2005 Texas Health & Safety Code CHAPTER 435. DAIRY PRODUCTS

HEALTH & SAFETY CODE

CHAPTER 435. DAIRY PRODUCTS

SUBCHAPTER A. MILK OFFERED FOR SALE AND MILK GRADING


	§ 435.001. DEFINITIONS.  In this subchapter:                                
		(1)  "Board" means the Texas Board of Health.                                 
		(2)  "Department" means the Texas Department of Health.                       
		(3)  "Person" means an individual, plant operator, 
partnership, corporation, company, firm, trustee, or association.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.0015. APPLICABILITY OF OTHER LAW.  Except as 
provided by Section 431.010(c), Chapter 431 applies to a person and 
milk or a milk product regulated under this chapter.

Added by Acts 2003, 78th Leg., ch. 757, § 3, eff. Sept. 1, 2003.           


	§ 435.002. GRADING OF MILK AND MILK PRODUCTS.  (a) The 
board may supervise and regulate the grading and labeling of milk 
and milk products according to the standards, specifications, and 
requirements it adopts for each grade and in conformity with this 
subchapter.
	(b)  The board shall mail a printed copy of each rule or 
specification it adopts to each county and municipal health 
authority.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.003. GRADE "A" MILK SPECIFICATIONS.  (a) The board 
by rule may:     
		(1)  define what constitutes Grade "A" raw milk, Grade 
"A" raw milk products, Grade "A" pasteurized milk, and Grade "A" 
pasteurized milk products;  and
		(2)  provide specifications for the production and 
handling of milk and milk products listed in Subdivision (1) 
according to the safety and food value of the milk or milk products 
and the sanitary conditions under which they are produced and 
handled.
	(b)  The rules must be based on and consistent with the most 
recent federal definitions, specifications, rules, and regulations 
relating to milk and milk products.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.004. INSPECTION OF MILK AND MILK PRODUCTS BY 
BOARD.  (a) The board or its representative shall sample, test, or 
inspect Grade "A" pasteurized milk and milk products and Grade "A" 
raw milk and milk products for pasteurization delivered to a milk 
plant or other place of delivery.
	(b)  Grade "A" pasteurized milk and milk products and Grade 
"A" raw milk and milk products for pasteurization that come from 
beyond the limits of state inspection shall be sampled, tested, or 
inspected to determine if department standards and requirements for 
milk and milk products are met.
	(c)  Sampling, testing, and inspection of Grade "A" 
pasteurized milk and milk products and Grade "A" raw milk and milk 
for pasteurization shall include, in addition to any other tests 
that may be required, tests for:
		(1)  plate count or direct microscopic count;                                 
		(2)  antibiotics;                                                             
		(3)  sediments;                                                               
		(4)  phosphotase;  and                                                        
		(5)  water and any elements foreign to the natural 
contents of Grade "A" pasteurized milk and milk products and Grade 
"A" raw milk and milk products for pasteurization.
	(d)  In this section, "milk plant" means a place where milk 
or milk products are collected, handled, processed, stored, 
pasteurized, bottled, or prepared for distribution.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.005. INSPECTION OF MILK AND MILK PRODUCTS BY OTHER 
ENTITIES.  (a) The board may contract with a county or municipality 
to act as the agent of the board to inspect milk and milk products 
and to perform other regulatory functions necessary to enforce this 
subchapter.
	(b)  A municipality, county, or other political subdivision 
may test and inspect milk or milk products.  In the absence of a 
contract under Subsection (a), the municipality, county, or other 
political subdivision must pay the cost of the test or inspection.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.006. PERMIT TO SELL MILK.  (a) A person who offers 
milk or milk products for sale or to be sold in this state must hold 
a permit issued by the board.  The person must apply to the board or 
the board's representative for a permit.
	(b)  After receiving the application, the board or the 
board's representative may determine and award the grade of milk or 
milk products offered for sale by each applicant according to the 
specifications for grades established under this chapter.
	(c)  The board shall maintain a list of the names of all 
applicants to whom the board has awarded permission to use a Grade 
"A" label and remove from the list the name of a person whose permit 
is revoked.
	(d)  The board may not issue a permit to a person for a 
producer dairy located in an area infected with or at a high risk 
for bovine tuberculosis, as determined epidemiologically and 
defined by rule of the Texas Animal Health Commission.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  Amended 
by Acts 2001, 77th Leg., ch. 445, § 2, eff. June 4, 2001.


	§ 435.007. USE OF MISLEADING LABEL.  (a) A person may not 
use a label, device, or design marked Grade "A," or any other grade, 
statement, device, or design related to the safety, sanitary 
quality, or food value, on milk or milk products produced, offered 
for sale, or sold in this state that is misleading or does not 
conform to the requirements of this subchapter.
	(b)  A person may not represent, publish, label, or advertise 
milk or milk products as being Grade "A" unless the milk or milk 
products are:
		(1)  produced or processed by a person having a permit 
to use a Grade "A" label as provided by this subchapter;  and
		(2)  produced, treated, and handled in accordance with 
the specifications and requirements adopted by the board for Grade 
"A" milk and milk products.
	(c)  A person may not sell to a consumer milk or a milk 
product labeled Grade "A" that has not been produced or processed by 
a person who has a Grade "A" permit under this subchapter.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.008. MILK FOR RESALE.  A person is not required to 
hold a permit to resell or offer for resale in the same container 
any milk or milk products that are represented or advertised as a 
grade of milk or milk products and that are purchased from a person 
holding a permit authorizing that representation or advertisement.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.009. FEES.  (a) A political subdivision or agency 
of this state, other than the department, may not impose a fee on 
milk or a milk product, or on a person for the movement, 
distribution, or sale of milk or a milk product.
	(b)  The department shall impose the following fees only:                      
		(1)  a permit fee of $50 a year for a producer dairy 
farm;                  
		(2)  a permit fee of $200 a year for a processing or 
bottling plant;        
		(3)  a permit fee of $200 a year for a receiving and 
transfer station;      
		(4)  a permit fee of $100 a year for a milk transport 
tanker;               
		(5)  a fee of two cents for each 100 pounds of milk or 
milk products processed and distributed in this state by a 
processing or bottling plant in this state, or processed by an 
out-of-state processing or bottling plant and sold in this state;  
and
		(6)  a fee for the actual cost of analyzing samples of 
milk or milk products for an out-of-state processing or bottling 
plant.
	(c)  The board shall adopt rules to assess and collect the 
fees imposed by Subsections (b)(5) and (6) monthly, quarterly, 
semiannually, or annually according to amounts due by the plant.  
Monthly fees shall be assessed and collected in accordance with 
board rules.
	(d)  Annual permits issued under this chapter must be renewed 
not later than September 1 of each year.
	(e)  The department shall prorate fees paid for permits 
issued under this chapter after the beginning of a permit year.
	(f)  In this section:                                                          
		(1)  "Dairy farm" means a place where one or more cows 
or goats are kept and from which milk or milk products are provided, 
sold, or offered for sale to a milk plant or transfer station.
		(2)  "Transfer station" means a place where milk or 
milk products are transferred directly from one transport tank to 
another.
	(g)  Subject to legislative appropriation, the department 
may use money collected under Subsection (b)(5) only for milk 
inspection.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  Amended 
by Acts 1997, 75th Leg., ch. 411, § 1, eff. Sept. 1, 1997.


	§ 435.010. RECORDS.  The board by rule shall establish 
minimum standards for recordkeeping by persons required to pay a 
fee under this subchapter.  Those persons shall make the records 
available to the department on request.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.011. HEARING.  (a) The board shall establish a 
procedure by which a person aggrieved by the application of a board 
rule may receive a hearing under Chapter 2001, Government Code.
	(b)  The refusal or the suspension or revocation of a permit 
by the department and the appeal of that action are governed by the 
procedures for a contested case hearing under Chapter 2001, 
Government Code.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  Amended 
by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995;  
Acts 2003, 78th Leg., ch. 757, § 4, eff. Sept. 1, 2003.


	§ 435.012. REFUSAL TO GRANT PERMIT;  SUSPENSION OR 
REVOCATION OF PERMIT.  (a) The department may refuse an application 
for a permit under this chapter or may suspend or revoke a permit 
issued under this chapter.
	(b)  The board and its representative may revoke and regrade 
permits if on inspection the board or its representative finds that 
the use of the grade label does not conform to the specifications or 
requirements adopted by the board under this chapter.
	(c)  The board by rule shall:                                                  
		(1)  provide for the denial, suspension, or revocation 
of a permit;  and    
		(2)  establish reasonable minimum standards for 
granting and maintaining a permit issued under this chapter.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  Amended 
by Acts 2003, 78th Leg., ch. 757, § 5, eff. Sept. 1, 2003.


	§ 435.013. MUNICIPAL REGULATION AUTHORIZED.  A 
municipality by ordinance may allow only pasteurized milk and 
pasteurized milk products to be sold at retail in that 
municipality.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.                    


	§ 435.014. CRIMINAL PENALTY.  (a) A person commits an 
offense if the person violates this chapter.
	(b)  An offense under this section is punishable by a fine of 
not less than $25 or more than $200.
	(c)  Each violation constitutes a separate offense.                            
	(d)  The penalty prescribed by this section is subject to 
either the sanctions prescribed in the Grade A Pasteurized Milk 
Ordinance for products covered by the ordinance or any civil or 
administrative penalty or sanction otherwise imposed by Chapter 431 
or other law for products not covered by the ordinance.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  Amended 
by Acts 2003, 78th Leg., ch. 757, § 6, eff. Sept. 1, 2003.

SUBCHAPTER B. SPECIAL REQUIREMENTS;  SALE OF MILK


	§ 435.021. IMPORTED MILK.  (a) In this section:                             
		(1)  "Political subdivision" means a county or 
municipality or a school, junior college, water, hospital, 
reclamation, or other special-purpose district.
		(2)  "State agency" means an agency, department, board, 
or commission of the state or a state eleemosynary, educational, 
rehabilitative, correctional, or custodial facility.
	(b)  A state agency or political subdivision may not purchase 
milk, cream, butter, or cheese, or a product consisting largely of 
one or more of those items, that has been imported from outside the 
United States.
	(c)  This section does not apply to the purchase of milk 
powder if domestic milk powder is not readily available in the 
normal course of business.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.  
Renumbered from § 435.022 by Acts 1989, 71st Leg., ch. 1100, § 
5.06(b), eff. Sept. 1, 1989.