2001 (Administrative Procedure), Government Code,
rather than Article 6252-13a. 

SECTION 24.  Amends Sections 6G (c) and (e), Article 4582b, V.T.C.S., as
follows: 

(c)  Provides that until an order has been entered after a hearing on the
possible violation, the amount to be assessed may be disclosed only to the
person or establishment charged with the violation, unless that person or
establishment has waived the right to a hearing or paid the amount to the
commission. 

(e)(1)  Adds language to authorize the person or establishment charged to,
not later than the  30th day after the date the order is sent or a motion
for rehearing is denied, contest either the amount of the penalty or the
fact of the violation.  Prohibits the person or establishment, if the
penalty that the person or establishment with wishes to contest is greater
than $,5000,  to, not later than a specified date, post a supersedeas bond
in a form approved by the commission for the amount of the penalty, or if
the person or establishment cannot pay the penalty or file the bond, files
an affidavit in the manner required for a person who cannot afford to file
security for costs, subject to the right of the commission to contest the
affidavit as provided by those rules.  Deletes existing text requiring the
person or establishment to remit the assessed amount to the commission for
deposit in an escrow account not later than a specified date. 

(2)  Requires the court to order, when the court's judgement becomes final,
the release of the bond if the person or establishment gave a supersedeas
bond, if, after judicial review, it is determined that no violation
occurred.  Requires the court if the person or establishment gave a
supersedeas bond and the amount of the penalty is reduced to order the
release of the bond after the person or establishment pays the reduced
amount.  Deletes existing text requiring the commission to remit the
appropriate amount to the person or establishment charged with the
violation not later than a specified date. 

SECTION 25.  Amends Section 6H, Article 4582b, V.T.C.S., to authorize the
commission to issue a letter of reprimand after a hearing conducted in the
manner provided by Section 6C, Article 4582b, or without a hearing if the
person or establishment waives a hearing, rather than as provided by this
section.  Deletes Subsections (b) and (c) to make a conforming change. 

SECTION 26.  Amends Section 6I, Article 4582b, V.T.C.S., to require the
commission or an administrative law judge employed by the State Office of
Administrative Hearings, rather than a hearings officer, to review each
disciplinary proceeding to determine whether the licensee has committed the
same type of violation on one or more previous occasions.  Makes conforming
changes. 

SECTION 27.  Effective date: September 1, 1999.
   Makes application of this Act prospective.

SECTION 28.  (a)  Provides that the terms of the members of the commission
serving on the effective date of this Act expire, and that policymaking
body as it existed immediately before the effective date of this Act is
abolished on the effective date of this Act. 

(b)  Requires the governor, as soon as practicable after the effective date
of this Act, to make appointments to the commission to accomplish the
membership plan for the commission established by Section 2, Article 4582b,
V.T.C.S.  Provides that this section does not prohibit a person who is a
member of the commission on the effective date of this Act, and who
possesses the qualifications required under Section 2, Article 4582b,
V.T.C.S., as amended by this Act, from being reappointed to the commission
under this subsection. 

(c)  Sets forth the terms of the members whom the governor is required to
appoint. 

SECTION 29.  Amends Subsection C, Section 2, Article 4582b, V.T.C.S., to
require the commission to meet in Austin, Texas in regular session at least
once each calendar quarter, rather than two times, for transaction of
business.  Makes conforming changes. 

SECTION 30.  Emergency clause. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute adds new SECTION 2 and redesignates SECTION 2 of the
original to SECTION 8 of the substitute.  New SECTION 2 amends Subsection
A(1), Section 2, Article 4582b, V.T.C.S., to modify the composition of the
Texas Funeral Service Commission (commission).  For a complete analysis
please see the Section-by-Section Analysis in this document. 

The substitute adds new SECTION 3 and redesignates SECTION 3 of the
original to SECTION 9 of the substitute.  New SECTION 3 amends Subsection
A(2), Section 2, Article 4582b, V.T.C.S., to set  forth the expiration
dates of the terms of the commissioners, and create an exception to a
commissioner's inability to serve for more than one full term of service,
by authorizing a commissioner appointed to fill an unexpired term with less
than three years remaining in the unexpired term to be reappointed to the
commission for one full term of service. 

The substitute adds new SECTION 4 and redesignates SECTION 4 of the
original to SECTION 10 of the substitute.  New SECTION 4 amends Subsection
A(5), Section 2, Article 4582b, V.T.C.S., to provide that one of the two
commissioners authorized to participate in an informal conference relating
to a case that awaits a hearing must hold a license as both a funeral
director and embalmer, and to prohibit a commissioner who has a personal or
private interest, or is employed by an entity with a personal or private
interest in a measure, proposal, or decision pending before the commission,
from voting or participating in an informal conference relating to that
interest. 

The substitute adds new SECTION 5 and redesignates SECTION 5 of the
original to SECTION 11 of the substitute.  New SECTION 5 amends Subsection
A(6), Section 2, Article 4582b, V.T.C.S., to provide that a violation of
this subdivision that occurs after a member is appointed constitutes a
vacancy, which the governor is required to fill, of each of those member's
positions, as of the date of the completion of agreement, and provides that
the appointed member serves for the remainder of the vacated term. 

The substitute adds new SECTION 6 and redesignates SECTION 6 of the
original to SECTION 12 of the substitute.  New SECTION 6 amends Subsection
A(7), Section 2, Article 4582b, V.T.C.S., to delete existing text
prohibiting a person from acting as the general counsel to the commission
if the person is required to register as a lobbyist. 

The substitute adds new SECTION 7 and deletes SECTION 7 of the original,
which amended Section 2, Article 4582b, V.T.C.S., to add Subsection (U), to
prohibit a commission employee from being compensated by the commission if
that employee is an officer of a state executive committee of a political
party.  New SECTION 7 amends Subsection D, Section 2, Article 4582b,
V.T.C.S., to require the governor to designate a public member of the
commission as the presiding officer, rather than one commissioner as the
chairman, of the commission, and require the commission to elect a public
member, rather than a vice chairman and secretary from the commissioners,
to serve as assistant presiding officer. 

In SECTION 8, the substitute makes a nonsubstantive change.

In SECTION 9, the substitute sets forth the maximum salary of the executive
officer.  SECTION 9 also requires the attorney general to designate at
least one employee to advise and represent the commission in legal
proceedings, and prohibits the commission from employing legal counsel
except as provided by Section 402.0212 (Provision of Legal Services -
Outside Counsel), Government Code.  The substitute deletes existing text to
make a conforming change. 

In SECTION 12, the substitute provides that the commission's duties under
Chapter 551, Government Code, include the requirement to prepare and
maintain the minutes of each open meeting. 

In SECTION 13, the substitute makes a nonsubstantive change.

The substitute adds SECTION 14 and redesignates SECTION 14 of the original
to SECTION 20 of the substitute.  New SECTION 14 amends Subsection T,
Section 2, Article 4582b, V.T.C.S., to make a conforming change. 

The substitute redesignates SECTIONS 9 and 10 of the original to SECTIONS
15 and 16 of the substitute.  In SECTION 16, the substitute reinstates
existing text  requiring the commission to waive any license requirement
for an applicant with a license from another state having license
requirements substantially equivalent to those of this state, which was
deleted in the original.  The substitute authorizes the commission to waive
a license requirement for an applicant with a license from another state
that does not have license requirements substantially equivalent to those
of this state.  The substitute also differs from the original in SECTION 16
requiring the commission to conduct a criminal background check on each
applicant, and provides that an applicant is not eligible if the applicant
has  been convicted of a misdemeanor involving moral turpitude or a felony
within the 10 years preceding the date of the application.  SECTION 16 of
the substitute also provides that the applicant for a reciprocal license
must provide certain specified proof relating to a license issued by a
state that does not have license requirements substantially equivalent to
those of this state. 

In SECTION 17, the substitute authorizes the commission to assess an
administrative penalty before, rather than without, a hearing or a waiver
of a right to a hearing, if the penalty is assessed in a specified manner.
The substitute does not address  existing text, which the original deleted,
authorizing a person whose license or provisional license application is
refused to appeal the decision by requesting a hearing by a specified date.
The substitute also modifies SECTION 11 of the original to make conforming
changes. 

The substitute redesignates SECTIONS 12 and 13 of the original to SECTIONS
18 and 19 of the substitute.  In SECTION 19, the substitute updates a
statutory reference, and specifies that a funeral establishment may be
exempted from having a preparation room if the establishment is located
within 50 miles of a facility, if the facility is owned by the
establishment requesting the exemption.  The substitute also differs from
the original in SECTION 19 by amending, rather than deleting, existing text
to authorize the commission to assess an administrative penalty before,
rather than without, a hearing or a waiver of a right to a hearing if the
penalty is appropriately assessed.  The substitute also modifies the
original to authorize the commission to refuse before, rather than after, a
hearing or a waiver of a right to a hearing to license an establishment
under a specified condition.  The substitute reinstates existing text,
which was deleted in the original, regarding authorizing an establishment
whose license is refused to appeal the decision by requesting a hearing not
later than a specified date. 

The substitute redesignates SECTIONS 14 and 15 of the original to SECTIONS
20 and 21 of the substitute.  In SECTION 21, the substitute reinstates and
amends existing language providing that a proceeding conducted by the
commission relating to a reprimand other than an administrative penalty
assessed after, rather than before, a hearing or waiver of a hearing as
provided by Section 6G, Article 4582b, is governed by the Chapter 2001
(Administrative Procedure), Government Code, rather than Article 6252-13a.
The substitute also differs from the original in SECTION 21 by making
conforming changes, and authorizing a funeral establishment alleged to have
violated Article 4582b to waive the right to a hearing by written
notification to the commission. 

The substitute redesignates SECTION 16 of the original to SECTION 22 of the
substitute.  The substitute reinstates existing text relating to the
notification to the parties to the complaint of the status of the complaint
if the notice jeopardizes an under cover investigation.  The substitute
deletes existing Subsections (d)(1) and (2), Section 6D, Article 4582b,
V.T.C.S., which exempted information obtained after an inspection or an
investigation of a complaint, or information relating to a complaint that
has not reached a final disposition from being public information.  The
substitute does not address Subsection (f), Section 6D, relating to a
person contracted to investigate complaints of consumer interest and other
complaints.  SECTION 17 of the original is redesignated to SECTION 23 of
the substitute. 

The substitute deletes SECTION 18 which amended Section 6G (Administrative
Penalty), Article 4582b, V.T.C.S.  The substitute adds SECTION 24 to amend
Subsections (c) and (e), Section 6G, Article 4582b, V.T.C.S., which SECTION
18 of the original deleted, relating to disclosure of the amount to be
assessed to the person or establishment charged with the violation,
contesting an administrative penalty after a hearing when the court
determines a violation has occurred, and release of the bond when the court
determines no violation has occurred.  For a complete analysis please see
the Section by Section Analysis.  

The substitute redesignates SECTIONS 19-21 of the original to SECTIONS
25-27 of the substitute. 
In SECTION 26, the substitute makes conforming changes.

The substitute adds SECTION 28 relating to the terms of the members of the
commission serving on the effective date of this Act, and to appointments
to the commission to accomplish member ship plan for the commission.  For a
complete analysis please see the Section-by-Section Analysis in this
document. 

 The substitute also adds SECTION 29 to amend Subsection C, Section 2,
Article 4582b, V.T.C.S., to require the commission to meet at least once
each calendar quarter, rather than two times, in Austin, Texas, for
transaction of business.  The substitute redesignates SECTION 22 of the
original to SECTION 30 of the substitute.