Health and Safety Code
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 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) either:
(A) wash the person's hands and exposed portions of the
person's arms with soap and water before starting work,
during work as often as necessary to avoid
cross-contaminating food and to maintain cleanliness, after
smoking, eating, and each visit to the toilet; or
(B) avoid bare-hand contact with exposed food by the use
of gloves or utensils and wash hands after smoking, eating,
and each visit to the toilet.
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.
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, "department" means the Texas Department of
Health.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
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.
Amended by Acts 1995, 74th Leg., ch. 822, Sec. 1, eff. Aug. 28,
1995.
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.
Amended by 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