CHAPTER 437. REGULATION OF FOOD SERVICE ESTABLISHMENTS, RETAIL FOOD STORES, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS

State Codes and Statutes

Statutes > Texas > Health-and-safety-code > Title-6-food-drugs-alcohol-and-hazardous-substances > Chapter-437-regulation-of-food-service-establishments-retail-food-stores-mobile-food-units-and-roads

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.

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.

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.

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;

(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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

(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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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