75R11295 JMM-F
By Maxey H.B. No. 2322
Substitute the following for H.B. No. 2322:
By Berlanga C.S.H.B. No. 2322
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain food establishment personnel;
1-3 providing an administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 438, Health and Safety Code, is amended
1-6 by adding Subchapter G to read as follows:
1-7 SUBCHAPTER G. CERTIFICATION OF FOOD MANAGERS
1-8 Sec. 438.101. DEFINITIONS. In this subchapter:
1-9 (1) "Board" means the Texas Board of Health.
1-10 (2) "Chain" means three or more food establishments
1-11 that share a common owner.
1-12 (3) "Commissioner" means the commissioner of health.
1-13 (4) "Department" means the Texas Department of Health.
1-14 (5) "Food establishment" means a fixed or mobile
1-15 location retail establishment where food is prepared on-site for
1-16 sale to the public.
1-17 (6) "Food manager" means the individual who conducts,
1-18 manages, or operates a food establishment.
1-19 Sec. 438.102. CERTIFICATION REQUIRED. (a) No person may
1-20 own, conduct, maintain, manage, or operate a food establishment in
1-21 this state unless the person employs a food manager who holds a
1-22 food manager certificate issued under this subchapter.
1-23 (b) A food establishment that is a single unit of a chain is
1-24 required to designate one certified food manager for every three
2-1 locations in the chain. A food establishment that does not have a
2-2 certified food manager on-site must have at the site documentation
2-3 that not less than one employee at the establishment has been
2-4 trained in food protection management practices by the chain's
2-5 designated certified food manager.
2-6 (c) A food establishment that handles only pre-packaged
2-7 nonpotentially hazardous food is exempt from the requirements of
2-8 this section. The board shall adopt rules to exempt establishments
2-9 under this subsection.
2-10 Sec. 438.103. QUALIFICATIONS FOR CERTIFICATION. (a) A
2-11 person may receive certification and recertification as a food
2-12 manager by meeting the requirements established by board rule.
2-13 (b) The board, in establishing certification and
2-14 recertification requirements, shall consider the training or
2-15 experience that is necessary to ensure that food prepared in an
2-16 establishment is being handled safely, avoids the risk of
2-17 contamination, and complies with basic food safety and sanitation
2-18 standards.
2-19 (c) The board by rule shall prescribe the requirements for
2-20 issuance and renewal of a certificate under this subchapter,
2-21 including the requirements for an examination. The board shall
2-22 adopt criteria to approve examinations that are developed by
2-23 federal, state, or local government agencies or by national testing
2-24 organizations.
2-25 (d) The department, in cooperation with the Texas
2-26 Agricultural Extension Service and other academic institutions,
2-27 shall develop and promote food safety educational training
3-1 materials and courses.
3-2 Sec. 438.104. POWERS AND DUTIES OF BOARD. (a) The board by
3-3 rule shall prescribe forms to administer this subchapter.
3-4 (b) The board by rule shall adopt fees under this subchapter
3-5 in amounts reasonable and necessary to administer this subchapter.
3-6 (c) The board shall adopt rules that provide standards of
3-7 practice, including standards relating to food safety and
3-8 sanitation, for a person holding a certificate under this
3-9 subchapter.
3-10 (d) The board shall adopt rules for the denial, suspension,
3-11 and revocation of a food manager certificate issued under this
3-12 subchapter.
3-13 (e) The board by rule shall prescribe standards and
3-14 procedures for examinations required under this subchapter,
3-15 including standards for examination sites and site audits.
3-16 Sec. 438.105. ENFORCEMENT. (a) The department may enforce
3-17 this subchapter as provided by this subchapter and by board rule.
3-18 (b) A home-rule or Type A general-law municipality may
3-19 enforce this subchapter if the municipality has adopted standards
3-20 for food managers that are at least as stringent as the standards
3-21 adopted by the board.
3-22 (c) A county or public health district that has adopted an
3-23 order under Chapter 437, Health and Safety Code, shall enforce this
3-24 subchapter. Any other county or a public health district may
3-25 enforce this subchapter. A county or public health district may:
3-26 (1) not adopt an order that establishes standards for
3-27 certification of a food manager; and
4-1 (2) adopt an order to assess a fee for an examination
4-2 administered under this subchapter.
4-3 Sec. 438.106. ADMINISTRATIVE PENALTY. (a) The department
4-4 may assess an administrative penalty against a person who violates
4-5 this subchapter or a rule adopted under this subchapter.
4-6 (b) The penalty may not exceed $1,000 for each violation.
4-7 Each day of a continuing violation constitutes a separate
4-8 violation.
4-9 (c) In determining the amount of an administrative penalty
4-10 assessed under this section, the department shall consider:
4-11 (1) the seriousness of the violation;
4-12 (2) the history of previous violations;
4-13 (3) the amount necessary to deter future violations;
4-14 (4) efforts made to correct the violation; and
4-15 (5) any other matters that justice may require.
4-16 (d) All proceedings for the assessment of an administrative
4-17 penalty under this subchapter are subject to Chapter 2001,
4-18 Government Code.
4-19 Sec. 438.107. NOTICE; REQUEST FOR HEARING. (a) If, after
4-20 investigation of a possible violation and the facts surrounding
4-21 that possible violation, the department determines that a violation
4-22 has occurred, the department shall give written notice of the
4-23 violation to the person alleged to have committed the violation.
4-24 The notice must include:
4-25 (1) a brief summary of the alleged violation;
4-26 (2) a statement of the amount of the proposed penalty
4-27 based on the factors set forth in Section 438.106(c); and
5-1 (3) a statement of the person's right to a hearing on
5-2 the occurrence of the violation, the amount of the penalty, or both
5-3 the occurrence of the violation and the amount of the penalty.
5-4 (b) Not later than the 20th day after the date on which the
5-5 notice is received, the person notified may accept the
5-6 determination of the department made under this section, including
5-7 the proposed penalty, or may make a written request for a hearing
5-8 on that determination.
5-9 (c) If the person notified of the violation accepts the
5-10 determination of the department or if the person fails to respond
5-11 in a timely manner to the notice, the commissioner or the
5-12 commissioner's designee shall issue an order approving the
5-13 determination and ordering that the person pay the proposed
5-14 penalty.
5-15 Sec. 438.108. HEARING; ORDER. (a) If the person notified
5-16 requests a hearing, the department shall:
5-17 (1) set a hearing;
5-18 (2) give written notice of the hearing to the person;
5-19 and
5-20 (3) designate a hearings examiner to conduct the
5-21 hearing.
5-22 (b) The hearings examiner shall make findings of fact and
5-23 conclusions of law and shall promptly issue to the commissioner or
5-24 the commissioner's designee a proposal for decision as to the
5-25 occurrence of the violation and a recommendation as to the amount
5-26 of the proposed penalty if a penalty is determined to be warranted.
5-27 (c) Based on the findings of fact and conclusions of law and
6-1 the recommendations of the hearings examiner, the commissioner or
6-2 the commissioner's designee by order may find that a violation has
6-3 occurred and may assess a penalty or may find that no violation has
6-4 occurred.
6-5 Sec. 438.109. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
6-6 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
6-7 the order under Section 438.108(c) to the person alleged to have
6-8 committed the violation. The notice must include:
6-9 (1) separate statements of the findings of fact and
6-10 conclusions of law;
6-11 (2) the amount of any penalty assessed; and
6-12 (3) a statement of the right of the person to judicial
6-13 review of the order.
6-14 (b) Not later than the 30th day after the date on which the
6-15 decision is final as provided by Chapter 2001, Government Code, the
6-16 person shall:
6-17 (1) pay the penalty;
6-18 (2) pay the penalty and file a petition for judicial
6-19 review contesting the occurrence of the violation, the amount of
6-20 the penalty, or both the occurrence of the violation and the amount
6-21 of the penalty; or
6-22 (3) without paying the penalty, file a petition for
6-23 judicial review contesting the occurrence of the violation, the
6-24 amount of the penalty, or both the occurrence of the violation and
6-25 the amount of the penalty.
6-26 (c) Within the 30-day period, a person who acts under
6-27 Subsection (b)(3) may:
7-1 (1) stay enforcement of the penalty by:
7-2 (A) paying the penalty to the court for
7-3 placement in an escrow account; or
7-4 (B) giving to the court a supersedeas bond that
7-5 is approved by the court for the amount of the penalty and that is
7-6 effective until all judicial review of the order is final; or
7-7 (2) request the court to stay enforcement of the
7-8 penalty by:
7-9 (A) filing with the court a sworn affidavit of
7-10 the person stating that the person is financially unable to pay the
7-11 amount of the penalty and is financially unable to give the
7-12 supersedeas bond; and
7-13 (B) giving a copy of the affidavit to the
7-14 department by certified mail.
7-15 (d) If the department receives a copy of an affidavit under
7-16 Subsection (c)(2), the department may file with the court, within
7-17 10 days after the date the copy is received, a contest to the
7-18 affidavit. The court shall hold a hearing on the facts alleged in
7-19 the affidavit as soon as practicable and shall stay the enforcement
7-20 of the penalty on finding that the alleged facts are true. The
7-21 person who files an affidavit has the burden of proving that the
7-22 person is financially unable to pay the penalty and to give a
7-23 supersedeas bond.
7-24 (e) If the person does not pay the penalty and the
7-25 enforcement of the penalty is not stayed, the department may refer
7-26 the matter to the attorney general for collection of the penalty.
7-27 (f) Judicial review of the order:
8-1 (1) is instituted by filing a petition as provided by
8-2 Subchapter G, Chapter 2001, Government Code; and
8-3 (2) is under the substantial evidence rule.
8-4 (g) If the court sustains the occurrence of the violation,
8-5 the court may uphold or reduce the amount of the penalty and order
8-6 the person to pay the full or reduced amount of the penalty. If
8-7 the court does not sustain the occurrence of the violation, the
8-8 court shall order that no penalty is owed.
8-9 (h) When the judgment of the court becomes final, the court
8-10 shall proceed under this subsection. If the person paid the amount
8-11 of the penalty under Subsection (b)(2) and if that amount is
8-12 reduced or is not upheld by the court, the court shall order that
8-13 the department pay the appropriate amount plus accrued interest to
8-14 the person. The rate of the interest is the rate charged on loans
8-15 to depository institutions by the New York Federal Reserve Bank,
8-16 and the interest shall be paid for the period beginning on the date
8-17 the penalty was paid and ending on the date the penalty is
8-18 remitted. If the person paid the penalty under Subsection
8-19 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
8-20 penalty is not upheld by the court, the court shall order the
8-21 release of the escrow account or bond. If the person paid the
8-22 penalty under Subsection (c)(1)(A) and the amount of the penalty is
8-23 reduced, the court shall order that the amount of the penalty be
8-24 paid to the department from the escrow account and that the
8-25 remainder of the account be released. If the person gave a
8-26 supersedeas bond and if the amount of the penalty is reduced, the
8-27 court shall order the release of the bond after the person pays the
9-1 amount.
9-2 Sec. 438.110. PENALTY DEPOSITED IN GENERAL REVENUE FUND. An
9-3 administrative penalty collected under this subchapter shall be
9-4 deposited to the credit of the general revenue fund.
9-5 Sec. 438.111. INJUNCTION. (a) The attorney general, on
9-6 behalf of the commissioner, may petition the district court for
9-7 injunctive relief to restrain a continuing violation of this
9-8 subchapter.
9-9 (b) A district court, on petition of the attorney general
9-10 and on a finding by the court that a person is violating or
9-11 threatening to violate this subchapter, shall grant injunctive
9-12 relief warranted by the facts.
9-13 (c) Venue for a suit brought under this section is in Travis
9-14 County or the county in which the violation or threat of a
9-15 violation is alleged to have occurred.
9-16 Sec. 438.112. RECOVERY OF COSTS. (a) The department may
9-17 assess reasonable expenses and costs against a person in an
9-18 administrative hearing if, as a result of the hearing, the person's
9-19 certification is denied, suspended, or revoked or if an
9-20 administrative penalty is assessed against the person. The person
9-21 shall pay expenses and costs assessed under this subsection not
9-22 later than the 30th day after the date the order issued by the
9-23 commissioner or the commissioner's designee requiring the payment
9-24 of expenses and costs is final. The department may refer the
9-25 matter to the attorney general for collection of the expenses and
9-26 costs.
9-27 (b) If the attorney general brings an action against a
10-1 person under Section 438.111 or to enforce an administrative
10-2 penalty assessed under this subchapter, and an injunction is
10-3 granted against the person or the person is found liable for an
10-4 administrative penalty, the attorney general may recover, on behalf
10-5 of the attorney general and the department, reasonable expenses and
10-6 costs.
10-7 (c) For purposes of this section, "reasonable expenses and
10-8 costs" include expenses incurred by the department and the attorney
10-9 general in the investigation, initiation, or prosecution of an
10-10 action, including reasonable investigative costs, court costs,
10-11 attorney's fees, witness fees, and deposition expenses.
10-12 (d) Costs and expenses collected on behalf of the department
10-13 under this section shall be deposited to the credit of a special
10-14 account in the general revenue fund and funds in that account may
10-15 only be appropriated to the department.
10-16 (e) Costs and expenses collected on behalf of the attorney
10-17 general under this section shall be deposited in the general
10-18 revenue fund and may be appropriated to the attorney general.
10-19 SECTION 2. (a) Except as provided by Subsection (b) of this
10-20 section, this Act takes effect September 1, 1997.
10-21 (b) Section 438.102, Health and Safety Code, as added by
10-22 this Act, takes effect September 1, 1998.
10-23 (c) The Texas Board of Health shall adopt rules under this
10-24 Act not later than January 1, 1998.
10-25 SECTION 3. The importance of this legislation and the
10-26 crowded condition of the calendars in both houses create an
10-27 emergency and an imperative public necessity that the
11-1 constitutional rule requiring bills to be read on three several
11-2 days in each house be suspended, and this rule is hereby suspended.