By:  Armbrister                                       S.B. No. 1421
       73R7708 RWS-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of food service establishments, retail
    1-3  food stores, mobile food units, or temporary food service
    1-4  establishments not regulated by counties or public health
    1-5  districts; providing penalties.
    1-6        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-7        SECTION 1.  Section 437.001, Health and Safety Code, is
    1-8  amended to read as follows:
    1-9        Sec. 437.001.  Definitions.  In this chapter:
   1-10              (1)  "Board" means the Texas Board of Health.
   1-11              (2)  "Commissioner" means the commissioner of health.
   1-12              (3)  "Department" means the Texas Department of Health.
   1-13              (4)  "Food,"<, "food,"> "food service establishment,"
   1-14  "retail food store," "mobile food unit," <and> "roadside food
   1-15  vendor", and "temporary food service establishment" have the
   1-16  meanings assigned to those terms by rules adopted by the board
   1-17  <Texas Board of Health> under this chapter <Chapter 431 (Texas
   1-18  Food, Drug, and Cosmetic Act)>.
   1-19        SECTION 2.  Chapter 437, Health and Safety Code, is amended
   1-20  by adding Sections 437.0055 and 437.0056 to read as follows:
   1-21        Sec. 437.0055.  PERMIT FROM DEPARTMENT REQUIRED IN AREAS NOT
   1-22  REGULATED BY COUNTY OR PUBLIC HEALTH DISTRICT.  (a)  A person may
   1-23  not operate a food service establishment, retail food store, mobile
   1-24  food unit, or temporary food service establishment located in an
    2-1  area in which a county or public health district does not require a
    2-2  permit or conduct inspections under this chapter unless the person
    2-3  has a permit issued by the department.
    2-4        (b)  A person required to obtain a permit under Subsection
    2-5  (a) must apply annually for the permit and must pay any fees
    2-6  required by the department.
    2-7        Sec. 437.0056.  RULEMAKING AUTHORITY.  The board may adopt
    2-8  rules for the efficient enforcement of this chapter by the
    2-9  department in an area not regulated under this chapter by a county
   2-10  or public health district.
   2-11        SECTION 3.  Section 437.012, Health and Safety Code, is
   2-12  amended to read as follows:
   2-13        Sec. 437.012.  COUNTY AND PUBLIC HEALTH DISTRICT FEES.  (a)
   2-14  A county or public health district may require the payment of a fee
   2-15  for issuing or renewing a permit.
   2-16        (b)  The fee charged by a county or public health district
   2-17  for issuing or renewing a permit may not exceed $150 or the highest
   2-18  fee charged by a municipality in the county or public health
   2-19  district, whichever amount is less.
   2-20        (c)  Fees collected by a county under this chapter shall be
   2-21  deposited to the credit of a special fund of the county.  Fees
   2-22  collected by a public health district under this chapter shall be
   2-23  deposited to the credit of a special fund created by the
   2-24  cooperative agreement under which the district operates.
   2-25        (d)  Fees deposited as provided by this section may be spent
   2-26  only for conducting inspections required by this chapter and
   2-27  issuing permits.
    3-1        SECTION 4.  Chapter 437, Health and Safety Code, is amended
    3-2  by adding Section 437.0125 to read as follows:
    3-3        Sec. 437.0125.  DEPARTMENT FEES.  (a)  The department shall
    3-4  collect fees for:
    3-5              (1)  filing, renewing, or amending a permit; and
    3-6              (2)  an inspection performed to enforce this chapter or
    3-7  a rule adopted under this chapter.
    3-8        (b)  The department may charge annual fees.
    3-9        (c)  The board by rule shall set the fees in amounts that
   3-10  allow the department to recover at least 50 percent of the annual
   3-11  expenditures by the department for:
   3-12              (1)  reviewing and acting on a permit;
   3-13              (2)  amending and renewing a permit;
   3-14              (3)  inspecting a facility as provided by this chapter
   3-15  and rules adopted under this chapter; and
   3-16              (4)  implementing and enforcing this chapter, including
   3-17  a rule or order adopted or a license issued by the department.
   3-18        (d)  The department shall spend not less than 50 percent of
   3-19  the permit fees collected to inspect facilities and to enforce and
   3-20  administer this chapter.
   3-21        (e)  All permit fees collected by the department under this
   3-22  chapter shall be deposited in the state treasury to the credit of
   3-23  the food and drug retail fee fund.
   3-24        SECTION 5.  The section heading of Section 437.016, Health
   3-25  and Safety Code, is amended to read as follows:
   3-26        Sec. 437.016.  CRIMINAL PENALTY:  VIOLATION OF COUNTY AND
   3-27  PUBLIC HEALTH DISTRICT PERMIT REQUIREMENTS.
    4-1        SECTION 6.  Chapter 437, Health and Safety Code, is amended
    4-2  by adding Sections 437.0165 and 437.018 to read as follows:
    4-3        Sec. 437.0165.  CRIMINAL PENALTY:  VIOLATION OF DEPARTMENT
    4-4  PERMIT REQUIREMENT.  (a)  A person commits an offense if the person
    4-5  operates a food service establishment, retail food store, mobile
    4-6  food unit, or temporary food service establishment without a permit
    4-7  that is required by the department under Section 437.0055.
    4-8        (b)  An offense under this section is a Class A misdemeanor.
    4-9        (c)  Each day on which a violation occurs constitutes a
   4-10  separate offense.
   4-11        Sec. 437.018.  ADMINISTRATIVE PENALTY.  (a)  The board may
   4-12  impose an administrative penalty against a person who holds a
   4-13  permit or who is regulated under this chapter and who violates this
   4-14  chapter or a rule or order adopted under this chapter.
   4-15        (b)  The penalty for a violation may be in an amount not to
   4-16  exceed $10,000.  Each day a violation continues or occurs is a
   4-17  separate violation for purposes of imposing a penalty.
   4-18        (c)  The amount of the penalty shall be based on:
   4-19              (1)  the seriousness of the violation, including the
   4-20  nature, circumstances, extent, and gravity of any prohibited acts,
   4-21  and the hazard or potential hazard created to the health, safety,
   4-22  or economic welfare of the public;
   4-23              (2)  the enforcement costs relating to the violation;
   4-24              (3)  the history of previous violations;
   4-25              (4)  the amount necessary to deter future violations;
   4-26              (5)  efforts to correct the violation; and
   4-27              (6)  any other matter that justice may require.
    5-1        (d)  If the commissioner determines that a violation has
    5-2  occurred, the commissioner may issue to the board a report that
    5-3  states the facts on which the determination is based and the
    5-4  director's recommendation on the imposition of a penalty, including
    5-5  a recommendation on the amount of the penalty.
    5-6        (e)  Within 14 days after the date the report is issued, the
    5-7  commissioner shall give written notice of the report to the person.
    5-8  The notice may be given by certified mail.  The notice must include
    5-9  a brief summary of the alleged violation and a statement of the
   5-10  amount of the recommended penalty and must inform the person that
   5-11  the person has a right to a hearing on the occurrence of the
   5-12  violation, the amount of the penalty, or both the occurrence of the
   5-13  violation and the amount of the penalty.
   5-14        (f)  Within 20 days after the date the person receives the
   5-15  notice, the person in writing may accept the determination and
   5-16  recommended penalty of the commissioner or may make a written
   5-17  request for a hearing on the occurrence of the violation, the
   5-18  amount of the penalty, or both the occurrence of the violation and
   5-19  the amount of the penalty.
   5-20        (g)  If the person accepts the determination and recommended
   5-21  penalty of the commissioner, the board by order shall approve the
   5-22  determination and impose the recommended penalty.
   5-23        (h)  If the person requests a hearing or fails to respond
   5-24  timely to the notice, the commissioner shall set a hearing and give
   5-25  notice of the hearing to the person.  An administrative law judge
   5-26  shall make findings of fact and conclusions of law and promptly
   5-27  issue to the board a proposal for a decision about the occurrence
    6-1  of the violation and the amount of a proposed penalty.  Based on
    6-2  the findings of fact, conclusions of law, and proposal for a
    6-3  decision, the board by order may find that a violation has occurred
    6-4  and impose a penalty or may find that no violation occurred.
    6-5        (i)  The notice of the board's order given to the person
    6-6  under the Administrative Procedure and Texas Register Act (Article
    6-7  6252-13a, Vernon's Texas Civil Statutes) must include a statement
    6-8  of the right of the person to judicial review of the order.
    6-9        (j)  Within 30 days after the date the board's order is final
   6-10  as provided by Section 16(c), Administrative Procedure and Texas
   6-11  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
   6-12  person shall:
   6-13              (1)  pay the amount of the penalty;
   6-14              (2)  pay the amount of the penalty and file a petition
   6-15  for judicial review contesting the occurrence of the violation, the
   6-16  amount of the penalty, or both the occurrence of the violation and
   6-17  the amount of the penalty; or
   6-18              (3)  without paying the amount of the penalty, file a
   6-19  petition for judicial review contesting the occurrence of the
   6-20  violation, the amount of the penalty, or both the occurrence of the
   6-21  violation and the amount of the penalty.
   6-22        (k)  Within the 30-day period, a person who acts under
   6-23  Subsection (j)(3) of this section may:
   6-24              (1)  stay enforcement of the penalty by:
   6-25                    (A)  paying the amount of the penalty to the
   6-26  court for placement in an escrow account; or
   6-27                    (B)  giving to the court a supersedeas bond that
    7-1  is approved by the court for the amount of the penalty and that is
    7-2  effective until all judicial review of the board's order is final;
    7-3  or
    7-4              (2)  request the court to stay enforcement of the
    7-5  penalty by:
    7-6                    (A)  filing with the court a sworn affidavit of
    7-7  the person stating that the person is financially unable to pay the
    7-8  amount of the penalty and is financially unable to give the
    7-9  supersedeas bond; and
   7-10                    (B)  giving a copy of the affidavit to the
   7-11  commissioner by certified mail.
   7-12        (l)  The commissioner on receipt of a copy of an affidavit
   7-13  under Subsection (k)(2) of this section may file with the court,
   7-14  within five days after the date the copy is received, a contest to
   7-15  the affidavit.  The court shall hold a hearing on the facts alleged
   7-16  in the affidavit as soon as practicable and shall stay the
   7-17  enforcement of the penalty on finding that the alleged facts are
   7-18  true.  The person who files an affidavit has the burden of proving
   7-19  that the person is financially unable to pay the amount of the
   7-20  penalty and to give a supersedeas bond.
   7-21        (m)  If the person does not pay the amount of the penalty and
   7-22  the enforcement of the penalty is not stayed, the commissioner may
   7-23  refer the matter to the attorney general for collection of the
   7-24  amount of the penalty.
   7-25        (n)  Judicial review of the order of the board:
   7-26              (1)  is instituted by filing a petition as provided by
   7-27  Section 19, Administrative Procedure and Texas Register Act
    8-1  (Article 6252-13a, Vernon's Texas Civil Statutes); and
    8-2              (2)  is under the substantial evidence rule.
    8-3        (o)  If the court sustains the occurrence of the violation,
    8-4  the court may uphold or reduce the amount of the penalty and order
    8-5  the person to pay the full or reduced amount of the penalty.  If
    8-6  the court does not sustain the occurrence of the violation, the
    8-7  court shall order that no penalty is owed.
    8-8        (p)  When the judgment of the court becomes final, the court
    8-9  shall proceed under this subsection.  If the person paid the amount
   8-10  of the penalty and if that amount is reduced or is not upheld by
   8-11  the court, the court shall order that the appropriate amount plus
   8-12  accrued interest be remitted to the person.  The rate of the
   8-13  interest is the rate charged on loans to depository institutions by
   8-14  the New York Federal Reserve Bank, and the interest shall be paid
   8-15  for the period beginning on the date the penalty was paid and
   8-16  ending on the date the penalty is remitted.  If the person gave a
   8-17  supersedeas bond and if the amount of the penalty is not upheld by
   8-18  the court, the court shall order the release of the bond.  If the
   8-19  person gave a supersedeas bond and if the amount of the penalty is
   8-20  reduced, the court shall order the release of the bond after the
   8-21  person pays the amount.
   8-22        (q)  A penalty collected under this section shall be remitted
   8-23  to the comptroller for deposit in the general revenue fund.
   8-24        (r)  All proceedings under this section are subject to the
   8-25  Administrative Procedure and Texas Register Act (Article 6252-13a,
   8-26  Vernon's Texas Civil Statutes).
   8-27        SECTION 7.  This Act takes effect September 1, 1993, except
    9-1  that Sections 2 and 6, to the extent they prohibit the operation of
    9-2  a food service establishment, retail food store, mobile food unit,
    9-3  or temporary food service establishment without a license from the
    9-4  Texas Department of Health, take effect January 1, 1994.
    9-5        SECTION 8.  The importance of this legislation and the
    9-6  crowded condition of the calendars in both houses create an
    9-7  emergency and an imperative public necessity that the
    9-8  constitutional rule requiring bills to be read on three several
    9-9  days in each house be suspended, and this rule is hereby suspended.