Health and Safety Code
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. 437.006. 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. 437.008. 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 a county or public health
district may enter the premises of a food service establishment,
retail food store, mobile food unit, or roadside food vendor
under the county's or district's jurisdiction during normal
operating hours to conduct inspections to determine compliance
with state law, rules adopted under state law, and orders adopted
by the county or district.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
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) The fee charged by a county or public health district for
issuing or renewing a permit may not exceed $150 or the highest
fee charged by a municipality in the county or public health
district, whichever amount is less.
(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.
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.
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.
(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.
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. 437.015. 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. 437.016. 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. 437.019. 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