78R8777 SKB-D
By: Miller H.C.R. No. 163
HOUSE CONCURRENT RESOLUTION
WHEREAS, Town Talk Foods, Inc., and Thomas E. Potthoff allege
that:
(1) in August 2001, an outbreak of botulism occurred
in North Texas, and an investigation of the botulism outbreak,
including containers of two brands of frozen chili purchased at
Town Talk Foods, Inc., was conducted by the Texas Department of
Health;
(2) the Texas Department of Health knew very early in
its investigation that the focus of the outbreak was on only one
instead of two brands of frozen chili and not Town Talk Foods, Inc.,
or Thomas E. Potthoff;
(3) on September 4, 2001, the Texas Department of
Health issued an emergency order "prohibit[ing Town Talk Foods,
Inc.,] from operating as a food salvage establishment," and rather
than merely issuing an emergency order limited to "the sale or
distribution of distressed foods" as provided by the Texas Health
and Safety Code, the Texas Department of Health exceeded its
authority by ordering Town Talk Foods, Inc.'s entire facility to be
closed and by ordering that Town Talk Foods, Inc., and Thomas E.
Potthoff be prohibited from selling any merchandise whatsoever,
including all salvaged food, other food items, and all nonfood
merchandise commonly sold at Town Talk Foods, Inc., as set forth in
the emergency order;
(4) Town Talk Foods, Inc., remained closed under the
excessive emergency order for more than two weeks before it was
allowed to reopen;
(5) when the Texas Department of Health allowed Town
Talk Foods, Inc., to reopen, it prohibited Town Talk Foods, Inc.,
and Thomas E. Potthoff from selling any perishable products;
(6) more than two months passed between the time the
Texas Department of Health originally closed Town Talk Foods, Inc.,
and the time it was allowed to fully reopen to sell all products;
(7) during the investigation, Texas Department of
Health employees told the media, "We don't know how or where that
particular bucket of chili became contaminated. There is also a
concern because it appeared the frozen chili at Town Talk may have
been thawed out and then refrozen";
(8) this statement was made despite the fact that the
Texas Department of Health knew the frozen chili had been purchased
from Town Talk Foods, Inc., and that there was no indication that it
had thawed while in Town Talk Foods, Inc.'s, possession;
(9) Texas Department of Health employees made
additional statements to the media, stating, "It's important that
people know not to eat anything from that store, especially the
chili," and in a newspaper article, Texas Department of Health
employees were quoted as saying that "[t]he only common link is the
store. It comes back to Town Talk";
(10) in addition to press releases and media
statements or stories, the Texas Department of Health made other
similar communications effectively labeling Town Talk Foods, Inc.,
as the botulism store;
(11) the above false and defamatory statements, and
others, continued even though the Texas Department of Health had no
evidence that Town Talk Foods, Inc., or Thomas E. Potthoff caused
the botulism, and even though the Texas Department of Health had
reason to believe that other persons and entities caused or
contributed to the botulism;
(12) the Texas Department of Health has not tempered
or retracted its press releases or media statements to correctly
state the facts, thus leaving the public with the perception that
Town Talk Foods, Inc., is the botulism store;
(13) in addition to the statements to the media and the
press releases, on September 11, 2001, the Texas Department of
Health promised Town Talk Foods, Inc., and Thomas E. Potthoff that
if all perishable food items at Town Talk Foods, Inc., were thrown
away, Town Talk Foods, Inc., would be allowed to fully reopen in two
days, and Town Talk Foods, Inc., and Thomas E. Potthoff agreed;
(14) after Town Talk Foods, Inc., and Thomas E.
Potthoff complied with the terms of the agreement and threw away
eight 30-cubic-yard containers or truckloads of frozen and
refrigerated foods in a local landfill, the Texas Department of
Health reneged on its promise and told Thomas E. Potthoff that Town
Talk Foods, Inc., would not be allowed to reopen;
(15) the Texas Department of Health breached its
agreement with Town Talk Foods, Inc., and Thomas E. Potthoff when it
failed to allow Town Talk Foods, Inc., to reopen after all of the
frozen and refrigerated foods were destroyed;
(16) shortly thereafter, the State of Texas filed suit
against Town Talk Foods, Inc., and Thomas E. Potthoff, seeking
civil fines and penalties and temporary and permanent injunctive
relief for alleged violations of the Texas Health and Safety Code,
the Texas Administrative Code, and the Texas Deceptive Trade
Practices-Consumer Protection Act;
(17) in response, Town Talk Foods, Inc., and Thomas E.
Potthoff filed a counterclaim and third-party claim against the
State of Texas and four Texas Department of Health employees for
defamation and business disparagement;
(18) the Texas Department of Health's acts were
arbitrary and capricious acts without justification under the laws
of this state, the Texas Constitution, and the United States
Constitution, and these arbitrary and capricious acts deprived Town
Talk Foods, Inc., and Thomas E. Potthoff of their constitutionally
protected property rights under the Texas Constitution and the
United States Constitution;
(19) in addition, as a result of the Texas Department
of Health's acts, Town Talk Foods, Inc., and Thomas E. Potthoff's
property has been unconstitutionally taken without just
compensation;
(20) Town Talk Foods, Inc., and Thomas E. Potthoff
have suffered damages as a result of the actions of the Texas
Department of Health; and
(21) Town Talk Foods, Inc., and Thomas E. Potthoff are
entitled to recover any attorney's fees incurred in connection with
this matter by Town Talk Foods, Inc., and Thomas E. Potthoff; now,
therefore, be it
RESOLVED by the Legislature of the State of Texas, That Town
Talk Foods, Inc., and Thomas E. Potthoff are granted permission to
sue the State of Texas and the Texas Department of Health for any
and all causes of action, including breach of contract, claims for
relief under the Uniform Declaratory Judgments Act (Chapter 37,
Civil Practice and Remedies Code), and claims for relief under the
Administrative Procedure Act (Chapter 2001, Government Code), that
relate to or arise from the facts and circumstances described in
this resolution, subject to Chapter 107, Civil Practice and
Remedies Code; and, be it further
RESOLVED, That the suit authorized by this resolution shall
be brought in Tarrant County; and, be it further
RESOLVED, That the total of all damages awarded in the suit
authorized by this resolution, including any court costs and
prejudgment interest, but not including attorney's fees incurred by
Town Talk Foods, Inc., and Thomas E. Potthoff, may not exceed $3
million; and, be it further
RESOLVED, That Town Talk Foods, Inc., and Thomas E. Potthoff
may not plead an amount in excess of $3 million in a suit authorized
by this resolution, and that this amount, plus attorney's fees is
the total amount that may be recovered with respect to the
occurrence that is the subject of this resolution in all actions
brought with respect to that occurrence; and, be it further
RESOLVED, That the commissioner of public health of the Texas
Department of Health be served process as provided by Section
107.002(a)(3), Civil Practice and Remedies Code.