The Texas Funeral Service Commission adopts the repeal of Title 22, Part 10, Chapter 205, §§205.1 - 205.3, concerning Registration and Enforcement--Specific Substantive Rules and adopts new Chapter 205, §§205.1, 205.3, 205.5, 205.7, 205.9, 205.11, 205.13, and 205.15, concerning Cemeteries and Crematories. New §205.3, concerning Crematory License Requirement and Procedure; §205.11, concerning Prerequisites for Cremation; §205.13, concerning Written Waiver of Identification Required; and §205.15, concerning Commingling Limitations are adopted with changes to the proposed text as published in the June 25, 2004, issue of the Texas Register (29 TexReg 6026). The repeal and new §205.1, concerning Cemetery License Requirements and Procedure; §205.5, concerning Acceptance of Remains; §205.7, concerning Waiting Period for Cremation; and §205.9, concerning Crematory Annual Report, Extension for Good Cause and Late Fees are adopted without changes to the proposal and will not be republished.

The repeal of Chapter 205 and the adoption of new Chapter 205 will include in one Chapter the licensing and fee requirements for cemeteries and crematories, as well as the crematory rules the commission is authorized to adopt under House Bill 1538, 78th Legislature, Regular Session.

Section 205.1 describes the cemeteries that are required to be licensed by the commission and the procedure for obtaining and renewing a license.

Section 205.3 describes the procedure for obtaining and renewing a crematory license.

Section 205.5 sets forth the statutory prohibition that a crematory not licensed as a funeral establishment may not accept human remains for cremation unless authorized to do so by a justice of the peace or medical examiner in the county in which death occurred.

Section 205.7 provides that cremation may not occur within 48 hours following the time of death, unless the waiting period is waived by a justice of the peace or medical examiner in the county in which death occurred.

Section 205.9 establishes the calendar year as the period to be covered by a crematory's annual report, requires the report to be postmarked by January 30 next following the calendar year for which the report is made, defines "good cause," establishes a procedure for obtaining an extension of no more than 60 days for filing the annual report based on good cause, and restates the statutory late fee of $100 per day for failure to timely file the annual report.

Section 205.11 describes the documentation required as a prerequisite to conducting the cremation of deceased human remains.

Section 205.13 requires a waiver of identification to be written.

Section 205.15 places conditions on the commingling of deceased human remains with non-human materials or remains, unless specifically disclosed on the cremation authorization form.

The Commission received no comments regarding the repeal of Chapter 205, §§205.1 - 205.3.

The Texas Funeral Director's Association (commenter) furnished comments on all the proposed new sections, except §205.7 and §205.9. The comment on §205.13 was against the rule. All the other comments supported the proposal, with certain modifications.

Commenter stated that §205.1 should include the statutory requirement of Occupations Code, §651.354(a) that the commission mail written notice to a cemetery of the impending expiration of the cemetery's license 30 days before expiration. The commission disagrees. The commission is required to follow the dictates of §651.354(a). No need exists to include a statutory requirement imposed on the commission in this rule describing the process for obtaining and renewing a cemetery license. The commission has been giving the requisite 30 days' notice since it was authorized to register cemeteries and will continue doing so in the future.

Commenter pointed out a citation error in §205.3 as proposed. The reference to §205.7 should be §205.9. The commission agrees. The adopted section contains the correct cite.

Commenter stated that §205.3 "would require an applicant to comply with §651.658(a), Occupations Code, in order to receive a renewed license for a crematory. Section 651.658(a)(1), Occupations Code, requires the filing of an annual report listing the number of cremations performed at the crematory during the previous year. Section 651.658(e), Occupations Code, and proposed §205.3(c) - (e) permits the commission to grant an extension for filing the required annual report. However, the language as proposed would not permit the issuance of a license until such time as the report with an authorized extension were filed as the extension is not addressed in subsection (a). TFDA believes it was the intent of the legislature to permit crematory establishments to receive a renewed license if the establishment has paid the renewal fee, provided the information required by §651.657, Occupations Code, and either filed the required report or has been granted an extension by the commission for filing the annual report."

Commenter recommended that the following language should be added to proposed §205.3(f) "... applicant has met the requirements of Texas Occupations Code §651.658(a) or the applicant has met the requirements of §651.658(a) with the exception of filing the annual report and the applicant has been granted an extension for filing the report by the commission."

The commission disagrees. Occupations Code, §651.658(a)(1) requires a crematory establishment to file an annual report before its license may be renewed. The commission is authorized by §651.658 to grant extensions for filing the annual reports of up to 60 days based on good cause. The commission is not authorized by §651.658, however, to issue a renewal license to a crematory establishment during the extension period. The annual report is for the calendar year. The crematory license is for one year, but more than likely that year will not be the calendar year.

Commenter suggested that §205.5 be clarified to reflect the holding of Attorney General Opinion GA-0218 (2004) that an authorizing agent may contract directly for crematory services if the crematory is licensed as a funeral establishment or if the cremation is authorized by a medical examiner or justice of the peace in the county where death occurred.

The commission does not disagree with the comment. Section 205.5 as proposed, however, is directed to crematory establishments not licensed as funeral establishments. The commission will adopt §205.5 as proposed and intends to propose the suggested language as a separate rule.

Commenter observed that the cite to Health and Safety Code, §715.051 in §205.11 is incorrect. The commission agrees. The adopted section contains the correct cite.

Commenter suggested that the term "other death record" should be substituted for the term "burial transit permit" in §205.11 to mirror the wording of Health and Safety Code, §716.051. The commission agrees.

Commenter contends that the requirement in proposed §205.13 that a waiver of identification be in writing exceeds the commission's statutory authority. The commission disagrees. Health and Safety Code, §716.002 authorizes the commission to adopt rules consistent with Chapter 716 and the Occupations Code, Chapter 651. The commission believes that this section is consistent with Chapter 716. The requirement that the waiver be in writing will reduce the number of disputes that potentially could arise between authorizing agents and crematories if waivers of identification are allowed to be made verbally.

Commenter recommended alternative language for §205.15 that tracks the requirements of Health and Safety Code, §716.153(a) and §716.154(b). The commission agrees. Counsel for the commission has determined that the section as adopted affects no new individuals or entities and that compliance with the adopted version will be no more onerous than under the proposed version. Accordingly, republication as a proposed rule is not required.

The repeal is adopted under the authority of the Texas Occupations Code, §651.152 which authorizes the commission to issue such rules and regulations as may be necessary to administer Chapter 651. The repeal is also adopted under Health and Safety Code, §716.002. The commission interprets that section as authorizing it to adopt rules consistent with Health and Safety Code, Chapter 716 and the Occupations Code, Chapter 651.