By: Armbrister S.B. No. 556
A BILL TO BE ENTITLED
AN ACT
1-1 relating to regulating the taking of crab, molluscan shellfish, and
1-2 other aquatic life; providing civil and criminal penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 436, Health and Safety Code, is amended
1-5 to read as follows:
1-6 CHAPTER 436. AQUATIC LIFE
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 436.001. SHORT TITLE. This chapter may be cited as the
1-9 Texas Aquatic Life Act.
1-10 Sec. 436.002. DEFINITIONS. In this chapter:
1-11 (1) "Approved area" means a molluscan shellfish
1-12 growing area determined to be acceptable for harvesting of
1-13 molluscan shellfish for direct marketing according to the National
1-14 Shellfish Sanitation Program.
1-15 (2) "Approved source" means a source of molluscan
1-16 shellfish acceptable to the director.
1-17 (3) "Aquatic life" means animals and plants that live
1-18 in water.
1-19 (4) "Authorized agent" means an employee of the
1-20 department who is designated by the director to enforce provisions
1-21 of this chapter.
1-22 (5) "Board" means the Texas Board of Health.
1-23 (6) "Closed area" means a molluscan shellfish growing
1-24 area where the taking including the harvesting for sale, the
2-1 harvesting for transplant, or the gathering for depuration of
2-2 molluscan shellfish is temporarily or permanently not permitted. A
2-3 closed area status may be placed on any one of the five classified
2-4 area designations established by the National Shellfish Sanitation
2-5 Program.
2-6 (7) "Conditionally approved area" means a molluscan
2-7 shellfish growing area determined to meet approved area criteria
2-8 for a predictable period conditioned on performance standards
2-9 specified in a management plan. A conditionally approved area is a
2-10 closed area when the area does not meet the approved area criteria.
2-11 (8) "Conditionally restricted area" means a molluscan
2-12 shellfish growing area determined to meet restricted area criteria
2-13 for a predictable period conditioned on performance standards
2-14 specified in a management plan. A conditionally restricted area is
2-15 open for transplanting or gathering for depuration only during the
2-16 times it meets the restricted area criteria and is specified as a
2-17 conditionally restricted area by the department. A conditionally
2-18 restricted area is a closed area at all times for harvesting of
2-19 molluscan shellfish for direct marketing.
2-20 (9) "Container" means the physical material in contact
2-21 with or immediately surrounding molluscan shellfish or crabmeat
2-22 that confines it into a single unit.
2-23 (10) "Crabmeat" means the edible meat of steamed or
2-24 cooked crabs that has not been processed other than by picking,
2-25 packing, and chilling.
2-26 (11) "Crabmeat processing license" means a numbered
2-27 document issued by the department that authorizes a person to
3-1 process crabmeat for sale.
3-2 (12) "Crabmeat processor" means a person who cooks and
3-3 backs crabs and who picks, packs, or pasteurizes crabmeat.
3-4 (13) "Department" means the Texas Department of
3-5 Health.
3-6 (14) "Depletion" means the removal of all existing
3-7 commercial quantities of market-size molluscan shellfish.
3-8 (15) "Depuration" means the process of using any
3-9 approved artificially controlled aquatic environment to reduce the
3-10 level of bacteria and viruses in molluscan shellfish.
3-11 (16) "Depuration plant" means a place where depuration
3-12 of molluscan shellfish occurs.
3-13 (17) "Director" means the executive head of the Texas
3-14 Department of Health.
3-15 (18) "Growing area" means an area that supports or
3-16 could support live molluscan shellfish.
3-17 (19) "Health authority" means a physician authorized
3-18 to administer state or local laws relating to public health.
3-19 (20) "Label" means written, printed, or graphic matter
3-20 appearing on a container of molluscan shellfish or crabmeat,
3-21 including any written, printed, or graphic matter on any wrappers
3-22 or accompanying any molluscan shellfish or crabmeat.
3-23 (21) "Molluscan shellfish" means an edible species of
3-24 oyster, clam, or mussel that is shucked, in the shell, fresh, or
3-25 fresh frozen, in whole or in part, as defined by the National
3-26 Shellfish Sanitation Program.
3-27 (22) "National Shellfish Sanitation Program" means the
4-1 cooperative program by the states, the United States Food and Drug
4-2 Administration, and the shellfish industry that classifies
4-3 molluscan shellfish growing areas and certifies interstate
4-4 molluscan shellfish shippers according to the National Shellfish
4-5 Sanitation Program Manual of Operations or its successor program
4-6 and documents.
4-7 (23) "Open area" means a molluscan shellfish growing
4-8 area where harvesting for sale, harvesting for transplant, or
4-9 gathering for depuration of molluscan shellfish is permitted. An
4-10 open area status may be placed on any one of the classified area
4-11 designations established by the National Shellfish Sanitation
4-12 Program except for a prohibited area.
4-13 (24) "Pasteurization plant" means a place where
4-14 crabmeat is heat-treated in compliance with rules adopted by the
4-15 board, without complete sterilization, to improve the keeping
4-16 qualities of the meat.
4-17 (25) "Picking plant" means a place where crabs are
4-18 cooked and edible meat is picked from the crabs.
4-19 (26) "Possess" means the act of having in possession
4-20 or control, keeping, detaining, restraining, or holding as owner,
4-21 agent, bailee, or custodian for another.
4-22 (27) "Prohibited area" means an area where the
4-23 director finds, according to a sanitary, chemical, or
4-24 bacteriological survey, that the area contains aquatic life that is
4-25 unfit for human consumption. A prohibited area for molluscan
4-26 shellfish means a molluscan shellfish growing area determined to be
4-27 unacceptable for transplanting, gathering for depuration, or
5-1 harvesting of molluscan shellfish. The only molluscan shellfish
5-2 removal permitted from a prohibited area is for the purpose of
5-3 depletion.
5-4 (28) "Principal display panel" means the part of a
5-5 label that is most likely to be displayed, presented, shown, or
5-6 examined under normal and customary conditions of display for sale.
5-7 (29) "Public water" means all bodies of water that are
5-8 the property of the state under Section 1.011, Parks and Wildlife
5-9 Code.
5-10 (30) "Restricted area" means a molluscan shellfish
5-11 growing area that is determined to be unacceptable for harvesting
5-12 of molluscan shellfish for direct marketing but that is acceptable
5-13 for transplanting or gathering for depuration. A restricted area
5-14 may be closed for transplanting or gathering for depuration when
5-15 the area does not meet the restricted area criteria established by
5-16 the National Shellfish Sanitation Program.
5-17 (31) "Sale" means the transfer of ownership or the
5-18 right of possession of an item to a person for consideration and
5-19 includes barter.
5-20 (32) "Shellfish certificate" means a numbered document
5-21 issued by the department that authorizes a person to process
5-22 molluscan shellfish for sale.
5-23 (33) "Shellfish processor" means a person who
5-24 depurates, shucks, packs, or repacks molluscan shellfish.
5-25 (34) "Take" means catch, hook, net, snare, trap, kill,
5-26 or capture by any means, including the attempt to take.
5-27 Sec. 436.003. AUTHORITY TO DELEGATE POWERS AND DUTIES.
6-1 (a) The board by rule may delegate a power or duty imposed on the
6-2 director in this chapter, including the power or duty to issue
6-3 emergency rules or orders or to render a final administrative
6-4 decision.
6-5 (b) A health authority may delegate any power or duty
6-6 imposed on the health authority in this chapter to an employee of
6-7 the local health department, the local health unit, or the public
6-8 health district in which the health authority serves, unless
6-9 otherwise restricted by law.
6-10 (Sections 436.004 to 436.010 reserved for expansion
6-11 SUBCHAPTER B. PROHIBITED ACTS
6-12 Sec. 436.011. PROHIBITED ACTS. The following acts and the
6-13 causing of the following acts within this state are unlawful and
6-14 prohibited:
6-15 (1) taking, selling, offering for sale, or holding for
6-16 sale molluscan shellfish from a closed area;
6-17 (2) taking, selling, offering for sale, or holding for
6-18 sale molluscan shellfish from a restricted or conditionally
6-19 restricted area without complying with a rule adopted by the board
6-20 to ensure that the molluscan shellfish have been purified, unless:
6-21 (A) permission is first obtained from the Parks
6-22 and Wildlife Department and the transplanting is supervised by that
6-23 department; and
6-24 (B) the Parks and Wildlife Department furnishes
6-25 a copy of the transplant permit to the director before
6-26 transplanting activities begin;
6-27 (3) possessing a species of aquatic life taken from a
7-1 prohibited area while the area was prohibited for that species;
7-2 (4) operating as a molluscan shellfish processor
7-3 without a shellfish certificate for each plant or place of
7-4 business;
7-5 (5) operating as a crabmeat processor without a
7-6 crabmeat processing license for each plant;
7-7 (6) selling, offering for sale, or holding for sale
7-8 molluscan shellfish or crabmeat that has not been picked, handled,
7-9 packaged, or pasteurized in accordance with the rules adopted by
7-10 the board;
7-11 (7) selling, offering for sale, or holding for sale
7-12 molluscan shellfish or crabmeat from facilities for the handling
7-13 and packaging of molluscan shellfish or crabmeat that do not comply
7-14 with the rules adopted by the board;
7-15 (8) selling, offering for sale, or holding for sale
7-16 molluscan shellfish or crabmeat that is not labeled in accordance
7-17 with the rules adopted by the board;
7-18 (9) selling, offering for sale, or holding for sale
7-19 molluscan shellfish that is not in a container bearing a valid
7-20 certificate number from a state or nation whose molluscan shellfish
7-21 certification program conforms to the current Manual of Operations
7-22 for Sanitary Control of the Shellfish Industry issued by the Food
7-23 and Drug Administration or its successor, except selling molluscan
7-24 shellfish removed from a container bearing a valid certificate
7-25 number for on-premises consumption; in the event the Texas
7-26 Molluscan Shellfish Program is found to be out of conformity with
7-27 the current Manual of Operations, selling, offering for sale, or
8-1 holding for sale molluscan shellfish in a container bearing a valid
8-2 Texas certificate number shall not be considered a violation of
8-3 this chapter provided all other requirements of this chapter are
8-4 complied with and the shellfish have come from an approved source;
8-5 (10) processing, transporting, storing for sale,
8-6 possessing with intent to sell, offering for sale, or selling
8-7 molluscan shellfish or crabmeat for human consumption that is
8-8 adulterated or misbranded;
8-9 (11) removing or disposing of a detained or embargoed
8-10 article in violation of Section 436.028;
8-11 (12) altering, mutilating, destroying, obliterating,
8-12 or removing all or part of the labeling of a container;
8-13 (13) adulterating or misbranding molluscan shellfish
8-14 or crabmeat in commerce;
8-15 (14) refusing to permit entry or inspection, to permit
8-16 the taking of a sample, or to permit access to or copying by an
8-17 authorized agent of a record required by this chapter;
8-18 (15) failing to establish or maintain a record or
8-19 report required by this chapter or by a rule adopted by the board;
8-20 or
8-21 (16) violating a rule adopted by the board or an
8-22 emergency rule or order adopted by the director.
8-23 (Sections 436.012 to 436.020 reserved for expansion
8-24 SUBCHAPTER C. ENFORCEMENT
8-25 Sec. 436.021. DEFINITION. In this subchapter, "detained or
8-26 embargoed article" means molluscan shellfish or crabmeat that has
8-27 been detained or embargoed under Section 436.028.
9-1 Sec. 436.022. INSPECTION. (a) The director, an authorized
9-2 agent, or a health authority may, on presenting appropriate
9-3 credentials to the owner, operator, or agent in charge:
9-4 (1) enter at reasonable times, including when
9-5 processing is conducted, an establishment or location in which
9-6 molluscan shellfish or crabmeat is processed, packed, pasteurized,
9-7 or held for introduction into commerce or held after introduction
9-8 into commerce;
9-9 (2) enter a vehicle being used to transport or hold
9-10 the molluscan shellfish or crabmeat in commerce; or
9-11 (3) inspect the establishment, location, or vehicle,
9-12 including equipment, records, files, papers, materials, containers,
9-13 labels, or other items, and obtain samples necessary for
9-14 enforcement of this chapter.
9-15 (b) The inspection of an establishment or location is to
9-16 determine whether the molluscan shellfish or crabmeat:
9-17 (1) is adulterated or misbranded;
9-18 (2) may not be processed, introduced into commerce,
9-19 sold, or offered for sale under this chapter or the rules adopted
9-20 by the board; or
9-21 (3) is otherwise in violation of this chapter.
9-22 (c) The director, an authorized agent, or a health authority
9-23 may not inspect:
9-24 (1) financial data;
9-25 (2) sales data, other than shipment data;
9-26 (3) pricing data;
9-27 (4) personnel data, other than personnel data relating
10-1 to the qualifications of technical and professional personnel; or
10-2 (5) research data.
10-3 Sec. 436.023. ACCESS TO RECORDS. A person who is required
10-4 to maintain records under this chapter or a rule adopted by the
10-5 board or a person who is in charge or custody of those records on
10-6 request shall permit the director, authorized agent, or health
10-7 authority at all reasonable times to have access to and to copy the
10-8 records.
10-9 Sec. 436.024. ACCESS TO RECORDS SHOWING MOVEMENT IN
10-10 COMMERCE. (a) A commercial carrier or other person receiving or
10-11 holding molluscan shellfish or crabmeat in commerce on request
10-12 shall permit the director, authorized agent, or health authority at
10-13 all reasonable times to have access to and to copy all records
10-14 showing:
10-15 (1) the movement in commerce of the molluscan
10-16 shellfish or crabmeat;
10-17 (2) the holding after movement in commerce of the
10-18 molluscan shellfish or crabmeat; or
10-19 (3) the quantity, shipper, and consignee of the
10-20 molluscan shellfish or crabmeat.
10-21 (b) The carrier or other person may not refuse access to and
10-22 copying of the requested records if the request is accompanied by a
10-23 written statement that specifies the nature or kind of molluscan
10-24 shellfish or crabmeat to which the request relates.
10-25 (c) A carrier is not subject to other provisions of this
10-26 chapter solely because of the carrier's receipt, carriage, holding,
10-27 or delivery of molluscan shellfish or crabmeat in the usual course
11-1 of business as a carrier.
11-2 Sec. 436.025. EMERGENCY ORDER. (a) The director may issue
11-3 an emergency order that mandates or prohibits the taking,
11-4 processing, or sale of molluscan shellfish or crabmeat in the
11-5 department's jurisdiction if:
11-6 (1) the processing or sale of the molluscan shellfish
11-7 or crabmeat creates or poses an immediate threat to human life or
11-8 health; and
11-9 (2) other procedures available to the department to
11-10 remedy or prevent the threat will result in unreasonable delay.
11-11 (b) The director may issue the emergency order without
11-12 notice and hearing if the director or a person designated by the
11-13 director determines that issuing the emergency order without notice
11-14 and hearing is necessary under the circumstances.
11-15 (c) If an emergency order is issued without a hearing, the
11-16 department shall determine the earliest time and place for a
11-17 hearing at which the emergency order shall be affirmed, modified,
11-18 or set aside. The hearing shall be held under board rules.
11-19 (d) This section prevails over Sections 11.013 and 12.001.
11-20 Sec. 436.026. VIOLATION; INJUNCTION. (a) The director, an
11-21 authorized agent, or a health authority may petition the district
11-22 court for a temporary restraining order to restrain a continuing
11-23 violation or a threat of a continuing violation of Section 436.011
11-24 if the director, authorized agent, or health authority believes
11-25 that:
11-26 (1) a person has violated, is violating, or is
11-27 threatening to violate a provision of Section 436.011; and
12-1 (2) the violation or threatened violation creates an
12-2 immediate threat to the health and safety of the public.
12-3 (b) If the court finds that a person is violating or
12-4 threatening to violate Section 436.011, the court shall grant
12-5 injunctive relief.
12-6 (c) Venue for a suit brought under this section is in the
12-7 county in which the violation or threat of violation is alleged to
12-8 have occurred or in Travis County.
12-9 Sec. 436.027. CIVIL PENALTY. (a) At the request of the
12-10 director, the attorney general or a district, county, or municipal
12-11 attorney shall institute an action in district or county court to
12-12 collect a civil penalty from a person who has violated Section
12-13 436.011.
12-14 (b) A person who violates Section 436.011 is liable for a
12-15 civil penalty not to exceed $25,000 a day for each violation. Each
12-16 day of a continuing violation constitutes a separate violation for
12-17 purposes of penalty assessment.
12-18 (c) In determining the amount of the penalty, the court
12-19 shall consider:
12-20 (1) the person's history of previous violations under
12-21 this chapter;
12-22 (2) the seriousness of the violation;
12-23 (3) any hazard to the health and safety of the public;
12-24 (4) the demonstrated good faith of the person; and
12-25 (5) other matters as justice may require.
12-26 (d) A civil penalty recovered in a suit instituted by the
12-27 attorney general under this chapter shall be deposited in the state
13-1 treasury to the credit of the general revenue fund. A civil
13-2 penalty recovered in a suit instituted by a local government under
13-3 this chapter shall be paid to the local government.
13-4 (e) Venue for a suit to collect a civil penalty brought
13-5 under this section is in the municipality or county in which the
13-6 violation occurred or in Travis County.
13-7 Sec. 436.028. DETAINED OR EMBARGOED ARTICLE. (a) The
13-8 director or an authorized agent may detain or embargo molluscan
13-9 shellfish or crabmeat if the director or authorized agent believes
13-10 or has probable cause to believe that the molluscan shellfish or
13-11 crabmeat:
13-12 (1) is adulterated; or
13-13 (2) is misbranded so that the molluscan shellfish or
13-14 crabmeat is dangerous or fraudulent under this chapter.
13-15 (b) The director or an authorized agent shall affix to any
13-16 molluscan shellfish or crabmeat a tag or other appropriate marking
13-17 that gives notice that the molluscan shellfish or crabmeat is, or
13-18 is suspected of being, adulterated or misbranded and that the
13-19 molluscan shellfish or crabmeat has been detained or embargoed.
13-20 (c) The tag or marking on a detained or embargoed article
13-21 must prohibit the removal or disposal of the article unless
13-22 permission is given by the director, the authorized agent, or a
13-23 court.
13-24 (d) A person may not remove a detained or embargoed article
13-25 from the premises or dispose of it without permission of the
13-26 director, the authorized agent, or a court. The director or the
13-27 authorized agent may permit perishable goods to be moved to a place
14-1 suitable for proper storage.
14-2 (e) The director or an authorized agent shall remove the tag
14-3 or other marking from a detained or embargoed article if the
14-4 director or an authorized agent believes that the article is not
14-5 adulterated or misbranded.
14-6 (f) The claimant of a detained or embargoed article may move
14-7 the article to a secure storage area with the permission of the
14-8 director or an authorized agent.
14-9 Sec. 436.029. REMOVAL ORDER FOR DETAINED OR EMBARGOED
14-10 ARTICLE. (a) The director or authorized agent may order the
14-11 claimant or the claimant's agent to move a detained or embargoed
14-12 article to a secure place to prevent the unauthorized disposal or
14-13 removal of the article.
14-14 (b) If the claimant fails to carry out the order, the
14-15 director or the authorized agent may move the article.
14-16 (c) If the director or the authorized agent moves the
14-17 article, the director shall assess the cost of removal against the
14-18 claimant.
14-19 (d) The director may request the attorney general to bring
14-20 an action in the district court in Travis County to recover the
14-21 costs of removal. In a judgment in favor of the state, the court
14-22 may award costs, attorney fees, and interest from the date the
14-23 expense was incurred until the date the department is reimbursed.
14-24 Sec. 436.030. RECALL FROM COMMERCE. (a) The director may
14-25 order a recall of molluscan shellfish or crabmeat with:
14-26 (1) the detention or embargo of molluscan shellfish or
14-27 crabmeat;
15-1 (2) the issuance of an emergency order under Section
15-2 436.025; or
15-3 (3) both.
15-4 (b) The director's recall order may require that the
15-5 molluscan shellfish or crabmeat be removed to one or more secure
15-6 areas approved by the director or authorized agent.
15-7 (c) The recall order must be in writing and be signed by the
15-8 director and may be issued:
15-9 (1) before or in conjunction with a tag or other
15-10 marking as provided by Section 436.028;
15-11 (2) with an emergency order authorized by Section
15-12 436.025; or
15-13 (3) both.
15-14 (d) The recall order is effective until it expires by its
15-15 own terms, is withdrawn by the director, is reversed by a court in
15-16 an order denying condemnation, or is set aside at a hearing
15-17 authorized by Section 436.025.
15-18 (e) The claimant shall pay the costs of the removal and
15-19 storage of a recalled product. If the claimant or the claimant's
15-20 agent fails to carry out the recall order, the director may recall
15-21 the product. The director shall assess the costs of the recall
15-22 against the claimant.
15-23 (f) The director may request the attorney general to bring
15-24 an action in a district court in Travis County to recover the costs
15-25 of recall. In a judgment in favor of the state, the court may
15-26 award costs, attorney fees, and interest from the date the expense
15-27 was incurred until the date the department is reimbursed.
16-1 Sec. 436.031. CONDEMNATION. If molluscan shellfish or
16-2 crabmeat is adulterated or misbranded, an action for the
16-3 condemnation of the molluscan shellfish or crabmeat may be filed in
16-4 a district court in whose jurisdiction the molluscan shellfish or
16-5 crabmeat is located.
16-6 Sec. 436.032. DESTRUCTION OF MOLLUSCAN SHELLFISH OR
16-7 CRABMEAT. (a) The court may order the destruction of sampled,
16-8 detained, or embargoed molluscan shellfish or crabmeat if the court
16-9 finds that the article is adulterated or misbranded.
16-10 (b) After entry of the court's order, an authorized agent
16-11 shall supervise the destruction of the article.
16-12 (c) The claimant shall pay the cost of the destruction of
16-13 the article.
16-14 (d) The court shall order the claimant or the claimant's
16-15 agent to pay court costs, storage fees, and other proper expenses.
16-16 Sec. 436.033. CORRECTION BY PROPER LABELING. (a) A court
16-17 may order the delivery of sampled, detained, or embargoed molluscan
16-18 shellfish or crabmeat that is misbranded to the claimant for
16-19 relabeling under the supervision of the director or an authorized
16-20 agent if:
16-21 (1) the court costs and other expenses have been paid;
16-22 (2) proper labeling can correct the misbranding; and
16-23 (3) the claimant executes a bond, conditioned on the
16-24 correction of the misbranding by proper labeling.
16-25 (b) The claimant shall pay the costs of the supervision.
16-26 (c) The court shall order the return of the molluscan
16-27 shellfish or crabmeat to the claimant if the director or an
17-1 authorized agent represents to the court that the molluscan
17-2 shellfish or crabmeat no longer violates this chapter and that the
17-3 expenses of supervision are paid.
17-4 Sec. 436.034. ADMINISTRATIVE PENALTY. (a) The director may
17-5 assess an administrative penalty against a person who violates
17-6 Section 436.011 or an order issued under this chapter.
17-7 (b) In determining the amount of the penalty, the director
17-8 shall consider:
17-9 (1) the person's previous violations;
17-10 (2) the seriousness of the violation;
17-11 (3) the hazard to the health and safety of the public;
17-12 (4) the person's demonstrated good faith; and
17-13 (5) other matters as justice may require.
17-14 (c) The penalty may not exceed $25,000 a day for each
17-15 violation.
17-16 (d) Each day of a continuing violation constitutes a
17-17 separate violation.
17-18 Sec. 436.035. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
17-19 (a) The director may assess an administrative penalty only after a
17-20 person charged with a violation is given an opportunity for a
17-21 hearing.
17-22 (b) If a hearing is held, the director shall make findings
17-23 of fact and shall issue a written decision regarding the violation
17-24 and the amount of the penalty.
17-25 (c) If the person charged with the violation does not
17-26 request a hearing, the director may assess a penalty after
17-27 determining that a violation has occurred and the amount of the
18-1 penalty.
18-2 (d) The director shall issue an order requiring a person to
18-3 pay a penalty assessed under this section.
18-4 (e) The director may consolidate a hearing held under this
18-5 section with another proceeding.
18-6 Sec. 436.036. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
18-7 later than the 30th day after the date an order is issued under
18-8 Section 436.035(d), the director shall notify the person against
18-9 whom the penalty is assessed of the order and the amount of the
18-10 penalty.
18-11 (b) Not later than the 30th day after the date notice of the
18-12 order is given to the person, the person shall:
18-13 (1) pay the penalty in full; or
18-14 (2) seek judicial review of the amount of the penalty,
18-15 the findings of the director, or both.
18-16 (c) If the person seeks judicial review, the person shall:
18-17 (1) send the amount of the penalty to the director for
18-18 placement in an escrow account; or
18-19 (2) post with the director a bond for the amount of
18-20 the penalty.
18-21 (d) A bond posted under this section must be in a form
18-22 approved by the director and must be effective until judicial
18-23 review of the order or decision is final.
18-24 (e) A person who does not send the money to the director or
18-25 post the bond within the period described by Subsection (b) waives
18-26 all rights to contest the violation or the amount of the penalty.
18-27 (f) The attorney general, at the request of the director,
19-1 may bring a civil action to recover an administrative penalty
19-2 assessed under this subchapter.
19-3 Sec. 436.037. REFUND OF ADMINISTRATIVE PENALTY. Not later
19-4 than the 30th day after the date of a judicial determination that
19-5 an administrative penalty against a person should be reduced or not
19-6 assessed, the director shall:
19-7 (1) remit to the person the appropriate amount of any
19-8 penalty payment plus accrued interest; or
19-9 (2) execute a release of the bond if the person has
19-10 posted a bond.
19-11 Sec. 436.038. CRIMINAL PENALTY; DEFENSES. (a) A person
19-12 commits an offense if the person intentionally, knowingly,
19-13 recklessly, or with criminal negligence commits an unlawful act
19-14 under Section 436.011.
19-15 (b) A violation of Section 436.011(1), (2), or (3) is a
19-16 Class B Parks and Wildlife Code misdemeanor under Section 12.405,
19-17 Parks and Wildlife Code. Each day of a continuing violation
19-18 constitutes a separate offense. Commissioned officers of the Parks
19-19 and Wildlife Department shall enforce Sections 436.011(1), (2), and
19-20 (3).
19-21 (c) If it is shown at trial that the defendant has been
19-22 convicted once within five years before the trial date of a
19-23 violation of Section 436.011(1) or (2), a violation by the
19-24 defendant under Section 436.011(1) or (2) is a Class A Parks and
19-25 Wildlife Code misdemeanor under Section 12.404, Parks and Wildlife
19-26 Code.
19-27 (d) If it is shown at trial that the defendant has been
20-1 convicted two or more times within five years before the trial date
20-2 of a violation of Section 436.011(1) or (2), a violation by the
20-3 defendant under Section 436.011(1) or (2) is a Parks and Wildlife
20-4 Code felony under Section 12.407, Parks and Wildlife Code.
20-5 (e) A violation of Section 436.011(4), (5), (6), (7), (8),
20-6 (9), (10), (11), (12), (13), (14), or (15) is a Class A
20-7 misdemeanor. Each day of a continuing violation constitutes a
20-8 separate offense.
20-9 (f) A person is not subject to the penalties of Subsection
20-10 (e) if the person received molluscan shellfish or crabmeat in
20-11 commerce and delivered or offered to deliver the molluscan
20-12 shellfish or crabmeat in good faith, unless the person refuses to
20-13 furnish on request of the director, an authorized agent, or a
20-14 health authority the name and address of the person from whom the
20-15 product was received and copies of any documents relating to the
20-16 receipt of the product.
20-17 (g) A publisher, radiobroadcast licensee, or agency or
20-18 medium for the publication or broadcast of an advertisement, except
20-19 the harvester, processor, distributor, or seller of molluscan
20-20 shellfish or crabmeat to which a false advertisement relates, is
20-21 not liable under this section for the publication or broadcast of
20-22 the false advertisement unless the person has refused to furnish,
20-23 on the request of the director, the name and address of the
20-24 harvester, processor, distributor, seller, or advertising agency
20-25 residing in this state who caused the person to publish or
20-26 broadcast the advertisement.
20-27 (h) A person is not subject to the penalties of Subsection
21-1 (e) for a violation of Section 436.011 involving misbranded
21-2 molluscan shellfish or crabmeat if the violation exists only
21-3 because the product is misbranded because of a mistake in
21-4 advertising, unless the violation is committed with intent to
21-5 defraud or mislead.
21-6 Sec. 436.039. INITIATION OF PROCEEDINGS. The attorney
21-7 general or a district, county, or municipal attorney to whom the
21-8 director, an authorized agent, or a health authority reports a
21-9 violation of this chapter shall prosecute without delay.
21-10 Sec. 436.040. MINOR VIOLATION. This chapter does not
21-11 require the director, an authorized agent, or a health authority to
21-12 report for prosecution a minor violation of this chapter if the
21-13 director, authorized agent, or health authority believes that the
21-14 public interest is adequately served by a written warning.
21-15 (Sections 436.041 to 436.060 reserved for expansion
21-16 SUBCHAPTER D. ADULTERATED AQUATIC LIFE
21-17 Sec. 436.061. ADULTERATED AQUATIC LIFE. (a) A species of
21-18 aquatic life is adulterated if it has been taken from an area
21-19 declared prohibited for that species by the director.
21-20 (b) Molluscan shellfish or crabmeat is adulterated if:
21-21 (1) it bears or contains a poisonous or deleterious
21-22 substance that may render it injurious to health unless the
21-23 substance is a naturally occurring substance and the quantity of
21-24 the substance in the molluscan shellfish or crabmeat does not
21-25 ordinarily render the substance injurious to health;
21-26 (2) it consists in whole or in part of a diseased,
21-27 contaminated, filthy, or putrid substance or if it is otherwise
22-1 unfit for human consumption;
22-2 (3) it has been produced, prepared, packed, or held
22-3 under unsanitary conditions whereby it may have become contaminated
22-4 with filth or may have been rendered diseased, unwholesome, or
22-5 injurious to health;
22-6 (4) it is in whole or in part the product of diseased
22-7 aquatic life or has died otherwise than by taking;
22-8 (5) its container is made in whole or in part of a
22-9 poisonous or deleterious substance that may render the contents
22-10 injurious to health;
22-11 (6) it has been intentionally exposed to radiation,
22-12 unless the use of the radiation complied with a regulation or an
22-13 exemption under Section 409, Federal Food, Drug, and Cosmetic Act
22-14 (21 U.S.C. Section 348);
22-15 (7) a substance has been substituted in whole or in
22-16 part for it;
22-17 (8) damage to or inferiority of the product has been
22-18 concealed;
22-19 (9) a substance has been added, mixed, or packed to
22-20 increase its bulk or weight, to reduce its quality or strength, or
22-21 to make it appear better or of greater value than it is;
22-22 (10) it contains a chemical substance containing
22-23 sulphites, sulphur dioxide, or any other chemical preservative that
22-24 is not approved by the Animal Plant Health Inspection Service or by
22-25 rules of the board;
22-26 (11) the molluscan shellfish have been taken from a
22-27 closed area;
23-1 (12) the molluscan shellfish have been taken from a
23-2 restricted or conditionally restricted area and have not been
23-3 purified under the rules adopted by the board;
23-4 (13) the molluscan shellfish have been processed by a
23-5 person without a shellfish certificate;
23-6 (14) the molluscan shellfish have not been handled and
23-7 packaged in accordance with the rules adopted by the board;
23-8 (15) the crabmeat has been processed by a person
23-9 without a crabmeat processing license; or
23-10 (16) the crabmeat was not picked, packed, or
23-11 pasteurized in accordance with the rules adopted by the board.
23-12 (Sections 436.062 to 436.070 reserved for expansion
23-13 SUBCHAPTER E. MISBRANDING
23-14 Sec. 436.071. MISBRANDED MOLLUSCAN SHELLFISH AND CRABMEAT.
23-15 Molluscan shellfish or crabmeat is misbranded if:
23-16 (1) its labeling is false, misleading, or fails to
23-17 conform with the requirements of Section 436.081;
23-18 (2) it is offered for sale under the name of another
23-19 food;
23-20 (3) its container is made, formed, or filled so as to
23-21 be misleading;
23-22 (4) a word, statement, or other information required
23-23 by this chapter or a rule adopted under this chapter to appear on a
23-24 label is not prominently and conspicuously placed on the label and
23-25 is not likely to be read and understood by the ordinary individual
23-26 under customary conditions of purchase and use; or
23-27 (5) it does not have a label containing:
24-1 (A) the name, address, and certification or
24-2 license number of the processor;
24-3 (B) an accurate statement in a uniform location
24-4 on the principal display panel of the quantity of the contents in
24-5 terms of weight, measure, or numerical count; and
24-6 (C) a date as provided by rules adopted by the
24-7 board.
24-8 (Sections 436.072 to 436.080 reserved for expansion
24-9 SUBCHAPTER F. LABELING AND PACKAGING
24-10 Sec. 436.081. FAIR PACKAGING AND LABELING. (a) A label on
24-11 molluscan shellfish or crabmeat shall conform to the requirements
24-12 for the declaration of net quantity of contents under Section 1453,
24-13 Fair Packaging and Labeling Act (15 U.S.C. Section 1453), and the
24-14 regulations adopted under that Act.
24-15 (b) The label on a package of molluscan shellfish or
24-16 crabmeat that represents the number of servings contained in the
24-17 package shall state the net quantity in terms of weight, measure,
24-18 or numerical count of each serving.
24-19 (c) A person may not distribute or cause to be distributed
24-20 in commerce any molluscan shellfish or crabmeat if a qualifying
24-21 word or phrase appears with the statement of the net quantity of
24-22 contents required by Subsection (a). A supplemental statement at
24-23 another place on the package may contain descriptions in
24-24 nondeceptive terms of the net quantity of contents, except the
24-25 supplemental statement of net quantity of contents may not include
24-26 a term qualifying a unit of weight, measure, or count that tends to
24-27 exaggerate the amount of the shellfish or crabmeat in the package.
25-1 Sec. 436.082. FALSE ADVERTISEMENT. An advertisement of
25-2 molluscan shellfish or crabmeat is false if it is false or
25-3 misleading in any manner.
25-4 (Sections 436.083 to 436.090 reserved for expansion
25-5 SUBCHAPTER G. AQUATIC LIFE FROM PROHIBITED AREAS
25-6 Sec. 436.091. DECLARATION OF PROHIBITED AREAS. (a) The
25-7 director by order shall declare a body of public water to be a
25-8 prohibited area if:
25-9 (1) the director finds, according to a sanitary,
25-10 chemical, or bacteriological survey, that the area contains aquatic
25-11 life that is unfit for human consumption; or
25-12 (2) aquatic life from a prohibited area may have been
25-13 transferred to that body of public water.
25-14 (b) The director shall modify or revoke an order according
25-15 to the results of a sanitary, chemical, or bacteriological survey
25-16 conducted by the department. The director shall file the order in
25-17 the department's office and shall furnish without charge a copy of
25-18 the order describing prohibited areas on request.
25-19 (c) The director shall conspicuously outline prohibited
25-20 areas on maps and shall furnish the maps without charge on request.
25-21 The failure of a person to obtain that information does not relieve
25-22 that person from liability under this chapter.
25-23 (Sections 436.092 to 436.100 reserved for expansion
25-24 SUBCHAPTER H. MOLLUSCAN SHELLFISH
25-25 Sec. 436.101. CLASSIFICATION OF GROWING AREAS. (a) The
25-26 director by order shall designate an area that is coastal water
25-27 according to the rules of the Parks and Wildlife Commission as an
26-1 approved area, a conditionally approved area, a restricted area, a
26-2 conditionally restricted area, or a prohibited area, according to
26-3 the classification categories in the current National Shellfish
26-4 Sanitation Program Manual of Operations or its successor. Coastal
26-5 water is a prohibited area for the taking of molluscan shellfish
26-6 unless designated otherwise by the director.
26-7 (b) The director shall prohibit the taking of molluscan
26-8 shellfish for a specified period from water to which molluscan
26-9 shellfish may have been transferred from a restricted or
26-10 conditionally restricted area.
26-11 (c) The director by order shall designate growing areas as
26-12 closed areas or open areas. The director shall modify or revoke an
26-13 order according to the results of sanitary and bacteriological
26-14 surveys conducted by the department. The director shall file the
26-15 order in the department's office and shall furnish without charge a
26-16 copy of the order describing the open or closed area on request.
26-17 (d) The director shall conspicuously outline the
26-18 classifications of areas for the taking of molluscan shellfish on
26-19 maps and shall furnish the maps without charge on request. The
26-20 failure of a person to obtain that information does not relieve
26-21 that person from liability under this chapter.
26-22 Sec. 436.102. DEPURATION. (a) The director may allow
26-23 depuration by artificial means of molluscan shellfish taken from a
26-24 restricted or conditionally restricted area, subject to the rules
26-25 adopted by the board and under the supervision the director
26-26 considers necessary to protect public health.
26-27 (b) A molluscan shellfish plant operator may employ an
27-1 off-duty peace officer to monitor the gathering of shellfish for
27-2 depuration from a restricted or conditionally restricted area as
27-3 provided by the rules adopted by the board under Subsection (a).
27-4 In this subsection, "peace officer" includes those persons listed
27-5 in Article 2.12, Code of Criminal Procedure.
27-6 (Sections 436.103 to 436.110 reserved for expansion
27-7 SUBCHAPTER I. GENERAL ADMINISTRATIVE PROVISIONS
27-8 AND RULEMAKING AUTHORITY
27-9 Sec. 436.111. DEFINITIONS. In this subchapter:
27-10 (1) "Certificate" means a shellfish certificate issued
27-11 by the department.
27-12 (2) "License" means a crabmeat processing license
27-13 issued by the department.
27-14 Sec. 436.112. RULEMAKING AUTHORITY. The board may adopt
27-15 rules for the enforcement of this chapter. The board shall adopt
27-16 rules establishing specifications for molluscan shellfish
27-17 processing and crabmeat processing and shall furnish without charge
27-18 printed copies of the rules on request.
27-19 Sec. 436.113. CERTIFICATION AND LICENSING PROCEDURES.
27-20 (a) A person may not operate as a molluscan shellfish or crabmeat
27-21 processor unless the person submits an application for a
27-22 certificate or a license to the department according to rules
27-23 adopted by the board and receives a certificate or license for each
27-24 plant or place of business.
27-25 (b) When an application has been properly filed with the
27-26 department, the director or an authorized agent shall inspect the
27-27 property identified in the application, including buildings and
28-1 equipment, and the operating procedures under which the product is
28-2 processed.
28-3 (c) The director shall issue a certificate or license to a
28-4 person who operates a plant or place of business that conforms to
28-5 the requirements of this chapter and rules adopted by the board.
28-6 (d) A certificate is nontransferrable and expires at 11:59
28-7 p.m. on August 31 of each year.
28-8 (e) A license is nontransferrable and expires at 11:59 p.m.
28-9 on the last day of February each year.
28-10 (f) A person shall apply for a new certificate or license
28-11 each year for each plant or place of business.
28-12 Sec. 436.114. REFUSAL TO CERTIFY OR LICENSE; SUSPENSION OR
28-13 REVOCATION OF CERTIFICATE OR LICENSE. (a) After notice to the
28-14 applicant and opportunity for a hearing, the department may refuse
28-15 an application for a certificate or a license or may suspend or
28-16 revoke a certificate or license.
28-17 (b) The board by rule shall establish minimum standards for
28-18 a certificate or license and criteria for the refusal to issue a
28-19 certificate or license and the suspension or revocation of a
28-20 certificate or license.
28-21 Sec. 436.115. HEARINGS AND APPEALS. (a) A hearing under
28-22 this chapter is governed by the procedures for a contested case
28-23 hearing under the Administrative Procedure and Texas Register Act
28-24 (Article 6252-13a, Vernon's Texas Civil Statutes) and the board's
28-25 formal hearing rules.
28-26 (b) An appeal from a final administrative decision under
28-27 this chapter shall be conducted under the Administrative Procedure
29-1 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
29-2 Statutes).
29-3 <SUBCHAPTER A. TAKING AQUATIC LIFE FROM PROHIBITED AREAS>
29-4 <Sec. 436.001. DEFINITIONS. In this subchapter:>
29-5 <(1) "Aquatic life" means animals and plants that live
29-6 in water.>
29-7 <(2) "Board" means the Texas Board of Health.>
29-8 <(3) "Commissioner" means the commissioner of health.>
29-9 <(4) "Department" means the Texas Department of
29-10 Health.>
29-11 <(5) "Public water" means all bodies of water that are
29-12 the property of the state under Section 1.011, Parks and Wildlife
29-13 Code.>
29-14 <(6) "Sale" means the transfer of ownership or the
29-15 right of possession of an item to a person for consideration and
29-16 includes barter.>
29-17 <Sec. 436.002. APPLICABILITY OF SUBCHAPTER. This subchapter
29-18 does not apply to oysters, clams, and mussels, or to the taking,
29-19 selling, or offering or holding for sale of oysters, clams, and
29-20 mussels from a polluted area to which Subchapter B applies.>
29-21 <Sec. 436.003. DECLARATION OF PROHIBITED AREAS. (a) The
29-22 commissioner by order shall declare any public water to be a
29-23 prohibited area if:>
29-24 <(1) the commissioner finds, according to a sanitary,
29-25 chemical, or bacteriological survey, that the area contains aquatic
29-26 life that is unfit for human consumption; or>
29-27 <(2) aquatic life from a prohibited area may have been
30-1 transferred to that public water.>
30-2 <(b) The commissioner's order closes the prohibited area to
30-3 the taking of aquatic life for the period the commissioner
30-4 considers advisable.>
30-5 <(c) The commissioner shall modify or revoke an order in
30-6 accordance with the results of a sanitary, chemical, or
30-7 bacteriological survey conducted by the department. The
30-8 commissioner shall file the order in the department's office and
30-9 shall furnish without charge a copy of the order describing
30-10 prohibited areas to any interested person.>
30-11 <(d) The commissioner shall conspicuously outline prohibited
30-12 areas on maps and shall furnish the maps without charge to any
30-13 interested person. The failure of a person to avail himself of
30-14 that information does not relieve that person from liability under
30-15 this subchapter.>
30-16 <Sec. 436.004. TAKING, OFFERING, OR SELLING AQUATIC LIFE
30-17 FROM PROHIBITED AREAS; CRIMINAL PENALTY. (a) A person commits an
30-18 offense if the person takes, sells, or offers or holds for sale or
30-19 human consumption any aquatic life from an area declared by the
30-20 commissioner to be a prohibited area.>
30-21 <(b) An offense under this section is a misdemeanor
30-22 punishable by a fine of not less than $200 or more than $500.>
30-23 <(c) Each day of a continuing violation constitutes a
30-24 separate offense.>
30-25 <(d) Commissioned law enforcement officers of the Parks and
30-26 Wildlife Department shall enforce this section.>
30-27 <Sec. 436.005. DISPOSITION OF AQUATIC LIFE. (a) Aquatic
31-1 life taken from a prohibited area and offered or held for sale or
31-2 human consumption is subject to immediate condemnation, seizure,
31-3 and confiscation by the commissioner or the commissioner's agents.>
31-4 <(b) The aquatic life shall be held or destroyed or
31-5 otherwise disposed of as directed by the commissioner.>
31-6 <Sections 436.006 to 436.010 reserved for expansion>
31-7 <SUBCHAPTER B. SHELLFISH>
31-8 <Sec. 436.011. DEFINITIONS. In this subchapter:>
31-9 <(1) "Board" means the Texas Board of Health.>
31-10 <(2) "Commissioner" means the commissioner of health.>
31-11 <(3) "Department" means the Texas Department of
31-12 Health.>
31-13 <(4) "Polluted area" means an area that is
31-14 continuously or intermittently subject to the discharge of sewage
31-15 or other wastes, or to the presence of coliform organisms in
31-16 quantities likely to indicate that shellfish taken from the area
31-17 are unfit for human consumption.>
31-18 <(5) "Shellfish" means oysters, clams, and mussels,
31-19 either fresh or frozen and either shucked or in the shell.>
31-20 <Sec. 436.012. DECLARATION OF POLLUTED AREAS. (a) The
31-21 commissioner by order shall declare to be polluted any area within
31-22 the jurisdiction of the state that the commissioner finds is a
31-23 polluted area.>
31-24 <(b) The commissioner shall close to the taking of shellfish
31-25 for the period the commissioner considers advisable any water to
31-26 which shellfish from a polluted area may have been transferred.>
31-27 <(c) The commissioner shall modify or revoke an order in
32-1 accordance with the results of sanitary and bacteriological surveys
32-2 conducted by the department. The commissioner shall file the order
32-3 in the department's office and shall furnish without charge a copy
32-4 of the order describing polluted areas to any interested person.>
32-5 <(d) The commissioner shall conspicuously outline polluted
32-6 areas on maps and shall furnish the maps without charge to any
32-7 interested person. The failure of a person to avail himself of
32-8 that information does not relieve that person from liability under
32-9 this subchapter.>
32-10 <Sec. 436.013. RULES. (a) The board shall adopt rules
32-11 establishing specifications for shellfish plant facilities and for
32-12 the harvesting, transporting, storing, handling, and packaging of
32-13 shellfish.>
32-14 <(b) The board may adopt rules necessary for the efficient
32-15 enforcement of this subchapter.>
32-16 <(c) A rule adopted under this subchapter takes effect three
32-17 months after the date on which the rule is adopted.>
32-18 <(d) The board shall furnish without charge printed copies
32-19 of the rules to any interested person on request.>
32-20 <Sec. 436.014. COMPLIANCE WITH RULES. (a) The commissioner
32-21 shall allow a shellfish plant a reasonable time to comply with a
32-22 rule after its adoption, but that time may not exceed six months
32-23 after the date on which the rule is adopted unless an extension is
32-24 granted.>
32-25 <(b) The commissioner may grant an extension to a plant on a
32-26 showing that more time is reasonably required for compliance.>
32-27 <Sec. 436.015. INSPECTION OF SHELLFISH PLANT. (a) The
33-1 commissioner or the commissioner's agent shall inspect each
33-2 shellfish plant and the practices followed in handling and
33-3 packaging shellfish. The commissioner shall issue a certificate
33-4 attesting to compliance with the rules adopted under this
33-5 subchapter to each operator who the commissioner finds is in
33-6 compliance with the rules.>
33-7 <(b) The commissioner or the commissioner's agent may
33-8 reinspect a plant at any time and shall revoke the operator's
33-9 certificate if:>
33-10 <(1) the operator refuses to allow an inspection of
33-11 the plant or free access to the plant at a reasonable hour; or>
33-12 <(2) the commissioner finds that the plant is not
33-13 being operated in compliance with the rules adopted under this
33-14 subchapter.>
33-15 <Sec. 436.016. PERFORMANCE BOND. (a) The commissioner may
33-16 require a person holding a shellfish plant certificate to post and
33-17 maintain with the commissioner a good and sufficient bond with a
33-18 corporate surety or two personal sureties approved by the
33-19 commissioner, or a cash deposit in a form acceptable to the
33-20 commissioner, if reasonably necessary to ensure that the
33-21 certificate holder will comply with the requirements imposed under
33-22 this subchapter.>
33-23 <(b) If the certificate holder fails to comply with the
33-24 requirements of this subchapter, the certificate holder or the
33-25 certificate holder's surety forfeits to the commissioner an amount
33-26 not to exceed $1,000.>
33-27 <Sec. 436.017. PURIFICATION OF SHELLFISH. (a) The
34-1 commissioner may allow purification by artificial means of
34-2 shellfish taken from polluted areas, subject to the rules adopted
34-3 by the board and under the supervision the commissioner considers
34-4 necessary to protect public health.>
34-5 <(b) A shellfish plant operator may employ off-duty peace
34-6 officers to monitor the taking of shellfish from polluted areas as
34-7 provided by the rules adopted to implement Subsection (a). In this
34-8 subsection, "peace officer" includes those persons listed in
34-9 Article 2.12, Code of Criminal Procedure.>
34-10 <Sec. 436.018. PROHIBITION AGAINST TAKING SHELLFISH FROM
34-11 POLLUTED AREA. A person may not take, sell, or offer or hold for
34-12 sale any shellfish from a polluted area without complying with the
34-13 rules adopted by the board to ensure that the shellfish have been
34-14 purified.>
34-15 <Sec. 436.019. TRANSPLANTING SHELLFISH. (a) Section
34-16 436.018 does not prohibit the transplanting of shellfish from
34-17 polluted water if permission for the transplanting is first
34-18 obtained from the Parks and Wildlife Department and the
34-19 transplanting is supervised by that department.>
34-20 <(b) The Parks and Wildlife Department shall furnish a copy
34-21 of the transplant permit to the commissioner before transplanting
34-22 activities begin.>
34-23 <Sec. 436.020. PROHIBITION AGAINST UNLAWFULLY OPERATING
34-24 SHELLFISH PLANT. A person may not operate a shellfish plant for
34-25 the handling and packaging of shellfish without a certificate
34-26 issued by the commissioner for each plant or place of business.>
34-27 <Sec. 436.021. PROHIBITION AGAINST SALE OF IMPROPERLY
35-1 HANDLED SHELLFISH. A person may not sell or offer or hold for sale
35-2 any shell stock or shucked shellfish that have not been handled and
35-3 packaged in accordance with the specifications adopted by the
35-4 board.>
35-5 <Sec. 436.022. PROHIBITION AGAINST SALE OF SHELLFISH FROM
35-6 IMPROPER FACILITIES. A person may not sell or offer or hold for
35-7 sale any shellfish from facilities for the packaging and handling
35-8 of shellfish that do not comply with the specifications adopted by
35-9 the board.>
35-10 <Sec. 436.023. PROHIBITION AGAINST SALE OF SHELLFISH WITHOUT
35-11 CERTIFICATE NUMBER. (a) A person may not sell or offer for sale
35-12 any shellfish that are not in a container bearing a valid
35-13 certificate number from a state or nation whose shellfish
35-14 certification program conforms to the current Manual of Recommended
35-15 Practice for Sanitary Control of the Shellfish Industry issued by
35-16 the Food and Drug Administration.>
35-17 <(b) This section does not apply to the sale for on-premise
35-18 consumption of shellfish removed from a certified container.>
35-19 <Sec. 436.024. CRIMINAL PENALTY. (a) A person commits an
35-20 offense if the person violates this subchapter or a rule adopted
35-21 under this subchapter. Each day of a continuing violation
35-22 constitutes a separate offense.>
35-23 <(b) An offense under Subsection (a) is a misdemeanor
35-24 punishable by a fine of not less than $200 or more than $1,000,
35-25 confinement in jail for not more than 180 days, or both.>
35-26 <(c) If it is shown at the trial of a defendant for a
35-27 violation of Section 436.018 that the defendant has been convicted
36-1 once within five years before the trial date of a violation of
36-2 Section 436.018, the defendant is guilty of a misdemeanor
36-3 punishable by a fine of not less than $500 or more than $2,000,
36-4 confinement in jail for a term not to exceed one year, or both.>
36-5 <(d) If it is shown at the trial of a defendant for a
36-6 violation of Section 436.018 that the defendant has been convicted
36-7 two or more times within five years before the trial date of a
36-8 violation of Section 436.018, the defendant is guilty of a felony
36-9 punishable by imprisonment for a term of not more than 10 years or
36-10 less than two years. In addition to imprisonment, an individual
36-11 adjudged guilty of a felony under this subsection may be punished
36-12 by a fine of not less than $2,000 or more than $5,000.>
36-13 <Sec. 436.025. DISPOSITION OF UNFIT OR UNLAWFUL SHELLFISH.
36-14 (a) Shellfish held or offered for sale at retail or for human
36-15 consumption are subject to immediate condemnation, seizure, and
36-16 confiscation by the commissioner or the commissioner's agents if
36-17 the shellfish:>
36-18 <(1) have not been handled and packaged in accordance
36-19 with specifications adopted by the board;>
36-20 <(2) are not in a certified container; or>
36-21 <(3) are otherwise found by the commissioner to be
36-22 unfit for human consumption.>
36-23 <(b) The shellfish shall be held or destroyed or disposed of
36-24 as directed by the commissioner.>
36-25 <Sec. 436.026. ENFORCEMENT. (a) The commissioner and the
36-26 commissioner's representatives, with assistance from officers of
36-27 the Parks and Wildlife Department as determined by the executive
37-1 director of that department, shall enforce this subchapter, other
37-2 than Section 436.018.>
37-3 <(b) Commissioned officers of the Parks and Wildlife
37-4 Department shall enforce Section 436.018.>
37-5 <Sections 436.027 to 436.040 reserved for expansion>
37-6 <SUBCHAPTER C. CRABMEAT PRODUCTION>
37-7 <Sec. 436.041. DEFINITIONS. In this subchapter:>
37-8 <(1) "Board" means the Texas Board of Health.>
37-9 <(2) "Crabmeat" means the edible meat of steamed or
37-10 cooked crabs that has not been processed, other than by picking,
37-11 packing, and chilling.>
37-12 <(3) "Department" means the Texas Department of
37-13 Health.>
37-14 <(4) "Pasteurization plant" means a plant in which
37-15 crabmeat is heat-treated, without complete sterilization, to
37-16 improve the keeping qualities of the meat.>
37-17 <(5) "Person" means an individual, partnership,
37-18 corporation, or association.>
37-19 <(6) "Picking plant" means a place in which crabs are
37-20 steamed or cooked and edible meat from the crabs is picked.>
37-21 <Sec. 436.042. LICENSE REQUIRED. (a) A person may not
37-22 operate a picking or pasteurization plant unless the person has a
37-23 license for that plant.>
37-24 <(b) A person must submit a license application to the
37-25 department for each plant.>
37-26 <(c) A separate license is required for each plant.>
37-27 <Sec. 436.043. INSPECTIONS. When an application has been
38-1 properly filed with the department, the department shall inspect
38-2 all properties identified in the application, all buildings and
38-3 equipment on the property, and the operating procedures under which
38-4 the product is processed.>
38-5 <Sec. 436.044. LICENSE ISSUANCE. (a) The department shall
38-6 issue a serially numbered license to a person who operates a plant
38-7 that conforms to the requirements of this subchapter and board
38-8 rules.>
38-9 <(b) A license is nontransferable and expires the last day
38-10 of February of each year.>
38-11 <(c) A person who operates a picking or pasteurization plant
38-12 must annually apply for a new license for each plant.>
38-13 <Sec. 436.045. RULES. The board shall adopt rules for the
38-14 picking, pasteurizing, storing, transporting, and selling of
38-15 crabmeat to ensure a wholesome product.>
38-16 <Sec. 436.046. COMPLIANCE WITH BOARD RULES. Crabmeat from
38-17 this state or from plants outside this state must comply with the
38-18 board rules as provided by this subchapter. The department may
38-19 seize and condemn crabmeat that does not comply with board rules.>
38-20 <Sec. 436.047. ADULTERATED OR SUBSTANDARD CRABMEAT. (a) A
38-21 person may not process, transport, store for sale, possess with the
38-22 intent to sell, offer or expose for sale, or sell any crabmeat for
38-23 human consumption that is adulterated or that is packed or
38-24 pasteurized in violation of this subchapter or a rule adopted under
38-25 this subchapter.>
38-26 <(b) The possession of adulterated crabmeat by a person
38-27 licensed under this subchapter is presumptive evidence of intent to
39-1 sell the crabmeat for human consumption.>
39-2 <(c) Crabmeat is adulterated if:>
39-3 <(1) any substance has been substituted in whole or in
39-4 part for the crabmeat;>
39-5 <(2) the crabmeat consists in whole or in part of any
39-6 filthy, putrid, or decomposed substance, or the crabmeat is for any
39-7 other reason unsound, unwholesome, unhealthful, or otherwise unfit
39-8 for human consumption;>
39-9 <(3) the crabmeat has been prepared, packed, or held
39-10 under unsanitary conditions that, in the department's judgment, may
39-11 have contaminated the crabmeat with filth or may have made it
39-12 injurious to health; or>
39-13 <(4) the crabmeat container is composed, in whole or
39-14 in part, of any poisonous or deleterious substance that may make
39-15 the contents injurious to health.>
39-16 <Sec. 436.048. LABELING OF CRABMEAT CONTAINERS. (a) A
39-17 container of crabmeat must be conspicuously labeled in a manner
39-18 approved by the department. Stamping with ink is not permitted.>
39-19 <(b) The label must contain:>
39-20 <(1) the proper designation of the content of the
39-21 container;>
39-22 <(2) the name and address of the picking plant in
39-23 which the product was produced or the name and address of the
39-24 distributor;>
39-25 <(3) the presence of any chemical, if any is allowed;>
39-26 <(4) the license number of the picking plant preceded
39-27 by the state abbreviation plainly and conspicuously marked on the
40-1 body of the container;>
40-2 <(5) the net weight of the contents; and>
40-3 <(6) any other information pertinent to the public
40-4 health required by the department.>
40-5 <(c) If a label contains the name and address of the
40-6 distributor, the name and address must be:>
40-7 <(1) preceded by the words "packed for" or
40-8 "distributed by"; and>
40-9 <(2) followed by the word "distributor.">
40-10 <(d) A label may not bear a false or misleading statement.>
40-11 <(e) In this section, "label" means a display of written,
40-12 printed, or other graphic matter on the immediate container,
40-13 excluding package liners, of an article.>
40-14 <Sec. 436.049. REVOCATION OF LICENSE. (a) If the
40-15 department finds that a provision of this subchapter has been
40-16 violated by a license holder or that a violation has occurred or is
40-17 occurring on any premises for which a license is issued, the
40-18 department shall notify the license holder in writing of the nature
40-19 of the violation and direct that the violation cease.>
40-20 <(b) The department may revoke the license of a license
40-21 holder who refuses or fails to comply in the time and manner set
40-22 forth in the notice.>
40-23 <Sec. 436.050. APPEAL OF DEPARTMENT DECISION. An applicant
40-24 for a license or a license holder who is aggrieved by a decision of
40-25 the department in failing to issue or in revoking a license may
40-26 appeal that decision to a district court in:>
40-27 <(1) the county in which the property identified in
41-1 the application or license is located; or>
41-2 <(2) Travis County.>
41-3 <Sec. 436.051. PROSECUTION; INJUNCTION. (a) At the request
41-4 of the health authority, the district or county attorney shall
41-5 prosecute a person charged with a violation of this subchapter or a
41-6 rule issued under this subchapter.>
41-7 <(b) In an appropriate proceeding, a district court may
41-8 prohibit a repetition or continuance of an offense. At the request
41-9 of the health authority, the district or county attorney shall
41-10 bring a suit to enjoin a violation of this subchapter or a rule
41-11 issued under this subchapter.>
41-12 <Sec. 436.052. CRIMINAL PENALTY. (a) A person commits an
41-13 offense if the person violates a provision of this subchapter or a
41-14 rule adopted under this subchapter.>
41-15 <(b) An offense under this section is a misdemeanor
41-16 punishable by a fine of not less than $25 or more than $200.>
41-17 <(c) Each violation constitutes a separate offense.>
41-18 SECTION 2. The change in law made by this Act applies only
41-19 to a certificate or license issued under Chapter 436, Health and
41-20 Safety Code, on or after the effective date of this Act. A
41-21 certificate or license issued before the effective date of this Act
41-22 is covered by the law in effect when the certificate or license was
41-23 issued, and the former law is continued in effect for this purpose.
41-24 SECTION 3. (a) The change in law made by this Act applies
41-25 only to an offense or unlawful act committed under Chapter 436,
41-26 Health and Safety Code, on or after the effective date of this Act.
41-27 For purposes of this section, an offense or unlawful act is
42-1 committed before the effective date of this Act if any element of
42-2 the offense or act occurs before the effective date.
42-3 (b) An offense or unlawful act committed before the
42-4 effective date of this Act is covered by the law in effect when the
42-5 offense was committed, and the former law is continued in effect
42-6 for that purpose.
42-7 SECTION 4. This Act takes effect September 1, 1993.
42-8 SECTION 5. The importance of this legislation and the
42-9 crowded condition of the calendars in both houses create an
42-10 emergency and an imperative public necessity that the
42-11 constitutional rule requiring bills to be read on three several
42-12 days in each house be suspended, and this rule is hereby suspended.