Untitled Texas Attorney General Opinion

OFFICEOF THEATTORNEY

GENERAL ST*TEOF TEXliS

JOHN CORNYN

June 2, 1999

The Honorable Ken Armbrister Opinion No. JC-0059

Chair, Committee on Criminal Justice

Texas State Senate Re: Whether article 4582b of the Revised Civil

P.O. Box 12068 Statutes and Texas Funeral Service Commission

Austin, Texas 78711 rules preclude a funeral establishment designating

the embalming facilities of another funeral

establishment as its embalming room, from

retaining a licensed embalmer as an independent

contractor, and related questions (RQ-0054)

Dear Senator Armbrister:

You ask a variety of questions about article 4582b of the Revised Civil Statutes, TEX.REV.

CIV. STAT.ANN. art. 4582b (Vernon 1976 & Supp. 1999), which governs funeral directing and

embalming, and the authority of the Texas Funeral Service Commission to regulate the funeral

service industry. Because article 4582b requires each funeral establishment to have an on-site

embalming room, see id. § 4(C) (V emon Supp. 1999), we conclude that a funeral establishment may

not designate an off-site embalming facility to satisfy this statutory requirement. We also conclude

that a licensed embalmer may work as an independent contractor for a funeral establishment on the

premises of the funeral establishment or in the embalming room of another licensed funeral

establishment. Because neither article 45821, nor the Texas Funeral Service Commission rules, see

22 TEX.ADMIN.CODEch. 203 (1998), require a funeral establishment to make disclosures about the

location of embalming when permission to embalm is given orally, none is required. Neither article

4582b nor the Commission rules require an embalmer who has no contractual relationship with the

customer to make price disclosures to the customer, nor do the statute or rules generally require the

funeral establishment to disclose the price charged to the funeral establishment for embalming by

the embalmer. Finally, we conclude that if the Commission employs in-house an investigator, the

investigator must meet one ofthe three qualifications listed in section 6D(f)( l)-(3) of article 4582b.

A person employed by the Commission as an inspector may serve as an investigator if he or she

meets one of these three qualifications.

We begin with a brief review of the statutory and regulatory framework. Article 4582b

establishes the Texas Funeral Service Commission (the “Commission”) composed of nine

commissioners appointed by the Governor with the consent of the Senate. TEX. F&v. CIV. STAT.

The Honorable Ken Armbrister - Page 2 (.Jc-0059)

ANN.art. 4582b, 5 2 (Vernon Supp. 1999).’ Among other responsibilities, the Commission licenses

persons, namely funeral directors and embalmers, id. 5 3, and premises, namely funeral

establishments and commercial embalming establishments, id. 5 4.

Article 4582b provides that a “funeral director” is “a person who for compensation engages

in or conducts, or who holds himself out as being engaged, for compensation, in preparing, other

than by embalming, for the burial or disposition of dead human bodies.” Id. 5 l(A)(l). Such a

person must hold a funeral director license. Id. § l(A)(2). Au “embalmer” is a “person who for

compensation disinfects or preserves a dead human body” by various means. Id. § l(D). All persons

who engage in the practice of embalming must be licensed embalmers. Id. Article 4582b authorizes

the Commission “to prescribe and maintain a standard of proficiency, professionalism, and

qualifications of those engaged. in the practice of a funeral director or embalmer and to determine

the qualifications necessary to enable any person to lawfully practice as a funeral director, to embalm

dead human bodies, and to collect fees therefor.” Id. 5 3A.

The Commission is also authorized to license two types ofpremises, funeral establishments

and commercial embalming establishments. Id. 5 4(A)-(C). The term “funeral establishment” refers

to “a place of business used in the care and preparation for burial or transportation of dead human

bodies, or any place where one or more persons, either as sole owner, in co-partnership, or through

corporate status, represent themselves to be engaged in the business of embalming and/or funeral

directing, or are so engaged.” Id. § l(G). Section 4(C) of article 4582b requires a funeral

establishment to have a physical plant, equipment, and personnel consisting of the following eight

items:

1. Some facilities in which funeral services may be conducted;

2. A physical plant which meets building standards and fire safety

standards of the state and of the municipality in which the

establishment is located;

3. Access to rolling stock consisting of at least one motor hearse;

4. A preparation room containing facilities, equipment, and supplies

required by commission rule to ensure the provision of adequate

embalming services and other facilities necessary to comply with the

sanitary code of the state and the municipality in which the room is

located;

‘House Bill 3516, which has passed both Houses of the Texas Legislature and is awaiting the Governor’s

signature, would change the composition of the Commission and reduce the number of commissioners from nine to six.

See Act of May 24, 1999, 76th Leg., RX, H.B. 3516 (to be codified at TEX.REV.CIV. STAT.ANN.art. 4582b)

(amending section 2(A)(l) of article 4582b).

The Honorable Ken Armbrister - Page 3 (JC-0059)

5. A display containing sufficient merchandise to permit reasonable

selection, including five (5) or more adult caskets . ;

6. Sufficient licensed personnel who will be available to conduct the

operation of the funeral establishment;

7. A physical plant located at a fixed place, and not located on any

tax-exempt property or cemetery; and

8. A physical plant which meets the health standards or health

ordinances of the state and of the municipality in which the

establishment is located.

Id. 9 4(C).

A “commercial embalming establishment” is one that “embalms for licensed funeral

establishments and does not sell any services or merchandise directly or at retail to the public.”

Id. 5 l(L). Pursuant to section 4(C), an establishment that functions solely as a commercial

embalmer must have a “commercial embalmers establishment license” but is not “required to meet

the requirements of sub-sections 1 and 5 of this paragraph.” Id. $ 4(C). In other words, unlike a

funeral establishment, a commercial embalming establishment is not required to have “facilities in

which mneral services may be conducted,” id. 9 4(C)(l), or a merchandise display, id. 5 4(C)(5).

Article 4582b does not contain any other provisions that pertain only to commercial embalming

establishments and often uses the term “funeral establishment” to refer to both commercial

embalming establishments that embalm for funeral establishments and funeral establishments that

provide a full range of services directly to the public. See, e.g., id. $5 l(G), 4(A), (B), (D)-(J).

In addition to the authority to license, the Commission is empowered to “adopt rules and

prescribe forms necessary to administer” article 4582b pursuant to the Administrative Procedures

Act. Id. $ 5(A), (B); see also id. 94 3(I) (authorizing Commission to issue rules to effect intent of

section 3 funeral director and embalmer licensing provisions); 4(F) (authorizing Commission to issue

rules to effect intent of section 4 funeral establishment licensing provisions). The Commission is

authorized to discipline licensed funeral directors and licensed embalmers, see id. 5 3(H), and funeral

establishments and commercial embalming establishments, see id. 5 4(D), and to assess

administrative penalties against or reprimand a regulated person or establishment in violation of

article 4582b or a Commission rule, id. $5 3(H), 4(D), 6G, 6H. The Commission must inspect

funeral establishments and commercial embalming establishments annually, id. 5 4(G), and is also

authorized to investigate complaints against its licensees, id. 5 6D.

In answering your questions, in addition to discussing article 458213, we will address

Commission rules implementing and interpreting article 4582b, see 22 TEX. ADMIN.CODEch. 201

(1998) (practice and procedure); ch. 203 (substantive rules), and pertinent Federal Trade

Commission regulations governing funeral industry practices, see 16 C.F.R. pt. 453 (1999). The

The Honorable Ken Armbrister - Page 4 (JC-0059)

federal regulations do not apply in a state if an appropriate state agency applies for an exemption and

the Federal Trade Commission determines that state law provides the same or greater protection to

consumers. See id. 4 453.9. Commission counsel informs us that Texas has not obtained an

exemption from these federal regulations. Finally, we note that legislation awaiting the Governor’s

signature would amend article 4582b in ways that would affect some of the conclusions of this

opinion. See infra notes 2,3,5. We address article 4582b only as currently in effect.

In considering article 4582b and the Commission’s authority, we rely on the following rules

of statutory construction: Legislative intent is determined from a general view of the whole

enactment in question. Citizens Bankv. First State Bank, 580 S.W.2d 344,348 (Tex. 1979). The

interpretation of a statute by implication is permitted to supply an obvious intent not expressly

stated, but not to add to what the statute provides expressly. Massachusetts v. United N. & S. Dev.

Co., 168 S.W.2d 226, 229 (Tex. 1942). Nor may we interpret statutory provisions to permit the

making of agency “standards which are different from or inconsistent with the statute, even though

they may be reasonable and may be administered reasonably.” Bloom v. Texas State Bd. ofExam ‘rs

of Psychologists, 492 S.W.2d 460,462 (Tex. 1973).

We also keep in mind these limitations on agency authority: “‘[AIn agency can adopt only

such rules as are authorized by and consistent with its statutory authority.“’ Railroad Comm ‘n v.

Arco Oil & Gas, 876 S.W.2d 473,481 (Tex. App.-Austin 1994, writ denied) (citations omitted).

An agency may not, “‘on a theory of necessary implication from a specific power, function, or duty

expressly delegated, erect and exercise what really amounts to a new and additional power or one

that contradicts the statute, no matter that the new power is viewed as being expedient for

administrative purposes.“’ Public Util. Comm ‘nv. GTE-Southwest, Inc., 901 S.W.2d 40 1,407 (Tex.

1995) (quoting Sexton v. Mount Oliver Cemetery Ass ‘n, 720 S.W.2d 129,137-38 (Tex. App.-Austin

1986, writ refd n.r.e.)). Nor may an agency rule “impose additional burdens, conditions, or

restrictions in excess of or inconsistent with the relevant statutory provisions.” AI-CO,876 S.W.2d

at 481.

With this outline of the basic legal framework, we turn to your questions. You ask eleven

questions covering a number of issues regarding the requirements of article 4582b and Commission

rules and the authority ofthe Commission. See Letter from Honorable Ken Armbrister, Texas State

Senate, to Honorable John Comyn, Texas Attorney General (April 9, 1999) (on tile with Opinion

Committee) [hereinafter “Request Letter”]. We begin with your question about funeral

establishments and embalming facilities.

I. FUNERAL ESTABLISHMENTS AND EMBALMING FACILITIES

You ask if “two or more separate, licensed funeral establishments [may] use a common

funeral establishment as their designated embalming facility.” Request Letter, supra, at 2 (question

no. 5). Because article 4582b requires each funeral establishment to have an on-site embalming

room, we conclude that a funeral establishment may not designate an off-site embalming facility to

satisfy this statutory requirement.

The Honorable Ken Armbrister - Page 5 (JC-0059)

Section 4(C)(4) of article 4582b requires “[elach funeral establishment. to have a physical

plant consisting” inter alia of “[a] preparation room containing facilities required by

commission rule to ensure the provision of adequate embalming services.” TEX. REV. CIV. STAT.

ANN. art. 4582b $ 4(C)(4) (Vernon Supp. 1999). The Commission may discipline a funeral

establishment for failure to comply with section 4(C). Id. 5 4(D)(l)(a). This oftice recently

concluded that the Commission cannot by rule exempt funeral establishments that do not provide

embalming services from the section 4(C)(4) requirement. See Tex. Att’y Gen. LO-98-014, at 2

(noting that “[a] regulatory agency may not amend a statutory scheme by rule. See State v. Jackson,

376 S.W.2d 341,344-45 (Tex. 1964)“). As notedinthat opinion, section4(C)(4)requiresall funeral

establishments to have embalming rooms, even those that engage in funeral directing and the sale

of funeral merchandise, but that do not provide embalming services. See id. at 1.

We conclude here, based on the express language of section 4(C), that not only must each

funeral establishment have an embalming room, but the embalming room of each funeral

establishment must be located on the premises. Section 4(C) sets forth the requisite “physical plant,

equipment, and personnel” of a funeral establishment. An embalming room, like the facilities for

funeral services or casket display, is part of the physical plant of the funeral establishment.

Furthermore, section 4(C)(7) requires a funeral establishment to have “[a] physical plant located at

a fixed place.” TEX. REV. CIV. STAT.ANN. art. 4582b, 5 4(C)(7) (Vernon Supp. 1999). This

provision requires the physical plant of a funeral establishment to be located on a single, fixed site.

In sum, given that the section 4(C)(4) licensing requirement mandates that each funeral

establishment have an on-site embalming room, a funeral establishment may not satisfy the section

4(C)(4) licensing requirement by designating an off-site embalming facility located at another

funeral establishment (or commercial embalming establishment) as its embalming room.2 However,

as we will discuss below, see infru pages 8-9, a funeral establishment is not limited to using its on-

site embalming room and may have embalming performed at a licensed commercial embalming

establishment or the embalming facilities of another licensed funeral establishment.

II. LICENSED EMBALMERS RETAINED AS INDEPENDENT CONTRACTORS

Several of your questions relate to whether a funeral establishment may contract for the

services of an embalmer as an independent contractor rather than as an employee. See Request

Letter, supra, at 2-3 (question nos. 6-9). The first of these questions is whether an embalmer may

work in the embalming room of a funeral establishment as an independent contractor of the funeral

establishment. See Request Letter, sup+ at 2 (question no. 6).

‘House Bill 3516, which has passed both Houses of the Texas Legislature and is awaiting the Governor’s

signature, would authorize the Commission to exempt a funeral establishment from the embalming IOCI~requirement

under certain circumstances. See Act of May 24, 1999,76th Leg., RX, H.B. 3516 (to be codified at TEX.REV.CIV.

STAT.ANN.art. 4582b) (amending section 4(D) of article 4582b).

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We have found no provision in article 4582b or the Commission rules that generally governs

the employment relationships of funeral establishments and licensed embalmers. Nor have we found

a provision that expressly precludes a licensed embalmer from working as an independent contractor

for a funeral establishment or a funeral establishment from retaining a licensed embalmer to embalm

on its premises as an independent contractor. On the other hand, we have found several provisions

in article 45 82b that suggest that a funeral home may employ embalmers as independent contractors.

Section 3(H)(19), for example, indicates that an embalmer may perform services for a funeral

establishment as an agent or subcontractor. It authorizes the Commission to discipline a funeral

director or embalmer for “[plerforming acts of funeral directing or embalming in a capacity

other than that of an employee, agent, subcontractor, or assignee of a licensed funeral establishment

that has contracted to perform those acts.” TEX. REV. Crv. STAT.ANN. art. 4582b, 5 3(H)(19)

(Vernon Supp. 1999). The same is true of section 4(D)(l)(b), which authorizes the Commission to

sanction a licensed funeral establishment for the “[flailure by any person associated with the funeral

establishment, whether as an employee, agent, subcontractor, assignee, owner or otherwise, and

whether licensed or unlicensed, to comply with this Act or a rule adopted under this Act.” Id.

5 4(D)(l)(b). In addition, section 4A requires that the following language be included in a written

consent for embalming by a school or college ofmortuary science: “The undersigned authorizes and

directs the funeral home, including apprentices or mortuary students under the direct supervision of

a licensed embalmer, and the funeral home’s employees, independent contractors, and agents to care

for, embalm, and prepare the body of the decedent.” Id. 5 4A(d) (emphasis added). In sum, based

on our review of article 4582b as a whole, we conclude that an embalmer may work as an

independent contractor for a funeral establishment. See Citizens Bank, 580 S.W.2d at 348

(legislative intent is determined from a general view of the whole enactment in question).

It has been suggested that a funeral establishment is precluded from retaining an embalmer

as an independent contractor because this arrangement would run afoul of the article 4582b

requirement that each funeral establishment designate a funeral director in charge who is “ultimately

responsible for compliance with mortuary laws” and who “may be charged with a violation of this

Act if a violation occurs in the funeral establishment,” TEX.REV.CIV. STAT.ANN.art. 4582b, 5 4(E)

(Vernon Supp. 1999), and a similar Commission rule, 22 TEX. ADMIN.CODE5 203.3 (1998). See

Brief from Jeffrey L. Schrader, Legal Counsel, Texas Funeral Service Commission, to Rick Gilpin,

Deputy Chief, Opinion Committee (July 23, 1998) (on file with Opinion Committee) [hereinafter

“FSC Brief’]. The “funeral director in charge” requirement does not preclude a funeral

establishment from retaining an embalmer as an independent contractor. Rather, this requirement

ensures that a funeral establishment that does obtain services from an independent contractor cannot

avoid liability for the acts of the independent contractor on the basis that the person or entity

performed the services as an independent contractor. In addition, we note that the Commission is

expressly authorized to discipline a licensed fimeral establishment for “[flailure by any person

associated with the funeral establishment, whether as an employee, agent, subcontractor, assignee,

owner, or otherwise, and whether licensed or unlicensed, to comply with this Act or a rule adopted

under this Act.” TEX.REV.Crv. STAT.ANN.art. 4582b, !j 4(D)(l)(b) (Vernon Supp. 1999) (emphasis

added).

The Honorable Ken Armbrister - Page 7 (JC-0059)

It has also been suggested that an embalmer may not work as an independent contractor

because an embalmer who is not an employee of a funeral establishment or a commercial embalming

establishment must be a “commercial embalmer,” who may embalm only at a commercial

embalming establishment: “[A] commercial embalmer is the operator of a commercial embalming

establishment and can embalm on a commercial basis only in a licensed commercial embalming

establishment.” FSC Brief, supra, at 2. We are not persuaded by this construction of article 4582b

for the following reasons.

Again, article 4582b provides for the licensing and regulation of embalmers and commercial

embalming establishments. Article 45821, does not provide for the licensing or regulation of

“commercial embalmers.” A person who engages in embalming for compensation must be licensed

as an embalmer. See TEX.REV. CIV. STAT.ANN.art. 4582b, $1(D) (Vernon Supp. 1999). Section

3(C) establishes the licensing requirements of an embalmer. An embalmer is clearly a natural

person. See, e.g., id. 5 3(C)(l)(a) (must be 18 years of age or older); (b)-(c) (educational

requirements). Article 4582b refers to commercial embalming in only two provisions. The first

reference defines the terms “commercial embalmer” and “commercial embalming establishment”

together in section l(L):

A “commercial embalmer” or “commercial embalming

establishment” is one that embalms for licensed funeral

establishments and does not sell any services or merchandise directly

or at retail to the public, andshall otherwise meet the requirements of

a licensed embalmer as provided by this Act. A commercial

embalmer or a commercial embalming establishment may not employ

an embalmer who is not licensed under this Act.

Id. 5 l(L) (emphasis added). This definition is somewhat ambiguous because it uses the term “one,”

which could refer to either a natural person, a business entity, or place of business, and also refers

to the section 3(C) embalmer licensing requirements, which apply only to a natural person. See id.

$ 3(C)(l). The second reference to commercial embalming is in section 4(C), which generally

provides for the licensing of funeral establishments and also requires that “an establishment which

functions solely as a commercial embalmer shall have a commercial embalmers establishment

license.” Id. § 4(C). In providing that a commercial embalming establishment “shall not be

required to meet the requirements of sub-sections 1 and 5 of. paragraph C,” i.e., to have facilities

where funeral services may be conducted and a merchandise display, section 4(C) licenses

commercial embalming establishments as places ofbusiness rather than natural persons. Id. § 4(C).

To construe these two provisions to mandate that a person who embalms as an independent

contractor may only do so as the operator and on the premises of a commercial embalming

establishment is “to make standards which are different from or inconsistent with” article 4582b.

Bloom, 492 S.W.2d at 462. Again, no provision of article 45821, or the Commission rules provides

that a licensed embalmer may not work as an independent contractor for a funeral establishment.

The provisions of article 4582b referring to a “commercial embalmer” or “commercial embalming

The Honorable Ken Armbrister - Page 8 (JC-0059)

establishment” recognize the existence of establishments that are limited in scope to embalming,

require their licensure as a distinct subset of funeral establishments, excuse them from two of the

requirements applicable to funeral establishments, and require them to employ licensed embalmers.

These provisions also define a person who acts as a “commercial embalmer” as an embalmer

licensed under section 3. But these provisions simply do not regulate the conduct of “commercial

embalmers” as a group ofpersons distinct from licensed embalmers, see generally Tex. Att’y Gen.

Op. No. JC-0020 (1999) at 5-7 (concluding that where legislature has expressly authorized agency

to license certain occupations, it is reasonable to expect legislature to expressly authorize licensing

of additional occupations and concluding that such authority may not be implied), or speak to

whether a licensed embalmer may contract with a hmeral establishment as an independent

contractor. Moreover, to construe these two provisions to limit licensed embalmers to working

either as employees of funeral establishments and commercial embalming establishments or as

operators of commercial embalming establishments would be inconsistent with other provisions of

article 4582b, which clearly contemplate that funeral establishments may employ the services of

licensed embalmers as subcontractors. See discussion page 6 supra.

Next you ask whether “an independent contractor (embalmer), who utilizes a particular

funeral home’s embalming facility, [may] perform embalming services for other funeral home

establishments at that licensed site.” Request Letter, supra, at 2 (question no. 7). Article 4582b

requires each funeral establishment to have an adequate embalming room and also provides for

commercial embalming establishments limited in scope to embalming. See TEX.REV. CIV. STAT.

ANN.art. 4582b, 5 4(C) (Vernon Supp. 1999). Thus, it clearly contemplates that a body taken to a

funeral establishment may be embalmed either on the premises of the funeral establishment or off-

site at the premises of a commercial embalming establishment. Section 4A of article 4582b, which

prescribes the language that must be included in a written consent for embalming at a school or

college of mortuary science, states that the consent “encompasses permission to embalm at the

funeral home facility or at anotherfacility equippedfor embalming, including a school or college

of mortuary science.” Id. 8 4A(d) (emphasis added). The term “another facility equipped for

embalming” is general and could embrace both commercial embalming establishments and other

funeral establishments. However, no provision of article 45821, expressly addresses whether a

funeral establishment may arrange for a body to be embalmed off site at another “full-service”

funeral establishment.

A Commission rule requires that embalming generally “shall be performed only by

embalmers licensed by the commission, in properly equipped and licensed establishments.” 22 TEX.

ADMIN.CODE5 203,16(a)(l) (1998). Another Commission rule requires a funeral establishment to

use one of two disclosure forms when securing written authorization for embalming. Id. 4 203.22(d).

One of the two forms provides as follows:

Authorization to Embalm/Transport. “The undersigned authorizes and

directs the funeral home, including apprentices or provisional

licensees, under the direct supervision of a licensed embalmer, and

the funeral home’s employees, independent contractors, and agents

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to care for, embalm, and prepare the body of the decedent. The

undersigned acknowledges that this authorization encompasses

permission to embalm at the funeral home facility or at another

facility equipped for embalming. This includes authorization to

remove any medical device from the deceased and to dispose of such

items at its discretion.”

Id. 5 203.22(d)(l) (emphasis added). The other form is substantially similar, but expressly permits

embalming at a school or college of mortuary science. Id. $203.22(d)(2). Both forms are derived

from section 4A(d) of article 45 82b, which prescribes the language that must be included in awritten

consent for embalming at a school or college of mortuary science. In prescribing these forms, the

Commission has not limited the statutory term “another facility equipped for embalming” to

commercial embalming establishments. We believe that these rules taken together effectively

construe article 4582b to permit a funeral establishment to transport a body to any licensed facility

equipped for embalming, either a commercial embalming facility or another “full-service” funeral

establishment.

The Commission is charged with adopting rules and prescribing forms necessary to

administer article 4582b. See TEX.REV. CIV. STAT.ANN.art. 45821,s 5(A) (Vernon Supp. 1999).

The foregoing rules on embalming are consistent with article 4582b. See Arco, 876 S.W.2d at 481

(“[AIn agency can adopt only such rules as are authorized by and consistent with its statutory

authority.“‘) (citations omitted). Accordingly, we conclude that a funeral establishment may have

a body embalmed at either a licensed commercial embalming facility or another licensed funeral

establishment.’

Next you ask “if [article 4582b] does not explicitly require an independent contractor to

obtain a commercial embalmers license to perform any of the activities above [i.e., to perform

embalming services as an independent contractor on the premises of a licensed funeral establishment

for the funeral establishment or for other funeral establishments], must the Funeral Service

Commission adopt that interpretation as a rule?’ Request Letter, supra, at 3 (question no. 8).

Generally, a state agency may enforce a statute by adopting rules of general applicability or by ad

hoc adjudication. See Railroad Comm’n v. Lone State Gas Co., 844 S.W.2d 679, 688-89 (Tex.

1992). As we have discussed, however, article 4582b does not provide for the licensing of

commercial embalmers per se. Rather, it requires that embalming must be performed by a licensed

embalmer. See TEX.REV.CIV. STAT.ANN.art. 45821,s l(D) (Vernon Supp. 1999). In the absence

of an express statutory provision requiring an embalmer to obtain a commercial embalmers license,

the Commission may not discipline a licensee for failing to obtain such a license or adopt such a

requirement by rule. Seegenerally Tex. Att’y Gen. Op. No. JC-0020 (1999) at 5-7 (concluding that

where legislature has expressly authorized agency to license certain occupations, it is reasonable to

‘Wenote that with the adoptionof HouseBill 3516,somefuneralestablishmentswouldnot be equippedto

embalm. Seein@ note 2.

The Honorable Ken Armbrister - Page 10 (X-0059)

expect legislature to expressly authorize licensing of additional occupations and concluding that such

authority may not be implied).

You also ask if whether, “[albsent a formal rule clarifying which activities require a

commercial embalmer’s license, [ ] the Funeral Service Commission [is] precluded from taking

administrative action against an entity that engages in activities referred to in the aforementioned

questions.” Request Letter, supra, at 3 (questionno. 9). The Commission is authorized to discipline

licensees for violations of article 4582b or Commission rules. See TEX.REV. CIV. STAT.ANN. art.

4582b, 5 3(II) (Vernon Supp. 1999) (“Action taken by the commission under this section [providing

for discipline of funeral directors and embalmers] may be based only on a violation of this Act or

a rule adopted under this Act.“); $ 4(D) (“Action taken by the commission under this section

[providing for discipline of funeral establishments] may only be based on a violation of this Act or

a rule adopted under this Act.“); 8 6G(a) (authorizing Commission to assess administrative penalty

if it determines that person or establishment “has violated this Act or a rule adopted under this Act”);

9 6H(a) (authorizing Commission to issue a reprimand if it determines that person or establishment

“has violated this Act or a rule adopted under this Act”). Again, as a general matter, the Commission

is not precluded from bringing an action against a licensee for conduct that it believes violates article

4582b that it has not prohibited by rule. See Lone State Gas Co., 844 S.W.2d at 688-89. The

Commission lacks authority to discipline a licensed embalmer for performing embalming without

a special “commercial embalmer’s license,” however, given that no such licensing requirement exists

in the statute. Seegenerally Tex. Att’y Gen. Op. No. JC-0020 (1999) at 5-7 (concluding that where

legislature has expressly authorized agency to license certain occupations, it is reasonable to expect

legislature to expressly authorize licensing of additional occupations and concluding that such

authority may not be implied). We express no opinion whether any particular conduct otherwise

violates article 4582b or a Commission rule.

III. CONSUMER DISCLOSURE

Next, we turn to your questions regarding disclosure to consumers. Your first question

concerns disclosure regarding the location of embalming:

When a consumer has contracted with a funeral establishment

for funeral services, is the funeral establishment required to disclose

to the consumer that embalming will not be performed at the same

facility? If so, is disclosure that the embalming might be performed

at another location and authorization for this procedure adequate?

Request Letter, supra, at 1 (question no. 1) (emphasis in the original). We understand the concern

is whether the Commission is authorized to require a funeral establishment to disclose that a body

may be embalmed at another facility when permission to embalm is given orally rather than in

writing. See FSC Brief, supra, at 12. As we discuss below, neither article 4582b nor the

Commission rules require a funeral establishment to make disclosures about the location of

embalming when permission to embalm is given orally.

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Section 3(H)(ll) of article 4582b provides that the Commission may discipline a funeral

director or embalmer for “embalming a body without the express written or oral permission of a

person authorized to make funeral arrangements for the deceased or without making a documented

reasonable effort over a period of at least three (3) hours to obtain the permission.” TEX.REV.CIV.

STAT.ANN. art. 4582b, 5 3(H)(ll) (Vernon Supp. 1999). Thus, article 4582b generally permits

either written or oral permission to embalm. We note, however, that section 4A requires written

consent in order to use a dead human body for educational or instructional purposes. See id. 5 4A.

A funeral director or embalmer may not release a body to a school or college of mortuary science

without actual possession of such written consent. See id. $4A@).

Commission rules also address permission to embalm. The rules provide that it is an unfair

or deceptive practice to embalm unless state or local law requires embalming; prior approval has

been obtained from a family member or other authorized person; or, if the funeral provider is unable

to contact a family member, the funeral provider has no reason to believe the family does not want

embalming performed and obtains subsequent approval. 22 TEX.ADMIN.CODE$9 203,10(a)(l), (2),

(3) (1998). In obtaining subsequent approval, the funeral provider must disclose that “no fee will

be charged if the family selects a service which does not require embalming, such as direct cremation

or immediate burial.” Id. 5 203.10(a)(3). This rule is similar to a Federal Trade Commission

regulation. See 16 C.F.R. 5 453.5 (1999).

A funeral establishment must maintain written documentation of an oral permission to

embalm for two years. 22 TEX. ADMM.CODE5 203.22(a) (1998). When neither oral nor written

permission to embalm can be obtained, the funeral establishment is required to maintain for two

years ‘written documentation of the efforts taken over a period of at least three hours to obtain

permission to embalm.” Id. 5 203.22(b). And, as discussed above, when written authorization for

embalming is obtained, a funeral establishment is required to use one of two disclosure forms:

“Authorization to Embalm/Transport” or “Authorization to Embalm/Transport With Mortuary

Students.” Id. 5 203.22(d). These forms encompass “permission to embalm at the Iimeral home

facility or at another facility equipped for embalming.” Id. $ 203.22(d)(l), (2).

Neither article 4582b nor the Commission rules require a funeral establishment to provide

any other more specific disclosures regarding the embalming location than those described above.

When permission to embalm is written, one of the two prescribed forms, which make disclosures

regarding the embalming location, must be used. When permission to embalm is oral, however,

neither article 4582b nor the Commission rules require a funeral home to make any disclosure

regarding the embalming location. Again, the Commission is authorized to discipline licensees for

violations of article 4582b or Commission rules. See discussion supra page 10.

With respect to permission to embalm, you also ask, “When an independent contractor

performs an embalming service, is the contractor required to obtain written permission to embalm

from the consumer?’ Request Letter, supra, at 2 (question no. 3). Under article 4582b and the

Commission rules, the funeral-services consumer has a contractual relationship with a funeral

establishment, which is represented by a funeral director. See 22 TEX. ADMIN.CODE5 203.18(d)

The Honorable Ken Armbrister - Page 12 (JC-0059)

(1998) (“Only a licensed funeral director shall present funeral services and merchandise to a

customer and only a licensed funeral director shall sign all contractual agreements for funeral

services or merchandise.“). The funeral establishment is required to obtain written or oral

permission to embalm and, if written authorization is obtained, to disclose that embalming may be

performed at another location. See id. 5 203.22. Neither the statute nor the rules require additional

permission to embalm. Accordingly, we conclude that permission to embalm given to the funeral

establishment is sufficient and the embalmer may rely on the permission obtained by the funeral

establishment. We caution, however, that an embalmer who embalms a body as an independent

contractor will not necessarily avoid discipline under section 3(H)(ll) of article 4582b if the funeral

establishment failed “without making a documented reasonable effort” to obtain written or oral

permission to embalm. TEX.REV. CIV. STAT.ANN. $3(H)(ll) (Vernon Supp. 1999).

Now we turn to your question regarding price disclosures: “When an independent contractor

performs embalming services for a funeral establishment, is any person (the independent contractor

or the funeral establishment) required to disclose to the consumer the price charged by the

independent contractor to the funeral establishment for embalming services? (See also FTC

regulations at 16 C.F.R. 453 (1999) et seq.).” Request Letter, supra, at 2 (question no. 2). This

question requires the review of a number of statutory and regulatory provisions.

Section l(S) of article 4582b defines the terms “retail price list” or “general price list” as

a printed or typewritten list of the retail price of items or services

provided by the funeral establishment, including: (1) transferring the

deceased individual to the funeral home; (2) embalming; (3) use of

funeral establishment facilities for viewing the deceased, (4) use of

funeral establishment facilities for funeral services; (5) use ofhearses;

(6) use of limousines; (7) caskets; (8) outer enclosures; and (9) other

itemized services provided by funeral establishment staff.

TEX.REV. Crv. STAT.ANN. art. 4582b 5 l(S) (Vernon Supp. 1999). A licensee may be disciplined

for failing to provide a retail price list to an individual inquiring in person about any funeral service

or merchandise. Id. 5 3(H)(22)(B).

A Commission rule, 22 TEX.ADM~N.CODE5 203.7, provides that it is an unfair or deceptive

act or practice for a funeral provider to fail to furnish accurate price information “disclosing the cost

to the purchaser for each of the specific funeral goods and funeral services used in connection with

the disposition of deceased human bodies, including at least the price of embalming” and certain

other listed items. 22 TEX. ADMIN. CODE 5 203.7(a) (1998). The rule lists “preventive

requirements” a tinera provider must adhere to prevent these unfair or deceptive acts or practices.

Id. 5 203.7(b). The rule defines the term “funeral provider” as “[alny person, partnership or

corporation that sells or offers to sell funeral good and funeral services to the public.” Id. 9 203.1.

This rule appears to be modeled on a Federal Trade Commission rule, 16 C.F.R. 5 453.2 (1999),

governing price disclosures in the funeral industry.

The Honorable Ken Armbrister - Page 13 (JC-0059)

In addition, section l(T) defines the terms “written memorandum” or “funeral purchase

agreement” to mean:

a written statement that itemizes the cost of funeral services or

merchandise selected by a customer from the retail price list. The

memorandum must also state the amount paid or owed to another

person by the funeral establishment on behalf of the customer and

each fee charged the customer for the cost of advancing funds or

becoming indebted to another person on behalf of the customer.

TEX.REV.Crv. STAT.ANN.art. 4582b 5 l(T) (Vernon Supp. 1999). The Commissionmay discipline

a licensee for failure to provide a written memorandum under the following provision:

Failure by any person arranging for funeral services or

merchandise to provide each customer at the conclusion of the

arrangement process a written memorandum or funeral purchase

agreement signed by the funeral director making the arrangements

itemizing the cost of funeral services and funeral merchandise

selected by the customer.

Id. 4 3(H)(23). Itemization of costs for a customer who has selected a package arrangement based

on “unit pricing” is satisfied by “a written memorandum that itemizes the discount provided by the

package arrangement.” See id. However, “[tlhe use of unit pricing does not affect the presentation

of the retail price list.” Id.

Both article 4582b and the Commission rules require a funeral establishment (or, in the case

of the rule, “a funeral provider”) to provide the customer with a price list. It is clear from section

l(S) of article 4582b that this is a list of retail prices, i.e., prices charged to the customer for items

or services provided by the funeral establishment. See id. 5 l(S) (describing list as “list ofthe retail

price of items or services provided by the funeral establishment”). The Commission rule regarding

price disclosures likewise refers to retail prices, see 22 TEX.ADMIN.CODE8 203.7@)(2)(A), (3)(A),

(4)(B) (1998), as does the federal rule, see 16 C.F.R. 5 453,2(b)(2)(i), (3)(i), (4)(ii) (1999). These

provisions do not require an embalmer who has no contractual relationship with the customer to

make price disclosures to the customer nor do they require the funeral establishment to disclose the

price charged to the funeral establishment for embalming by the embalmer.

We note that article 4582b requires a funeral establishment to provide a customer with a

written statement that itemizes the costs of funeral services or merchandise selected by a customer

from the retail price list. See TEX. REV. CIV. STAT.ANN. art. 4582b 5 l(T) (Vernon Supp. 1999).

The memorandum must also “state the amount paid or owed to another person by the funeral

establishment on behalfof the customer and each fee charged the customer for the cost of advancing

The Honorable Ken Armbrister - Page 14 (JC-0059)

funds or becoming indebted to another person on behalf of the customer.” See id. Commission rules

define the term “cash advance item” as follows:

Any item of service or merchandise described to a purchaser as a

“cash advance,” “accommodation, ” “cash disbursement,” or similar

term. A cash advance item is also any item obtained from a third

party and paid for by the funeral provider on the purchaser’s behalf.

Cash advance items may include, but are not limited to: cemetery or

crematory services; pallbearers; public transportation; clergy

honoraria; flowers; musicians or singers; nurses; obituary notices;

gratuities and death certificates.

22 TEX. ADMIN. CODE 5 203.1 (1998). If a funeral establishment charges the customer for

embalming as an “amount paid or owed to another person by the funeral establishment on behalf of

the customer” or as a cash advance item, the cost of the embalming to the funeral establishment

would have to be disclosed in the written memorandum.

Finally, with respect to consumer disclosure you ask if “compliance with the disclosure

requirements of 2[2] TAC, Sections 203.7 and 203.8 satisflies] consumer disclosure requirements

pertaining to embalming? If so, does compliance with the specific requirements of those sections

constitute an affirmative defense to administrative prosecution for alleged disclosure violations?”

Request Letter, supra, at 2 (question no. 4.)

As discussed above, section 203.7 of the Commission rules provides that it is an unfair or

deceptive practice to fail to furnish accurate price information, including price information about

embalming, see 22 TEX.ADMIN.CODE5 203.7(a) (1998) and sets forth certain preventive practices

to which funeral providers must adhere, see id. 3 203.7(b). Section 203.7 includes provision

of the retail price of embalming on a general price list as a “preventive requirement.” Id.

§ 203.7(b)(4)(B)(vi); see also id. § 203,7(b)(4)(A)(ii) (special rules regarding availability of price

list in certain circumstances involving in-person request for authorization to embalm). Section 203.8

is similar to 203.7, but pertains to misrepresentations. It provides that it is a deceptive act or practice

to falsely represent that state or local law requires embalming or to fail to disclose that embalming

is not required by law. Id. 5 203.8(a)(l). This rule requires a funeral provider to not represent that

embalming is required for direct cremation, immediate burial, or a closed casket funeral in certain

circumstances, id. 3 203,8(a)(2)(A), and to place a disclosure on the general price list regarding the

need for embalming, id. 5 203.8(a)(2)(B). (Like section 203.7, this rule appears to be modeled on

a federal regulation, 16 C.F.R. 5 453.3 (1999).)

In addition, as discussed above, section 203.10 of the Commission rules includes certain

required disclosures regarding payment for embalming if permission was not obtained prior to

embalming. Furthermore, section 203.22 requires the use of certain forms ifpermission to embalm

is given in writing. And finally, as we have noted, the Federal Trade Commission regulations, many

of which have been incorporated into the Commission rules, also contain consumer disclosure

The Honorable Ken Armbrister - Page 15 (JC-0059)

requirements specific to embalming. See 16 C.F.R. $5 453,2(b)(4)(ii)(F), 453.3(a), 453.5 (1999).

Accordingly, compliance with only sections 203.7 and 203.8 of the Commission rules does not

satisfy all consumer disclosure requirements for embalming.

In sum, consumer disclosure requirements pertaining to embalming are contained in sections

203.10 and 203.22 ofthe Commission rules and the federal regulations as well as sections 203.7 and

203.8 ofthe Commission rules. Although compliance with the requirements ofthese rules regarding

embalming is certainly a defense to administrative proceedings for their violation, we cannot resolve

in an attorney general opinion whether any particular conduct in fact violates article 4582b, a

Commission rule, or federal regulation!

IV. COMMISSION INVESTIGATORS

Your remaining questions involve the authority of the Commission to employ investigators.

You ask the following:

Is the Texas Funeral Service Commission prohibited from hiring as

an investigator a person who does not meet the requirements set out

in section 6D(f) [of article 4582b]?

Can a person hired by the Funeral Service Commission as an

inspector perform the duties of an investigator, if he or she lacks the

requisite qualifications?

Request Letter, supra, at 3 (question nos. 10, 11).

Section 2(H) of article 4582b generally authorizes the Commission to “employ such

inspectors, clerical and technical assistants, legal counsel other than the attorney general, and an

Executive Director, as may be determined by it to be necessary to carry out the provisions of this

Act, and the terms, conditions and expenses of such employment shall be determined by the

commission.” TEX. REV. Qv. STAT. ANN. art. 4582b, 5 2(H) (Vernon Supp. 1999). The

Commission may delegate to the executive director the power to issue subpoenas. See id. 5 2(L).

In addition, section 6D(f) provides as follows:

The commission shall employ or contract for the services of one or

more persons to investigate complaints ofconsumer interest and other

complaints received by the commission. A person who is subject to

regulation under this Act may not serve as an investigator. To serve

‘See Tex. Att’y Gen. Op. Nos. K-0007 (1999) at 5 (“[tlhis office does not make fact fmdings”); DM-383

(1996) at 2 (questions of fact are inappropriate for opinion process); DM-98 (1992) at 3 (questions of fact cannot be

resolved in opinion process); H-56 (1973) at 3 (improper for Attorney General to pass judgment on matter that would

be question for jury determination); M-187 (1968) at 3 (Attorney General cannot make factual fmdings).

The Honorable Ken Armbrister - Page 16 (JC-0059)

in this position in a contractual capacity, a personmust be licensed as

a private investigator under state law. To serve in this position as an

employee of the commission, a person must:

(1) hold a current license as a private investigator in this state;

(2) have been previously licensed under state or federal law as a

private investigator; or

(3) have been previously employed by a local, state, or federal law

enforcement agency as an investigator.

Id. 5 6D(f)

Although section 2(H) grants the Commission general authority to employ staff, section

6D(f) requires the Commission to employ or contract for the services of investigators to investigate

complaints and expressly provides for their qualifications. If the Commission contracts for the

services of an outside investigator, the investigator must be licensed as a private investigator under

state law. Id. 5 6D(f). If the Commission employs in-house an investigator, the investigator must

meet one of the three qualifications listed in subsections (1) through (3). A person employed by the

Commission as an inspector may serve as an investigator only if he or she meets one of these three

qualifications. See id. $ 6D(f)(l)-(3).

In its brief, the Commission suggests it is unable to comply with section 6D(f). It contends

that it is unable to employ an investigator who meets the qualifications of subsections (1) or (2)

because “Texas law does not authorize the issuance of a license to an individual private

investigator.” FSC Brief, supra, at 12. Although the Private Investigators and Private Securities

Agencies Act, TEX. REV. Crv. STAT.ANN. art. 4413(29bb) (Vernon 1976 & Supp. 1999), does not

generally require state employees to obtain a license, see id. 5 3(a)(2) (Vernon Supp. 1999) (Act does

not apply to employee of this state or its political subdivisions, with certain limited exceptions);

Bates v. State, 587 S.W.2d 121, 131 (Tex. Crim. App. 1979) (en bane) (Act “is concerned with the

licensing of private investigators and is patently inapplicable to [person] taking part in a criminal

investigation as an agent of the State”), neither does the Act appear to preclude an individual from

obtaining a license, see TEX. REV. CIV. STAT.ANN. art. 4413(29bb), $5 13 (Vernon Supp. 1999)

(requiring “investigations company” to be licensed); 2(3) (defining “investigations company” to

include “any person”). Furthermore, if the Commission is unable to find applicants that meet the

qualifications of subsections (1) and (2) subsection (3) permits it to employ as an investigator a

person who has been previously employed as an investigator by a local, state, or federal law

enforcement agency. And, if the Commission is unable to employ qualified investigators, it may

contract with outside investigators.’

‘House Bill 3516, which has passed both Houses of the Texas Legislature and is awaiting the Goyemor’s

(continued...)

The Honorable Ken Annbrister - Page 17 (JC-0059)

SUMMARY

Because article 4582b requires each funeral establishment to

have an on-site embalming room, see TEx. REV. CIV. STAT. ANN. art.

4582b, 5 4(C) (Vernon Supp. 1999), a funeral establishment may not

designate an off-site embalming facility to satisfy this statutory

requirement. However, a licensed embalmer may work as an

independent contractor for a funeral establishment on the premises of

the funeral establishment or in the embalming room of another

licensed funeral establishment.

Neither article 4582b nor the Texas Funeral Service

Commission rules, see 22 TEX. ADMIN.CODE ch. 203 (1998), require

a funeral establishment to make disclosures about the location of

embalming when permission to embalm is given orally. Although

permission to embalm given to the funeral establishment is sufficient

and the embalmer may rely on the permission obtained by the funeral

establishment, an embalmer who embalms a body as an independent

contractor will not necessarily escape discipline under section

3(H)(ll) of article 4582b ifthe funeral establishment failed to obtain

written or oral permission, or failed to make a reasonable effort to

obtain permission, to embalm.

Both article 4582b and the Commission rules require a funeral

establishment to provide a customer with a retail price list for items

or services provided by the funeral establishment. These provisions

do not require an embalmer who has no contractual relationship with

the customer to make price disclosures to the customer nor do they

generally require the funeral establishment to disclose the price

charged to the funeral establishment for embalming by the embalmer.

If the Commission employs in-house an investigator, the

investigator must meet one ofthe three qualifications listed in section

‘(...conthued)

signature, would amend section 6D(f) to delete any investigator qualifications. See Act of May 24, 1999,76th Leg.,

RX, H.B. 3516 (to be codified at TEX. REV.Crv. STAT.ANN.art. 4582b) (amending section 6D(f) of article 4582b).

The Honorable Ken Armbrister - Page 18 (JC-0059)

6D(f)( l)-(3) of article 4582b. A person employed by the Commission

as an inspector may serve as an investigator if he or she meets only

one of these three qualifications.

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

CLARK KENT ERVIN

Deputy Attorney General - General Counsel

ELIZABETH ROBINSON

Chair, Opinion Committee

Prepared by Mary R. Crouter

Assistant Attorney General