CHAPTER 437. REGULATION OF FOOD SERVICE ESTABLISHMENTS, RETAIL FOOD STORES, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS
CHAPTER 437. REGULATION OF FOOD SERVICE ESTABLISHMENTS, RETAIL
FOOD STORES, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS
Sec. 437.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commissioner" means the commissioner of health.
(3) "Department" means the Texas Department of Health.
(4) "Food," "food service establishment," "retail food store,"
"mobile food unit," "roadside food vendor", and "temporary food
service establishment" have the meanings assigned to those terms
by rules adopted by the board under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 1, eff. Sept. 1,
1993.
Sec. 437.002. ENFORCEMENT OF STATE LAW BY COUNTY OR PUBLIC
HEALTH DISTRICT. (a) A county or public health district may
enforce state law and rules adopted under state law concerning
food service establishments, retail food stores, mobile food
units, and roadside food vendors.
(b) This chapter does not authorize a county or public health
district to adopt orders establishing standards for the operation
of food service establishments, retail food stores, mobile food
units, or roadside food vendors.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.003. COUNTY AUTHORITY TO REQUIRE PERMIT. To enforce
state law and rules adopted under state law, the commissioners
court of a county by order may require food service
establishments, retail food stores, mobile food units, and
roadside food vendors in unincorporated areas of the county,
including areas in the extraterritorial jurisdiction of a
municipality, to obtain a permit from the county.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.004. PUBLIC HEALTH DISTRICT AUTHORITY TO REQUIRE
PERMIT. (a) A public health district that is established by at
least one county and one or more municipalities in the county by
order may require food service establishments, retail food
stores, mobile food units, and roadside food vendors in the
district to obtain a permit from the district.
(b) If the public health district has an administrative board,
the administrative board must adopt the order in accordance with
its procedures.
(c) If the district does not have an administrative board, the
governing body of each member of the district must adopt the
order. The order is effective throughout the public health
district on the 30th day after the first date on which the
governing bodies of all members have adopted the order.
(d) This chapter does not restrict the authority of a
municipality that is a member of a public health district to
adopt ordinances or administer a permit system concerning food
service establishments, retail food stores, mobile food units,
and roadside food vendors.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.005. PUBLIC HEARING. (a) A commissioners court,
governing body, or administrative board, as applicable, may adopt
an order under Section 437.003 or 437.004 only after conducting a
public hearing on the proposed order.
(b) At least two weeks' public notice must be given before a
public hearing may be held.
(c) The notice must be published in a newspaper of general
circulation in the county or public health district on three
consecutive days and be printed in 10 point bold-faced type.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.0055. PERMIT FROM DEPARTMENT REQUIRED IN AREAS NOT
REGULATED BY COUNTY OR PUBLIC HEALTH DISTRICT. (a) A person may
not operate a food service establishment, retail food store,
mobile food unit, or temporary food service establishment located
in an area in which a county or public health district does not
require a permit or conduct inspections under this chapter unless
the person has a permit issued by the department.
(b) A person required to obtain a permit under Subsection (a)
must apply annually for the permit and must pay any fees required
by the department.
Added by Acts 1993, 73rd Leg., ch. 617, Sec. 2, eff. Jan. 1,
1994.
Sec. 437.0056. RULEMAKING AUTHORITY. The board may adopt rules
for the efficient enforcement of this chapter by the department
in an area not regulated under this chapter by a county or public
health district. The board by rule shall establish minimum
standards for granting and maintaining a permit in an area not
regulated under this chapter by a county or public health
district. The commissioner may refuse an application for permit
or suspend or revoke a permit in an area not regulated under this
chapter by a county or public health district.
Added by Acts 1993, 73rd Leg., ch. 617, Sec. 2, eff. Jan. 1,
1994.
Sec. 437.0057. REGULATION OF FOOD HANDLERS AND OTHER FOOD
SERVICE EMPLOYEES BY COUNTIES, PUBLIC HEALTH DISTRICTS, AND THE
DEPARTMENT. (a) A county, a public health district, or the
department may require certification under Subchapter D, Chapter
438, for each food handler who is employed by a food service
establishment in which food is prepared on-site for sale to the
public and which holds a permit issued by the county, the public
health district, or the department. This section applies without
regard to whether the food service establishment is at a fixed
location or is a mobile food unit.
(b) The requirements of certification under this section may not
be more stringent than the requirements of Subchapter D, Chapter
438.
(c) A county, a public health district, or the department may
not require an establishment that handles only prepackaged food
and does not prepare or package food to employ certified food
handlers under this section.
(d) A county, a public health district, or the department may
exempt a food service establishment from the requirement that the
county, public health district, or department has imposed under
Subsection (a) if the county, the public health district, or the
department determines that the application of Subsection (a) to
that establishment is not necessary to protect public health and
safety.
(e) A county, a public health district, or the department may
require a food service establishment to:
(1) post a sign in a place conspicuous to employees, in a form
adopted by the executive commissioner of the Health and Human
Services Commission, describing a food service employee's
responsibilities to report certain health conditions to the
permit holder under rules adopted by the executive commissioner;
or
(2) require that each food service employee sign a written
agreement in a form adopted by the executive commissioner to
report those health conditions.
Added by Acts 2009, 81st Leg., R.S., Ch.
926, Sec. 1, eff. September 1, 2009.
Sec. 437.006. MORE THAN ONE PERMIT PROHIBITED. A food service
establishment or retail food store may not be required under this
chapter to obtain more than one permit for each location.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.007. NONPROFIT ORGANIZATIONS EXEMPT. A county or
public health district may not require a nonprofit organization
to obtain a permit.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.0073. MEDALLION FOR MOBILE FOOD UNITS IN CERTAIN
POPULOUS MUNICIPALITIES. (a) This section applies only to a
municipality with a population of 1.5 million or more.
(b) Any person desiring to operate one or more mobile food units
in a municipality subject to this section other than restricted
operations mobile food units shall obtain an individual medallion
for each operating mobile food unit from the health officer of
the municipality. Each medallion will be issued unit-by-unit
only after an inspection reveals satisfactory compliance with the
provisions of this chapter and applicable municipal regulations
or ordinances relating to mobile food units. The medallions shall
remain the property of the municipality.
(c) A person may not operate or cause to be operated any mobile
food unit that does not possess a valid medallion issued by the
health officer.
(d) A medallion shall be affixed by the health officer or the
health officer's authorized agents on the mobile food unit in a
conspicuous place where it can be viewed by patrons.
(e) Application for a medallion shall be made on forms provided
by the health officer and must include:
(1) the applicant's full name and mailing address;
(2) the address of the location at which the mobile food unit is
stationed when not in use;
(3) the business name and address of the commissary or other
fixed food service establishment from which potentially hazardous
food supplies are obtained;
(4) the address of the servicing area;
(5) a description of the mobile food unit that includes the
manufacturer's make, model, and serial number;
(6) the vehicle's state registration number; and
(7) the signature of the applicant.
(f) All of the provisions of this chapter and applicable
municipal regulations or ordinances pertaining to food service
establishments apply to the commissary or other fixed food
service establishment from which the food supplies are obtained.
Any suspension or revocation of the food dealer's permit for a
food service establishment is cause for suspension or revocation
of the medallion of any mobile food unit that is supplied or
serviced by the establishment.
Added by Acts 2009, 81st Leg., R.S., Ch.
403, Sec. 1, eff. June 19, 2009.
Sec. 437.0074. MOBILE FOOD UNITS IN CERTAIN POPULOUS COUNTIES.
(a) A county with a population of at least 2.8 million, or a
municipality or public health district in the county, shall
require a mobile food unit to:
(1) return to the food service establishment or commissary from
which the unit operates within the 24-hour period preceding
operation of the mobile food unit to have cleaning and other
services performed on the unit; and
(2) obtain, on completion of an inspection following servicing,
written documentation that the mobile food unit has been serviced
daily as required by Subdivision (1).
(b) A county, municipality, or public health district that has
installed an electronic tagging system shall register and record
confirmation that the unit has been serviced as required by
Subsection (a)(1).
(c) A municipality with a population of 1.5 million or more in a
county with a population of 2.8 million or more shall require a
mobile food unit, other than a mobile food unit that handles only
prepackaged food and does not prepare or package food, to obtain
a time and date stamp on the documentation required under
Subsection (a)(2) from a time and date stamp unit that is
constructed to prevent tampering and approved by the
municipality's governing body. A record kept by the municipality
regarding the time and date stamp on the documentation under
Subsection (a)(2) by means of an electronic tagging system under
Subsection (b) controls if that record is inconsistent with the
record kept by the mobile food unit.
Added by Acts 2007, 80th Leg., R.S., Ch.
1276, Sec. 1, eff. September 1, 2007.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
403, Sec. 2, eff. January 1, 2010.
Sec. 437.0075. FOOD MANAGERS IN CERTAIN POPULOUS COUNTIES. (a)
A county with a population of at least 2.8 million may require a
trained food manager to be on duty during the operating hours of
a food establishment.
(b) The training required of food managers can be no more
extensive than that specified under Subchapter D, Chapter 438.
(c) A food establishment that handles only prepackaged food and
does not prepare or package food may not be required to have a
certified food manager under this section.
Added by Acts 1999, 76th Leg., ch. 1378, Sec. 7, eff. June 19,
1999.
Sec. 437.0076. CERTIFIED FOOD MANAGER. (a) A county or public
health district may require each fixed or mobile location retail
establishment in which food is prepared on-site for sale to the
public that holds a permit issued by the county or public health
district to employ a food manager certified under Subchapter G,
Chapter 438.
(b) The board may require each fixed or mobile location retail
establishment in which food is prepared on-site for sale to the
public that is required to be operated under a permit under
Section 437.0055 to employ a food manager certified under
Subchapter G, Chapter 438.
(c) An establishment that handles only prepackaged food and does
not prepare or package food may not be required to have a
certified food manager under this section.
(d) The board by rule may exempt establishments other than the
establishments described by Subsection (c) from the requirement
imposed under this section if the board determines that the
application of the requirement to those establishments is not
necessary to protect public health and safety.
(e) A county or public health district may exempt establishments
other than the establishments exempt under Subsections (c) and
(d) from the requirement imposed by the county or public health
district under this section if the county or public health
district determines that the application of the requirement to
those establishments is not necessary to protect public health
and safety.
(f) A child-care facility, as that term is defined by Section
42.002, Human Resources Code, is exempt from the requirements
imposed under this section.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 1, eff. Sept. 1,
2001.
Sec. 437.008. PERMIT RENEWAL. A county or public health
district may require the annual renewal of a permit.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.009. INSPECTIONS. Authorized agents or employees of
the department, a county, or a public health district may enter
the premises of a food service establishment, retail food store,
mobile food unit, roadside food vendor, or temporary food service
establishment under the department's, county's, or district's
jurisdiction during normal operating hours to conduct inspections
to determine compliance with:
(1) state law, including a requirement to hold and display
written authorization under Section 437.021;
(2) rules adopted under state law; and
(3) orders adopted by the department, county, or district.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1,
1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1402, Sec. 1, eff. June 15, 2007.
Sec. 437.0095. DETENTION. The commissioner or an authorized
agent may detain an article of food that is located on the
premises of a food service establishment, retail food store,
mobile food unit, roadside food vendor, or temporary food service
establishment and is adulterated or misbranded under Chapter 431.
Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1,
1999.
Sec. 437.010. SUBMISSION OF PLANS AND SUBSEQUENT INSPECTION.
(a) Before issuing a permit, a county or public health district
may require an applicant to provide plans of the food
preparation, storage, and sales areas to determine if the
applicant is in compliance with state law and rules adopted under
state law governing the applicant.
(b) The county or public health district may deny the permit
after initial inspection only if the applicant is not in
compliance with the plans approved by the county or district.
(c) If the county or public health district finds on inspection
that an applicant is not in compliance with state law and rules
adopted under state law, the county or public health district may
reinspect the applicant at a later date to determine if the
applicant is in compliance.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.011. INSPECTION OF EXISTING ENTITIES ON ADOPTION OF
ORDER. (a) When a county or public health district requires a
permit, the county or district shall make an initial inspection
of the facilities of any existing entity applying for the permit.
(b) An existing entity is entitled to continue to operate
pending its initial inspection.
(c) If the county or public health district determines on
inspection that an entity does not meet the standards established
by state law or rules adopted under state law, the county or
district may start revocation proceedings as if the entity had
obtained a permit.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.012. COUNTY AND PUBLIC HEALTH DISTRICT FEES. (a) A
county or public health district may require the payment of a fee
for issuing or renewing a permit.
(b) Except as provided by Subsection (f), the fee charged by a
county or public health district for issuing or renewing a permit
may not exceed $150.
(c) Fees collected by a county under this chapter shall be
deposited to the credit of a special fund of the county. Fees
collected by a public health district under this chapter shall be
deposited to the credit of a special fund created by the
cooperative agreement under which the district operates.
(d) Fees deposited as provided by this section may be spent only
for conducting inspections required by this chapter and issuing
permits.
(e) This section does not apply to a county or public health
district covered by Section 437.0123.
(f) A county or public health district may, by rule or order,
adopt a variable scale to determine the fee charged for a permit
under this section. In adopting a rule or order under this
subsection, the county or public health district may consider:
(1) the size of the food service establishment, retail food
store, mobile food unit, or roadside food vendor;
(2) the number of people employed at the food service
establishment, retail food store, mobile food unit, or roadside
food vendor; and
(3) the gross sales of the food service establishment, retail
food store, mobile food unit, or roadside food vendor.
(g) A fee charged under Subsection (f) may not exceed $300.
(h) The fee charged to a child care facility under this section
may not exceed $150.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 3, eff. Sept. 1,
1993; Acts 1997, 75th Leg., ch. 156, Sec. 2, eff. Sept. 1, 1997;
Acts 2001, 77th Leg., ch. 72, Sec. 1, eff. Sept. 1, 2001.
Sec. 437.0123. COUNTY AND PUBLIC HEALTH DISTRICT FEES IN CERTAIN
POPULOUS COUNTIES. (a) A county that has a population of at
least 2.8 million or a public health district at least part of
which is in a county that has a population of at least 2.8
million may require the payment of a fee for issuing or renewing
a permit or for performing an inspection to enforce this chapter
or a rule adopted under this chapter. A county with a population
of at least 2.8 million may require a trained food manager to be
on duty during each day of operation of a food service
establishment. The training required of food managers can be no
more extensive than that specified under Subchapter D, Chapter
438. A food service establishment that handles only prepackaged
food and does not prepare or package food may not be required to
have a certified food manager under this section.
(b) A county or public health district that requires payment of
a fee under Subsection (a) shall set the fee in an amount that
allows the county or district to recover at least 50 percent of
the annual expenditures by the county or district for:
(1) reviewing and acting on a permit;
(2) amending and renewing a permit; and
(3) inspecting a facility as provided by this chapter and rules
adopted under this chapter.
(c) Notwithstanding Subsection (b), the fee charged by a county
or public health district may not exceed the highest fee charged
by a municipality in the county or public health district or
$300, whichever amount is less.
(d) Fees collected by a county under this chapter shall be
deposited to the credit of a special fund of the county. Fees
collected by a public health district under this chapter shall be
deposited to the credit of a special fund created by the
cooperative agreement under which the district operates.
(e) Fees deposited as provided by this section may be spent only
for a purpose described by Subsection (b).
Added by Acts 1997, 75th Leg., ch. 156, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 480, Sec. 1, eff. Aug.
30, 1999.
Sec. 437.0125. DEPARTMENT FEES. (a) The department shall
collect fees for:
(1) filing, renewing, or amending a permit; and
(2) an inspection performed to enforce this chapter or a rule
adopted under this chapter.
(b) The department may charge annual fees.
(c) The board by rule shall set the fees in amounts that allow
the department to recover at least 50 percent of the annual
expenditures by the department for:
(1) reviewing and acting on a permit;
(2) amending and renewing a permit;
(3) inspecting a facility as provided by this chapter and rules
adopted under this chapter; and
(4) implementing and enforcing this chapter, including a rule or
order adopted or a license issued by the department.
(d) The department shall spend not less than 50 percent of the
permit fees collected to inspect facilities and to enforce and
administer this chapter.
(e) All permit fees collected by the department under this
chapter shall be deposited in the state treasury to the credit of
the food and drug retail fee fund.
Added by Acts 1993, 73rd Leg., ch. 617, Sec. 4, eff. Sept. 1,
1993.
Sec. 437.013. AUDITED STATEMENT. (a) A county or public health
district shall file an audited statement with the Texas
Department of Health on or before January 15 of each year.
(b) The statement must include the receipts of funds collected
under this chapter, all expenditures of funds, and fund balances.
(c) A county or public health district that fails to timely file
the statement may not require the payment of a fee for issuing or
renewing a permit until the statement is filed.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.014. DENIAL, SUSPENSION, OR REVOCATION OF PERMIT. (a)
A county or public health district may refuse to issue a permit
or may suspend or revoke a permit if the county or district finds
that the food service establishment, retail food store, mobile
food unit, or roadside food vendor is not in compliance with
state law, rules adopted under state law, or orders adopted by
the county or district.
(b) A permit may be denied, suspended, or revoked only after
notice and an opportunity for a hearing.
(c) A county or public health district that requires a permit to
operate a food service establishment, retail food store, mobile
food unit, or roadside food vendor shall adopt procedures for
denying, suspending, or revoking a permit that afford due process
to the applicant or permit holder.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.0145. EMERGENCY SUSPENSION OR CLOSING ORDER. (a) The
department shall suspend the license of a food service
establishment, retail food store, mobile food unit, roadside food
vendor, or temporary food service establishment or order the
immediate closing of the food service establishment, retail food
store, mobile food unit, roadside food vendor, or temporary food
service establishment if:
(1) the department finds the food service establishment, retail
food store, mobile food unit, roadside food vendor, or temporary
food service establishment is operating in violation of the
standards prescribed by this chapter; and
(2) the violation creates an immediate threat to the health and
safety of the public.
(b) An order suspending a license or closing a food service
establishment, retail food store, mobile food unit, roadside food
vendor, or temporary food service establishment under this
section is immediately effective on the date on which the license
holder receives written notice or a later date specified in the
order.
(c) An order suspending a license or ordering an immediate
closing of a food service establishment, retail food store,
mobile food unit, roadside food vendor, or temporary food service
establishment is valid for 10 days after the effective date of
the order.
Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1,
1999.
Sec. 437.015. INJUNCTION. A city attorney, county attorney, or
district attorney may sue in district court to enjoin a food
service establishment, retail food store, mobile food unit, or
roadside food vendor from operating without a permit if a permit
is required.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.0155. DEPARTMENT INJUNCTION. (a) If it appears that a
person has violated, is violating, or threatens to violate this
chapter or a rule adopted under this chapter, the department may
institute a civil suit in a district court for injunctive relief
to restrain the person from continuing the violation or threat of
violation.
(b) The department may petition a district court for a temporary
restraining order to immediately halt a violation or other action
creating an emergency condition if it appears that:
(1) a person is violating or threatening to violate this chapter
or a rule or order adopted under this chapter; and
(2) the violation or threatened violation creates an immediate
threat to the health and safety of the public.
(c) On the department's request, the attorney general shall
institute a suit in the name of the state for injunctive relief.
(d) In an action for injunctive relief under this section, the
court may grant any prohibitory or mandatory injunction warranted
by the facts, including temporary restraining orders, temporary
injunctions, and permanent injunctions. The court shall grant
injunctive relief without a bond or other undertaking by the
department.
(e) Venue for a suit brought under this section is in the county
in which the violation or threat of violation is alleged to have
occurred.
Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1,
1999.
Sec. 437.016. CRIMINAL PENALTY: VIOLATION OF COUNTY AND PUBLIC
HEALTH DISTRICT PERMIT REQUIREMENTS. (a) A person commits an
offense if the person operates a food service establishment,
retail food store, mobile food unit, or roadside food vendor
without a permit required by the county or public health district
in which the entity is operating.
(b) An offense under this section is a Class C misdemeanor.
(c) Each day on which a violation occurs constitutes a separate
offense.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 5, eff. Sept. 1,
1993.
Sec. 437.0165. CRIMINAL PENALTY: VIOLATION OF DEPARTMENT PERMIT
REQUIREMENT. (a) A person commits an offense if the person
operates a food service establishment, retail food store, mobile
food unit, or temporary food service establishment without a
permit that is required by the department under Section 437.0055.
(b) An offense under this section is a Class A misdemeanor.
(c) Each day on which a violation occurs constitutes a separate
offense.
Added by Acts 1993, 73rd Leg., ch. 617, Sec. 6, eff. Jan. 1,
1994.
Sec. 437.017. CONFLICT WITH ALCOHOLIC BEVERAGE CODE. The
Alcoholic Beverage Code and rules adopted by the Alcoholic
Beverage Commission control to the extent of a conflict between
this chapter or an order adopted under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 437.018. ADMINISTRATIVE PENALTY. (a) The commissioner may
impose an administrative penalty against a person who holds a
permit or who is regulated under this chapter and who violates
this chapter or a rule or order adopted under this chapter.
(b) The penalty for a violation may be in an amount not to
exceed $10,000. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited acts, and
the hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) the enforcement costs relating to the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) If the commissioner determines that a violation has
occurred, the commissioner shall issue an order that states the
facts on which the determination is based, including an
assessment of the penalty.
(e) Within 14 days after the date the order is issued, the
commissioner shall give written notice of the order to the
person. The notice may be given by certified mail. The notice
must include a brief summary of the alleged violation and a
statement of the amount of the recommended penalty and must
inform the person that the person has a right to a hearing on the
occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the commissioner or may make a written
request for a hearing on the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(g) If the person accepts the determination and recommended
penalty of the commissioner, the commissioner by order shall
approve the determination and impose the recommended penalty.
(h) If the person requests a hearing or fails to respond timely
to the notice, the commissioner shall set a hearing and give
notice of the hearing to the person. An administrative law judge
shall make findings of fact and conclusions of law and promptly
issue to the commissioner a proposal for a decision about the
occurrence of the violation and the amount of a proposed penalty.
Based on the findings of fact, conclusions of law, and proposal
for a decision, the commissioner by order may find that a
violation has occurred and impose a penalty or may find that no
violation occurred.
(i) The notice of the commissioner's order given to the person
under Chapter 2001, Government Code must include a statement of
the right of the person to judicial review of the order.
(j) Within 30 days after the date the board's order is final as
provided by Subchapter F, Chapter 2001, Government Code, the
person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition
for judicial review contesting the occurrence of the violation,
the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under Subsection
(j)(3) of this section may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person
stating that the person is financially unable to pay the amount
of the penalty and is financially unable to give the supersedeas
bond; and
(B) giving a copy of the affidavit to the commissioner by
certified mail.
(l) The commissioner on receipt of a copy of an affidavit under
Subsection (k)(2) of this section may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and the
enforcement of the penalty is not stayed, the commissioner may
refer the matter to the attorney general for collection of the
amount of the penalty.
(n) Judicial review of the order of the commissioner:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(o) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(p) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the person gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the person gave a supersedeas bond and if
the amount of the penalty is reduced, the court shall order the
release of the bond after the person pays the amount.
(q) A penalty collected under this section shall be remitted to
the comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 617, Sec. 6, eff. Jan. 1,
1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
(53), (59), eff. Sept. 1, 1995.
Sec. 437.0185. ADMINISTRATIVE PENALTY BY PUBLIC HEALTH DISTRICT
OR COUNTY. (a) The director of a public health district or the
commissioners court of a county may impose an administrative
penalty on a person the district or county requires to hold a
permit under Section 437.003 or 437.004 if the person violates
this chapter or a rule or order adopted under this chapter.
(b) The amount of the penalty may not exceed $500 per day, and
each day a violation continues or occurs is a separate violation
for the purpose of imposing a penalty. The amount shall be based
on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts to correct the violation; and
(5) any other matter that justice may require.
(c) The enforcement of the penalty may be stayed during the time
the order is under judicial review if the person pays the penalty
to the clerk of the court. A person who cannot afford to pay the
penalty may stay the enforcement by filing an affidavit in the
manner required by the Texas Rules of Civil Procedure for a party
who cannot afford to file security for costs.
(d) Not later than the 20th day after the date the person
receives notice of the penalty, the person in writing may:
(1) accept the determination and pay the recommended penalty of
the director or commissioners court; or
(2) make a request for a hearing on the occurrence of the
violation, the amount of the penalty, or both.
(e) The justice of the peace for the justice precinct in which
the retail food store or food establishment is located or the
mobile food establishment or roadside food vendor is based shall
hold a hearing requested under Subsection (d).
(f) If the court sustains the finding that a violation occurred,
the court may uphold or reduce the amount of the penalty and
order the person to pay the full or reduced amount of the
penalty.
(g) If the court does not sustain the finding that a violation
occurred, the court shall order that a penalty is not owed.
(h) If the person paid the penalty to the clerk of the court and
if the amount of the penalty is reduced or the penalty is not
upheld by the court, the court shall order, when the court's
judgment becomes final, that the appropriate amount be remitted
to the person.
Added by Acts 2007, 80th Leg., R.S., Ch.
1202, Sec. 1, eff. September 1, 2007.
Sec. 437.0186. ASSESSMENT OF ADMINISTRATIVE PENALTY. An
administrative penalty may be imposed for a violation of this
chapter or a rule or order under this chapter by the state under
Section 437.018 or by the director of a public health district or
commissioners court of a county under Section 437.0185, but not
both.
Added by Acts 2007, 80th Leg., R.S., Ch.
1202, Sec. 1, eff. September 1, 2007.
Sec. 437.019. EXEMPTION FOR CERTAIN BED AND BREAKFAST
ESTABLISHMENTS. (a) Except as provided by Subsection (c), a bed
and breakfast establishment with seven or fewer rooms for rent
that serves only breakfast to its overnight guests is not a food
service establishment for purposes of this chapter. An owner or
manager of a bed and breakfast establishment covered by this
subsection shall successfully complete a food manager's
certification course accredited by the department.
(b) Except as provided by Subsection (c), a bed and breakfast
establishment that has more than seven rooms for rent, or that
provides food service other than breakfast to its overnight
guests, is a food service establishment for purposes of this
chapter but may not be required to meet all criteria applicable
to a larger food service establishment such as a restaurant. The
board, commissioners court, governing body, or administrative
board, as applicable, shall adopt minimum standards for a bed and
breakfast establishment covered by this subsection.
(c) A bed and breakfast establishment that provides food service
other than to overnight guests is a food service establishment
for purposes of this chapter and is subject to all rules and
regulations applicable to a food service establishment.
Added by Acts 1995, 74th Leg., ch. 689, Sec. 1, eff. June 15,
1995.
Sec. 437.020. PRODUCE SAMPLES AT MUNICIPALLY OWNED FARMERS'
MARKETS. (a) Except as provided by Subsection (b):
(1) this chapter does not regulate the provision of samples of
produce to consumers at a municipally owned farmers' market; and
(2) a rule adopted under state law may not regulate the
provision of samples of produce to consumers at a municipally
owned farmers' market.
(b) Produce samples may only be distributed at a municipally
owned farmers' market if the following sanitary conditions exist:
(1) produce samples must be kept in approved, clean, and covered
containers;
(2) produce samples must be distributed in a sanitary manner;
(3) clean, disposable plastic gloves must be used when cutting
produce samples;
(4) produce intended for sampling must be washed in potable
water to remove any soil or other material so that it is
wholesome and safe for consumption;
(5) potable water must be available for hand washing and
sanitizing as approved by the local or state enforcement agency;
(6) potentially hazardous cut produce, as determined by rule of
the department, must be maintained at or below 41 degrees
Fahrenheit, and produce samples must be disposed of within two
hours after cutting;
(7) utensil and hand washing water must be disposed of in a
facility connected to the public sewer system or in a manner
approved by the local or state enforcement agency; and
(8) utensils and cutting surfaces must be smooth, nonabsorbent,
and easily cleaned or disposed of as approved by the local or
state enforcement agency.
Added by Acts 2005, 79th Leg., Ch.
191, Sec. 1, eff. May 27, 2005.
Sec. 437.021. AUTHORITY TO OPERATE ON CERTAIN PROPERTY. A
person operating a mobile food unit, roadside food vendor, or
temporary food service establishment in a county with a
population of more than 3.3 million shall acquire written
authorization from the owner of the property on which the unit,
vendor, or establishment is operating. The written authorization
must:
(1) be notarized;
(2) provide that the operator has the property owner's
permission to operate the unit, vendor, or establishment on the
property; and
(3) be prominently displayed in the unit, vendor, or
establishment in plain view of the public at all times.
Added by Acts 2007, 80th Leg., R.S., Ch.
1402, Sec. 2, eff. June 15, 2007.