In an opinion released Monday, Texas Attorney General Ken Paxton is weighing in on Agriculture Commissioner Sid Miller’s interpretation of recently passed legislation, saying his department’s authority over weights and measures does not extend to barbecue restaurants.

By statute, the Texas Department of Agriculture is granted oversight over commercial weights and measures in the interest of consumer protection. For example, all gas pumps across the state carry stickers from the commission proving they have been inspected and that, when motorists buy a gallon of gas, they are indeed receiving a gallon of gas. The same goes for scales at grocery stores, and other businesses.

Those inspections and the signage related to them cost businesses money, however, and a movement was sparked during the most recent legislative session to exempt Texas barbecue restaurants from the regulations.  This led to the legislature passing House Bill 2029 which clarified that “a commercial weighing or measuring device that is exclusively used to weigh food for immediate consumption” was exempt from inspection and regulations by the TDA.

Far from protecting only barbecue joints, the legislation also exempted any food service establishment that charged by weight, such as cafeterias and frozen yogurt shops.

Miller, displeased with the oversight being stripped from his commission, penned an op-ed shortly after the bill’s passage unsuccessfully pleading for Gov. Greg Abbott to veto the legislation, arguing “when it comes to barbecue, trust but verify.”

After the bill was signed into law, Miller used rulemaking authority of the commission to define “immediate consumption” as only applying to food that requires no additional preparation and was to be eaten on the premises. Given that most restaurants, barbecue or otherwise, allow and encourage to-go sales, this meant their scales would still be subject to Miller’s oversight.

In an opinion requested by Miller, Paxton took issue with his interpretation of the law:

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….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.

In the conclusion of the opinion, Paxton advises that a court would likely find the TDA’s rule invalid.

Miller has indicated that he is taking the opinion under advisement and will be meeting with the Department’s legal staff to determine their next steps.

Paxton’s full opinion can be read here.

Brandon Waltens

Brandon serves as the Managing Editor for Texas Scorecard. After managing successful campaigns for top conservative legislators and serving as a Chief of Staff in the Texas Capitol, Brandon moved outside the dome in order to shine a spotlight on conservative victories and establishment corruption in Austin. @bwaltens

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