Can Texas require food to be eaten on the premises before a restaurant's scale is exempt from state weights-and-measures registration?

Plain-English summary

The Texas Department of Agriculture supervises commercial scales and other weighing devices, and generally a business that uses a commercial scale must register and have it periodically inspected. In its 2017 session the Legislature passed House Bill 2029, adding Agriculture Code section 13.1002, which exempts a device "exclusively used to weigh food sold for immediate consumption" from those registration and inspection requirements. The Department then wrote rules to implement the exemption, and in doing so defined "Food for Immediate Consumption" to cover meals from restaurants, lunch counters, and cafeterias that require no further preparation and are consumed "on the premises." The Agriculture Commissioner asked the AG whether those rules were consistent with the statute, especially the "on the premises" language, which the bill's author and sponsor said went beyond what they intended.

The AG started with how courts read statutes. The words the Legislature chose are the surest guide to its intent, and courts apply the plain meaning unless that would produce an absurd result. Nobody argued the statute was ambiguous or absurd. The AG also noted that courts will not treat after-the-fact statements by legislators, even the bill's author and sponsor, as evidence of legislative intent; they look to the enacted words. So the real question was simply whether the Department's rules matched the statutory language.

An agency can adopt only rules consistent with its statutory authority, and a rule is invalid if it contradicts the statute, defeats its objectives, or adds burdens the statute does not impose. Here the statute exempts devices that weigh "food sold for immediate consumption," which the AG read to require that the seller sell food a customer can eat right away, without dictating where or when the customer eats it. The Department, focusing on the word "immediate," instead required actual consumption on the premises and dropped the "sold for" language from its definition. That added a condition on both buyer and seller that the statute does not contain. The AG concluded a court would likely hold the rules invalid to the extent they require a purchaser to consume the food on the premises in order for a device to qualify for the exemption.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Department of Agriculture (which requested the opinion): The opinion told the Department that its rule's "on the premises" consumption requirement likely could not stand. On the AG's reading, the statute keyed the exemption to the nature of the food being sold, not to where the customer ate it, so the rule added a condition beyond the statute.

Food sellers using scales (as the opinion described them): The opinion treated the exemption as turning on whether the device exclusively weighs food a customer can eat immediately. A device that weighs food requiring further preparation would not qualify, but a seller would not, under the AG's reading, lose the exemption simply because a customer takes the food away to eat.

The Legislature and the bill's author and sponsor (as the opinion described them): The opinion acknowledged the author's and sponsor's view that the rules overreached, but explained that courts decide intent from the enacted text, not post-enactment commentary, and then reached a result consistent with their stated concern.

Common questions

What does Agriculture Code section 13.1002 exempt?
It exempts a commercial weighing or measuring device used exclusively to weigh "food sold for immediate consumption" from the Department's subchapter, including the inspection requirement under section 13.101 and the registration requirement under section 13.1011.

Why did the Department's rule run into trouble?
The rule defined the exemption to require the customer to consume the food "on the premises." The AG read the statute as asking only whether the food sold can be eaten immediately, not where or when it is eaten, so the on-premises requirement added a condition the statute does not.

Does after-the-fact comment from a bill's author settle what the law means?
No. The AG noted that courts will not treat post-enactment statements by legislators, even a bill's author and sponsor, as evidence of legislative intent. They look to the words the Legislature actually enacted.

So is the whole rule void?
Not the whole rule. The AG concluded a court would likely find the rules invalid only to the extent they impose the additional burden of requiring a purchaser to consume the food on the premises.

Background and statutory framework

The Department's authority to supervise weighing and measuring devices comes from Agriculture Code section 13.002(a), with a general registration duty in section 13.1011(a), fees and periodic inspection under sections 13.101(a)(1) and 13.1151(a), and the related fee schedule in 4 Tex. Admin. Code § 12.12. The Department may exempt devices from registration and inspection by rule (Tex. Agric. Code §§ 13.101(a), 13.1011(a)). House Bill 2029 added section 13.1002, exempting devices exclusively used to weigh food sold for immediate consumption. The Department implemented it through rules at 4 Tex. Admin. Code §§ 12.1(8), (10), 12.13(c)(5), defining "Food for Immediate Consumption" and "Immediate Consumption Food Scales" with the disputed "on the premises" language.

The AG applied the plain-meaning approach (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)), the absurd-results limit (Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)), and the rule that post-enactment legislator commentary is not evidence of intent (Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 446-47 (Tex. 2009)). It then applied agency-authority principles: an agency has only powers the Legislature confers and may adopt only rules consistent with its authority (Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001); Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 33 (Tex. 2017)), and a rule is invalid if it adds burdens beyond the statute (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)). Because the statute spoke to food "sold for" immediate consumption while the rule required on-premises consumption, the AG concluded the rule overreached.

Citations

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)
• State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)
• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 446-47 (Tex. 2009)
• Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001)
• Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 33 (Tex. 2017)
• 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)

Statutes and rules:

• Tex. Agric. Code §§ 13.002(a), 13.101, 13.1002, 13.1011(a), 13.1151(a)
• 4 Tex. Admin. Code §§ 12.1(8), (10), 12.12, 12.13(c)(5)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0193
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0193.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 23, 2018

The Honorable Sid Miller Opinion No. KP-0193
Commissioner
Texas Department of Agriculture Re: Whether the Department of Agriculture's
Post Office Box 12847 rules regarding devices weighing food sold for
Austin, Texas 78711 immediate consumption conflict with section
13.1002 of the Agriculture Code (RQ-0189-KP)

Dear Commissioner Miller:

   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. §§ 13.101(a)(1), .1151(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 §§ 13.101(a), .1011(a). During the past legislative session, the Legislature passed House Bill 2029, adding section 13.1002 to the Agriculture Code, which provides:

             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 13.1011.

Id. § 13.1002.

   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 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 of Tex. 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).

                                  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.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable Sid Miller, Comm'r, Tex. Dep't of Agric., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 23, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] Attached to your request, you include a letter sent from the author and sponsor of House Bill 2029 to the Department. The letter 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 1 (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.

[3] See Request Letter at 4 ("The Department acknowledges that the meaning of HB 2029 is clear ....").