73R3490 KLL-D
By Stiles H.B. No. 2556
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulating the taking of crab, molluscan shellfish, and
1-3 other aquatic life; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 436, Health and Safety Code, is amended
1-6 to read as follows:
1-7 CHAPTER 436. AQUATIC LIFE
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 436.001. SHORT TITLE. This chapter may be cited as the
1-10 Texas Aquatic Life Act.
1-11 Sec. 436.002. DEFINITIONS. In this chapter:
1-12 (1) "Approved area" means a molluscan shellfish
1-13 growing area determined to be acceptable for harvesting of
1-14 molluscan shellfish for direct marketing, according to the National
1-15 Shellfish Sanitation Program.
1-16 (2) "Aquatic life" means animals and plants that live
1-17 in water.
1-18 (3) "Authorized agent" means an employee of the
1-19 department who is designated by the director to enforce provisions
1-20 of this chapter.
1-21 (4) "Board" means the Texas Board of Health.
1-22 (5) "Closed area" means a molluscan shellfish growing
1-23 area where the taking, including the harvesting for sale, the
1-24 harvesting for transplant, or the gathering for depuration, of
2-1 molluscan shellfish is temporarily or permanently not permitted. A
2-2 closed area status may be placed on any one of the five classified
2-3 area designations established by the National Shellfish Sanitation
2-4 Program.
2-5 (6) "Conditionally approved area" means a molluscan
2-6 shellfish growing area determined to meet approved area criteria
2-7 for a predictable period conditioned on performance standards
2-8 specified in a management plan. A conditionally approved area is a
2-9 closed area when the area does not meet the approved area criteria.
2-10 (7) "Conditionally restricted area" means a molluscan
2-11 shellfish growing area determined to meet restricted area criteria
2-12 for a predictable period conditioned on performance standards
2-13 specified in a management plan. A conditionally restricted area is
2-14 open for transplanting or gathering for depuration only during the
2-15 times it meets the restricted area criteria and is specified as a
2-16 conditionally restricted area by the department. A conditionally
2-17 restricted area is a closed area at all times for harvesting of
2-18 molluscan shellfish for direct marketing.
2-19 (8) "Container" means the physical material in contact
2-20 with or immediately surrounding molluscan shellfish or crabmeat
2-21 that confines it into a single unit.
2-22 (9) "Crabmeat" means the edible meat of steamed or
2-23 cooked crabs that has not been processed other than by picking,
2-24 packing, and chilling.
2-25 (10) "Crabmeat processing license" means a numbered
2-26 document issued by the department that authorizes a person to
2-27 process crabmeat for sale.
3-1 (11) "Crabmeat processor" means a person who cooks and
3-2 backs crabs and who picks, packs, or pasteurizes crabmeat.
3-3 (12) "Department" means the Texas Department of
3-4 Health.
3-5 (13) "Depletion" means the removal of all existing
3-6 commercial quantities of market-size molluscan shellfish.
3-7 (14) "Depuration" means the process of using any
3-8 approved artificially controlled aquatic environment to reduce the
3-9 level of bacteria and viruses in molluscan shellfish.
3-10 (15) "Depuration plant" means a place where depuration
3-11 of molluscan shellfish occurs.
3-12 (16) "Director" means the executive head of the Texas
3-13 Department of Health.
3-14 (17) "Growing area" means an area that supports or
3-15 could support live molluscan shellfish.
3-16 (18) "Health authority" means a physician authorized
3-17 to administer state or local laws relating to public health.
3-18 (19) "Label" means written, printed, or graphic matter
3-19 appearing on a container of molluscan shellfish or crabmeat,
3-20 including any written, printed, or graphic matter on any wrappers
3-21 or accompanying any molluscan shellfish or crabmeat.
3-22 (20) "Molluscan shellfish" means an edible species of
3-23 oysters, clams, or mussels that is shucked, in the shell, fresh, or
3-24 fresh frozen, in whole or in part, as defined by the National
3-25 Shellfish Sanitation Program.
3-26 (21) "National Shellfish Sanitation Program" means the
3-27 cooperative program by the states, the United States Food and Drug
4-1 Administration, and the shellfish industry that classifies
4-2 molluscan shellfish growing areas and certifies interstate
4-3 molluscan shellfish shippers according to the National Shellfish
4-4 Sanitation Program Manual of Operations or its successor program
4-5 and documents.
4-6 (22) "Open area" means a molluscan shellfish growing
4-7 area where the harvesting for sale, harvesting for transplant, or
4-8 gathering for depuration of molluscan shellfish is permitted. An
4-9 open area status may be placed on any one of the classified area
4-10 designations established by the National Shellfish Sanitation
4-11 Program except for a prohibited area.
4-12 (23) "Pasteurization plant" means a place where
4-13 crabmeat is heat-treated in compliance with rules adopted by the
4-14 board, without complete sterilization, to improve the keeping
4-15 qualities of the meat.
4-16 (24) "Picking plant" means a place where crabs are
4-17 cooked and edible meat is picked from the crabs.
4-18 (25) "Possess" means the act of having in possession
4-19 or control, keeping, detaining, restraining, or holding as owner,
4-20 agent, bailee, or custodian for another.
4-21 (26) "Prohibited area" means an area where the
4-22 director finds, according to a sanitary, chemical, or
4-23 bacteriological survey, that the area contains aquatic life that is
4-24 unfit for human consumption. A prohibited area for molluscan
4-25 shellfish means a molluscan shellfish growing area determined to be
4-26 unacceptable for the transplanting, gathering for depuration, or
4-27 harvesting of molluscan shellfish. The only molluscan shellfish
5-1 removal permitted from a prohibited area is for the purpose of
5-2 depletion.
5-3 (27) "Principal display panel" means the part of a
5-4 label that is most likely to be displayed, presented, shown, or
5-5 examined under normal and customary conditions of display for sale.
5-6 (28) "Public water" means all bodies of water that are
5-7 the property of the state under Section 1.011, Parks and Wildlife
5-8 Code.
5-9 (29) "Restricted area" means a molluscan shellfish
5-10 growing area that is determined to be unacceptable for harvesting
5-11 of molluscan shellfish for direct marketing but that is acceptable
5-12 for transplanting or gathering for depuration. A restricted area
5-13 may be closed for transplanting or gathering for depuration when
5-14 the area does not meet the restricted area criteria established by
5-15 the National Shellfish Sanitation Program.
5-16 (30) "Sale" means the transfer of ownership or the
5-17 right of possession of an item to a person for consideration and
5-18 includes barter.
5-19 (31) "Shellfish certificate" means a numbered document
5-20 issued by the department that authorizes a person to process
5-21 molluscan shellfish for sale.
5-22 (32) "Shellfish processor" means a person who
5-23 depurates, shucks, packs, or repacks molluscan shellfish.
5-24 (33) "Take" means catch, hook, net, snare, trap, kill,
5-25 or capture by any means, including the attempt to take.
5-26 Sec. 436.003. AUTHORITY TO DELEGATE POWERS AND DUTIES. (a)
5-27 The board by rule may delegate a power or duty imposed on the
6-1 director in this chapter, including the power or duty to issue
6-2 emergency rules or orders or to render a final administrative
6-3 decision.
6-4 (b) A health authority may delegate any power or duty
6-5 imposed on the health authority in this chapter to an employee of
6-6 the local health department, the local health unit, or the public
6-7 health district in which the health authority serves, unless
6-8 otherwise restricted by law.
6-9 (Sections 436.004 to 436.010 reserved for expansion
6-10 SUBCHAPTER B. PROHIBITED ACTS
6-11 Sec. 436.011. PROHIBITED ACTS. The following acts and the
6-12 causing of the following acts within this state are unlawful and
6-13 prohibited:
6-14 (1) taking, selling, offering for sale, or holding for
6-15 sale molluscan shellfish from a closed area;
6-16 (2) taking, selling, offering for sale, or holding for
6-17 sale molluscan shellfish from a restricted or conditionally
6-18 restricted area without complying with a rule adopted by the board
6-19 to ensure that the molluscan shellfish have been purified, unless:
6-20 (A) permission is first obtained from the Parks
6-21 and Wildlife Department and the transplanting is supervised by that
6-22 department; and
6-23 (B) the Parks and Wildlife Department furnishes
6-24 a copy of the transplant permit to the director before
6-25 transplanting activities begin;
6-26 (3) possessing a species of aquatic life taken from a
6-27 prohibited area while the area was prohibited for that species;
7-1 (4) operating as a molluscan shellfish processor
7-2 without a shellfish certificate for each plant or place of
7-3 business;
7-4 (5) operating as a crabmeat processor without a
7-5 crabmeat processing license for each plant;
7-6 (6) selling, offering for sale, or holding for sale
7-7 molluscan shellfish or crabmeat that has not been picked, handled,
7-8 packaged, or pasteurized in accordance with the rules adopted by
7-9 the board;
7-10 (7) selling, offering for sale, or holding for sale
7-11 molluscan shellfish or crabmeat from facilities for the handling
7-12 and packaging of molluscan shellfish or crabmeat that do not comply
7-13 with the rules adopted by the board;
7-14 (8) selling, offering for sale, or holding for sale
7-15 molluscan shellfish or crabmeat that is not labeled in accordance
7-16 with the rules adopted by the board;
7-17 (9) selling, offering for sale, or holding for sale
7-18 molluscan shellfish that is not in a container bearing a valid
7-19 certificate number from a state or nation whose molluscan shellfish
7-20 certification program conforms to the current Manual of Operations
7-21 for Sanitary Control of the Shellfish Industry issued by the Food
7-22 and Drug Administration or its successor, except selling molluscan
7-23 shellfish removed from a container bearing a valid certificate
7-24 number for on-premises consumption;
7-25 (10) processing, transporting, storing for sale,
7-26 possessing with intent to sell, offering for sale, or selling
7-27 molluscan shellfish or crabmeat for human consumption that is
8-1 adulterated or misbranded;
8-2 (11) removing or disposing of a detained or embargoed
8-3 article in violation of Section 436.028;
8-4 (12) altering, mutilating, destroying, obliterating,
8-5 or removing all or part of the labeling of a container;
8-6 (13) adulterating or misbranding molluscan shellfish
8-7 or crabmeat in commerce;
8-8 (14) refusing to permit entry or inspection, to permit
8-9 the taking of a sample, or to permit access to or copying by an
8-10 authorized agent of a record required by this chapter;
8-11 (15) failing to establish or maintain a record or
8-12 report required by this chapter or by a rule adopted by the board;
8-13 or
8-14 (16) violating a rule adopted by the board or an
8-15 emergency rule or order adopted by the director.
8-16 (Sections 436.012 to 436.020 reserved for expansion
8-17 SUBCHAPTER C. ENFORCEMENT
8-18 Sec. 436.021. DEFINITION. In this subchapter, "detained or
8-19 embargoed article" means molluscan shellfish or crabmeat that has
8-20 been detained or embargoed under Section 436.028.
8-21 Sec. 436.022. INSPECTION. (a) The director, an authorized
8-22 agent, or a health authority may, on presenting appropriate
8-23 credentials to the owner, operator, or agent in charge:
8-24 (1) enter at reasonable times, including when
8-25 processing is conducted, an establishment or location in which
8-26 molluscan shellfish or crabmeat is processed, packed, pasteurized,
8-27 or held for introduction into commerce or held after introduction
9-1 into commerce;
9-2 (2) enter a vehicle being used to transport or hold
9-3 the molluscan shellfish or crabmeat in commerce; or
9-4 (3) inspect the establishment, location, or vehicle,
9-5 including equipment, records, files, papers, materials, containers,
9-6 labels, or other items, and obtain samples necessary for
9-7 enforcement of this chapter.
9-8 (b) The inspection of an establishment or location is to
9-9 determine whether the molluscan shellfish or crabmeat:
9-10 (1) is adulterated or misbranded;
9-11 (2) may not be processed, introduced into commerce,
9-12 sold, or offered for sale under this chapter or the rules adopted
9-13 by the board; or
9-14 (3) is otherwise in violation of this chapter.
9-15 (c) The director, an authorized agent, or a health authority
9-16 may not inspect:
9-17 (1) financial data;
9-18 (2) sales data, other than shipment data;
9-19 (3) pricing data;
9-20 (4) personnel data, other than personnel data relating
9-21 to the qualifications of technical and professional personnel; or
9-22 (5) research data.
9-23 Sec. 436.023. ACCESS TO RECORDS. A person who is required
9-24 to maintain records under this chapter or a rule adopted by the
9-25 board or a person who is in charge or custody of those records
9-26 shall, on request, permit the director, authorized agent, or health
9-27 authority at all reasonable times to have access to and to copy the
10-1 records.
10-2 Sec. 436.024. ACCESS TO RECORDS SHOWING MOVEMENT IN
10-3 COMMERCE. (a) A commercial carrier or other person receiving or
10-4 holding molluscan shellfish or crabmeat in commerce shall, on
10-5 request, permit the director, authorized agent, or health authority
10-6 at all reasonable times to have access to and to copy all records
10-7 showing:
10-8 (1) the movement in commerce of the molluscan
10-9 shellfish or crabmeat;
10-10 (2) the holding after movement in commerce of the
10-11 molluscan shellfish or crabmeat; or
10-12 (3) the quantity, shipper, and consignee of the
10-13 molluscan shellfish or crabmeat.
10-14 (b) The carrier or other person may not refuse access to and
10-15 copying of the requested records if the request is accompanied by a
10-16 written statement that specifies the nature or kind of molluscan
10-17 shellfish or crabmeat to which the request relates.
10-18 (c) A carrier is not subject to other provisions of this
10-19 chapter solely because of the carrier's receipt, carriage, holding,
10-20 or delivery of molluscan shellfish or crabmeat in the usual course
10-21 of business as a carrier.
10-22 Sec. 436.025. EMERGENCY ORDER. (a) The director may issue
10-23 an emergency order that mandates or prohibits the taking,
10-24 processing, or sale of molluscan shellfish or crabmeat in the
10-25 department's jurisdiction if:
10-26 (1) the processing or sale of the molluscan shellfish
10-27 or crabmeat creates or poses an immediate threat to human life or
11-1 health; and
11-2 (2) other procedures available to the department to
11-3 remedy or prevent the threat will result in unreasonable delay.
11-4 (b) The director may issue the emergency order without
11-5 notice and hearing if the director or a person designated by the
11-6 director determines that issuing the emergency order without notice
11-7 and hearing is necessary under the circumstances.
11-8 (c) If an emergency order is issued without a hearing, the
11-9 department shall determine the earliest time and place for a
11-10 hearing at which the emergency order is affirmed, modified, or set
11-11 aside. The hearing shall be held under board rules.
11-12 (d) This section prevails over Sections 11.013 and 12.001.
11-13 Sec. 436.026. VIOLATION; INJUNCTION. (a) The director, an
11-14 authorized agent, or a health authority may petition the district
11-15 court for a temporary restraining order to restrain a continuing
11-16 violation or a threat of a continuing violation of Section 436.011
11-17 if the director, authorized agent, or health authority believes
11-18 that:
11-19 (1) a person has violated, is violating, or is
11-20 threatening to violate a provision of Section 436.011; and
11-21 (2) the violation or threatened violation creates an
11-22 immediate threat to the health and safety of the public.
11-23 (b) If the court finds that a person is violating or
11-24 threatening to violate Section 436.011, the court shall grant
11-25 injunctive relief.
11-26 (c) Venue for a suit brought under this section is in the
11-27 county in which the violation or threat of violation is alleged to
12-1 have occurred or in Travis County.
12-2 Sec. 436.027. CIVIL PENALTY. (a) At the request of the
12-3 director, the attorney general or a district, county, or municipal
12-4 attorney shall institute an action in district or county court to
12-5 collect a civil penalty from a person who has violated Section
12-6 436.011.
12-7 (b) A person who violates Section 436.011 is liable for a
12-8 civil penalty not to exceed $25,000 a day for each violation. Each
12-9 day of a continuing violation constitutes a separate violation for
12-10 purposes of penalty assessment.
12-11 (c) In determining the amount of the penalty, the court
12-12 shall consider:
12-13 (1) the person's history of previous violations under
12-14 this chapter;
12-15 (2) the seriousness of the violation;
12-16 (3) any hazard to the health and safety of the public;
12-17 (4) the demonstrated good faith of the person; and
12-18 (5) other matters as justice may require.
12-19 (d) A civil penalty recovered in a suit instituted by the
12-20 attorney general under this chapter shall be deposited in the state
12-21 treasury to the credit of the general revenue fund. A civil
12-22 penalty recovered in a suit instituted by a local government under
12-23 this chapter shall be paid to the local government.
12-24 (e) Venue for a suit to collect a civil penalty brought
12-25 under this section is in the municipality or county in which the
12-26 violation occurred or in Travis County.
12-27 Sec. 436.028. DETAINED OR EMBARGOED ARTICLE. (a) The
13-1 director or an authorized agent may detain or embargo molluscan
13-2 shellfish or crabmeat if the director or authorized agent believes
13-3 or has probable cause to believe that the molluscan shellfish or
13-4 crabmeat:
13-5 (1) is adulterated; or
13-6 (2) is misbranded so that the molluscan shellfish or
13-7 crabmeat is dangerous or fraudulent under this chapter.
13-8 (b) The director or an authorized agent shall affix to any
13-9 molluscan shellfish or crabmeat a tag or other appropriate marking
13-10 that gives notice that the molluscan shellfish or crabmeat is, or
13-11 is suspected of being, adulterated or misbranded and that the
13-12 molluscan shellfish or crabmeat has been detained or embargoed.
13-13 (c) The tag or marking on a detained or embargoed article
13-14 must prohibit the removal or disposal of the article unless
13-15 permission is given by the director, the authorized agent, or a
13-16 court.
13-17 (d) A person may not remove a detained or embargoed article
13-18 from the premises or dispose of it without permission of the
13-19 director, the authorized agent, or a court. The director or the
13-20 authorized agent may permit perishable goods to be moved to a place
13-21 suitable for proper storage.
13-22 (e) The director or an authorized agent shall remove the tag
13-23 or other marking from a detained or embargoed article if the
13-24 director or an authorized agent believes that the article is not
13-25 adulterated or misbranded.
13-26 (f) The claimant of a detained or embargoed article may move
13-27 the article to a secure storage area with the permission of the
14-1 director or an authorized agent.
14-2 Sec. 436.029. REMOVAL ORDER FOR DETAINED OR EMBARGOED
14-3 ARTICLE. (a) The director or authorized agent may order the
14-4 claimant or the claimant's agent to move a detained or embargoed
14-5 article to a secure place to prevent the unauthorized disposal or
14-6 removal of the article.
14-7 (b) If the claimant fails to carry out the order, the
14-8 director or the authorized agent may move the article.
14-9 (c) If the director or the authorized agent moves the
14-10 article, the director shall assess the cost of removal against the
14-11 claimant.
14-12 (d) The director may request the attorney general to bring
14-13 an action in the district court in Travis County to recover the
14-14 costs of removal. In a judgment in favor of the state, the court
14-15 may award costs, attorney's fees, and interest from the date the
14-16 expense was incurred until the date the department is reimbursed.
14-17 Sec. 436.030. RECALL FROM COMMERCE. (a) The director may
14-18 order a recall of molluscan shellfish or crabmeat with:
14-19 (1) the detention or embargo of molluscan shellfish or
14-20 crabmeat;
14-21 (2) the issuance of an emergency order under Section
14-22 436.025; or
14-23 (3) both.
14-24 (b) The director's recall order may require that the
14-25 molluscan shellfish or crabmeat be removed to one or more secure
14-26 areas approved by the director or authorized agent.
14-27 (c) The recall order must be in writing and be signed by the
15-1 director and may be issued:
15-2 (1) before or in conjunction with a tag or other
15-3 marking as provided by Section 436.028;
15-4 (2) with an emergency order authorized by Section
15-5 436.025; or
15-6 (3) both.
15-7 (d) The recall order is effective until it expires by its
15-8 own terms, is withdrawn by the director, is reversed by a court in
15-9 an order denying condemnation, or is set aside at a hearing
15-10 authorized by Section 436.025.
15-11 (e) The claimant shall pay the costs of the removal and
15-12 storage of a recalled product. If the claimant or the claimant's
15-13 agent fails to carry out the recall order, the director may recall
15-14 the product. The director shall assess the costs of the recall
15-15 against the claimant.
15-16 (f) The director may request the attorney general to bring
15-17 an action in a district court in Travis County to recover the costs
15-18 of recall. In a judgment in favor of the state, the court may
15-19 award costs, attorney's fees, and interest from the date the
15-20 expense was incurred until the date the department is reimbursed.
15-21 Sec. 436.031. CONDEMNATION. If molluscan shellfish or
15-22 crabmeat is adulterated or misbranded, an action for the
15-23 condemnation of the molluscan shellfish or crabmeat may be filed in
15-24 a district court in whose jurisdiction the molluscan shellfish or
15-25 crabmeat is located.
15-26 Sec. 436.032. DESTRUCTION OF MOLLUSCAN SHELLFISH OR
15-27 CRABMEAT. (a) The court may order the destruction of sampled,
16-1 detained, or embargoed molluscan shellfish or crabmeat if the court
16-2 finds that the article is adulterated or misbranded.
16-3 (b) After entry of the court's order, an authorized agent
16-4 shall supervise the destruction of the article.
16-5 (c) The claimant shall pay the cost of the destruction of
16-6 the article.
16-7 (d) The court shall order the claimant or the claimant's
16-8 agent to pay court costs, storage fees, and other proper expenses.
16-9 Sec. 436.033. CORRECTION BY PROPER LABELING. (a) A court
16-10 may order the delivery of sampled, detained, or embargoed molluscan
16-11 shellfish or crabmeat that is misbranded to the claimant for
16-12 relabeling under the supervision of the director or an authorized
16-13 agent if:
16-14 (1) the court costs and other expenses have been paid;
16-15 (2) proper labeling can correct the misbranding; and
16-16 (3) the claimant executes a bond, conditioned on the
16-17 correction of the misbranding by proper labeling.
16-18 (b) The claimant shall pay the costs of the supervision.
16-19 (c) The court shall order the return of the molluscan
16-20 shellfish or crabmeat to the claimant if the director or an
16-21 authorized agent represents to the court that the molluscan
16-22 shellfish or crabmeat no longer violates this chapter and that the
16-23 expenses of supervision are paid.
16-24 Sec. 436.034. ADMINISTRATIVE PENALTY. (a) The director may
16-25 assess an administrative penalty against a person who violates
16-26 Section 436.011 or an order issued under this chapter.
16-27 (b) In determining the amount of the penalty, the director
17-1 shall consider:
17-2 (1) the person's previous violations;
17-3 (2) the seriousness of the violation;
17-4 (3) the hazard to the health and safety of the public;
17-5 (4) the person's demonstrated good faith; and
17-6 (5) other matters as justice may require.
17-7 (c) The penalty may not exceed $25,000 a day for each
17-8 violation.
17-9 (d) Each day of a continuing violation constitutes a
17-10 separate violation.
17-11 Sec. 436.035. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
17-12 (a) The director may assess an administrative penalty only after a
17-13 person charged with a violation is given an opportunity for a
17-14 hearing.
17-15 (b) If a hearing is held, the director shall make findings
17-16 of fact and shall issue a written decision regarding the violation
17-17 and the amount of the penalty.
17-18 (c) If the person charged with the violation does not
17-19 request a hearing, the director may assess a penalty after
17-20 determining that a violation has occurred and the amount of the
17-21 penalty.
17-22 (d) The director shall issue an order requiring a person to
17-23 pay a penalty assessed under this section.
17-24 (e) The director may consolidate a hearing held under this
17-25 section with another proceeding.
17-26 Sec. 436.036. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
17-27 later than the 30th day after the date an order is issued under
18-1 Section 436.035(d), the director shall notify the person against
18-2 whom the penalty is assessed of the order and the amount of the
18-3 penalty.
18-4 (b) Not later than the 30th day after the date notice of the
18-5 order is given to the person, the person shall:
18-6 (1) pay the penalty in full; or
18-7 (2) seek judicial review of the amount of the penalty,
18-8 the findings of the director, or both.
18-9 (c) If the person seeks judicial review, the person shall:
18-10 (1) send the amount of the penalty to the director for
18-11 placement in an escrow account; or
18-12 (2) post with the director a bond for the amount of
18-13 the penalty.
18-14 (d) A bond posted under this section must be in a form
18-15 approved by the director and must be effective until judicial
18-16 review of the order or decision is final.
18-17 (e) A person who does not send the money to the director or
18-18 post the bond within the period described by Subsection (b) waives
18-19 all rights to contest the violation or the amount of the penalty.
18-20 (f) The attorney general, at the request of the director,
18-21 may bring a civil action to recover an administrative penalty
18-22 assessed under this subchapter.
18-23 Sec. 436.037. REFUND OF ADMINISTRATIVE PENALTY. Not later
18-24 than the 30th day after the date of a judicial determination that
18-25 an administrative penalty against a person should be reduced or not
18-26 assessed, the director shall:
18-27 (1) remit to the person the appropriate amount of any
19-1 penalty payment plus accrued interest; or
19-2 (2) execute a release of the bond if the person has
19-3 posted a bond.
19-4 Sec. 436.038. CRIMINAL PENALTY; DEFENSES. (a) A person
19-5 commits an offense if the person intentionally, knowingly,
19-6 recklessly, or with criminal negligence commits an unlawful act
19-7 under Section 436.011.
19-8 (b) A violation of Section 436.011(1), (2), or (3) is a
19-9 Class B Parks and Wildlife Code misdemeanor under Section 12.405,
19-10 Parks and Wildlife Code. Each day of a continuing violation
19-11 constitutes a separate offense. Commissioned officers of the Parks
19-12 and Wildlife Department shall enforce Sections 436.011(1), (2), and
19-13 (3).
19-14 (c) If it is shown at trial that the defendant has been
19-15 convicted once within five years before the trial date of a
19-16 violation of Section 436.011(1) or (2), a violation by the
19-17 defendant under Section 436.011(1) or (2) is a Class A Parks and
19-18 Wildlife Code misdemeanor under Section 12.404, Parks and Wildlife
19-19 Code.
19-20 (d) If it is shown at trial that the defendant has been
19-21 convicted two or more times within five years before the trial date
19-22 of a violation of Section 436.011(1) or (2), a violation by the
19-23 defendant under Section 436.011(1) or (2) is a Parks and Wildlife
19-24 Code felony under Section 12.407, Parks and Wildlife Code.
19-25 (e) A violation of Section 436.011(4), (5), (6), (7), (8),
19-26 (9), (10), (11), (12), (13), (14), or (15) is a Class A
19-27 misdemeanor. Each day of a continuing violation constitutes a
20-1 separate offense.
20-2 (f) A person is not subject to the penalties of Subsection
20-3 (e) if the person received molluscan shellfish or crabmeat in
20-4 commerce and delivered or offered to deliver the molluscan
20-5 shellfish or crabmeat in good faith, unless the person refuses to
20-6 furnish on request of the director, an authorized agent, or a
20-7 health authority the name and address of the person from whom the
20-8 product was received and copies of any documents relating to the
20-9 receipt of the product.
20-10 (g) A publisher, radiobroadcast licensee, or agency or
20-11 medium for the publication or broadcast of an advertisement, except
20-12 the harvester, processor, distributor, or seller of molluscan
20-13 shellfish or crabmeat to which a false advertisement relates, is
20-14 not liable under this section for the publication or broadcast of
20-15 the false advertisement, unless the person has refused to furnish,
20-16 on the request of the director, the name and address of the
20-17 harvester, processor, distributor, seller, or advertising agency
20-18 residing in this state who caused the person to publish or
20-19 broadcast the advertisement.
20-20 (h) A person is not subject to the penalties of Subsection
20-21 (e) for a violation of Section 436.011 involving misbranded
20-22 molluscan shellfish or crabmeat if the violation exists only
20-23 because the product is misbranded because of a mistake in
20-24 advertising, unless the violation is committed with intent to
20-25 defraud or mislead.
20-26 Sec. 436.039. INITIATION OF PROCEEDINGS. The attorney
20-27 general or a district, county, or municipal attorney to whom the
21-1 director, an authorized agent, or a health authority reports a
21-2 violation of this chapter shall prosecute without delay.
21-3 Sec. 436.040. MINOR VIOLATION. This chapter does not
21-4 require the director, an authorized agent, or a health authority to
21-5 report for prosecution a minor violation of this chapter if the
21-6 director, authorized agent, or health authority believes that the
21-7 public interest is adequately served by a written warning.
21-8 (Sections 436.041 to 436.060 reserved for expansion
21-9 SUBCHAPTER D. ADULTERATED AQUATIC LIFE
21-10 Sec. 436.061. ADULTERATED AQUATIC LIFE. (a) A species of
21-11 aquatic life is adulterated if it has been taken from an area
21-12 declared prohibited for that species by the director.
21-13 (b) Molluscan shellfish or crabmeat is adulterated if:
21-14 (1) it bears or contains a poisonous or deleterious
21-15 substance that may render it injurious to health, unless the
21-16 substance is a naturally occurring substance and the quantity of
21-17 the substance in the molluscan shellfish or crabmeat does not
21-18 ordinarily render the substance injurious to health;
21-19 (2) it consists in whole or in part of a diseased,
21-20 contaminated, filthy, or putrid substance, or if it is otherwise
21-21 unfit for human consumption;
21-22 (3) it has been produced, prepared, packed, or held
21-23 under unsanitary conditions whereby it may have become contaminated
21-24 with filth or may have been rendered diseased, unwholesome, or
21-25 injurious to health;
21-26 (4) it is in whole or in part the product of diseased
21-27 aquatic life or has died otherwise than by taking;
22-1 (5) its container is made in whole or in part of a
22-2 poisonous or deleterious substance that may render the contents
22-3 injurious to health;
22-4 (6) it has been intentionally exposed to radiation,
22-5 unless the use of the radiation complied with a regulation or an
22-6 exemption under Section 348, Federal Food, Drug, and Cosmetic Act
22-7 (21 U.S.C. Section 348);
22-8 (7) a substance has been substituted in whole or in
22-9 part for it;
22-10 (8) damage to or inferiority of the product has been
22-11 concealed;
22-12 (9) a substance has been added, mixed, or packed to
22-13 increase its bulk or weight, to reduce its quality or strength, or
22-14 to make it appear better or of greater value than it is;
22-15 (10) it contains a chemical substance containing
22-16 sulphites, sulphur dioxide, or any other chemical preservative that
22-17 is not approved by the United States Bureau of Animal Industry or
22-18 by rules of the board;
22-19 (11) the molluscan shellfish have been taken from a
22-20 closed area;
22-21 (12) the molluscan shellfish have been taken from a
22-22 restricted or conditionally restricted area and have not been
22-23 purified under the rules adopted by the board;
22-24 (13) the molluscan shellfish have been processed by a
22-25 person without a shellfish certificate;
22-26 (14) the molluscan shellfish have not been handled and
22-27 packaged in accordance with the rules adopted by the board;
23-1 (15) the crabmeat has been processed by a person
23-2 without a crabmeat processing license; or
23-3 (16) the crabmeat was not picked, packed, or
23-4 pasteurized in accordance with the rules adopted by the board.
23-5 (Sections 436.062 to 436.070 reserved for expansion
23-6 SUBCHAPTER E. MISBRANDING
23-7 Sec. 436.071. MISBRANDED MOLLUSCAN SHELLFISH AND CRABMEAT.
23-8 Molluscan shellfish or crabmeat is misbranded if:
23-9 (1) its labeling is false, misleading, or fails to
23-10 conform with the requirements of Section 436.081;
23-11 (2) it is offered for sale under the name of another
23-12 food;
23-13 (3) its container is made, formed, or filled so as to
23-14 be misleading;
23-15 (4) a word, statement, or other information required
23-16 by this chapter or a rule adopted under this chapter to appear on a
23-17 label is not prominently and conspicuously placed on the label and
23-18 is not likely to be read and understood by the ordinary individual
23-19 under customary conditions of purchase and use; or
23-20 (5) it does not have a label containing:
23-21 (A) the name, address, and certification or
23-22 license number of the processor;
23-23 (B) an accurate statement in a uniform location
23-24 on the principal display panel of the quantity of the contents in
23-25 terms of weight, measure, or numerical count; and
23-26 (C) a date as provided by rules adopted by the
23-27 board.
24-1 (Sections 436.072 to 436.080 reserved for expansion
24-2 SUBCHAPTER F. LABELING AND PACKAGING
24-3 Sec. 436.081. FAIR PACKAGING AND LABELING. (a) A label on
24-4 molluscan shellfish or crabmeat shall conform to the requirements
24-5 for the declaration of net quantity of contents under Section 1453,
24-6 Fair Packaging and Labeling Act (15 U.S.C. Section 1453), and the
24-7 regulations adopted under that Act.
24-8 (b) The label on a package of molluscan shellfish or
24-9 crabmeat that represents the number of servings contained in the
24-10 package shall state the net quantity in terms of weight, measure,
24-11 or numerical count of each serving.
24-12 (c) A person may not distribute or cause to be distributed
24-13 in commerce any molluscan shellfish or crabmeat if a qualifying
24-14 word or phrase appears with the statement of the net quantity of
24-15 contents required by Subsection (a). A supplemental statement at
24-16 another place on the package may contain descriptions in
24-17 nondeceptive terms of the net quantity of contents, except the
24-18 supplemental statement of net quantity of contents may not include
24-19 a term qualifying a unit of weight, measure, or count that tends to
24-20 exaggerate the amount of the shellfish or crabmeat in the package.
24-21 Sec. 436.082. FALSE ADVERTISEMENT. An advertisement of
24-22 molluscan shellfish or crabmeat is false if it is false or
24-23 misleading in any manner.
24-24 (Sections 436.083 to 436.090 reserved for expansion
24-25 SUBCHAPTER G. AQUATIC LIFE FROM PROHIBITED AREAS
24-26 Sec. 436.091. DECLARATION OF PROHIBITED AREAS. (a) The
24-27 director by order shall declare a body of public water to be a
25-1 prohibited area if:
25-2 (1) the director finds, according to a sanitary,
25-3 chemical, or bacteriological survey, that the area contains aquatic
25-4 life that is unfit for human consumption; or
25-5 (2) aquatic life from a prohibited area may have been
25-6 transferred to that body of public water.
25-7 (b) The director shall modify or revoke an order according
25-8 to the results of a sanitary, chemical, or bacteriological survey
25-9 conducted by the department. The director shall file the order in
25-10 the department's office and shall furnish without charge a copy of
25-11 the order describing prohibited areas on request.
25-12 (c) The director shall conspicuously outline prohibited
25-13 areas on maps and shall furnish the maps without charge on request.
25-14 The failure of a person to obtain that information does not relieve
25-15 that person from liability under this chapter.
25-16 (Sections 436.092 to 436.100 reserved for expansion
25-17 SUBCHAPTER H. MOLLUSCAN SHELLFISH
25-18 Sec. 436.101. CLASSIFICATION OF GROWING AREAS. (a) The
25-19 director by order shall designate an area that is coastal water
25-20 according to the rules of the Parks and Wildlife Commission as an
25-21 approved area, a conditionally approved area, a restricted area, a
25-22 conditionally restricted area, or a prohibited area, according to
25-23 the classification categories in the current National Shellfish
25-24 Sanitation Program Manual of Operations or its successor. Coastal
25-25 water is a prohibited area for the taking of molluscan shellfish
25-26 unless designated otherwise by the director.
25-27 (b) The director shall prohibit the taking of molluscan
26-1 shellfish for a specified period from water to which molluscan
26-2 shellfish may have been transferred from a restricted or
26-3 conditionally restricted area.
26-4 (c) The director by order shall designate growing areas as
26-5 closed areas or open areas. The director shall modify or revoke an
26-6 order according to the results of sanitary and bacteriological
26-7 surveys conducted by the department. The director shall file the
26-8 order in the department's office and shall furnish without charge a
26-9 copy of the order describing the open or closed area on request.
26-10 (d) The director shall conspicuously outline the
26-11 classifications of areas for the taking of molluscan shellfish on
26-12 maps and shall furnish the maps without charge on request. The
26-13 failure of a person to obtain that information does not relieve
26-14 that person from liability under this chapter.
26-15 Sec. 436.102. DEPURATION. (a) The director may allow
26-16 depuration by artificial means of molluscan shellfish taken from a
26-17 restricted or conditionally restricted area, subject to the rules
26-18 adopted by the board and under the supervision the director
26-19 considers necessary to protect public health.
26-20 (b) A molluscan shellfish plant operator may employ an
26-21 off-duty peace officer to monitor the gathering of shellfish for
26-22 depuration from a restricted or conditionally restricted area as
26-23 provided by the rules adopted by the board under Subsection (a).
26-24 In this subsection, "peace officer" includes those persons listed
26-25 in Article 2.12, Code of Criminal Procedure.
26-26 (Sections 436.103 to 436.110 reserved for expansion
26-27 SUBCHAPTER I. GENERAL ADMINISTRATIVE PROVISIONS
27-1 AND RULEMAKING AUTHORITY
27-2 Sec. 436.111. DEFINITIONS. In this subchapter:
27-3 (1) "Certificate" means a shellfish certificate issued
27-4 by the department.
27-5 (2) "License" means a crabmeat processing license
27-6 issued by the department.
27-7 Sec. 436.112. RULEMAKING AUTHORITY. The board may adopt
27-8 rules for the enforcement of this chapter. The board shall adopt
27-9 rules establishing specifications for molluscan shellfish
27-10 processing and crabmeat processing and shall furnish without charge
27-11 printed copies of the rules on request.
27-12 Sec. 436.113. CERTIFICATION AND LICENSING PROCEDURES. (a)
27-13 A person may not operate as a molluscan shellfish or crabmeat
27-14 processor unless the person submits an application for a
27-15 certificate or a license to the department according to rules
27-16 adopted by the board and receives a certificate or license for each
27-17 plant or place of business.
27-18 (b) When an application has been properly filed with the
27-19 department, the director or an authorized agent shall inspect the
27-20 property identified in the application, including buildings and
27-21 equipment, and the operating procedures under which the product is
27-22 processed.
27-23 (c) The director shall issue a certificate or license to a
27-24 person who operates a plant or place of business that conforms to
27-25 the requirements of this chapter and rules adopted by the board.
27-26 (d) A certificate is nontransferrable and expires at 11:59
27-27 p.m. on August 31 of each year.
28-1 (e) A license is nontransferrable and expires at 11:59 p.m.
28-2 on the last day of February each year.
28-3 (f) A person shall apply for a new certificate or license
28-4 each year for each plant or place of business.
28-5 Sec. 436.114. REFUSAL TO CERTIFY OR LICENSE; SUSPENSION OR
28-6 REVOCATION OF CERTIFICATE OR LICENSE. (a) After notice to the
28-7 applicant and opportunity for a hearing, the department may refuse
28-8 an application for a certificate or a license or may suspend or
28-9 revoke a certificate or license.
28-10 (b) The board by rule shall establish minimum standards for
28-11 a certificate or license and criteria for the refusal to issue a
28-12 certificate or license and the suspension or revocation of a
28-13 certificate or license.
28-14 Sec. 436.115. HEARINGS AND APPEALS. (a) A hearing under
28-15 this chapter is governed by the procedures for a contested case
28-16 hearing under the Administrative Procedure and Texas Register Act
28-17 (Article 6252-13a, Vernon's Texas Civil Statutes) and the board's
28-18 formal hearing rules.
28-19 (b) An appeal from a final administrative decision under
28-20 this chapter shall be conducted under the Administrative Procedure
28-21 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
28-22 Statutes).
28-23 <SUBCHAPTER A. TAKING AQUATIC LIFE FROM PROHIBITED AREAS>
28-24 <Sec. 436.001. DEFINITIONS. In this subchapter:>
28-25 <(1) "Aquatic life" means animals and plants that live
28-26 in water.>
28-27 <(2) "Board" means the Texas Board of Health.>
29-1 <(3) "Commissioner" means the commissioner of health.>
29-2 <(4) "Department" means the Texas Department of
29-3 Health.>
29-4 <(5) "Public water" means all bodies of water that are
29-5 the property of the state under Section 1.011, Parks and Wildlife
29-6 Code.>
29-7 <(6) "Sale" means the transfer of ownership or the
29-8 right of possession of an item to a person for consideration and
29-9 includes barter.>
29-10 <Sec. 436.002. APPLICABILITY OF SUBCHAPTER. This subchapter
29-11 does not apply to oysters, clams, and mussels, or to the taking,
29-12 selling, or offering or holding for sale of oysters, clams, and
29-13 mussels from a polluted area to which Subchapter B applies.>
29-14 <Sec. 436.003. DECLARATION OF PROHIBITED AREAS. (a) The
29-15 commissioner by order shall declare any public water to be a
29-16 prohibited area if:>
29-17 <(1) the commissioner finds, according to a sanitary,
29-18 chemical, or bacteriological survey, that the area contains aquatic
29-19 life that is unfit for human consumption; or>
29-20 <(2) aquatic life from a prohibited area may have been
29-21 transferred to that public water.>
29-22 <(b) The commissioner's order closes the prohibited area to
29-23 the taking of aquatic life for the period the commissioner
29-24 considers advisable.>
29-25 <(c) The commissioner shall modify or revoke an order in
29-26 accordance with the results of a sanitary, chemical, or
29-27 bacteriological survey conducted by the department. The
30-1 commissioner shall file the order in the department's office and
30-2 shall furnish without charge a copy of the order describing
30-3 prohibited areas to any interested person.>
30-4 <(d) The commissioner shall conspicuously outline prohibited
30-5 areas on maps and shall furnish the maps without charge to any
30-6 interested person. The failure of a person to avail himself of
30-7 that information does not relieve that person from liability under
30-8 this subchapter.>
30-9 <Sec. 436.004. TAKING, OFFERING, OR SELLING AQUATIC LIFE
30-10 FROM PROHIBITED AREAS; CRIMINAL PENALTY. (a) A person commits an
30-11 offense if the person takes, sells, or offers or holds for sale or
30-12 human consumption any aquatic life from an area declared by the
30-13 commissioner to be a prohibited area.>
30-14 <(b) An offense under this section is a misdemeanor
30-15 punishable by a fine of not less than $200 or more than $500.>
30-16 <(c) Each day of a continuing violation constitutes a
30-17 separate offense.>
30-18 <(d) Commissioned law enforcement officers of the Parks and
30-19 Wildlife Department shall enforce this section.>
30-20 <Sec. 436.005. DISPOSITION OF AQUATIC LIFE. (a) Aquatic
30-21 life taken from a prohibited area and offered or held for sale or
30-22 human consumption is subject to immediate condemnation, seizure,
30-23 and confiscation by the commissioner or the commissioner's agents.>
30-24 <(b) The aquatic life shall be held or destroyed or
30-25 otherwise disposed of as directed by the commissioner.>
30-26 <Sections 436.006 to 436.010 reserved for expansion>
30-27 <SUBCHAPTER B. SHELLFISH>
31-1 <Sec. 436.011. DEFINITIONS. In this subchapter:>
31-2 <(1) "Board" means the Texas Board of Health.>
31-3 <(2) "Commissioner" means the commissioner of health.>
31-4 <(3) "Department" means the Texas Department of
31-5 Health.>
31-6 <(4) "Polluted area" means an area that is
31-7 continuously or intermittently subject to the discharge of sewage
31-8 or other wastes, or to the presence of coliform organisms in
31-9 quantities likely to indicate that shellfish taken from the area
31-10 are unfit for human consumption.>
31-11 <(5) "Shellfish" means oysters, clams, and mussels,
31-12 either fresh or frozen and either shucked or in the shell.>
31-13 <Sec. 436.012. DECLARATION OF POLLUTED AREAS. (a) The
31-14 commissioner by order shall declare to be polluted any area within
31-15 the jurisdiction of the state that the commissioner finds is a
31-16 polluted area.>
31-17 <(b) The commissioner shall close to the taking of shellfish
31-18 for the period the commissioner considers advisable any water to
31-19 which shellfish from a polluted area may have been transferred.>
31-20 <(c) The commissioner shall modify or revoke an order in
31-21 accordance with the results of sanitary and bacteriological surveys
31-22 conducted by the department. The commissioner shall file the order
31-23 in the department's office and shall furnish without charge a copy
31-24 of the order describing polluted areas to any interested person.>
31-25 <(d) The commissioner shall conspicuously outline polluted
31-26 areas on maps and shall furnish the maps without charge to any
31-27 interested person. The failure of a person to avail himself of
32-1 that information does not relieve that person from liability under
32-2 this subchapter.>
32-3 <Sec. 436.013. RULES. (a) The board shall adopt rules
32-4 establishing specifications for shellfish plant facilities and for
32-5 the harvesting, transporting, storing, handling, and packaging of
32-6 shellfish.>
32-7 <(b) The board may adopt rules necessary for the efficient
32-8 enforcement of this subchapter.>
32-9 <(c) A rule adopted under this subchapter takes effect three
32-10 months after the date on which the rule is adopted.>
32-11 <(d) The board shall furnish without charge printed copies
32-12 of the rules to any interested person on request.>
32-13 <Sec. 436.014. COMPLIANCE WITH RULES. (a) The commissioner
32-14 shall allow a shellfish plant a reasonable time to comply with a
32-15 rule after its adoption, but that time may not exceed six months
32-16 after the date on which the rule is adopted unless an extension is
32-17 granted.>
32-18 <(b) The commissioner may grant an extension to a plant on a
32-19 showing that more time is reasonably required for compliance.>
32-20 <Sec. 436.015. INSPECTION OF SHELLFISH PLANT. (a) The
32-21 commissioner or the commissioner's agent shall inspect each
32-22 shellfish plant and the practices followed in handling and
32-23 packaging shellfish. The commissioner shall issue a certificate
32-24 attesting to compliance with the rules adopted under this
32-25 subchapter to each operator who the commissioner finds is in
32-26 compliance with the rules.>
32-27 <(b) The commissioner or the commissioner's agent may
33-1 reinspect a plant at any time and shall revoke the operator's
33-2 certificate if:>
33-3 <(1) the operator refuses to allow an inspection of
33-4 the plant or free access to the plant at a reasonable hour; or>
33-5 <(2) the commissioner finds that the plant is not
33-6 being operated in compliance with the rules adopted under this
33-7 subchapter.>
33-8 <Sec. 436.016. PERFORMANCE BOND. (a) The commissioner may
33-9 require a person holding a shellfish plant certificate to post and
33-10 maintain with the commissioner a good and sufficient bond with a
33-11 corporate surety or two personal sureties approved by the
33-12 commissioner, or a cash deposit in a form acceptable to the
33-13 commissioner, if reasonably necessary to ensure that the
33-14 certificate holder will comply with the requirements imposed under
33-15 this subchapter.>
33-16 <(b) If the certificate holder fails to comply with the
33-17 requirements of this subchapter, the certificate holder or the
33-18 certificate holder's surety forfeits to the commissioner an amount
33-19 not to exceed $1,000.>
33-20 <Sec. 436.017. PURIFICATION OF SHELLFISH. (a) The
33-21 commissioner may allow purification by artificial means of
33-22 shellfish taken from polluted areas, subject to the rules adopted
33-23 by the board and under the supervision the commissioner considers
33-24 necessary to protect public health.>
33-25 <(b) A shellfish plant operator may employ off-duty peace
33-26 officers to monitor the taking of shellfish from polluted areas as
33-27 provided by the rules adopted to implement Subsection (a). In this
34-1 subsection, "peace officer" includes those persons listed in
34-2 Article 2.12, Code of Criminal Procedure.>
34-3 <Sec. 436.018. PROHIBITION AGAINST TAKING SHELLFISH FROM
34-4 POLLUTED AREA. A person may not take, sell, or offer or hold for
34-5 sale any shellfish from a polluted area without complying with the
34-6 rules adopted by the board to ensure that the shellfish have been
34-7 purified.>
34-8 <Sec. 436.019. TRANSPLANTING SHELLFISH. (a) Section
34-9 436.018 does not prohibit the transplanting of shellfish from
34-10 polluted water if permission for the transplanting is first
34-11 obtained from the Parks and Wildlife Department and the
34-12 transplanting is supervised by that department.>
34-13 <(b) The Parks and Wildlife Department shall furnish a copy
34-14 of the transplant permit to the commissioner before transplanting
34-15 activities begin.>
34-16 <Sec. 436.020. PROHIBITION AGAINST UNLAWFULLY OPERATING
34-17 SHELLFISH PLANT. A person may not operate a shellfish plant for
34-18 the handling and packaging of shellfish without a certificate
34-19 issued by the commissioner for each plant or place of business.>
34-20 <Sec. 436.021. PROHIBITION AGAINST SALE OF IMPROPERLY
34-21 HANDLED SHELLFISH. A person may not sell or offer or hold for sale
34-22 any shell stock or shucked shellfish that have not been handled and
34-23 packaged in accordance with the specifications adopted by the
34-24 board.>
34-25 <Sec. 436.022. PROHIBITION AGAINST SALE OF SHELLFISH FROM
34-26 IMPROPER FACILITIES. A person may not sell or offer or hold for
34-27 sale any shellfish from facilities for the packaging and handling
35-1 of shellfish that do not comply with the specifications adopted by
35-2 the board.>
35-3 <Sec. 436.023. PROHIBITION AGAINST SALE OF SHELLFISH WITHOUT
35-4 CERTIFICATE NUMBER. (a) A person may not sell or offer for sale
35-5 any shellfish that are not in a container bearing a valid
35-6 certificate number from a state or nation whose shellfish
35-7 certification program conforms to the current Manual of Recommended
35-8 Practice for Sanitary Control of the Shellfish Industry issued by
35-9 the Food and Drug Administration.>
35-10 <(b) This section does not apply to the sale for on-premise
35-11 consumption of shellfish removed from a certified container.>
35-12 <Sec. 436.024. CRIMINAL PENALTY. (a) A person commits an
35-13 offense if the person violates this subchapter or a rule adopted
35-14 under this subchapter. Each day of a continuing violation
35-15 constitutes a separate offense.>
35-16 <(b) An offense under Subsection (a) is a misdemeanor
35-17 punishable by a fine of not less than $200 or more than $1,000,
35-18 confinement in jail for not more than 180 days, or both.>
35-19 <(c) If it is shown at the trial of a defendant for a
35-20 violation of Section 436.018 that the defendant has been convicted
35-21 once within five years before the trial date of a violation of
35-22 Section 436.018, the defendant is guilty of a misdemeanor
35-23 punishable by a fine of not less than $500 or more than $2,000,
35-24 confinement in jail for a term not to exceed one year, or both.>
35-25 <(d) If it is shown at the trial of a defendant for a
35-26 violation of Section 436.018 that the defendant has been convicted
35-27 two or more times within five years before the trial date of a
36-1 violation of Section 436.018, the defendant is guilty of a felony
36-2 punishable by imprisonment for a term of not more than 10 years or
36-3 less than two years. In addition to imprisonment, an individual
36-4 adjudged guilty of a felony under this subsection may be punished
36-5 by a fine of not less than $2,000 or more than $5,000.>
36-6 <Sec. 436.025. DISPOSITION OF UNFIT OR UNLAWFUL SHELLFISH.
36-7 (a) Shellfish held or offered for sale at retail or for human
36-8 consumption are subject to immediate condemnation, seizure, and
36-9 confiscation by the commissioner or the commissioner's agents if
36-10 the shellfish:>
36-11 <(1) have not been handled and packaged in accordance
36-12 with specifications adopted by the board;>
36-13 <(2) are not in a certified container; or>
36-14 <(3) are otherwise found by the commissioner to be
36-15 unfit for human consumption.>
36-16 <(b) The shellfish shall be held or destroyed or disposed of
36-17 as directed by the commissioner.>
36-18 <Sec. 436.026. ENFORCEMENT. (a) The commissioner and the
36-19 commissioner's representatives, with assistance from officers of
36-20 the Parks and Wildlife Department as determined by the executive
36-21 director of that department, shall enforce this subchapter, other
36-22 than Section 436.018.>
36-23 <(b) Commissioned officers of the Parks and Wildlife
36-24 Department shall enforce Section 436.018.>
36-25 <Sections 436.027 to 436.040 reserved for expansion>
36-26 <SUBCHAPTER C. CRABMEAT PRODUCTION>
36-27 <Sec. 436.041. DEFINITIONS. In this subchapter:>
37-1 <(1) "Board" means the Texas Board of Health.>
37-2 <(2) "Crabmeat" means the edible meat of steamed or
37-3 cooked crabs that has not been processed, other than by picking,
37-4 packing, and chilling.>
37-5 <(3) "Department" means the Texas Department of
37-6 Health.>
37-7 <(4) "Pasteurization plant" means a plant in which
37-8 crabmeat is heat-treated, without complete sterilization, to
37-9 improve the keeping qualities of the meat.>
37-10 <(5) "Person" means an individual, partnership,
37-11 corporation, or association.>
37-12 <(6) "Picking plant" means a place in which crabs are
37-13 steamed or cooked and edible meat from the crabs is picked.>
37-14 <Sec. 436.042. LICENSE REQUIRED. (a) A person may not
37-15 operate a picking or pasteurization plant unless the person has a
37-16 license for that plant.>
37-17 <(b) A person must submit a license application to the
37-18 department for each plant.>
37-19 <(c) A separate license is required for each plant.>
37-20 <Sec. 436.043. INSPECTIONS. When an application has been
37-21 properly filed with the department, the department shall inspect
37-22 all properties identified in the application, all buildings and
37-23 equipment on the property, and the operating procedures under which
37-24 the product is processed.>
37-25 <Sec. 436.044. LICENSE ISSUANCE. (a) The department shall
37-26 issue a serially numbered license to a person who operates a plant
37-27 that conforms to the requirements of this subchapter and board
38-1 rules.>
38-2 <(b) A license is nontransferable and expires the last day
38-3 of February of each year.>
38-4 <(c) A person who operates a picking or pasteurization plant
38-5 must annually apply for a new license for each plant.>
38-6 <Sec. 436.045. RULES. The board shall adopt rules for the
38-7 picking, pasteurizing, storing, transporting, and selling of
38-8 crabmeat to ensure a wholesome product.>
38-9 <Sec. 436.046. COMPLIANCE WITH BOARD RULES. Crabmeat from
38-10 this state or from plants outside this state must comply with the
38-11 board rules as provided by this subchapter. The department may
38-12 seize and condemn crabmeat that does not comply with board rules.>
38-13 <Sec. 436.047. ADULTERATED OR SUBSTANDARD CRABMEAT. (a) A
38-14 person may not process, transport, store for sale, possess with the
38-15 intent to sell, offer or expose for sale, or sell any crabmeat for
38-16 human consumption that is adulterated or that is packed or
38-17 pasteurized in violation of this subchapter or a rule adopted under
38-18 this subchapter.>
38-19 <(b) The possession of adulterated crabmeat by a person
38-20 licensed under this subchapter is presumptive evidence of intent to
38-21 sell the crabmeat for human consumption.>
38-22 <(c) Crabmeat is adulterated if:>
38-23 <(1) any substance has been substituted in whole or in
38-24 part for the crabmeat;>
38-25 <(2) the crabmeat consists in whole or in part of any
38-26 filthy, putrid, or decomposed substance, or the crabmeat is for any
38-27 other reason unsound, unwholesome, unhealthful, or otherwise unfit
39-1 for human consumption;>
39-2 <(3) the crabmeat has been prepared, packed, or held
39-3 under unsanitary conditions that, in the department's judgment, may
39-4 have contaminated the crabmeat with filth or may have made it
39-5 injurious to health; or>
39-6 <(4) the crabmeat container is composed, in whole or
39-7 in part, of any poisonous or deleterious substance that may make
39-8 the contents injurious to health.>
39-9 <Sec. 436.048. LABELING OF CRABMEAT CONTAINERS. (a) A
39-10 container of crabmeat must be conspicuously labeled in a manner
39-11 approved by the department. Stamping with ink is not permitted.>
39-12 <(b) The label must contain:>
39-13 <(1) the proper designation of the content of the
39-14 container;>
39-15 <(2) the name and address of the picking plant in
39-16 which the product was produced or the name and address of the
39-17 distributor;>
39-18 <(3) the presence of any chemical, if any is allowed;>
39-19 <(4) the license number of the picking plant preceded
39-20 by the state abbreviation plainly and conspicuously marked on the
39-21 body of the container;>
39-22 <(5) the net weight of the contents; and>
39-23 <(6) any other information pertinent to the public
39-24 health required by the department.>
39-25 <(c) If a label contains the name and address of the
39-26 distributor, the name and address must be:>
39-27 <(1) preceded by the words "packed for" or
40-1 "distributed by"; and>
40-2 <(2) followed by the word "distributor.">
40-3 <(d) A label may not bear a false or misleading statement.>
40-4 <(e) In this section, "label" means a display of written,
40-5 printed, or other graphic matter on the immediate container,
40-6 excluding package liners, of an article.>
40-7 <Sec. 436.049. REVOCATION OF LICENSE. (a) If the
40-8 department finds that a provision of this subchapter has been
40-9 violated by a license holder or that a violation has occurred or is
40-10 occurring on any premises for which a license is issued, the
40-11 department shall notify the license holder in writing of the nature
40-12 of the violation and direct that the violation cease.>
40-13 <(b) The department may revoke the license of a license
40-14 holder who refuses or fails to comply in the time and manner set
40-15 forth in the notice.>
40-16 <Sec. 436.050. APPEAL OF DEPARTMENT DECISION. An applicant
40-17 for a license or a license holder who is aggrieved by a decision of
40-18 the department in failing to issue or in revoking a license may
40-19 appeal that decision to a district court in:>
40-20 <(1) the county in which the property identified in
40-21 the application or license is located; or>
40-22 <(2) Travis County.>
40-23 <Sec. 436.051. PROSECUTION; INJUNCTION. (a) At the request
40-24 of the health authority, the district or county attorney shall
40-25 prosecute a person charged with a violation of this subchapter or a
40-26 rule issued under this subchapter.>
40-27 <(b) In an appropriate proceeding, a district court may
41-1 prohibit a repetition or continuance of an offense. At the request
41-2 of the health authority, the district or county attorney shall
41-3 bring a suit to enjoin a violation of this subchapter or a rule
41-4 issued under this subchapter.>
41-5 <Sec. 436.052. CRIMINAL PENALTY. (a) A person commits an
41-6 offense if the person violates a provision of this subchapter or a
41-7 rule adopted under this subchapter.>
41-8 <(b) An offense under this section is a misdemeanor
41-9 punishable by a fine of not less than $25 or more than $200.>
41-10 <(c) Each violation constitutes a separate offense.>
41-11 SECTION 2. The change in law made by this Act applies only
41-12 to a certificate or license issued under Chapter 436, Health and
41-13 Safety Code, on or after the effective date of this Act. A
41-14 certificate or license issued before the effective date of this Act
41-15 is covered by the law in effect when the certificate or license was
41-16 issued, and the former law is continued in effect for this purpose.
41-17 SECTION 3. (a) The change in law made by this Act applies
41-18 only to an offense or unlawful act committed under Chapter 436,
41-19 Health and Safety Code, on or after the effective date of this Act.
41-20 For purposes of this section, an offense or unlawful act is
41-21 committed before the effective date of this Act if any element of
41-22 the offense or act occurs before the effective date.
41-23 (b) An offense or unlawful act committed before the
41-24 effective date of this Act is covered by the law in effect when the
41-25 offense was committed, and the former law is continued in effect
41-26 for that purpose.
41-27 SECTION 4. This Act takes effect September 1, 1993.
42-1 SECTION 5. The importance of this legislation and the
42-2 crowded condition of the calendars in both houses create an
42-3 emergency and an imperative public necessity that the
42-4 constitutional rule requiring bills to be read on three several
42-5 days in each house be suspended, and this rule is hereby suspended.
42-6 COMMITTEE AMENDMENT NO. 1
42-7 Amend H.B. 2556 as follows:
42-8 (1) On page 1, between lines 15 and 16 add the following
42-9 definition:
42-10 (2) "Approved source" means a source of molluscan
42-11 shellfish acceptable to the Director of the Texas Department of
42-12 Health.
42-13 Renumber all successive definitions accordingly.
42-14 (2) On page 7, line 24, between the word "consumption" and
42-15 the semicolon insert the following:
42-16 In the event the Texas Molluscan Shellfish Program is found
42-17 to be out of conformity with the current Manual of Operations,
42-18 selling, offering for sale, or holding for sale molluscan shellfish
42-19 in a container bearing a valid Texas certificate number shall not
42-20 be considered a violation of the act provided all other
42-21 requirements of the act are complied with and the shellfish have
42-22 come from an approved source
42-23 Junell