When the commission finds that a licensee has violated Occupations Code Chapter 651; Health and Safety Code Chapter 695, §§711.003, 711.008, 711.010, 711.011, 711.021 - 711.035, 711.038, 711.041, 711.042, 711.061, 711.062, Chapter 716 or any of the commission's rules, it shall:

1. (1) before a SOAH hearing, issue Preliminary finding of facts and conclusions of law, in addition to imposing appropriate penalties ranging from a letter of warning to monetary administrative penalties of not less $100 but not more than $5,000 for each violation in accordance with Texas Occupation Code §651.552.

2. (2) The following guidelines will be utilized in the setting of administrative penalties.

   1. (A) Texas Occupation Code §651.451, Certain Fraudulent and Deceptive Acts.

      1. (i) Presentation to the Commission of any license, certificate or diploma that was illegally or fraudulently obtained, or when fraud or deception was used in passing an examination. The impersonation of, or acting as a proxy for, another in any examination required by this Act for a funeral director and/or embalmer, (1) and (2)--$1,000 - $5,000;
      2. (ii) The purchase, sale, barter, or use, or any offer to purchase, sale, barter, or use any license, certificate, or transcript of license or certificate, in or incident to an application to the Commission for license to practice as a funeral director and/or embalmer, (3)--$1,000 - $5,000;
      3. (iii) Altering, with fraudulent intent, any funeral director and/or embalmer license certificate, or transcript of license or certificate, (4)--$1,000 - $5,000;
      4. (iv) The use of any funeral director and/or embalmer license, certificate, diploma or transcript of any such funeral director and/or embalmer license, certificate, or diploma that has been fraudulently purchased, issued, counterfeited, or materially altered, (5)--$1,000 - $5,000;
      5. (v) The impersonation of a licensed funeral director or embalmer as authorized by the Act, or permitting or allowing another to use a person's license or certificate to practice as a funeral director or embalmer in this state, (6) and (7)--$1,000 - $5,000;
      6. (vi) Presentation of false certificate of work done as a provisional licensee (8)--$100 - $2,000.
      7. (vii) Failure to comply with the demand for a report of implementation will result in the assessment of a $100.00 administrative penalty against the license(s) involved.

   2. (B) Texas Occupation Code §651.452, Lack of Fitness to Practice.

      1. (i) Conviction of a misdemeanor related to the practice of embalming or funeral directing; or a felony, (1)--$500 - $5,000;
      2. (ii) Being unfit to practice as a funeral director and/or embalmer by reason of insanity and having been adjudged by a court of competent jurisdiction to be of unsound mind, NONE;
      3. (iii) Unfitness by reason of present substance abuse, NONE.
   3. (C) Texas Occupation Code §651.453, Unethical Advertising. The use of any advertising statement of a character that misleads or deceives the public or use of, in connection with advertisements, the names of person who do not hold a license as a funeral director or embalmer and representing them as being so licensed, (1)--$500 - $3,000.

   4. (D) Texas Occupation Code §651.454, Other Unethical Conduct in Soliciting Customers.

      1. (i) Failure by any person arranging for funeral services or merchandise to: provide a prospective consumer with a copy of the brochure required by §651.404 at the beginning of the arrangement process (1)--$500 - $5,000;
      2. (ii) provide a retail price list to an individual inquiring in person about any funeral service or merchandise for that person to keep, (2)--$500 - $5,000;
      3. (iii) explain to the customer or prospective customer that a contractual agreement for funeral services or merchandise may not be entered into before the presentation of the retail price list to that person; or (3)--$500 - $5,000
      4. (iv) provide general price information by telephone within a reasonable time, (4)--$500 - $5,000;

      5. (v) restricting, hindering, or attempting to restrict or hinder:

         1. (I) the advertising or disclosure of prices and other information regarding the availability of funeral services and funeral merchandise that is not deceptive or unfair to consumers, or
         2. (II) agreements for funeral services between any consumer or group of consumers and funeral directors and embalmers, (b)(1) and (2)--$500 - $5,000;
      6. (vi) Whenever a licensee, provisional licensee, or any other person, whether an employee, agent, or representative or one in any manner associated with a funeral establishment shall solicit business or offer any inducement, pecuniary or otherwise, for the purpose of securing or attempting to secure business of such funeral establishment, unless such solicitation is made pursuant to a permit issued under Chapter 154 Texas Finance Code, (c)--$1,000 - $5,000.

   5. (E) Texas Occupation Code §651.455, False or Misleading Statements Regarding Funeral Merchandise or Funeral Services.

      1. (i) The use of any statement that misleads or deceives the public, including but not limited to false or misleading statements regarding any legal, religious, or cemetery requirement for funeral merchandise or funeral services, (1)--$500 - $5,000;
      2. (ii) the preservative qualities of funeral merchandise or funeral services in preventing or substantially delaying natural decomposition or decay of human remains, (2)--$500 - $5,000;
      3. (iii) the airtight or watertight properties of a casket or outer enclosure, (3)--$500 - $5,000;
      4. (iv) representations as to licensed personnel in the operation of a funeral establishment, (4)--$500 - $5,000.

   6. (F) Texas Occupation Code §651.456, Unethical Conduct Regarding Custody of Dead Human Body

      1. (i) Taking custody of a dead human body without the permission of the person or the agent of the person authorized to make funeral arrangements for the deceased, (1)(A)--$250 - $5,000;
      2. (ii) or without the permission of the medical examiner or the justice of the peace when a medical examiner or justice of the peace has jurisdiction over the body under Articles 49.02, 49.03, 49.04, and 49.05, Code of Criminal Procedure, (1)(B)--$250 - $5,000;
      3. (iii) refusing to promptly surrender a dead human body to a person or agent authorized to make funeral arrangements for the deceased, (2)--$250 - $5,000.

   7. (G) Texas Occupation Code §651.457, Unethical Conduct Regarding Embalming.

      1. (i) embalming a body without the expressed written or oral permission of a person authorized to make funeral arrangements for the deceased, (a)(1)(A)--$250 - $5,000, or;
      2. (ii) without making a documented reasonable effort over a period of at least three (3) hours to obtain the permission, (B)--$250 - $5,000;
      3. (iii) embalming or attempting to embalm without proper authority a dead human body, evidence of which includes making an incision on the body, raising a circulatory vessel of the body, or injecting a chemical into the body, (2)--$250 - $5,000;
      4. (iv) allows the presence or participation of a student for credit or satisfaction of academic requirements during the embalming of a dead human body without complying with §651.407, (3)--$250 - $5,000;
      5. (v) places a chemical or substance on or in a dead human body to disinfect or preserve the body or to restore body tissues and structures without holding an embalmer's license, (4)--$250 - $5,000.
   8. (H) Texas Occupation Code §651.458, Unethical Conduct by Funeral Establishment. A person violates this chapter if the person makes a distinction in providing funeral information to a customer regardless of any affiliation of the customer or whether the customer has a present need for the services or merchandise, $100 - $5,000;

   9. (I) Texas Occupation Code §651.459, Other Unethical Conduct In Providing Funeral Services.

      1. (i) willfully makes a false statement on a death certificate or a document required by this chapter or a rule adopted under this chapter, (a)(1)--$500 - $2,000;
      2. (ii) engages in fraudulent, unprofessional, or deceptive conduct in providing funeral services or merchandise to a customer, (2)--$1,000 - $5,000;
      3. (iii) dishonest conduct, willful conduct, negligence, or gross negligence in the practice of embalming or funeral directing that is likely to or does deceive, defraud, or otherwise injure the public, (3) $500 - $5,000;
      4. (iv) causes the execution of a document by the use of fraud, deceit, or misrepresentation, (4)--$750 - $5,000;
      5. (v) directly or indirectly employs a person to solicit individuals or institutions by whose influence dead bodies may be turned over to a particular funeral director, embalmer or funeral establishment, (5)--$1,000 -$5,000;
      6. (vi) misappropriates funds held by a license holder, a funeral establishment, an employee or agent of the funeral establishment, or another depository, that create an obligation to provide a funeral service or merchandise, including retaining for an unreasonable time excess funds paid by or on behalf of the customer for which the customer is entitled to a refund, (6)--$250 - $5,000;
      7. (vii) performing acts of funeral directing or embalming that are outside the licensed scope and authority of the licensee, or performing 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, (7)--$500 - $5,000;
      8. (viii) Statement or implication by a funeral director or embalmer that a consumer's concern with the cost of any funeral service or funeral merchandise is improper or indicates a lack of respect for the deceased, (b)--$500 - $5,000;
      9. (ix) Failure by the Funeral Director in Charge to provide a funeral director or an embalmer for direction or personal supervision for a "first call", (c)--$500 - $5,000.

   10. (J) Texas Occupation Code §651.460, Prohibited Practices Related To Failure to Comply With Other Legal Requirements.

       1. (i) arranges for funeral services or merchandise and fails to provide a customer with a purchase agreement as required by §651.406, (a)(1)--$500 - $5,000;
       2. (ii) fails to retain and make available to the commission, on request, copies of all price lists, written notices, embalming documents, and memoranda of agreement required by this chapter for two years after the date of distribution or signing, (2)--$250 - $5,000;
       3. (iii) violation of this chapter, any rule adopted under this chapter, an order by the commission revoking, suspending, or probating a license, an order assessing and administrative penalty, or an agreement to pay an administrative penalty regardless of whether the agreement is express or implied by §651.554, (3)--$500 - $5,000;
       4. (iv) allows the use of a dead human body by an embalming establishment for research or educational purposes without complying with §651.407, (4)--$500 - $5,000;
       5. (v) associated with the funeral establishment, whether as an employee, agent, subcontractor, assignee, owner, or otherwise, and whether licensed or unlicensed, to comply with chapter or a rule adopted under this chapter, (5)--$100 - $5,000;
       6. (vi) failure of a funeral establishment to substantially comply with §651.351 Licensed Required violation is against the funeral establishment, (b)(1)--$250 - $5,000;
       7. (vii) the funeral establishment or a person acting on behalf of the funeral establishment violates Chapter 193 or 361, Health and Safety Code - violation is against the funeral establishment, (2)--$250 - $5,000;
       8. (viii) any violation by a funeral establishment or a person acting on behalf of a funeral establishment or any person directly or indirectly connected with a funeral establishment of Chapter 154, Finance Code or a rule adopted under that chapter, (3)--$250 - $5,000.

3. (3) Based upon consideration of the following factors, the Executive Director may use the following criteria in the recommendation to the commissioners for the assessment of administrative penalties:

   1. (A) the severity of the offense plus 0 - 10 points
   2. (B) the danger to the public plus 0 - 10 points
   3. (C) the number of repetitions of offense plus 0 - 10 points
   4. (D) the number of complaints previously found justified against the licensee plus 0 - 10 points
   5. (E) the length of the time licensee has practiced plus 0 - 10 points
   6. (F) the actual damage, physical or otherwise, caused by the violations; plus 0 - 10 points
   7. (G) the deterrent effect of the penalty imposed plus 0 - 10 points
   8. (H) refusal by licensee to correct or stop violations plus 0 - 10 points
   9. (I) penalties imposed for related offenses plus 0 - 10 points
   10. (J) any other mitigating or aggravating circumstances plus or minus 0 - 10 points
   11. (K) attempts by licensee to correct or stop violations minus 0 - 10 points

4. (4) Penalties imposed by the commission using the guidelines of paragraphs (2) and (3) of this section may be imposed for each violation, but may not exceed the following limitations:

   1. (A) imposition of an administrative penalty not to exceed $5,000 for each count or separate offense;
   2. (B) utilizing the point system described in paragraph (3) of this section, a total point accumulation of 0 - 10 results in a penalty less than $1,000; 10 - 20 points result in a penalty between $1,000 - $2,000; 20 - 30 points result in a $2,000 penalty; 30 - 40 points result in a penalty between $2,000 - $3,000; 40 - 50 points result in a penalty of $3,000; 50 - 60 points result in a penalty of between $3,000 - $4,000; 60 - 70 points result in a penalty of $4,000; 70 - 80 points results in a penalty of $4,500; 80 - 100 points results in a penalty of $5,000.
5. (5) The provisions of paragraphs (1) - (4) of this section shall not be construed so as to prohibit other appropriate civil or criminal action and remedy and enforcement under other laws.

6. (6) After a hearing, or with the waiver of a hearing, the commission may, in it's discretion, using the disciplinary guidelines in paragraphs (2) and (3) of this section,

   1. (A) place a license on probation for a period of time and subject to such conditions as the commission may specify;
   2. (B) suspend or revoke a license; or
   3. (C) deny the application for a license.

Source Note:The provisions of this §201.11 adopted to be effective December 23, 2001, 26 TexReg 10280; amended to be effective September 6, 2005, 30 TexReg 5365; amended to be effective October 10, 2010, 35 TexReg 9091; amended to be effective May 16, 2012, 37 TexReg 3588.