(a) Purpose. The purpose of this section is to implement Texas Occupations Code Chapter 651, 76th Legislature, 1999, and Health and Safety Code Chapters 193 and 195. In an effort to better protect the public health, safety and welfare, it is the legislative intent of the laws of the Texas Department of State Health Services (Department) and the Texas Funeral Service Commission (TFSC) to adopt by rule a memorandum of understanding to facilitate cooperation between the agencies by establishing joint procedures and describing the actual duties of each agency for the referral, investigation, and resolution of complaints affecting the administration and enforcement of state laws relating to vital statistics and the licensing of funeral directors and funeral establishments.
(b) Scope.
  (1) The Memorandum of Understanding (MOU) includes the respective responsibilities of the Department and the TFSC in regulating any person or entity under the Health and Safety Code Chapters 193 and 195, concerning the completion and filing of death records.
  (2) The Department and the TFSC will implement the cooperative procedure described in this memorandum to refer complaints to the other agency when that complaint falls within the other agency's jurisdiction or may have an effect on the administration and enforcement of the law for which the other agency is responsible.
  (3) The Department and the TFSC will implement the cooperative procedure described in this MOU in order to notify the other agency of violations of Health and Safety Code Chapters 193 and 195; and Texas Occupations Code Chapter 651 by funeral directors and funeral establishments, and to assist and encourage funeral directors, embalmers, and funeral establishments to conform their activities relating to the completion and filing of death records.
  (4) The MOU does not limit the authority of either agency, acting in its own capacity under state or federal law, to investigate complaints that fall within that agency's statutory jurisdiction.
(c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
  (1) Agency--Texas Department of State Health Services or the Texas Funeral Service Commission.
  (2) Death record--A report of death, death certificate, or a burial-transit permit, and such other forms as the Texas Department of State Health Services determine to be necessary.
  (3) Department--The Texas Department of State Health Services or any local registrar.
  (4) Funeral Director--A person who for compensation engages in or conducts, or who holds himself out as being engaged, for compensation, in preparing, other than the embalming, for the burial or disposition of dead human bodies, and maintaining or operating a funeral establishment for the preparation and disposition, or for the care of dead human bodies.
  (5) Funeral establishment--A place of business used in the care and preparation for burial or transportation of dead human bodies, or any other 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 is so engaged.
  (6) Local registrar--
    (A) The justice of the peace is a local registrar of births and deaths in a justice of the peace precinct. However, the duty of registering births and deaths may be transferred to the county clerk if the justice of the peace and the county clerk agree in writing and the agreement is ratified by the commissioners court.
    (B) The municipal clerk or secretary is the local registrar of births and deaths in a municipality with a population of 2,500 or more.
    (C) If a local registrar fails or refuses to register each birth and death in the district or neglects duties, the county judge or the mayor, as appropriate, shall appoint a new local registrar and shall send the name and mailing address of the appointee to the state registrar.
  (7) Person--
    (A) includes corporation, organization, government, or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity; or
    (B) includes individual, corporation, or association where enforcement of Health and Safety Code Chapter 195 is involved.
  (8) Physician--Any individual licensed by the Texas Medical Board to practice medicine in this state.
(d) Delegation of responsibilities. The Department and TFSC agree that the agencies shall have the following responsibilities.
  (1) The Department shall have primary responsibility for the enforcement of the laws, rules, and policies governing the collection and maintenance of a system of vital statistics, including the collection and maintenance of death records for the State of Texas. Except as may be otherwise provided by law, the Department shall:
    (A) design the format and prescribe the data to be entered on all forms that constitute the death records of the state;
    (B) prescribe the rules and procedures to be followed by a funeral director licensed by TFSC in executing his/her responsibility to secure the required data and file the completed death record;
    (C) establish rules or policies to determine when a local registrar may accept the filing of a death record by a funeral director or the funeral director's designee and the purposes for which each record may be used, including the filing and uses of a delayed death certificate; and
    (D) enforce the provisions of the Health & Safety Code (Code) Chapter 193, in accordance with Chapter 195 of the Code relating to criminal penalties for violations of laws relating to vital statistics. These laws include Chapters 191, 192, and 193 of the Code and rules adopted thereunder. If the state registrar knows or suspects that a funeral director or a funeral establishment has violated the provisions of §195.003 or other provisions of Title 3 of the Code, he or she shall report the violation to the appropriate district or county attorney for prosecution.
  (2) The Texas Funeral Service Commission (TFSC) shall have primary responsibility for the enforcement of the laws, rules, and policies governing the licensing of funeral directors, embalmers, funeral and commercial embalming establishments. Except as may be otherwise provided by law, the TFSC has authority:
    (A) to inspect a funeral establishment for violations of Chapter 193 of the Code; and
    (B) to assess an administrative penalty or to reprimand, revoke, suspend, probate, deny or impose any combination of sanctions against a licensee in accordance with Texas Occupations Code Chapter 651, if the licensee has violated Chapter 193 or 195 of the Code or 25 TAC Chapter 181 of the Department rules;
  (3) Referral, investigation, and resolution of complaint.
    (A) If the Department receives a complaint that alleges conduct by a funeral director or a funeral establishment that constitutes possible violations of Texas Occupations Code Chapter 651, or the rules adopted by TFSC under authority of Texas Occupations Code Chapter 651, the Department may refer the complaint to the TFSC for investigation and disposition; however, if the complaint describes conduct by any person or entity licensed under Texas Occupations Code Chapter 651 that constitutes possible violations of Chapters 193 and 195 of the Code, the Department shall retain jurisdiction over the subject matter of the complaint, investigate the complaint, and if valid, shall file a complaint with TFSC; or the Department or any local vital statistics registrar may refer the complaint to TFSC for investigation and adjudication.
    (B) If TFSC receives a complaint that alleges conduct by any person that constitutes possible violations of Title 3 of the Code, TFSC shall immediately notify the Department of the complaint for any appropriate action by the Department.
    (C) If either agency receives a complaint that alleges facts that constitute a violation of any other law, the complaint shall be referred to the appropriate state administrative agency or state or local law enforcement agency.
    (D) Each agency shall appoint at least one person to an interagency team that will meet at least biannually and at that time review each unresolved complaint that affects the agencies jointly.
      (i) If the complaint has not been referred for investigation and resolution, the team will refer the complaint to the Department, TFSC, or other appropriate state administrative or law enforcement agency, including the State Board of Medical Examiners, or local law enforcement agency.
Cont'd...
(ii) If the Department and the TFSC determine that a complaint has been incorrectly referred, they will refer the complaint appropriately.
    (E) To the extent allowed by law, each agency shall cooperate and assist the other in the investigation and resolution of complaints. The following actions may be taken where indicated in the other's enforcement actions.
      (i) Either agency may request the assistance of the other in the investigation of a complaint.
      (ii) Each agency may share information obtained during the complaint investigation with the other agency when the subject matter of the complaint affects both agencies.
      (iii) Any information obtained by the TFSC as a result of a complaint investigation is not subject to public disclosure under the Government Code §552.101, by virtue of Texas Occupations Code Chapter 651, §651.203, until the case has reached its final disposition.
      (iv) Each agency shall make its personnel available to testify in an administrative or judicial proceeding brought on behalf of the other agency, when the personnel has knowledge of information that is material to the subject matter of the proceeding.
(e) Effective date. This section shall become effective on August 1, 1994. The MOU may be amended at any time upon mutual agreement of the agencies and the amendments are effective as to each agency 20 days after the adopted amendments are filed with the Texas Register.

Source Note: The provisions of this §201.16 adopted to be effective October 18, 2015, 40 TexReg 7065