1-1 By: Armbrister S.B. No. 556
1-2 (In the Senate - Filed March 2, 1993; March 3, 1993, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 2, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; April 2, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Sims x
1-10 Truan x
1-11 Armbrister x
1-12 Barrientos x
1-13 Bivins x
1-14 Brown x
1-15 Carriker x
1-16 Lucio x
1-17 Montford x
1-18 Ratliff x
1-19 Shelley x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 556 By: Armbrister
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to regulating the taking of crab, molluscan shellfish, and
1-24 other aquatic life; providing civil and criminal penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Chapter 436, Health and Safety Code, is amended
1-27 to read as follows:
1-28 CHAPTER 436. AQUATIC LIFE
1-29 SUBCHAPTER A. GENERAL PROVISIONS
1-30 Sec. 436.001. SHORT TITLE. This chapter may be cited as the
1-31 Texas Aquatic Life Act.
1-32 Sec. 436.002. DEFINITIONS. In this chapter:
1-33 (1) "Approved area" means a molluscan shellfish
1-34 growing area determined to be acceptable for harvesting of
1-35 molluscan shellfish for direct marketing according to the National
1-36 Shellfish Sanitation Program.
1-37 (2) "Approved source" means a source of molluscan
1-38 shellfish acceptable to the director.
1-39 (3) "Aquatic life" means animals and plants that live
1-40 in water.
1-41 (4) "Authorized agent" means an employee of the
1-42 department who is designated by the director to enforce provisions
1-43 of this chapter.
1-44 (5) "Board" means the Texas Board of Health.
1-45 (6) "Closed area" means a molluscan shellfish growing
1-46 area where the taking including the harvesting for sale, the
1-47 harvesting for transplant, or the gathering for depuration of
1-48 molluscan shellfish is temporarily or permanently not permitted. A
1-49 closed area status may be placed on any one of the five classified
1-50 area designations established by the National Shellfish Sanitation
1-51 Program.
1-52 (7) "Conditionally approved area" means a molluscan
1-53 shellfish growing area determined to meet approved area criteria
1-54 for a predictable period conditioned on performance standards
1-55 specified in a management plan. A conditionally approved area is a
1-56 closed area when the area does not meet the approved area criteria.
1-57 (8) "Conditionally restricted area" means a molluscan
1-58 shellfish growing area determined to meet restricted area criteria
1-59 for a predictable period conditioned on performance standards
1-60 specified in a management plan. A conditionally restricted area is
1-61 open for transplanting or gathering for depuration only during the
1-62 times it meets the restricted area criteria and is specified as a
1-63 conditionally restricted area by the department. A conditionally
1-64 restricted area is a closed area at all times for harvesting of
1-65 molluscan shellfish for direct marketing.
1-66 (9) "Container" means the physical material in contact
1-67 with or immediately surrounding molluscan shellfish or crabmeat
1-68 that confines it into a single unit.
2-1 (10) "Crabmeat" means the edible meat of steamed or
2-2 cooked crabs that has not been processed other than by picking,
2-3 packing, and chilling.
2-4 (11) "Crabmeat processing license" means a numbered
2-5 document issued by the department that authorizes a person to
2-6 process crabmeat for sale.
2-7 (12) "Crabmeat processor" means a person who cooks and
2-8 backs crabs and who picks, packs, or pasteurizes crabmeat.
2-9 (13) "Department" means the Texas Department of
2-10 Health.
2-11 (14) "Depletion" means the removal of all existing
2-12 commercial quantities of market-size molluscan shellfish.
2-13 (15) "Depuration" means the process of using any
2-14 approved artificially controlled aquatic environment to reduce the
2-15 level of bacteria and viruses in molluscan shellfish.
2-16 (16) "Depuration plant" means a place where depuration
2-17 of molluscan shellfish occurs.
2-18 (17) "Director" means the executive head of the Texas
2-19 Department of Health.
2-20 (18) "Growing area" means an area that supports or
2-21 could support live molluscan shellfish.
2-22 (19) "Health authority" means a physician authorized
2-23 to administer state or local laws relating to public health.
2-24 (20) "Label" means written, printed, or graphic matter
2-25 appearing on a container of molluscan shellfish or crabmeat,
2-26 including any written, printed, or graphic matter on any wrappers
2-27 or accompanying any molluscan shellfish or crabmeat.
2-28 (21) "Molluscan shellfish" means an edible species of
2-29 oyster, clam, or mussel that is shucked, in the shell, fresh, or
2-30 fresh frozen, in whole or in part, as defined by the National
2-31 Shellfish Sanitation Program.
2-32 (22) "National Shellfish Sanitation Program" means the
2-33 cooperative program by the states, the United States Food and Drug
2-34 Administration, and the shellfish industry that classifies
2-35 molluscan shellfish growing areas and certifies interstate
2-36 molluscan shellfish shippers according to the National Shellfish
2-37 Sanitation Program Manual of Operations or its successor program
2-38 and documents.
2-39 (23) "Open area" means a molluscan shellfish growing
2-40 area where harvesting for sale, harvesting for transplant, or
2-41 gathering for depuration of molluscan shellfish is permitted. An
2-42 open area status may be placed on any one of the classified area
2-43 designations established by the National Shellfish Sanitation
2-44 Program except for a prohibited area.
2-45 (24) "Pasteurization plant" means a place where
2-46 crabmeat is heat-treated in compliance with rules adopted by the
2-47 board, without complete sterilization, to improve the keeping
2-48 qualities of the meat.
2-49 (25) "Picking plant" means a place where crabs are
2-50 cooked and edible meat is picked from the crabs.
2-51 (26) "Possess" means the act of having in possession
2-52 or control, keeping, detaining, restraining, or holding as owner,
2-53 agent, bailee, or custodian for another.
2-54 (27) "Prohibited area" means an area where the
2-55 director finds, according to a sanitary, chemical, or
2-56 bacteriological survey, that the area contains aquatic life that is
2-57 unfit for human consumption. A prohibited area for molluscan
2-58 shellfish means a molluscan shellfish growing area determined to be
2-59 unacceptable for transplanting, gathering for depuration, or
2-60 harvesting of molluscan shellfish. The only molluscan shellfish
2-61 removal permitted from a prohibited area is for the purpose of
2-62 depletion.
2-63 (28) "Principal display panel" means the part of a
2-64 label that is most likely to be displayed, presented, shown, or
2-65 examined under normal and customary conditions of display for sale.
2-66 (29) "Public water" means all bodies of water that are
2-67 the property of the state under Section 1.011, Parks and Wildlife
2-68 Code.
2-69 (30) "Restricted area" means a molluscan shellfish
2-70 growing area that is determined to be unacceptable for harvesting
3-1 of molluscan shellfish for direct marketing but that is acceptable
3-2 for transplanting or gathering for depuration. A restricted area
3-3 may be closed for transplanting or gathering for depuration when
3-4 the area does not meet the restricted area criteria established by
3-5 the National Shellfish Sanitation Program.
3-6 (31) "Sale" means the transfer of ownership or the
3-7 right of possession of an item to a person for consideration and
3-8 includes barter.
3-9 (32) "Shellfish certificate" means a numbered document
3-10 issued by the department that authorizes a person to process
3-11 molluscan shellfish for sale.
3-12 (33) "Shellfish processor" means a person who
3-13 depurates, shucks, packs, or repacks molluscan shellfish.
3-14 (34) "Take" means catch, hook, net, snare, trap, kill,
3-15 or capture by any means, including the attempt to take.
3-16 Sec. 436.003. AUTHORITY TO DELEGATE POWERS AND DUTIES.
3-17 (a) The board by rule may delegate a power or duty imposed on the
3-18 director in this chapter, including the power or duty to issue
3-19 emergency rules or orders or to render a final administrative
3-20 decision.
3-21 (b) A health authority may delegate any power or duty
3-22 imposed on the health authority in this chapter to an employee of
3-23 the local health department, the local health unit, or the public
3-24 health district in which the health authority serves, unless
3-25 otherwise restricted by law.
3-26 (Sections 436.004 to 436.010 reserved for expansion
3-27 SUBCHAPTER B. PROHIBITED ACTS
3-28 Sec. 436.011. PROHIBITED ACTS. The following acts and the
3-29 causing of the following acts within this state are unlawful and
3-30 prohibited:
3-31 (1) taking, selling, offering for sale, or holding for
3-32 sale molluscan shellfish from a closed area;
3-33 (2) taking, selling, offering for sale, or holding for
3-34 sale molluscan shellfish from a restricted or conditionally
3-35 restricted area without complying with a rule adopted by the board
3-36 to ensure that the molluscan shellfish have been purified, unless:
3-37 (A) permission is first obtained from the Parks
3-38 and Wildlife Department and the transplanting is supervised by that
3-39 department; and
3-40 (B) the Parks and Wildlife Department furnishes
3-41 a copy of the transplant permit to the director before
3-42 transplanting activities begin;
3-43 (3) possessing a species of aquatic life taken from a
3-44 prohibited area while the area was prohibited for that species;
3-45 (4) operating as a molluscan shellfish processor
3-46 without a shellfish certificate for each plant or place of
3-47 business;
3-48 (5) operating as a crabmeat processor without a
3-49 crabmeat processing license for each plant;
3-50 (6) selling, offering for sale, or holding for sale
3-51 molluscan shellfish or crabmeat that has not been picked, handled,
3-52 packaged, or pasteurized in accordance with the rules adopted by
3-53 the board;
3-54 (7) selling, offering for sale, or holding for sale
3-55 molluscan shellfish or crabmeat from facilities for the handling
3-56 and packaging of molluscan shellfish or crabmeat that do not comply
3-57 with the rules adopted by the board;
3-58 (8) selling, offering for sale, or holding for sale
3-59 molluscan shellfish or crabmeat that is not labeled in accordance
3-60 with the rules adopted by the board;
3-61 (9) selling, offering for sale, or holding for sale
3-62 molluscan shellfish that is not in a container bearing a valid
3-63 certificate number from a state or nation whose molluscan shellfish
3-64 certification program conforms to the current Manual of Operations
3-65 for Sanitary Control of the Shellfish Industry issued by the Food
3-66 and Drug Administration or its successor, except selling molluscan
3-67 shellfish removed from a container bearing a valid certificate
3-68 number for on-premises consumption; in the event the Texas
3-69 Molluscan Shellfish Program is found to be out of conformity with
3-70 the current Manual of Operations, selling, offering for sale, or
4-1 holding for sale molluscan shellfish in a container bearing a valid
4-2 Texas certificate number shall not be considered a violation of
4-3 this chapter provided all other requirements of this chapter are
4-4 complied with and the shellfish have come from an approved source;
4-5 (10) processing, transporting, storing for sale,
4-6 possessing with intent to sell, offering for sale, or selling
4-7 molluscan shellfish or crabmeat for human consumption that is
4-8 adulterated or misbranded;
4-9 (11) removing or disposing of a detained or embargoed
4-10 article in violation of Section 436.028;
4-11 (12) altering, mutilating, destroying, obliterating,
4-12 or removing all or part of the labeling of a container;
4-13 (13) adulterating or misbranding molluscan shellfish
4-14 or crabmeat in commerce;
4-15 (14) refusing to permit entry or inspection, to permit
4-16 the taking of a sample, or to permit access to or copying by an
4-17 authorized agent of a record required by this chapter;
4-18 (15) failing to establish or maintain a record or
4-19 report required by this chapter or by a rule adopted by the board;
4-20 or
4-21 (16) violating a rule adopted by the board or an
4-22 emergency rule or order adopted by the director.
4-23 (Sections 436.012 to 436.020 reserved for expansion
4-24 SUBCHAPTER C. ENFORCEMENT
4-25 Sec. 436.021. DEFINITION. In this subchapter, "detained or
4-26 embargoed article" means molluscan shellfish or crabmeat that has
4-27 been detained or embargoed under Section 436.028.
4-28 Sec. 436.022. INSPECTION. (a) The director, an authorized
4-29 agent, or a health authority may, on presenting appropriate
4-30 credentials to the owner, operator, or agent in charge:
4-31 (1) enter at reasonable times, including when
4-32 processing is conducted, an establishment or location in which
4-33 molluscan shellfish or crabmeat is processed, packed, pasteurized,
4-34 or held for introduction into commerce or held after introduction
4-35 into commerce;
4-36 (2) enter a vehicle being used to transport or hold
4-37 the molluscan shellfish or crabmeat in commerce; or
4-38 (3) inspect the establishment, location, or vehicle,
4-39 including equipment, records, files, papers, materials, containers,
4-40 labels, or other items, and obtain samples necessary for
4-41 enforcement of this chapter.
4-42 (b) The inspection of an establishment or location is to
4-43 determine whether the molluscan shellfish or crabmeat:
4-44 (1) is adulterated or misbranded;
4-45 (2) may not be processed, introduced into commerce,
4-46 sold, or offered for sale under this chapter or the rules adopted
4-47 by the board; or
4-48 (3) is otherwise in violation of this chapter.
4-49 (c) The director, an authorized agent, or a health authority
4-50 may not inspect:
4-51 (1) financial data;
4-52 (2) sales data, other than shipment data;
4-53 (3) pricing data;
4-54 (4) personnel data, other than personnel data relating
4-55 to the qualifications of technical and professional personnel; or
4-56 (5) research data.
4-57 Sec. 436.023. ACCESS TO RECORDS. A person who is required
4-58 to maintain records under this chapter or a rule adopted by the
4-59 board or a person who is in charge or custody of those records on
4-60 request shall permit the director, authorized agent, or health
4-61 authority at all reasonable times to have access to and to copy the
4-62 records.
4-63 Sec. 436.024. ACCESS TO RECORDS SHOWING MOVEMENT IN
4-64 COMMERCE. (a) A commercial carrier or other person receiving or
4-65 holding molluscan shellfish or crabmeat in commerce on request
4-66 shall permit the director, authorized agent, or health authority at
4-67 all reasonable times to have access to and to copy all records
4-68 showing:
4-69 (1) the movement in commerce of the molluscan
4-70 shellfish or crabmeat;
5-1 (2) the holding after movement in commerce of the
5-2 molluscan shellfish or crabmeat; or
5-3 (3) the quantity, shipper, and consignee of the
5-4 molluscan shellfish or crabmeat.
5-5 (b) The carrier or other person may not refuse access to and
5-6 copying of the requested records if the request is accompanied by a
5-7 written statement that specifies the nature or kind of molluscan
5-8 shellfish or crabmeat to which the request relates.
5-9 (c) A carrier is not subject to other provisions of this
5-10 chapter solely because of the carrier's receipt, carriage, holding,
5-11 or delivery of molluscan shellfish or crabmeat in the usual course
5-12 of business as a carrier.
5-13 Sec. 436.025. EMERGENCY ORDER. (a) The director may issue
5-14 an emergency order that mandates or prohibits the taking,
5-15 processing, or sale of molluscan shellfish or crabmeat in the
5-16 department's jurisdiction if:
5-17 (1) the processing or sale of the molluscan shellfish
5-18 or crabmeat creates or poses an immediate threat to human life or
5-19 health; and
5-20 (2) other procedures available to the department to
5-21 remedy or prevent the threat will result in unreasonable delay.
5-22 (b) The director may issue the emergency order without
5-23 notice and hearing if the director or a person designated by the
5-24 director determines that issuing the emergency order without notice
5-25 and hearing is necessary under the circumstances.
5-26 (c) If an emergency order is issued without a hearing, the
5-27 department shall determine the earliest time and place for a
5-28 hearing at which the emergency order shall be affirmed, modified,
5-29 or set aside. The hearing shall be held under board rules.
5-30 (d) This section prevails over Sections 11.013 and 12.001.
5-31 Sec. 436.026. VIOLATION; INJUNCTION. (a) The director, an
5-32 authorized agent, or a health authority may petition the district
5-33 court for a temporary restraining order to restrain a continuing
5-34 violation or a threat of a continuing violation of Section 436.011
5-35 if the director, authorized agent, or health authority believes
5-36 that:
5-37 (1) a person has violated, is violating, or is
5-38 threatening to violate a provision of Section 436.011; and
5-39 (2) the violation or threatened violation creates an
5-40 immediate threat to the health and safety of the public.
5-41 (b) If the court finds that a person is violating or
5-42 threatening to violate Section 436.011, the court shall grant
5-43 injunctive relief.
5-44 (c) Venue for a suit brought under this section is in the
5-45 county in which the violation or threat of violation is alleged to
5-46 have occurred or in Travis County.
5-47 Sec. 436.027. CIVIL PENALTY. (a) At the request of the
5-48 director, the attorney general or a district, county, or municipal
5-49 attorney shall institute an action in district or county court to
5-50 collect a civil penalty from a person who has violated Section
5-51 436.011.
5-52 (b) A person who violates Section 436.011 is liable for a
5-53 civil penalty not to exceed $25,000 a day for each violation. Each
5-54 day of a continuing violation constitutes a separate violation for
5-55 purposes of penalty assessment.
5-56 (c) In determining the amount of the penalty, the court
5-57 shall consider:
5-58 (1) the person's history of previous violations under
5-59 this chapter;
5-60 (2) the seriousness of the violation;
5-61 (3) any hazard to the health and safety of the public;
5-62 (4) the demonstrated good faith of the person; and
5-63 (5) other matters as justice may require.
5-64 (d) A civil penalty recovered in a suit instituted by the
5-65 attorney general under this chapter shall be deposited in the state
5-66 treasury to the credit of the general revenue fund. A civil
5-67 penalty recovered in a suit instituted by a local government under
5-68 this chapter shall be paid to the local government.
5-69 (e) Venue for a suit to collect a civil penalty brought
5-70 under this section is in the municipality or county in which the
6-1 violation occurred or in Travis County.
6-2 Sec. 436.028. DETAINED OR EMBARGOED ARTICLE. (a) The
6-3 director or an authorized agent may detain or embargo molluscan
6-4 shellfish or crabmeat if the director or authorized agent believes
6-5 or has probable cause to believe that the molluscan shellfish or
6-6 crabmeat:
6-7 (1) is adulterated; or
6-8 (2) is misbranded so that the molluscan shellfish or
6-9 crabmeat is dangerous or fraudulent under this chapter.
6-10 (b) The director or an authorized agent shall affix to any
6-11 molluscan shellfish or crabmeat a tag or other appropriate marking
6-12 that gives notice that the molluscan shellfish or crabmeat is, or
6-13 is suspected of being, adulterated or misbranded and that the
6-14 molluscan shellfish or crabmeat has been detained or embargoed.
6-15 (c) The tag or marking on a detained or embargoed article
6-16 must prohibit the removal or disposal of the article unless
6-17 permission is given by the director, the authorized agent, or a
6-18 court.
6-19 (d) A person may not remove a detained or embargoed article
6-20 from the premises or dispose of it without permission of the
6-21 director, the authorized agent, or a court. The director or the
6-22 authorized agent may permit perishable goods to be moved to a place
6-23 suitable for proper storage.
6-24 (e) The director or an authorized agent shall remove the tag
6-25 or other marking from a detained or embargoed article if the
6-26 director or an authorized agent believes that the article is not
6-27 adulterated or misbranded.
6-28 (f) The claimant of a detained or embargoed article may move
6-29 the article to a secure storage area with the permission of the
6-30 director or an authorized agent.
6-31 Sec. 436.029. REMOVAL ORDER FOR DETAINED OR EMBARGOED
6-32 ARTICLE. (a) The director or authorized agent may order the
6-33 claimant or the claimant's agent to move a detained or embargoed
6-34 article to a secure place to prevent the unauthorized disposal or
6-35 removal of the article.
6-36 (b) If the claimant fails to carry out the order, the
6-37 director or the authorized agent may move the article.
6-38 (c) If the director or the authorized agent moves the
6-39 article, the director shall assess the cost of removal against the
6-40 claimant.
6-41 (d) The director may request the attorney general to bring
6-42 an action in the district court in Travis County to recover the
6-43 costs of removal. In a judgment in favor of the state, the court
6-44 may award costs, attorney fees, and interest from the date the
6-45 expense was incurred until the date the department is reimbursed.
6-46 Sec. 436.030. RECALL FROM COMMERCE. (a) The director may
6-47 order a recall of molluscan shellfish or crabmeat with:
6-48 (1) the detention or embargo of molluscan shellfish or
6-49 crabmeat;
6-50 (2) the issuance of an emergency order under Section
6-51 436.025; or
6-52 (3) both.
6-53 (b) The director's recall order may require that the
6-54 molluscan shellfish or crabmeat be removed to one or more secure
6-55 areas approved by the director or authorized agent.
6-56 (c) The recall order must be in writing and be signed by the
6-57 director and may be issued:
6-58 (1) before or in conjunction with a tag or other
6-59 marking as provided by Section 436.028;
6-60 (2) with an emergency order authorized by Section
6-61 436.025; or
6-62 (3) both.
6-63 (d) The recall order is effective until it expires by its
6-64 own terms, is withdrawn by the director, is reversed by a court in
6-65 an order denying condemnation, or is set aside at a hearing
6-66 authorized by Section 436.025.
6-67 (e) The claimant shall pay the costs of the removal and
6-68 storage of a recalled product. If the claimant or the claimant's
6-69 agent fails to carry out the recall order, the director may recall
6-70 the product. The director shall assess the costs of the recall
7-1 against the claimant.
7-2 (f) The director may request the attorney general to bring
7-3 an action in a district court in Travis County to recover the costs
7-4 of recall. In a judgment in favor of the state, the court may
7-5 award costs, attorney fees, and interest from the date the expense
7-6 was incurred until the date the department is reimbursed.
7-7 Sec. 436.031. CONDEMNATION. If molluscan shellfish or
7-8 crabmeat is adulterated or misbranded, an action for the
7-9 condemnation of the molluscan shellfish or crabmeat may be filed in
7-10 a district court in whose jurisdiction the molluscan shellfish or
7-11 crabmeat is located.
7-12 Sec. 436.032. DESTRUCTION OF MOLLUSCAN SHELLFISH OR
7-13 CRABMEAT. (a) The court may order the destruction of sampled,
7-14 detained, or embargoed molluscan shellfish or crabmeat if the court
7-15 finds that the article is adulterated or misbranded.
7-16 (b) After entry of the court's order, an authorized agent
7-17 shall supervise the destruction of the article.
7-18 (c) The claimant shall pay the cost of the destruction of
7-19 the article.
7-20 (d) The court shall order the claimant or the claimant's
7-21 agent to pay court costs, storage fees, and other proper expenses.
7-22 Sec. 436.033. CORRECTION BY PROPER LABELING. (a) A court
7-23 may order the delivery of sampled, detained, or embargoed molluscan
7-24 shellfish or crabmeat that is misbranded to the claimant for
7-25 relabeling under the supervision of the director or an authorized
7-26 agent if:
7-27 (1) the court costs and other expenses have been paid;
7-28 (2) proper labeling can correct the misbranding; and
7-29 (3) the claimant executes a bond, conditioned on the
7-30 correction of the misbranding by proper labeling.
7-31 (b) The claimant shall pay the costs of the supervision.
7-32 (c) The court shall order the return of the molluscan
7-33 shellfish or crabmeat to the claimant if the director or an
7-34 authorized agent represents to the court that the molluscan
7-35 shellfish or crabmeat no longer violates this chapter and that the
7-36 expenses of supervision are paid.
7-37 Sec. 436.034. ADMINISTRATIVE PENALTY. (a) The director may
7-38 assess an administrative penalty against a person who violates
7-39 Section 436.011 or an order issued under this chapter.
7-40 (b) In determining the amount of the penalty, the director
7-41 shall consider:
7-42 (1) the person's previous violations;
7-43 (2) the seriousness of the violation;
7-44 (3) the hazard to the health and safety of the public;
7-45 (4) the person's demonstrated good faith; and
7-46 (5) other matters as justice may require.
7-47 (c) The penalty may not exceed $25,000 a day for each
7-48 violation.
7-49 (d) Each day of a continuing violation constitutes a
7-50 separate violation.
7-51 Sec. 436.035. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
7-52 (a) The director may assess an administrative penalty only after a
7-53 person charged with a violation is given an opportunity for a
7-54 hearing.
7-55 (b) If a hearing is held, the director shall make findings
7-56 of fact and shall issue a written decision regarding the violation
7-57 and the amount of the penalty.
7-58 (c) If the person charged with the violation does not
7-59 request a hearing, the director may assess a penalty after
7-60 determining that a violation has occurred and the amount of the
7-61 penalty.
7-62 (d) The director shall issue an order requiring a person to
7-63 pay a penalty assessed under this section.
7-64 (e) The director may consolidate a hearing held under this
7-65 section with another proceeding.
7-66 Sec. 436.036. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
7-67 later than the 30th day after the date an order is issued under
7-68 Section 436.035(d), the director shall notify the person against
7-69 whom the penalty is assessed of the order and the amount of the
7-70 penalty.
8-1 (b) Not later than the 30th day after the date notice of the
8-2 order is given to the person, the person shall:
8-3 (1) pay the penalty in full; or
8-4 (2) seek judicial review of the amount of the penalty,
8-5 the findings of the director, or both.
8-6 (c) If the person seeks judicial review, the person shall:
8-7 (1) send the amount of the penalty to the director for
8-8 placement in an escrow account; or
8-9 (2) post with the director a bond for the amount of
8-10 the penalty.
8-11 (d) A bond posted under this section must be in a form
8-12 approved by the director and must be effective until judicial
8-13 review of the order or decision is final.
8-14 (e) A person who does not send the money to the director or
8-15 post the bond within the period described by Subsection (b) waives
8-16 all rights to contest the violation or the amount of the penalty.
8-17 (f) The attorney general, at the request of the director,
8-18 may bring a civil action to recover an administrative penalty
8-19 assessed under this subchapter.
8-20 Sec. 436.037. REFUND OF ADMINISTRATIVE PENALTY. Not later
8-21 than the 30th day after the date of a judicial determination that
8-22 an administrative penalty against a person should be reduced or not
8-23 assessed, the director shall:
8-24 (1) remit to the person the appropriate amount of any
8-25 penalty payment plus accrued interest; or
8-26 (2) execute a release of the bond if the person has
8-27 posted a bond.
8-28 Sec. 436.038. CRIMINAL PENALTY; DEFENSES. (a) A person
8-29 commits an offense if the person intentionally, knowingly,
8-30 recklessly, or with criminal negligence commits an unlawful act
8-31 under Section 436.011.
8-32 (b) A violation of Section 436.011(1), (2), or (3) is a
8-33 Class B Parks and Wildlife Code misdemeanor under Section 12.405,
8-34 Parks and Wildlife Code. Each day of a continuing violation
8-35 constitutes a separate offense. Commissioned officers of the Parks
8-36 and Wildlife Department shall enforce Sections 436.011(1), (2), and
8-37 (3).
8-38 (c) If it is shown at trial that the defendant has been
8-39 convicted once within five years before the trial date of a
8-40 violation of Section 436.011(1) or (2), a violation by the
8-41 defendant under Section 436.011(1) or (2) is a Class A Parks and
8-42 Wildlife Code misdemeanor under Section 12.404, Parks and Wildlife
8-43 Code.
8-44 (d) If it is shown at trial that the defendant has been
8-45 convicted two or more times within five years before the trial date
8-46 of a violation of Section 436.011(1) or (2), a violation by the
8-47 defendant under Section 436.011(1) or (2) is a Parks and Wildlife
8-48 Code felony under Section 12.407, Parks and Wildlife Code.
8-49 (e) A violation of Section 436.011(4), (5), (6), (7), (8),
8-50 (9), (10), (11), (12), (13), (14), or (15) is a Class A
8-51 misdemeanor. Each day of a continuing violation constitutes a
8-52 separate offense.
8-53 (f) A person is not subject to the penalties of Subsection
8-54 (e) if the person received molluscan shellfish or crabmeat in
8-55 commerce and delivered or offered to deliver the molluscan
8-56 shellfish or crabmeat in good faith, unless the person refuses to
8-57 furnish on request of the director, an authorized agent, or a
8-58 health authority the name and address of the person from whom the
8-59 product was received and copies of any documents relating to the
8-60 receipt of the product.
8-61 (g) A publisher, radiobroadcast licensee, or agency or
8-62 medium for the publication or broadcast of an advertisement, except
8-63 the harvester, processor, distributor, or seller of molluscan
8-64 shellfish or crabmeat to which a false advertisement relates, is
8-65 not liable under this section for the publication or broadcast of
8-66 the false advertisement unless the person has refused to furnish,
8-67 on the request of the director, the name and address of the
8-68 harvester, processor, distributor, seller, or advertising agency
8-69 residing in this state who caused the person to publish or
8-70 broadcast the advertisement.
9-1 (h) A person is not subject to the penalties of Subsection
9-2 (e) for a violation of Section 436.011 involving misbranded
9-3 molluscan shellfish or crabmeat if the violation exists only
9-4 because the product is misbranded because of a mistake in
9-5 advertising, unless the violation is committed with intent to
9-6 defraud or mislead.
9-7 Sec. 436.039. INITIATION OF PROCEEDINGS. The attorney
9-8 general or a district, county, or municipal attorney to whom the
9-9 director, an authorized agent, or a health authority reports a
9-10 violation of this chapter shall prosecute without delay.
9-11 Sec. 436.040. MINOR VIOLATION. This chapter does not
9-12 require the director, an authorized agent, or a health authority to
9-13 report for prosecution a minor violation of this chapter if the
9-14 director, authorized agent, or health authority believes that the
9-15 public interest is adequately served by a written warning.
9-16 (Sections 436.041 to 436.060 reserved for expansion
9-17 SUBCHAPTER D. ADULTERATED AQUATIC LIFE
9-18 Sec. 436.061. ADULTERATED AQUATIC LIFE. (a) A species of
9-19 aquatic life is adulterated if it has been taken from an area
9-20 declared prohibited for that species by the director.
9-21 (b) Molluscan shellfish or crabmeat is adulterated if:
9-22 (1) it bears or contains a poisonous or deleterious
9-23 substance that may render it injurious to health unless the
9-24 substance is a naturally occurring substance and the quantity of
9-25 the substance in the molluscan shellfish or crabmeat does not
9-26 ordinarily render the substance injurious to health;
9-27 (2) it consists in whole or in part of a diseased,
9-28 contaminated, filthy, or putrid substance or if it is otherwise
9-29 unfit for human consumption;
9-30 (3) it has been produced, prepared, packed, or held
9-31 under unsanitary conditions whereby it may have become contaminated
9-32 with filth or may have been rendered diseased, unwholesome, or
9-33 injurious to health;
9-34 (4) it is in whole or in part the product of diseased
9-35 aquatic life or has died otherwise than by taking;
9-36 (5) its container is made in whole or in part of a
9-37 poisonous or deleterious substance that may render the contents
9-38 injurious to health;
9-39 (6) it has been intentionally exposed to radiation,
9-40 unless the use of the radiation complied with a regulation or an
9-41 exemption under Section 409, Federal Food, Drug, and Cosmetic Act
9-42 (21 U.S.C. Section 348);
9-43 (7) a substance has been substituted in whole or in
9-44 part for it;
9-45 (8) damage to or inferiority of the product has been
9-46 concealed;
9-47 (9) a substance has been added, mixed, or packed to
9-48 increase its bulk or weight, to reduce its quality or strength, or
9-49 to make it appear better or of greater value than it is;
9-50 (10) it contains a chemical substance containing
9-51 sulphites, sulphur dioxide, or any other chemical preservative that
9-52 is not approved by the Animal Plant Health Inspection Service or by
9-53 rules of the board;
9-54 (11) the molluscan shellfish have been taken from a
9-55 closed area;
9-56 (12) the molluscan shellfish have been taken from a
9-57 restricted or conditionally restricted area and have not been
9-58 purified under the rules adopted by the board;
9-59 (13) the molluscan shellfish have been processed by a
9-60 person without a shellfish certificate;
9-61 (14) the molluscan shellfish have not been handled and
9-62 packaged in accordance with the rules adopted by the board;
9-63 (15) the crabmeat has been processed by a person
9-64 without a crabmeat processing license; or
9-65 (16) the crabmeat was not picked, packed, or
9-66 pasteurized in accordance with the rules adopted by the board.
9-67 (Sections 436.062 to 436.070 reserved for expansion
9-68 SUBCHAPTER E. MISBRANDING
9-69 Sec. 436.071. MISBRANDED MOLLUSCAN SHELLFISH AND CRABMEAT.
9-70 Molluscan shellfish or crabmeat is misbranded if:
10-1 (1) its labeling is false, misleading, or fails to
10-2 conform with the requirements of Section 436.081;
10-3 (2) it is offered for sale under the name of another
10-4 food;
10-5 (3) its container is made, formed, or filled so as to
10-6 be misleading;
10-7 (4) a word, statement, or other information required
10-8 by this chapter or a rule adopted under this chapter to appear on a
10-9 label is not prominently and conspicuously placed on the label and
10-10 is not likely to be read and understood by the ordinary individual
10-11 under customary conditions of purchase and use; or
10-12 (5) it does not have a label containing:
10-13 (A) the name, address, and certification or
10-14 license number of the processor;
10-15 (B) an accurate statement in a uniform location
10-16 on the principal display panel of the quantity of the contents in
10-17 terms of weight, measure, or numerical count; and
10-18 (C) a date as provided by rules adopted by the
10-19 board.
10-20 (Sections 436.072 to 436.080 reserved for expansion
10-21 SUBCHAPTER F. LABELING AND PACKAGING
10-22 Sec. 436.081. FAIR PACKAGING AND LABELING. (a) A label on
10-23 molluscan shellfish or crabmeat shall conform to the requirements
10-24 for the declaration of net quantity of contents under Section 1453,
10-25 Fair Packaging and Labeling Act (15 U.S.C. Section 1453), and the
10-26 regulations adopted under that Act.
10-27 (b) The label on a package of molluscan shellfish or
10-28 crabmeat that represents the number of servings contained in the
10-29 package shall state the net quantity in terms of weight, measure,
10-30 or numerical count of each serving.
10-31 (c) A person may not distribute or cause to be distributed
10-32 in commerce any molluscan shellfish or crabmeat if a qualifying
10-33 word or phrase appears with the statement of the net quantity of
10-34 contents required by Subsection (a). A supplemental statement at
10-35 another place on the package may contain descriptions in
10-36 nondeceptive terms of the net quantity of contents, except the
10-37 supplemental statement of net quantity of contents may not include
10-38 a term qualifying a unit of weight, measure, or count that tends to
10-39 exaggerate the amount of the shellfish or crabmeat in the package.
10-40 Sec. 436.082. FALSE ADVERTISEMENT. An advertisement of
10-41 molluscan shellfish or crabmeat is false if it is false or
10-42 misleading in any manner.
10-43 (Sections 436.083 to 436.090 reserved for expansion
10-44 SUBCHAPTER G. AQUATIC LIFE FROM PROHIBITED AREAS
10-45 Sec. 436.091. DECLARATION OF PROHIBITED AREAS. (a) The
10-46 director by order shall declare a body of public water to be a
10-47 prohibited area if:
10-48 (1) the director finds, according to a sanitary,
10-49 chemical, or bacteriological survey, that the area contains aquatic
10-50 life that is unfit for human consumption; or
10-51 (2) aquatic life from a prohibited area may have been
10-52 transferred to that body of public water.
10-53 (b) The director shall modify or revoke an order according
10-54 to the results of a sanitary, chemical, or bacteriological survey
10-55 conducted by the department. The director shall file the order in
10-56 the department's office and shall furnish without charge a copy of
10-57 the order describing prohibited areas on request.
10-58 (c) The director shall conspicuously outline prohibited
10-59 areas on maps and shall furnish the maps without charge on request.
10-60 The failure of a person to obtain that information does not relieve
10-61 that person from liability under this chapter.
10-62 (Sections 436.092 to 436.100 reserved for expansion
10-63 SUBCHAPTER H. MOLLUSCAN SHELLFISH
10-64 Sec. 436.101. CLASSIFICATION OF GROWING AREAS. (a) The
10-65 director by order shall designate an area that is coastal water
10-66 according to the rules of the Parks and Wildlife Commission as an
10-67 approved area, a conditionally approved area, a restricted area, a
10-68 conditionally restricted area, or a prohibited area, according to
10-69 the classification categories in the current National Shellfish
10-70 Sanitation Program Manual of Operations or its successor. Coastal
11-1 water is a prohibited area for the taking of molluscan shellfish
11-2 unless designated otherwise by the director.
11-3 (b) The director shall prohibit the taking of molluscan
11-4 shellfish for a specified period from water to which molluscan
11-5 shellfish may have been transferred from a restricted or
11-6 conditionally restricted area.
11-7 (c) The director by order shall designate growing areas as
11-8 closed areas or open areas. The director shall modify or revoke an
11-9 order according to the results of sanitary and bacteriological
11-10 surveys conducted by the department. The director shall file the
11-11 order in the department's office and shall furnish without charge a
11-12 copy of the order describing the open or closed area on request.
11-13 (d) The director shall conspicuously outline the
11-14 classifications of areas for the taking of molluscan shellfish on
11-15 maps and shall furnish the maps without charge on request. The
11-16 failure of a person to obtain that information does not relieve
11-17 that person from liability under this chapter.
11-18 Sec. 436.102. DEPURATION. (a) The director may allow
11-19 depuration by artificial means of molluscan shellfish taken from a
11-20 restricted or conditionally restricted area, subject to the rules
11-21 adopted by the board and under the supervision the director
11-22 considers necessary to protect public health.
11-23 (b) A molluscan shellfish plant operator may employ an
11-24 off-duty peace officer to monitor the gathering of shellfish for
11-25 depuration from a restricted or conditionally restricted area as
11-26 provided by the rules adopted by the board under Subsection (a).
11-27 In this subsection, "peace officer" includes those persons listed
11-28 in Article 2.12, Code of Criminal Procedure.
11-29 (Sections 436.103 to 436.110 reserved for expansion
11-30 SUBCHAPTER I. GENERAL ADMINISTRATIVE PROVISIONS
11-31 AND RULEMAKING AUTHORITY
11-32 Sec. 436.111. DEFINITIONS. In this subchapter:
11-33 (1) "Certificate" means a shellfish certificate issued
11-34 by the department.
11-35 (2) "License" means a crabmeat processing license
11-36 issued by the department.
11-37 Sec. 436.112. RULEMAKING AUTHORITY. The board may adopt
11-38 rules for the enforcement of this chapter. The board shall adopt
11-39 rules establishing specifications for molluscan shellfish
11-40 processing and crabmeat processing and shall furnish without charge
11-41 printed copies of the rules on request.
11-42 Sec. 436.113. CERTIFICATION AND LICENSING PROCEDURES.
11-43 (a) A person may not operate as a molluscan shellfish or crabmeat
11-44 processor unless the person submits an application for a
11-45 certificate or a license to the department according to rules
11-46 adopted by the board and receives a certificate or license for each
11-47 plant or place of business.
11-48 (b) When an application has been properly filed with the
11-49 department, the director or an authorized agent shall inspect the
11-50 property identified in the application, including buildings and
11-51 equipment, and the operating procedures under which the product is
11-52 processed.
11-53 (c) The director shall issue a certificate or license to a
11-54 person who operates a plant or place of business that conforms to
11-55 the requirements of this chapter and rules adopted by the board.
11-56 (d) A certificate is nontransferrable and expires at 11:59
11-57 p.m. on August 31 of each year.
11-58 (e) A license is nontransferrable and expires at 11:59 p.m.
11-59 on the last day of February each year.
11-60 (f) A person shall apply for a new certificate or license
11-61 each year for each plant or place of business.
11-62 Sec. 436.114. REFUSAL TO CERTIFY OR LICENSE; SUSPENSION OR
11-63 REVOCATION OF CERTIFICATE OR LICENSE. (a) After notice to the
11-64 applicant and opportunity for a hearing, the department may refuse
11-65 an application for a certificate or a license or may suspend or
11-66 revoke a certificate or license.
11-67 (b) The board by rule shall establish minimum standards for
11-68 a certificate or license and criteria for the refusal to issue a
11-69 certificate or license and the suspension or revocation of a
11-70 certificate or license.
12-1 Sec. 436.115. HEARINGS AND APPEALS. (a) A hearing under
12-2 this chapter is governed by the procedures for a contested case
12-3 hearing under the Administrative Procedure and Texas Register Act
12-4 (Article 6252-13a, Vernon's Texas Civil Statutes) and the board's
12-5 formal hearing rules.
12-6 (b) An appeal from a final administrative decision under
12-7 this chapter shall be conducted under the Administrative Procedure
12-8 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
12-9 Statutes).
12-10 <SUBCHAPTER A. TAKING AQUATIC LIFE FROM PROHIBITED AREAS>
12-11 <Sec. 436.001. DEFINITIONS. In this subchapter:>
12-12 <(1) "Aquatic life" means animals and plants that live
12-13 in water.>
12-14 <(2) "Board" means the Texas Board of Health.>
12-15 <(3) "Commissioner" means the commissioner of health.>
12-16 <(4) "Department" means the Texas Department of
12-17 Health.>
12-18 <(5) "Public water" means all bodies of water that are
12-19 the property of the state under Section 1.011, Parks and Wildlife
12-20 Code.>
12-21 <(6) "Sale" means the transfer of ownership or the
12-22 right of possession of an item to a person for consideration and
12-23 includes barter.>
12-24 <Sec. 436.002. APPLICABILITY OF SUBCHAPTER. This subchapter
12-25 does not apply to oysters, clams, and mussels, or to the taking,
12-26 selling, or offering or holding for sale of oysters, clams, and
12-27 mussels from a polluted area to which Subchapter B applies.>
12-28 <Sec. 436.003. DECLARATION OF PROHIBITED AREAS. (a) The
12-29 commissioner by order shall declare any public water to be a
12-30 prohibited area if:>
12-31 <(1) the commissioner finds, according to a sanitary,
12-32 chemical, or bacteriological survey, that the area contains aquatic
12-33 life that is unfit for human consumption; or>
12-34 <(2) aquatic life from a prohibited area may have been
12-35 transferred to that public water.>
12-36 <(b) The commissioner's order closes the prohibited area to
12-37 the taking of aquatic life for the period the commissioner
12-38 considers advisable.>
12-39 <(c) The commissioner shall modify or revoke an order in
12-40 accordance with the results of a sanitary, chemical, or
12-41 bacteriological survey conducted by the department. The
12-42 commissioner shall file the order in the department's office and
12-43 shall furnish without charge a copy of the order describing
12-44 prohibited areas to any interested person.>
12-45 <(d) The commissioner shall conspicuously outline prohibited
12-46 areas on maps and shall furnish the maps without charge to any
12-47 interested person. The failure of a person to avail himself of
12-48 that information does not relieve that person from liability under
12-49 this subchapter.>
12-50 <Sec. 436.004. TAKING, OFFERING, OR SELLING AQUATIC LIFE
12-51 FROM PROHIBITED AREAS; CRIMINAL PENALTY. (a) A person commits an
12-52 offense if the person takes, sells, or offers or holds for sale or
12-53 human consumption any aquatic life from an area declared by the
12-54 commissioner to be a prohibited area.>
12-55 <(b) An offense under this section is a misdemeanor
12-56 punishable by a fine of not less than $200 or more than $500.>
12-57 <(c) Each day of a continuing violation constitutes a
12-58 separate offense.>
12-59 <(d) Commissioned law enforcement officers of the Parks and
12-60 Wildlife Department shall enforce this section.>
12-61 <Sec. 436.005. DISPOSITION OF AQUATIC LIFE. (a) Aquatic
12-62 life taken from a prohibited area and offered or held for sale or
12-63 human consumption is subject to immediate condemnation, seizure,
12-64 and confiscation by the commissioner or the commissioner's agents.>
12-65 <(b) The aquatic life shall be held or destroyed or
12-66 otherwise disposed of as directed by the commissioner.>
12-67 <Sections 436.006 to 436.010 reserved for expansion>
12-68 <SUBCHAPTER B. SHELLFISH>
12-69 <Sec. 436.011. DEFINITIONS. In this subchapter:>
12-70 <(1) "Board" means the Texas Board of Health.>
13-1 <(2) "Commissioner" means the commissioner of health.>
13-2 <(3) "Department" means the Texas Department of
13-3 Health.>
13-4 <(4) "Polluted area" means an area that is
13-5 continuously or intermittently subject to the discharge of sewage
13-6 or other wastes, or to the presence of coliform organisms in
13-7 quantities likely to indicate that shellfish taken from the area
13-8 are unfit for human consumption.>
13-9 <(5) "Shellfish" means oysters, clams, and mussels,
13-10 either fresh or frozen and either shucked or in the shell.>
13-11 <Sec. 436.012. DECLARATION OF POLLUTED AREAS. (a) The
13-12 commissioner by order shall declare to be polluted any area within
13-13 the jurisdiction of the state that the commissioner finds is a
13-14 polluted area.>
13-15 <(b) The commissioner shall close to the taking of shellfish
13-16 for the period the commissioner considers advisable any water to
13-17 which shellfish from a polluted area may have been transferred.>
13-18 <(c) The commissioner shall modify or revoke an order in
13-19 accordance with the results of sanitary and bacteriological surveys
13-20 conducted by the department. The commissioner shall file the order
13-21 in the department's office and shall furnish without charge a copy
13-22 of the order describing polluted areas to any interested person.>
13-23 <(d) The commissioner shall conspicuously outline polluted
13-24 areas on maps and shall furnish the maps without charge to any
13-25 interested person. The failure of a person to avail himself of
13-26 that information does not relieve that person from liability under
13-27 this subchapter.>
13-28 <Sec. 436.013. RULES. (a) The board shall adopt rules
13-29 establishing specifications for shellfish plant facilities and for
13-30 the harvesting, transporting, storing, handling, and packaging of
13-31 shellfish.>
13-32 <(b) The board may adopt rules necessary for the efficient
13-33 enforcement of this subchapter.>
13-34 <(c) A rule adopted under this subchapter takes effect three
13-35 months after the date on which the rule is adopted.>
13-36 <(d) The board shall furnish without charge printed copies
13-37 of the rules to any interested person on request.>
13-38 <Sec. 436.014. COMPLIANCE WITH RULES. (a) The commissioner
13-39 shall allow a shellfish plant a reasonable time to comply with a
13-40 rule after its adoption, but that time may not exceed six months
13-41 after the date on which the rule is adopted unless an extension is
13-42 granted.>
13-43 <(b) The commissioner may grant an extension to a plant on a
13-44 showing that more time is reasonably required for compliance.>
13-45 <Sec. 436.015. INSPECTION OF SHELLFISH PLANT. (a) The
13-46 commissioner or the commissioner's agent shall inspect each
13-47 shellfish plant and the practices followed in handling and
13-48 packaging shellfish. The commissioner shall issue a certificate
13-49 attesting to compliance with the rules adopted under this
13-50 subchapter to each operator who the commissioner finds is in
13-51 compliance with the rules.>
13-52 <(b) The commissioner or the commissioner's agent may
13-53 reinspect a plant at any time and shall revoke the operator's
13-54 certificate if:>
13-55 <(1) the operator refuses to allow an inspection of
13-56 the plant or free access to the plant at a reasonable hour; or>
13-57 <(2) the commissioner finds that the plant is not
13-58 being operated in compliance with the rules adopted under this
13-59 subchapter.>
13-60 <Sec. 436.016. PERFORMANCE BOND. (a) The commissioner may
13-61 require a person holding a shellfish plant certificate to post and
13-62 maintain with the commissioner a good and sufficient bond with a
13-63 corporate surety or two personal sureties approved by the
13-64 commissioner, or a cash deposit in a form acceptable to the
13-65 commissioner, if reasonably necessary to ensure that the
13-66 certificate holder will comply with the requirements imposed under
13-67 this subchapter.>
13-68 <(b) If the certificate holder fails to comply with the
13-69 requirements of this subchapter, the certificate holder or the
13-70 certificate holder's surety forfeits to the commissioner an amount
14-1 not to exceed $1,000.>
14-2 <Sec. 436.017. PURIFICATION OF SHELLFISH. (a) The
14-3 commissioner may allow purification by artificial means of
14-4 shellfish taken from polluted areas, subject to the rules adopted
14-5 by the board and under the supervision the commissioner considers
14-6 necessary to protect public health.>
14-7 <(b) A shellfish plant operator may employ off-duty peace
14-8 officers to monitor the taking of shellfish from polluted areas as
14-9 provided by the rules adopted to implement Subsection (a). In this
14-10 subsection, "peace officer" includes those persons listed in
14-11 Article 2.12, Code of Criminal Procedure.>
14-12 <Sec. 436.018. PROHIBITION AGAINST TAKING SHELLFISH FROM
14-13 POLLUTED AREA. A person may not take, sell, or offer or hold for
14-14 sale any shellfish from a polluted area without complying with the
14-15 rules adopted by the board to ensure that the shellfish have been
14-16 purified.>
14-17 <Sec. 436.019. TRANSPLANTING SHELLFISH. (a) Section
14-18 436.018 does not prohibit the transplanting of shellfish from
14-19 polluted water if permission for the transplanting is first
14-20 obtained from the Parks and Wildlife Department and the
14-21 transplanting is supervised by that department.>
14-22 <(b) The Parks and Wildlife Department shall furnish a copy
14-23 of the transplant permit to the commissioner before transplanting
14-24 activities begin.>
14-25 <Sec. 436.020. PROHIBITION AGAINST UNLAWFULLY OPERATING
14-26 SHELLFISH PLANT. A person may not operate a shellfish plant for
14-27 the handling and packaging of shellfish without a certificate
14-28 issued by the commissioner for each plant or place of business.>
14-29 <Sec. 436.021. PROHIBITION AGAINST SALE OF IMPROPERLY
14-30 HANDLED SHELLFISH. A person may not sell or offer or hold for sale
14-31 any shell stock or shucked shellfish that have not been handled and
14-32 packaged in accordance with the specifications adopted by the
14-33 board.>
14-34 <Sec. 436.022. PROHIBITION AGAINST SALE OF SHELLFISH FROM
14-35 IMPROPER FACILITIES. A person may not sell or offer or hold for
14-36 sale any shellfish from facilities for the packaging and handling
14-37 of shellfish that do not comply with the specifications adopted by
14-38 the board.>
14-39 <Sec. 436.023. PROHIBITION AGAINST SALE OF SHELLFISH WITHOUT
14-40 CERTIFICATE NUMBER. (a) A person may not sell or offer for sale
14-41 any shellfish that are not in a container bearing a valid
14-42 certificate number from a state or nation whose shellfish
14-43 certification program conforms to the current Manual of Recommended
14-44 Practice for Sanitary Control of the Shellfish Industry issued by
14-45 the Food and Drug Administration.>
14-46 <(b) This section does not apply to the sale for on-premise
14-47 consumption of shellfish removed from a certified container.>
14-48 <Sec. 436.024. CRIMINAL PENALTY. (a) A person commits an
14-49 offense if the person violates this subchapter or a rule adopted
14-50 under this subchapter. Each day of a continuing violation
14-51 constitutes a separate offense.>
14-52 <(b) An offense under Subsection (a) is a misdemeanor
14-53 punishable by a fine of not less than $200 or more than $1,000,
14-54 confinement in jail for not more than 180 days, or both.>
14-55 <(c) If it is shown at the trial of a defendant for a
14-56 violation of Section 436.018 that the defendant has been convicted
14-57 once within five years before the trial date of a violation of
14-58 Section 436.018, the defendant is guilty of a misdemeanor
14-59 punishable by a fine of not less than $500 or more than $2,000,
14-60 confinement in jail for a term not to exceed one year, or both.>
14-61 <(d) If it is shown at the trial of a defendant for a
14-62 violation of Section 436.018 that the defendant has been convicted
14-63 two or more times within five years before the trial date of a
14-64 violation of Section 436.018, the defendant is guilty of a felony
14-65 punishable by imprisonment for a term of not more than 10 years or
14-66 less than two years. In addition to imprisonment, an individual
14-67 adjudged guilty of a felony under this subsection may be punished
14-68 by a fine of not less than $2,000 or more than $5,000.>
14-69 <Sec. 436.025. DISPOSITION OF UNFIT OR UNLAWFUL SHELLFISH.
14-70 (a) Shellfish held or offered for sale at retail or for human
15-1 consumption are subject to immediate condemnation, seizure, and
15-2 confiscation by the commissioner or the commissioner's agents if
15-3 the shellfish:>
15-4 <(1) have not been handled and packaged in accordance
15-5 with specifications adopted by the board;>
15-6 <(2) are not in a certified container; or>
15-7 <(3) are otherwise found by the commissioner to be
15-8 unfit for human consumption.>
15-9 <(b) The shellfish shall be held or destroyed or disposed of
15-10 as directed by the commissioner.>
15-11 <Sec. 436.026. ENFORCEMENT. (a) The commissioner and the
15-12 commissioner's representatives, with assistance from officers of
15-13 the Parks and Wildlife Department as determined by the executive
15-14 director of that department, shall enforce this subchapter, other
15-15 than Section 436.018.>
15-16 <(b) Commissioned officers of the Parks and Wildlife
15-17 Department shall enforce Section 436.018.>
15-18 <Sections 436.027 to 436.040 reserved for expansion>
15-19 <SUBCHAPTER C. CRABMEAT PRODUCTION>
15-20 <Sec. 436.041. DEFINITIONS. In this subchapter:>
15-21 <(1) "Board" means the Texas Board of Health.>
15-22 <(2) "Crabmeat" means the edible meat of steamed or
15-23 cooked crabs that has not been processed, other than by picking,
15-24 packing, and chilling.>
15-25 <(3) "Department" means the Texas Department of
15-26 Health.>
15-27 <(4) "Pasteurization plant" means a plant in which
15-28 crabmeat is heat-treated, without complete sterilization, to
15-29 improve the keeping qualities of the meat.>
15-30 <(5) "Person" means an individual, partnership,
15-31 corporation, or association.>
15-32 <(6) "Picking plant" means a place in which crabs are
15-33 steamed or cooked and edible meat from the crabs is picked.>
15-34 <Sec. 436.042. LICENSE REQUIRED. (a) A person may not
15-35 operate a picking or pasteurization plant unless the person has a
15-36 license for that plant.>
15-37 <(b) A person must submit a license application to the
15-38 department for each plant.>
15-39 <(c) A separate license is required for each plant.>
15-40 <Sec. 436.043. INSPECTIONS. When an application has been
15-41 properly filed with the department, the department shall inspect
15-42 all properties identified in the application, all buildings and
15-43 equipment on the property, and the operating procedures under which
15-44 the product is processed.>
15-45 <Sec. 436.044. LICENSE ISSUANCE. (a) The department shall
15-46 issue a serially numbered license to a person who operates a plant
15-47 that conforms to the requirements of this subchapter and board
15-48 rules.>
15-49 <(b) A license is nontransferable and expires the last day
15-50 of February of each year.>
15-51 <(c) A person who operates a picking or pasteurization plant
15-52 must annually apply for a new license for each plant.>
15-53 <Sec. 436.045. RULES. The board shall adopt rules for the
15-54 picking, pasteurizing, storing, transporting, and selling of
15-55 crabmeat to ensure a wholesome product.>
15-56 <Sec. 436.046. COMPLIANCE WITH BOARD RULES. Crabmeat from
15-57 this state or from plants outside this state must comply with the
15-58 board rules as provided by this subchapter. The department may
15-59 seize and condemn crabmeat that does not comply with board rules.>
15-60 <Sec. 436.047. ADULTERATED OR SUBSTANDARD CRABMEAT. (a) A
15-61 person may not process, transport, store for sale, possess with the
15-62 intent to sell, offer or expose for sale, or sell any crabmeat for
15-63 human consumption that is adulterated or that is packed or
15-64 pasteurized in violation of this subchapter or a rule adopted under
15-65 this subchapter.>
15-66 <(b) The possession of adulterated crabmeat by a person
15-67 licensed under this subchapter is presumptive evidence of intent to
15-68 sell the crabmeat for human consumption.>
15-69 <(c) Crabmeat is adulterated if:>
15-70 <(1) any substance has been substituted in whole or in
16-1 part for the crabmeat;>
16-2 <(2) the crabmeat consists in whole or in part of any
16-3 filthy, putrid, or decomposed substance, or the crabmeat is for any
16-4 other reason unsound, unwholesome, unhealthful, or otherwise unfit
16-5 for human consumption;>
16-6 <(3) the crabmeat has been prepared, packed, or held
16-7 under unsanitary conditions that, in the department's judgment, may
16-8 have contaminated the crabmeat with filth or may have made it
16-9 injurious to health; or>
16-10 <(4) the crabmeat container is composed, in whole or
16-11 in part, of any poisonous or deleterious substance that may make
16-12 the contents injurious to health.>
16-13 <Sec. 436.048. LABELING OF CRABMEAT CONTAINERS. (a) A
16-14 container of crabmeat must be conspicuously labeled in a manner
16-15 approved by the department. Stamping with ink is not permitted.>
16-16 <(b) The label must contain:>
16-17 <(1) the proper designation of the content of the
16-18 container;>
16-19 <(2) the name and address of the picking plant in
16-20 which the product was produced or the name and address of the
16-21 distributor;>
16-22 <(3) the presence of any chemical, if any is allowed;>
16-23 <(4) the license number of the picking plant preceded
16-24 by the state abbreviation plainly and conspicuously marked on the
16-25 body of the container;>
16-26 <(5) the net weight of the contents; and>
16-27 <(6) any other information pertinent to the public
16-28 health required by the department.>
16-29 <(c) If a label contains the name and address of the
16-30 distributor, the name and address must be:>
16-31 <(1) preceded by the words "packed for" or
16-32 "distributed by"; and>
16-33 <(2) followed by the word "distributor.">
16-34 <(d) A label may not bear a false or misleading statement.>
16-35 <(e) In this section, "label" means a display of written,
16-36 printed, or other graphic matter on the immediate container,
16-37 excluding package liners, of an article.>
16-38 <Sec. 436.049. REVOCATION OF LICENSE. (a) If the
16-39 department finds that a provision of this subchapter has been
16-40 violated by a license holder or that a violation has occurred or is
16-41 occurring on any premises for which a license is issued, the
16-42 department shall notify the license holder in writing of the nature
16-43 of the violation and direct that the violation cease.>
16-44 <(b) The department may revoke the license of a license
16-45 holder who refuses or fails to comply in the time and manner set
16-46 forth in the notice.>
16-47 <Sec. 436.050. APPEAL OF DEPARTMENT DECISION. An applicant
16-48 for a license or a license holder who is aggrieved by a decision of
16-49 the department in failing to issue or in revoking a license may
16-50 appeal that decision to a district court in:>
16-51 <(1) the county in which the property identified in
16-52 the application or license is located; or>
16-53 <(2) Travis County.>
16-54 <Sec. 436.051. PROSECUTION; INJUNCTION. (a) At the request
16-55 of the health authority, the district or county attorney shall
16-56 prosecute a person charged with a violation of this subchapter or a
16-57 rule issued under this subchapter.>
16-58 <(b) In an appropriate proceeding, a district court may
16-59 prohibit a repetition or continuance of an offense. At the request
16-60 of the health authority, the district or county attorney shall
16-61 bring a suit to enjoin a violation of this subchapter or a rule
16-62 issued under this subchapter.>
16-63 <Sec. 436.052. CRIMINAL PENALTY. (a) A person commits an
16-64 offense if the person violates a provision of this subchapter or a
16-65 rule adopted under this subchapter.>
16-66 <(b) An offense under this section is a misdemeanor
16-67 punishable by a fine of not less than $25 or more than $200.>
16-68 <(c) Each violation constitutes a separate offense.>
16-69 SECTION 2. The change in law made by this Act applies only
16-70 to a certificate or license issued under Chapter 436, Health and
17-1 Safety Code, on or after the effective date of this Act. A
17-2 certificate or license issued before the effective date of this Act
17-3 is covered by the law in effect when the certificate or license was
17-4 issued, and the former law is continued in effect for this purpose.
17-5 SECTION 3. (a) The change in law made by this Act applies
17-6 only to an offense or unlawful act committed under Chapter 436,
17-7 Health and Safety Code, on or after the effective date of this Act.
17-8 For purposes of this section, an offense or unlawful act is
17-9 committed before the effective date of this Act if any element of
17-10 the offense or act occurs before the effective date.
17-11 (b) An offense or unlawful act committed before the
17-12 effective date of this Act is covered by the law in effect when the
17-13 offense was committed, and the former law is continued in effect
17-14 for that purpose.
17-15 SECTION 4. This Act takes effect September 1, 1993.
17-16 SECTION 5. The importance of this legislation and the
17-17 crowded condition of the calendars in both houses create an
17-18 emergency and an imperative public necessity that the
17-19 constitutional rule requiring bills to be read on three several
17-20 days in each house be suspended, and this rule is hereby suspended.
17-21 * * * * *
17-22 Austin,
17-23 Texas
17-24 April 2, 1993
17-25 Hon. Bob Bullock
17-26 President of the Senate
17-27 Sir:
17-28 We, your Committee on Natural Resources to which was referred S.B.
17-29 No. 556, have had the same under consideration, and I am instructed
17-30 to report it back to the Senate with the recommendation that it do
17-31 not pass, but that the Committee Substitute adopted in lieu thereof
17-32 do pass and be printed.
17-33 Sims,
17-34 Chairman
17-35 * * * * *
17-36 WITNESSES
17-37 FOR AGAINST ON
17-38 ___________________________________________________________________
17-39 Name: Richard Edwin Thompson x
17-40 Representing: Tx Dept. of Health
17-41 City: Austin
17-42 -------------------------------------------------------------------
17-43 Name: Pauol C. Hammerschmidt x
17-44 Representing: Tx Parks & Wildlife Dept.
17-45 City: Austin
17-46 -------------------------------------------------------------------
17-47 Name: James E. Robertson x
17-48 Representing: Tx Parks & Wildlife Dept.
17-49 City: Buda
17-50 -------------------------------------------------------------------