PART 10. TEXAS FUNERAL SERVICE COMMISSION
CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES
SUBCHAPTER D. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, MILITARY VETERANS, AND MILITARY SPOUSES
The Texas Funeral Service Commission (Commission) proposes new rules to Texas Administrative Code (TAC), Title 22, Part 10, Chapter 203 in new Subchapter D, Licensing Provisions Related to Military Service Members, Military Veterans, and Military Spouses, §§203.55 - 203.61, regarding the occupational licensure of military service members, military veterans, and military spouses in funeral directing and/or embalming.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The proposed rules under 22 TAC, Chapter 203, Subchapter D implement Texas Occupations Code, Chapter 55, Licensing of Military Service Members, Military Veterans, and Military Spouses.
Proposed new Subchapter D brings the Commission's rules into compliance with existing state law and streamlines all rules regarding the funeral director and embalmer license application process, review, and approval of military service members, military veterans, and military spouses into a single location in Commission rules, making it easy for the public and potential and actual licensees to locate.
Specifically, the new proposed rules provide the following:
Proposed new §203.55 explains the legal basis for the military licensing provisions in subchapter D, and how the rules are interpreted in conjunction with Texas Occupations Code, Chapters 55 and 651. Additionally, the proposed §203.55 includes language to specify that the new proposed subchapter does not modify or alter rights that may be provided under federal law. The proposed rule further states that unless stated otherwise in the new subchapter D, military service member, military veteran, and military spouse license applicants are to comply with the appropriate licensing requirements elsewhere under Texas Administrative Code, title 22, part 10, chapter 203.
Proposed new §203.56 establishes definitions for certain terms that are used throughout the subchapter.
Proposed new §203.57 exempts active service members from paying any license fees while on active duty, and are exempt from paying license renewal fees, late fees or an administrative penalty if the military service member failed to renew the member's license because the license expired while the member was on active duty. The proposed rule also sets forth the type of official documentation acceptable for a military service member to prove the member's active duty status.
Proposed new §203.58 describes that when a military service member or military veteran applies for a license, the Texas Funeral Service Commission will meet to credit any verifiable military service, training or education obtained by an applicant to a license for which the applicant is seeking toward the requirements of that particular license whether a provisional or full license. The language also sets forth how the Commission may verify the applicant's experience, service, training, and education. Further, the proposed rule sets forth when the Commission will not credit an applicant's military experience, service, training or education consistent with §53.007, Texas Occupations Code.
Proposed new §203.59 establishes an alternative method for military service members, military veterans, and military spouses to be licensed as a funeral director or embalmer pursuant to §55.004 and §55.005. As an alternative to regular licensure, the above-described applicants may include a combination of education, continuing education, examinations, letters of good standing, letters of recommendation, work experience, training, clinical, and professional experience to show their competency to be issued a funeral director or embalmer license whether full or provisional. The executive director is given authority to waive any prerequisite of licensure requirements after reviewing and determining whether the military applicant satisfies the alternative licensing requirements as a funeral director or embalmer. The proposed rule also includes language that applicants must submit to a criminal background check and use a Commission-approved form to demonstrate their competency. The Commission would have 30 days to process and approve or deny the license application.
Proposed new §203.60 implements §55.0041, Texas Occupations Code by requiring the Commission to authorize a military service member or military spouse to practice funeral directing or embalming in Texas without obtaining a license under Chapter 651, Texas Occupations Code, if the applicant notifies the Commission of the applicant's intent to practice funeral directing and/or embalming in Texas on a form prescribed by the Commission; holds an active license in funeral directing or embalming in another jurisdiction with licensing requirements that are substantially similar to Texas; has no pending investigation or disciplinary action against the applicant's license; and submits proof of active military duty status to the Commission. The rule sets forth the method the commission will use to determine whether another jurisdiction has funeral directing or embalming licensing requirements substantially equivalent to those in Texas. The proposed rule further states how the Commission may verify if the applicant's license is in good standing, and that the authorization may only be issued once, without renewal, for the period of the active duty orders or no longer than three years. Finally, the proposed rule reinforces that its provisions do not alter those authorized by federal law.
Proposed new §203.61 establishes the length of time that a license granted under the new proposed subchapter D is valid the same amount of time as a funeral director or embalmer license issued under §203.1 of title 22, part 10, or 12 months from the date of issuance, whichever is longer. The same provision applies to apprenticeship licenses granted under the new proposed subchapter D. The proposed rule further states that the Commission must notify the licensees in writing or electronically the requirements for license renewal.
Fiscal Impact on State and Local Government
Sarah Hartsfield, Staff Attorney, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated reductions in costs to state or local governments resulting from the enforcement or administration of the proposed rules. It is further determined that there are no estimated additional costs to local governments as a result of enforcing or administering the proposed rules.
There may be an additional cost to the Commission to update its software system to process applications for military veterans and military spouses for the first year the proposed rules are in effect. However, any potential cost to the Commission will be covered by the Commission's current budget and resources. There are no other estimated costs to Commission for each year of the other four years the proposed rules are in effect.
There is no estimated loss in revenue to the state or to local governments or increase to local governments as a result of enforcing or administering the proposed rules. The Commission already waives licensing fees for active military service members pursuant to Texas Occupations Code § 651.155 and Texas Administrative Code, Title 22, Part 10, §§203.1(f)(6), 203.1(g), 204.2(b), 204.3(b), and 204.4(b).
According to the Commission's records, within the past five years, only six licensees who have applied for a funeral director or embalmer license were active military service members. Although the Commission's records do not account for military veterans or military spouses, it is estimated that the number of license applicants in each category will be less than 10 per year.
In addition to those fees already waived for active military service members, it is projected that in most situations for military veterans and military spouses, their fees would also be waived.
As a result, it is estimated that for each year for the next five years, the decrease in revenue to the state, if any, would be de minimis as a result of enforcing or administering the proposed rules.
Other than what is described above, there are no foreseeable implications relating to the cost or revenues of the state or local governments by enforcing or administering the proposed rules.
Public Benefits/Costs
Sarah Hartsfield also determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit from new rules, and improved clarity regarding the license application procedures and issuance of licenses to military service members, military veterans, and military spouses as funeral directors or embalmers. Further, updating the rules to allow for the expedited licensing process authorized under state law will increase those engaged in the occupation. By increasing the workforce, more Texas families will be served while undergoing the loss of a loved one.
Further, for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed rules have no significant economic costs to persons that are licensees, businesses, or the general public in Texas. The rules do not impose additional fees upon licensees, nor do they create requirements that would cause licensees to expend funds for equipment, technology, staff, supplies, or infrastructure.
Local Employment Impact Statement
The proposed rules will not affect local economy. Therefore, the Commission is not required to prepare a local employment impact statement under §2001.022, Texas Government Code.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES
The proposed rules have no anticipated adverse economic effect on small businesses, micro-businesses, or rural communities. Therefore, an economic impact statement is not required.
ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT
The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. As a result, the Commission is not required to take any further action under §2001.0045, Texas Government Code.
TAKINGS IMPACT ASSESSMENT
The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under §2007.043, Texas Government Code.
Government Growth impact Statements
Pursuant to Government Code §2001.0221, the Commission provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:
1) The proposed rules do not create or eliminate a government program.
2) Implementation of the proposed rules would not require the creation of new employee positions or the elimination of existing employee positions.
3) Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the Commission.
4) The proposed rules do require an increase or decrease in fees paid to the Commission.
5) The proposed rules create a new regulation. As described earlier, the Commission's rules regarding the licensure of military service members, military veterans, and military spouses are outdated, scattered, and ambiguous. To bring the Commission into full compliance with Texas Occupations Code chapter 55, the agency proposed a new regulation by creating new subchapter D in Texas Administrative Code, Title 22, Part 10, Chapter 203, in which all rules affecting the licensing of military service members, military veterans, and military spouses will be located.
6) The proposed rules expand and repeal existing regulations. The proposed rules expand the Commission's existing regulation regarding the licensing of military service members, military veterans, and military spouses to be consistent with current Texas Occupations Code Chapter 55. The expansion includes improving the process for military service members, military veterans, and military spouses to apply for a license as a funeral director or embalmer, including an apprenticeship license, as well as the Commission's process for expediting the review, approval, and issuance of a license to qualified applicants in the categories mentioned above.
The rule removes provisions of the Commission's existing regulations regarding the licensing of military service members, military veterans, and military spouses that are outdated, inconsistent with state statute and federal law, ambiguous or redundant because the provisions were added to the new proposed rules. The proposed rules do not limit existing regulations.
7) The proposed rules increase the number of individuals subject to the rules' applicability by expanding the options for military service members, military veterans, and military spouses to qualify and apply for a license as a funeral director or embalmer, including an apprentice license, in this state. The proposed rules do not decrease the number of individuals subject to their applicability.
8) The proposed rules would positively affect this state's economy by increasing the state's workforce by expediting the licensure of military service members, military veterans, and military spouses, and therefore enabling them to work in Texas sooner. The proposed rules do not adversely affect this state's economy.
PUBLIC COMMENTS
Comments on the proposed repeal may be submitted by mail to Sarah Hartsfield, Interim-Executive Director/Staff Attorney, Texas Funeral Service Commission, 1801 Congress Avenue Suite 11-800, Austin, Texas 78701 or submitted electronically to sarah.hartsfield@tfsc.texas.gov. The deadline for receipt of comments is 5:00 p.m. Central Time, on May 27, 2024, which is at least 30 days from the date of publication of this proposal in the Texas Register.
STATUTORY AUTHORITY
The proposed rules are proposed under Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules as necessary to administer and enforce that chapter.
The proposed rules are proposed under Texas Occupations Code §55.002, which authorizes the Commission to adopt rules to exempt a license holder from increased fees or penalties for failing to renew the individual's license if the individual can provide satisfactory proof that the individual was serving as a military service member at the time the Commission-issued license expired. The proposed rules are also based on Texas Occupations Code §55.004(a), which authorizes the Commission to adopt rules to for issuing a funeral director or embalmer license to military service members, military veterans, or military spouses who hold a current license in another jurisdiction with licensing requirements substantially equivalent to those for a funeral director or embalmer license in Texas or within the five years preceding the individual's application, held the same license in Texas. §55.004(c) authorizes the Commission to propose rules for adoption that establish alternate methods for military service members, military veterans, and military spouse to demonstrate competency to satisfy the requirements for obtaining a funeral director or embalmer license, including receiving appropriate credit for training, education, and clinical and professional experience.
These rules are also proposed under §55.0041(e), which gives the Commission the necessary authority to adopt rules to implement §55.0041, Texas Occupations Code, for recognizing a military service member or military spouse to practice funeral directing or embalming in Texas without first obtaining the required license if the member or spouse is currently licensed in good standing by another jurisdiction with substantially equivalent licensing requirements to Texas. Furthermore, §55.0041(e) gives the Commission authority to adopt rules that 1) establish how such applicants are to notify the Commission of their intent to practice funeral directing or embalming in Texas; 2) submit proof to the Commission of the service member's or spouse's residency in Texas, as well as their military identification card; 3) method for the Commission to provide confirmation to the military service member or spouse applicant that the Commission has verified the applicant's license is in good standing with the other jurisdiction and authorize the applicant to practice funeral directing or embalming in Texas; 4) establish how the Commission will determine if another jurisdiction has substantially equivalent licensing requirements to Texas; and 5) creates a process for verifying the applicant's license is in good standing within 30 days of receiving all of the necessary information from the applicant.
The rules are proposed under §55.007, Texas Occupations Code, which provides the necessary authority to the Commission to adopt rules to credit verified military service, training, or education toward the funeral director or embalmer, full or provisional, licensing requirements for applicants who are a military service member or veteran. §55.007 further authorizes the Commission to limit its rules from applying to military service member or veteran license applicants who hold a restricted licensed issued by another jurisdiction or have an unacceptable criminal history pursuant to applicable law.
In addition, the rules are proposed under §55.008, Texas Occupations Code, which gives the Commission the authority to adopt rules to credit verified military service, training, or education that is relevant to funeral directing or embalming to provisional funeral director or provisional embalmer licensing requirements.
The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 55 and 651. No other statutes, articles, or codes are affected by the proposed rules.
§203.55.Purpose.
(a) This subchapter establishes requirements and procedures authorized or required by Texas Occupations Code, Chapters 55 and 651. Any requirements not provided in rule, but expressly set forth in Chapters 55 and 651 referenced above, apply and must be followed for the licensing of military service members, military veterans, and military spouses.
(b) This subchapter does not modify or alter rights that may be provided under federal law.
(c) Except as otherwise provided by this subchapter:
(1) a person applying for an apprenticeship license as a funeral director and/or embalmer must comply with all of the licensure requirements of §§203.5 - 203.7 of this chapter (regarding the Provisional License; Provisional License Case and Reporting Requirements; and Provisional License Reinstatement and Reapplication);
(2) a person applying for a full funeral director license or embalmer license must comply with all of the requirements of §203.1 of this chapter (regarding Funeral Director and Embalmer License Requirements and Procedure); and
(3) a person applying for the licenses listed in paragraphs (1) and (2) of this subsection must comply with all of the requirements in §§203.15 - 203.17 of this chapter (regarding Required Notification of Criminal Conviction; Consequences of Criminal Conviction; and Criminal History Evaluation Letter).
§203.56.Military Definitions.
For purposes of this subchapter, the following terms have the meanings assigned in §55.001, Texas Occupations Code: "active duty"; "armed forces of the United States"; "military service member"; "military spouse"; and "military veteran."
§203.57.License Fee Exemption or Waiver.
(a) The provisions in this section are in addition to the fee waivers or exemptions set forth in §55.009, Texas Occupations Code.
(b) Pursuant to §55.002, Texas Occupations Code, a licensee is exempt from any penalty or increased fee imposed by the Commission for failing to renew the license in a timely manner if the individual establishes to the satisfaction of Commission staff that the individual failed to renew the license in a timely manner because the individual was serving as a military service member.
(c) An active duty military service member is exempt from the payment of license fees for the duration of the license holder's military service and for one year after the date the military service member's active duty status ends.
(d) For purposes of establishing fee exemption status under this section and §651.155(a), Texas Occupations Code, an individual may prove military status by providing a copy of the individual's active duty orders, DD214 form, or other official documentation showing the individual's military status or termination of such.
§203.58.Mandatory Credit for Military Service.
(a) Pursuant to §55.007, Texas Occupations Code, for an applicant who is a military service member or veteran, the Commission shall meet to credit any verifiable military service, training or education obtained by an applicant to a license for which the applicant is seeking toward the requirements of that particular license. The Commission may verify an applicant's military training or education through a joint services transcript, a comparable document issued by the U.S. military or other means available.
(b) If the applicant's verified military service, training or education listed in subsection (a) of this section is relevant to a funeral director or embalmer license, but does not satisfy the requirements for a full license, then the Commission shall credit the applicant's verified military service, training, or education that is relevant toward the requirements of the applicable provisional license.
(c) All applicants shall submit fingerprints for the retrieval of criminal history record information.
(d) This section does not apply to an applicant who holds a restricted license issued by another jurisdiction or has an unacceptable criminal history according to Texas Occupations Code, Chapter 53 (relating to Consequences of Criminal Conviction) or Chapter 651 (Crematory Services, Funeral Directing, And Embalming).
§203.59.Alternative Method of Licensing for Military Service Members, Military Veterans, and Military Spouses.
(a) The executive director may waive any prerequisite to obtaining a license for an applicant who satisfies the requirements in §55.004(a), Texas Occupations Code after reviewing the applicant's credentials.
(b) For purposes of this section, the standard method of demonstrating competency is the specific examination, education, and/or experience required to obtain an individual, provisional or full, funeral directing or embalming license issued by the Commission under Chapter 651, Texas Occupations Code. In lieu of the standard method(s) of demonstrating competency for license and based on applicant's circumstances, the alternative methods for demonstrating competency include, but are not limited to, any combination of the following:
(1) education;
(2) continuing education;
(3) examinations (written and/or practical);
(4) letters of good standing;
(5) letters of recommendation;
(6) work experience;
(7) training;
(8) clinical experience; and
(9) professional experience.
(d) The Commission has 30 days from the date a military service member, military veteran, or military spouse submits an application for alternative licensing to process the application and issue a license to an applicant who qualifies for the license.
(e) A license issued under this section cannot be a limited provisional license pursuant to §55.005(b), Texas Occupations Code. For purposes of this section, "provisional license" does not mean a provisional license as set forth in Chapter 651, Texas Occupations Code.
(f) All applicants shall submit an application and proof of any relevant requirements on a form and in a manner prescribed by the Commission.
(g) All applicants shall submit fingerprints for the retrieval of criminal history record information.
§203.60.Exemption from Licensure for Certain Military Service Members and Military Spouses.
(a) This section establishes rules pursuant to the authority granted in §55.0041, Texas Occupations Code.
(b) The executive director of the Commission must authorize a military service member or military spouse applicant, who meets the qualifications set forth in subsection (c) of this section and §55.0041(a), Texas Occupations Code, to practice funeral directing or embalming in Texas without obtaining a license.
(c) In order to receive authorization to practice in Texas, the military service member or military spouse must:
(1) hold an active license to practice funeral directing or embalming in another jurisdiction that:
(A) that has licensing requirements that are determined by the commission to be substantially equivalent to the requirements for licensure in Texas; and
(B) where the license is currently licensed in good standing in the other jurisdiction;
(2) notify the commission of the military service member or military spouse's intent to practice in Texas on a form prescribed by the commission;
(3) submit a copy of the military service member or military spouse's military identification card; and
(4) submit proof of the military service member or military spouse's residency in Texas and of the military service member's, or, with respect to a military spouse, the military service member to whom the military spouse is married, status as an active duty military service member as defined by §437.001(1), Texas Government Code (relating to Definitions).
(d) For purposes of this section, the commission will determine whether another jurisdiction has licensing requirements that are substantially equivalent to those in Texas by reviewing the other jurisdiction's education, examination, criminal background history, and apprenticeship or internship requirements for a license to engage in funeral directing or embalming in that jurisdiction compared to this state.
(e) While authorized to practice funeral directing or embalming in this state, the military service member or military spouse shall comply with all other laws and regulations applicable to the practice of funeral directing or embalming in Texas.
(f) The commission has 30 days from the date a military service member or military spouse submits the information required by subsection (c) of this section to:
(1) verify that the member or spouse is active and currently licensed in good standing by another jurisdiction with substantially equivalent licensing requirements to Texas; and
(2) upon confirmation from the other jurisdiction(s) that the person is currently licensed and in good standing with that jurisdiction(s), issue an authorization recognizing the applicant's licensure as the equivalent license in this state.
(g) This authorization to practice is valid during the time the military service member or, with respect to a military spouse, the military service member to whom the military spouse is married is stationed at a military installation in Texas, but not to exceed three years.
(h) In the event of a divorce or similar event that affects a person's status as a military spouse, the spouse may continue to engage in the business or occupation under the authority of this section until the third anniversary of the date the spouse received the authorization described by subsection (f) of this section. A similar event includes the death of the military service member or the military service member's discharge from the military.
(i) An authorization issued under this section may not be renewed.
(j) This section establishes requirements and procedures authorized or required by Texas Occupations Code, Chapter 55, and does not modify or alter rights that may be provided under federal law.
§203.61.Length of License and Renewal.
(a) Licenses granted under this subchapter have the terms established by §203.1 of this chapter (related to Funeral Director and Embalmer License Requirements and Procedure), or a term of 12 months from the date the license is issued, whichever term is longer. This section does not apply to the authorization granted under §203.60 of this subchapter (relating to Exemption from Licensure for Certain Military Service Members and Military Spouses).
(b) Provisional licenses granted under this subchapter have the terms established by §§203.5 - 203.7 of this chapter (related to Provisional License; Provisional License Case and Reporting Requirements; and Provisional License Reinstatement and Reapplication). The provisions in this section do not affect the license renewal extensions according to §55.003, Texas Occupations Code. For the purposes of this section, provisional license has the meaning assigned in Texas Occupations Code, chapter 651, and not the meaning assigned in §55.005(b), Texas Occupations Code.
(c) The Commission shall notify the licensee in writing or by electronic means of the requirements for renewal.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 25, 2024.
TRD-202401767
Sarah Hartsfield
Interim Executive Director/Staff Attorney
Texas Funeral Service Commission
Earliest possible date of adoption: June 9, 2024
For further information, please call: (512) 936-2474