BG C.S.H.B. 2322 75(R)BILL ANALYSIS


PUBLIC HEALTH
C.S.H.B. 2322
By: Maxey
4-9-97
Committee Report (Substituted)


BACKGROUND 

Currently, there is no mandatory statewide requirement for certification
of managers in retail food establishments.  Many home-rule cities,
however, require food manager certification which is mandated by city
ordinance.  As such, food managers and workers in larger urban cities have
training in basic food safety, and those in more rural areas of the state
do not.  The Texas Department of Health (TDH), counties, and public health
districts do not have the authority to require training and certification. 

Recent estimates indicate that approximately one-third to one-half of all
meals are now consumed outside of the home.  A survey consisting of food
safety and sanitation knowledge taken by state field investigators showed
that out of 2,063 individuals surveyed, the overall average score was only
63.43%. The Centers for Disease Control and Prevention reports that
between 6.5 million and 8.1 million cases of illness, and as many as 9,100
related deaths, occur each year due to food borne contaminations. Certain
consumer populations such as infants, children, the immuno-compromised,
and the elderly, are at especially high risk of serious illness from
contaminated foods.   

PURPOSE

HB 2322 raises the level of food safety knowledge of food managers and
workers employed in the retail food industry statewide in order to reduce
the risk of food borne illness.  This bill amends Chapter 438 of the Texas
Health and Safety Code to require a minimum of one certified manager for
each fixed location retail food establishment, but only if the
establishment actually prepares food.  
 
RULEMAKING AUTHORITY

It is the committee's opinion that this bill expressly grants additional
rulemaking authority to the Texas Board of Health in SECTION 1 (Sections
438.102(c), 438.103(a) and (c), 438.104 and 438.105(a), Chapter 438,
Subchapter G, Health and Safety Code).  SECTION 2(c) of the bill requires
the Texas Board of Health to adopt rules by January 1, 1998. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 438, Health and Safety Code, by adding
Subchapter G as follows: 

SUBCHAPTER G.  CERTIFICATION OF FOOD MANAGERS

Sec. 438.101. DEFINITIONS. 

(1)  Defines "Board" as the Texas Board of Health.

(2)  Defines "Chain" as three of more food establishments having the same
owner. 

(3)   Defines "Commissioner" as the commissioner of health.

(4)  Defines "Department" as the Texas Department of Health (TDH).

 (5)  Defines "food establishment" as a fixed or mobile location retail
establishment where food is prepared on-site for sale to the public. 

(6)  Defines "food manager" as an individual who conducts, manages, or
operates a food establishment. 

Sec.  438.102.  CERTIFICATION REQUIRED.  (a)  prohibits a person from
owning, conducting, maintaining, managing, or operating a food
establishment in Texas, without employing a food manager who is certified
in food management under this subchapter. 

Subsection (b)  requires that a single unit of a food establishment chain
designate one certified food manager for every three locations in the
chain.  Requires that a food establishment lacking an on-site certified
food manager have on-site documentation that at least one employee has
been trained in food protection management practices as specified. 

Subsection (c)  exempts a food establishment that handles only
nonpotentially hazardous food, as specified, from the requirements of this
section. Requires the board to adopt rules to exempt establishments under
this subsection. 

Sec.  438.103.  QUALIFICATIONS  FOR CERTIFICATION.  (a)  allows a person
to receive certification and recertification as a food manager by meeting
the requirements established by board rule. 

Subsection (b)  requires the board, in establishing certification and
recertification requirements, to consider the training or experience
necessary to ensure that food is handled safely, the risk of contamination
avoided,  and compliance with basic food safety and sanitation standards
maintained. 

Subsection (c)  requires the board, by rule, to prescribe the requirements
for issuance and renewal of a certificate under this subchapter, including
the requirements for an examination.  Requires that the board adopt
criteria to approve examinations that are developed by federal, state, or
local government agencies or by national testing organizations. 

Subsection (d)  requires TDH, in cooperation with the Texas Agricultural
Extension Service and other academic institutions, to develop and promote
food safety educational training materials and courses. 

Sec.  438.104.  POWERS AND DUTIES OF BOARD.  (a)  requires the board, by
rule, to prescribe forms to administer this subchapter. 

Subsection (b)  requires the board, by rule, to adopt reasonable and
necessary fees as specified. 

Subsection (c)  requires the board to adopt rules that provide standards
of practice, including standards relating to food safety and sanitation,
for a person holding a certificate. 

Subsection (d)  requires the board to adopt rules for the denial,
suspension, and revocation of a food manager certificate issued under this
subchapter. 

Subsection (e)  requires the board by rule to prescribe standards and
procedures for required examinations, including standards for examination
sites and site audits. 

Sec.  438.105.  ENFORCEMENT.  (a)  allows TDH to enforce this subchapter
as provided and by board rule. 

 Subsection (b)  allows a home-rule or Type A general-law municipality to
enforce this subchapter if the municipality has adopted standards for food
managers that are at least as stringent as the standards adopted by the
board. 

Subsection (c)  allows a county or a public health district to enforce
this subchapter as specified. 

Sec.  438.106.  ADMINISTRATIVE PENALTY.  (a) allows TDH to assess an
administrative penalty as specified. 

Subsection (b) prohibits the amount of the penalty from exceeding $1,000
for each violation. Establishes that each day of a continuing violation
constitutes a separate violation. 

Subsection (c) requires TDH to consider factors, as specified, in
determining the penalty amount. 

Subsection (d) establishes that all proceedings for the assessment of an
administrative penalty under this subchapter are subject to Chapter 2001,
Government Code. 

Sec. 438.107.  NOTICE; REQUEST FOR HEARING. (a) requires TDH to give the
person alleged to have committed the violation written notice, as
specified, if TDH determines that a violation occurred after a factual
investigation.  

Subsection (b) allows the notified person to accept TDH's determination,
including the proposed penalty or to make a written request for a hearing
no later than 20 days after notice is received.  

Subsection (c) requires the commissioner or designee to issue an order
approving the determination and ordering penalty payment, as specified, if
the notified person accepts the determination or if the person fails to
respond timely.     

Sec. 438.108.  HEARING; ORDER.  (a) requires TDH to set a hearing, give
notice of the hearing as specified, and designate a hearings examiner if
the notified person requests a hearing. 

Subsection (b) requires the hearing examiner to make judgement, as
specified, and promptly issue, as specified, a decision proposal and
penalty amount recommendation. 

Subsection (c)  allows the commissioner or designee, by order, to find,
based on the hearing examiner's judgement and recommendation, that a
violation occurred and assess a penalty or to find that no violation
occurred.  

Sec. 438.109.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW; REFUND. (a) requires TDH to give notice of the order, as
specified, to the person alleged to have committed the violation. Lists
certain statements and information that must be included in the given
notice.   

Subsection (b) requires the person to pay the penalty; pay the penalty and
file a petition in contest as specified; or file the petition without
paying the penalty.   

Subsection (c) allows the person opting to file the petition without
payment to stay enforcement of the penalty as specified, or to request the
court to stay enforcement as specified within a period of 30 days. 

Subsection (d) allows TDH to file a contest with the court within 10 days
of having received a copy of a person's affidavit regarding financial
inability.  Requires the court to hold a hearing on the alleged facts as
soon as practicable and to stay the enforcement of the penalty if the
facts are found to be true. Establishes that the burden of proof is on the
person filing the affidavit. 

Subsection (e) allow TDH to refer the matter to the attorney general for
collection if the penalty is not paid and the enforcement of the penalty
is not stayed. 

Subsection (f) establishes judicial review of the order as specified.

Subsection (g) allows the court to uphold or reduce the penalty amount if
the occurrence of the violation is sustained. Requires the court to order
that no penalty is owed if the violation is not sustained.  

Subsection (h) requires the court to proceed, as specified, when the
judgement becomes final. Requires the court to order that TDH pay the
appropriate amount plus interest as specified to the person if the person
paid a penalty which was then reduced or not upheld by the court.
Requires the court to order the release of an escrow account or bond, as
specified, if the person paid the penalty as specified and the amount is
not upheld by the court. Requires the court to order that the amount of
the penalty be paid to TDH , as specified, and the remainder released, if
the person paid a penalty which was later reduced to an escrow account.
Requires the court to order the release of a bond after the person pays
the amount if the person had given the bond and then there is a reduction
in penalty amount of the penalty. 

Sec.  438.110.  PENALTY DEPOSITED TO STATE TREASURY.  Requires a collected
administrative penalty to be deposited in the general revenue fund of the
state treasury. 

Sec.  438.111.  INJUNCTION.  (a)  allows the attorney general, on behalf
of the commissioner, to petition the district court for injunctive relief
as specified. 

Subsection (b)  requires a district court to grant any injunctive relief
as warranted by the facts. 

Subsection (c)  establishes that the 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 or in Travis County. 

Sec.  438.112.  RECOVERY OF COSTS.  (a) allows TDH to assess reasonable
expenses and costs as specified if, as a result of administrative the
hearing, the person's certification is denied, suspended, or revoked or if
administrative penalties are assessed against the person.  Requires the
person to pay expenses and costs assessed by the 30th day after the order
is issued is final. Allows TDH to refer the matter to the attorney general
for collection of the expenses and costs. 

Subsection (b)  establishes that the attorney general is allowed to
recover, on behalf of the attorney general and TDH, reasonable expenses
and costs, if an injunction is granted against the person or the person is
found liable for an administrative penalty and the attorney general brings
an action against a person under Section 438.111 or to enforce and
administrative penalty assessed. 

Subsection (c)  defines "reasonable expenses and costs" as specified, for
the purposes of this section. 

Subsection (d)  requires that the costs and expenses collected under this
section are deposited in a special account of the state treasury, that may
only be appropriated to TDH. 

Subsection (e) requires that costs and expenses collected on behalf of the
attorney  general be deposited in the general revenue fund and allows
their appropriation to the attorney general. 

SECTION 2.   Establishes that this Act is effective September 1, 1997,
except for Section 438.102, Health and Safety Code, which takes effect
September 1, 1998. Requires the board to adopt rules under this Act by
January 1, 1998. 

SECTION 3.  Emergency Clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

All of the changes between HB 2322 and CSHB 2322 are in SECTION 1 (Chapter
438G, Health and Safety Code). The substitute bill adds subsection (d) to
the original bill's  Section 438.103 so as to   require that TDH work in
cooperation with the Agricultural Extension Service to develop and promote
food safety training and educational materials. 

CSHB 2322 additionally contains Sections 438.106 to 438.110 (regarding
various aspects of the administrative penalty) all of which were standard
legislative text which was inadvertently omitted from the original draft. 

Also new in the substitute bill is Section 438.112(e) which clarifies that
monies collected on behalf of the attorney general can be made available
to the attorney general through appropriations.