TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00459-CV
Farm and Ranch Freedom Alliance, Appellant
v.
The Texas Department of Agriculture and Sid Miller, in His Official Capacity as Commissioner, Appellees
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-19-008742, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING
MEMORANDUM OPINION
Farm and Ranch Freedom Alliance (FARFA) appeals from the trial court’s final
judgment dismissing with prejudice its challenge to the validity and constitutionality of rules
(collectively, the Produce Safety Rules) promulgated by the Texas Department of Agriculture
(the Department). 1 See generally 4 Tex. Admin. Code §§ 11.1–.43. 2 For the following reasons, 0F 1F
we affirm the trial court’s final judgment.
1 In addition to the Department, FARFA sued Sid Miller, in his official capacity as Commissioner of the Department. We refer collectively to Miller and the Department as “the Department.” 2 Rule citations are to the rules in effect as of 2019, when the operative petition was filed; however, the rules cited herein remain unchanged since 2019. All citations to Title 4 of the Texas Administrative Code are to the rules promulgated by the Department. BACKGROUND
FARFA, a Texas nonprofit corporation that advocates on behalf of its small-scale
farmer and rancher members as well as their consumers, filed an original petition for declaratory
judgment and injunctive relief challenging the constitutionality of the Produce Safety Rules and
their promulgation as being procedurally improper and as exceeding the Department’s statutory
authority. See Tex. Gov’t Code § 2001.038 (authorizing rule challenges).
Historical and regulatory framework 32F
In 1938, the Federal Food, Drug, and Cosmetic Act (FFDCA) was signed into law
and established the legal framework within which the federal Food and Drug Administration
(FDA) operates. In 2009, the Texas Legislature enacted Agriculture Code Section 91.009, which
granted the Department authority to increase food-safety awareness among produce growers, in
part because “food safety must be a top state priority because an accidental or deliberate
contamination of food or crops could be detrimental to [Texas’s] economy and would undermine
consumer confidence in the integrity of food safety in Texas.”
In 2011, Congress amended the FFDCA by enacting the Food Safety
Modernization Act (FSMA), which shifted the focus from responding to foodborne illness to
preventing it. See FDA Food Safety Modernization Act, Pub. L. No. 111–353, 124 Stat. 3885
(2011) (codified at 21 U.S.C. §§ 301–399i); https://fda.gov/food/guidance-regulation-food-and-
dietary-supplements/food-safety-modernization-act-fsma (last visited Mar. 6, 2025). As part of
the FSMA, Congress directed the Secretary of Health and Human Services (of which the FDA is
a part) to promulgate rules to “establish science-based minimum standards for the safe
3 The sentences in this summary that are not followed by citations are derived from the trial court’s unchallenged findings of fact. 2 production and harvesting of . . . fruits and vegetables . . . [to] minimize the risk of serious
adverse health consequences or death.” See 21 U.S.C. § 350(a)(1)(A). Produce safety is a key
provision of the FSMA, and in 2016 the FDA promulgated its Produce Safety Rule, comprising
Part 112 of Title 21 of the Code of Federal Regulations. See 21 C.F.R. §§ 112.1–.213; 4 see also 3F
21 U.S.C. § 350h (“Standards for produce safety”). Part 112 established, “for the first time,
science-based minimum standards for the safe growing, harvesting, packing, and holding of
fruits and vegetables grown for human consumption.” Part 112 set forth three categories of
farms: (1) not-covered, (2) qualified-exempt, and (3) covered. The FDA delegated to various
states, including Texas, the enforcement of Part 112 as well as training, education, and outreach
activities related to it.
In 2017, the Texas Legislature amended Agriculture Code Section 91.009 to
authorize the Department to adopt rules to enforce Part 112. Section 91.009 states that the
Department is “the lead agency for the administration, implementation, and enforcement of, and
education and training related to . . . Part 112” and that the Department “may adopt rules to
administer, implement, and enforce this section.” See Tex. Agric. Code § 91.009(a), (d).
Additionally, the Department “shall assist the fresh fruit and vegetable industries with produce
safety issues” and must “inform and educate producers and packers regarding: (1) sound
agricultural practices; (2) proper produce handling procedures; (3) the prevention of accidental or
deliberately planned outbreaks of disease; and (4) the enhancement of overall produce safety.”
See id. § 91.009(a-1), (b).
4 All citations to the Code of Federal Regulations are to rules that were in effect as of 2019, when the operative petition was filed. Although some of the rules cited herein have been amended since, such amendments have not been substantive and do not affect the issues on appeal. 3 Meanwhile, the FDA created the FDA–State Produce Safety Implementation
Cooperative Agreement Program (Cooperation Program) wherein the FDA provides funding to
states according to a series of “paths.” Texas, through the Department, is a “Path C” grantee in
the Cooperation Program, through which the Department’s Texas Office of Produce Safety
(TOPS) receives funding from the FDA to administer Part 112. The FDA set forth seven
objectives that TOPS must meet pursuant to the Cooperation Program: (1) assessment and
planning; (2) program administration; (3) education, outreach, and technical assistance; (4) farm
inventory; (5) inspection program; (6) compliance and enforcement program; and (7) produce-
related event-response planning and implementation. If TOPS fails to meet one or more of these
objectives, the FDA may remove funding, and if FDA funding is removed, TOPS will cease to
exist. The FDA requires TOPS to report its progress on these objectives twice a year. The
reporting requirements for Path C states include an aggregate farm inventory of large covered
farms, small covered farms, very small covered farms, qualified-exempt farms, and not-covered
farms.
Part 112 and the farms at issue
This case involves two types of small farms: (1) those that are not covered by Part
112 and (2) those that would otherwise be covered but have met eligibility qualifications to be
entitled to a qualified exemption from most of Part 112’s requirements. Not-covered farms are
those that Part 112 excepts from all its requirements for having very small annual sales of
produce—$25,000 or less of produce sold, adjusted for inflation, during the previous three years.
See 21 C.F.R. § 112.4. Mirroring an exemption in the FSMA (“Exemption for direct farm
marketing”), see 21 U.S.C. § 350h(f)(1), qualified-exempt farms are those (1) having an average
4 annual monetary value of all food sold during the previous three years of less than $500,000,
adjusted for inflation, (2) for which its average monetary value of food sold directly to “qualified
end-users” exceeded the average monetary value of food sold to all other buyers. See 21 C.F.R.
§ 112.5; see also id. § 112.3 (defining “qualified end-user”).
Qualified-exempt farms are subject to only the following subparts of Part 112:
(A) (“General Provisions”), (O) (“Records”), (Q) (“Compliance and Enforcement”), and
(R) (“Withdrawal of Qualified Exemption”). See id. § 112.6(a). Additionally, qualified-exempt
farms are subject to specified “modified requirements” requiring them to “prominently and
conspicuously” identify the name and complete business address of the farm where the produce
was grown, either on the food-packaging label (when such label is required) or on a sign or
similar item at the point of purchase (when a food-packaging label is not required). See id.
§ 112.6(b).
Notably, the FSMA specifies that the provisions applying to qualified-exempt
farms do not “preempt[] State, local, county, or other non-Federal law regarding the safe
production, harvesting, holding, transportation, and sale of fresh fruits and vegetables [and that
compliance with the labeling or signage requirements] shall not relieve any person from liability
at common law or under State statutory law.” See 21 U.S.C. § 350h(f)(5) (“No preemption”).
Additionally, the FSMA authorizes the FDA to withdraw a farm’s qualified exemption in the
event of “an active investigation of a foodborne illness outbreak that is directly linked to a farm
subject to an exemption” or if the FDA “determines that it is necessary to protect the public
health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions
associated with a farm that are material to the safety of the food produced or harvested at such
farm.” Id. § 350h(f)(3)(A).
5 The remaining subparts of Part 112 apply only to covered farms and prescribe
practices and procedures related to the following areas, among others: personnel qualifications
and training (subpart C); health and hygiene (subpart D); agricultural water (subpart E);
biological soil amendments of animal origin and human waste (subpart F); domesticated and
wild animals (subpart I); growing, harvesting, packing, and holding activities (subpart K); and
equipment, tools, building, and sanitation (subpart L). See 21 C.F.R. §§ 112.11–.182. Only two
sections in Part 112, comprising subpart Q, address enforcement: Section 112.192 (providing
that the “failure to comply with the requirements of this part . . . is a prohibited act under section
301(vv) of the” FFDCA) and Section 112.193 (providing that the “FDA coordinates education
and enforcement activities by State, territorial, tribal, and local officials by helping develop
education, training, and enforcement approaches”). See id. §§ 112.192, .193.
The dispute
FARFA alleges that during the congressional debates on the FSMA, it and other
grassroots organizations across the country “advocated for protections for small-scale food
producers, whose localized agricultural practices were not the target of Congress’s concerns with
the risks posed by the modern, global food supply system” and that these small-farm exemptions
were among the protections included in the FSMA. It contends that instead of preserving these
protections for small farms, the Department promulgated rules “that added additional burdens
[on the small farms] inconsistent with the federal statute and regulations” when it published in
the Texas Register its proposed Produce Safety Rules (proposed rules) for public comment on
June 14, 2019. See 44 Tex. Reg. 2905, 2905–2908 (2019) (codified at 4 Tex. Admin. Code
§§ 11.1–.43) (Tex. Dep’t of Agric., Texas Office of Produce Safety). Rather than implementing
6 the FSMA and Part 112, FARFA believed that the Department’s proposed rules “exceeded the
scope and contravened the purpose of the express small-farm protections.” Believing that the
proposed rules “circumvented the shield afforded to small farms” by requiring such farms to
submit to a “pre-assessment review” by TOPS to determine whether a farm is covered or eligible
for the qualified-exemption, FARFA filed formal comments objecting to the proposed rules.
FARFA additionally objected to the proposed rules’ authorizing TOPS to “engage in warrantless
entry of farmers’ premises pursuant to sweeping and intrusive right-of-entry provisions for not
only covered farms, but [for] not-covered farms and qualified exempt farms” and imposing
penalties on a farmer’s refusal to comply.
FARFA’s formal comments were contained in a twelve-page letter that “clearly
and logically walked through the extensive list of concrete, objective reasons why FARFA’s
suggested changes to the proposed rule[s] were necessary” and why the proposed rules “imposed
a greater burden than the FDA regulations authorized.” Further, FARFA asserted that the
proposed rules “needlessly expanded government oversight of small farms in an unconstitutional
manner that made small farms unfairly vulnerable” and objected to the requirement that
qualified-exempt farms “register” with TOPS. On September 6, 2019, the Department published
a response to the public comments, and, FARFA argues, “in little more than a single page of
text” gave “particularly short shrift to FARFA’s twelve-page letter.” FARFA contends that this
response was “inadequate.” The Department adopted the proposed rules without changes,
effective September 11, 2019. See 44 Tex. Reg. 4855, 4855–4857 (2019) (adopted Sept. 6,
2019, and codified at 4 Tex. Admin. Code §§ 11.1–.43) (Tex. Dep’t of Agric., Texas Office of
Produce Safety).
7 FARFA then filed this lawsuit, seeking a declaration that the challenged rules are
unconstitutional and invalid and seeking a permanent injunction prohibiting their enforcement.
See generally 4 Tex. Admin. Code §§ 11.1–.43. FARFA specifically challenged the validity and
constitutionality of three categories of rules:
Rule category: Rule and citation: Rule’s text:
“egregious condition” rules Rule 11.1(4), id. § 11.1(4) In addition to the definitions set forth in 21 (Definitions) CFR Part 112, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. ... (4) Egregious condition--A practice, condition, or situation on a covered farm or in a packing facility that is undertaken as part of a covered activity that directly causes, or is likely to directly cause: (A) serious adverse health consequences or death from the consumption of or exposure to covered produce; or (B) an imminent public health hazard. Rule 11.40(c), id. § 11.40(c) Egregious Condition. TOPS may enter the (Right of Entry) premises of a covered and exempt/or Qualified Exempt farm at any time to conduct an inspection in response to an egregious condition at all locations or areas where there are activities, conditions, produce, and equipment, or at any other location where covered activities occur. The portion of Rule 11.41(a), The following actions may be taken, and the “penalty matrix,” penalties may be assessed in response to specifying penalties for findings of violations of the Produce Safety violation of egregious- Rule. [penalty matrix reproduced below condition rules, id. § table] 11.41(a) (Enforcement and Penalties)
8 Rule 11.42(a), id. § 11.42(a) TOPS may issue a stop sale order upon a (Stop Sale) finding of an egregious condition or for repeated failure to comply with one or more corrective action plans which may result in risk to public health. “verification of status” rules Rule 11.20(a), id. § 11.20(a) TOPS may conduct a pre-assessment review (Qualified Exemption) to determine whether a farm is covered by [Part 112] and/or eligible for a Qualified Exemption. Rule 11.21(d), id. § 11.21(d) TOPS reserves the right to schedule, at any (Verification of Exemption) time, an on-site visit to verify whether a farm is exempt, covered, or eligible for a Qualified Exemption. Rule 11.40(a), id. § 11.40(a) Right of Entry to Determine Coverage or Verify Exceptions. TOPS may enter the premises of a farm growing produce during normal business hours to determine coverage and/or verify exceptions to [Part 112]. “Right of entry” Rule 11.1(6), id. § 11.1(6) In addition to the definitions set forth in 21 rules CFR Part 112, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. ... (6) Inspection--An initial or follow up inspection conducted by TOPS for the purpose of inspecting covered produce, a covered farm, or records related to [Part 112]. Rule 11.40(b), id. § 11.40(b) Right of Entry to Conduct Inspections. TOPS may enter all locations or areas of a covered farm or Qualified Exempt farm during operating hours where there are activities, conditions, produce, and equipment, or at any other location where covered activities occur, to conduct inspections. Rule 11.40(d), id. § 11.40(d) Failure to Comply. Refusal to allow a TOPS inspection, or interfering with TOPS’ ability to perform its duties under this section, shall result in a violation, as stated in §11.41 of this chapter, relating to Enforcement and Penalties.
9 The parties filed briefs on the merits. In its brief, the Department argued, among
other things, that FARFA’s challenges to the egregious-condition rules are not ripe. After a
hearing on the merits, the trial court rendered final judgment dismissing FARFA’s claims with
prejudice. FARFA requested, and the trial court made, findings of fact and conclusions of law.
Thereafter FARFA perfected this appeal.
DISCUSSION
In five issues, FARFA contends that the trial court erred in dismissing its claims
because (1) its challenges to the egregious-condition rules are ripe; (2) the Department violated
the Texas Administrative Procedures Act (APA) in adopting the challenged rules by failing to
provide a reasoned justification for them; (3) the challenged rules contravene, and impose
10 additional burdens than those prescribed by, Part 112 and the Agriculture Code; (4) the
challenged rules authorize unreasonable searches in violation of the Fourth Amendment of the
U.S. Constitution and Article 1, section 9 of the Texas Constitution; and (5) the challenged rules’
terms “egregious condition” and “pre-assessment review” are unconstitutionally vague.
An agency rule is presumed valid and constitutional, and the challenging party
bears the burden of overcoming this presumption. Bridges v. Texas State Bd. of Veterinary Med.
Exam’rs, No. 03-18-00010-CV, 2019 WL 639151, at *2 (Tex. App.—Austin Feb. 15, 2019, no
pet.) (mem. op.). FARFA’s challenges to the rules’ validity and constitutionality concern
questions of law that we review de novo. See Texas Mut. Ins. v. Texas Dep’t of Ins., 214 S.W.3d
613, 622 (Tex. App.—Austin 2006, no pet.). Similarly, whether a trial court has subject-matter
jurisdiction—including the question of ripeness, which is a component of subject-matter
jurisdiction—is a question of law that we review de novo. See Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex. 1998). We review FARFA’s challenge to the Department’s alleged
failure to provide a reasoned justification for the adoption of the challenged rules using an
“arbitrary and capricious” standard. See State v. Public Util. Comm’n, 131 S.W.3d 314, 328
(Tex. App.—Austin 2004, pet. denied).
Ripeness
FARFA contends that the trial court erred in determining, in its first Conclusion
of Law, that FARFA’s challenges to the egregious-condition rules are not ripe. Although on
appeal the Department does not contest this issue, we nonetheless address it because it implicates
subject-matter jurisdiction, see Southwest Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020),
11 and subject-matter jurisdiction is essential to a court’s authority to decide a case, see Texas Ass’n
of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
The ripeness doctrine arises from the prohibition against advisory opinions under
the separation-of-powers doctrine. Travelers Ins. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010).
While standing focuses on the issue of who may bring an action, ripeness focuses on when that
action may be brought. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).
Our ripeness analysis considers whether, at the time a lawsuit is filed, the facts are sufficiently
developed so that an injury has occurred or is likely to occur, rather than being contingent or
remote. See Patel v. Texas Dep’t of Licensing & Regulat., 469 S.W.3d 69, 78 (Tex. 2015);
Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011) (noting that ripeness requires existence of
“concrete injury”).
Here, none of FARFA’s challenges to the egregious-condition rules require the
determination of factual matters that have not yet sufficiently developed because its challenges
involve purely legal questions. See Muth v. Voe, 691 S.W.3d 93, 124 (Tex. App.—Austin 2024,
pet. filed); see also Texas Mut. Ins., 214 S.W.3d at 622 (determining that when rule challenge
does not require determination of any facts and involves pure question of law, plaintiff’s
allegation that rule interferes with or impairs specified legal right or privilege is sufficient to
create ripe injury); City of Waco v. Texas Nat. Res. Conservation Comm’n, 83 S.W.3d 169, 176–
77 (Tex. App.—Austin 2002, pet. denied) (holding that trial court had jurisdiction over City’s
UDJA claim concerning “purely legal issue” of whether federal law prohibited state agency from
issuing new permits in watershed until agency adopted necessary pollution-reduction measures,
as such legal question would not benefit from development of additional facts in connection with
specific permit application).
12 While a concrete injury would certainly exist if the Department suspected that one
of FARFA’s members had an egregious condition on its farm, demanded right of entry to inspect
for the condition, and then issued a stop-sale order upon a finding of such condition, those are
not the injuries for which FARFA seeks relief. See Muth, 691 S.W.3d at 124. Instead, the
injuries for which FARFA seeks relief are the allegedly invalid rules’ interference with or
impairment of the farms’ constitutional right to have adequate prior notice of conditions that
would trigger the Department’s right to enter the farms’ premises to inspect for egregious
conditions. See id. In other words, FARFA’s rule challenges involve the facial validity and
constitutionality of the challenged rules, which it contends violate its constitutional rights. Our
resolution of these claims and provision of relief for those injuries does not require the
determination of facts in the context of any individual Department enforcement of the egregious-
condition rules. See id.
In its trial brief, the Department argued that FARFA’s challenges to the
egregious-condition rules are not ripe because “these rules have never been exercised in the three
years since they were adopted.” Indeed, the trial court found that “to date, no rule relating to
egregious conditions has been utilized or exercised by” TOPS. However, the APA expressly
authorizes a litigant to bring a challenge to an agency rule and obtain a final declaration of a
rule’s validity before the rule is applied: “The validity or applicability of a rule . . . may be
determined in an action for declaratory judgment if it is alleged that the rule or its threatened
application interferes with or impairs, or threatens to interfere with or impair, a legal right or
privilege of the plaintiff.” Tex. Gov’t Code § 2001.038(a); Texas Mut. Ins., 214 S.W.3d at 622
(“The purpose of Section 2001.038 is to obtain a final declaration of a rule’s validity before the
rule is applied.”). FARFA takes issue in this lawsuit not with any particular determination by the
13 Department that an egregious condition exists but with the challenged rules’ allegedly
unconstitutionally vague definition of the term “egregious condition” so as to fail to provide
FARFA with reasonable notice of what is required to avoid the enforcement of the right-of-entry
and penalty provisions.
We sustain FARFA’s first issue and hold that its challenges to the egregious-
condition rules are ripe. However, in light of our disposition of FARFA’s remaining issues,
discussed below, the trial court’s legal determination to the contrary constitutes harmless error
and does not require reversal of the judgment. See Tex. R. App. P. 44.1(a) (harmless-error rule);
G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (before reversing judgment
because of legal error, reviewing court must find that such error amounted to such denial of
appellant’s rights as was reasonably calculated to cause and probably did cause rendition of
improper judgment or that such error probably prevented appellant from properly presenting case
on appeal).
Procedural rule challenge
In its second issue, FARFA contends that in adopting the challenged rules, the
Department failed to comply with the “reasoned justification” requirement in APA Section
2001.033. See Tex. Gov’t Code § 2001.033(a)(1); see also National Ass’n of Indep. Insurers v.
Texas Dep’t of Ins., 925 S.W.2d 667, 669 (Tex. 1996) (“[T]he agency must explain how and why
it reached the conclusions it did.”). The reasoned justification must include (1) a summary of
comments received from parties interested in the rule that shows the names of interested groups
or associations offering comment on the rule and whether they were for or against its adoption;
(2) a summary of the factual basis for the rule as adopted which demonstrates a rational
14 connection between the factual basis for the rule and the rule as adopted; and (3) the reasons why
the agency disagrees with party submissions and proposals. Tex. Gov’t Code § 2001.033(a)(1).
There are two fundamental goals of the reasoned-justification requirement: (1) to ensure the
agency fully considered the comments submitted, and (2) to provide the factual basis and
rationality of the rule as determined by the agency. Reliant Energy, Inc. v. Public Util. Comm’n,
62 S.W.3d 833, 841 (Tex. App.—Austin 2001, no pet.).
FARFA contends that the Department’s order finally adopting the Produce Safety
Rules “falls short of the reasoned justification requirement” because it did not directly respond to
FARFA’s comments urging that the right-of-entry rules applicable to qualified-exempt farms
were ambiguous and overbroad. Specifically, it argues that in the preamble to the adopted rules,
the Department’s “one line response” to FARFA’s objection to the alleged overbreadth and
ambiguity caused by the application of the right-of-entry provisions to qualified-exempt farms
did not sufficiently address its comments.
FARFA’s submitted comment on this issue reads,
The proposed rule has three different provisions for “right of entry” onto farms. The first provides that the agency can enter any farm growing produce during normal business hours to determine coverage and/or verify exemptions to the Produce Safety Rule. See proposed 4 TAC §11.40(a). This is consistent with the provisions of FSMA.
The proposed rule then provides that the agency may enter a covered or qualified exempt farm to “conduct inspections.” See proposed 4 TAC §11.40(b). But a qualified exempt farm is only subject to inspections to confirm its exemption. These inspections are covered by 11.40(a), and should only be used to confirm that the farm is keeping the required paperwork necessary for the exemption. Qualified exempt farms are not subject to inspections that address the numerous substantive provisions of the Produce
15 Safety Rule. Thus, section §11.40(b) should be limited to covered farms only.
The proposed rule then claims even broader right of entry powers for the agency based on “egregious conditions,” which FARFA objects to for the reasons set out [in the] next [paragraph].
44 Tex. Reg. 4855, 4855–4856 (2019) (adopted Sept. 6, 2019 and codified at 4 Tex. Admin.
Code §§ 11.1–.43). The words “overbroad” and “ambiguous” do not appear in the text of
FARFA’s comment and are used only in its caption: “The ‘right of entry’ provisions are
ambiguous and overbroad, as applied to qualified exempt farms.”
The portion of the preamble in the Texas Register adopting the rules that directly
addresses FARFA’s above comment reads,
(4) Right of Entry. FARFA commented that the right of entry provisions are “ambiguous and overbroad” as they apply to Qualified Exempt farms. [The Department] has addressed this comment above, in TOFGA [Texas Organic Farmers and Gardeners Association] comment number two.
The Department’s response to TOFGA’s comment number two, in turn, reads,
(2) Right of Entry. TOFGA opposed §11.40(b), stating that Qualified Exempt farms should not be subject to entry for inspections. While the Department appreciates the comment, §11.1(6), relating to definitions, defines inspections to include the review of records, and therefore no amendment to the proposed section will be made.
In its comment, FARFA was contending that Rule 11.40(b) was (1) “overbroad”
by including qualified-exempt farms in its reach because those farms need not comply with the
substantive provisions of the FDA Rule and thus no additional “inspections” on such farms are
16 permissible beyond those pertaining to determining coverage, verifying exemption status, and
confirming required recordkeeping; and (2) “ambiguous” by not defining what such additional
“inspections” might entail. However, the Department’s response (incorporating by reference its
response to TOFGA’s comment) referenced Rule 11.1(6)’s definition of “inspection” by way of
explanation that Rule 11.40(b)’s use of “inspection” is not overbroad or ambiguous, as that
definition expressly limits inspections of qualified-exempt farms to those conducted for the
purpose of inspecting records related to Part 112. See 4 Tex. Admin. Code § 11.1(6). We fail to
see how this response did not sufficiently respond to FARFA’s comment.
A reviewing court must confine its search for a reasoned justification to the four
corners of the order finally adopting the rule, and the agency must provide a reasoned
justification for the rule as a whole, not clause by clause. Reliant Energy, 62 S.W.3d at 840.
Furthermore, the order adopting the rule need only substantially comply with the reasoned-
justification requirement, meaning that it must minimally demonstrate “in a relatively clear and
logical fashion that the rule is a reasonable means to a legitimate objective.” See Tex. Gov’t
Code § 2001.035(c); Lambright v. Texas Parks & Wildlife Dep’t, 157 S.W.3d 499, 504–05 (Tex.
App.—Austin 2005, no pet.). We have already noted that we review a challenge to the reasoned-
justification requirement using an “arbitrary and capricious” standard and not presuming that
facts exist to support the agency’s order. Lambright, 157 S.W.3d at 505. In applying the
standard, we examine whether the agency’s explanation of the facts and policy concerns it relied
on in adopting the rule demonstrate that the agency considered all relevant factors and engaged
in reasoned decisionmaking. Id. An agency acts arbitrarily if in making a decision it (1) omits
from its consideration a factor that the legislature intended the agency to consider in the
17 circumstances, (2) includes in its consideration an irrelevant factor, or (3) reaches a completely
unreasonable result after weighing only relevant factors. Id.
We conclude that the Department’s response to FARFA’s “right of entry”
comment was sufficiently thorough and responsive to constitute a reasoned justification and was
not arbitrary or capricious. See Public Util. Comm’n, 131 S.W.3d at 332. We overrule
FARFA’s second issue.
Substantive rule challenge
In its third issue, FARFA argues that the Department exceeded its rulemaking
authority in promulgating the three categories of challenged rules because the rules are
inconsistent with Part 112 and the Agriculture Code by imposing “additional conditions and
burdens” on not-covered and qualified-exempt farms, “such as searches, inspections, and
registration” beyond what is required by those authorities. See Texas State Bd. of Exam’rs of
Marriage & Fam. Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 33–34 (Tex. 2017) (noting
that courts may invalidate rule when it (1) contravenes specific statutory language; (2) runs
counter to general objectives of statute; or (3) imposes additional burdens, conditions, or
restrictions in excess of or inconsistent with relevant statutory provisions).
In effect, FARFA is contending that to be valid, every produce-safety measure
promulgated by the Department must be expressly mentioned in Part 112 or the Agriculture
Code. But such a requirement would frustrate the legislative intent to delegate authority to an
agency to regulate an area in which the agency has expertise. This is because when the
legislature expressly confers power on an agency, it also impliedly intends that the agency have
whatever powers are reasonably necessary to fulfill its express functions or duties. See Public
18 Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). The legislature intends an
agency created to centralize expertise in a certain regulatory area be given a large degree of
latitude in the methods it uses to accomplish its regulation function. City of Garland v. Public
Util. Comm’n, 165 S.W.3d 814, 819 (Tex. App.—Austin 2005, pet. denied). Thus, when
conferring a power upon an agency, because the legislature “impliedly intends that the agency
have whatever powers are reasonably necessary to fulfill its express functions or duties,” it “is
not required to include in every specific detail or anticipate all unforeseen circumstances when
enacting an agency’s authorizing statute.” Texas Orthopaedic Ass’n v. Texas State Bd. of
Podiatric Med. Exam’rs, 254 S.W.3d 714, 719 (Tex. App.—Austin 2008, pet. denied). While it
is true that an agency can adopt only such rules as are authorized by and consistent with its
statutory authority, Al Boenker Ins. Agency, Inc. v. Texas Fair Plan Assoc., No. 03-04-00050-
CV, 2004 WL 1686598, at *4 (Tex. App.—Austin July 29, 2004, pet. denied) (mem. op.), our
role in assessing a rule’s validity is to “carry forward statutory directives, rather than weigh the
wisdom of a particular policy,” Office of Pub. Util. Counsel v. Public Util. Comm’n, 104 S.W.3d
225, 234 (Tex. App.—Austin 2003, no pet.).
We begin by examining the Agriculture Code provisions granting the Department
rulemaking and regulatory authority. As quoted in the background section supra, Section 91.009
designates the Department as the “lead agency” for “the administration, implementation, and
enforcement of, and education and training relating to” Part 112 and mandates it to “assist the
fresh fruit and vegetable industries with produce safety issues.” See Tex. Agric. Code
§ 91.009(a), (a-1). Also as authorized by Section 91.009, and as found by the trial court, the
Department is a participant in the FDA’s Cooperation Program for “the administration,
implementation, or enforcement of” Part 112. See id. § 91.009(c-1). Lastly, the Department
19 exercised its legislatively delegated powers to “adopt rules” to implement, administer, and
enforce Part 112, which in the performance thereof it was authorized to “consider relevant state,
federal, or national standards.” See id. § 91.009(d); see also id. § 91.001(a) (mandating
Department to “administer this chapter [91] and adopt rules necessary for its enforcement”).
Under these provisions, the Department has the statutory authority to promulgate rules
administering, implementing, and enforcing Part 112 as well as in service of assisting the
produce industry with “produce safety issues.” This is a broad delegation of power, lacking
specific details about what kind of “assistance” the Department may provide and how it may
“enforce” Part 112. Cf. Hartzell v. S.O., 672 S.W.3d 304, 315 (Tex. 2023) (holding that statute
conferring on university system’s governing board authority to promulgate rules “for the
operation, control, and management of the university system and its institutions as the board may
deem either necessary or desirable” was “expansive and lacking in detail,” leaving it to such
board to “fill in the gaps”); Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 453 (Tex.
2008) (“When a statute expressly authorizes an agency to regulate an industry, it implies the
authority to promulgate rules and regulations necessary to accomplish that purpose.”).
FARFA argues that the challenged rules, and the applicable penalties for
violations thereof, conflict with and create additional burdens than those imposed by Part 112
because not-covered farms expressly need not comply with any of Part 112’s provisions and
qualified-exempt farms need not comply with the bulk of Part 112’s provisions. To summarize
the rule provisions FARFA challenges, those provisions prescribe the following: (1) on-site
“visits,” entry onto farm “premises,” and “pre-assessment review” of not-covered and qualified-
exempt farms to determine and verify exemptions and not-covered status, see 4 Tex. Admin.
Code §§ 11.20(a), .21(d), .40(c); (2) records inspections of qualified-exempt farms, with
20 penalties for the failure to allow records inspections, see id. §§ 11.1(6), .40(b), .40(d), .41(a); and
(3) entry onto the premises of any farm and inspection thereof in response to an egregious
condition and penalties therefor, including the issuance of a stop-sale order, see id. §§ 11.40(c),
.41(a), .42(a). As the Department has pointed out, and FARFA has not proven to the contrary,
Part 112 simply does not speak to the first of these matters. See 21 C.F.R. §§ 112.1–.213. As to
the third, although Part 112 does not employ the term “egregious conditions,” it does expressly
allow the FDA to “withdraw” a farm’s qualified exemption “in the event of an active
investigation of a foodborne illness outbreak that is directly linked to” that farm or if the FDA
“determine[s] that [such withdrawal] is necessary to protect the public health and prevent or
mitigate a foodborne illness outbreak based on conduct or conditions associated with [that]
farm.” Id. § 112.201. This provision necessarily implies the agency’s right to enter and inspect
a qualified-exempt farm in the event of a foodborne illness outbreak connected with that farm.
The majority of Part 112 prescribes industry standards for covered farms
conducting covered activities on covered produce, specifying which farms need not comply with
those standards, and requiring specific recordkeeping for covered farms and qualified-exempt
farms. See, e.g., id. §§ 112.4, .5, .21–.153, .161. It additionally contemplates the inspection of
qualified-exempt farms in the event of serious public-health threats. See id. § 112.201. Finally,
rather than specifying enforcement mechanisms, it recognizes that the FDA will “coordinate”
with state and local officials to develop “enforcement approaches.” See id. § 112.193. In this
context, the challenged rules are more appropriately construed as authorized measures to
implement and enforce Part 112 rather than as creating additional burdens on farms exempted
from compliance with Part 112, contravening specific language in Part 112, or running counter to
the general objectives of Part 112. Without some mechanism for verifying a farm’s exempt or
21 not-covered status, the purpose of Part 112 would be frustrated, as farms not entitled to
exemptions could circumvent Part 112’s substantive requirements. Additionally, as the trial
court found, even the FDA employs a verification-of-status procedure, as specified in its
procedural memoranda entitled “FY21-22 Produce Safety Inspections,” notwithstanding that Part
112 does not expressly provide for such verification procedures. Although—as the trial court
found—the FDA’s procedure utilizes a phone call rather than a farm visit, we determine that the
Department’s decision to utilize a brief farm visit reasonably falls within the umbrella of
implementing, administering, and enforcing Part 112. Moreover, the trial court found that the
TOPS verification-of-status procedure “consists of an on-site visit which should not last more
than thirty minutes” and that the farmer is the one who “determines where” the verification
occurs, which may be at the “gate of the farm.”
The reasonable conclusion from Part 112’s silence on right of entry, inspections,
egregious conditions, and penalties is that such measures are reserved to the states in their
administration, implementation, and enforcement of Part 112 and in their cooperation with the
FDA. Such reservation to the states is supported by the trial court’s findings that (1) the FDA
reporting requirements for Path C states include the reporting of “egregious conditions” and “an
aggregate farm inventory” of all types of farms, including qualified-exempt and not-covered
farms; and (2) the Department’s cooperative agreement with the FDA requires TOPS to meet the
objective of implementing an “inspection program,” among other objectives. Moreover, as the
trial court found, the FFDCA—in which Part 112 appears—affords the FDA the general right to
enter any establishments where food is manufactured, processed, packed, or held to conduct
inspections. See 21 U.S.C. § 374(a)(1).
22 Section 91.009 confers broad powers on the Department to safeguard the health
and welfare of Texas citizens as related to produce safety through the administration,
implementation, and enforcement of Part 112 and by assisting the produce industries with issues
related to produce safety. See Tex. Agric. Code § 91.009. As such, the challenged rules are in
harmony with the Agriculture Code’s general objectives. See Act of May 27, 2009, 81st Leg.,
R.S., ch. 184, § 1, 2009 Tex. Gen. Laws 532 (HB 1908) (declaring intent of original Section
91.009 to include that “food safety . . . be a top state priority because an accidental or deliberate
contamination of food or crops could be detrimental to the state’s economy and would
undermine consumer confidence in the integrity of food safety in this state”). FARFA has not
met its burden of demonstrating that the challenged rules exceed the Department’s implied
statutory authority by imposing additional burdens or conditions on small farms, run counter to
the Agriculture Code’s or Part 112’s general objectives, or contravene specific statutory
language. See Texas State Bd. of Exam’rs of Marriage & Fam. Therapists, 511 S.W.3d at 33–
34; Texas Ass’n of Psych. Assocs. v. Texas State Bd. of Exam’rs of Psychs., 439 S.W.3d 597, 604
(Tex. App.—Austin 2014, no pet.). We overrule FARFA’s third issue.
Constitutionally “unreasonable search”
In its fourth issue, FARFA argues that the trial court erred in dismissing its as-
applied constitutional challenge to Rule 11.40’s right-of-entry provisions, contending that the
provisions authorize unreasonable searches in violation of the federal and Texas Constitutions.
See U.S. Const. amend. IV (prohibiting unreasonable searches and seizures); Tex. Const. art. I,
§ 9 (same); see also Schade v. Texas Workers’ Comp. Comm’n, 150 S.W.3d 542, 550 (Tex.
App.—Austin 2004, pet. denied) (noting that Texas courts analyze claims under Fourth
23 Amendment and Article I, Section 9 identically). An “as applied” constitutional challenge
asserts that a statute or rule, while generally constitutional, operates unconstitutionally as to the
claimants because of their particular circumstances. See Texas Alco. Bev. Comm’n v. Live Oak
Brewing Co., 537 S.W.3d 647, 654 (Tex. App.—Austin 2017, pet. denied). FARFA contends
that Rule 11.40 is unconstitutional as applied to its member farmers’ not-covered and qualified-
exempt farms because the general, “exploratory” searches permitted by the rule are
constitutionally prohibited due to the fact that many of those farmers “grow produce for sale
within the traditional curtilage of the home,” a protected sphere. See Oliver v. United States,
466 U.S. 170, 178–79 (1984). In essence, FARFA contends that Rule 11.40’s right-of-entry
provisions confer on TOPS the right to unreasonably search not-covered and qualified-exempt
farmers’ curtilage. However, neither the record nor the law supports this assertion.
In subsection (a), Rule 11.40 first authorizes TOPS to “enter the premises” of not-
covered and qualified-exempt farms “to determine coverage and/or verify exceptions to” the
FDA Rule. See 4 Tex. Admin. Code § 11.40(a). As mentioned supra, the trial court found—and
FARFA does not challenge such finding—that it is the farmer who determines where the TOPS
on-site verification-of-status visit occurs, which may take place “at the gate of the farm,” which
is consistent with the Department’s representation at oral argument. Regardless of this finding
and the Department’s representation, however, a plain reading of the text in this subsection (a)
does not authorize entry onto or inspection of the curtilage of a farmer’s home. Rather, it allows
entry onto farm premises for only a limited, enumerated purpose: to determine coverage or verify
exceptions (i.e., whether the farm is truly not-covered or eligible for a qualified exemption).
Moreover, the interest of the owner of commercial property is not one in being free from any
inspections or intrusions onto its property, but only from unreasonable inspections or intrusions.
24 See Donovan v. Dewey, 452 U.S. 594, 599 (1981). We have determined in our discussion of
FARFA’s third issue that the Department’s enforcement authority extends to farm visits
conducted for the purpose of verifying coverage and exemptions, which is not an unreasonable
exercise of the Department’s enforcement powers conferred by the Agriculture Code.
In subsection (b), Rule 11.40 authorizes TOPS to enter “all locations or areas” of
a covered farm or a qualified-exempt farm (but not a not-covered farm) “where there are
activities, conditions, produce, and equipment” to “conduct inspections,” with “inspections”
limited—as to qualified-exempt farms—to inspections of Part 112 records. See 4 Tex. Admin.
Code §§ 11.1(6), .40(b). In subsection (c), Rule 11.40 authorizes TOPS to enter the premises of
any farm, at “all locations or areas where there are activities, conditions, produce, and
equipment,” to “conduct an inspection in response to an egregious condition.” See id. § 11.40(c).
FARFA contends that these two provisions authorize “unrestricted access” to and an unspecified
“scope of inspection” of not-covered and qualified-exempt farms, which are constitutionally
prohibited as unreasonable “searches.”
We first observe that FARFA’s contention is belied by the challenged rules’ plain
text. In defining the term “inspection,” Rule 11.1(6) expressly limits the term to only those
inspections conducted by TOPS “for the purpose of inspecting [(1)] covered produce, [(2)] a
covered farm, or [(3)] records related to [Part 112].” See id. § 11.1(6). Qualified-exempt farms
are not considered “covered farms” and do not have “covered produce” under Rule 11.1(6)’s
definition of inspection, as evidenced by Rule 11.40(b)’s separate use of the terms “covered
farm” and “Qualified Exempt farm” and by Part 112’s definition of covered produce, which the
Department’s rules incorporate by reference. See 21 C.F.R. § 112.1(b) (“[S]ubject to the
exemptions and qualified exemptions [in this part], covered produce includes: . . . .”); 4 Tex.
25 Admin. Code §§ 11.2(a) (Covered Produce) (“Covered produce includes produce listed in 21
CFR §112.1.”), .40(b) (granting TOPS right of entry onto covered and qualified-exempt farms).
Therefore, TOPS may conduct inspections of qualified-exempt farms under subsection (b) only
for the purpose of inspecting records related to Part 112. As for subsection (c), its text limits
TOPS’s inspections thereunder to those conducted only “in response to an egregious condition”
and only of the areas of a farm “where there are activities, conditions, produce, and equipment.”
See id. § 11.40(c). This text does not authorize “unrestricted access” to a farm or an “unspecified
scope of inspection” because the only reasonable construction of the text implies that only the
areas of a farm where produce-related activities occur may be inspected, and only in the event of
an egregious condition.
Secondly, notwithstanding the text of Rule 11.40, the constitutional protections
afforded to individuals’ expectation of privacy in the sanctity of their home remain, as those
protections turn on whether a subject area is a home or its curtilage. As the Department points
out, the well-established “Open Fields Doctrine” mandates that “an individual may not
legitimately demand privacy for activities conducted out of doors in fields,” as “the expectation
of privacy in open fields is not an expectation that society recognizes as reasonable.” See Oliver,
466 U.S. at 178–79 (internal quotation marks omitted).
Open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be.
26 Id. at 179; see Carroll v. State, 911 S.W.2d 210, 217 (Tex. App.—Austin 1995, no pet.) (noting
that Texas Constitution applies Open Fields Doctrine). Additionally, a person cannot create a
legitimate expectation of privacy in an open field or expand the “curtilage” of his home to
include an open field by erecting fences, gates, and “No Trespassing” signs around it. Rosalez
v. State, 875 S.W.2d 705, 714 (Tex. App.—Dallas 1993, pet. ref’d). Nonetheless, an individual
retains an expectation of privacy in a home’s curtilage. Oliver, 466 U.S. at 180. When
determining whether an area is an open field or curtilage, the Supreme Court has stated, “the
central component of this inquiry [is] whether the area harbors the intimate activity associated
with the ‘sanctity of a man’s home and the privacies of life.’” United States v. Dunn, 480 U.S.
294, 300 (1987) (some internal quotation marks omitted) (quoting Oliver, 466 U.S. at 180).
Having determined in our discussion of FARFA’s third issue that the Department
and TOPS have the right to enter produce farms for specified purposes as a function of their
enforcement powers, we next consider whether the text of Rule 11.40 contravenes the federal or
state constitutions by expressly authorizing entry onto and inspection of farmers’ curtilage. We
first observe, again, that we presume the challenged rule is constitutional, and the burden is on
FARFA to overcome that presumption. See Texas State Bd. of Exam’rs of Marriage & Fam.
Therapists, 511 S.W.3d at 33. Secondly, FARFA has not identified any evidence in the record
supporting its assertion that some of its members’ not-covered or qualified-exempt farms are in
fact growing or keeping produce in the curtilage of homes or that the Department has attempted
to enter and inspect such farmers’ curtilage. Thirdly, FARFA has cited no caselaw in which a
farm growing produce for profit was held to be curtilage, and we have found none. Fourthly, a
plain reading of the rules—even as applied to farmers who may live on not-covered and
qualified-exempt farms—simply does not permit entry onto and inspection of farmers’ curtilage.
27 The challenged rules authorize a visit—which can be at the farm gate—to verify exemptions, and
they authorize inspections, in the event of an egregious condition, of areas of the farm where
produce-related activities occur. In the event those produce-related activities happen to occur in
or on a farmer’s home’s curtilage—a factual scenario not supported by the record—and the
Department or TOPS were to actually intrude upon the curtilage without a farmer’s permission,
that farmer would have an adequate remedy at law as in any other Fourth Amendment case: a
challenge to any evidence obtained as the fruits of an improper search, in the criminal context,
see, e.g., Kann v. State, 694 S.W.2d 156, 159 (Tex. App.—Dallas 1985, pet. ref’d), and a remedy
for an unconstitutional search under 42 U.S.C. § 1983 in the civil context, see 42 U.S.C. § 1983
(“Civil action for deprivation of rights”). We hold that the trial court did not err in determining
that the challenged rules do not violate the U.S. and Texas Constitutions’ protections against
unreasonable searches as applied to FARFA or its members, and we overrule FARFA’s fourth
issue.
Unconstitutional “vagueness”
In its final issue, FARFA contends that the terms “egregious condition” in Rule
11.1 and “pre-assessment review” in Rule 11.20 are unconstitutionally vague and thus void. See
Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639, 642 (Tex. App.—Dallas 1976, writ ref’d
n.r.e.) (noting that Fourteenth Amendment to U.S. Constitution prohibits laws that are so
impermissibly vague that ordinary person would not understand what conduct is prohibited); see
also U.S. Const. amend. XIV.
The standard to challenge a rule for vagueness is well-established:
Rules are presumed valid and the burden of demonstrating their 28 invalidity is on the challenging party. We will find a rule unconstitutionally vague only if it (1) does not give fair notice of what conduct may be punished, and (2) invites arbitrary and discriminatory enforcement by its lack of guidance for those charged with its enforcement. When persons of common intelligence are compelled to guess at a law’s meaning and applicability, due process is violated and the law is invalid. A law is not unconstitutionally vague merely because it does not define words or phrases. And, the existence of a dispute as to a law’s meaning does not necessarily render the law unconstitutionally vague. When applying the fair notice test, courts allow statutes imposing economic regulation greater leeway than they allow penal statutes. Courts recognize the myriad of factual situations that may arise and allow statutes to be worded with flexibility, provided the public has fair notice of what is required or prohibited. In the case of civil or regulatory statutes, no more than a reasonable degree of certainty is required.
Vista Healthcare, Inc. v. Texas Mut. Ins., 324 S.W.3d 264, 273 (Tex. App.—Austin 2010, pet.
denied) (internal citations omitted). “To survive a vagueness challenge, a statute need not spell
out with perfect precision what conduct it forbids.” Comm’n for Law. Discipline v. Benton,
980 S.W.2d 425, 437 (Tex. 1998).
Rule 11.1 defines “egregious condition” as
A practice, condition, or situation on a covered farm or in a packing facility that is undertaken as part of a covered activity that directly causes, or is likely to directly cause:
(A) serious adverse health consequences or death from the consumption of or exposure to covered produce; or
(B) an imminent public health hazard.
4 Tex. Admin. Code § 11.1(4). The trial court made several unchallenged findings of fact related
to this term:
29 • The term egregious condition is currently utilized by the FDA and the National Association of State Departments of Agriculture (“NASDA”).
• The FDA reporting requirements for Path C states include reporting of egregious conditions.
• The term egregious condition is currently utilized by the produce safety enforcement arms of at least seven other Path C states.
• At least seven other Path C states prescribe similar penalties upon a finding of an egregious condition.
• The FDA can apply similar penalties upon a finding of an egregious condition.
• At least six other Path C states have rules affording right of entry to conduct inspections and address egregious conditions.
These findings support a conclusion that the term “egregious condition” is not unconstitutionally
vague. Moreover, the Department points to evidence in the record contained in the FDA’s
FY21-22 Produce Safety Inspections Memorandum including a “working definition” of the term,
agreed upon within the NASDA/FDA workgroup, that is substantially similar to the above
definition. That workgroup appended to its definition numerous non-exhaustive “examples” of
situations and factors that might constitute an egregious condition. 5 Given this evidence, the 4F
trial court’s findings, and the definition itself—specifying that egregious conditions are those
that directly cause or are likely to directly cause serious adverse consequence or death or an
5 Some of those examples include a “dump tank with dead rats floating,” “visibly filthy harvesting bins or trailer beds that cannot be adequately cleaned in direct contact with covered produce,” and a “farmer applying raw manure in direct contact with edible portions of the plant.” 30 imminent public health hazard—we cannot conclude that the term is unconstitutionally vague.
See Vista Healthcare, 324 S.W.3d at 273.
Rule 11.20 defines the term “pre-assessment review” as a “review to determine
whether a farm is covered by the Produce Safety Rule and/or eligible for a Qualified
Exemption.” 4 Tex. Admin. Code § 11.20. This text explicitly limits a pre-assessment review to
verification of status—that is, it limits the “review” to assessing whether a farm is covered or
eligible for a qualified exemption and nothing more. That verification of status turns on the
farm’s prior three-year produce sales, adjusted for inflation, and—for qualified-exempt farms—
on whether such sales to qualified end-users exceeded all other sales. FARFA argues that this
“vague” term of “pre-assessment review” “would lead to Department officers having different
interpretations of the scope of their authority when conducting the pre-assessment review,” such
as one officer believing “she is only allowed to conduct the review to determine coverage when
at a farm, but another [reading] the rule more liberally [and believing] he has the authority to
inspect for a violation.” We disagree. The term does not authorize a farm “inspection” or create
ambiguity about whether under Rule 11.20 an inspection of the farm or its produce would be
allowed, nor does it invite arbitrary and discriminatory enforcement by a lack of guidance for
those charged with enforcement. Applying the applicable standard, we hold that the term “pre-
assessment review” provides the requisite reasonable degree of certainty allowing it to be
understood by a person of reasonable intelligence. See Vista Healthcare, 324 S.W.3d at 273.
Because neither challenged term is unconstitutionally vague, we overrule
FARFA’s fifth issue.
31 CONCLUSION
Having overruled FARFA’s issues, we affirm the trial court’s final judgment.
__________________________________________ Karin Crump, Justice
Before Justices Triana, Theofanis, and Crump
Affirmed
Filed: April 3, 2025