By Maxey H.B. No. 2322
75R8565 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain food establishment personnel;
1-3 providing a 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 nonpotentially
2-7 hazardous food is exempt from the requirements of this section.
2-8 The board shall adopt rules to exempt establishments under this
2-9 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 Sec. 438.104. POWERS AND DUTIES OF BOARD. (a) The board by
2-26 rule shall prescribe forms to administer this subchapter.
2-27 (b) The board by rule shall adopt fees under this subchapter
3-1 in amounts reasonable and necessary to administer this subchapter.
3-2 (c) The board shall adopt rules that provide standards of
3-3 practice, including standards relating to food safety and
3-4 sanitation, for a person holding a certificate under this
3-5 subchapter.
3-6 (d) The board shall adopt rules for the denial, suspension,
3-7 and revocation of a food manager certificate issued under this
3-8 subchapter.
3-9 (e) The board by rule shall prescribe standards and
3-10 procedures for examinations required under this subchapter,
3-11 including standards for examination sites and site audits.
3-12 Sec. 438.105. ENFORCEMENT. (a) The department may enforce
3-13 this subchapter as provided by this subchapter and by board rule.
3-14 (b) A home-rule or Type A general-law municipality may
3-15 enforce this subchapter if the municipality has adopted standards
3-16 for food managers that are at least as stringent as the standards
3-17 adopted by the board.
3-18 (c) A county or a public health district may enforce this
3-19 subchapter.
3-20 (1) A county or public health district may not adopt
3-21 an order that establishes standards for certification of a food
3-22 manager.
3-23 (2) A county or public health district may adopt an
3-24 order to assess a fee for examinations administered under this
3-25 subchapter.
3-26 (3) A county or public health district that has
3-27 adopted an order pursuant to Chapter 437, Health and Safety Code,
4-1 shall enforce the provisions of this subchapter.
4-2 Sec. 438.106. ADMINISTRATIVE PENALTY. (a) The department
4-3 may assess an administrative penalty against a person who violates
4-4 the order under Section 438.108(c) to the person alleged to have
4-5 committed the violation. The notice must include:
4-6 (1) separate statements of the findings of fact and
4-7 conclusions of law;
4-8 (2) the amount of any penalty assessed; and
4-9 (3) a statement of the right of the person to judicial
4-10 review of the order.
4-11 (b) Not later than the 30th day after the date on which the
4-12 decision is final as provided by Chapter 2001, Government Code, the
4-13 person shall:
4-14 (1) pay the penalty;
4-15 (2) pay the penalty and file a petition for judicial
4-16 review contesting the occurrence of the violation, the amount of
4-17 the penalty, or both the occurrence of the violation and the amount
4-18 of the penalty; or
4-19 (3) without paying the penalty, file a petition for
4-20 judicial review contesting the occurrence of the violation, the
4-21 amount of the penalty, or both the occurrence of the violation and
4-22 the amount of the penalty.
4-23 (c) Within the 30-day period, a person who acts under
4-24 Subsection (b)(3) may:
4-25 (1) stay enforcement of the penalty by:
4-26 (A) paying the penalty to the court for
4-27 placement in an escrow account; or
5-1 (B) giving to the court a supersedeas bond that
5-2 is approved by the court for the amount of the penalty and that is
5-3 effective until all judicial review of the order is final; or
5-4 (2) request the court to stay enforcement of the
5-5 penalty by:
5-6 (A) filing with the court a sworn affidavit of
5-7 the person stating that the person is financially unable to pay the
5-8 amount of the penalty and is financially unable to give the
5-9 supersedeas bond; and
5-10 (B) giving a copy of the affidavit to the
5-11 department by certified mail.
5-12 (d) If the department receives a copy of an affidavit under
5-13 Subsection (c)(2), the department may file with the court, within
5-14 ten days after the date the copy is received, a contest to the
5-15 affidavit. The court shall hold a hearing on the facts alleged in
5-16 the affidavit as soon as practicable and shall stay the enforcement
5-17 of the penalty on finding that the alleged facts are true. The
5-18 person who files an affidavit has the burden of proving that the
5-19 person is financially unable to pay the penalty and to give a
5-20 supersedeas bond.
5-21 (e) If the person does not pay the penalty and the
5-22 enforcement of the penalty is not stayed, the department may refer
5-23 the matter to the attorney general for collection of the penalty.
5-24 (f) Judicial review of the order:
5-25 (1) is instituted by filing a petition as provided by
5-26 Subchapter G, Chapter 2001, Government Code; and
5-27 (2) is under the substantial evidence rule.
6-1 (g) If the court sustains the occurrence of the violation,
6-2 the court may uphold or reduce the amount of the penalty and order
6-3 the person to pay the full or reduced amount of the penalty. If
6-4 the court does not sustain the occurrence of the violation, the
6-5 court shall order that no penalty is owed.
6-6 (h) When the judgment of the court becomes final, the court
6-7 shall proceed under this subsection. If the person paid the amount
6-8 of the penalty under Subsection (b)(2) and if that amount is
6-9 reduced or is not upheld by the court, the court shall order that
6-10 the department pay the appropriate amount plus accrued interest to
6-11 the person. The rate of the interest is the rate charged on loans
6-12 to depository institutions by the New York Federal Reserve Bank,
6-13 and the interest shall be paid for the period beginning on the date
6-14 the penalty was paid and ending on the date the penalty is
6-15 remitted. If the person paid the penalty under Subsection
6-16 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
6-17 penalty is not upheld by the court, the court shall order the
6-18 release of the escrow account or bond. If the person paid the
6-19 penalty under Subsection (c)(1)(A) and the amount of the penalty is
6-20 reduced, the court shall order that the amount of the penalty be
6-21 paid to the department from the escrow account and that the
6-22 remainder of the account be released. If the person gave a
6-23 supersedeas bond and if the amount of the penalty is reduced, the
6-24 court shall order the release of the bond after the person pays the
6-25 amount.
6-26 Sec. 438.110. PENALTY DEPOSITED TO STATE TREASURY. An
6-27 administrative penalty collected under this subchapter shall be
7-1 deposited in the state treasury to the credit of the general
7-2 revenue fund.
7-3 Sec. 438.111. INJUNCTION. (a) The attorney general on
7-4 behalf of the commissioner may petition the district court for
7-5 injunctive relief to restrain a continuing violation of this
7-6 subchapter.
7-7 (b) A district court, on petition of the attorney general
7-8 and on a finding by the court that a person is violating or
7-9 threatening to violate this subchapter, shall grant any injunctive
7-10 relief warranted by the facts.
7-11 (c) Venue for a suit brought under this section is in the
7-12 county in which the violation or threat of violation is alleged to
7-13 have occurred or in Travis County.
7-14 Sec. 438.112. RECOVERY OF COSTS. (a) The department may
7-15 assess reasonable expenses and costs against a person in an
7-16 administrative hearing if, as a result of the hearing, the person's
7-17 certification is denied, suspended, or revoked or if administrative
7-18 penalties are assessed against the person. The person shall pay
7-19 expenses and costs assessed under this subsection not later than
7-20 the 30th day after the date on which the order issued by the
7-21 commissioner or the commissioner's designee requiring the payment
7-22 of expenses and costs is final. The department may refer the
7-23 matter to the attorney general for collection of the expenses and
7-24 costs.
7-25 (b) If the attorney general brings an action against a
7-26 person under Section 438.111 or to enforce an administrative
7-27 penalty assessed under this subchapter, and an injunction is
8-1 granted against the person or the person is found liable for an
8-2 administrative penalty, the attorney general may recover, on behalf
8-3 of the attorney general and the department, reasonable expenses and
8-4 costs.
8-5 (c) For purposes of this section, "reasonable expenses and
8-6 costs" include expenses incurred by the department and the attorney
8-7 general in the investigation, initiation, or prosecution of an
8-8 action, including reasonable investigative costs, court costs,
8-9 attorney's fees, witness fees, and deposition expenses.
8-10 (d) Costs and expenses collected under this section shall be
8-11 deposited in the state treasury to the credit of a special account
8-12 that may only be appropriated to the department.
8-13 SECTION 2. (a) Except as provided by Subsection (b) of this
8-14 section, this Act takes effect September 1, 1997.
8-15 (b) Section 438.102, Health and Safety Code, as added by
8-16 this Act, takes effect September 1, 1998.
8-17 (c) The Texas Board of Health shall adopt rules under this
8-18 Act not later than January 1, 1998.
8-19 SECTION 3. The importance of this legislation and the
8-20 crowded condition of the calendars in both houses create an
8-21 emergency and an imperative public necessity that the
8-22 constitutional rule requiring bills to be read on three several
8-23 days in each house be suspended, and this rule is hereby suspended.