By Turner of Coleman H.B. No. 2242
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of certain herbicides; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 75, Agriculture Code, is amended to read
1-5 as follows:
1-6 CHAPTER 75. HERBICIDE REGULATION
1-7 Sec. 75.001. Purpose. The purpose of this chapter is to
1-8 regulate the distribution <sale>, use, and transportation of
1-9 certain herbicides to prevent a hazard to desirable vegetation.
1-10 Sec. 75.002. Definitions. In this chapter:
1-11 (1) "Application of a herbicide" means the spreading
1-12 of a herbicide on real property having a continuous boundary line.
1-13 (2) "Commercial applicator <Custom applier>" means a
1-14 person who applies a herbicide to land belonging to another person
1-15 <or plants> for hire.
1-16 (3) "Distribute" means to offer for sale, hold for
1-17 sale, sell, barter, or supply.
1-18 (4) "Equipment" means a device used to apply a
1-19 herbicide.
1-20 Sec. 75.003. REGULATED HERBICIDES. (a) After a public
1-21 hearing on the issue, and in accordance with Subsection (b) of this
1-22 section, the department by rule may adopt a list of regulated
1-23 herbicides for the state or for one or more designated areas in the
1-24 state <This chapter applies to the following herbicides:>
2-1 <(1) 2, 4-Dichlorophenoxyacetic Acid (2, 4-D);>
2-2 <(2) 2, 4, 5-Trichlorophenoxyacetic Acid (2, 4, 5-T);>
2-3 <(3) 2-Methyl-4-Chlorophenoxyacetic Acid (MCPA);>
2-4 <(4) 2-(2, 4, 5-Trichlorophenoxy) propionic Acid
2-5 (silvex);>
2-6 <(5) Polychlorinated benzoic acids; and>
2-7 <(6) derivatives and formulations of substances listed
2-8 by Subdivisions (1)-(5) of this subsection>.
2-9 (b) The department may include a herbicide on the list of
2-10 regulated herbicides if the department determines that, if used as
2-11 directed or in accordance with widespread and commonly recognized
2-12 practice, the herbicide requires additional restrictions to <To>
2-13 prevent a hazard to desirable vegetation through drift or other
2-14 uncontrolled application<, the department may, after a public
2-15 hearing, determine that this chapter applies to a substance, in
2-16 addition to those listed by Subsection (a) of this section, that is
2-17 used to control plants growing where they are not wanted>.
2-18 Sec. 75.004. Dealer's License. (a) A <Except as provided
2-19 by Subsection (b) of this section, a> person may not <sell,
2-20 wholesale,> distribute<, offer or expose for sale, exchange,
2-21 barter, or give away in this state,> a regulated herbicide <in a
2-22 container having a net capacity of more than 16 fluid ounces>
2-23 unless the person has a <first obtains a> dealer's license from the
2-24 department.
2-25 (b) A person must obtain a license for each location in the
2-26 state that is used for distribution. If the person does not have a
2-27 place of business in this state, the person may obtain one license
3-1 for all out-of-state locations, but must designate an agent for
3-2 service of process in this state before the department may issue
3-3 the license <is not required to be licensed if the container
3-4 described by Subsection (a) of this section:>
3-5 <(1) has a net capacity that does not exceed one
3-6 gallon;>
3-7 <(2) contains a substance with a concentration of
3-8 herbicide not exceeding 10 percent by volume; and>
3-9 <(3) bears a label stating that its contents are for
3-10 lawn use only>.
3-11 (c) A person must apply for a dealer's license under this
3-12 section on a form prescribed by the department <Except as provided
3-13 by this subsection, an application for a dealer's license must be
3-14 accompanied by a dealer's license fee for each warehouse or branch
3-15 of the applicant's business. If the applicant's principal office
3-16 keeps and reports satisfactory records for all subsidiary branches,
3-17 the applicant shall pay one license fee>.
3-18 (d) The department by rule shall set the fee for a dealer's
3-19 license in an amount not to exceed $100.
3-20 (e) A dealer's license expires December 31 <January 1> of
3-21 each year.
3-22 (f) A person who fails to submit a renewal fee on or before
3-23 the expiration date of the license must pay, in addition to the
3-24 renewal fee, the late fee provided by Section 12.024 of this code.
3-25 Sec. 75.005. RECORD OF DISTRIBUTION <SALE>. (a) A person
3-26 required to obtain a dealer's license by Section 75.004 of this
3-27 code shall record each distribution of a regulated <sale of a>
4-1 herbicide <that is sold in a container having a net capacity of
4-2 more than 16 fluid ounces> and shall keep a copy of the record for
4-3 at least two years after the date of the distribution <sale>.
4-4 (b) The department shall adopt rules that prescribe the
4-5 information to be stated in the records required by this section.
4-6 (c) The department may require that a copy of the records
4-7 required by this section be submitted periodically to the
4-8 department. The copies submitted to the department are public
4-9 information.
4-10 (d) The department may revoke a dealer's license if the
4-11 licensee fails to submit a copy of a record as required under
4-12 Subsection (c) of this section.
4-13 Sec. 75.0055. DENIAL, Revocation, Modification, or
4-14 Suspension of License. (a) The department may deny an application
4-15 for a dealer's license if the applicant fails to comply with this
4-16 chapter. The department shall revoke, modify, or suspend a
4-17 license, assess an administrative penalty, <suspend an
4-18 administrative penalty for good cause,> place on probation a person
4-19 whose license has been suspended, or reprimand a licensee for a
4-20 violation of this chapter <Section 75.005 of this code> or a rule
4-21 adopted by the department under this chapter <that section>.
4-22 (b) If a license suspension is probated, the department may
4-23 require the person to:
4-24 (1) report regularly to the department on matters that
4-25 are the basis of the probation;
4-26 (2) limit practice to the areas prescribed by the
4-27 department; or
5-1 (3) continue or renew professional education until the
5-2 person attains a degree of skill satisfactory to the department in
5-3 those areas that are the basis of the probation.
5-4 (c) If the department proposes to deny a person's
5-5 application for a license or revoke, modify, or suspend a person's
5-6 license, the person is entitled to a hearing before a hearings
5-7 officer designated by the department. The decision of the
5-8 department is appealable in the same manner as provided for
5-9 contested cases under the Administrative Procedure and Texas
5-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
5-11 Sec. 75.006. PERMIT<; FEE>. (a) Except as provided by
5-12 Subsection (b) of this section, during a period in which the
5-13 commissioners court of a county has determined, as provided by
5-14 Section 75.021(a) of this code, the existence in the county of a
5-15 crop or vegetation of value that is susceptible to being adversely
5-16 affected by the application of a regulated herbicide, a person must
5-17 obtain a permit from the department before applying the regulated
5-18 herbicide in the county <Except as provided by this section, a
5-19 person may not apply a herbicide to any land or plants unless the
5-20 person first obtains a permit to apply a herbicide from the
5-21 department>.
5-22 (b) The department may exempt from the permit requirement
5-23 under Subsection (a) of this section a county or portion of a
5-24 county during a period the department determines a crop or
5-25 vegetation of value susceptible to being adversely affected from
5-26 application of a regulated herbicide does not exist in the county
5-27 or portion of the county <An application for a permit to apply a
6-1 herbicide must be accompanied by a permit fee set by the department
6-2 in an amount not to exceed 10 cents an acre for the area to which
6-3 the herbicide is to be applied>.
6-4 (c) <A permit is not required if during any one year the
6-5 person applies a herbicide to a total acreage of 10 acres or less.>
6-6 <(d)> The department by rule may exempt from the permit <and
6-7 fee> requirement of this section:
6-8 (1) a particular type of application of a regulated
6-9 herbicide, including an application for structural pest control
6-10 purposes by an applicator licensed by the Texas Structural Pest
6-11 Control Board or a nurseryman licensed by the department in turf
6-12 weed control for structural pest control applications; or
6-13 (2) a governmental body.
6-14 (d) <(e)> If the department finds that a type of application
6-15 of a regulated herbicide does not create a hazard in a particular
6-16 area, the department by rule shall exempt that area from the permit
6-17 <and fee> requirement of this section.
6-18 (e) <(f)> A permit to apply a regulated herbicide <and
6-19 payment of the permit fee> is not required for experimental work
6-20 with a regulated herbicide by the department, a recognized college
6-21 or university, the United States Department of Agriculture, a
6-22 governmental body, or a public organization if the entity gives
6-23 written notice of the work to the department and does the work in
6-24 accordance with rules adopted by the department. The department
6-25 may exempt those entities from any other requirement of this
6-26 chapter or rule adopted under this chapter.
6-27 Sec. 75.007. Inspection Before Issuing Permit. Before
7-1 issuing a permit to spray a regulated herbicide, the department is
7-2 entitled to enter and inspect the area to be sprayed and the area
7-3 surrounding it.
7-4 Sec. 75.008. Types of Permits. The department may issue:
7-5 (1) an individual permit to apply a regulated
7-6 herbicide; or
7-7 (2) a blanket permit.
7-8 Sec. 75.009. Powder or Dry Herbicides. <(a)> The
7-9 department may not issue a permit to apply a powder or dry-type
7-10 regulated herbicide unless:
7-11 (1) all particles of the herbicide can pass through a
7-12 U.S. standard 10-mesh sieve; and
7-13 (2) not more than one percent of the particles can
7-14 pass through a U.S. standard 60-mesh sieve.
7-15 <(b) The holder of a permit to apply a powder or dry-type
7-16 herbicide may not apply a powder or dry-type herbicide that does
7-17 not meet the requirements of Subsection (a) of this section.>
7-18 Sec. 75.010. Term of Permit. <(a)> A permit to apply a
7-19 regulated herbicide expires:
7-20 (1) when the herbicide has been applied to the area
7-21 described by the permit;
7-22 (2) when all acreage for which the permit was granted
7-23 has been treated; or
7-24 (3) if the acreage is not treated, on the 180th day
7-25 after the day on which the permit was issued.
7-26 <(b) If a herbicide is not applied to acreage for which a
7-27 permit was issued, the person to whom the permit was issued, after
8-1 filing a request for a refund, shall receive a refund equal to the
8-2 amount of fees paid for acreage not treated.>
8-3 Sec. 75.011. Refusal, Amendment, or Revocation of Permit.
8-4 The department may amend, revoke, or refuse to grant a permit to
8-5 apply a regulated herbicide.
8-6 Sec. 75.012. APPLICATION OF REGULATED HERBICIDE. (a) If a
8-7 person applies a regulated herbicide, the person shall act in
8-8 accordance with rules adopted by the department, including rules
8-9 adopted under Subchapter E, Chapter 76, of this code regulating
8-10 application of pesticides that the department adapts to apply to
8-11 regulated herbicides.
8-12 (b) If a regulated herbicide is applied by a commercial
8-13 applicator <custom applier>, the person in control of the crop or
8-14 land to which the regulated herbicide is applied <for whom the
8-15 application of a herbicide is made> and the commercial applicator
8-16 <custom applier shall> jointly are responsible for ensuring that
8-17 <supervise> the application is in compliance with this chapter and
8-18 the rules adopted by the department <under Subsection (a) of this
8-19 section>.
8-20 (c) <Regardless of whether a permit for the application of a
8-21 herbicide is required under this chapter, each person before
8-22 spraying a herbicide on land or plants, other than a lawn, shall:>
8-23 <(1) give notice of intent to spray; and>
8-24 <(2) submit a record of the spraying in accordance
8-25 with rules of the department.>
8-26 <(d)> If the department finds that an application of a
8-27 regulated herbicide is hazardous to crops or valuable plants in an
9-1 area, the department may prohibit the application of a regulated
9-2 herbicide in that area for the period during which the hazard
9-3 exists.
9-4 Sec. 75.013. APPLICATOR'S <APPLIER'S> RECORDS. (a) Except
9-5 as provided by Subsection (d) of this section, each person who
9-6 applies a regulated herbicide shall record each application of a
9-7 regulated herbicide that he or she makes and shall keep a copy of
9-8 the records for at least two years after the date the application
9-9 was made.
9-10 (b) The department shall adopt rules that prescribe the
9-11 information to be stated in the records required by this section.
9-12 (c) <To be eligible to hold a valid permit to apply a
9-13 herbicide, a person must submit to the department, within a period
9-14 prescribed by rule of the department, the record of each
9-15 application of a herbicide made by the person.> The department may
9-16 require all persons who apply a regulated herbicide to submit
9-17 periodically to the department a copy of the records required by
9-18 this section.
9-19 (d) A person, other than a commercial applicator <custom
9-20 applier>, who applies a regulated herbicide to a lawn is not
9-21 required to make and keep the records required by Subsection (a) of
9-22 this section for that application of a herbicide.
9-23 Sec. 75.014. PROOF OF FINANCIAL RESPONSIBILITY <CROP DAMAGE
9-24 PROTECTION>. (a) Except as otherwise provided by this section,
9-25 each applicant for a commercial applicator's license <custom
9-26 applier> shall file with the department:
9-27 (1) <deposit with the department> a <surety> bond
10-1 executed by the applicant as principal and by a corporate surety
10-2 licensed to do business in Texas as surety <approved by the
10-3 department in the amount of $20,000 plus $2,000 for each piece of
10-4 spraying equipment licensed for use by the custom applier>; or
10-5 (2) <subscribe for and hold> a liability insurance
10-6 policy or certification of a policy protecting people who may
10-7 suffer adverse effects as a result of the applicant's operations
10-8 <of crop damage insurance approved by the department with coverage
10-9 in the amount described by Subdivision (1) of this subsection>.
10-10 (b) If an applicant <a custom applier> cannot reasonably
10-11 obtain insurance coverage or a bond as specified by Subsection (a)
10-12 of this section, the department shall accept a certificate of
10-13 deposit or a letter of credit that meets the requirements of
10-14 Subsection (c)(1) and rules adopted under Subsection (e) of this
10-15 section.
10-16 (c) If the State Board of Insurance determines after giving
10-17 notice to the department that the liability <crop damage> insurance
10-18 policy required by Subsection (a)(2) of this section is not
10-19 generally and reasonably available to commercial applicators
10-20 <custom appliers>, then in lieu of the requirements of Subsection
10-21 (a) of this section, the applicant <a custom applier> may:
10-22 (1) tender from a state or federal financial
10-23 institution whose deposits are insured by the Federal Deposit
10-24 Insurance Corporation <or by the Federal Savings and Loan Insurance
10-25 Corporation> a certificate of deposit or letter of credit in the
10-26 amounts prescribed by Subsection (f) <(a)> of this section, made
10-27 payable to the department and issued for the purpose of protecting
11-1 people who may suffer adverse effects as a result of the operations
11-2 of the commercial applicator <crop damage protection>;
11-3 (2) file a property damage and personal injury
11-4 <subscribe for and hold crop damage> insurance policy or
11-5 certification of the insurance that is generally and reasonably
11-6 available as determined by the State Board of Insurance; or
11-7 (3) comply with other proof of financial
11-8 responsibility requirements adopted by rule of the department under
11-9 this chapter.
11-10 (d) The proof of financial responsibility required by this
11-11 section is not required to cover adverse effects to agricultural
11-12 crops, plants, or land being worked on by the commercial applicator
11-13 <A custom applier shall increase the amount of crop damage coverage
11-14 by $2,000 for each piece of spraying equipment used by the custom
11-15 applier>.
11-16 (e) The proof <A surety bond, certificate of deposit, letter
11-17 of credit, or other type> of financial responsibility required by
11-18 this section <security> must be approved by the department and
11-19 conditioned on compliance with this chapter and rules adopted under
11-20 this chapter.
11-21 (f) Except as otherwise provided by this section, the amount
11-22 of financial responsibility may not be less than $100,000 for
11-23 property damage and may not be less than $100,000 for bodily
11-24 injury. The commissioner by rule may require different amounts of
11-25 coverage for different classifications of operations under this
11-26 chapter. During the entire period for which a license is issued,
11-27 the coverage must be maintained at not less than the amount set by
12-1 the commissioner or the State Board of Insurance, as applicable
12-2 <Failure to perform the conditions of a bond, certificate of
12-3 deposit, letter of credit, or other type of financial security that
12-4 results in injury to any crop or valuable plants is grounds for
12-5 forfeiture of the financial security to the person owning the crop
12-6 or plants in a suit brought by the department or an interested
12-7 party>.
12-8 (g) At least 10 days before any reduction requested by a
12-9 licensee or a cancellation of a bond or liability insurance policy,
12-10 the party taking the action shall notify the commissioner. If the
12-11 party does not give that notice, the liability of the surety or
12-12 insurer is limited to the amount of the bond or liability insurance
12-13 policy <Except as otherwise provided by this section, the
12-14 department shall prescribe by rule requirements of crop damage
12-15 insurance policies, surety bonds, certificates of deposit, letters
12-16 of credit, or other types of financial security. The department
12-17 may adopt rules governing the conditions and handling of
12-18 certificates of deposit and letters of credit, but may not disburse
12-19 funds or release a certificate or letter except by consent of the
12-20 custom applier or pursuant to court order>.
12-21 (h) Except as provided by this subsection, the commissioner
12-22 may accept a bond or liability insurance policy in the amount
12-23 required by this section that has a deductible clause in an amount
12-24 of not more than $1,000 for the total amount of the bond or
12-25 liability insurance policy required by this section. If the
12-26 applicant has not satisfied the deductible amount in a prior legal
12-27 claim, the commissioner may not accept a bond or policy with a
13-1 deductible clause unless the applicant furnishes to the department
13-2 a surety bond that satisfies the amount of the deductible as to all
13-3 claims that may arise as a result of the applicant's operation <The
13-4 furnishing of a surety bond, crop damage insurance, or other proof
13-5 of financial responsibility does not limit any civil or criminal
13-6 liability incurred because of the negligent or unlawful use of a
13-7 herbicide>.
13-8 (i) If notified that the security furnished under this
13-9 section has become insufficient or otherwise unsatisfactory, a
13-10 commercial applicator immediately shall file a new bond, liability
13-11 insurance policy, or other proof of financial responsibility as
13-12 authorized by rule of the department. An individual holding a
13-13 commercial applicator's license may not operate as a commercial
13-14 applicator after receiving notice that the security is insufficient
13-15 or defective until the commercial applicator files new proof of
13-16 financial responsibility. Failure to file a bond, liability
13-17 insurance policy, or other proof of authorized financial
13-18 responsibility or failure to maintain the security in the required
13-19 amount is a ground for suspension or revocation of a commercial
13-20 applicator license.
13-21 (j) The commissioner by rule may prescribe acceptable proof
13-22 of financial responsibility and appropriate procedures to carry out
13-23 the purposes of this section. The commissioner may adopt rules
13-24 governing the conditions and handling of certificates of deposit
13-25 and letters of credit but may not disburse funds or release a
13-26 certificate or letter except with the consent of the commercial
13-27 applicator or pursuant to court order.
14-1 Sec. 75.015. REGULATED HERBICIDE COMPLAINT REPORT <NOTICE OF
14-2 EFFECTS OF HERBICIDE; INSPECTION>. (a) A person claiming adverse
14-3 effects from application of a regulated herbicide may file with the
14-4 department a written complaint report. To be eligible for
14-5 consideration by the department, the complaint report must be filed
14-6 before the 31st day after the date of the alleged application or,
14-7 if a growing crop is alleged to have been adversely affected,
14-8 before the earlier of the date that 25 percent of the crop has been
14-9 harvested or the 31st day. The complaint report must contain the
14-10 name of the person allegedly responsible for the application of the
14-11 regulated herbicide and the name of the owner or lessee of the land
14-12 on which the crop is grown and to which adverse effects are alleged
14-13 to have occurred. The department shall prepare a form to be
14-14 furnished to persons for use in filing complaint reports. The form
14-15 may contain other information that is required by the commissioner
14-16 <The department shall:>
14-17 <(1) inspect all crops reported to it as being
14-18 affected by a herbicide;>
14-19 <(2) inspect the area surrounding the crops to find
14-20 possible sources of drift; and>
14-21 <(3) report all findings concerning the affected
14-22 crops>.
14-23 (b) As soon as practicable after receiving a complaint
14-24 report, the department shall notify the licensee, the owner or
14-25 lessee of the land on which the alleged application occurred, and
14-26 any other person who may be charged with responsibility for the
14-27 adverse effects claimed. The department shall furnish copies of
15-1 the report to those people on request <If a person's crops or
15-2 plants are affected by drift of a hormone-type herbicide, the
15-3 person shall notify the department of the effect. The person shall
15-4 give notice before the crop is harvested or the plants are
15-5 destroyed, whichever occurs first>.
15-6 (c) The department may give a preliminary report to the
15-7 parties directly involved in the incident. In a case in which
15-8 adverse effects cannot be documented, the department shall give the
15-9 information to the complaining party and cease the investigation.
15-10 To assess any adverse effects, the complaining party shall permit
15-11 the department and the licensee to observe, within reasonable
15-12 hours, the land or nontarget organism alleged to have been
15-13 adversely affected <If notice is not given in accordance with
15-14 Subsection (b) of this section, it is presumed that there was no
15-15 effect of a hormone-type herbicide. This presumption is
15-16 rebuttable>.
15-17 (d) Failure to file a complaint report does not bar a civil
15-18 or criminal action from being filed and maintained. If a person
15-19 fails to file a report and is the only person claiming adverse
15-20 effects from the particular use or application of a regulated
15-21 herbicide, the department may, if in the public interest, refuse to
15-22 hold a hearing for the denial, suspension, or revocation of a
15-23 license issued under this chapter to the person alleged to have
15-24 caused the adverse effects.
15-25 Sec. 75.016. <EQUIPMENT LICENSE; FEE. (a) A custom applier
15-26 may not use equipment to apply a herbicide unless the equipment
15-27 first is inspected and licensed by the department.>
16-1 <(b) The department shall inspect a piece of equipment
16-2 before renewing an equipment license. If the equipment is used on
16-3 an aircraft, the department shall inspect the equipment:>
16-4 <(1) during each 30-day period while the equipment is
16-5 installed on the aircraft and is in use; or>
16-6 <(2) before the equipment is used, if removed from the
16-7 aircraft and reinstalled after the 30th day after the day on which
16-8 the equipment was last inspected.>
16-9 <(c) At the time of inspection, a custom applier shall pay
16-10 an inspection fee of $20 for each piece of equipment inspected.>
16-11 <(d) An equipment license expires on January 1 of each year.>
16-12 <Sec. 75.017.> Regulation of Equipment. The department by
16-13 rule may:
16-14 (1) provide requirements for all equipment regardless
16-15 of whether the equipment is required to be licensed; and
16-16 (2) regulate or prohibit the use of equipment that may
16-17 be hazardous in an area of the state<; and>
16-18 <(3) define what constitutes an installation of
16-19 equipment on an aircraft>.
16-20 Sec. 75.017 <75.018>. Rules. (a) As soon as practicable
16-21 <Before the 21st day> after receiving <the day on which the
16-22 department receives, from an interested person,> a written request
16-23 for a revision of a rule, an exemption from a requirement of this
16-24 chapter, or a prohibition of the spraying of a regulated herbicide
16-25 in an area, the department may <shall> hold a public hearing to
16-26 consider the request.
16-27 (b) <Before the 10th day before the day on which a hearing
17-1 required by this section is held, the department shall deliver
17-2 notice of the hearing to each holder of a permit or license in the
17-3 area affected by the hearing.>
17-4 <(c)> The department may not hold more than one hearing to
17-5 consider the condition of a particular area during a 90-day period
17-6 unless the department determines that more frequent hearings are
17-7 necessary.
17-8 (c) <(d)> The department may <shall> distribute in printed
17-9 form all rules of the department adopted under this chapter and may
17-10 <shall> deliver a copy of those rules to each applicant for a
17-11 permit or license.
17-12 Sec. 75.018 <75.019>. ENFORCEMENT. (a) The department
17-13 shall enforce this chapter and rules adopted under this chapter.
17-14 (b) If a county or district attorney refuses to act on
17-15 behalf of the department in its enforcement of this chapter or a
17-16 rule adopted under this chapter, the attorney general shall act on
17-17 the department's behalf.
17-18 Sec. 75.019 <75.020>. Employees. The department may employ
17-19 inspectors and other employees necessary for the proper enforcement
17-20 of this chapter and rules adopted under this chapter.
17-21 Sec. 75.020 <75.021>. County Herbicide Inspector. (a) The
17-22 commissioners court of each county may appoint and compensate
17-23 persons to be herbicide inspectors for the area designated by the
17-24 appointment.
17-25 (b) A county herbicide inspector shall cooperate with and
17-26 work under the supervision of the department in enforcing this
17-27 chapter and rules adopted under it.
18-1 (c) A county herbicide inspector has the powers of an
18-2 employee of the department.
18-3 Sec. 75.021. COUNTY REGULATIONS. <75.022. APPLICATION OF
18-4 CHAPTER. (a) Because there is no crop or vegetation of value
18-5 susceptible to damage in the area, Sections 75.006-75.017 of this
18-6 code do not apply to a county of this state, except Dawson County,
18-7 that lies north or west of:>
18-8 <(1) the southern boundaries of Andrews, Martin,
18-9 Howard, Mitchell, Nolan, Taylor, Callahan, and Eastland counties;>
18-10 <(2) the eastern boundaries of Eastland, Stephens, and
18-11 Young counties; and>
18-12 <(3) the southern and eastern boundaries of Clay
18-13 County.>
18-14 <(b) Sections 75.006-75.017 of this code do not apply to:
18-15 Bandera, Brewster, Brooks, Burnet, Cameron, Coleman, Coke, Concho,
18-16 Crane, Crockett, Dimmit, Duval, Edwards, Frio, Gillespie,
18-17 Glasscock, Hidalgo, Irion, Jeff Davis, Jim Hogg, Jim Wells, Kenedy,
18-18 Kerr, Kimble, Kinney, Kleberg, LaSalle, Lampasas, Llano, McCulloch,
18-19 McMullen, Mason, Maverick, Menard, Mills, Montague, Nueces, Panola,
18-20 Pecos, Presidio, Reagan, Real, Runnels, San Saba, Schleicher,
18-21 Starr, Sterling, Sutton, Terrell, Tom Green, Upton, Uvalde, Val
18-22 Verde, Webb, Willacy, Zapata, and Zavala counties.>
18-23 <(c) Sections 75.004-75.017 of this code do not apply to
18-24 Caldwell and Gonzales counties.>
18-25 <Sec. 75.023. REVOCATION AND REINSTATEMENT OF EXEMPTION.>
18-26 (a) If the commissioners court of a county <exempted by Section
18-27 75.022 of this code> determines that a crop or vegetation of value
19-1 that is susceptible to being adversely affected by the application
19-2 of a regulated herbicide <damage> exists in the county or a portion
19-3 of the county and evidences its determination by an appropriate
19-4 order entered in the minutes of the court, Sections 75.006-75.016
19-5 <75.017> of this code become effective in that county or portion of
19-6 the county on January 1 of the year following entry of the order
19-7 <immediately on entry of the order>.
19-8 (b) If the commissioners court of a county<, all or a part
19-9 of which has been removed from the exemption of Section 75.022 of
19-10 this code under Subsection (a) of this section,> determines that
19-11 there is no longer a crop or vegetation susceptible to being
19-12 adversely affected by the application of a regulated herbicide <to
19-13 damage> in that county or portion of the county, the court may
19-14 order that Sections 75.006-75.016 are no longer effective in the
19-15 county or portion of the county. The commissioners court shall
19-16 enter the order in the minutes of the court. The order takes
19-17 effect on January 1 of the year following entry of the order <the
19-18 exemption reinstated>.
19-19 (c) The department shall adopt rules concerning the use of a
19-20 regulated herbicide in a county in which a commissioners court has
19-21 entered an order under Subsection (a) of this section <If the
19-22 commissioners court of a county that is subject to this chapter
19-23 determines that there is no crop or vegetation of value susceptible
19-24 to damage in the county or a portion of the county, the court by
19-25 order may exempt the county or that portion of the county from the
19-26 application of Sections 75.006-75.017 of this code>.
19-27 (d) On request by a commissioners court of a county in which
20-1 Sections 75.006-75.016 of this code are in effect, and a
20-2 determination by the department that an emergency exists, the
20-3 department may suspend county regulations concerning the dates for
20-4 application of regulated herbicides. Only an imminent threat to
20-5 agricultural interests in a county that, if not immediately
20-6 addressed, would create a significant economic loss to producers
20-7 and ranchers in the county is an emergency for purposes of this
20-8 subsection <If a county or a portion of a county has been exempted
20-9 under Subsection (c) of this section, the commissioners court may
20-10 hold a hearing and enter an order revoking that exemption>.
20-11 (e) Before an order may be entered under this section, the
20-12 commissioners court shall hold a hearing to determine whether the
20-13 order should be issued. The hearing may be held only once each
20-14 year and only in the month of October, November, or December.
20-15 Before the 10th day before the day on which the hearing is to be
20-16 held, the commissioners court shall give notice of the hearing in
20-17 at least one newspaper in the county.
20-18 (f) Before the 21st day after the day on which an order is
20-19 entered, an interested person may appeal an order of a
20-20 commissioners court issued under this section to district court to
20-21 test the reasonableness of the commissioners court's fact-finding.
20-22 On appeal, the district court shall follow the rules governing
20-23 judicial review of contested cases under Section 19, Administrative
20-24 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
20-25 Civil Statutes), and shall apply the substantial evidence rule.
20-26 Appeals may be taken from the district court as in other civil
20-27 cases.
21-1 (g) <An order issued by the commissioners court under this
21-2 section becomes effective January 1 of the year following the date
21-3 of the hearing.>
21-4 <(h)> The commissioners court shall notify the department of
21-5 a change in the status of the <exemption of a> county or a portion
21-6 of a county under this section.
21-7 Sec. 75.022 <75.024>. Penalties. (a) A person commits an
21-8 offense if the person:
21-9 (1) applies a regulated herbicide without a permit in
21-10 violation of Section 75.006 of this code;
21-11 (2) acts in violation of Section 75.004(a) of this
21-12 code;
21-13 (3) has a permit to apply a powder or dry-type
21-14 regulated herbicide and applies a herbicide that does not meet the
21-15 requirements of Section 75.009 of this code;
21-16 (4) violates a rule adopted under <operates unlicensed
21-17 equipment in violation of> Section 75.016 of this code;
21-18 (5) fails to keep or submit records in violation of
21-19 Sections 75.005 and 75.013 of this code; or
21-20 (6) violates or fails to comply with a rule adopted
21-21 under this chapter.
21-22 (b) An offense under this section is a Class A misdemeanor.
21-23 (c) Section 76.1555 of this code, which provides for the
21-24 assessment of administrative penalties, applies to a person who
21-25 violates this chapter or a rule or order adopted by the department
21-26 under this chapter.
21-27 (d) A penalty provided by this section does not affect the
22-1 civil liability of a person convicted under this section.
22-2 SECTION 2. This Act takes effect September 1, 1993.
22-3 SECTION 3. The importance of this legislation and the
22-4 crowded condition of the calendars in both houses create an
22-5 emergency and an imperative public necessity that the
22-6 constitutional rule requiring bills to be read on three several
22-7 days in each house be suspended, and this rule is hereby suspended.