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Statutes > Texas > Health-and-safety-code > Title-6-food-drugs-alcohol-and-hazardous-substances > 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

(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.

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.

(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).

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

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.

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.

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.

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.

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.

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.

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;

(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.

(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.

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.