CHAPTER 436. AQUATIC LIFE
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS
CHAPTER 436. AQUATIC LIFE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 436.001. SHORT TITLE. This chapter may be cited as the
Texas Aquatic Life Act.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.002. DEFINITIONS. In this chapter:
(1) "Approved area" means a molluscan shellfish growing area
determined to be acceptable for harvesting of molluscan shellfish
for direct marketing according to the National Shellfish
Sanitation Program.
(2) "Approved source" means a source of molluscan shellfish
acceptable to the director.
(3) "Aquatic life" means animals and plants that live in water.
(4) "Authorized agent" means an employee of the department who
is designated by the director to enforce provisions of this
chapter.
(5) "Board" means the Texas Board of Health.
(6) "Closed area" means a molluscan shellfish growing area where
the taking including the harvesting for sale, the harvesting for
transplant, or the gathering for depuration of molluscan
shellfish is temporarily or permanently not permitted. A closed
area status may be placed on any one of the five classified area
designations established by the National Shellfish Sanitation
Program.
(7) "Conditionally approved area" means a molluscan shellfish
growing area determined to meet approved area criteria for a
predictable period conditioned on performance standards specified
in a management plan. A conditionally approved area is a closed
area when the area does not meet the approved area criteria.
(8) "Conditionally restricted area" means a molluscan shellfish
growing area determined to meet restricted area criteria for a
predictable period conditioned on performance standards specified
in a management plan. A conditionally restricted area is open for
transplanting or gathering for depuration only during the times
it meets the restricted area criteria and is specified as a
conditionally restricted area by the department. A conditionally
restricted area is a closed area at all times for harvesting of
molluscan shellfish for direct marketing.
(9) "Container" means the physical material in contact with or
immediately surrounding molluscan shellfish or crabmeat that
confines it into a single unit.
(10) "Crabmeat" means the edible meat of steamed or cooked crabs
that has not been processed other than by picking, packing, and
chilling.
(11) "Crabmeat processing license" means a numbered document
issued by the department that authorizes a person to process
crabmeat for sale.
(12) "Crabmeat processor" means a person who cooks and backs
crabs and who picks, packs, or pasteurizes crabmeat.
(13) "Department" means the Texas Department of Health.
(14) "Depletion" means the removal of all existing commercial
quantities of market-size molluscan shellfish.
(15) "Depuration" means the process of using any approved
artificially controlled aquatic environment to reduce the level
of bacteria and viruses in molluscan shellfish.
(16) "Depuration plant" means a place where depuration of
molluscan shellfish occurs.
(17) "Director" means the executive head of the Texas Department
of Health.
(18) "Growing area" means an area that supports or could support
live molluscan shellfish.
(19) "Health authority" means a physician authorized to
administer state or local laws relating to public health.
(20) "Label" means written, printed, or graphic matter appearing
on a container of molluscan shellfish or crabmeat, including any
written, printed, or graphic matter on any wrappers or
accompanying any molluscan shellfish or crabmeat.
(21) "Molluscan shellfish" means an edible species of oyster,
clam, or mussel that is shucked, in the shell, fresh, or fresh
frozen, in whole or in part, as defined by the National Shellfish
Sanitation Program.
(22) "National Shellfish Sanitation Program" means the
cooperative program by the states, the United States Food and
Drug Administration, and the shellfish industry that classifies
molluscan shellfish growing areas and certifies interstate
molluscan shellfish shippers according to the National Shellfish
Sanitation Program Manual of Operations or its successor program
and documents.
(23) "Open area" means a molluscan shellfish growing area where
harvesting for sale, harvesting for transplant, or gathering for
depuration of molluscan shellfish is permitted. An open area
status may be placed on any one of the classified area
designations established by the National Shellfish Sanitation
Program except for a prohibited area.
(24) "Pasteurization plant" means a place where crabmeat is
heat-treated in compliance with rules adopted by the board,
without complete sterilization, to improve the keeping qualities
of the meat.
(25) "Picking plant" means a place where crabs are cooked and
edible meat is picked from the crabs.
(26) "Possess" means the act of having in possession or control,
keeping, detaining, restraining, or holding as owner, agent,
bailee, or custodian for another.
(27) "Prohibited area" means an area where the director finds,
according to a sanitary, chemical, or bacteriological survey,
that the area contains aquatic life that is unfit for human
consumption. A prohibited area for molluscan shellfish means a
molluscan shellfish growing area determined to be unacceptable
for transplanting, gathering for depuration, or harvesting of
molluscan shellfish. The only molluscan shellfish removal
permitted from a prohibited area is for the purpose of depletion.
(28) "Principal display panel" means the part of a label that is
most likely to be displayed, presented, shown, or examined under
normal and customary conditions of display for sale.
(29) "Public water" means all bodies of water that are the
property of the state under Section 1.011, Parks and Wildlife
Code.
(30) "Restricted area" means a molluscan shellfish growing area
that is determined to be unacceptable for harvesting of molluscan
shellfish for direct marketing but that is acceptable for
transplanting or gathering for depuration. A restricted area may
be closed for transplanting or gathering for depuration when the
area does not meet the restricted area criteria established by
the National Shellfish Sanitation Program.
(31) "Sale" means the transfer of ownership or the right of
possession of an item to a person for consideration and includes
barter.
(32) "Shellfish certificate" means a numbered document issued by
the department that authorizes a person to process molluscan
shellfish for sale.
(33) "Shellfish processor" means a person who depurates, shucks,
packs, or repacks molluscan shellfish.
(34) "Take" means catch, hook, net, snare, trap, kill, or
capture by any means, including the attempt to take.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.003. AUTHORITY TO DELEGATE POWERS AND DUTIES. (a) The
board by rule may delegate a power or duty imposed on the
director in this chapter, including the power or duty to issue
emergency rules or orders or to render a final administrative
decision.
(b) A health authority may delegate any power or duty imposed on
the health authority in this chapter to an employee of the local
health department, the local health unit, or the public health
district in which the health authority serves, unless otherwise
restricted by law.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER B. PROHIBITED ACTS
Sec. 436.011. PROHIBITED ACTS. The following acts and the
causing of the following acts within this state are unlawful and
prohibited:
(1) taking, selling, offering for sale, or holding for sale
molluscan shellfish from a closed area;
(2) taking, selling, offering for sale, or holding for sale
molluscan shellfish from a restricted or conditionally restricted
area without complying with a rule adopted by the board to ensure
that the molluscan shellfish have been purified, unless:
(A) permission is first obtained from the Parks and Wildlife
Department and the transplanting is supervised by that
department; and
(B) the Parks and Wildlife Department furnishes a copy of the
transplant permit to the director before transplanting activities
begin;
(3) possessing a species of aquatic life taken from a prohibited
area while the area was prohibited for that species;
(4) operating as a molluscan shellfish processor without a
shellfish certificate for each plant or place of business;
(5) operating as a crabmeat processor without a crabmeat
processing license for each plant;
(6) selling, offering for sale, or holding for sale molluscan
shellfish or crabmeat that has not been picked, handled,
packaged, or pasteurized in accordance with the rules adopted by
the board;
(7) selling, offering for sale, or holding for sale molluscan
shellfish or crabmeat from facilities for the handling and
packaging of molluscan shellfish or crabmeat that do not comply
with the rules adopted by the board;
(8) selling, offering for sale, or holding for sale molluscan
shellfish or crabmeat that is not labeled in accordance with the
rules adopted by the board;
(9) selling, offering for sale, or holding for sale molluscan
shellfish that is not in a container bearing a valid certificate
number from a state or nation whose molluscan shellfish
certification program conforms to the current Manual of
Operations for Sanitary Control of the Shellfish Industry issued
by the Food and Drug Administration or its successor, except
selling molluscan shellfish removed from a container bearing a
valid certificate number for on-premises consumption; in the
event the Texas Molluscan Shellfish Program is found to be out of
conformity with the current Manual of Operations, selling,
offering for sale, or holding for sale molluscan shellfish in a
container bearing a valid Texas certificate number shall not be
considered a violation of this chapter provided all other
requirements of this chapter are complied with and the shellfish
have come from an approved source;
(10) processing, transporting, storing for sale, possessing with
intent to sell, offering for sale, or selling molluscan shellfish
or crabmeat for human consumption that is adulterated or
misbranded;
(11) removing or disposing of a detained or embargoed article in
violation of Section 436.028;
(12) altering, mutilating, destroying, obliterating, or removing
all or part of the labeling of a container;
(13) adulterating or misbranding molluscan shellfish or crabmeat
in commerce;
(14) refusing to permit entry or inspection, to permit the
taking of a sample, or to permit access to or copying by an
authorized agent of a record required by this chapter;
(15) failing to establish or maintain a record or report
required by this chapter or by a rule adopted by the board; or
(16) violating a rule adopted by the board or an emergency rule
or order adopted by the director.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER C. ENFORCEMENT
Sec. 436.021. DEFINITION. In this subchapter, "detained or
embargoed article" means molluscan shellfish or crabmeat that has
been detained or embargoed under Section 436.028.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.022. INSPECTION. (a) The director, an authorized
agent, or a health authority may, on presenting appropriate
credentials to the owner, operator, or agent in charge:
(1) enter at reasonable times, including when processing is
conducted, an establishment or location in which molluscan
shellfish or crabmeat is processed, packed, pasteurized, or held
for introduction into commerce or held after introduction into
commerce;
(2) enter a vehicle being used to transport or hold the
molluscan shellfish or crabmeat in commerce; or
(3) inspect the establishment, location, or vehicle, including
equipment, records, files, papers, materials, containers, labels,
or other items, and obtain samples necessary for enforcement of
this chapter.
(b) The inspection of an establishment or location is to
determine whether the molluscan shellfish or crabmeat:
(1) is adulterated or misbranded;
(2) may not be processed, introduced into commerce, sold, or
offered for sale under this chapter or the rules adopted by the
board; or
(3) is otherwise in violation of this chapter.
(c) The director, an authorized agent, or a health authority may
not inspect:
(1) financial data;
(2) sales data, other than shipment data;
(3) pricing data;
(4) personnel data, other than personnel data relating to the
qualifications of technical and professional personnel; or
(5) research data.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.023. ACCESS TO RECORDS. A person who is required to
maintain records under this chapter or a rule adopted by the
board or a person who is in charge or custody of those records on
request shall permit the director, authorized agent, or health
authority at all reasonable times to have access to and to copy
the records.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.024. ACCESS TO RECORDS SHOWING MOVEMENT IN COMMERCE.
(a) A commercial carrier or other person receiving or holding
molluscan shellfish or crabmeat in commerce on request shall
permit the director, authorized agent, or health authority at all
reasonable times to have access to and to copy all records
showing:
(1) the movement in commerce of the molluscan shellfish or
crabmeat;
(2) the holding after movement in commerce of the molluscan
shellfish or crabmeat; or
(3) the quantity, shipper, and consignee of the molluscan
shellfish or crabmeat.
(b) The carrier or other person may not refuse access to and
copying of the requested records if the request is accompanied by
a written statement that specifies the nature or kind of
molluscan shellfish or crabmeat to which the request relates.
(c) A carrier is not subject to other provisions of this chapter
solely because of the carrier's receipt, carriage, holding, or
delivery of molluscan shellfish or crabmeat in the usual course
of business as a carrier.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.025. EMERGENCY ORDER. (a) The director may issue an
emergency order that mandates or prohibits the taking,
processing, or sale of molluscan shellfish or crabmeat in the
department's jurisdiction if:
(1) the processing or sale of the molluscan shellfish or
crabmeat creates or poses an immediate threat to human life or
health; and
(2) other procedures available to the department to remedy or
prevent the threat will result in unreasonable delay.
(b) The director may issue the emergency order without notice
and hearing if the director or a person designated by the
director determines that issuing the emergency order without
notice and hearing is necessary under the circumstances.
(c) If an emergency order is issued without a hearing, the
department shall determine the earliest time and place for a
hearing at which the emergency order shall be affirmed, modified,
or set aside. The hearing shall be held under board rules.
(d) This section prevails over Sections 11.013 and 12.001.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.026. VIOLATION; INJUNCTION. (a) The director, an
authorized agent, or a health authority may petition the district
court for a temporary restraining order to restrain a continuing
violation or a threat of a continuing violation of Section
436.011 if the director, authorized agent, or health authority
believes that:
(1) a person has violated, is violating, or is threatening to
violate a provision of Section 436.011; and
(2) the violation or threatened violation creates an immediate
threat to the health and safety of the public.
(b) If the court finds that a person is violating or threatening
to violate Section 436.011, the court shall grant injunctive
relief.
(c) Venue for a suit brought under this section is in the county
in which the violation or threat of violation is alleged to have
occurred or in Travis County.
Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.027. CIVIL PENALTY. (a) At the request of the
director, the attorney general or a district, county, or
municipal attorney shall institute an action in district or
county court to collect a civil penalty from a person who has
violated Section 436.011.
(b) A person who violates Section 436.011 is liable for a civil
penalty not to exceed $25,000 a day for each violation. Each day
of a continuing violation constitutes a separate violation for
purposes of penalty assessment.
(c) In determining the amount of the penalty, the court shall
consider:
(1) the person's history of previous violations under this
chapter;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public;
(4) the demonstrated good faith of the person; and
(5) other matters as justice may require.
(d) A civil penalty recovered in a suit instituted by the
attorney general under this chapter shall be deposited in the
state treasury to the credit of the general revenue fund. A civil
penalty recovered in a suit instituted by a local government
under this chapter shall be paid to the local government.
(e) Venue for a suit to collect a civil penalty brought under
this section is in the municipality or county in which the
violation occurred or in Travis County.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.028. DETAINED OR EMBARGOED ARTICLE. (a) The director
or an authorized agent may detain or embargo molluscan shellfish
or crabmeat if the director or authorized agent believes or has
probable cause to believe that the molluscan shellfish or
crabmeat:
(1) is adulterated; or
(2) is misbranded so that the molluscan shellfish or crabmeat is
dangerous or fraudulent under this chapter.
(b) The director or an authorized agent shall affix to any
molluscan shellfish or crabmeat a tag or other appropriate
marking that gives notice that the molluscan shellfish or
crabmeat is, or is suspected of being, adulterated or misbranded
and that the molluscan shellfish or crabmeat has been detained or
embargoed.
(c) The tag or marking on a detained or embargoed article must
prohibit the removal or disposal of the article unless permission
is given by the director, the authorized agent, or a court.
(d) A person may not remove a detained or embargoed article from
the premises or dispose of it without permission of the director,
the authorized agent, or a court. The director or the authorized
agent may permit perishable goods to be moved to a place suitable
for proper storage.
(e) The director or an authorized agent shall remove the tag or
other marking from a detained or embargoed article if the
director or an authorized agent believes that the article is not
adulterated or misbranded.
(f) The claimant of a detained or embargoed article may move the
article to a secure storage area with the permission of the
director or an authorized agent.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.029. REMOVAL ORDER FOR DETAINED OR EMBARGOED ARTICLE.
(a) The director or authorized agent may order the claimant or
the claimant's agent to move a detained or embargoed article to a
secure place to prevent the unauthorized disposal or removal of
the article.
(b) If the claimant fails to carry out the order, the director
or the authorized agent may move the article.
(c) If the director or the authorized agent moves the article,
the director shall assess the cost of removal against the
claimant.
(d) The director may request the attorney general to bring an
action in the district court in Travis County to recover the
costs of removal. In a judgment in favor of the state, the court
may award costs, attorney fees, and interest from the date the
expense was incurred until the date the department is reimbursed.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.030. RECALL FROM COMMERCE. (a) The director may order
a recall of molluscan shellfish or crabmeat with:
(1) the detention or embargo of molluscan shellfish or crabmeat;
(2) the issuance of an emergency order under Section 436.025; or
(3) both.
(b) The director's recall order may require that the molluscan
shellfish or crabmeat be removed to one or more secure areas
approved by the director or authorized agent.
(c) The recall order must be in writing and be signed by the
director and may be issued:
(1) before or in conjunction with a tag or other marking as
provided by Section 436.028;
(2) with an emergency order authorized by Section 436.025; or
(3) both.
(d) The recall order is effective until it expires by its own
terms, is withdrawn by the director, is reversed by a court in an
order denying condemnation, or is set aside at a hearing
authorized by Section 436.025.
(e) The claimant shall pay the costs of the removal and storage
of a recalled product. If the claimant or the claimant's agent
fails to carry out the recall order, the director may recall the
product. The director shall assess the costs of the recall
against the claimant.
(f) The director may request the attorney general to bring an
action in a district court in Travis County to recover the costs
of recall. In a judgment in favor of the state, the court may
award costs, attorney fees, and interest from the date the
expense was incurred until the date the department is reimbursed.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.031. CONDEMNATION. If molluscan shellfish or crabmeat
is adulterated or misbranded, an action for the condemnation of
the molluscan shellfish or crabmeat may be filed in a district
court in whose jurisdiction the molluscan shellfish or crabmeat
is located.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.032. DESTRUCTION OF MOLLUSCAN SHELLFISH OR CRABMEAT.
(a) The court may order the destruction of sampled, detained, or
embargoed molluscan shellfish or crabmeat if the court finds that
the article is adulterated or misbranded.
(b) After entry of the court's order, an authorized agent shall
supervise the destruction of the article.
(c) The claimant shall pay the cost of the destruction of the
article.
(d) The court shall order the claimant or the claimant's agent
to pay court costs, storage fees, and other proper expenses.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.033. CORRECTION BY PROPER LABELING. (a) A court may
order the delivery of sampled, detained, or embargoed molluscan
shellfish or crabmeat that is misbranded to the claimant for
relabeling under the supervision of the director or an authorized
agent if:
(1) the court costs and other expenses have been paid;
(2) proper labeling can correct the misbranding; and
(3) the claimant executes a bond, conditioned on the correction
of the misbranding by proper labeling.
(b) The claimant shall pay the costs of the supervision.
(c) The court shall order the return of the molluscan shellfish
or crabmeat to the claimant if the director or an authorized
agent represents to the court that the molluscan shellfish or
crabmeat no longer violates this chapter and that the expenses of
supervision are paid.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.034. ADMINISTRATIVE PENALTY. (a) The director may
assess an administrative penalty against a person who violates
Section 436.011 or an order issued under this chapter.
(b) In determining the amount of the penalty, the director shall
consider:
(1) the person's previous violations;
(2) the seriousness of the violation;
(3) the hazard to the health and safety of the public;
(4) the person's demonstrated good faith; and
(5) other matters as justice may require.
(c) The penalty may not exceed $25,000 a day for each violation.
(d) Each day of a continuing violation constitutes a separate
violation.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.035. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a)
The director may assess an administrative penalty only after a
person charged with a violation is given an opportunity for a
hearing.
(b) If a hearing is held, the director shall make findings of
fact and shall issue a written decision regarding the violation
and the amount of the penalty.
(c) If the person charged with the violation does not request a
hearing, the director may assess a penalty after determining that
a violation has occurred and the amount of the penalty.
(d) The director shall issue an order requiring a person to pay
a penalty assessed under this section.
(e) The director may consolidate a hearing held under this
section with another proceeding.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.036. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not later
than the 30th day after the date an order is issued under Section
436.035(d), the director shall notify the person against whom the
penalty is assessed of the order and the amount of the penalty.
(b) Not later than the 30th day after the date notice of the
order is given to the person, the person shall:
(1) pay the penalty in full; or
(2) seek judicial review of the amount of the penalty, the
findings of the director, or both.
(c) If the person seeks judicial review, the person shall:
(1) send the amount of the penalty to the director for placement
in an escrow account; or
(2) post with the director a bond for the amount of the penalty.
(d) A bond posted under this section must be in a form approved
by the director and must be effective until judicial review of
the order or decision is final.
(e) A person who does not send the money to the director or post
the bond within the period described by Subsection (b) waives all
rights to contest the violation or the amount of the penalty.
(f) The attorney general, at the request of the director, may
bring a civil action to recover an administrative penalty
assessed under this subchapter.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.037. REFUND OF ADMINISTRATIVE PENALTY. Not later than
the 30th day after the date of a judicial determination that an
administrative penalty against a person should be reduced or not
assessed, the director shall:
(1) remit to the person the appropriate amount of any penalty
payment plus accrued interest; or
(2) execute a release of the bond if the person has posted a
bond.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.038. CRIMINAL PENALTY; DEFENSES. (a) A person commits
an offense if the person intentionally, knowingly, recklessly, or
with criminal negligence commits an unlawful act under Section
436.011.
(b) A violation of Section 436.011(1), (2), or (3) is a Class B
Parks and Wildlife Code misdemeanor under Section 12.405, Parks
and Wildlife Code. Each day of a continuing violation constitutes
a separate offense. Commissioned officers of the Parks and
Wildlife Department shall enforce Sections 436.011(1), (2), and
(3).
(c) If it is shown at trial that the defendant has been
convicted once within five years before the trial date of a
violation of Section 436.011(1) or (2), a violation by the
defendant under Section 436.011(1) or (2) is a Class A Parks and
Wildlife Code misdemeanor under Section 12.404, Parks and
Wildlife Code.
(d) If it is shown at trial that the defendant has been
convicted two or more times within five years before the trial
date of a violation of Section 436.011(1) or (2), a violation by
the defendant under Section 436.011(1) or (2) is a Parks and
Wildlife Code felony under Section 12.407, Parks and Wildlife
Code.
(e) A violation of Section 436.011(4), (5), (6), (7), (8), (9),
(10), (11), (12), (13), (14), or (15) is a Class A misdemeanor.
Each day of a continuing violation constitutes a separate
offense.
(f) A person is not subject to the penalties of Subsection (e)
if the person received molluscan shellfish or crabmeat in
commerce and delivered or offered to deliver the molluscan
shellfish or crabmeat in good faith, unless the person refuses to
furnish on request of the director, an authorized agent, or a
health authority the name and address of the person from whom the
product was received and copies of any documents relating to the
receipt of the product.
(g) A publisher, radiobroadcast licensee, or agency or medium
for the publication or broadcast of an advertisement, except the
harvester, processor, distributor, or seller of molluscan
shellfish or crabmeat to which a false advertisement relates, is
not liable under this section for the publication or broadcast of
the false advertisement unless the person has refused to furnish,
on the request of the director, the name and address of the
harvester, processor, distributor, seller, or advertising agency
residing in this state who caused the person to publish or
broadcast the advertisement.
(h) A person is not subject to the penalties of Subsection (e)
for a violation of Section 436.011 involving misbranded molluscan
shellfish or crabmeat if the violation exists only because the
product is misbranded because of a mistake in advertising, unless
the violation is committed with intent to defraud or mislead.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.039. INITIATION OF PROCEEDINGS. The attorney general
or a district, county, or municipal attorney to whom the
director, an authorized agent, or a health authority reports a
violation of this chapter shall prosecute without delay.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.040. MINOR VIOLATION. This chapter does not require
the director, an authorized agent, or a health authority to
report for prosecution a minor violation of this chapter if the
director, authorized agent, or health authority believes that the
public interest is adequately served by a written warning.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER D. ADULTERATED AQUATIC LIFE
Sec. 436.061. ADULTERATED AQUATIC LIFE. (a) A species of
aquatic life is adulterated if it has been taken from an area
declared prohibited for that species by the director.
(b) Molluscan shellfish or crabmeat is adulterated if:
(1) it bears or contains a poisonous or deleterious substance
that may render it injurious to health unless the substance is a
naturally occurring substance and the quantity of the substance
in the molluscan shellfish or crabmeat does not ordinarily render
the substance injurious to health;
(2) it consists in whole or in part of a diseased, contaminated,
filthy, or putrid substance or if it is otherwise unfit for human
consumption;
(3) it has been produced, prepared, packed, or held under
unsanitary conditions whereby it may have become contaminated
with filth or may have been rendered diseased, unwholesome, or
injurious to health;
(4) it is in whole or in part the product of diseased aquatic
life or has died otherwise than by taking;
(5) its container is made in whole or in part of a poisonous or
deleterious substance that may render the contents injurious to
health;
(6) it has been intentionally exposed to radiation, unless the
use of the radiation complied with a regulation or an exemption
under Section 409, Federal Food, Drug, and Cosmetic Act (21
U.S.C. Section 348);
(7) a substance has been substituted in whole or in part for it;
(8) damage to or inferiority of the product has been concealed;
(9) a substance has been added, mixed, or packed to increase its
bulk or weight, to reduce its quality or strength, or to make it
appear better or of greater value than it is;
(10) it contains a chemical substance containing sulphites,
sulphur dioxide, or any other chemical preservative that is not
approved by the Animal Plant Health Inspection Service or by
rules of the board;
(11) the molluscan shellfish have been taken from a closed area;
(12) the molluscan shellfish have been taken from a restricted
or conditionally restricted area and have not been purified under
the rules adopted by the board;
(13) the molluscan shellfish have been processed by a person
without a shellfish certificate;
(14) the molluscan shellfish have not been handled and packaged
in accordance with the rules adopted by the board;
(15) the crabmeat has been processed by a person without a
crabmeat processing license; or
(16) the crabmeat was not picked, packed, or pasteurized in
accordance with the rules adopted by the board.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER E. MISBRANDING
Sec. 436.071. MISBRANDED MOLLUSCAN SHELLFISH AND CRABMEAT.
Molluscan shellfish or crabmeat is misbranded if:
(1) its labeling is false, misleading, or fails to conform with
the requirements of Section 436.081;
(2) it is offered for sale under the name of another food;
(3) its container is made, formed, or filled so as to be
misleading;
(4) a word, statement, or other information required by this
chapter or a rule adopted under this chapter to appear on a label
is not prominently and conspicuously placed on the label and is
not likely to be read and understood by the ordinary individual
under customary conditions of purchase and use; or
(5) it does not have a label containing:
(A) the name, address, and certification or license number of
the processor;
(B) an accurate statement in a uniform location on the principal
display panel of the quantity of the contents in terms of weight,
measure, or numerical count; and
(C) a date as provided by rules adopted by the board.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER F. LABELING AND PACKAGING
Sec. 436.081. FAIR PACKAGING AND LABELING. (a) A label on
molluscan shellfish or crabmeat shall conform to the requirements
for the declaration of net quantity of contents under Section
1453, Fair Packaging and Labeling Act (15 U.S.C. Section 1453),
and the regulations adopted under that Act.
(b) The label on a package of molluscan shellfish or crabmeat
that represents the number of servings contained in the package
shall state the net quantity in terms of weight, measure, or
numerical count of each serving.
(c) A person may not distribute or cause to be distributed in
commerce any molluscan shellfish or crabmeat if a qualifying word
or phrase appears with the statement of the net quantity of
contents required by Subsection (a). A supplemental statement at
another place on the package may contain descriptions in
nondeceptive terms of the net quantity of contents, except the
supplemental statement of net quantity of contents may not
include a term qualifying a unit of weight, measure, or count
that tends to exaggerate the amount of the shellfish or crabmeat
in the package.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.082. FALSE ADVERTISEMENT. An advertisement of
molluscan shellfish or crabmeat is false if it is false or
misleading in any manner.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER G. AQUATIC LIFE FROM PROHIBITED AREAS
Sec. 436.091. DECLARATION OF PROHIBITED AREAS. (a) The
director by order shall declare a body of public water to be a
prohibited area if:
(1) the director finds, according to a sanitary, chemical, or
bacteriological survey, that the area contains aquatic life that
is unfit for human consumption; or
(2) aquatic life from a prohibited area may have been
transferred to that body of public water.
(b) The director shall modify or revoke an order according to
the results of a sanitary, chemical, or bacteriological survey
conducted by the department. The director shall file the order in
the department's office and shall furnish without charge a copy
of the order describing prohibited areas on request.
(c) The director shall conspicuously outline prohibited areas on
maps and shall furnish the maps without charge on request. The
failure of a person to obtain that information does not relieve
that person from liability under this chapter.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER H. MOLLUSCAN SHELLFISH
Sec. 436.101. CLASSIFICATION OF GROWING AREAS. (a) The
director by order shall designate an area that is coastal water
according to the rules of the Parks and Wildlife Commission as an
approved area, a conditionally approved area, a restricted area,
a conditionally restricted area, or a prohibited area, according
to the classification categories in the current National
Shellfish Sanitation Program Manual of Operations or its
successor. Coastal water is a prohibited area for the taking of
molluscan shellfish unless designated otherwise by the director.
(b) The director shall prohibit the taking of molluscan
shellfish for a specified period from water to which molluscan
shellfish may have been transferred from a restricted or
conditionally restricted area.
(c) The director by order shall designate growing areas as
closed areas or open areas. The director shall modify or revoke
an order according to the results of sanitary and bacteriological
surveys conducted by the department. The director shall file the
order in the department's office and shall furnish without charge
a copy of the order describing the open or closed area on
request.
(d) The director shall conspicuously outline the classifications
of areas for the taking of molluscan shellfish on maps and shall
furnish the maps without charge on request. The failure of a
person to obtain that information does not relieve that person
from liability under this chapter.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.102. DEPURATION. (a) The director may allow
depuration by artificial means of molluscan shellfish taken from
a restricted or conditionally restricted area, subject to the
rules adopted by the board and under the supervision the director
considers necessary to protect public health.
(b) A molluscan shellfish plant operator may employ an off-duty
peace officer to monitor the gathering of shellfish for
depuration from a restricted or conditionally restricted area as
provided by the rules adopted by the board under Subsection (a).
In this subsection, "peace officer" includes those persons listed
in Article 2.12, Code of Criminal Procedure.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.103. FEE ON OYSTER SALES; PENALTIES. (a) The first
certified shellfish dealer who harvests, purchases, handles,
stores, packs, labels, unloads at dockside, or holds oysters
taken from the water of this state shall pay the state a fee of
$1 for each barrel of oysters harvested, purchased, handled, or
processed by the certified shellfish dealer.
(b) For purposes of assessing the fee required by this section,
three 100-pound containers of oysters is the equivalent of one
barrel of oysters. A certified shellfish dealer may not purchase
or pack oysters in containers that, when packed, exceed 110
pounds in weight. A dealer who violates this subsection is liable
for a penalty of $5 for each container that exceeds 110 pounds.
(c) A certified shellfish dealer shall pay a fee or penalty
imposed by Subsection (a) or (b) not later than the 20th day of
the month following the month in which the barrel of oysters was
handled. A dealer who fails to pay the fee or penalty in full
within the prescribed period is liable for the amount of the fee
or penalty and an additional penalty of 10 percent of the amount
of the fee or penalty due. On certification by the comptroller
that a fee is past due, the department may suspend, until the
fee, penalty, or additional penalty is paid, the shellfish
certificate of a certified shellfish dealer who fails to timely
pay the fee, penalty, or additional penalty in full. The
department, on certification from the comptroller that a
certified shellfish dealer has refused to pay a fee, penalty, or
additional penalty on written demand, may revoke the shellfish
certificate of a certified shellfish dealer who refuses to pay a
fee, penalty, or additional penalty.
(d) The comptroller shall collect fees and penalties under this
section and may adopt rules, forms, and procedures for submission
of fees and penalties under this section. Each month the
comptroller shall report to the department the fees and penalties
that are submitted to the comptroller.
(e) Before any other disposition of the fees and penalties
collected under this section is made, two percent of the amount
of the fees and penalties shall be deposited in the state
treasury for appropriation for the use of the comptroller in the
administration and enforcement of this section. The remainder of
the fees and penalties collected under this section shall be
deposited to the credit of the oyster sales account in the
general revenue fund to be allocated each year for oyster-related
activities, including:
(1) collecting bay water and shellfish meat samples;
(2) contracting for sample analysis for classification and
opening or closing of oyster harvesting areas;
(3) marking the boundaries of areas that are designated open or
closed under this subchapter;
(4) studying oyster diseases and other concerns affecting the
availability of oysters for harvest;
(5) studying organisms that may be associated with human illness
and that can be transmitted through the consumption of oysters;
(6) promotion and advertising of the Texas oyster industry by
the Texas Department of Agriculture, including information,
education, and training to consumers on safe and proper handling
of oysters; and
(7) other oyster-related activities authorized or required by
this chapter.
(f) Money in the oyster sales account shall first be allocated
for funding the public health activities of bay water and
shellfish meat sample collection and analysis and wholesale,
retail, and consumer education before money is allocated for
research or promotion.
(g) Subtitles A and B, Title 2, Tax Code, apply to the
comptroller's administration, collection, and enforcement of this
section to the same extent as if the fee imposed under this
section were a tax imposed under Title 2, Tax Code.
(h) In monitoring compliance with the payment of fees imposed
under this section, the comptroller shall monthly or annually, as
determined by the comptroller, compare records of fees collected
under this section to data collected by the Parks and Wildlife
Department relating to oyster barrel purchases. If the
comptroller finds a discrepancy between the two sources of
information, the comptroller may consult the dealer's log
required by the National Shellfish Sanitation Program to resolve
the discrepancy. The comptroller may use the process described by
this subsection in place of any other administrative process used
by the comptroller in determining compliance with this section.
(i) A finding by the comptroller under Subsection (h) of a
discrepancy that reflects an underreporting of oysters harvested,
purchased, handled, or processed by a dealer constitutes prima
facie evidence of a violation of this section in any
administrative proceeding under this chapter.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 1298, Sec. 2, eff.
June 18, 1999; Acts 2001, 77th Leg., ch. 28, Sec. 1, eff. Sept.
1, 2001.
Sec. 436.104. OYSTER PROGRAM. (a) The department shall conduct
sanitary surveys, bay water and shellfish meat sampling, and any
other activities that are necessary to classify the bays from
which oysters are harvested from private leases or public reefs
as authorized by Section 436.101.
(b) The department shall conduct reasonable and prudent sampling
activities at the earliest possible time following the
designation as a closed area of an area from which oysters are
harvested from private leases or public reefs:
(1) if a question exists about the closure, to confirm the need
for the closure; or
(2) if there is reason to believe that the sampling will result
in opening the area.
(c) In implementing the oyster program, the department shall
follow standards that are at least as stringent as the guidelines
adopted by the National Shellfish Sanitation Program. The
department's approach shall be consistent with the purpose and
intent of the National Shellfish Sanitation Program and the
federal Food and Drug Administration policy statements regarding
the consumption of raw molluscan shellfish.
(d) Until Vibrio parahaemolyticus guidelines are formally
adopted into the National Shellfish Sanitation Program, the
department shall follow standards that are at least as stringent
as guidelines of the Interim Control Plan for Vibrio
parahaemolyticus of the Interstate Shellfish Sanitation
Conference for the purpose of designating harvest areas as closed
areas related to Vibrio parahaemolyticus.
(e) The department shall open harvest areas designated as closed
areas due to excessive levels of Vibrio parahaemolyticus in
shellfish meat samples when the levels of Vibrio parahaemolyticus
in the shellfish meat samples return to baseline levels.
(f) The department shall open harvest areas designated as closed
areas due to sporadic non-outbreak illnesses as specified in the
Interim Control Plan when the levels in shellfish meats return to
baseline levels or, if tdh+ serotypes were confirmed as the cause
of the illnesses, when the virulent serotypes of Vibrio
parahaemolyticus are absent in two consecutive samples of
shellfish meats collected from the Vibrio parahaemolyticus sample
stations in the closed area.
(g) The department shall open harvest areas designated as closed
areas due to a confirmed Vibrio parahaemolyticus outbreak when
the department determines that Vibrio parahaemolyticus strains of
virulent serotypes are absent in those situations where 03:K6 or
other tdh+ serotypes were confirmed as the cause of the outbreak.
For purposes of this subsection, in Galveston Bay, Vibrio
parahaemolyticus virulent strains shall be considered absent when
25 shellfish meat samples from any delineated harvest area that
has been designated as a closed area do not result in reporting
of the virulent strain that caused the outbreak.
(h) If a second confirmed outbreak of Vibrio parahaemolyticus
illness occurs in an area, the department shall open a harvest
area designated as closed when 50 shellfish samples do not result
in the reporting of the virulent strain that caused the outbreak.
(i) If harvest areas designated as closed areas as a result of
Vibrio parahaemolyticus cannot be opened as a result of the
sampling under Subsection (f) or (g), the areas may be opened
when environmental conditions develop that are unfavorable for
Vibrio parahaemolyticus growth or when environmental conditions
shift to conditions that are historically unrelated to outbreaks
of Vibrio parahaemolyticus.
Added by Acts 1999, 76th Leg., ch. 1298, Sec. 3, eff. June 18,
1999.
Sec. 436.105. TEMPERATURE REQUIREMENTS. Following initial
refrigeration after unloading from a harvest boat, molluscan
shellfish shall be refrigerated in air temperatures at or below
45 degrees Fahrenheit at all times except during transfer from
one storage area or transportation vehicle to another. Except for
an immediate transfer, molluscan shellfish may not remain
unrefrigerated during transfer from one storage area or
transportation vehicle to another.
Added by Acts 1999, 76th Leg., ch. 1298, Sec. 3, eff. June 18,
1999.
Sec. 436.106. TEMPERATURE ABUSE. If temperature abuse of
oysters associated with possible Vibrio parahaemolyticus
illnesses is identified at any point in the market chain from
harvest to consumer, the department may not designate a harvest
area as a closed area if the temperature abuse is the probable
cause of the illness. This section does not preclude closures for
investigations conducted in accordance with the National
Shellfish Sanitation Program that are necessary to protect public
health. If a harvest area has been designated as a closed area
because the investigation could not be completed within the time
required in the National Shellfish Sanitation Program and
temperature abuse is determined, as a result of the
investigation, to be the probable cause of the illnesses, the
harvest area must be immediately designated as an open area.
Added by Acts 1999, 76th Leg., ch. 1298, Sec. 3, eff. June 18,
1999.
Sec. 436.107. TEXAS OYSTER COUNCIL. (a) The Texas Oyster
Council is created.
(b) The council is composed of:
(1) two members appointed by the board as nominated by the Texas
Oyster Growers and Dealers Association;
(2) one member appointed by the board as nominated by the
Coastal Oyster Leaseholder's Association;
(3) two members appointed by the board from a list of oyster
dealers who have held a shellfish certificate in this state for
not less than six months of each of the three years preceding the
nomination and who are certified at the time of appointment;
(4) one representative appointed by the chairman of the
Interstate Shellfish Sanitation Conference; and
(5) three consumer members, including one person professionally
licensed or with work experience in the field of environmental
survey, environmental sanitation, environmental engineering, or a
similar field related to environmental or pollution conditions
and their effect on molluscan shellfish harvest areas, appointed
by the speaker of the house of representatives.
(c) Members of the Texas Oyster Council serve one-year terms
expiring August 31 of each year and may be reappointed at the end
of a term.
(d) A member of the Texas Oyster Council may not receive
compensation for service on the council, but is entitled to
reimbursement of expenses incurred by the member while conducting
the business of the council, as provided by the General
Appropriations Act.
(e) A person is not eligible for appointment as a consumer
member of the Texas Oyster Council if the person or the person's
spouse:
(1) is a harvester, processor, or wholesaler regulated under
this chapter;
(2) is employed by a harvester, processor, or wholesaler
regulated under this chapter;
(3) is a retailer of molluscan shellfish; or
(4) is employed by a retailer of molluscan shellfish.
(f) The Texas Oyster Council shall elect a presiding officer
from among its members.
Added by Acts 1999, 76th Leg., ch. 1298, Sec. 3, eff. June 18,
1999. Amended by Acts 2001, 77th Leg., ch. 28, Sec. 2, eff. Sept.
1, 2001.
Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL. (a)
The Texas Oyster Council shall:
(1) advise the board on the criteria used by the director under
Section 436.101 to designate growing areas as open or closed
areas;
(2) advise the board on the development of standards and
procedures relating to the licensing of molluscan shellfish
processors under this chapter;
(3) advise the board on the content of the rules adopted to
implement the provisions of this chapter relating to molluscan
shellfish;
(4) perform any other functions requested by the board in
implementing and administering the provisions of this chapter
relating to molluscan shellfish; and
(5) review information brought before the council relating to
molluscan shellfish.
(b) The Texas Oyster Council is entitled to:
(1) obtain information that is furnished to the department or
developed by the department as part of an investigation of a
food-borne illness that is suspected of being related to
molluscan shellfish, including:
(A) location and handling practices where suspect food may have
been served;
(B) product labeling and records;
(C) distribution agent, methods, and handling practices;
(D) sources of product;
(E) sample collection and laboratory analysis; and
(F) any other nonmedical information that may aid in determining
causes or routes of transmission of food-borne illness or
suspected food-borne illness; and
(2) review the information provided under Subdivision (1) and
report to the department on any matter of concern.
(c) The Texas Oyster Council may establish procedures for:
(1) meetings of the council;
(2) submission, consideration, and resolution of issues before
the council; and
(3) reporting relating to the council's activities.
(d) The Texas Oyster Council may meet at the request of the
department, may meet periodically to review completed activities
of the department, or may meet to review ongoing activities of
the department if the department appears to have exceeded the
guidelines established in the National Shellfish Sanitation
Program.
(e) A member of the Texas Oyster Council who receives
information under Subsection (b) from confidential communications
or records, as identified by the department, may not disclose the
information outside of the council or the department. The
department, by providing to the council public information that
is confidential or otherwise excepted from public disclosure
under law, does not waive or affect the confidentiality of the
information for the purposes of state or federal law or waive the
right to assert exceptions to required disclosure of the
information.
(f) The Texas Oyster Council is subject to Chapter 551,
Government Code. The Texas Oyster Council is not required to
conduct an open meeting to deliberate confidential communications
and records provided under this section relating to the
investigation of a food-borne illness that is suspected of being
related to molluscan shellfish.
(g) A report produced by the Texas Oyster Council is public
information.
Added by Acts 1999, 76th Leg., ch. 1298, Sec. 3, eff. June 18,
1999.
SUBCHAPTER I. GENERAL ADMINISTRATIVE PROVISIONS AND RULEMAKING
AUTHORITY
Sec. 436.111. DEFINITIONS. In this subchapter:
(1) "Certificate" means a shellfish certificate issued by the
department.
(2) "License" means a crabmeat processing license issued by the
department.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.112. RULEMAKING AUTHORITY. The board may adopt rules
for the enforcement of this chapter. The board shall adopt rules
establishing specifications for molluscan shellfish processing
and crabmeat processing and shall furnish without charge printed
copies of the rules on request.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.113. CERTIFICATION AND LICENSING PROCEDURES. (a) A
person may not operate as a molluscan shellfish or crabmeat
processor unless the person submits an application for a
certificate or a license to the department according to rules
adopted by the board and receives a certificate or license for
each plant or place of business.
(b) When an application has been properly filed with the
department, the director or an authorized agent shall inspect the
property identified in the application, including buildings and
equipment, and the operating procedures under which the product
is processed.
(c) The director shall issue a certificate or license to a
person who operates a plant or place of business that conforms to
the requirements of this chapter and rules adopted by the board.
(d) A certificate is nontransferrable and expires at 11:59 p.m.
on August 31 of each year.
(e) A license is nontransferrable and expires at 11:59 p.m. on
the last day of February each year.
(f) A person shall apply for a new certificate or license each
year for each plant or place of business.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.114. REFUSAL TO CERTIFY OR LICENSE; SUSPENSION OR
REVOCATION OF CERTIFICATE OR LICENSE. (a) After notice to the
applicant and opportunity for a hearing, the department may
refuse an application for a certificate or a license or may
suspend or revoke a certificate or license.
(b) The board by rule shall establish minimum standards for a
certificate or license and criteria for the refusal to issue a
certificate or license and the suspension or revocation of a
certificate or license.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993.
Sec. 436.115. HEARINGS AND APPEALS. (a) A hearing under this
chapter is governed by the procedures for a contested case
hearing under Chapter 2001, Government Code and the board's
formal hearing rules.
(b) An appeal from a final administrative decision under this
chapter shall be conducted under Chapter 2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.