HEALTH AND SAFETY CODE CHAPTER 437. REGULATION OF FOOD SERVICE ESTABLISHMENTS, RETAIL FOOD STORES, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS

HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS

CHAPTER 437. REGULATION OF FOOD SERVICE ESTABLISHMENTS, RETAIL FOOD STORES, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS

Sec. 437.001. DEFINITIONS. In this chapter:

(1) "Acidified canned goods" means food with a finished equilibrium pH value of 4.6 or less that is thermally processed before being placed in an airtight container.

(1-a) "Beekeeper" has the meaning assigned by Section 131.001, Agriculture Code.

(2) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(79), eff. April 2, 2015.

(2-a) "Baked good" includes cookies, cakes, breads, Danish, donuts, pastries, pies, and other items that are prepared by baking the item in an oven.

(2-b) "Cottage food production operation" means an individual, operating out of the individual's home, who:

(A) produces at the individual's home, subject to Section 437.0196:

(i) a baked good that is not a time and temperature control for safety food, as defined by Section 437.0196;

(ii) candy;

(iii) coated and uncoated nuts;

(iv) unroasted nut butters;

(v) fruit butters;

(vi) a canned jam or jelly;

(vii) a fruit pie;

(viii) dehydrated fruit or vegetables, including dried beans;

(ix) popcorn and popcorn snacks;

(x) cereal, including granola;

(xi) dry mix;

(xii) vinegar;

(xiii) pickled fruit or vegetables, including beets and carrots, that are preserved in vinegar, brine, or a similar solution at an equilibrium pH value of 4.6 or less;

(xiv) mustard;

(xv) roasted coffee or dry tea;

(xvi) a dried herb or dried herb mix;

(xvii) plant-based acidified canned goods;

(xviii) fermented vegetable products, including products that are refrigerated to preserve quality;

(xix) frozen raw and uncut fruit or vegetables; or

(xx) any other food that is not a time and temperature control for safety food, as defined by Section 437.0196;

(B) has an annual gross income of $50,000 or less from the sale of food described by Paragraph (A);

(D) delivers products to the consumer at the point of sale or another location designated by the consumer.

(3) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(79), eff. April 2, 2015.

(3-a) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(79), eff. April 2, 2015.

(3-b) "Farm stand" means a premises owned and operated by a producer of agricultural food products at which the producer or other persons may offer for sale produce or foods described by Subdivision (2-b)(A).

(3-c) "Fermented vegetable product" means a low-acid vegetable food product subjected to the action of certain microorganisms that produce acid during their growth and reduce the pH value of the food to 4.6 or less.

(4) "Food," "food service establishment," "retail food store," "mobile food unit," "roadside food vendor," and "temporary food service establishment" have the meanings assigned to those terms by rules adopted under this chapter.

(5) "Home" means a primary residence that contains a kitchen and appliances designed for common residential usage.

(6) "Produce" means fresh fruits or vegetables.

(7) "Small honey production operation" means a beekeeper that:

(A) produces less than 2,500 pounds of honey each year;

(B) sells or distributes the honey or honeycomb that the beekeeper produces either personally or with the help of the beekeeper's immediate family members;

(i) that is produced from a hive that is:

(a) located in the state; and

(b) owned and managed by the beekeeper;

(ii) that is pure honey as defined by Section 131.001, Agriculture Code, and that is raw and not blended with any other product or otherwise adulterated; and

(iii) directly to consumers at the beekeeper's home, a farmer's market, a farm stand, or a municipal, county, or nonprofit fair, festival, or event; and

(D) delivers the honey or honeycomb that the beekeeper produces to the consumer at the point of sale or another location designated by the consumer.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 5, eff. September 1, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 1, eff. September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 1275 (H.B. 1382), Sec. 1, eff. September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1119, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1639(79), eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 265 (S.B. 1766), Sec. 1, eff. September 1, 2015.

Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 1, eff. September 1, 2019.

Sec. 437.002. ENFORCEMENT OF STATE LAW BY COUNTY OR PUBLIC HEALTH DISTRICT. (a) A county or public health district may enforce state law and rules adopted under state law concerning food service establishments, retail food stores, mobile food units, and roadside food vendors.

(b) This chapter does not authorize a county or public health district to adopt orders establishing standards for the operation of food service establishments, retail food stores, mobile food units, or roadside food vendors.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.003. COUNTY AUTHORITY TO REQUIRE PERMIT. To enforce state law and rules adopted under state law, the commissioners court of a county by order may require food service establishments, retail food stores, mobile food units, and roadside food vendors in unincorporated areas of the county, including areas in the extraterritorial jurisdiction of a municipality, to obtain a permit from the county.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.004. PUBLIC HEALTH DISTRICT AUTHORITY TO REQUIRE PERMIT. (a) A public health district that is established by at least one county and one or more municipalities in the county by order may require food service establishments, retail food stores, mobile food units, and roadside food vendors in the district to obtain a permit from the district.

(b) If the public health district has an administrative board, the administrative board must adopt the order in accordance with its procedures.

(c) If the district does not have an administrative board, the governing body of each member of the district must adopt the order. The order is effective throughout the public health district on the 30th day after the first date on which the governing bodies of all members have adopted the order.

(d) This chapter does not restrict the authority of a municipality that is a member of a public health district to adopt ordinances or administer a permit system concerning food service establishments, retail food stores, mobile food units, and roadside food vendors.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.005. PUBLIC HEARING. (a) A commissioners court, governing body, or administrative board, as applicable, may adopt an order under Section 437.003 or 437.004 only after conducting a public hearing on the proposed order.

(b) At least two weeks' public notice must be given before a public hearing may be held.

(c) The notice must be published in a newspaper of general circulation in the county or public health district on three consecutive days and be printed in 10 point bold-faced type.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.0055. PERMIT FROM DEPARTMENT REQUIRED IN AREAS NOT REGULATED BY COUNTY OR PUBLIC HEALTH DISTRICT. (a) A person may not operate a food service establishment, retail food store, mobile food unit, or temporary food service establishment located in an area in which a county or public health district does not require a permit or conduct inspections under this chapter unless the person has a permit issued by the department.

(b) A person required to obtain a permit under Subsection (a) must apply every two years for the permit and must pay any fees required by the department.

Added by Acts 1993, 73rd Leg., ch. 617, Sec. 2, eff. Jan. 1, 1994.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1120, eff. April 2, 2015.

Sec. 437.0056. RULEMAKING AUTHORITY. The executive commissioner may adopt rules for the efficient enforcement of this chapter by the department in an area not regulated under this chapter by a county or public health district. The executive commissioner by rule shall establish minimum standards for granting and maintaining a permit in an area not regulated under this chapter by a county or public health district. The commissioner may refuse an application for a permit or suspend or revoke a permit in an area not regulated under this chapter by a county or public health district.

Added by Acts 1993, 73rd Leg., ch. 617, Sec. 2, eff. Jan. 1, 1994.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1121, eff. April 2, 2015.

Sec. 437.0057. REGULATION OF FOOD HANDLERS AND OTHER FOOD SERVICE EMPLOYEES BY COUNTIES, PUBLIC HEALTH DISTRICTS, AND THE DEPARTMENT. (a) A county, a public health district, or the department may require certification under Subchapter D, Chapter 438, for each food handler who is employed by a food service establishment in which food is prepared on-site for sale to the public and which holds a permit issued by the county, the public health district, or the department. This section applies without regard to whether the food service establishment is at a fixed location or is a mobile food unit.

(b) The requirements of certification under this section may not be more stringent than the requirements of Subchapter D, Chapter 438.

(c) A county, a public health district, or the department may not require an establishment that handles only prepackaged food and does not prepare or package food to employ certified food handlers under this section.

(d) A county, a public health district, or the department may exempt a food service establishment from the requirement that the county, public health district, or department has imposed under Subsection (a) if the county, the public health district, or the department determines that the application of Subsection (a) to that establishment is not necessary to protect public health and safety.

(e) A county, a public health district, or the department may require a food service establishment to:

(1) post a sign in a place conspicuous to employees, in a form adopted by the executive commissioner, describing a food service employee's responsibilities to report certain health conditions to the permit holder under rules adopted by the executive commissioner; or

(2) require that each food service employee sign a written agreement in a form adopted by the executive commissioner to report those health conditions.

Added by Acts 2009, 81st Leg., R.S., Ch. 926 (H.B. 3012), Sec. 1, eff. September 1, 2009.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1122, eff. April 2, 2015.

Sec. 437.006. MORE THAN ONE PERMIT PROHIBITED. A food service establishment or retail food store may not be required under this chapter to obtain more than one permit for each location.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.0065. PERMITS FOR CERTAIN FARMERS AND FOOD PRODUCERS. (a) In this section, "farmers' market" and "food producer" have the meanings assigned by Section 437.020.

(b) This section applies only to a permit issued under this chapter to:

(1) a farmer for the sale of food directly to consumers at a farmers' market, a farm stand, or the farmer's farm; and

(2) a food producer, other than a farmer, for the sale of food directly to consumers at a farmers' market.

(1) must be valid for a term of not less than one year;

(2) may impose an annual fee in an amount not to exceed $100 for the issuance or renewal; and

(3) must cover sales at all locations the permit holder is authorized to sell food under Subsection (b), including farmers' markets, farm stands, and farms within the jurisdiction of the permitting authority.

(d) A farmer or food producer who is charged an annual fee in an amount that exceeds the amount authorized by Subsection (c)(2) or whose permit does not otherwise comply with this section may bring an action against the governmental entity that charged the fee or issued the permit to recover:

(1) the amount the farmer or food producer was charged in excess of the annual fee authorized by Subsection (c)(2); and

(2) reasonable and necessary attorney's fees incurred in bringing the action.

Added by Acts 2019, 86th Leg., R.S., Ch. 339 (S.B. 932), Sec. 1, eff. September 1, 2019.

Amended by:

Acts 2021, 87th Leg., R.S., Ch. 577 (S.B. 617), Sec. 1, eff. June 14, 2021.

Sec. 437.007. NONPROFIT ORGANIZATIONS EXEMPT. A county or public health district may not require a nonprofit organization to obtain a permit.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.0073. MEDALLION FOR MOBILE FOOD UNITS IN CERTAIN POPULOUS MUNICIPALITIES. (a) This section applies only to a municipality with a population of 1.5 million or more.

(b) Any person desiring to operate one or more mobile food units in a municipality subject to this section other than restricted operations mobile food units shall obtain an individual medallion for each operating mobile food unit from the health officer of the municipality. Each medallion will be issued unit-by-unit only after an inspection reveals satisfactory compliance with the provisions of this chapter and applicable municipal regulations or ordinances relating to mobile food units. The medallions shall remain the property of the municipality.

(c) A person may not operate or cause to be operated any mobile food unit that does not possess a valid medallion issued by the health officer.

(d) A medallion shall be affixed by the health officer or the health officer's authorized agents on the mobile food unit in a conspicuous place where it can be viewed by patrons.

(e) Application for a medallion shall be made on forms provided by the health officer and must include:

(1) the applicant's full name and mailing address;

(2) the address of the location at which the mobile food unit is stationed when not in use;

(3) the business name and address of the commissary or other fixed food service establishment from which potentially hazardous food supplies are obtained;

(4) the address of the servicing area;

(5) a description of the mobile food unit that includes the manufacturer's make, model, and serial number;

(6) the vehicle's state registration number; and

(7) the signature of the applicant.

(f) All of the provisions of this chapter and applicable municipal regulations or ordinances pertaining to food service establishments apply to the commissary or other fixed food service establishment from which the food supplies are obtained. Any suspension or revocation of the food dealer's permit for a food service establishment is cause for suspension or revocation of the medallion of any mobile food unit that is supplied or serviced by the establishment.

Added by Acts 2009, 81st Leg., R.S., Ch. 403 (H.B. 1802), Sec. 1, eff. June 19, 2009.

Sec. 437.0074. MOBILE FOOD UNITS IN CERTAIN POPULOUS COUNTIES. (a) A county with a population of at least 2.8 million, or a municipality or public health district in the county, shall require a mobile food unit to:

(1) return to the food service establishment or commissary from which the unit operates within the 24-hour period preceding operation of the mobile food unit to have cleaning and other services performed on the unit; and

(2) obtain, on completion of an inspection following servicing, written documentation that the mobile food unit has been serviced daily as required by Subdivision (1).

(b) A county, municipality, or public health district that has installed an electronic tagging system shall register and record confirmation that the unit has been serviced as required by Subsection (a)(1).

(c) A municipality with a population of 1.5 million or more in a county with a population of 2.8 million or more shall require a mobile food unit, other than a mobile food unit that handles only prepackaged food and does not prepare or package food, to obtain a time and date stamp on the documentation required under Subsection (a)(2) from a time and date stamp unit that is constructed to prevent tampering and approved by the municipality's governing body. A record kept by the municipality regarding the time and date stamp on the documentation under Subsection (a)(2) by means of an electronic tagging system under Subsection (b) controls if that record is inconsistent with the record kept by the mobile food unit.

Added by Acts 2007, 80th Leg., R.S., Ch. 1276 (H.B. 3672), Sec. 1, eff. September 1, 2007.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 403 (H.B. 1802), Sec. 2, eff. January 1, 2010.

Sec. 437.0075. FOOD MANAGERS IN CERTAIN POPULOUS COUNTIES. (a) A county with a population of at least four million may require a certified or trained food manager to be on duty during the operating hours of a food establishment.

(b) The training required of food managers can be no more extensive than that specified under Subchapter D, Chapter 438.

(c) A food establishment that handles only prepackaged food and does not prepare or package food may not be required to have a certified food manager under this section.

Added by Acts 1999, 76th Leg., ch. 1378, Sec. 7, eff. June 19, 1999.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 911 (S.B. 1158), Sec. 1, eff. September 1, 2017.

Sec. 437.0076. CERTIFIED FOOD MANAGER. (a) A county or public health district may require each fixed or mobile location retail establishment in which food is prepared on-site for sale to the public that holds a permit issued by the county or public health district to employ a food manager certified under Subchapter G, Chapter 438.

(b) The executive commissioner may require each fixed or mobile location retail establishment in which food is prepared on-site for sale to the public that is required to be operated under a permit under Section 437.0055 to employ a food manager certified under Subchapter G, Chapter 438.

(c) An establishment that handles only prepackaged food and does not prepare or package food may not be required to have a certified food manager under this section.

(d) The executive commissioner by rule may exempt establishments other than the establishments described by Subsection (c) from the requirement imposed under this section if the executive commissioner determines that the application of the requirement to those establishments is not necessary to protect public health and safety.

(e) A county or public health district may exempt establishments other than the establishments exempt under Subsections (c) and (d) from the requirement imposed by the county or public health district under this section if the county or public health district determines that the application of the requirement to those establishments is not necessary to protect public health and safety.

(f) A child-care facility, as that term is defined by Section 42.002, Human Resources Code, is exempt from the requirements imposed under this section.

Added by Acts 2001, 77th Leg., ch. 317, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1123, eff. April 2, 2015.

Sec. 437.008. PERMIT RENEWAL. A county or public health district may require the annual renewal of a permit.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.009. INSPECTIONS; INSPECTION FOLLOWING ADOPTION OF CERTAIN LOCAL ORDERS; PROHIBITED DISCIPLINARY ACTION. (a) Authorized agents or employees of the department, a county, or a public health district may enter the premises of a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment under the department's, county's, or district's jurisdiction during normal operating hours to conduct inspections to determine compliance with:

(1) state law, including a requirement to hold and display written authorization under Section 437.021;

(2) rules adopted under state law; and

(3) orders adopted by the department, county, or district.

(b) A municipality or public health district of which the municipality is a member may not conduct an inspection to determine compliance with an ordinance the municipality adopts that differs from state law or department rules or orders before the 60th day following the date the municipality or district submits a copy of the ordinance to the department for inclusion in the registry established under Section 437.0091.

(c) Notwithstanding any other law, the department, a county, a municipality, or a public health district, including an authorized agent or employee, that conducts an inspection authorized under this section may not take disciplinary action against or otherwise penalize a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment for failing to adhere to easily cleanable surface requirements for wall and ceiling surfaces, decorative items, or attachments in a consumer area, provided the surfaces, items, or attachments are kept clean. For purposes of this subsection, a consumer area includes a dining room, outdoor dining area, or bar seating area in which customers consume food but does not include a table, bar top, or other similar surface where food is regularly prepared or consumed.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1402 (H.B. 3138), Sec. 1, eff. June 15, 2007.

Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1, eff. September 1, 2023.

Sec. 437.0091. MUNICIPAL ORDINANCE REGISTRY. The department shall establish and maintain on the department's Internet website a registry for municipal ordinances submitted under Section 437.009(b) and post in the registry each submitted ordinance not later than the 10th day after the date the department receives the ordinance.

Added by Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1, eff. September 1, 2023.

Sec. 437.0095. DETENTION. The commissioner or an authorized agent may detain an article of food that is located on the premises of a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment and is adulterated or misbranded under Chapter 431.

Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1, 1999.

Sec. 437.010. SUBMISSION OF PLANS AND SUBSEQUENT INSPECTION. (a) Before issuing a permit, a county or public health district may require an applicant to provide plans of the food preparation, storage, and sales areas to determine if the applicant is in compliance with state law and rules adopted under state law governing the applicant.

(b) The county or public health district may deny the permit after initial inspection only if the applicant is not in compliance with the plans approved by the county or district.

(c) If the county or public health district finds on inspection that an applicant is not in compliance with state law and rules adopted under state law, the county or public health district may reinspect the applicant at a later date to determine if the applicant is in compliance.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.011. INSPECTION OF EXISTING ENTITIES ON ADOPTION OF ORDER. (a) When a county or public health district requires a permit, the county or district shall make an initial inspection of the facilities of any existing entity applying for the permit.

(b) An existing entity is entitled to continue to operate pending its initial inspection.

(c) If the county or public health district determines on inspection that an entity does not meet the standards established by state law or rules adopted under state law, the county or district may start revocation proceedings as if the entity had obtained a permit.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.012. COUNTY AND PUBLIC HEALTH DISTRICT FEES. (a) A county or public health district may require the payment of a fee for issuing or renewing a permit.

(b) The fee charged by a county or public health district for issuing or renewing a permit may not exceed the amount necessary to recover the county's or district's cost under Subsection (d).

(c) Fees collected by a county under this chapter shall be deposited to the credit of a special fund of the county. Fees collected by a public health district under this chapter shall be deposited to the credit of a special fund created by the cooperative agreement under which the district operates.

(d) Fees deposited as provided by this section may be spent only for conducting inspections required by this chapter and issuing permits.

(e) This section does not apply to a county or public health district covered by Section 437.0123.

(f) A county or public health district may, by rule or order, adopt a variable scale to determine the fee charged for a permit under this section. In adopting a rule or order under this subsection, the county or public health district may consider:

(1) the size of the food service establishment, retail food store, mobile food unit, or roadside food vendor;

(2) the number of people employed at the food service establishment, retail food store, mobile food unit, or roadside food vendor; and

(3) the gross sales of the food service establishment, retail food store, mobile food unit, or roadside food vendor.

(g) Repealed by Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 4(1), eff. September 1, 2019.

(h) Repealed by Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 4(1), eff. September 1, 2019.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 3, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 156, Sec. 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 72, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 1, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 4(1), eff. September 1, 2019.

Sec. 437.0123. COUNTY AND PUBLIC HEALTH DISTRICT FEES IN CERTAIN POPULOUS COUNTIES. (a) A county that has a population of at least 2.8 million or a public health district at least part of which is in a county that has a population of at least 2.8 million may require the payment of a fee for issuing or renewing a permit or for performing an inspection to enforce this chapter or a rule adopted under this chapter. A county with a population of at least 2.8 million may require a trained food manager to be on duty during each day of operation of a food service establishment. The training required of food managers can be no more extensive than the training offered by an education or training program accredited under Subchapter D, Chapter 438. A food service establishment that handles only prepackaged food and does not prepare or package food may not be required to have a certified food manager under this section.

(b) A county or public health district that requires payment of a fee under Subsection (a) shall set the fee in an amount that does not exceed the amount necessary to recover the annual expenditures by the county or district for:

(1) reviewing and acting on a permit;

(2) amending and renewing a permit;

(3) inspecting a facility as provided by this chapter and rules adopted under this chapter; and

(4) otherwise administering this chapter and rules adopted under this chapter.

(d) Fees collected by a county under this chapter shall be deposited to the credit of a special fund of the county. Fees collected by a public health district under this chapter shall be deposited to the credit of a special fund created by the cooperative agreement under which the district operates.

(e) Fees deposited as provided by this section may be spent only for a purpose described by Subsection (b).

Added by Acts 1997, 75th Leg., ch. 156, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 480, Sec. 1, eff. Aug. 30, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1124, eff. April 2, 2015.

Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 2, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 4(2), eff. September 1, 2019.

Sec. 437.01235. FEES FOR PREMISES WITH ALCOHOLIC BEVERAGE PERMIT OR LICENSE. A county or a municipality with a public health district that charges a fee for issuance or renewal of a permit under Section 437.012 or 437.0123 for a premises located in the county or municipality and permitted or licensed by the Texas Alcoholic Beverage Commission may not also charge a fee under Section 11.38 or 61.36, Alcoholic Beverage Code, for issuance of an alcoholic beverage permit or license for the premises.

Added by Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1, eff. September 1, 2023.

Sec. 437.0124. COUNTY AND PUBLIC HEALTH DISTRICT FEE SCHEDULE. A county or public health district shall establish a fee schedule for any fees collected under this chapter and revise the fee schedule as necessary.

Added by Acts 2019, 86th Leg., R.S., Ch. 458 (H.B. 2755), Sec. 3, eff. September 1, 2019.

Sec. 437.0125. DEPARTMENT FEES. (a) The department shall collect fees for:

(1) filing, renewing, or amending a permit; and

(2) an inspection performed to enforce this chapter or a rule adopted under this chapter.

(b) The department may charge fees every two years.

(c) The executive commissioner by rule shall set the fees for issuing and renewing permits in amounts as prescribed by Section 12.0111 and other fees in amounts that allow the department to recover at least 50 percent of the expenditures by the department for:

(1) reviewing and acting on a permit;

(2) amending a permit;

(3) inspecting a facility as provided by this chapter and rules adopted under this chapter; and

(4) implementing and enforcing this chapter, including a department rule or an order adopted or a license issued by the department.

(d) The department shall spend not less than 50 percent of the permit fees collected to inspect facilities and to enforce and administer this chapter.

(e) All permit fees collected by the department under this chapter shall be deposited in the state treasury to the credit of the food and drug retail fee account.

Added by Acts 1993, 73rd Leg., ch. 617, Sec. 4, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1125, eff. April 2, 2015.

Sec. 437.013. AUDITED STATEMENT. (a) A county or public health district shall file an audited statement with the department on or before January 15 of each year.

(b) The statement must include the receipts of funds collected under this chapter, all expenditures of funds, and fund balances.

(c) A county or public health district that fails to timely file the statement may not require the payment of a fee for issuing or renewing a permit until the statement is filed.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1126, eff. April 2, 2015.

Sec. 437.014. DENIAL, SUSPENSION, OR REVOCATION OF PERMIT. (a) A county or public health district may refuse to issue a permit or may suspend or revoke a permit if the county or district finds that the food service establishment, retail food store, mobile food unit, or roadside food vendor is not in compliance with state law, rules adopted under state law, or orders adopted by the county or district.

(b) A permit may be denied, suspended, or revoked only after notice and an opportunity for a hearing.

(c) A county or public health district that requires a permit to operate a food service establishment, retail food store, mobile food unit, or roadside food vendor shall adopt procedures for denying, suspending, or revoking a permit that afford due process to the applicant or permit holder.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.0145. EMERGENCY SUSPENSION OR CLOSING ORDER. (a) The department shall suspend the license of a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment or order the immediate closing of the food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment if:

(1) the department finds the food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment is operating in violation of the standards prescribed by this chapter; and

(2) the violation creates an immediate threat to the health and safety of the public.

(b) An order suspending a license or closing a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment under this section is immediately effective on the date on which the license holder receives written notice or a later date specified in the order.

(c) An order suspending a license or ordering an immediate closing of a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment is valid for 10 days after the effective date of the order.

Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1, 1999.

Sec. 437.015. INJUNCTION. A city attorney, county attorney, or district attorney may sue in district court to enjoin a food service establishment, retail food store, mobile food unit, or roadside food vendor from operating without a permit if a permit is required.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 437.0155. DEPARTMENT INJUNCTION. (a) If it appears that a person has violated, is violating, or threatens to violate this chapter or a rule adopted under this chapter, the department may institute a civil suit in a district court for injunctive relief to restrain the person from continuing the violation or threat of violation.

(b) The department may petition a district court for a temporary restraining order to immediately halt a violation or other action creating an emergency condition if it appears that:

(1) a person is violating or threatening to violate this chapter or a rule or order adopted under this chapter; and

(2) the violation or threatened violation creates an immediate threat to the health and safety of the public.

(c) On the department's request, the attorney general shall institute a suit in the name of the state for injunctive relief.

(d) In an action for injunctive relief under this section, the court may grant any prohibitory or mandatory injunction warranted by the facts, including temporary restraining orders, temporary injunctions, and permanent injunctions. The court shall grant injunctive relief without a bond or other undertaking by the department.

(e) 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.

Added by Acts 1999, 76th Leg., ch. 448, Sec. 1, eff. Sept. 1, 1999.

Sec. 437.016. CRIMINAL PENALTY: VIOLATION OF COUNTY AND PUBLIC HEALTH DISTRICT PERMIT REQUIREMENTS. (a) A person commits an offense if the person operates a food service establishment, retail food store, mobile food unit, or roadside food vendor without a permit required by the county or public health district in which the entity is operating.

(b) An offense under this section is a Class C misdemeanor.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 617, Sec. 5, eff. Sept. 1, 1993.

Sec. 437.0165. CRIMINAL PENALTY: VIOLATION OF DEPARTMENT PERMIT REQUIREMENT. (a) A person commits an offense if the person operates a food service establishment, retail food store, mobile food unit, or temporary food service establishment without a permit that is required by the department under Section 437.0055.

(b) An offense under this section is a Class A misdemeanor.

Added by Acts 1993, 73rd Leg., ch. 617, Sec. 6, eff. Jan. 1, 1994.

Sec. 437.017. CONFLICT WITH ALCOHOLIC BEVERAGE CODE. The Alcoholic Beverage Code and rules adopted by the Texas Alcoholic Beverage Commission control to the extent of a conflict between this chapter or an order adopted under this chapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1127, eff. April 2, 2015.

Sec. 437.018. ADMINISTRATIVE PENALTY. (a) The department may impose an administrative penalty against a person who holds a permit or who is regulated under this chapter and who violates this chapter or a rule or order adopted under this chapter.

(b) The penalty for a violation may be in an amount not to exceed $10,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the enforcement costs relating to the violation;

(3) the history of previous violations;

(4) the amount necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

(d) If the department determines that a violation has occurred, the department shall issue an order that states the facts on which the determination is based, including an assessment of the penalty.

(e) Within 14 days after the date the order is issued, the department shall give written notice of the order to the person. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(f) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the department or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(g) If the person accepts the determination and recommended penalty, the department by order shall impose the recommended penalty.

(h) If the person requests a hearing or fails to respond timely to the notice, the department shall refer the matter to the State Office of Administrative Hearings and an administrative law judge of that office shall hold the hearing. The department shall give written notice of the hearing to the person. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the department a written proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the department by order may find that a violation has occurred and impose a penalty or may find that no violation occurred.

(i) The notice of the department's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order.

(j) Within 30 days after the date the department's order is final as provided by Subchapter F, Chapter 2001, Government Code, the person shall:

(1) pay the amount of the penalty;

(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or

(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(k) Within the 30-day period, a person who acts under Subsection (j)(3) of this section may:

(1) stay enforcement of the penalty by:

(A) paying the amount of the penalty to the court for placement in an escrow account; or

(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the department's order is final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and

(B) giving a copy of the affidavit to the department by certified mail.

(l) The department on receipt of a copy of an affidavit under Subsection (k)(2) may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.

(m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.

(n) Judicial review of the order of the department:

(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and

(2) is under the substantial evidence rule.

(o) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.

(p) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.

(q) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund.

(r) All proceedings under this section are subject to Chapter 2001, Government Code.

Added by Acts 1993, 73rd Leg., ch. 617, Sec. 6, eff. Jan. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), (53), (59), eff. Sept. 1, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1128, eff. April 2, 2015.

Sec. 437.0185. ADMINISTRATIVE PENALTY BY PUBLIC HEALTH DISTRICT OR COUNTY. (a) The director of a public health district or the commissioners court of a county may impose an administrative penalty on a person the district or county requires to hold a permit under Section 437.003 or 437.004 if the person violates this chapter or a rule or order adopted under this chapter.

(b) The amount of the penalty may not exceed $500 per day, and each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. The amount shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation;

(4) efforts to correct the violation; and

(5) any other matter that justice may require.

(c) The enforcement of the penalty may be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court. A person who cannot afford to pay the penalty may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs.

(d) Not later than the 20th day after the date the person receives notice of the penalty, the person in writing may:

(1) accept the determination and pay the recommended penalty of the director or commissioners court; or

(2) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(e) The justice of the peace for the justice precinct in which the retail food store or food establishment is located or the mobile food establishment or roadside food vendor is based shall hold a hearing requested under Subsection (d).

(f) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

(g) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

(h) If the person paid the penalty to the clerk of the court and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount be remitted to the person.

Added by Acts 2007, 80th Leg., R.S., Ch. 1202 (H.B. 1585), Sec. 1, eff. September 1, 2007.

Sec. 437.0186. ASSESSMENT OF ADMINISTRATIVE PENALTY. An administrative penalty may be imposed for a violation of this chapter or a rule or order under this chapter by the state under Section 437.018 or by the director of a public health district or commissioners court of a county under Section 437.0185, but not both.

Added by Acts 2007, 80th Leg., R.S., Ch. 1202 (H.B. 1585), Sec. 1, eff. September 1, 2007.

Sec. 437.019. EXEMPTION FOR CERTAIN BED AND BREAKFAST ESTABLISHMENTS. (a) Except as provided by Subsection (c), a bed and breakfast establishment with seven or fewer rooms for rent that serves only breakfast to its overnight guests is not a food service establishment for purposes of this chapter. An owner or manager of a bed and breakfast establishment covered by this subsection shall successfully complete a food manager's certification course accredited by the department.

(b) Except as provided by Subsection (c), a bed and breakfast establishment that has more than seven rooms for rent, or that provides food service other than breakfast to its overnight guests, is a food service establishment for purposes of this chapter but may not be required to meet all criteria applicable to a larger food service establishment such as a restaurant. The executive commissioner, commissioners court, governing body, or administrative board, as applicable, shall adopt minimum standards for a bed and breakfast establishment covered by this subsection.

(c) A bed and breakfast establishment that provides food service other than to overnight guests is a food service establishment for purposes of this chapter and is subject to all rules and regulations applicable to a food service establishment.

Added by Acts 1995, 74th Leg., ch. 689, Sec. 1, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1129, eff. April 2, 2015.

Sec. 437.0191. EXEMPTION FOR COTTAGE FOOD PRODUCTION OPERATIONS. (a) A cottage food production operation is not a food service establishment for purposes of this chapter.

(b) The exemption provided by Subsection (a) does not affect the application of Sections 431.045, 431.0495, and 431.247 authorizing the department or other local health authority to act to prevent an immediate and serious threat to human life or health.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 6, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 2, eff. September 1, 2013.

Sec. 437.0192. REGULATION OF COTTAGE FOOD PRODUCTION OPERATIONS BY LOCAL GOVERNMENT AUTHORITIES PROHIBITED; COMPLAINTS. (a) A local government authority, including a local health department, may not regulate the production of food at a cottage food production operation.

(b) Each local health department and the department shall maintain a record of a complaint made by a person against a cottage food production operation.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 6, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 3, eff. September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 4, eff. September 1, 2013.

Sec. 437.0193. PACKAGING AND LABELING REQUIREMENTS FOR COTTAGE FOOD PRODUCTION OPERATIONS. (a) Food described by Section 437.001(2-b)(A) sold by a cottage food production operation must be packaged in a manner that prevents product contamination, except that a food item is not required to be packaged if it is too large or bulky for conventional packaging.

(b) The executive commissioner shall adopt rules requiring a cottage food production operation to label all of the foods described in Section 437.001(2-b)(A) that the operation sells to consumers. The label must include:

(1) the name and address of the cottage food production operation; and

(2) a statement that the food is not inspected by the department or a local health department.

(c) For foods not required to be packaged under Subsection (a), the information required to be included on the label under Subsection (b) must be provided to the consumer on an invoice or receipt.

(d) A cottage food production operation that sells frozen raw and uncut fruit or vegetables must include on the label of the frozen fruit or vegetables or on an invoice or receipt provided with the frozen fruit or vegetables when sold the following statement in at least 12-point font: "SAFE HANDLING INSTRUCTIONS: To prevent illness from bacteria, keep this food frozen until preparing for consumption."

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 6, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 5, eff. September 1, 2013.

Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 2, eff. September 1, 2019.

Sec. 437.0194. CERTAIN SALES BY COTTAGE FOOD PRODUCTION OPERATIONS PROHIBITED OR RESTRICTED. (a) A cottage food production operation may not sell any of the foods described in Section 437.001(2-b)(A) at wholesale.

(b) A cottage food production operation may sell a food described by Section 437.001(2-b)(A) in this state through the Internet or by mail order only if:

(1) the consumer purchases the food through the Internet or by mail order from the operation and the operator personally delivers the food to the consumer; and

(2) subject to Subsection (c), before the operator accepts payment for the food, the operator provides all labeling information required by Section 437.0193(d) and department rules to the consumer by:

(A) posting a legible statement on the operation's Internet website;

(B) publishing the information in a catalog; or

(c) The operator of a cottage food production operation that sells a food described by Section 437.001(2-b)(A) in this state in the manner described by Subsection (b):

(1) is not required to include the address of the operation in the labeling information required under Subsection (b)(2) before the operator accepts payment for the food; and

(2) shall provide the address of the operation on the label of the food in the manner required by Section 437.0193(b) after the operator accepts payment for the food.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 6, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 5, eff. September 1, 2013.

Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 3, eff. September 1, 2019.

Sec. 437.0195. PRODUCTION OF COTTAGE FOOD PRODUCTS. (a) An individual who operates a cottage food production operation must have successfully completed a basic food safety education or training program for food handlers accredited under Subchapter D, Chapter 438.

(b) An individual may not process, prepare, package, or handle cottage food products unless the individual:

(1) meets the requirements of Subsection (a);

(2) is directly supervised by an individual described by Subsection (a); or

(3) is a member of the household in which the cottage food products are produced.

Added by Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 6, eff. September 1, 2013.

Sec. 437.01951. REQUIREMENTS FOR SALE OF CERTAIN COTTAGE FOODS. (a) A cottage food production operation that sells to consumers pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods shall:

(1) use a recipe that:

(A) is from a source approved by the department under Subsection (d);

(B) has been tested by an appropriately certified laboratory that confirmed the finished fruit or vegetable, product, or good has an equilibrium pH value of 4.6 or less; or

(2) if the operation does not use a recipe described by Subdivision (1), test each batch of the recipe with a calibrated pH meter to confirm the finished fruit or vegetable, product, or good has an equilibrium pH value of 4.6 or less.

(b) A cottage food production operation may not sell to consumers pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods before the operator complies with Subsection (a).

(c) For each batch of pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods, a cottage food production operation must:

(1) label the batch with a unique number; and

(2) for a period of at least 12 months, keep a record that includes:

(A) the batch number;

(B) the recipe used by the producer;

(D) the date the batch was prepared.

(d) The department shall:

(1) approve sources for recipes that a cottage food production operation may use to produce pickled fruit or vegetables, fermented vegetable products, or plant-based acidified canned goods; and

(2) semiannually post on the department's Internet website a list of the approved sources for recipes, appropriately certified laboratories, and qualified process authorities.

(e) The department shall develop and implement a process by which an individual may request that the department approve an additional source for recipes under Subsection (d). The process must allow an individual to submit with the individual's request documentation supporting the request.

(f) A source for recipes approved by the department under Subsection (d) must be scientifically validated and may be from a government entity, academic institution, state extension service, or other qualified source with:

(1) expert knowledge of processing requirements for pickled fruit or vegetables, fermented vegetable products, or acidified canned goods; and

(2) adequate facilities for scientifically validating recipes for pickled fruit or vegetables, fermented vegetable products, or acidified canned goods.

(g) This section does not apply to pickled cucumbers.

(h) For purposes of this section, "process authority" means a person who has expert knowledge acquired through appropriate training and experience in the pickling, fermenting, or acidification and processing of pickled, fermented, or acidified foods.

Added by Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 4, eff. September 1, 2019.

Sec. 437.01952. REQUIREMENTS FOR SALE OF FROZEN FRUIT OR VEGETABLES. A cottage food production operation that sells to consumers frozen raw and uncut fruit or vegetables shall:

(1) store and deliver the frozen fruit or vegetables at an air temperature of not more than 32 degrees Fahrenheit; and

(2) label the fruit or vegetables in accordance with Section 437.0193(d).

Added by Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 4, eff. September 1, 2019.

Sec. 437.0196. TIME AND TEMPERATURE CONTROL FOR SAFETY FOOD; PROHIBITION FOR COTTAGE FOOD PRODUCTION OPERATIONS; EXCEPTION. (a) In this section, "time and temperature control for safety food" means a food that requires time and temperature control for safety to limit pathogen growth or toxin production. The term includes a food that must be held under proper temperature controls, such as refrigeration, to prevent the growth of bacteria that may cause human illness. A time and temperature control for safety food may include a food that contains protein and moisture and is neutral or slightly acidic, such as meat, poultry, fish, and shellfish products, pasteurized and unpasteurized milk and dairy products, raw seed sprouts, baked goods that require refrigeration, including cream or custard pies or cakes, and ice products. The term does not include a food that uses time and temperature control for safety food as ingredients if the final food product does not require time or temperature control for safety to limit pathogen growth or toxin production.

(b) Except as otherwise provided by this chapter, a cottage food production operation may not sell to consumers time and temperature control for safety foods.

Added by Acts 2013, 83rd Leg., R.S., Ch. 653 (H.B. 970), Sec. 6, eff. September 1, 2013.

Amended by:

Acts 2019, 86th Leg., R.S., Ch. 590 (S.B. 572), Sec. 5, eff. September 1, 2019.

Sec. 437.0197. EXEMPTION FOR SMALL HONEY PRODUCTION OPERATION. A small honey production operation is not a food service establishment for purposes of this chapter.

Added by Acts 2015, 84th Leg., R.S., Ch. 265 (S.B. 1766), Sec. 2, eff. September 1, 2015.

Sec. 437.0198. REGULATION OF SMALL HONEY PRODUCTION OPERATION PROHIBITED. A local government authority, including a local health department, may not regulate the production of honey or honeycomb at a small honey production operation.

Added by Acts 2015, 84th Leg., R.S., Ch. 265 (S.B. 1766), Sec. 2, eff. September 1, 2015.

Sec. 437.0199. LABELING REQUIREMENTS FOR SMALL HONEY PRODUCTION OPERATION. Honey or honeycomb sold or distributed by a small honey production operation must be labeled in accordance with Subchapter E, Chapter 131, Agriculture Code. The label must include:

(1) the net weight of the honey expressed in both the avoirdupois and metric systems;

(2) the beekeeper's name and address; and

(3) the statement "Bottled or packaged in a facility not inspected by the Texas Department of State Health Services."

Added by Acts 2015, 84th Leg., R.S., Ch. 265 (S.B. 1766), Sec. 2, eff. September 1, 2015.

Sec. 437.020. REGULATION OF FOOD SAMPLES AT FARMS AND FARMERS' MARKETS. (a) In this section:

(1) "Farmers' market" means a designated location used for a recurring event at which a majority of the vendors are farmers or other food producers who sell food directly to consumers.

(2) "Food" means an agricultural, apicultural, horticultural, silvicultural, viticultural, or vegetable product for human consumption, in either its natural or processed state, that has been produced or processed or otherwise has had value added to the product in this state. The term includes:

(A) fish or other aquatic species;

(B) livestock, a livestock product, or a livestock by-product;

(D) poultry, a poultry product, or a poultry by-product;

(E) wildlife processed for food or by-products;

(F) a product made from a product described by this subdivision by a farmer or other producer, including a cottage food production operation, who grew or processed the product; or

(G) produce.

(3) "Food producer" means a person who grew, raised, processed, prepared, manufactured, or otherwise added value to the food product the person is selling. The term does not include a person who only packaged or repackaged a food product.

(b) Except as provided by this section and Sections 437.0065, 437.0201, 437.0202, and 437.0203:

(1) this chapter does not regulate the provision of samples of food or the sale of food to consumers at a farm or farmers' market; and

(2) a rule adopted under state law may not regulate the provision of samples of food or the sale of food to consumers at a farm or farmers' market.

(b-1) The department or a local government authority, including a local health department, may not require a person to obtain a permit under this chapter to provide samples of food at a farm or farmers' market under this section.

(b-2) A local government authority, including a local health department, may not regulate the provision of samples of food at a farm or farmers' market except as provided by this chapter.

(b-3) The department or a local government authority, including a local health department, may:

(1) perform an inspection to enforce the requirements of this section for preparing and distributing samples of food at a farm or farmers' market; and

(2) require a person to obtain a permit under this chapter to offer for sale or distribution to consumers food cooked at a farm or farmers' market.

(c) Samples of food may be prepared and distributed at a farm or farmers' market if the following sanitary conditions exist:

(1) samples must be distributed in a sanitary manner;

(2) a person preparing produce samples on-site must:

(A) wear clean, disposable plastic gloves when preparing samples; or

(B) observe proper hand washing techniques immediately before preparing samples;

(3) produce intended for sampling must be washed in potable water to remove any soil or other visible material;

(4) potable water must be available for washing;

(5) except as provided by Section 437.0202(b), potentially hazardous food, as determined by rule of the department, must be maintained at or below 41 degrees Fahrenheit or disposed of within two hours after cutting or preparing; and

(6) utensils and cutting surfaces used for cutting samples must be smooth, nonabsorbent, and easily cleaned or disposed of.

(d) A person who sells or provides a sample of meat or poultry or food containing meat or poultry must comply with Chapter 433.

(e) This section does not authorize the sale of or provision of samples of raw milk or raw milk products at a farmers' market.

(f) A cottage food production operation may only provide samples of food described by Section 437.001(2-b)(A) produced by the operation.

(g) This section does not apply to a person who:

(1) provides samples of food at a farm or farmers' market; and

(2) does not sell food directly to consumers at the farm or farmers' market.

Added by Acts 2005, 79th Leg., Ch. 191 (H.B. 894), Sec. 1, eff. May 27, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1275 (H.B. 1382), Sec. 2, eff. September 1, 2013.

Acts 2019, 86th Leg., R.S., Ch. 339 (S.B. 932), Sec. 2, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 373 (H.B. 1694), Sec. 1, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 373 (H.B. 1694), Sec. 2, eff. September 1, 2019.

Acts 2021, 87th Leg., R.S., Ch. 577 (S.B. 617), Sec. 2, eff. June 14, 2021.

Sec. 437.0201. REGULATION OF FOOD AT FARMERS' MARKETS UNDER TEMPORARY FOOD ESTABLISHMENT PERMITS. (a) In this section, "farmers' market" and "food" have the meanings assigned by Section 437.020.

(b) The department or a local health department may issue a temporary food establishment permit to a person who sells food at a farmers' market, subject to Section 437.0065.

(d) This section does not apply to a farmers' market in a county:

(1) that has a population of less than 50,000; and

(2) over which no local health department has jurisdiction.

(e) The executive commissioner, a state enforcement agency, or a local government authority, including a local health department, may not adopt a rule requiring a farmers' market to pay a permit fee for:

(1) conducting a cooking demonstration if the demonstration is conducted for a bona fide educational purpose; or

(2) providing samples of food.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 7, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1275 (H.B. 1382), Sec. 3, eff. September 1, 2013.

Acts 2019, 86th Leg., R.S., Ch. 339 (S.B. 932), Sec. 3, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 339 (S.B. 932), Sec. 4, eff. September 1, 2019.

Acts 2019, 86th Leg., R.S., Ch. 373 (H.B. 1694), Sec. 3, eff. September 1, 2019.

Sec. 437.0202. TEMPERATURE REQUIREMENTS FOR FOOD AT FARMERS' MARKETS. (a) In this section, "farmers' market" and "food" have the meanings assigned by Section 437.020.

(b) The executive commissioner by rule may adopt temperature requirements for food sold at, prepared on-site at, or transported to or from a farmers' market under Section 437.020, 437.0201, or 437.0203. Food prepared on-site at a farmers' market may be sold or distributed at the farmers' market only if the food is prepared in compliance with the temperature requirements adopted under this section.

(c) Except as provided by Subsection (d), the executive commissioner or a state or local enforcement agency may not mandate a specific method for complying with the temperature control requirements adopted under Subsection (b).

(d) The municipality in which a municipally owned farmers' market is located may adopt rules specifying the method or methods that must be used to comply with the temperature control requirements adopted under Subsection (b).

(e) This section does not apply to a farmers' market in a county:

(1) that has a population of less than 50,000; and

(2) over which no local health department has jurisdiction.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1317 (S.B. 81), Sec. 7, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1275 (H.B. 1382), Sec. 4, eff. September 1, 2013.

Sec. 437.0203. REGULATION OF COOKING DEMONSTRATIONS AT FARMERS' MARKETS. (a) In this section, "farmers' market" and "food" have the meanings assigned by Section 437.020.

(b) Except as provided by this section and Sections 437.020, 437.0201, and 437.0202:

(1) this chapter does not regulate cooking demonstrations at a farmers' market; and

(2) a rule adopted under state law may not regulate cooking demonstrations at a farmers' market.

(1) regardless of whether the demonstrator provides a sample of food to consumers, the farmers' market that hosts the demonstration:

(A) has an establishment operator with a valid certification under Subchapter D, Chapter 438, supervising the demonstration; and

(B) complies with Sections 437.020 and 437.0202, the requirements of a temporary food establishment under this chapter, and rules adopted under this chapter; and

(2) when the demonstrator provides a sample of food to consumers:

(A) the demonstrator provides a sample only and not a full serving; and

(B) samples of food prepared during a demonstration are disposed of not later than two hours after the beginning of the demonstration.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1275 (H.B. 1382), Sec. 5, eff. September 1, 2013.

Sec. 437.021. AUTHORITY TO OPERATE ON CERTAIN PROPERTY. A person operating a mobile food unit, roadside food vendor, or temporary food service establishment in a county with a population of more than 3.3 million shall acquire written authorization from the owner of the property on which the unit, vendor, or establishment is operating. The written authorization must:

(1) be notarized;

(2) provide that the operator has the property owner's permission to operate the unit, vendor, or establishment on the property; and

(3) be prominently displayed in the unit, vendor, or establishment in plain view of the public at all times.

Added by Acts 2007, 80th Leg., R.S., Ch. 1402 (H.B. 3138), Sec. 2, eff. June 15, 2007.

Sec. 437.023. SERVICE ANIMALS. (a) A food service establishment, retail food store, or other entity regulated under this chapter may not deny a service animal admittance into an area of the establishment or store or of the physical space occupied by the entity that is open to customers and is not used to prepare food if:

(1) the service animal is accompanied and controlled by a person with a disability; or

(2) the service animal is in training and is accompanied and controlled by an approved trainer.

(b) If a service animal is accompanied by a person whose disability is not readily apparent, for purposes of admittance to a food service establishment, retail food store, or physical space occupied by another entity regulated under this chapter, a staff member of the establishment, store, or entity may only inquire about:

(1) whether the service animal is required because the person has a disability; and

(2) what type of work the service animal is trained to perform.

(c) In this section, "service animal" means a canine that is specially trained or equipped to help a person with a disability. An animal that provides only comfort or emotional support to a person is not a service animal under this section. The tasks that a service animal may perform in order to help a person with a disability must be directly related to the person's disability and may include:

(1) guiding a person who has a visual impairment;

(2) alerting a person who has a hearing impairment or who is deaf;

(3) pulling a wheelchair;

(4) alerting and protecting a person who has a seizure disorder;

(5) reminding a person who has a mental illness to take prescribed medication; and

(6) calming a person who has post-traumatic stress disorder.

Added by Acts 2013, 83rd Leg., R.S., Ch. 838 (H.B. 489), Sec. 1, eff. January 1, 2014.

Sec. 437.025. REQUIREMENTS FOR DOGS IN OUTDOOR DINING AREAS; MUNICIPAL PREEMPTION. (a) A food service establishment may permit a customer to be accompanied by a dog in an outdoor dining area if:

(1) the establishment posts a sign in a conspicuous location in the area stating that dogs are permitted;

(2) the customer and dog access the area directly from the exterior of the establishment;

(3) the dog does not enter the interior of the establishment;

(4) the customer keeps the dog on a leash and controls the dog;

(5) the customer does not allow the dog on a seat, table, countertop, or similar surface; and

(6) in the area, the establishment does not:

(A) prepare food; or

(B) permit open food other than food that is being served to a customer.

(b) A municipality may not adopt or enforce an ordinance, rule, or similar measure that imposes a requirement on a food service establishment for a dog in an outdoor dining area that is more stringent than the requirements described by Subsection (a).

Added by Acts 2019, 86th Leg., R.S., Ch. 423 (S.B. 476), Sec. 1, eff. September 1, 2019.

Sec. 437.026. SALE OF CERTAIN FOOD BY FOOD SERVICE ESTABLISHMENT. (a) Except as provided by Subsection (b), a food service establishment that holds a permit under this chapter may sell directly to an individual consumer food, other than prepared food, that:

(1) is labeled, which may include a handwritten label, with any information required by the department's food service establishment rules;

(2) for a meat product or poultry product, is obtained from a source that is appropriately inspected and bears an official mark of inspection from the department or the United States Department of Agriculture; and

(3) for food requiring refrigeration other than whole, uncut produce, is:

(A) maintained at or below 41 degrees Fahrenheit until the establishment sells or donates the food; and

(B) protected from contamination.

(b) A food service establishment described by Subsection (a) may not sell directly to an individual consumer food that is:

(1) in a package exhibiting damage; or

(2) distressed because the food:

(A) has been subjected to fire, flooding, excessive heat, smoke, radiation, or another environmental contamination;

(B) is not held at the correct temperature for the food type; or

(c) A municipality or public health district may not require a food service establishment that sells food directly to an individual consumer under this section to obtain a food manufacturer license or permit if the establishment:

(1) complies with this section; and

(2) is not required to hold a food manufacturer license or permit under other state law.

Added by Acts 2021, 87th Leg., R.S., Ch. 242 (H.B. 1276), Sec. 1, eff. June 4, 2021.

Text of section as added by Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1

For text of section as added by Acts 2023, 88th Leg., R.S., Ch. 1031 (S.B. 812), Sec. 2, see other Sec. 437.027.

Sec. 437.027. PROHIBITED RESTRICTIONS ON PACKAGING, UTENSILS, AND STRAWS. Notwithstanding any other law, the department, a county, a municipality, or a public health district may not restrict the type or quantity of packaging, utensils, or straws a food service establishment, retail food store, mobile food unit, roadside food vendor, or temporary food service establishment provides to customers.

Added by Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1, eff. September 1, 2023.

Text of section as added by Acts 2023, 88th Leg., R.S., Ch. 1031 (S.B. 812), Sec. 2

For text of section as added by Acts 2023, 88th Leg., R.S., Ch. 245 (S.B. 577), Sec. 1, see other Sec. 437.027.

Sec. 437.027. FOOD ALLERGEN AWARENESS POSTER. (a) A food service establishment shall display a poster relating to food allergen awareness in an area of the establishment regularly accessible to the establishment's food service employees. The department shall:

(1) collaborate with individuals with expertise and knowledge regarding food allergies to determine the form and content of the poster;

(2) post a sample poster on the department's Internet website; and

(3) update the poster as necessary to ensure the poster contains current information about food allergens and remains consistent with standards promulgated by the United States Food and Drug Administration.

(b) The poster must include information regarding:

(1) the risk of an allergic reaction to a food allergen;

(2) symptoms of an allergic reaction;

(3) the major food allergens, as determined by federal law and regulations of the United States Food and Drug Administration;

(4) the procedures for preventing an allergic reaction; and

(5) appropriate responses for assisting an individual who is having an allergic reaction.

(d) This section does not create a private cause of action or change any common law or statutory duty.

(e) Notwithstanding any other law, a county, municipality, or public health district may not adopt or enforce an order, ordinance, rule, or other measure related to food allergens that is inconsistent with or exceeds the requirements of this section or Chapter 438.

Added by Acts 2023, 88th Leg., R.S., Ch. 1031 (S.B. 812), Sec. 2, eff. September 1, 2023.