    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN CORNYN




                                              June lo,2002




Mr. O.C. “Chet” Robbins                               Opinion No. JC-05 12
Executive Director
Texas Funeral Service Commission                      Re: Authority of the Texas Funeral Service
P. 0. Box 12217                                       Commission to regulate cemetery and crematory
Austin, Texas 78711                                   owners or operators (RQ-0476-JC)


Dear Mr. Robbins:

        The Texas Funeral Service Commission (the “Comruission”) regulates the funeral services
industry under chapter 65 1 of the Occupations Code. See Tex. OCC. CODEANN. §tj 65 l-001- -655
(Vernon 2002). Prior to 2001, the Commission’s regulatory authority extended only to persons
engaged in funeral directing and embalming. In 2001, the Texas Legislature amended chapter 65 1
to extend the Commission’s regulatory authority to persons who own or operate cemeteries or
crematories. See Act of May 21,2001,77th        Leg., R.S., ch. 682,200l Tex. Gen. Laws 1288. You
ask about the Commission’s authority to regulate the conduct of cemetery and crematory owners
or operators required to register with the Commission and the Commission’s authority to investigate
complaints involving such persons.’ We conclude, that with respect to such cemetery and crematory
owners or operators, chapter 65 1 limits the Commission to regulating the conduct or circumstances
expressly described in sections 65 1.4055,65 1.4065,65 1.45 1,65 1.452,65 1.455, and 65 1.653 of the
Occupations Code, as added or amended by the legislature in 2001. We also conclude that section
65 1.202(c) of the Occupations Code requires the Commission to investigate all complaints relating
to such owners or operators. The Commission, however, may dismiss a complaint if an investigation
of the complaint does not reveal a violation of section 651.4055, 65 1.4065, 651.45 1, 65 1.452,
65 1.455, or 65 1.653. The Commission is required to maintain as part of a complaint file the results
of an investigation of a complaint that the Commission has dismissed because the complaint does
not involve a violation of these six statutory provisions. Finally, we conclude that section 65 1.1575
of the Occupations Code allows the Commission to inspect a cemetery or crematory only if the
complaint involves a violation of section 65 1.4055, 65 1.4065, 65 1.45 1, 651.452, 651.455, or
65 1.653.

        We begin by reviewing the background to the 2001 amendments to the Commission’s
enabling statute. The Commission is subject to the Texas Sunset Act and would have been abolished



        ‘See Letter from O.C. “Chet” Robbins, Executive Director, Texas Funeral Service Commission, to John
Cornyn, Texas Attorney General (Dec. 6,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. O.C. “Chet” Robbins             - Page 2                    (JC-0512)




if the legislature did not continue its existence. See Act of May 21,2001,77th  Leg., R.S., ch. 682,
6 1.04, sec. 65 1.002,2001 Tex. Gen. Laws 1288,129O; TEX. Oct. CODEANN. fj 65 1.002 (Vernon
2002). As a result of its review, the Sunset Advisory Commission recommended to continue the
Commission and several legislative changes. See OFFICE OF HOUSE,BILLANALYSIS, Tex. H.B. 3067,
77th Leg., R.S. (2001) (“Background           and Purpose”) (enrolled version); SUNSETADVISORY
COMMISSION, REPORT TO THE ‘77~~ LEGISLATURE, 79-80 (200 1) (Texas Funeral Service Commission)
(hereinafter “Sunset Report”). Among other problems, the Sunset Advisory Commission reported
that “[nlot [rlegulating the [b]urial and [fJinal [d]isposition of a [b]ody [flails to [aldequately
[plrotect [clonsumers      from [flalse or [dleceptive [plractices,” based on the Commission’s
summarized findings that:

                     The Commission      receives complaints regarding cemeteries and
                     crematories, but cannot investigate them because it lacks jurisdiction.

                     Many cemeteries fail to provide consumers with accurate information
                     on prices, refunds, financing, or the legal requirements regarding the
                     purchase of cemetery products.

Id. at 88. Accordingly, the Sunset Advisory Commission advocated expansion of the “state’s”
regulatory authority to cover cemetery and crematory services to “rectify consumer complaints
regarding certain aspects of a burial or cremation.” Id. at 89. Specifically, it recommended, as
relevant here, that chapter 65 1 of the Occupations Code be modified to (1) “require the registration
of owners or operators of cemeteries and crematories . . . to ensure responsibility for the complete
disposition of a body”; (2) “[rlequire cemeteries and crematories to disclose information to
consumers”; and (3) authorize the Commission “to enforce violations of unprofessional conduct by
owners or operators of cemeteries and crematories, as defined by Commission rules.” Id. at 89.

        House Bill 3067, which the legislature adopted in 2001, incorporated most but not all of the
Sunset Advisory Commission’s recommendations.           See Act of May 2 1,200 1,77th Leg., R.S., ch.
682, $5 1.12, 1.13, 1.21, 1.23, 1.25-1.28,2001 Tex. Gen. Laws 1288, 1293-94, 1297-99; see also
OFFICEOF HOUSE,BILL ANALYSIS, Tex. H.B. 3067, 77th Leg., R.S. (2001) (“Background and
Purpose”) (enrolled version).     Section 1.32 of House Bill 3067 amended chapter 651 of the
Occupations Code to add subchapter N, which applies “only to a cemetery2 or crematory3 that sells
goods or services related to the burial or final disposition of a body,“4 and prohibits a person from
conducting a cemetery or crematory business in this state unless an individual who is the owner or



         “‘Cemetery”     is “a place that is used or intended   to be used for internment,   and includes   a graveyard,   burial
park, or mausoleum.”     TEX. OCC. CODE ANN. § 65 1 .001(l)      (Vernon 2002).

            3“CrematoTy” is “a structure   containing   a furnace used or intended   to be used for the cremation     of human
remains.”    Id. 0 65 l.OOl(3).

          41t does not apply to the maintenance of a cemetery or crematory, including “maintenance        of any goods or
services provided under chapter 7 11 [general provisions relating to cemeteries] or 7 12 [provisions relating to perpetual
care cemeteries] of the Health and Safety Code.” Id. 9 65 1.652(b).
Mr. O.C. “Chet” Robbins          - Page 3                  (JC-0512)




operator of the cemetery or crematory registers with the Commission?          Act of May 2 1,2001,77th
Leg., R.S., ch. 682, 8 1.32,2001 Tex. Gen. Laws 1288, 1299-300. (footnotes added) (codified at
sections 65 1.652(a) and 65 1.653, Occupations Code). Additionally, section 1.13 ofHouse Bill 3067
amended section 65 1.202(c) of the Occupations Code to require the Commission to “investigate each
complaint received by the commission relating to a funeral director . . . or otherperson licensed or
registered under this chapter.” Id. 0 1.13, 2001 Tex. Gen. Laws at 1293-94 (emphasis added).
Section 1.12 of the bill also added section 65 1.1575 authorizing the Commission to “inspect a
cemetery or crematory,” but “only if the commission receives a complaint about that facility under
Section 65 1.202.” Id. 6 1.12,2001 Tex. Gen. Laws at 1293. Section 1.21 of House Bill 3067 added
section 65 1.4055 requiring a “retail price list” to include, among other information, the price of items
and services provided by the cemetery or crematory; and section 1.23 added section 651.4065
requiring a “purchase agreement” signed by the “registrant” for the cemetery or crematory to include,
among other information, the costs and fees charged by the cemetery or crematory. Id. 9 9 1.2 1,1.23,
2001 Tex. Gen. Laws at 1297. Sections 1.25, 1.26, and 1.27 of House Bill 3067 amended three
provisions that set out specific violations of chapter 651 to apply generally to the conduct of
cemetery and crematory owners or operators: section 65 1.45 1 dealing with fraudulent and deceptive
use of a professional license or registration; section 651.452 providing for conviction for a
misdemeanor related to a regulated activity or a felony or current substance abuse; and section
65 1.455 concerning false or misleading statements regarding cemetery or crematory services or the
registration held by personnel in the operation of the cemetery or crematory! Id. 4 lj 1.25,1.26,1.27,
2001 Tex. Gen. Laws at 1298. Finally, section 1.28 of House Bill 3067 added section 651.5025
authorizing the Commission to revoke without a hearing a “license” for a conviction of a felony
related to the practice of an “activity regulated by the commission.” See id. 8 1.28,2001 Tex. Gen.
Laws at 1298-99.

        With this background, we turn to your specific questions.          You first ask: “Is the
Commission’s authority to regulate persons required to register with the Commission limited to acts,
conduct, or circumstances described in 55 1.25-.28 [of House Bill 30671 or does the Commission
have other regulatory authority over these persons not found in House Bill 3067?” Request Letter,
supra note 1, at 1.

         In considering chapter 651 and the Cornmission’s authority to regulate cemetery and
crematory owner’s or operator’s conduct, we are guided by the following rules of statutory
construction:   When interpreting statues, like a court, we must attempt to give effect to legislative
intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc. 996 S.W.2d 864, 865 (Tex. 1999). It
is “cardinal law in Texas,” however, that a court construes a statute by first looking at the plain and
common meaning of the statutory words. See id. If the meaning of the provision is unambiguous,


          SThe Sunset Advisory Commission’s Staff Report indicates that although crematories are required by law to
be located in a cemetery, the owner of a crematory “may or may not be the same person as the owner of cemetery.”
SUNSET ADVISORY COMMISSION, FUNERAL SERVICESCOMMISSION, STAFF REPORT(2000) at 48 (hereinafter “Staff
Report”).

        This section, however, “does not apply to cemetery or crematory services that occur after burial or inumment.”
TEX. OCC. CODE ANN. 6 65 1.455(b) (Vernon 2002).
Mr. O.C. “Chet” Robbins     - Page 4               (JC-0512)




a court adopts, with few exceptions, the interpretation supported by the plain meaning of the
statutory words and terms. See id. Moreover, if a statute is unambiguous, rules of construction or
other extrinsic aids cannot be used to create ambiguity.      See id. at 866. “[Tlextual aids to
construction [may be considered] for the insight they may shed on how the Legislature intended that
[its] words be interpreted.  In doing so, we look at the entire act, and not at a single section in
isolation.” Id at 866 (footnotes omitted).

          Additionally, we rely on the following principles regarding the extent of an administrative
agency’s authority. A state administrative agency has only those powers expressly conferred upon
it by statute. See Pub. Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310,315 (Tex. 2001). But
an agency may also have implied powers that are reasonably necessary to carry out its express
statutory responsibilities because “when the Legislature expressly confers a power on an agency, it
also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its
express functions or duties.” See id. at 3 15- 16. On the other hand, an agency may not exercise what
is effectively a new power, or a power that is contrary to the statute, on the theory that such power
is administratively expedient. See id. at 3 16. In the usual case, application of these rules requires
a two-step analysis: Whether the legislature has expressly granted an administrative state agency
the power to take a particular action; and, if not, whether that power is reasonably necessary for the
agency to fulfill the express functions and duties the legislature did give it. See id.

          Here, you do not ask about the Commission’s power to regulate particular conduct. Instead,
you ask whether the Commission’s authority over cemetery and crematory owners or operators is
limited to regulating the conduct or circumstances described in section 651.451 (fraudulent and
deceptive use of registration), section 651.452 (misdemeanor conviction related to cemetery or
crematory business, felony conviction, current substance abuse), and section 651.455 (false or
misleading statements regarding cemetery or crematory services or the cemetery or crematory
registration), or whether the Commission has additional or broader regulatory authority over these
owners or operators “not found in House Bill 3067.” Request Letter, supra note 1, at 1. You also
ask about section 65 1.5025 added by section 1.28 of House Bill 3067. See id. Section 65 1.5025,
however, does not require or prohibit a conduct, but rather sets out the procedure by which the
Commission may sanction certain types of violations, i.e., felony convictions. See TEX. Oct. CODE
ANN. § 651.5025 (Vernon 2002). Because we understand you to ask about conduct that the
Commission is authorized to regulate as violations of chapter 65 1, we do not address section
651.5025.

         With respect to cemetery and crematory owners or operators required to register with the
Commission, chapter 65 1 limits the Commission to regulating the conduct expressly described in
sections 65 1.4055,65 1.4065,65 1.45 1,65 1.452,65 1.455, and 65 1.653 ofthe Occupations Code, the
provisions added or amended by House Bill 3067. The Commission is generally authorized to
regulate persons subject to chapter 65 1 in several ways. The Commission may, for example, revoke,
suspend, or probate alicense,see id. 55 651.501, .5025, issue areprimand, see id. $5 651.501, .504,
assess an administrative penalty, see id. $5 65 1.501, .551, or sue for injunctive relief, see id. 8
65 1.601, to punish an act or practice that violates chapter 65 1. The six provisions added or amended
by House Bill 3067 are the only provisions that expressly apply to owners or operators of cemeteries
Mr. O.C. “Chet” Robbins      - Page 5                (JC-0512)




and crematories   and require or prohibit certain conduct. See id. $3 65 1.4055, .4065, -45 1, .452, -455,
,653.

          Sections 65 1.45 1, 65 1.452, 65 1.455, and 65 1.653 specifically describe conduct or
circumstances that “violate” chapter 65 1. See id. $0 65 1.45 1, .452, ,455, .653. Sections 65 1.45 1,
65 1.452, and 65 1.455 provide that a person violates chapter 65 1 if the person:        (1) obtains a
registration by fraud or deception or uses the registration to perpetuate fraud or deception on the
Commission or consumers, see id. 0 65 1.45 1; (2) is convicted of a misdemeanor or felony or is a
current substance abuser, see id. 8 651.452; or (3) makes false or misleading statements about
cemetery or crematory services required by law or religion or the nature of those services or the
person’s registration, see id. 8 65 1.455. While you do not specifically ask about section 651.653,
this section also prohibits a person from conducting a cemetery or crematory business unless the
owner or operator is registered with the Commission as well as setting out the registration
procedures. See id. 6 65 1.653. Clearly, failure to register by a person required to register with the
Commission is a violation of chapter 65 1.

          Sections 65 1.4055 and 65 1.4065 do not specifically “prohibit” conduct; rather they require
certain conduct. See id. $5 65 1.4055, .4065. Failure to comply with these requirements, as a matter
of common sense, also “violates” chapter 65 1. See also id. 5 65 1.460(a)(3) (“A person violates this
chapter if the person . . . violates this chapter, a rule adopted under this chapter, [or] an order by the
commission . . . .“). Section 65 1.4055 deals with a “retail price list.” It defines a “retail price list”
as “a printed or typewritten list of the retail price of items or services provided by a cemetery or
crematory,” and requires it to include the name, address, telephone number of the cemetery or
crematory; effective date of stated prices; a printed notice advising the customer regarding his or her
freedom to choose only the goods and services desired; and “any other items that the commission
may by rule require.” See id. 6 651.4055. Similarly, section 65 1.4065 provides that a “purchase
agreement,” signed by the “registrant for the cemetery or crematory” must state the name, address,
and telephone nurnber of the facility; the amounts due from the customer; the Commission’s address
and telephone number; that complaints may be directed to the Commission; and “any other items
that the commission may by rule require.” See 0 651.4065(a)-(c); see also id 8 65 1.4065(d) (if
customer selects package based on unit pricing, “itemization requirement is satisfied by providing
purchase agreement that itemizes the discount provided by the package arrangement.“).               While
sections 65 1.4055 and 65 1.4065 do not specifically require a cemetery or crematory to provide the
retail list and purchase agreement containing the requisite information, we believe that is what they
clearly contemplate. Otherwise, sections 65 1.4055 and 65 1.4065 would be useless acts. Mandating
that information relevant to the consumer and for the consumer’s protection be stated or itemized
in a document is meaningless and serves no purpose unless the information is provided to the
consumer.      See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.
1998) (presume that legislature has not done a useless act); Hunter v. Fort Worth Capitol Corp., 620
S.W.2d 547, 55 1 (Tex. 1981) (“[T]he legislature is never presumed to do a useless act.“); Barr v.
Bernhard, 562 S.W.2d 844, 849 (Tex. 1978) (presume “that the Legislature did not intend to do a
useless thing by putting a meaningless provision in a statute”). Moreover, construing the two
statutory provisions to require that the documents and the requisite information be provided to
consumers accords with one of the very purposes for amending chapter 65 1. Again, among the
Mr. O.C. “Chet” Robbins     - Page 6               (JC-0512)




problems noted by the Sunset Review Commission was that “[mlany cemeteries fail to provide
consumers with accurate information on prices, refunds, financing, or the legal requirements
regarding the purchase of cemetery products[,]” Sunset Report at 88, and the Sunset Review
Commission recommended that chapter 651 be amended to require cemeteries and crematories to
disclose information to consumers, see id. at 89.

         We do not believe that Commission authority to regulate other conduct of cemetery and
crematory owners or operators may be implied. Such additional authority would be inconsistent
with the statute. Authority to regulate other conduct as violations of chapter 65 1 necessarily implies
the imposition of standards, in addition to the expressly stated ones, on those owners or operators.
Such additional standards may not be imposed by implication. See Mass. v. United iV. & S. Dev.
Co., 168 S. W.2d 226,229 (Tex. 1942) (interpretation of statute by implication is permitted to supply
obvious intent not expressly stated, but not to add to what statute provides expressly); Bloom v. Tex.
State Bd. of Exam i-s of Psychologists, 492 S.W.2d 460, 462 (Tex. 1973) (statutes may not be
interpreted to permit making of agency standards different from or inconsistent with statute, even
though they may be reasonable). If the legislature had intended to impose additional standards on
cemetery and crematory owners or operators, it would have done so expressly as it did in sections
651.4055,651.4065,651.451,651.452,651.455,           and 651.653.

         Nor do we believe that additional implied regulatory authority is “reasonably necessary” to
carry out the Commission’s express duty to investigate all complaints about cemetery and crematory
owners or operators subject to chapter 65 1. Your subsequent questions suggest that the arguably
narrow regulatory authority over misrepresentations     and criminal offenses relating to cemetery and
crematory operations is insufficient to fulfill the legislature’s mandate that the Commission ‘shall
investigate each complaint received by the commission relating to a . . . person licensed or registered
under this chapter.” TEX. Oct. CODEANN. 8 651.202(c) (Vernon 2002). It is quite likely, as you
suggest, that a complaint might deal with conduct that is “offensive,” but that is not prohibited by
section 65 1.4055’65 1.4065’65 1.45 1’65 1.452’65 1.455, or section 65 1.653; or the Commission’s
investigation of a complaint might reveal conduct that is “offensive,” but that is not prohibited by
these sections. See Request Letter, supra note 1, at 1. But, as we discuss later, the Commission may
dismiss a complaint without taking any action other than the investigation of the complaint. See id.
$0 65 1.202(b)(6), (d); .203(a)(6); see also infra pp. 8-9. More importantly, the selective additions
and modifications to chapter 65 1 do not support a legislative intent that the Commission exercise
whatever additional regulatory authority is necessary to punish “offensive” conduct related to
cemetery and crematory operations that may be revealed by an investigation. The legislature seems
to have given the Commission the authority it perceived was necessary.

        Again, the legislature     was presented     with the Sunset Advisory      Commission’s
recommendations     to protect consumers.    See Sunset Report at 88-89; OFFICEOF HOUSE,BILL
ANALYSIS,Tex. H.B. 3067’77th Leg., R.S. (2001) (“Background and Purpose”) (enrolled version)
(“As a result of its review of TFSC, the Sunset Advisory Commission recommended a two-year
continuation and several other statutory modifications.    House Bill 3067 continues TFSC and
incorporates recommendations    of the Sunset Advisory Commission, including the expansion of the
TFSC’s regulatory authority to include cemeteries and crematories.“).       The Sunset Advisory
Mr. O.C. “Chet” Robbins          - Page 7                   (JC-0512)




Commission      recommended     specific changes.     One of those changes was:        “Authorize the
Commission to enforce violations of unprofessional conduct by owners or operators of cemeteries
and crematories, as defined by Commission rules.” Sunset Report at 89 (emphasis added). The
Sunset Report noted that “[tlhis recommendation would authorize the Commission to impose a range
of penalties for violations of the statute.” Id. However, the legislature did not give to the
Commission the broad rule-making authority to define “unprofessional conduct” and punish it.7
Instead, it added three new provisions, sections 65 1.4055’65 1.4065, and 65 1.653 requiring cemetery
and crematory owners or operators to register and disclose certain information; and amended three
existing statutory provisions, sections 65 1.45 1’65 1.452, and 65 1.455, dealing with particular types
of conduct that may be described as “unprofessional.” See Act of May 21,2001, 77th Leg., R.S.,
ch. 682, $3 1.25-.28, 2001 Tex. Gen. Laws 1288, 1298-99. Implying authority to regulate any
“offensive” conduct revealed by an investigation of a complaint would give the Commission
authority that the legislature failed or chose not to grant. See Fitzgerald, 996 S.W.2d at 868 (“The
Legislature’s goal in crafting this statute cannot be known except as revealed in its text.“).

         You next ask: “If the Commission’s regulatory authority over these persons is limited by
[sections 65 1.45 I,65 1.452, and 65 1.4551, then is the Commission required by [section 65 1.202(c)]
to investigate only complaints alleging violations of [sections 65 1.45 1,65 1.452, and 65 1.4551 or is
the Commission literally required to investigate ‘all complaints’ regarding persons required to
register regardless of the Commission’s authority to regulate the conduct?” Request Letter, supra
note 1, at 1. You also ask: “If the answer. . . is that the Commission must investigate all complaints
regardless of whether the Commission may regulate the conduct, what is the Commission to do with
the results of investigations . . . that reveal acts, conducts, or circumstances not described in [sections
65 1.45 1’65 1.452, and 65 1.4551 but that otherwise constitute offensive conduct?” Id. We consider
these questions together.

         We conclude that the Commission is required to investigate all complaints relating to an
owner or operator of a cemetery or crematory subject to chapter 651. See Fitzgerald, 996 S.W.2d
at 865 (When the statutory language is unambiguous, courts will adopt, “with few exceptions, the
interpretation supported by the plain meaning of the provision’s words and terms.“); see also
Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (Unambiguous statute
should not be construed to mean something other than what the plain words say unless there is an
obvious typographical error or application of the literal language would produce an absurd result.).
Section 65 1.202(c) of the Occupations Code unambiguously provides that: “The commission shall
investigate each complaint received by the commission relating to a funeral director, embalmer,
provisional license holder, funeral establishment, or otherperson licensed or registered under this
chapter.” TEX. OCC.CODEANN. 9 65 1.202(c) (Vernon 2002) (emphasis added). The latter category,
of course, includes an owner or operator of a cemetery or crematory. Section 65 1.653 prohibits a



          7“Professional conduct,” as used by the Sunset Advisory Commission, seems to contemplate any “offensive”
conduct. See Sunset Report at 88-90; see also Staff Report at 54 (“Expanding regulation would better serve consumers
by ensuring professional liability up until the foal disposition of a body is complete, including filling a grave, sealing
a mausoleum, or packaging cremated ashes. The State would have authority to penalize or reprimand all cases where
improper professional behavior had occurred during final disposition.“).
Mr. O.C. “Chet” Robbins     - Page 8               (X-0512)




person from conducting a cemetery or crematory business “unless an individual who is the owner
or operator of the cemetery or crematory registers with the commission.” Id. 8 65 1.653(a); see also
id. 8 651.653(b) (“A cemetery or crematory may be owned by a person who is not registered under
this chapter.“). Nothing in section 651.202(c) or any other provision limits the Commission’s
investigative duty to receipt of a complaint alleging conduct described in section 651.4055,
651.4065, 651.451, 651.452, 651.455, or 651.653. And, we see no basis in the statute or its
legislative history for adding such a limitation. See Fitzgerald, 996 S.W.2d at 867 (words may be
added to statute only when necessary to give effect to clear legislative intent; “[olnly truly
extraordinary circumstances showing unmistakable legislative intent should divert [court] from
enforcing statute as written”).

        However, the Commission may dismiss a complaint the investigation of which does not
reveal conduct prohibited by section 65 1.4055’65 1.4065’65 1.45 1’65 1.452, 65 1.455, or 65 1.653.
See TEX. Oct. CODEANN. $0 651.202(b)(6), (d); .203(a) (Vernon 2002). Section 651.202(b)(6)
expressly authorizes the Commission to adopt rules establishing procedures whereby a Commission
employee may dismiss a complaint “if the investigation does not reveal a violation.”           Id. 8
65 1.202(b)(6); see also 8 65 1.202(d) (Commission must provide complainant agency policies and
procedures regarding complaint investigation and resolution, including explanation of available
remedies). Section 65 1.203(a) reiterates that the Commission may close a complaint without taking
any action other than its investigation.   See 8 65 1.203(a) (Commission must maintain record of
complaint, including summary of results of investigation and explanation for closing file if done so
without taking action other than investigation of complaint).

         You also ask about the disposition of the results of an investigation that reveal conduct that
is offensive, but that the Commission is not authorized to regulate. Again, the Commission may
dismiss a complaint the investigation of which does not reveal a violation of section 65 1.4055,
65 1.4065’65 1.45 1’65 1.452, 65 1.455, or 65 1.653. With respect to the results of the investigation
of the dismissed complaint, section 65 1.202(d) directs the Commission to provide a person who has
filed a complaint and each person who is the subject of a complaint an “explanation of the remedies
that are available to the person under this chapter and information about other appropriate state or
local agencies or officials with which the person may file a complaint.”             Id. 9 651.202(d).
Additionally, section 651.203(a) directs the Commission to maintain a file with respect to each
written complaint filed with the Commission, including a summary of the results of the investigation
of that complaint and “an explanation of the reason the file was closed, if the commission closed
the file without taking action other than to investigate the complaint.” Id. fj 65 1.203(a)(5), (6); see
also TEX. GOV’T CODEANN. 0 441.183 (Vernon 1998) (each state agency must establish records
management program and create and maintain records of decisions and other essential agency
transactions); id. 8 441.185 (state agency records retention schedule). Section 65 1.203(b) indicates
that such information is generally open to the public: “Information in a file maintained under this
section, other than information relating to a complaint that has not reached a final disposition, is
public information.” TEX. Oct. CODEANN. $65 1.203(b) (Vernon 2002).

       Based on the foregoing provisions, we conclude that the Commission is expressly required
to maintain as part of a complaint file the results of an investigation of a complaint that the
Mr. O.C. “Chet”Robbins           - Page 9                  (JC-0512)




Commission has dismissed because it involves conduct that is not a violation of chapter 65 1. See
id. 8 651.203(a)(5), (6); see also TEX. GOV’T CODEANN. 05 441.183, .185 (Vernon 1998). In the
absence of other legislative direction, it would be reasonable, in our opinion, to provide the results
of such an investigation to another person or agency that may have the authority to regulate or
prosecute the particular conduct. See id. § 65 1 .202(d).8 More importantly, this information may be
provided to the legislature as it considers the status of the Commission and chapter 65 1 in the
upcoming 2003 legislative session. See TEX. OCC. CODEANN. 8 65 1.002 (Vernon 2002) (“Unless
continued in existence as provided by [Texas Sunset Act, chapter 325 of the Government Code], the
commission is abolished and this chapter expires September 1, 2003.“).9

        Finally, you ask, if the Commission’s authority over cemetery and crematory owners or
operators is limited to regulating the conduct described in sections 65 1.45 1’65 1.452, and 65 1.455
of the Occupations Code, whether the Commission’s authority to conduct inspections under section
65 1.1575 is “limited to persons made the subject of complaints under [sections 65 1.45 1, 65 1.452,
and 65 1.4551 or [whether] the Commission is authorized to conduct inspections following the receipt
of a complaint alleging conduct outside the scope of [sections 65 1.45 1, 651.452, and 65 1.455].”
Request Letter, supra note 1, at 2.

          We conclude that the Commission is authorized to inspect a cemetery or crematory only if
the complaint involves a violation by the owner or operator of section 65 1.4055’65 1.4065’65 1.45 1,
651.452, 65 1.455, or 651.653. Section 65 1.1575 provides that the Commission “may inspect a
cemetery or crematory only if the commission receives a complaint about that facility under Section
65 1.202.” TEX. OCC. CODEANN. 6 65 1.1575 (Vernon 2002) (emphasis added). This provision, by
its terms, allows but does not require the Commission to inspect a cemetery or crematory. See TEX.
GOV’T CODEANN. 8 3 11 .016( 1) (1998) (“‘May’ creates discretionary authority or grants permission
or a power[,]” unless a different context requires a different meaning.). The only express condition
to the exercise of the inspection authority is the receipt of a “complaint about that facility.” See id. ;
see also Fitzgerald, 996 S. W.2d at 865 (generally court will adopt interpretation supported by plain
meaning of statutory words). Section 65 1.202(c), directing the Commission to “investigate each
complaint received by the commission relating to a . . . person licensed or registered” with the
Commission, does not restrict the type of complaints that may be filed with the Commission. See
TEX. Oct. CODEANN. 8 651.202(c) (Vernon 2002). While neither section 651.1575 nor section
65 1.202(c) expressly restricts the exercise of the inspection authority to the receipt of a complaint
involving conduct described in sections 651.4055, 65 1.4065, 651.45 1, 651.452, 65 1.455, and
65 1.653, the inspection authority, nonetheless, must be construed to be so limited to avoid possible
constitutional questions regarding administrative searches. SeeMcDonald v. State, 778 S.W.2d 88,
90 (Tex. Crim. App. 1989).



         *We understand that this office’s Consumer Protection Division deals with some complaints   about cemeteries
under the Deceptive Trade Practices Act. See Sunset Staff Report at 50.

          ?The Sunset Advisory Commission’s staff noted as a problem that: “The Commission has no record of the
exact number of such complaints [regarding cemeteries and crematories] it has received” because “these complaints fall
outside the Commission’s   statutory jurisdiction, [so] it does not generally accept or investigate them.” See id.
Mr. O.C. “Chet” Robbins     - Page   10            (JC-0512)




         As we advised in Attorney General Opinion JC-0204, on-site inspection of a private
commercial enterprise implicates the Fourth Amendment to the United States Constitution and
article I, section 9, of the Texas Constitution. See Tex. Att’y Gen. Op. No. JC-0204 (2000) at 1; see
also Tex. Att’y Gen. Op. No. JC-0021 (1999) at 3. Both constitutional provisions protect persons
fi-om “unreasonable searches and seizures.” U.S. CONST.amend. IV; TEX. CONST.at-t.I, 6 9.
“Normally, authorities may not search, without a warrant, portions of a commercial enterprise that
are not open to the public unless the commercial enterprise is involved in a ‘closely regulated
industry. “’ Tex. Att’y Gen. Op. No. JC-0204 (2000) at 1.

         If a commercial enterprise is in a closely regulated industry, a warrantless search may be
conducted only if, first, the statutory scheme authorizing the search furthers a substantial
governmental interest; second, the inspection is necessary to further the statutory scheme; and third,
the statutory scheme - in terms of certainty and regularity of its application - provides a
constitutionally adequate substitute for a warrant so as to limit inspections. See McDonald, 778
S.W.2d at 90 (citing New York v. Burger, 482 U.S. 691 (1987)); see also Santikos v. State, 836
S.W.2d 631,633 (Tex. Crim. App. 1992) (en bane); Adust Video v. AJueces County, 996 S.W.2d 245,
256 (Tex. App.-Corpus Christi 1999, no pet.). In accordance with the third criteria, the scope of a
warrantless inspection authorized by statute must be limited to a determination of a violation under
the statutory scheme. See McDonald, 778 S.W.2d at 90 (“In accordance with the third criteria
enunciated in Burger . . . , the [Texas Alcoholic Beverage Code] limits the scope of warrantless
inspections to the performance of any duty imposed by the code. The duties of the code are
detecting code violations; violations are statutorily defined.“) (upholding constitutionality of TABC
inspection provisions). If cemeteries and crematories are involved in a closely regulated industry,
the inspection of crematories and cemeteries must be limited to detecting violations set out in chapter
651. On the other hand, if cemeteries and crematories are not involved in a closely regulated
industry, the Commission would, of course, have to obtain a warrant. To obtain a warrant, the
Commission would have to establish “probable cause,” which would require, among other things,
a showing of a violation of the Act. See TEX. CODECRIM.PROC.ANN. arts. 18.01 (Vernon Supp.
2002) (criminal search warrant); 18.05 (administrative search warrants).
Mr. O.C. “Chet” Robbins    - Page   11           (J&0512)




                                         SUMMARY

                With respect to cemetery and crematory owners or operators required to
       register with the Texas Funeral Service Commission, chapter 65 1 of the Occupations
       Code limits the Commission to regulating the conduct expressly described in sections
       651.4055,651.4065,651.451,651.452,          651.455, and 651.653. Section 651.202(c)
       of the Occupations Code, however, requires the Commission to investigate all
       complaints relating to such owners or operators; it does not limit the Commission’s
       investigative duty to complaints alleging conduct described in sections 65 1.4055,
       65 1.4065,65 1.45 1,65 1.452, 65 1.455, and 65 1.653 of the Occupations Code. The
       Commission may dismiss a complaint if an investigation of the complaint does not
       reveal a violation of section 65 1.4055, 651.4065, 651.451, 65 1.452, 65 1.455, or
       65 1.653. The Commission is required to maintain as part of a complaint file the
       results of an investigation of a complaint that the Commission has dismissed because
       the complaint does not involve a violation of chapter 65 1.

              Section 65 1.1575 of the Occupations Code allows the Commission to inspect
       a cemetery or crematory only if the complaint involves a violation of section
       651.4055, 651.4065, 651.451, 651.452, 651.455, or 651.653 of the Occupations
       Code.

                                             Y    sve    trul ,


                                          ei’Qu-?-
                                             JOktN    CokNYN
                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
