The Honorable Sid Miller Commissioner. Texas Department ofAgriculture Post Office Box 12847 Austin, Texas 78711

Dear CommissionerMiller: 

### KEN PAXTON ATTORNEY GENERAL OF TEXAS
April 23, 2018
Opinion No. KP-0193 Re: Whether the Department ofAgriculture's rules regarding devices weighing food sold for

. immediate consumption ·conflict with section

13.1002 oftheAgriculture Code (RQ-0189-KP)

You ask whether rules adopted by the Department ofAgriculture ("the Department") to implement a recent legislative measure are consistent with the language ofthe 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 orofferedfor sale inthis state." TEX. AGRIC. CODE§ 13.002(a). Generally, "aperson 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 ofthe 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 ifthe device is used "in proving the weight or measure ... ofany 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 ofregistration and inspection requirements. 

### See TEX. AGRIC. CODE'§§ 13.l0l(a), .101 l(a). Duringthe pastlegislative session, the Legislature passed House Bill 2029, adding section 13.1002 to the Agriculture Code, whichprovides:

Id. § 13.1002. 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.

'Letterfrom Honorable SidMiller, Comm'r, Tex. Dep't ofAgric., to Honorable Ken Paxton, Tex. Att'yGen. at I (Oct. 23, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").The Honorable Sid Miller

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To implement this statute, the Department adopted new rules. See 4 TEX. ADMIN. CODE §§ 12.1(8), (10), .13(c)(5). Youtellus thatthe Legislature did not define thephrase "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 purchaserpriorto consumption on thepremises, except for: (a) refrigerated food that is typically reheated priorto eating; (b) sliced luncheon products such as meat, poultry or cheese when sold separately; (c) food thatis only cut, repackaged orpasteurizedbythe 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'sregistration and inspectionrequirements. 4TEX. ADMIN. CODE §§ 12.1(10), .13(c)(5). You explainthat afterthe adoption ofthese rules, entities challengedtheir validity, andthe legislators who authored and sponsored House Bill 2029 stated that the rules go beyond the Legislature's intent. See Request Letter at 2. Opponents ofthe new rules argue that inclusion of the phrase "on the premises" in Rule 12.1(8) is inconsistent with the language ofthe statute. Id. You therefore ask whether the new rules are consistent with section 13.1002 ofthe Agriculture Code and the author's and sponsor's intent in enacting House Bill 2029. See id. at 1. We first address the issue oflegislative intent. The words the Legislature chose are "the surest guide to legislative intent." Fitzgerald v. AdvancedSpine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999).2 Thus, when possible, courts discern legislative intent 'from the plain meaning ofthe words in a statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). This general rule applies unless enforcing the plain language ofthe statute as written would produce absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). Neither

2Attached to your request, you include a Jetter sent from the author and sponsor ofHouse 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. ofAgric. at I (Oct. 17, 2017) (on file with the Op. Comm.). While legislators are free to share their understanding ofthe laws theypassed, courts will not considerpost-enactment commentary by legislators as evidence oflegislative 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

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the Department nor the opponents ofthe 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'snewrules complywiththe legislative intentrequires analyzing whethertherules are consistentwiththe language chosenbythe Legislature in section 13.1002 ofthe 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. CityPub. Serv. Bd., 53 S.W.3d 310,315 (Tex. 2001). It may "adoptonly suchrules as are authorizedby 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 generallypresumethat agency rules are valid, so parties who challenge arulehave the burden ofproving its invalidity." Id. To establish arule's facial invalidity, a challenger "must show that the rule: (1) contravenes specific statutory language; (2) runs counter to the general objectives ofthe statute; or (3) imposes additional burdens, conditions, orrestrictions in excess of orinconsistent 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. Youexplainthatinwriting its newrules, the Department focused onthe term "immediate" and that dictionaries defined the word "interms ofpassage oftime, without the intervention ofanother 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 ofthe 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 ofimmediate 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 soldfor 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 ofthe statute requires that the vendor sell food that a consumer can eat immediately, but it does not mandate where orwhenthe purchaserwill eatthat food. Nor does it require that the sellerprovide a space for the consumer.to eat. Onthe other hand, the Department's rules require actual consumption of thefood onthepremises, placing additional conditions onthe buyer and sellerinorderfor 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 extentthe rules impose the additional burden, beyond whatthe statute requires, ofa 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 ofthose authorized by statute).

3See Request Letter at 4 ("The Department acknowledges thatthe meaning ofHB 2029 is clear

....").The Honorable Sid Miller

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### SUMMARY A court would likely conclude that the Department of Agriculture'srules implementing section 13.1002 oftheAgriculture Code are invalidto the extenttherules impose the additionalburden ofrequiring a purchaser to consume food on the premises in order for the seller to obtain an exemption from Department regulation overdevices used to weigh food sold for immediate consumption.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours,

KEN PAXTON Attorney General ofTexas