By:  Hunter, Todd                                      H.B. No. 890
       73R125 MLR-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the agency responsible for regulation of shellfish
    1-3  harvesting in polluted areas.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subchapter B, Chapter 436, Health and Safety
    1-6  Code, is transferred to Subtitle A, Title 6, Agriculture Code,
    1-7  designated as Chapter 135, and amended to read as follows:
    1-8           CHAPTER 135.  REGULATION OF SHELLFISH HARVESTING
    1-9                           IN POLLUTED AREAS
   1-10     SUBCHAPTER A.  GENERAL PROVISIONS <SUBCHAPTER B.  SHELLFISH>
   1-11        Sec. 135.001 <436.011>.  Definitions.  In this chapter
   1-12  <subchapter>:
   1-13              (1)  <"Board" means the Texas Board of Health.>
   1-14              <(2)>  "Commissioner" means the commissioner of
   1-15  agriculture <health>.
   1-16              (2) <(3)>  "Department" means the <Texas> Department of
   1-17  Agriculture <Health>.
   1-18              (3) <(4)>  "Polluted area" means an area that is
   1-19  continuously or intermittently subject to the discharge of sewage
   1-20  or other wastes, or to the presence of coliform organisms in
   1-21  quantities likely to indicate that shellfish taken from the area
   1-22  are unfit for human consumption.
   1-23              (4) <(5)>  "Shellfish" means oysters, clams, and
   1-24  mussels, either fresh or frozen and either shucked or in the shell.
    2-1        Sec. 135.002 <436.012>.  Declaration of Polluted Areas.  (a)
    2-2  The commissioner by order shall declare to be polluted any area
    2-3  within the jurisdiction of the state that the commissioner finds is
    2-4  a polluted area.
    2-5        (b)  The commissioner shall close to the taking of shellfish
    2-6  for the period the commissioner considers advisable any water to
    2-7  which shellfish from a polluted area may have been transferred.
    2-8        (c)  The commissioner shall modify or revoke an order in
    2-9  accordance with the results of sanitary and bacteriological surveys
   2-10  conducted by the department.  The commissioner shall file the order
   2-11  in the department's office and shall furnish without charge a copy
   2-12  of the order describing polluted areas to any interested person.
   2-13        (d)  The commissioner shall conspicuously outline polluted
   2-14  areas on maps and shall furnish the maps without charge to any
   2-15  interested person.  The failure of a person to avail himself of
   2-16  that information does not relieve that person from liability under
   2-17  this chapter <subchapter>.
   2-18        Sec. 135.003 <436.013>.  RULES.  (a)  The commissioner
   2-19  <board> shall adopt rules establishing specifications for shellfish
   2-20  plant facilities and for the harvesting, transporting, storing,
   2-21  handling, and packaging of shellfish.
   2-22        (b)  The commissioner <board> may adopt rules necessary for
   2-23  the efficient enforcement of this chapter <subchapter>.
   2-24        (c)  A rule adopted under this chapter <subchapter> takes
   2-25  effect three months after the date on which the rule is adopted.
   2-26        (d)  The commissioner <board> shall furnish without charge
   2-27  printed copies of the rules to any interested person on request.
    3-1        Sec. 135.004 <436.014>.  Compliance With Rules.  (a)  The
    3-2  commissioner shall allow a shellfish plant a reasonable time to
    3-3  comply with a rule after its adoption, but that time may not exceed
    3-4  six months after the date on which the rule is adopted unless an
    3-5  extension is granted.
    3-6        (b)  The commissioner may grant an extension to a plant on a
    3-7  showing that more time is reasonably required for compliance.
    3-8        Sec. 135.005 <436.015>.  Inspection of Shellfish Plant.  (a)
    3-9  The commissioner or the commissioner's agent shall inspect each
   3-10  shellfish plant and the practices followed in handling and
   3-11  packaging shellfish.  The commissioner shall issue a certificate
   3-12  attesting to compliance with the rules adopted under this chapter
   3-13  <subchapter> to each operator who the commissioner finds is in
   3-14  compliance with the rules.
   3-15        (b)  The commissioner or the commissioner's agent may
   3-16  reinspect a plant at any time and shall revoke the operator's
   3-17  certificate if:
   3-18              (1)  the operator refuses to allow an inspection of the
   3-19  plant or free access to the plant at a reasonable hour; or
   3-20              (2)  the commissioner finds that the plant is not being
   3-21  operated in compliance with the rules adopted under this chapter
   3-22  <subchapter>.
   3-23        Sec. 135.006 <436.016>.  Performance Bond.  (a)  The
   3-24  commissioner may require a person holding a shellfish plant
   3-25  certificate to post and maintain with the commissioner a good and
   3-26  sufficient bond with a corporate surety or two personal sureties
   3-27  approved by the commissioner, or a cash deposit in a form
    4-1  acceptable to the commissioner, if reasonably necessary to ensure
    4-2  that the certificate holder will comply with the requirements
    4-3  imposed under this chapter <subchapter>.
    4-4        (b)  If the certificate holder fails to comply with the
    4-5  requirements of this chapter <subchapter>, the certificate holder
    4-6  or the certificate holder's surety forfeits to the commissioner an
    4-7  amount not to exceed $1,000.
    4-8        Sec. 135.007 <436.017>.  Purification of Shellfish.  (a)  The
    4-9  commissioner may allow purification by artificial means of
   4-10  shellfish taken from polluted areas, subject to the rules adopted
   4-11  by the commissioner <board> and under the supervision the
   4-12  commissioner considers necessary to protect public health.
   4-13        (b)  A shellfish plant operator may employ off-duty peace
   4-14  officers to monitor the taking of shellfish from polluted areas as
   4-15  provided by the rules adopted to implement Subsection (a).  In this
   4-16  subsection, "peace officer" includes those persons listed in
   4-17  Article 2.12, Code of Criminal Procedure.
   4-18           (Sections 135.008-135.010 reserved for expansion
   4-19               SUBCHAPTER B.  PROHIBITIONS AND PENALTIES
   4-20        Sec. 135.011 <436.018>.  Prohibition Against Taking Shellfish
   4-21  From Polluted Area.  A person may not take, sell, or offer or hold
   4-22  for sale any shellfish from a polluted area without complying with
   4-23  the rules adopted by the commissioner <board> to ensure that the
   4-24  shellfish have been purified.
   4-25        Sec. 135.012 <436.019>.  Transplanting Shellfish.  (a)
   4-26  Section 135.011 <436.018> does not prohibit the transplanting of
   4-27  shellfish from polluted water if permission for the transplanting
    5-1  is first obtained from the Parks and Wildlife Department and the
    5-2  transplanting is supervised by that department.
    5-3        (b)  The Parks and Wildlife Department shall furnish a copy
    5-4  of the transplant permit to the commissioner before transplanting
    5-5  activities begin.
    5-6        Sec. 135.013 <436.020>.  Prohibition Against Unlawfully
    5-7  Operating Shellfish Plant.  A person may not operate a shellfish
    5-8  plant for the handling and packaging of shellfish without a
    5-9  certificate issued by the commissioner for each plant or place of
   5-10  business.
   5-11        Sec. 135.014 <436.021>.  Prohibition Against Sale of
   5-12  Improperly Handled Shellfish.  A person may not sell or offer or
   5-13  hold for sale any shell stock or shucked shellfish that have not
   5-14  been handled and packaged in accordance with the specifications
   5-15  adopted by the commissioner <board>.
   5-16        Sec. 135.015 <436.022>.  Prohibition Against Sale of
   5-17  Shellfish From Improper Facilities.  A person may not sell or offer
   5-18  or hold for sale any shellfish from facilities for the packaging
   5-19  and handling of shellfish that do not comply with the
   5-20  specifications adopted by the commissioner <board>.
   5-21        Sec. 135.016 <436.023>.  Prohibition Against Sale of
   5-22  Shellfish Without Certificate Number.  (a)  A person may not sell
   5-23  or offer for sale any shellfish that are not in a container bearing
   5-24  a valid certificate number from a state or nation whose shellfish
   5-25  certification program conforms to the current Manual of Recommended
   5-26  Practice for Sanitary Control of the Shellfish Industry issued by
   5-27  the Food and Drug Administration.
    6-1        (b)  This section does not apply to the sale for on-premise
    6-2  consumption of shellfish removed from a certified container.
    6-3        Sec. 135.017 <436.024>.  Criminal Penalty.  (a)  A person
    6-4  commits an offense if the person violates this chapter <subchapter>
    6-5  or a rule adopted under this chapter <subchapter>.  Each day of a
    6-6  continuing violation constitutes a separate offense.
    6-7        (b)  An offense under Subsection (a) is a misdemeanor
    6-8  punishable by a fine of not less than $200 or more than $1,000,
    6-9  confinement in jail for not more than 180 days, or both.
   6-10        (c)  If it is shown at the trial of a defendant for a
   6-11  violation of Section 135.011 <436.018> that the defendant has been
   6-12  convicted once within five years before the trial date of a
   6-13  violation of Section 135.011 <436.018>, the defendant is guilty of
   6-14  a misdemeanor punishable by a fine of not less than $500 or more
   6-15  than $2,000, confinement in jail for a term not to exceed one year,
   6-16  or both.
   6-17        (d)  If is shown at the trial of a defendant for a violation
   6-18  of Section 135.011 <436.018> that the defendant has been convicted
   6-19  two or more times within five years before the trial date of a
   6-20  violation of Section 135.011 <436.018>, the defendant is guilty of
   6-21  a felony punishable by imprisonment for a term of not more than 10
   6-22  years or less than two years.  In addition to imprisonment, an
   6-23  individual adjudged guilty of a felony under this section
   6-24  <subsection> may be punished by a fine of not less than $2,000 or
   6-25  more than $5,000.
   6-26           (Sections 135.018-135.020 reserved for expansion
   6-27              SUBCHAPTER C.  CONFISCATION AND ENFORCEMENT
    7-1        Sec. 135.021 <436.025>.  Disposition of Unfit or Unlawful
    7-2  Shellfish.  (a)  Shellfish held or offered for sale at retail or
    7-3  for human consumption are subject to immediate condemnation,
    7-4  seizure, and confiscation by the commissioner or the commissioner's
    7-5  agents if the shellfish:
    7-6              (1)  have not been handled and packaged in accordance
    7-7  with specifications adopted by the commissioner <board>;
    7-8              (2)  are not in a certified container; or
    7-9              (3)  are otherwise found by the commissioner to be
   7-10  unfit for human consumption.
   7-11        (b)  The shellfish shall be held or destroyed or disposed of
   7-12  as directed by the commissioner.
   7-13        Sec. 135.022 <436.026>.  Enforcement.  (a)  The commissioner
   7-14  and the commissioner's representatives, with assistance from
   7-15  officers of the Parks and Wildlife Department as determined by the
   7-16  executive director of that department, shall enforce this chapter
   7-17  <subchapter>, other than Section 135.011 <436.018>.
   7-18        (b)  Commissioned officers of the Parks and Wildlife
   7-19  Department shall enforce Section 135.011 <436.018>.
   7-20        SECTION 2.  Section 12.009, Agriculture Code, is amended by
   7-21  adding Subsection (d) to read as follows:
   7-22        (d)  The department shall regulate shellfish harvesting in
   7-23  polluted areas.  In this subsection "shellfish" and "polluted area"
   7-24  have the meanings assigned by Section 135.001 of this code.
   7-25        SECTION 3.  Section 76.116(a), Parks and Wildlife Code, is
   7-26  amended to read as follows:
   7-27        (a)  There is no open season for taking oysters from areas
    8-1  declared to be polluted by the <State> Department of Agriculture
    8-2  <Health>, and a person who takes oysters from such an area violates
    8-3  Section 76.108(a) of this code.
    8-4        SECTION 4.  Section 76.301(e), Parks and Wildlife Code, is
    8-5  amended to read as follows:
    8-6        (e)  A proclamation of the commission under this section does
    8-7  not prevail over any order, rule, or regulation adopted by the
    8-8  commissioner of agriculture <Commissioner of Health> under Chapter
    8-9  135, Agriculture Code <Subchapter D of this chapter>.
   8-10        SECTION 5.  The powers and duties of the Texas Department of
   8-11  Health with regard to the regulation of shellfish harvesting in
   8-12  polluted areas are transferred, as provided by this Act, to the
   8-13  commissioner of agriculture and the Department of Agriculture on
   8-14  the effective date of this Act.  All files and records of the Texas
   8-15  Department of Health kept by that department under Subchapter B,
   8-16  Chapter 436, Health and Safety Code, shall be transferred to the
   8-17  Department of Agriculture on that date.  All equipment, personnel,
   8-18  property, and unobligated and unexpended appropriations of the
   8-19  Texas Department of Health designated to administer Subchapter B,
   8-20  Chapter 436, Health and Safety Code, shall be transferred to the
   8-21  Department of Agriculture on that date.
   8-22        SECTION 6.  (a)  The commissioner of agriculture shall adopt
   8-23  rules under Chapter 135, Agriculture Code, as added by this Act,
   8-24  not later than January 1, 1994.  Rules adopted under Section
   8-25  436.013, Health and Safety Code, and in effect on the date this Act
   8-26  takes effect, are continued in effect as rules of the commissioner
   8-27  of agriculture until amended or repealed.
    9-1        (b)  An order of a declaration of polluted area made by the
    9-2  commissioner of health continues in effect as an order of the
    9-3  commissioner of agriculture until it is altered or rescinded by the
    9-4  commissioner of agriculture.
    9-5        SECTION 7.  (a) Section 135.017, Agriculture Code, as added
    9-6  by this Act, applies to an offense that occurs on or after the
    9-7  effective date of this Act.  An offense under Section 436.024,
    9-8  Health and Safety Code, that occurred before that date is covered
    9-9  by the law as it existed at the time of the offense, including
   9-10  rules in effect at that time, and the former law and rules are
   9-11  continued for that purpose.
   9-12        (b)  For the purposes of this section, an offense is
   9-13  committed before the effective date of this Act if any element of
   9-14  the offense is committed before that date.
   9-15        SECTION 8.  This Act takes effect September 1, 1993.
   9-16        SECTION 9.  The importance of this legislation and the
   9-17  crowded condition of the calendars in both houses create an
   9-18  emergency   and   an   imperative   public   necessity   that   the
   9-19  constitutional rule requiring bills to be read on three several
   9-20  days in each house be suspended, and this rule is hereby suspended.