By: Patterson H.B. No. 353
73R1885 MJW-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to providing for methods and procedures for the
1-3 eradication of boll weevils in cotton; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 74, Agriculture Code, is amended by
1-6 adding Subchapter D to read as follows:
1-7 SUBCHAPTER D. OFFICIAL COTTON GROWERS' BOLL WEEVIL
1-8 ERADICATION FOUNDATION
1-9 Sec. 74.101. DEFINITIONS. In this subchapter:
1-10 (1) "Board" means the board of directors of the
1-11 official cotton growers' boll weevil eradication foundation.
1-12 (2) "Boll weevil" has the meaning assigned by Section
1-13 74.002 of this code.
1-14 (3) "Cotton" means:
1-15 (A) a cotton plant;
1-16 (B) a part of a cotton plant, including bolls,
1-17 stalks, flowers, roots, and leaves; or
1-18 (C) cotton products, including seed cotton,
1-19 cottonseed, and hulls.
1-20 (4) "Cotton grower" means an individual who:
1-21 (A) grows cotton; and
1-22 (B) receives direct income on or after June 1,
1-23 1992, from the sale of the cotton.
1-24 (5) "Eradication" means elimination of boll weevils to
2-1 the extent that the commissioner does not consider further
2-2 elimination of boll weevils necessary to prevent economic loss to
2-3 cotton growers.
2-4 (6) "Eradication zone" means a geographic area in
2-5 which cotton growers by referendum approve their participation in a
2-6 boll weevil eradication program.
2-7 (7) "Foundation" means the official cotton growers'
2-8 boll weevil eradication foundation.
2-9 (8) "High Plains Boll Weevil Suppression Program Area"
2-10 includes: Bailey, Borden, Briscoe, Castro, Cochran, Crosby,
2-11 Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,
2-12 Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,
2-13 Swisher, Terry, and Yoakum counties.
2-14 (9) "Host" means a plant or plant product in which the
2-15 boll weevil is capable of completing any portion of its life cycle.
2-16 (10) "Infested" means the presence of the boll weevil
2-17 in any life stage or the existence of generally accepted
2-18 entomological evidence from which it may be concluded with
2-19 reasonable certainty that the boll weevil is present.
2-20 (11) "Regulated article" means an article carrying or
2-21 capable of carrying the boll weevil, including cotton plants, seed
2-22 cotton, gin trash, other hosts, or mechanical cotton pickers.
2-23 Sec. 74.102. CERTIFICATION BY COMMISSIONER; REQUIREMENTS.
2-24 (a) A nonprofit organization authorized under the laws of this
2-25 state that represents cotton growers may petition the commissioner
2-26 for certification as the organization authorized to:
2-27 (1) create a foundation;
3-1 (2) conduct the initial election of the board; and
3-2 (3) conduct referenda to establish eradication zones.
3-3 (b) A petition under this section must include:
3-4 (1) a geographic description of each proposed
3-5 eradication zone, including a separate proposed eradication zone
3-6 for the High Plains Boll Weevil Suppression Program Area if the
3-7 petition proposes coverage for a part or all of that area;
3-8 (2) an initial plan for representation for each
3-9 proposed eradication zone on a board consisting of 6, 9, 12, or 15
3-10 members; and
3-11 (3) any other information required by the
3-12 commissioner.
3-13 (c) Not later than the 60th day after the date on which the
3-14 commissioner receives a petition for certification, the
3-15 commissioner shall hold a public hearing to consider the pending
3-16 petition.
3-17 (d) After a hearing is held under Subsection (c) of this
3-18 section, the commissioner may select one organization to implement
3-19 this subchapter and shall certify that the selected organization:
3-20 (1) has submitted a petition that complies with this
3-21 subchapter;
3-22 (2) can adequately represent the interests of cotton
3-23 growers in the proposed eradication zones described by the
3-24 organization's petition; and
3-25 (3) is authorized to conduct the initial eradication
3-26 zone referenda and board elections under Sections 74.104 and
3-27 74.105 of this code.
4-1 (e) If more than one nonprofit organization petitions the
4-2 commissioner for certification under this section, the commissioner
4-3 shall select the organization that can best carry out the purposes
4-4 of this subchapter according to objective criteria determined by
4-5 the commissioner.
4-6 Sec. 74.103. CERTIFICATION; REVOCATION. (a) The
4-7 commissioner shall certify the petitioning organization selected
4-8 under Section 74.102 of this code as the organization authorized to
4-9 create an official boll weevil eradication foundation. The
4-10 selected organization may conduct the initial eradication zone
4-11 referenda and board elections. A certification is valid for the
4-12 purposes of this subchapter only and does not affect other
4-13 organizations or associations of cotton growers established for
4-14 other purposes.
4-15 (b) The commissioner shall certify only one organization
4-16 under this section. The commissioner may revoke the organization's
4-17 certification on 60 days' written notice if the organization fails
4-18 to meet the requirements of this subchapter.
4-19 Sec. 74.104. ERADICATION ZONE REFERENDA. (a) The
4-20 organization certified under Section 74.103 of this code or the
4-21 foundation shall conduct a referendum in each proposed eradication
4-22 zone to determine whether cotton growers desire to establish an
4-23 official boll weevil eradication zone.
4-24 (b) Eradication zone referenda shall be conducted under the
4-25 procedures provided by Section 74.113 of this code.
4-26 (c) A proposed eradication zone referendum ballot must
4-27 include, or be accompanied by, information about the proposed
5-1 eradication zone, including:
5-2 (1) a statement of the purpose of the boll weevil
5-3 eradication program;
5-4 (2) the geographic area included in the proposed
5-5 eradication zone;
5-6 (3) a general summary of rules adopted by the
5-7 commissioner under Sections 74.113, 74.117, and 74.119 of this
5-8 code, including a description of:
5-9 (A) cotton grower responsibilities; and
5-10 (B) penalties for noncompliance with rules
5-11 adopted under this subchapter; and
5-12 (4) an address and toll-free telephone number that a
5-13 cotton grower may use to request more information about the
5-14 referendum or the boll weevil eradication program.
5-15 (d) If a referendum to establish an eradication zone fails,
5-16 the concurrent election of board members from the proposed
5-17 eradication zone under Section 74.105 of this code has no effect.
5-18 (e) The organization certified under Section 74.103 of this
5-19 code or the foundation, as appropriate, may call additional
5-20 referenda in a proposed eradication zone in which a referendum has
5-21 failed. Additional eradication zone referenda and concurrent board
5-22 elections may be held no earlier than the 121st day after the date
5-23 of the last referendum.
5-24 Sec. 74.105. BOARD ELECTIONS. (a) The initial election for
5-25 board members from a proposed eradication zone shall be held
5-26 concurrently with an eradication zone referendum held under Section
5-27 74.104 of this code.
6-1 (b) A board election shall be conducted under the procedures
6-2 provided by this section and Section 74.113 of this code.
6-3 (c) A cotton grower who is eligible to vote in a referendum
6-4 or election under this subchapter is eligible to be a candidate for
6-5 and member of the board.
6-6 (d) A cotton grower who wants to be a candidate for the
6-7 board must file an application with the secretary of the foundation
6-8 or, before certification of the organization under Section 74.103
6-9 of this code, the commissioner. The application must be:
6-10 (1) filed not later than the 30th day before the date
6-11 set for the board election;
6-12 (2) on a form approved by the commissioner; and
6-13 (3) signed by at least 10 cotton growers who are
6-14 eligible to vote in the board election.
6-15 (e) On receipt of an application and verification that the
6-16 application meets the requirements of Subsection (d) of this
6-17 section, an applicant's name shall be placed on the ballot for the
6-18 board election.
6-19 (f) An eligible voter may vote for a cotton grower whose
6-20 name does not appear on the official ballot by writing in that
6-21 person's name on the ballot.
6-22 (g) A board election must be preceded by at least 45 days'
6-23 notice published in one or more newspapers published and
6-24 distributed in the proposed or established eradication zone. The
6-25 notice shall be published not less than once a week for three
6-26 consecutive weeks. Not later than the 45th day before the date of
6-27 the election, direct written notice of the election shall be given
7-1 to each county agent in the eradication zone.
7-2 Sec. 74.106. COMPOSITION OF BOARD. (a) The foundation
7-3 shall select one member of the board.
7-4 (b) The High Plains Boll Weevil Suppression Program Area is
7-5 a separate zone for the purposes of boll weevil eradication and may
7-6 not be combined with another area in an eradication zone under this
7-7 subchapter.
7-8 (c) The board, with the commissioner's approval, may change
7-9 the number of board positions or the eradication zone
7-10 representation on the board. A change under this subsection may
7-11 not contravene another provision of this subchapter.
7-12 Sec. 74.107. BOARD POWERS. The board may:
7-13 (1) conduct board elections;
7-14 (2) conduct eradication zone referenda;
7-15 (3) conduct assessment referenda under Section 74.112
7-16 of this code; and
7-17 (4) form an advisory committee composed of individuals
7-18 from this state, other states, or other countries and change
7-19 membership on the committee, as necessary.
7-20 Sec. 74.108. BOARD DUTIES. (a) The board shall make
7-21 available for inspection at an annual independent audit all books,
7-22 records of account, and minutes of proceedings maintained by the
7-23 foundation.
7-24 (b) Not later than the 45th day after the last day of the
7-25 fiscal year, the board shall submit to the commissioner a report
7-26 itemizing all income and expenditures and describing all activities
7-27 of the foundation during the fiscal year.
8-1 (c) The foundation shall provide surety bonds in amounts
8-2 determined by the commissioner for employees or agents who handle
8-3 funds for the foundation.
8-4 (d) The foundation shall collect, receive, hold in trust,
8-5 and disburse all assessments and other funds collected under this
8-6 subchapter as trust funds of the foundation. The foundation board
8-7 is a state agency only for purposes of exemption from taxation and
8-8 indemnification and for no other purpose. Funds collected by the
8-9 foundation are not state funds and are not required to be deposited
8-10 in the state treasury. The foundation shall deposit all money
8-11 collected under this subchapter in a bank or other depository
8-12 approved by the board.
8-13 Sec. 74.109. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
8-14 EMPLOYEES. (a) Except for instances of gross negligence,
8-15 individual criminal actions, or acts of dishonesty, the
8-16 foundation's members, officers, and employees are not individually
8-17 liable to a cotton grower or other person for:
8-18 (1) errors in judgment;
8-19 (2) mistakes; or
8-20 (3) other acts or omissions.
8-21 (b) A foundation member, officer, or employee is not
8-22 individually liable for an act or omission of another foundation
8-23 member, officer, or employee.
8-24 Sec. 74.110. BOARD MEMBER COMPENSATION. Board members serve
8-25 without compensation but are entitled to reimbursement for
8-26 reasonable and necessary expenses incurred in the discharge of
8-27 their duties.
9-1 Sec. 74.111. DISPOSITION OF FUNDS ON DISCONTINUATION OF
9-2 FOUNDATION. (a) On discontinuation of the foundation, the
9-3 commissioner shall pay from the foundation's funds all of the
9-4 foundation's obligations.
9-5 (b) Funds remaining after payment under Subsection (a) of
9-6 this section shall be returned to contributing cotton growers on a
9-7 pro rata basis.
9-8 Sec. 74.112. ASSESSMENT REFERENDA. (a) The foundation
9-9 shall determine the assessment needed in each eradication zone to
9-10 accomplish the goals of the eradication program.
9-11 (b) The foundation shall propose in a referendum the:
9-12 (1) maximum assessment to be paid by cotton growers
9-13 having production in the eradication zone; and
9-14 (2) time for which the assessment will be made.
9-15 (c) The foundation may make an assessment in an eradication
9-16 zone at a level less than the assessment approved by the
9-17 referendum.
9-18 (d) The foundation shall conduct an assessment referendum
9-19 under the procedures provided by Section 74.113 of this code.
9-20 (e) If an assessment referendum is approved, the foundation
9-21 may collect the assessment.
9-22 (f) An assessment levied on cotton growers in an eradication
9-23 zone may be applied only to:
9-24 (1) eradication in that zone; and
9-25 (2) the foundation's operating costs.
9-26 Sec. 74.113. CONDUCT OF REFERENDA AND BOARD ELECTIONS;
9-27 BALLOTING. (a) The foundation shall conduct a referendum or board
10-1 election under its jurisdiction.
10-2 (b) The foundation shall bear all expenses incurred in
10-3 conducting a referendum or board election.
10-4 (c) The commissioner shall adopt rules for voting in the
10-5 initial board election and initial referenda to establish
10-6 eradication zones. The board shall adopt rules for voting in other
10-7 referenda and board elections. Rules adopted under this subsection
10-8 must include provisions for:
10-9 (1) who is a cotton grower eligible to vote in an
10-10 election;
10-11 (2) whether a board member is elected by a plurality
10-12 or a majority of the votes cast; and
10-13 (3) the area from which each board member is elected.
10-14 (d) A cotton grower having cotton production in a proposed
10-15 or established eradication zone is entitled to:
10-16 (1) vote in a referendum concerning the eradication
10-17 zone; and
10-18 (2) elect board members to represent the eradication
10-19 zone.
10-20 (e) An eligible cotton grower may vote only once in a
10-21 referendum or board election.
10-22 (f) Ballots in a referendum or board election may be mailed
10-23 to a central location to be initially determined by the
10-24 commissioner and later determined by the board. A cotton grower
10-25 eligible to vote in a referendum or board election shall be offered
10-26 the option of voting in person at the office of the county agent of
10-27 the Texas Agricultural Extension Service in the county in which the
11-1 cotton grower resides. A county agent shall hold ballots received
11-2 under this section in trust and shall count the ballots and report
11-3 the results to the commissioner and the foundation.
11-4 (g) A referendum is approved if:
11-5 (1) at least two-thirds of those voting vote in favor
11-6 of the referendum; or
11-7 (2) those voting in favor of the referendum farm more
11-8 than 50 percent, as determined by the commissioner, of the cotton
11-9 acreage in the relevant eradication zone.
11-10 (h) If a referendum under this subchapter is not approved,
11-11 the foundation may, with the approval of the commissioner, conduct
11-12 another referendum. A referendum under this subsection may not be
11-13 held before the 121st day after the date on which the last
11-14 referendum on the same issue was held.
11-15 Sec. 74.114. FAILURE TO PAY ASSESSMENTS. (a) A cotton
11-16 grower who fails to pay an assessment levied under this subchapter
11-17 when due may be subjected, after reasonable notice, to a penalty
11-18 set by the board.
11-19 (b) A cotton grower who fails to pay all assessments and
11-20 penalties before the 31st day after receiving notice of the
11-21 delinquency shall destroy any cotton growing on the grower's
11-22 acreage that is subject to the assessment. Cotton plants that are
11-23 not destroyed are a public nuisance, and on recommendation of the
11-24 foundation, the department shall follow the procedures for
11-25 destruction of host plants provided by Subchapter A of this
11-26 chapter. The department may apply to a district court with
11-27 jurisdiction in the county in which the public nuisance is located
12-1 to have the nuisance condemned and destroyed. Injunctive relief
12-2 available to the department under this subchapter is in addition to
12-3 any other legal remedy available to the department. The department
12-4 is not required to file a bond in a proceeding under this
12-5 subsection.
12-6 (c) In addition to any other remedies for the collection of
12-7 assessments and penalties, the department may place and perfect a
12-8 lien on cotton produced and harvested before the destruction of
12-9 other cotton grown from the acreage that is subject to the
12-10 assessment that is due and unpaid. A buyer of cotton takes free of
12-11 the lien if the buyer has not received written or actual notice of
12-12 the lien from the department or if the buyer has paid for the
12-13 cotton by a check on which the department is named as a joint
12-14 payee. In an action to enforce the lien, the burden is on the
12-15 department to prove that the buyer of cotton received written or
12-16 actual notice of the lien. A buyer of cotton other than a person
12-17 buying cotton from the cotton grower takes free of the lien.
12-18 Sec. 74.115. EXEMPTION FROM ASSESSMENT PENALTIES. (a) The
12-19 commissioner by rule shall adopt criteria for exempting from
12-20 payment of assessment penalties under Section 74.114 of this code a
12-21 cotton grower for whom payment would impose an undue financial
12-22 burden.
12-23 (b) A cotton grower may not qualify for an exemption under
12-24 this section for a year in which the amount computed by subtracting
12-25 the assessments and penalties due under this subchapter from the
12-26 cotton grower's net income subject to federal income taxation is
12-27 greater than $15,000.
13-1 (c) A cotton grower who applies for an exemption under this
13-2 section must use a form prescribed by the commissioner. A cotton
13-3 grower must file a separate application form for each year for
13-4 which the cotton grower claims an exemption.
13-5 (d) The commissioner shall forward to the foundation a
13-6 completed exemption application form. The foundation shall
13-7 determine whether the applicant qualifies for an exemption and
13-8 shall notify the commissioner of its determination.
13-9 (e) On notification by the foundation that a cotton grower
13-10 qualifies for an exemption, the commissioner shall exempt the
13-11 cotton grower from payment of an assessment penalty under Section
13-12 74.114 of this code.
13-13 (f) On the foundation's recommendation, the commissioner may
13-14 establish a payment plan for a cotton grower applying for an
13-15 exemption under this section.
13-16 (g) The commissioner shall promptly notify an applicant of
13-17 the foundation's determination regarding the applicant's request
13-18 for an exemption.
13-19 (h) If an exemption under this section is denied,
13-20 assessments and penalties for the year for which the application is
13-21 made are due on the later of:
13-22 (1) the date on which they would be due in the absence
13-23 of an application for exemption; or
13-24 (2) 30 days after the date the applicant receives
13-25 notice of the denial.
13-26 Sec. 74.116. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
13-27 INSPECTIONS. The department, the foundation, or a designated
14-1 representative of either entity may enter cotton fields or other
14-2 premises to carry out the purposes of this subchapter and
14-3 Subchapter A of this chapter, which include the treatment,
14-4 monitoring, and destruction of growing cotton or other host plants.
14-5 The department, the foundation, or a designated representative of
14-6 either entity may inspect fields or premises in this state for the
14-7 purpose of determining whether the property is infested with the
14-8 boll weevil. An inspection must be conducted during reasonable
14-9 daylight hours.
14-10 Sec. 74.117. AUTHORITY TO PROHIBIT PLANTING OF COTTON AND
14-11 REQUIRE PARTICIPATION IN ERADICATION PROGRAM. (a) The
14-12 commissioner may adopt reasonable rules regarding areas where
14-13 cotton may not be planted in an eradication zone if there is reason
14-14 to believe planting will jeopardize the success of the program or
14-15 present a hazard to public health or safety.
14-16 (b) The commissioner may adopt rules prohibiting the
14-17 planting of noncommercial cotton in eradication zones and requiring
14-18 that all growers of commercial cotton in an eradication zone
14-19 participate in a boll weevil eradication program that includes cost
14-20 sharing as required by the rules.
14-21 (c) Notice of prohibitions and requirements shall be given
14-22 by publication for one day each week for three successive weeks in
14-23 a newspaper having general circulation in the affected area.
14-24 (d) The commissioner may adopt a reasonable schedule of
14-25 penalty fees to be assessed on growers in a designated eradication
14-26 zone who do not meet the requirements of the rules issued by the
14-27 commissioner relating to reporting of acreage and participation in
15-1 cost sharing. The penalty fees adopted may not exceed $50 per
15-2 acre.
15-3 (e) If a grower fails to meet the requirements of rules
15-4 adopted by the commissioner, the commissioner may order the
15-5 destruction of cotton not in compliance with the rules. Costs
15-6 incurred by the commissioner in the destruction of cotton may be
15-7 assessed against the grower.
15-8 Sec. 74.118. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
15-9 COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The department
15-10 may destroy or treat volunteer or other noncommercial cotton and
15-11 establish procedures for the purchase and destruction of commercial
15-12 cotton in eradication zones if the department determines the action
15-13 is necessary to carry out the purposes of this subchapter. The
15-14 department is not liable to the owner or lessee for the destruction
15-15 or injury of any cotton that was planted in an eradication zone
15-16 after publication of notice as provided by this subchapter. The
15-17 foundation is liable for the destruction of cotton if the cotton
15-18 was planted in an eradication zone before publication of the
15-19 notice.
15-20 Sec. 74.119. AUTHORITY TO ADOPT RULES. (a) The
15-21 commissioner may adopt rules necessary to protect individuals,
15-22 livestock, or honeybee colonies on any premises in an eradication
15-23 zone on which cotton plants are being grown that have been or are
15-24 being treated to eradicate the boll weevil.
15-25 (b) The foundation may adopt other reasonable rules it
15-26 considers necessary to carry out the purposes of this subchapter
15-27 and Subchapter A of this chapter. All rules issued under this
16-1 subchapter must be adopted and published in accordance with state
16-2 requirements.
16-3 Sec. 74.120. REPORTS. Each person growing cotton in this
16-4 state shall furnish to the foundation on forms supplied by the
16-5 foundation information that the foundation requires concerning the
16-6 size and location of all commercial cotton fields and of
16-7 noncommercial patches of cotton grown as ornamental or for other
16-8 purposes.
16-9 Sec. 74.121. QUARANTINE. The department may adopt rules
16-10 relating to quarantining areas of this state that are infected with
16-11 the boll weevil. The rules must address the storage of regulated
16-12 articles and the movement of regulated articles into and out of a
16-13 quarantined area. The department may also adopt rules governing
16-14 the movement of regulated articles from other states into this
16-15 state if the articles are known to be infested with the boll
16-16 weevil.
16-17 Sec. 74.122. DOCUMENTING REGULATED ARTICLES. To implement
16-18 this subchapter, the department may issue or authorize issuance of:
16-19 (1) a certificate that indicates that a regulated
16-20 article is not infested with the boll weevil; and
16-21 (2) a permit that provides for the movement of a
16-22 regulated article to a restricted designation for limited handling,
16-23 use, or processing.
16-24 Sec. 74.123. COOPERATIVE PROGRAMS AUTHORIZED. (a) The
16-25 foundation may carry out programs to destroy and eliminate the boll
16-26 weevil in this state by cooperating through written agreements
16-27 with:
17-1 (1) an agency of the federal government;
17-2 (2) a state agency;
17-3 (3) an appropriate agency of a foreign country
17-4 contiguous to the affected area to the extent allowed by federal
17-5 law;
17-6 (4) a person who is engaged in growing, processing,
17-7 marketing, or handling cotton; or
17-8 (5) a group of persons in this state involved in
17-9 similar programs to carry out the purposes of this subchapter.
17-10 (b) An agreement entered into under this section may provide
17-11 for cost sharing and for division of duties and responsibilities
17-12 under this subchapter and may include other provisions to carry out
17-13 the purposes of this subchapter.
17-14 Sec. 74.124. ORGANIC PRODUCERS. The board, in cooperation
17-15 with the department, shall develop rules and procedures necessary
17-16 to protect both the eligibility of organic producers to be
17-17 certified by the department and the effectiveness of the boll
17-18 weevil eradication program administered under this subchapter.
17-19 Sec. 74.125. PENALTIES. (a) A person who violates this
17-20 subchapter or a rule adopted under this subchapter or who alters,
17-21 forges, counterfeits, or uses without authority a certificate,
17-22 permit, or other document issued under this subchapter or a rule
17-23 adopted under this subchapter commits an offense.
17-24 (b) An offense under this section is a Class C misdemeanor.
17-25 Sec. 74.126. SUNSET PROVISION. The board is subject to
17-26 Chapter 325, Government Code (Texas Sunset Act). Unless continued
17-27 in existence as provided by that chapter, the board is abolished
18-1 and this subchapter expires September 1, 2004.
18-2 SECTION 2. This Act takes effect June 1, 1993, except that
18-3 the Department of Agriculture may not destroy or treat cotton as
18-4 permitted by Section 74.118, Agriculture Code, as added by this
18-5 Act, before June 1, 1995.
18-6 SECTION 3. The importance of this legislation and the
18-7 crowded condition of the calendars in both houses create an
18-8 emergency and an imperative public necessity that the
18-9 constitutional rule requiring bills to be read on three several
18-10 days in each house be suspended, and this rule is hereby suspended,
18-11 and that this Act take effect and be in force according to its
18-12 terms, and it is so enacted.