by Donald Ray Burger
Attorney at Law

The regulation of honey bees in Texas is found in four major sources of law: statutory law, administrative rules, case law and municipal ordinances. Each of these areas will be discussed in this article.

Any review of Texas bee law must begin with a review of Chapter 131 of the Texas Agriculture Code. Section 131.001 begins with defining terms to be used in the statute. For example, an "apiary" is a place where six or more colonies of bees or nuclei of bees are kept. That means most backyard beekeepers are not covered by many of the regulations in Chapter 131. However, several of the regulations apply to all beekeepers. "Beekeeper" is defined as a person who owns, leases, or manages one or more colonies of bees for pollination or the production of honey, beeswax, or other by-products, either for personal or commercial use. "Bees" means any stage of the common honeybee, Apis mellifera species. A "colony" is the hive and its equipment and appurtenances, including bees, comb, honey, pollen, and brood.

Note that the definition of beekeeper includes one who owns even one colony of bees for personal use. Thus, the regulations in Chapter 131 are not necessarily restricted to large commercial beekeepers.

The chapter often mentions the "director" and the "inspector." Under the statute, "director" means the director of the Texas Agricultural Experiment Station. "Inspector" means the chief apiary inspector in Texas.

The statute also defines "disease." Disease means American foulbrood, European foulbrood, any other contagious or infectious disease of honeybees, or parasites or pests that affect bees or brood. Other terms also defined in Section 131.001 include "equipment," "label," "nucleus," "pollen," "pure honey," and "queen apiary."

Chapter 131 next creates a Chief Apiary Inspector. This office was formerly the state entomologist. The Inspector is appointed by the Director of the Texas Agricultural Experiment Station. The Inspector may employ assistants as necessary. The Inspector makes an annual report giving a detailed account of inspection activities, receipt and use of funds, and a report of compliance actions brought under Chapter 131.

The Inspector is charged with publishing information on methods and directions for treating, eradicating or suppressing infectious diseases of honey bees, and the rules adopted to effect these activities. The Inspector must also make information available to the public on how to file a complaint about beekeepers regulated by Chapter 131 and how those complaints are resolved. The Inspector can also make rules on methods by which consumers and service recipients can be notified of the name, address and phone number of the Inspector for purposes of making a complaint. The Inspector is authorized to require a sign to be prominently displayed in the place of business of each person regulated under this chapter. Section 131.007(c)(2).

The Inspector must keep a record of each complaint filed relating to a beekeeper regulated under Chapter 131. If the complaint is in writing, the Inspector shall notify the parties to the complaint, at least quarterly, and until final disposition of the complaint, of the status of the complaint. Also, public hearings can be held.

Chapter 131 allows the Inspector to set fees for specified activities. The exact amount of each fee is up to the Inspector, except that the fees must be high enough so that they will produce revenues equal to approximately fifty percent of the Inspector's total budget, keeping in mind the effect of the fees on the industry.

One of the chief duties of the Inspector is disease control. 131.021. To that end, the Inspector can adopt rules "and act as necessary" to control, eradicate or prevent the introduction, spread, or dissemination of contagious or infectious diseases of bees. This specifically includes the power to prohibit the shipment or entry into Texas of bees, honey, combs, pollen or other items capable of transmitting bee diseases. This power extends to both shipments from other states (or territories) and shipments from foreign countries.

The Inspector can seize and order the destruction, treatment or sale of bees, equipment, pollen or honey that is determined to be diseased or infectious or abandoned. 131.021(a)(3). Apiaries, equipment or bees are considered infectious if the bees are not hived with movable frames or stored so as to prevent the possible spread of disease, or the bees, equipment or apiary "generally comprise a hazard or threat to disease control in the beekeeping industry." 131.021(b).

The Inspector can also declare a quarantine of a district, county, precinct or other defined area. 131.022. Quarantines can be either protective quarantines (to keep disease or exotic species out) or restrictive quarantines (to keep disease or exotic species from leaving). Once a quarantine is declared, movements of bees, equipment, pollen or honey into or out of the quarantined area cannot take place except in accordance with the rules adopted by the Inspector. 131.022(b).

Pursuant to 131.023, a person may not sell queen bees and attendant bees, package bees, nuclei or queen cells in Texas unless the bees are accompanied by a copy of a certificate from the Inspector certifying that the apiary has been inspected not more than twelve months before the date of shipment and found "apparently free from disease" or a copy of an affidavit made by the beekeeper stating that, to his knowledge, the bees are not diseased and the honey used in making the candy in the queen cage has been diluted and boiled for at least thirty minutes in a closed vessel.

If bees, equipment, pollen or honey is seized by the Inspector under Section 131.021, they shall be treated, destroyed or sold at public auction. The specific requirements for the procedures to be followed are contained in 131.024.

Section 131.025 creates a duty to report diseased bees on the part of beekeepers who know that a colony of bees is diseased. The beekeeper shall report the facts known to the Inspector.

Sections 131.041, 131.042 and 131.043 establish the procedures and fees related to permits for shipments of bees or equipment out of the state, into the state or between counties within the state. An individual who owns not more than twelve colonies of bees is exempt from the permit fees charged for shipments between counties. 131.043(e). The procedures about permits for importing bees do not apply "to a shipment of live bees in wire cages without combs or honey." 131.041(e). There is no similar exception in the section regarding permits for exportation.

Beekeepers can get a Certificate of Inspection from the Inspector that the bees, equipment, pollen or honey are free of diseases. Minimum fees are set. Additional fees for re inspections if disease is found are also set. 131.044.

Section 131.045 provides for registration of apiaries. Remember that an apiary is defined as a place where six or more colonies of bees or nuclei of bees are kept. The registration must include the beekeepers name, address and telephone number, the county or counties in which the apiary will be located and the approximate dates that the apiary will be located in each county. The Inspector may require a beekeeper to submit a map showing the exact location of the apiaries. In 1980 the Attorney General issued Open Records Decision No. 238 that the exact location of apiaries is in the nature of a trade secret, and that the exact locations of apiaries provided by beekeepers was not subject to disclosure under the Open Records Act. The legislature, to make sure of this fact, added subsection (c) to 131.045 in 1989 that specifically notes that, "A map submitted under this section is a trade secret under Chapter 552, Government Code, and may not be disclosed."

Sections 131.061 through 131.065 set up the rules for branding and identification of apiary equipment. A person may not operate an apiary in Texas unless the apiary equipment is clearly and indelibly marked with the name and address of the person or branded in accordance to Section 131.064 with a brand registered to the person by the Inspector. 131.061.

The Inspector maintains a system of registration of apiary equipment brands. Each brand shall consist of three numbers separated by hyphens, with the first number signifying that the brand is a state-registered brand, the second number identifying the registrant's county of residence, and the third number identifying the registrant. 131.062.

Under 131.064, the brand shall be burned or pressed into the apiary equipment in figures of at least three-quarters of an inch high, into the wood or other material. Hives shall be branded on one or both ends. Other equipment, including frames, intercovers (inner covers?), tops, bottoms or planks, may be branded in any place.

Sections 131.081 through 131.084 address the labeling and sale of honey. A person cannot label, sell or keep, offer, or expose for sale a product identified on its label as "honey," "liquid or extracted honey," "strained honey," or "pure honey" unless the product consists exclusively of pure honey. 131.081. Recall that the definition of "pure honey" includes honey in the comb or that has been taken from the comb and is packaged in a liquid, crystallized or granular form. Also, one cannot have a picture or drawing of a bee, hive or comb on one's label unless the product is pure honey. 131.082. One cannot sell a product that looks like honey but isn't, even if it is labeled "imitation honey." 131.083.

There are extensive labeling requirements for products that are mixtures of honey and another ingredient. Among those requirements for mixtures is that the word "honey" cannot be bigger than the other ingredients listed. 131.084. The Texas Department of Health is the agency responsible for enforcing the rules related to the labeling of honey. 131.101.

If an enforcement official believes that a beekeeper has violated Chapter 131, a "stop-sale order" may be issued. On receipt of a copy of the order, a person may not sell or transport the bees, equipment, pollen, or honey until the official or agency that issued the order determines that the items are in compliance with Chapter 131.

Civil or criminal actions may be brought for violating Chapter 131. Venue for such actions is in the county where the affected group of bees, equipment, pollen, or honey is located at the time the violation is discovered. 131.105.

Most offenses under Chapter 131 are Class C misdemeanors. Offenses regarding labeling or sale of honey are Class B misdemeanors.

Additional regulations of beekeeping are found within the Texas Administrative Code (TAC). 71.1 of the TAC gives definitions. The definitions are almost identical to those found at Section 131.001 of the Agriculture Code. Interestingly, the Agriculture Code uses the term "pure honey" and the TAC uses the term "honey." The same definition is used for both terms.

Section 71.7 sets forth a detailed program for dealing with Africanized honey bees, both for regular beekeepers and for queen bee producers. The program is complicated, and should be read in its entirety. This is a brief summary of the major points.

A county is considered as Africanized after the first Africanized honey bee (AHB) swarm is captured, is identified as being AHB and its presence is determined not to be man-assisted. The Apiary Inspection Service may then designate the county as a quarantined county. There is a 90-day grace period after designation during which any managed colony will be allowed to move out of the quarantined county without the European honey bee (EHB) certification. 71.7(b)(1)(B).

If a beekeeper chooses to remain in the quarantined area, the beekeeper must mark or clip queens within the 90-day period following the declaration of the quarantine to ensure that those colonies will be allowed to move to a nonquarantine area without additional EHB certification. After the 90-day period, colonies may be moved out of the quarantined area only if the European honey bee certification procedures are followed and currently existing bee law requirements are satisfied. 71.7(b)(1)(C),(D).

Colonies in the quarantine area with queens that are not marked or clipped will only be certified and permitted to move to a nonquarantine area after the colonies are requeened with queens produced from certified breeder queens. 71.7(b)(2)(A).

Beekeepers need not be certified to relocate their colonies within a quarantined area unless they provide other beekeepers with queens, package bees, brood, nucs, full sized colonies or drone semen. 71.7(b)(3)(A).

Honey bee queen and package bee producers located in quarantined areas must use certified breeder queens. A certified breeder queen is a queen in which the progeny can be certified as being of European genetic origin. Certified breeder queens must be clipped or marked. A queen produced and mated in areas known to be free of Africanized honey bees will not require certification other than that presently required by Texas bee laws. 71.7(a)(2). EHB queen certification shall be based on laboratory examination of emerging worker bee progeny or examination of worker bees collected at least six weeks after successful queen introduction. 71.7(b)(3)(C). Provision is also made for certified production queens. Any queen produced with larvae obtained from a certified breeder queen and mated under the mating procedures outlined in 71.7 is a certified production queen. Such queens may be used for European drone source colonies, but they shall not be used to produce other queens or queen cells. 71.7(a)(3).

Mating yards are also regulated. A minimum of sixty European drone source colony equivalents must be established for each 1,000 or fewer mating nuclei. No drones or drone brood may be introduced into colonies or mating nucs unless they originate from colonies with certified breeder queens or certified production queens. 71.7(b)(4)(A).

Producers of certified breeder queens and certified production queens are required to requeen drone-producing colonies on an annual basis. 71.7(b)(4)(B).

It is illegal to retain AHB swarms and or colonies except for approved research. All swarms observed or captured in a quarantined area should be destroyed. Beekeepers retaining AHB swarms are subject to having the Inspector seize and order the destruction, treatment or sale of the bees, equipment, pollen or honey. 71.7(b)(5).

Section 71.11 of the TAC addresses apiary quarantines. A quarantine of an apiary is established when the state entomologist (now the Inspector) notifies the person having custody or control of the apiary of the presence of disease or places quarantine signs on the location quarantined. No bees, nuclei, combs or equipment may be removed from a quarantined apiary except upon written authorization of the state entomologist. Once a quarantine is established, it remains in effect until the state entomologist declares the apiary or location to be free from disease. Quarantines shall be reviewed at least once every thirty days for the continued presence of disease.

Section 71.21 of the TAC sets deadlines for requesting certificates of inspection of Queen Apiaries. Section 71.22 requires that fees paid pursuant to Sections 131.041 through 131.046 (permits for importation, exportation, intrastate movement, certifications of inspections, and apiary registration) shall be made payable to "Apiary Inspection Service."

Section 71.51 provides that complaints concerning the disease status of an apiary or relating to apiary equipment may be sent to: Chief Apiary Inspector, Entomology Department, Texas A&M University, College Station, Texas 77843 (409) 845-9714.

Section 71.53 of the TAC provides that persons interested in commenting or reviewing actions or activities of the Apiary Inspection Service will be notified when meetings are scheduled or may request to meet with the Inspector. It is specifically provided that the Apiary Inspection Service will notify the president of the Texas Beekeepers Association at least three working days prior to a public meeting. Other organizations interested in honey bees may contact the Apiary Inspection Service and request advance meeting notification.

The State of Texas has a boll weevil eradication program. Section 3.23 of the Texas Administrative Code establishes rules and procedures for use of pesticides for the eradication of boll weevils. Under 3.23(b), the Boll Weevil Eradication Foundation shall "notify or cause to be notified" beekeepers located adjacent to any fields being sprayed prior to the application of the pesticides "at the earliest possible time" to allow the beekeeper to restrict bees leaving the hives or to move the hives until the danger to the bees has diminished. In order to receive the notification, the beekeepers must file the location of their hives and their addresses and phone numbers with the Chief Apiary Inspector so a list of beekeepers may be prepared for each county and furnished to the Foundation. Beekeepers can also file the with the county extension agent for the county in which hives are located. Note that these rules are couched in terms of "hives," not "apiaries." Thus, even a beekeeper who has five or fewer hives (and is thus not covered by the registration rules of 131.045) should be able to get on the notification list if the beekeeper provides the necessary information to the Inspector or the county extension agent.

There are relatively few court cases dealing with honey bees. Normally, one will find many cases interpreting the specific language of a statute or an administrative code. However, that is not the case with honey bees. It is beyond the scope of this paper to analyze all Texas court cases dealing with honey bees. However, a sampling of a few of the more interesting cases follows.

Pizzitola v. Galveston County Central Appraisal District, 808 S.W. 2d 244 (Tex. App.-Houston[1st Dist.] 1991, no writ history). In this case the court starts by stating, "This case presents the question of whether a bee is like a cow." The court held that bees are not like cows. And why does this matter? Because the Plaintiff was contending that they were entitled to an "open-space valuation" on their property taxes for the 63.17 acres of their property because the entire acreage was used by the beekeeping operation (and their bees). They wanted the same tax rate ranchers get for land used to graze cattle. They called as an expert witness an entomologist with Texas A&M, who agreed that bees need land for forage. The court agreed with the Appraisal District, who had determined that the three acres around the hives and honey house qualified, but not the rest. The court held that, "the tending of the bees--the preparation, maintenance of the hives and equipment, and the honey extraction--took place on the three acres, not on the Property [as a whole]." Id. at 250.

In Wilhelm v. Flores, 2003 WL 22479211 (Tex. App.--Corpus Christi, October 30, 2003), the court considered the duties beekeepers owe to bee workers. Santos Flores died from anaphylactic shock "triggered by a bee sting." John Black operated a honey bee business and, in 1994, needed help in moving some bee hives he had purchased from Curtis Wilhelm. While moving the hives the men wore bee suits and veils. However, Flores was apparently stung, suffered anaphylactic shock and died. The jury found Black and Wilhelm negligent and grossly negligent in the death of Mr. Flores.

The court first considered whether beekeepers have absolute liability of the kind that is applied to the keepers of wild animals. The court decided that bees, unlike wild animals, are within the classification of ferae naturae which have been domesticated. "This Court has previously recognized that where a wild animal is domesticated, the owner is not liable for injuries caused by the domesticated animal unless he 'knew that the animal was accustomed to do mischief, or . . . [he] committed acts of negligence which proximately caused the injury.' [citations omitted]."

The court next considered whether there was evidence that the defendants were negligent. Plaintiffs had sued the defendants under five theories of negligence. They claimed defendants were negligent for (1)failure to have a reasonable safety program; (2) failure to ensure Flores was tested for bee sting allergy; (3) failure to provide proper protective equipment and instructions on how to use such equipment; (4) failure to warn Flores of the dangerousness of honeybees and Africanized bees; and (5) failure to provide Flores with proper and timely medical attention.

The court found that the defendants had failed to warn of the dangerousness of bees, and such failure was a proximate cause of the death of Mr. Flores. Because they found negligence on this failure to warn theory, they held there was no need to examine whether there was sufficient evidence to support the jury's verdict on any of the other allegations of negligence pled by Plaintiffs.

The court next considered whether there was sufficient evidence to support the finding of gross negligence. Gross negligence means "more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the person affected by it." The court noted that Flores had been furnished with a bee suit and there was no evidence that it was known that Flores was allergic to bee stings. Thus, the court refused to find that Defendants were consciously indifferent to Flores's welfare and safety. The court overturned the verdict on gross negligence, but affirmed the verdict that the defendants were negligent.

Many cities do not have any ordinances about bees. Some municipalities have ordinances on apiaries, or on bee keeping in general. Sometimes the regulations will be within one dealing with animal nuisances. To see if your city has regulations on bee keeping, go to the city website. There is usually a link to the Code of Ordinances. Most codes are searchable. You should search for terms such as bee, bees, hives, apiary or honey.

Municipal ordinances can establish a maximum number of hives, set minimum distances between the hives and various other locations and establish a requirement for an adequate source of water within the apiary. Sometimes the ordinance will state that bees cannot be kept within the city limits in such a manner as to constitute a nuisance. Nuisance law is complicated, and would require a long article on its own.

This article is not meant to the final word on bee law. By necessity it is a "brief overview" of this subject. If you have specific questions you should consult with the attorney of your choice.

Written by Donald Ray Burger, Attorney at Law
Last revised: November 15, 2003

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