October 26, 1965 

Honorable John C. White Opinion No. C-534 

Commissioner of Agriculture 

Austin, Texas Re: Construction of 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 

quantities under two pounds 

Dear Mr. White: and related questions. 

You have requested ah opinion of this office concerning 

the construction of 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 quantities under two ,pounds. 

In your opinion request, you have posed the following 

questions: 

"1 . Does the elimination of 'specialty' 

definitions shift the basis for exemption from 

special ingredients and broaden it to include 

methods of packaging? 

"2. Can the construction or design of a 

flour container be regarded as sufficient for 

exempting the product on the basis of 'special 

or limited use?' 

"3. In view'of your amwers to the two 

above questions, does the accompanying proauce 

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 containing net avoirdupois 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 corporation to 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 packages (including barrels, sacks, bags, cartons 

Andy othe? 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 

exclusive use 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 id 

ified original package, the n%rco%zntsnof 

enwhich are five pounds or less." 

added). 

(Emphasis 

Section 4 of Article 1042b, after its amendment by 

House Bill 1170, presently provides that: 

"This Act does not apply to (1) the retailing 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,,net weight of which is 

five pounds or less. (Emphasis added). 

Section 1 of Article 1042b prescribes the standard 

measures of flour as packages containing weights of two, five, 

ten, twenty-five, fifty, one hundred, one hund~red fifty, and 

two hundred pounds. Section 2 of Article 1042b makes it unlawful 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,'cake flour 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 commented upon, and it was stated: 

.it appears it was the intent of 

the Legislature to exclude from the restrictions 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 subsequently purchased 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 specialized type 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 'specialty1 as 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-designed for a 

special or limited use. . .(Bmphasls added)" 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,"'in the 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 exemption afforded by Section 4 of Article 10 t 2b, 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 characteristics of 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 characteristics to the one sup 

office in Attorney General's Opinion No. WW-313 (1957 P 

lied this 

. The 

sample container is a shaker-type package of flour with a perforated 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 reclosability and controlled disIn addition, as was the case in Attorney General's 

gE?i%'NO. W-313 (1957), such sample is specifically labeled 

so as to Indicate that it contains all-purpose flour. 

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 standard measures 

specified in Section 1 of Article 1042b, the provisions of Section 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 Section 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 container or package which is designed for a special 

or limited use. 

The sample of flour submitted to this office, 

"Golds Medal WONERA, Pour 'N Shake" Is not a flour 

designed for a special or limited use, and therefore 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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