The Honorable Sid Miller 

Commissioner. 

Texas Department of Agriculture 

Post Office Box 12847 

Austin, Texas 78711 

Dear Commissioner Miller: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

April 23, 2018 

Opinion No. KP-0193 

Re: Whether the Department of Agriculture's 

rules regarding devices weighing food sold for 

. immediate consumption · conflict with section 

13 .1002 of the Agriculture Code (RQ-0189-KP) 

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: 

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. 

'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 

2Attached 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). 

3

See 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. 

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 of Texas