CHAPTER 438. PUBLIC HEALTH MEASURES RELATING TO FOOD
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS
CHAPTER 438. PUBLIC HEALTH MEASURES RELATING TO FOOD
SUBCHAPTER A. UNPACKAGED FOODS
Sec. 438.001. DEFINITIONS. In this subchapter:
(1) "Gravity feed type container" means a self-service container
in which food is dispensed by operating a mechanism that permits
the food to drop into a receptacle.
(2) "Scoop utensil type container" means a self-service
container from which food is dispensed by using a utensil
provided with the container.
(3) "Unpackaged food" means food that is:
(A) not in individual packaging or wrapping;
(B) offered for sale by a retail food store; and
(C) sold in bulk from a container that permits a customer to
dispense the food directly into a receptacle.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.002. EXEMPTIONS. This subchapter does not apply to:
(1) a beverage;
(2) fresh fruit or vegetables;
(3) food that is intended to be shelled or cooked before
consumption; or
(4) food, such as milk products, eggs, meat, poultry, fish, or
shellfish, that is capable of supporting rapid and progressive
growth of infectious or toxic microorganisms.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.003. SALE FROM SELF-SERVICE CONTAINERS. (a) A person
may sell unpackaged food that is displayed and sold in bulk from
a self-service container if:
(1) the self-service container has a tight-fitting lid that is
securely attached to the container; and
(2) the container, lid, and any utensil are constructed of
nontoxic materials that provide for easy cleaning and proper
repair.
(b) The lid of a gravity feed type container shall be kept
closed except when the container is being serviced or refilled.
(c) The lid of a scoop utensil type container shall be kept
closed except during customer service. The container must have a
utensil, equipped with a handle, to be used in dispensing the
food.
(d) The seller shall:
(1) keep the container, lid, and any utensil sanitary to prevent
spoilage and insect infestation; and
(2) post in the immediate display area a conspicuous sign that
instructs the customer on the proper procedure for dispensing the
food.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.004. STRICTER RULES. (a) The Texas Board of Health by
rule may establish requirements stricter than the requirements
prescribed by Section 438.003 for the display and sale of
unpackaged foods if the transmission of a disease infestation or
contamination is directly related to a method of displaying and
selling unpackaged food authorized by this subchapter.
(b) The stricter requirement must be:
(1) adopted according to laboratory evidence supporting the
specific relationship between the disease infestation or
contamination and the method of dispensing the unpackaged food;
and
(2) applied uniformly to all nonexempted food sources and
dispensing methods.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.005. SALE OF UNPACKAGED FOOD; CRIMINAL PENALTY. (a) A
person commits an offense if the person knowingly or
intentionally sells unpackaged food in a manner that does not
comply with Section 438.003 or a rule adopted under Section
438.004.
(b) An offense under this section is a Class C misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.006. EFFECT ON OTHER LAWS. (a) This subchapter
supersedes an ordinance or rule adopted by a political
subdivision to regulate the method of dispensing unpackaged food.
(b) This subchapter does not affect an ordinance or rule adopted
and enforced by a political subdivision to require the
maintenance of sanitary conditions in the sale of unpackaged food
dispensed in a manner authorized by this subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER B. CLEANING AND STERILIZATION OF FOOD SERVICE ITEMS
Sec. 438.011. DEFINITIONS. In this subchapter:
(1) "Dish" includes a vessel of any shape or size, made of any
type of material, commonly used in eating or drinking.
(2) "Food factory" includes a place in which, as a business,
food is manufactured or prepared for human consumption.
(3) "Receptacle" includes a vessel, tray, pot, pan, or other
article used for holding food.
(4) "Utensil" includes a vessel or article of any shape or size,
made of any material, commonly used in preparing, holding,
storing, transporting, serving, or eating food.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.012. USE OF UNCLEAN DISHES. A person who operates or
manages a food factory may not use or keep for use a dish or
utensil or a food-grinding machine or implement that after its
previous use has not been cleaned in the manner required by
Section 438.013(a).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.013. CLEANING DISHES, RECEPTACLES, AND UTENSILS. (a)
A person who operates or manages a hotel, cafe, restaurant,
dining car, drugstore, soda fountain, meat market, bakery,
confectionery, liquor dispensary, or other establishment where
food or drink is served to the public may not furnish to a person
a dish, receptacle, or utensil that after its previous use has
not been washed in warm water containing soap or alkali cleanser
until the item is clean to the sight and touch.
(b) A dish or utensil that has been cleaned or polished with a
poisonous substance may not be offered for use to a person or
used in the manufacturing of food unless all traces of the
poisonous substance have been removed from the dish or utensil.
(c) In this section, "liquor dispensary" means a place where
beer, ale, wine, or any other alcoholic beverage is stored,
prepared, labeled, bottled, served, or handled.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.014. STERILIZATION OF FOOD SERVICE ITEMS. (a) After
cleaning dishes, receptacles, utensils, food-grinding machines,
and implements as required by Section 438.012 or 438.013, the
items shall be:
(1) placed in a wire cage and immersed in a still bath of clear
water for at least:
(A) three minutes in water heated to a minimum temperature of
170 degrees Fahrenheit; or
(B) two minutes in water heated to a minimum temperature of 180
degrees Fahrenheit;
(2) immersed for at least two minutes in a lukewarm chlorine
bath made up at a strength of 100 parts per milliliter or more of
hypochlorites and not reduced to less than 50 parts per
milliliter available chlorine, or a concentration of equal
bacteriacidal strength if chloramines are used; or
(3) sterilized by any other chemical method approved by the
Texas Board of Health.
(b) A three-compartment vat shall be used to sterilize dishes,
receptacles, and utensils if a chlorine solution is used. The
first compartment of the vat shall be used for washing, the
second compartment for plain rinsing, and the third compartment
for chlorine immersion. A satisfactory rinsing or spraying device
may be substituted for the second rinsing compartment on an
existing installation.
(c) The same chlorine solution may not be used as bacteriacidal
treatment for more than one day.
(d) After sterilization, all dishes, receptacles, and utensils
shall be stored in a manner that protects the food service items
from contaminants.
(e) Subsections (a)-(d) do not apply to an establishment that
uses electrically operated dishwashing and glasswashing machines
that clean and sterilize mechanically.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.015. USE OF DAMAGED DISHES, RECEPTACLES, OR UTENSILS.
A public eating or drinking establishment or a person who
operates or manages a food factory may not use or keep for use a
dish, receptacle, or utensil that is made or damaged in a manner
that makes cleaning or sterilizing the item impossible or
doubtful.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.016. NAPKINS. A napkin, cloth, or other article used
by a person shall be laundered or sterilized before it is
furnished for use to another person.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.017. PROTECTION OF OTHER FOOD SERVICE ITEMS. (a) A
paper receptacle, ice cream cone, or other single service utensil
to be used for serving food or drink shall be kept in a sanitary
manner, protected from dust, flies, and other contaminants.
(b) A napkin, straw, toothpick, or other article may not be
offered for the use of a person unless the article has been
securely protected from dust, dirt, insects, rodents, and, as
necessary and by all reasonable means, other contaminants.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.018. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates this subchapter.
(b) An offense under this subchapter is punishable by a fine of
not less than $5 or more than $100.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER C. FOOD SERVICE EMPLOYEES
Sec. 438.031. DEFINITION. In this subchapter, "food" includes
simple, mixed, or compounded articles used for food, drink,
flavoring, confectionery, and condiment for human consumption.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.032. INFECTED PERSONS; FOOD HANDLING PROHIBITED. (a)
A person may not handle food, utensils, dishes, or serving
implements that are for public sale or for the consumption or use
by another if the person:
(1) is infected with a disease that is transmissible through the
handling of food;
(2) resides in a household in which there is a transmissible
case of a communicable disease that may be food borne;
(3) is known to be a carrier of the organisms causing a
communicable disease that may be food borne; or
(4) has a local infection that is commonly transmitted through
the handling of food.
(b) A person, firm, corporation, or organization operating or
managing a public eating place or vehicle or other place where
food is manufactured, processed, prepared, dispensed, or handled
in a manner or under circumstances that would permit the probable
transmission of disease from a handler to a consumer may not
employ a person described in Subsection (a) to handle the food,
utensils, dishes, or serving implements.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.033. PHYSICAL EXAMINATION; DOCTOR'S CERTIFICATE. (a)
On the request of an employer, the Texas Board of Health or the
board's representative, or the local health authority or the
local health authority's representative, a person employed or
seeking employment in an activity regulated under Section
438.032:
(1) shall be examined by a licensed physician; and
(2) must receive a certificate signed by the physician stating
that the examination has been performed and that to the best of
the physician's knowledge the person examined did not have on the
date of the examination a transmissible condition of a
communicable disease or a local infection commonly transmitted
through the handling of food.
(b) The examination must be actual and thorough and conducted
with practical scientific procedures to determine the existence
of a communicable disease that may be transmitted through the
handling of food.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.034. EMPLOYEE CLEANLINESS. (a) A person handling food
or unsealed food containers shall:
(1) maintain personal cleanliness;
(2) wear clean outer garments;
(3) keep the person's hands clean; and
(4) wash the person's hands and exposed portions of the
person's arms with soap and water:
(A) before starting work;
(B) during work as often as necessary to avoid
cross-contaminating food; and
(C) to maintain cleanliness, after smoking, eating, and each
visit to the toilet.
(b) A person handling food or unsealed food containers may not
contact with bare hands exposed ready-to-eat food unless:
(1) documentation is maintained at the food service
establishment listing the foods and food handling activities that
involve bare-hand contact; and
(2) the food service establishment uses two or more of the
following contamination control measures:
(A) requiring employees to perform double hand washing;
(B) requiring employees to use fingernail brushes while hand
washing;
(C) requiring employees to use a hand sanitizer after hand
washing;
(D) implementing an incentive program that encourages employees
not to come to work when ill; and
(E) any other contamination control measure approved by the
regulatory authority.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1068, Sec. 2, eff. Sept. 1,
1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
926, Sec. 2, eff. September 1, 2009.
Sec. 438.035. USE OF UNLAUNDERED TOWELS. A person at a place
where food for public consumption is handled or sold may not use
a towel unless the towel has been thoroughly laundered after it
has been previously used by another person.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.036. CRIMINAL PENALTY. (a) A person, firm,
corporation, or organization commits an offense if the person,
firm, corporation, or organization violates this subchapter.
(b) An offense under this section is punishable by a fine of not
less than $10 or more than $200.
(c) Each day of a violation constitutes a separate offense.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.037. MUNICIPAL ORDINANCES. This subchapter does not
affect the authority granted under Article XI, Section 5, of the
Texas Constitution, Article 1175, Revised Statutes, Subchapter F
of this chapter, and the applicable chapters of the Local
Government Code to a Type A general-law municipality or a
home-rule municipality to adopt an ordinance relating to this
subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER D. FOOD SERVICE PROGRAMS
Sec. 438.041. DEFINITION. In this subchapter:
(1) "Department" means the Department of State Health Services.
(2) "Food handler" means a food service employee who works with
unpackaged food, food equipment or utensils, or food-contact
surfaces.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1299, Sec. 1, eff. September 1, 2007.
Sec. 438.042. DUTIES OF BOARD. (a) The Texas Board of Health
shall adopt standards and procedures for the accreditation of
education and training programs for persons employed in the food
service industry.
Text of (b) as added by Acts 1991, 72nd Leg., ch. 539, Sec. 15
(b) The Texas Board of Health shall adopt standards and
procedures for the accreditation of education and training
programs for recertification of persons employed in the food
service industry who have previously completed a program
accredited in accordance with this subchapter or have been
certified by a local health jurisdiction and have completed
training and testing requirements substantially similar to those
required by this subchapter for program accreditation. The
requirements for accreditation in Section 438.043 need not be met
by an education or training program for recertification.
Text of (b) as added by Acts 1991, 72nd Leg., ch. 885, Sec. 1
(b) The Texas Board of Health shall adopt standards and
procedures for the accreditation of education and training
programs for recertification of persons employed in the food
service industry who:
(1) have previously completed a program accredited under this
subchapter; or
(2) have been certified by a local health jurisdiction and have
completed training and testing requirements that are
substantially similar to those required by this subchapter for
program accreditation.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 539, Sec. 15, eff. Sept. 1,
1991; Acts 1991, 72nd Leg., ch. 885, Sec. 1, eff. Aug. 26, 1991.
Sec. 438.043. REQUIREMENTS FOR ACCREDITATION. (a) The
department may not accredit an education or training program
unless the program includes:
(1) four hours of training on the subject of food, including:
(A) a description of food-borne disease and its cause and
prevention; and
(B) protection of food in location, receipt, storage,
preparation, service, and transportation;
(2) four hours of training on the subject of food service
facilities, including:
(A) waste disposal and sanitary plumbing and water;
(B) cleaning and sanitization of dishes and utensils;
(C) storage of equipment and utensils;
(D) housekeeping procedures and schedules;
(E) proper handling of nonfood supplies, including single
service items, linens, and toxic materials; and
(F) cleanliness of the physical plant, including building
construction, ventilation, lighting, pest control, and general
safety of the environment;
(3) two hours of training on the subject of sanitary habits for
food handlers, including:
(A) personal hygiene, including proper dress, handwashing,
personal habits, and illness;
(B) food handling practices, including minimum handling and
proper use of food service utensils; and
(C) operational problems, including identification and
correction of commonly occurring deficiencies; and
(4) four hours of training on the subject of management in the
food service industry, including:
(A) self-inspection promotion and techniques;
(B) motivation, including safety, the economics of safe food
handling, and planning to meet sanitation guidelines; and
(C) personnel training, including management responsibility,
resources, and methods.
(b) In addition to the course requirements in Subsection (a),
the department shall require that, to receive accreditation, a
course include an examination of at least one hour to allow the
instructor to evaluate the students' comprehension of the subject
matter covered.
(c) The department shall ensure that each accredited program may
be presented in not less than 15 hours.
(d) The course requirements in Subsection (a) do not apply to an
education or training program for recertification.
(e) The department may modify the requirements of Subsection
(a), (b), or (c) for a course used in training employees under
the common control of a single entity.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 885, Sec. 2, eff. Aug. 26,
1991; Acts 1995, 74th Leg., ch. 822, Sec. 1, eff. Aug. 28, 1995.
Sec. 438.0431. BASIC FOOD SAFETY ACCREDITATION. (a)
Notwithstanding Section 438.043, the department may accredit an
education or training program for basic food safety for food
handlers as provided by this section.
(b) The executive commissioner of the Health and Human Services
Commission shall by rule define the basic food safety training or
education required to be included in a course curriculum. The
course length may not exceed two hours.
(c) A training or education program accredited under this
section may require a participant to achieve a passing score on
an examination to successfully complete the course for
certification.
(d) A program accredited under this section may be delivered
through the Internet.
Added by Acts 2007, 80th Leg., R.S., Ch.
1299, Sec. 2, eff. September 1, 2007.
Sec. 438.044. APPLICATION FOR ACCREDITATION. (a) A person
seeking accreditation for an education or training program must
apply to the department for accreditation. The applicant must
demonstrate to the department the contents of the course.
(b) The department shall accredit a course that meets the
minimum requirements of this subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.045. AUDIT OF EDUCATION AND TRAINING PROGRAMS. The
department shall conduct a regular audit of each program
accredited under this subchapter to ensure compliance with this
subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.046. LIST OF ACCREDITED PROGRAMS. (a) The department
shall maintain a registry of course programs accredited under
this subchapter.
(b) A local health jurisdiction that requires training for a
food service worker shall accept as sufficient to meet the
jurisdiction's training and testing requirements a training
course that is accredited by the department and listed with the
registry. A food service worker trained in a course for the
employees of a single entity is considered to have met a local
health jurisdiction's training and testing requirements only as
to food service performed for that entity.
(c) Any fee charged by a local health jurisdiction for a
certificate issued to a food service worker trained by an
accredited course listed in the registry may not exceed the
lesser of:
(1) the reasonable cost incurred by the jurisdiction in issuing
the certificate; or
(2) the fee charged by the jurisdiction to issue a certificate
to a food service worker certified by the jurisdiction as having
met the training and testing requirements by any other means.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 539, Sec. 16, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 822, Sec. 2, eff. Aug. 28, 1995.
Sec. 438.047. FEES. The department shall charge an application
fee and an audit fee sufficient to cover the entire cost of
accreditation, audit, and maintenance of the registry.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER E. SIGNS DEPICTING HEIMLICH MANEUVER
Sec. 438.051. SIGNS REQUIRED. A food service establishment at
which space for eating is designed or designated must post in a
place conspicuous to employees or customers a sign that depicts
the Heimlich maneuver for dislodging food from a choking person.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.052. DESIGN REQUIREMENTS. The Texas Board of Health by
rule shall specify the design, size, and graphics of a sign
required by this subchapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 438.053. SIGNS IN ENGLISH AND SPANISH. A sign required by
this subchapter must be printed in English and Spanish.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER F. FOOD INSPECTIONS
Sec. 438.061. FOOD INSPECTIONS BY TYPE A GENERAL-LAW
MUNICIPALITY. (a) The governing body of a Type A general-law
municipality may regulate the inspection of beef, pork, flour,
meal, salt, and other provisions.
(b) The governing body of a Type A general-law municipality may
appoint weighers, gaugers, and inspectors, and may prescribe
their duties and regulate their fees.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER G. CERTIFICATION OF FOOD MANAGERS
Sec. 438.101. DEFINITIONS. In this subchapter:
(1) "Board" means the Texas Board of Health.
(2) "Food establishment" means a fixed or mobile location retail
establishment in which food is prepared on-site for sale to the
public.
(3) "Food manager" means an individual who conducts, manages, or
operates a food establishment.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.
Sec. 438.102. CERTIFICATION PROGRAM. (a) The board shall
establish a certification program for food managers in accordance
with this subchapter.
(b) The board by rule shall prescribe the requirements for
issuance and renewal of a food manager certificate under this
subchapter.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.
Sec. 438.103. CERTIFICATION AND RENEWAL OF CERTIFICATION;
EXAMINATION REQUIRED. A person who satisfies the requirements of
this subchapter may receive and renew a food manager certificate
by passing a state-approved examination.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.
Sec. 438.104. APPROVAL OF EXAMINATIONS; SELECTION OF EXAMINATION
SITES. (a) The board shall adopt criteria to approve
examinations.
(b) In administering this subchapter, the board shall consider
the impact of the traveling distance and time required for a food
manager to obtain certification. The board shall give particular
consideration to mitigating the impact of this subchapter on food
managers in rural areas. The board shall use the Internet to
implement the certification and may develop a system to permit
administration of the examination using the Internet.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.
Sec. 438.105. CERTIFICATE AS EVIDENCE OF COMPLIANCE WITH OTHER
LAW. A food manager certificate, including a renewal
certificate, obtained under this subchapter shall be accepted as
meeting the training and testing requirements under Section
438.046(b).
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.
Sec. 438.106. POWERS AND DUTIES OF BOARD; FEES. (a) The board
by rule may adopt a fee for issuance or renewal of a food manager
certificate under this subchapter in amounts reasonable and
necessary to administer this subchapter, but not to exceed $35.
(b) The board by rule may adopt a fee, in an amount not to
exceed $10, for an examination administered by the department
under this subchapter.
(c) The board may adopt rules for the denial, suspension, and
revocation of a food manager certificate issued under this
subchapter.
(d) The board by rule may prescribe standards for:
(1) examination sites;
(2) expenses of administration of examinations under this
subchapter; and
(3) site audits for administration of this subchapter.
Added by Acts 2001, 77th Leg., ch. 317, Sec. 2, eff. Sept. 1,
2001.