CHAPTER 438. PUBLIC HEALTH MEASURES RELATING TO FOOD

State Codes and Statutes

Statutes > Texas > Health-and-safety-code > Title-6-food-drugs-alcohol-and-hazardous-substances > 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

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.

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.

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.

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

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;

(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.

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;

(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

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

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

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State Codes and Statutes

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