October 26, 1965

HonorableJohn C. White OpinionNo. 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, pertaining to the sale of flour in quantitiesunder two pounds Dear **Mr.** White: and related questions.

You have requestedah 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, pertainingto the sale of flour in quantitiesunder two ,pounds.

In your opinion request,you have posed the following questions:

"1

. Does the eliminationof 'specialty' definitionsshift the basis for exemptionfrom special ingredientsand broaden it to include methods of packaging? "2. Can the constructionor design of a flour containerbe regarded as sufficientfor exemptingthe product on the basis of 'special or limiteduse?' "3. In view'of your amwers to the two above questions,does the accompanying proauce sample 'GoldMedal WONDRA,' Pour 'N Shake' flour, meet the standardsfor exemptionunder the new legislation?" Section 1 of Article 1042b provides that: "The standardmeasures of wheat flour, whole wheat flour, graham flour, other cereal

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flour, and corn meal, except such cereals sold a8 grits, shall be packages containingnet 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 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 packages (including

barrels, sacks, bags, cartons Andy othe? containers)of the above standardnet weights. Section 4 of Article 1042b, prior to its amendment by House Bill 1170, provided that:

"Theprovisionsof this Act shall not the retailingof 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 id ified originalpackage, the n%rco%zntsnof enwhich are five pounds or less." added). (Emphasis

Section 4 of Article 1042b, after its amendmentby House Bill 1170, presentlyprovides 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 gristmilland anothermill 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 distributedin an identified - -2561-Mr. John C. White, page 3 (C-534)

originalpackage the,,net weight of which is five pounds or less. (Emphasisadded). Section 1 of Article 1042b prescribesthe standard measures of flour as packages containingweights of two, five, ten, twenty-five,fifty, one hundred, one hund~red fifty, and two hundred pounds. Section 2 of Article 1042bmakes it unlawful to sell or offer for sale flour except in packages of the standardweights set forth in Section 1~ of Article 1042b. Section 4 of Article 1042b sets forth certain exceptionsto the provisionsof Section 1 and Section 2 of Article 1042b.

Pursuant to the provisionsof Section 4 of Article 1042b, prior to its amendmentby House Bill 1170, the provisions of Section 1 and Section 2 of Article 1042b did not apply to:

.snyproduct such as preparedpancake flour,'cakeflour or other specialty,

. . ." Since the amendmentof Section 4 of Article 1042b by House Bill 1170, the provisionsof 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 limiteduse, . . . In Attorney General'sOpinionNo. WW-313 (1957), the provisionsof 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 restrictions of the Act such products as have distinctive or restrictivequalities,which mark them with some exceptionalor peculiar characteristic. The two enumeratedproducts, to-wit,preparedpancake flour and cake flour both fall within this commonly accepted definitionfor both contain ingredients or are so processed so as to be offered for sale, and subsequently

purchased for a limiteduse. Both possess exceptionalqualitieswhich induce the purchaser to seek out that particularproduct. **However,** here the container Itself indicatesan all-purposeflour, and not a specializedtype of Flour, and the statute itself does not classify a containeras 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 12562-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 subjectpackage of

. . . . (Emphasisad,ded). The amendmentto Set$lon 4 of Article 1042b, by House Bill 1170, would allow

. . .thepacking for sale, offer for sale, or sale of a prepared flour or meal-designedfor a special or limiteduse. . .(Bmphasls added)" in packageswith weight measures other than those specified in Section 1 of Article 1042b. However, to qualify for such exemption from the provisionsof 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 limiteduse.

While the provisionsof Section 4 of Article 1042b were amended by House Bill 1170, we are of the opinion that the reasoning contalned~ in AttorneyGeneral'sOpinionNo. WW-313 (1957),and set forth heretofore , would still be applicableas It appears that It still remains the intent of the statutory enactment to exclude only those productswhich have distinctive or restrictivequalitiesor characteristics. The fact that the container In which the product is packed Is designed for a limited or specialpurpose 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 questionsposed by you, we are of the o lnlon that the exemption affordedby Section 4 of Article 10 t2b, as amended by House Bill 1170, from the provisionsof Section 1 and Section 2 of Article 1042b Is limited to a flour or meal designed for a special or limiteduse, and such exemptiondoes not extend to all-purposeflour or meal packed in a container or package designed for a limited or specialuse. The exemptionaffordedby Section 4 of Article 1042b, as amendedby 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 containerwhich you have supplied this of.fice Is almost Identicalin characteristics to the one sup office in Attorney General'sOpinion No. WW-313 (1957 Plied this

. The sample container is a shaker-type package of flour with a perforated top, weighing 13.5 ounces , and more fully describedas a pasteboardcylinderwith a plastic top and metal bottom. It is designed to be used by pushing down a portion of the plastic

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top and turning a revolvingdisk attached thereto so that the package provides for both reclosability and controlleddisIn addition,as was the case in AttorneyGeneral's gE?i%'NO. W-313 (1957), such sample is specificallylabeled so as to Indicate that it contains all-purposeflour.

As the sample submittedto this office of "GoldMedal WONDRA, Pour 'N Shake" flour is not a flour designed for a special or limiteduse, but is in fact an all-purposeflour, even though it is a granulatedprocess flour, we are of the opinion that because such sample does not meet the standardmeasures specified in Section 1 of Article 1042b, the provisionsof Section 2 of Article 1042b prohibit the sale or offer for sale of such product. SUMMARY

The exemptionaffordedby 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 provisionsof Section 1 and Section 2 of Article 1042b,Vernon's Penal Code, is limited to a flour or meal designed for a special or limitedpurpose and does not include or extend to an all-purposeflour or meal packed In a container or package which is designed for a special or limiteduse. The sample of flour submittedto this office, "Golds Medal WONERA, Pour 'N Shake" Is not a flour designed for a special or limiteduse, and therefore is not exempt, pursuant to the provisions of Section 4 of Article 1042b, as emended by House Bill 1170, from the provisionsof 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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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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