                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS




                                                April 23, 2018



The Honorable Sid Miller                                  Opinion No. KP-0193
Commissioner.
Texas Department of Agriculture                            Re: Whether the Department of Agriculture's
Post Office Box 12847                                      rules regarding devices weighing food sold for
Austin, Texas 78711                                      . immediate consumption ·conflict with section
                                                           13 .1002 of the Agriculture Code (RQ-0189-KP)

Dear Commissioner Miller:

       You ask whether rules adopted by the Department of Agriculture ("the Department") to
implement a recent legislative measure are consistent with the language of the statute and the bill
author's and sponsor's intent. 1

       The Legislature gave the Department authority to "supervise all weighing or measuring
devices sold or offered for sale in this state." TEX. AGRIC. CODE§ 13.002(a). Generally, "a person
who owns or operates a commercial weighing or measuring device shall register .the device with
the department before using the device for a commercial transaction." Id. § 13.1011 (a).
Registration of the device includes "a fee, as provided by department rule," and the Department
must generally inspect and test a device at least once every four years if the device is used "in
proving the weight or measure ... of any item." Id. §§ 13.l0l(a)(l), .l 151(a); see also 4 TEX.
ADMIN. CODE § 12.12 (Tex. Dep't of Agric., Fee Schedule for Commercial Weighing and
Measuring Devices and Consumer Info. Stickers). The Department may, by rule, exempt a
weighing or measuring device from the application of registration and inspection requirements.
See TEX. AGRIC. CODE'§§ 13.l0l(a), .101 l(a). During the past legislative session, the Legislature
passed House Bill 2029, adding section 13.1002 to the Agriculture Code, which provides:

                 Notwithstanding any other law, a commercial weighing or
                 measuring device that is exclusively used to weigh food sold for
                 immediate consumption is exempt from this subchapter, including
                 the inspection requirements under Section 13.101 and. the
                 registration requirements under Section 13 .JO 11.

Id. § 13.1002.



          'Letter from Honorable Sid Miller, Comm'r, Tex. Dep't of Agric., to Honorable Ken Paxton, Tex. Att'y Gen.
at I (Oct. 23, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").
The Honorable Sid Miller - Page 2                           (KP-0193)



       To implement this statute, the Department adopted new rules. See 4 TEX. ADMIN. CODE
§§ 12.1(8), (10), .13(c)(5). You tell us that the Legislature did not define the phrase "food sold for
immediate consumption," so the Department adopted a rule defining the phrase "Food for
Immediate Consumption" as:

                  Food or meals prepared, served or sold by restaurants, lunch
                  counters or cafeterias that when sold requires no further preparation
                  by the purchaser prior to consumption on the premises, except for:

                       (a) refrigerated food that is typically reheated prior to eating;

                       (b) sliced luncheon products such as meat, poultry or cheese
                       when sold separately;

                       (c) food that is only cut, repackaged or pasteurized by the seller;
                       or

                       (d) fruits and vegetables.

Id. § 12.1(8) (emphasis added); see also Request Letter at 4. The Department also defined
"Immediate Consumption Food Scales" as a "scale exclusively used to weigh food sold for
immediate consumption on premises," and it adopted a rule exempting immediate consumption
food scales from the Department's registration and inspection requirements. 4 TEX. ADMIN. CODE
§§ 12.1(10), .13(c)(5).

        You explain that after the adoption of these rules, entities challenged their validity, and the
legislators who authored and sponsored House Bill 2029 stated that the rules go beyond the
Legislature's intent. See Request Letter at 2. Opponents of the new rules argue that inclusion of
the phrase "on the premises" in Rule 12.1 (8) is inconsistent with the language of the statute. Id.
You therefore ask whether the new rules are consistent with section 13.1002 of the Agriculture
Code and the author's and sponsor's intent in enacting House Bill 2029. See id. at 1.

        We first address the issue of legislative intent. The words the Legislature chose are "the
surest guide to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 866 (Tex. 1999).2 Thus, when possible, courts discern legislative intent 'from the plain
meaning of the words in a statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). This
general rule applies unless enforcing the plain language of the statute as written would produce
absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). Neither

         2
          Attached to your request, you include a Jetter sent from the author and sponsor of House Bill 2029 to the
Department. The Jetter explains that the rules adopted by the Department "added language that goes beyond this
legislation's original intent, only exempting devices at food establishments where food is sold for immediate
consumption 'on the premises."' See Letter from Honorable Charles Perry, Chair, Senate Comm. on Agric., Water &
Rural Affairs, to Honorable Sid Miller, Comm'r, Dept. of Agric. at I (Oct. 17, 2017) (on file with the Op. Comm.).
While legislators are free to share their understanding of the laws they passed, courts will not consider post-enactment
commentary by legislators as evidence of legislative intent. Entergy Gulf States, Inc. v. Summers, 282 S. W.3d 433,
446-47 (Tex. 2009). Instead, courts will look to the words the Legislature enacted. Id.
The Honorable Sid Miller - Page 3                        (KP-0193)



the Department nor the opponents of the new administrative rules claim that section 13 .1002 is
ambiguous or would lead to absurd results, and we agree. 3 Therefore, determining whether the
Department's new rules comply with the legislative intent requires analyzing whether the rules are
consistent with the language chosen by the Legislature in section 13 .1002 of the Agriculture Code.

        "[A] state administrative agency has only those powers that the Legislature expressly
confers upon it" and those implied powers that are reasonably necessary to carry out its express
duties. Pub. Util. Comm 'n ofTex. v. City Pub. Serv. Bd., 53 S.W.3d 310,315 (Tex. 2001). It may
"adopt only such rules as are authorized by and consistent with its statutory authority:" Tex. State
Bd. of Exam 'rs of Marriage & Family Therapists v. Tex. Med. Ass 'n, 511 S.W.3d 28, 33 (Tex.
2017). "Courts generally presume that agency rules are valid, so parties who challenge a rule have
the burden of proving its invalidity." Id. To establish a rule's facial invalidity, a challenger "must
show that the rule: (1) contravenes specific statutory language; (2) runs counter to the general
objectives of the statute; or (3) imposes additional burdens, conditions, or restrictions in excess of
or inconsistent with the relevant statutory provisions." Id.

        The exemption in section 13.1002 applies only to devices weighing "food sold for
immediate consumption." TEX. AGRIC. CODE § 13 .1002. You explain that in writing its new rules,
the Department focused on the term "immediate" and that dictionaries defined the word "in terms
of passage of time, without the intervention of another object, cause or agency, without loss or
interval of time, and near to or related to the present." Request Letter at 5. Based on these
definitions, the Department determined that "food taken out of the restaurant and consumed after
leaving the restaurant is not 'food sold for immediate consumption."' Id. Thus, the Department
contends its rules require the purchaser to eat the food on the premises in order for the device to
qualify for the exemption. See 4 TEX. ADMIN. CODE§§ 12.1(8), (10), .13(c)(5).

        Section 13 .1002 requires that to receive the exemption, devices must only measure food
capable of immediate consumption. TEX. AGRIC. CODE§ 13.1002. Thus, a device measuring any
food requiring further preparation before consumption would not qualify for the exemption.
However, while the statute requires the devices be used "to weigh food sold for immediate
consumption," the Department instead defined "Food for Immediate Consumption," omitting
"sold for" in the term it defined. Id.; 4 TEX. ADMIN. CODE§ 12.1(8). The language of the statute
requires that the vendor sell food that a consumer can eat immediately, but it does not mandate
where or when the purchaser will eat that food. Nor does it require that the seller provide a space
for the consumer.to eat. On the other hand, the Department's rules require actual consumption of
the food on the premises, placing additional conditions on the buyer and seller in order for a device
to be exempt from Department regulation. 4 TEX. ADMIN. CODE § 12.1(8). A court would
therefore likely conclude that the Department's rules implementing section 13 .1002 are invalid to
the extent the rules impose the additional burden, beyond what the statute requires, of a purchaser
consuming food on the premises. See Harlingen Family Dentistry, P.C. v. Tex. Health & Human
Servs. Comm 'n, 452 S.W.3d 479, 486-87 (Tex. App.-Austin 2014, pet. dism'd) (invalidating
agency rules that imposed conditions in excess of those authorized by statute).



       3See   Request Letter at 4 ("The Department acknowledges that the meaning ofHB 2029 is clear .... ").
The Honorable Sid Miller - Page 4               (KP-0193)



                                      SUMMARY

                      A court would likely conclude that the Department of
              Agriculture's rules implementing section 13.1002 of the Agriculture
              Code are invalid to the extent the rules impose the additional burden
              of requiring a purchaser to consume food on the premises in order
              for the seller to obtain an exemption from Department regulation
              over devices used to weigh food sold for immediate consumption.

                                            Very truly yours,




                                            KEN PAXTON
                                            Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
