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.