                   October 26, 1965


Honorable John C. White         Opinion No. C-534
Commissionerof Agriculture
Austin, Texas                   Re:   Constructionof House Bill
                                      1170, Acts 59th Legislature,
                                      1965, Regular Session, Ch.
                                      400, p. 828, which amended
                                      Section 4 of Article 1042b,
                                      Vernon's Penal Code, pertain-
                                      ing to the sale of flour in
                                      quantitiesunder two pounds
Dear Mr. White:                       and related questions.
          You have requested ah opinion of this office concerning
the constructionof House Bill 1170, Acts 59th Legislature,1965,
Regular Session, Ch. 400, p. 828, which amended Section 4 of
Article 1042b, Vernon's Penal Code, pertaining to the sale of
flour in quantitiesunder two ,pounds.
         In your opinion request, you have posed the following
questions:
          "1. Does the eliminationof 'specialty'
     definitions shift the basis for exemption from
     special ingredientsand broaden it to include
     methods of packaging?
          "2. Can the constructionor design of a
     flour container be regarded as sufficientfor
     exempting the product on the basis of 'special
     or limited use?'
          "3. In view'of your amwers to the two
     above questions,does the accompanyingproauce
     sample 'Gold Medal WONDRA,' Pour 'N Shake' flour,
     meet the standards for exemption under the new
     legislation?"
          Section 1 of Article 1042b provides that:
          "The standard measures of wheat flour,
     whole wheat flour, graham flour, other cereal
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Mr. John C. White, page 2 (C-534)


     flour, and corn meal, except such cereals sold
     a8 grits, shall be packages containingnet avoir-
     dupois weights of two, five, ten, twenty-five,
     fifty, one hundfed,,one hundred fifty, and two
     hundred pounds.
          Section 2 of Article 1042b provides that:
          "It ahall be unlawful for any person, firm,
     association,or corporationto pack for sale,
     sell or offer for sale in the State of Texas any
     wheat flour, whole wheat flour, graham flour,
     other cereal flour, or corn meal except in pack-
     ages (includingbarrels, sacks, bags, cartons
     Andyothe? containers)of the above standard net
     weights.
          Section 4 of Article 1042b, prior to its amendment
by House Bill 1170, provided that:
          "The provisions of this Act shall not
              the retailing of wheat flour, whole
                  graham flour. other cereal flour
     or corn meai direct to the consumer from bulk
     stock, nor to sales of flour to bakeries for
     exclusiveuse in such bakeries, nor to the
     exchange of flour or meal for wheat or corn
     by grist mills and other mills grinding for
     toll for producers; and,that nothing herein
     contained shall be held to apply to any product
     such as prepared pancake.flour,cake flour or
     other specialty,packed and di t ib t d i iden-
      ified original package, the n%rco%zntsnof
     which are five pounds or less." (Emphasis
     added).
          Section 4 of Article 1042b, after its amendment by
House Bill 1170, presently provides that:
          "This Act does not apply to (1) the re-
    tailing of wheat flour, whole wheat flour,
    graham flour, other cereal flour, or corn meal
    directly to the consumer from bulk stock; (2)
    the sale of flour to a bakery for Its exclusive
    use; (3) the exchange of flour or meal for wheat
    or corn between a gristmill and another mill
    grinding for toll for producers; (4)
    for sale, offer for sale, or aale of a
    flour or meal designed for a special or limited
    use
    -    and packed and distributed in an identified

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Mr. John C. White, page 3 (C-534)


     original package the,,netweight of which is
     five pounds or less. (Emphasis added).
          Section 1 of Article 1042b prescribes the standard
measures of flour as packages containingweights of two, five,
ten, twenty-five,fifty, one hundred, one hund~redfifty, and
two hundred pounds. Section 2 of Article 1042b makes it un-
lawful to sell or offer for sale flour except in packages of
the standard weights set forth in Section 1~of Article 1042b.
Section 4 of Article 1042b sets forth certain exceptions to
the provisions of Section 1 and Section 2 of Article 1042b.
          Pursuant to the provisions of Section 4 of Article
1042b, prior to its amendment by House Bill 1170, the provisions
of Section 1 and Section 2 of Article 1042b did not apply to:
              .sny product such as prepared pancake
     flour,'cakeflour or other specialty, . . ."
Since the amendment of Section 4 of Article 1042b by House Bill
1170, the provisions of Section 1 and Section 2 of Article 1042b
do not now apply to:
          ,I
           . . .the packing for sale, offer for
     sale, or sale of a prepared flour or meal d$-
     signed for a special or limited use, . . .
          In Attorney General's Opinion No. WW-313 (1957), the
provisions of Section 4 of Article 1042b, prior to Its amendment
by House Bill 1170, were commentedupon, and it was stated:
              .it appears it was the intent of
    the Legislatureto exclude from the restric-
    tions of the Act such products as have distinctive
    or restrictive qualities,which mark them with
    some exceptional or peculiar characteristic. The
    two enumerated products, to-wit, prepared pancake
    flour and cake flour both fall within this commonly
    accepted definition for both contain ingredients
    or are so processed so as to be offered for sale,
    and subsequentlypurchased for a limited use.
    Both possess exceptional qualities which induce
    the purchaser to seek out that particular product.
    However, here the container Itself indicates an
    all-purpose flour, and not a specializedtype of
    Flour, and the statute itself does not classify
    a container as a specialty. . . .it Is our
    opinion th t th    bj t package of all-purpose
    flour, whole ph&%ale~haracteristics in no way
    limit or restrict Its use, may not be construed
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Mr. John C. White, page 4 (C-534)


     to be a 'specialty1as that term is used in
     Article 1042b, Vernon's Penal Code. For this
     reason, we are of the opinion that Sections 1
     and 2 of Article 1042b, Vernon's Penal Code,
     pff~~~lt the ;ale of the subject package of
          . . . .    (Emphasis ad,ded).
          The amendment to Set$lon 4 of Article 1042b, by
House Bill 1170, would allow . . .the packing for sale, offer
for sale, or sale of a prepared flour or meal-designedfor a
special or limited use. . .(Bmphaslsadded)" in packages with
weight measures other than those specified in Section 1 of
Article 1042b. However, to qualify for such exemption from the
provisions of Section 1 and Section 2 of Article i042b, the
flour, rather than the container,must be,"'inthe words of the
statute, designed for a special or limited use.
          While the provisions of Section 4 of Article 1042b
were amended by House Bill 1170, we are of the opinion that the
reasoning contalned~in Attorney General's Opinion No. WW-313
(1957), and set forth heretofore, would still be applicable as
It appears that It still remains the intent of the statutory
enactment to exclude only those products which have distinctive
or restrictive qualities or characteristics. The fact that the
container In which the product is packed Is designed for a limited
or special purpose does not suffice, under the terms of the
statute, to afford an exemption to the product.
          In view of the foregoing, and in answer to the first
two questions posed by you, we are of the o lnlon that the ex-
emption afforded by Section 4 of Article 10t2b, as amended by
House Bill 1170, from the provisions of Section 1 and Section 2
of Article 1042b Is limited to a flour or meal designed for a
special or limited use, and such exemption does not extend to
all-purpose flour or meal packed in a container or package designed
for a limited or special use. The exemption afforded by Section
4 of Article 1042b, as amended by House Bill 1170, Is directed
toward the characteristicsof the flour or meal rather than toward
the container in which It is packaged.
          In reply to your third question, It should be noted
that the sample container which you have supplied this of.fice
Is almost Identical in characteristicsto the one sup lied this
office in Attorney General's Opinion No. WW-313 (1957P . The
sample container is a shaker-typepackage of flour with a per-
forated top, weighing 13.5 ounces, and more fully described as
a pasteboard cylinder with a plastic top and metal bottom. It
is designed to be used by pushing down a portion of the plastic


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Mr. John C. White, page 5 (C=534)


top and turning a revolving disk attached thereto so that the
package provides for both reclosabilityand controlled dis-
          In addition, as was the case in Attorney General's
gE?i%'NO. W-313 (1957), such sample is specificallylabeled
so as to Indicate that it contains all-purposeflour.
          As the sample submitted to this office of "Gold Medal
WONDRA, Pour 'N Shake" flour is not a flour designed for a
special or limited use, but is in fact an all-purpose flour, even
though it is a granulated process flour, we are of the opinion
that because such sample does not meet the standardmeasures
specified in Section 1 of Article 1042b, the provisions of Sec-
tion 2 of Article 1042b prohibit the sale or offer for sale of
such product.
                    SUMMARY
          The exemption afforded by Section 4 of Article
    1042b, Vernon's Penal Code, as amended by House
    Bill 1170, Acts 59th Legislature, 1965, Ch. 400,
    p. 828, from the provisions of Section 1 and Sec-
    tion 2 of Article 1042b, Vernon's Penal Code, is
    limited to a flour or meal designed for a special
    or limited purpose and does not include or extend
    to an all-purpose flour or meal packed In a con-
    tainer or package which is designed for a special
    or limited use.
         The sample of flour submitted to this office,
    "GoldsMedal WONERA, Pour 'N Shake" Is not a flour
    designed for a special or limited use, and there-
    fore is not exempt, pursuant to the provisions of
    Section 4 of Article 1042b, as emended by House
    Bill 1170, from the provisions of Section 1 and
    Section 2 of Article 1042b, Vernon's Penal Code.
                           Very truly yours,
                           WAGGONER CARR
                           Attorney General




                               Assistant
PB:mkh


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Mr. John C. white, page 6 (C-534)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Harold Kennedy
Robert Owen
George Black
Malcolm Quick
APPROVED FOR THE ATTORNEY~~GENERAL
BY: T. B. Wright




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