1-1 By: Turner of Coleman (Senate Sponsor - Sibley) H.B. No. 2242
1-2 (In the Senate - Received from the House May 12, 1993;
1-3 May 13, 1993, read first time and referred to Committee on Natural
1-4 Resources; May 21, 1993, reported favorably by the following vote:
1-5 Yeas 9, Nays 0; May 21, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Sims x
1-9 Truan x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Brown x
1-14 Carriker x
1-15 Lucio x
1-16 Montford x
1-17 Ratliff x
1-18 Shelley x
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to regulation of certain herbicides; providing penalties.
1-22 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-23 SECTION 1. Chapter 75, Agriculture Code, is amended to read
1-24 as follows:
1-25 CHAPTER 75. HERBICIDE REGULATION
1-26 Sec. 75.001. Purpose. The purpose of this chapter is to
1-27 regulate the distribution <sale>, use, and transportation of
1-28 certain herbicides to prevent a hazard to desirable vegetation.
1-29 Sec. 75.002. Definitions. In this chapter:
1-30 (1) "Application of a herbicide" means the spreading
1-31 of a herbicide on real property having a continuous boundary line.
1-32 (2) "Commercial applicator <Custom applier>" means a
1-33 person who applies a herbicide to land belonging to another person
1-34 <or plants> for hire.
1-35 (3) "Distribute" means to offer for sale, hold for
1-36 sale, sell, barter, or supply.
1-37 (4) "Equipment" means a device used to apply a
1-38 herbicide.
1-39 Sec. 75.003. REGULATED HERBICIDES. (a) After a public
1-40 hearing on the issue, and in accordance with Subsection (b) of this
1-41 section, the department by rule may adopt a list of regulated
1-42 herbicides for the state or for one or more designated areas in the
1-43 state <This chapter applies to the following herbicides:>
1-44 <(1) 2, 4-Dichlorophenoxyacetic Acid (2, 4-D);>
1-45 <(2) 2, 4, 5-Trichlorophenoxyacetic Acid (2, 4, 5-T);>
1-46 <(3) 2-Methyl-4-Chlorophenoxyacetic Acid (MCPA);>
1-47 <(4) 2-(2, 4, 5-Trichlorophenoxy) propionic Acid
1-48 (silvex);>
1-49 <(5) Polychlorinated benzoic acids; and>
1-50 <(6) derivatives and formulations of substances listed
1-51 by Subdivisions (1)-(5) of this subsection>.
1-52 (b) The department may include a herbicide on the list of
1-53 regulated herbicides if the department determines that, if used as
1-54 directed or in accordance with widespread and commonly recognized
1-55 practice, the herbicide requires additional restrictions to <To>
1-56 prevent a hazard to desirable vegetation through drift or other
1-57 uncontrolled application<, the department may, after a public
1-58 hearing, determine that this chapter applies to a substance, in
1-59 addition to those listed by Subsection (a) of this section, that is
1-60 used to control plants growing where they are not wanted>.
1-61 Sec. 75.004. Dealer's License. (a) A <Except as provided
1-62 by Subsection (b) of this section, a> person may not <sell,
1-63 wholesale,> distribute<, offer or expose for sale, exchange,
1-64 barter, or give away in this state,> a regulated herbicide <in a
1-65 container having a net capacity of more than 16 fluid ounces>
1-66 unless the person has a <first obtains a> dealer's license from the
1-67 department.
1-68 (b) A person must obtain a license for each location in the
2-1 state that is used for distribution. If the person does not have a
2-2 place of business in this state, the person may obtain one license
2-3 for all out-of-state locations, but must designate an agent for
2-4 service of process in this state before the department may issue
2-5 the license <is not required to be licensed if the container
2-6 described by Subsection (a) of this section:>
2-7 <(1) has a net capacity that does not exceed one
2-8 gallon;>
2-9 <(2) contains a substance with a concentration of
2-10 herbicide not exceeding 10 percent by volume; and>
2-11 <(3) bears a label stating that its contents are for
2-12 lawn use only>.
2-13 (c) A person must apply for a dealer's license under this
2-14 section on a form prescribed by the department <Except as provided
2-15 by this subsection, an application for a dealer's license must be
2-16 accompanied by a dealer's license fee for each warehouse or branch
2-17 of the applicant's business. If the applicant's principal office
2-18 keeps and reports satisfactory records for all subsidiary branches,
2-19 the applicant shall pay one license fee>.
2-20 (d) The department by rule shall set the fee for a dealer's
2-21 license in an amount not to exceed $100.
2-22 (e) A dealer's license expires December 31 <January 1> of
2-23 each year.
2-24 (f) A person who fails to submit a renewal fee on or before
2-25 the expiration date of the license must pay, in addition to the
2-26 renewal fee, the late fee provided by Section 12.024 of this code.
2-27 Sec. 75.005. RECORD OF DISTRIBUTION <SALE>. (a) A person
2-28 required to obtain a dealer's license by Section 75.004 of this
2-29 code shall record each distribution of a regulated <sale of a>
2-30 herbicide <that is sold in a container having a net capacity of
2-31 more than 16 fluid ounces> and shall keep a copy of the record for
2-32 at least two years after the date of the distribution <sale>.
2-33 (b) The department shall adopt rules that prescribe the
2-34 information to be stated in the records required by this section.
2-35 (c) The department may require that a copy of the records
2-36 required by this section be submitted periodically to the
2-37 department. The copies submitted to the department are public
2-38 information.
2-39 (d) The department may revoke a dealer's license if the
2-40 licensee fails to submit a copy of a record as required under
2-41 Subsection (c) of this section.
2-42 Sec. 75.0055. DENIAL, Revocation, Modification, or
2-43 Suspension of License. (a) The department may deny an application
2-44 for a dealer's license if the applicant fails to comply with this
2-45 chapter. The department shall revoke, modify, or suspend a
2-46 license, assess an administrative penalty, <suspend an
2-47 administrative penalty for good cause,> place on probation a person
2-48 whose license has been suspended, or reprimand a licensee for a
2-49 violation of this chapter <Section 75.005 of this code> or a rule
2-50 adopted by the department under this chapter <that section>.
2-51 (b) If a license suspension is probated, the department may
2-52 require the person to:
2-53 (1) report regularly to the department on matters that
2-54 are the basis of the probation;
2-55 (2) limit practice to the areas prescribed by the
2-56 department; or
2-57 (3) continue or renew professional education until the
2-58 person attains a degree of skill satisfactory to the department in
2-59 those areas that are the basis of the probation.
2-60 (c) If the department proposes to deny a person's
2-61 application for a license or revoke, modify, or suspend a person's
2-62 license, the person is entitled to a hearing before a hearings
2-63 officer designated by the department. The decision of the
2-64 department is appealable in the same manner as provided for
2-65 contested cases under the Administrative Procedure and Texas
2-66 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
2-67 Sec. 75.006. PERMIT<; FEE>. (a) Except as provided by
2-68 Subsection (b) of this section, during a period in which the
2-69 commissioners court of a county has determined, as provided by
2-70 Section 75.021(a) of this code, the existence in the county of a
3-1 crop or vegetation of value that is susceptible to being adversely
3-2 affected by the application of a regulated herbicide, a person must
3-3 obtain a permit from the department before applying the regulated
3-4 herbicide in the county <Except as provided by this section, a
3-5 person may not apply a herbicide to any land or plants unless the
3-6 person first obtains a permit to apply a herbicide from the
3-7 department>.
3-8 (b) The department may exempt from the permit requirement
3-9 under Subsection (a) of this section a county or portion of a
3-10 county during a period the department determines a crop or
3-11 vegetation of value susceptible to being adversely affected from
3-12 application of a regulated herbicide does not exist in the county
3-13 or portion of the county <An application for a permit to apply a
3-14 herbicide must be accompanied by a permit fee set by the department
3-15 in an amount not to exceed 10 cents an acre for the area to which
3-16 the herbicide is to be applied>.
3-17 (c) <A permit is not required if during any one year the
3-18 person applies a herbicide to a total acreage of 10 acres or less.>
3-19 <(d)> The department by rule may exempt from the permit <and
3-20 fee> requirement of this section:
3-21 (1) a particular type of application of a regulated
3-22 herbicide, including an application for structural pest control
3-23 purposes by an applicator licensed by the Texas Structural Pest
3-24 Control Board or a nurseryman licensed by the department in turf
3-25 weed control for structural pest control applications; or
3-26 (2) a governmental body.
3-27 (d) <(e)> If the department finds that a type of application
3-28 of a regulated herbicide does not create a hazard in a particular
3-29 area, the department by rule shall exempt that area from the permit
3-30 <and fee> requirement of this section.
3-31 (e) <(f)> A permit to apply a regulated herbicide <and
3-32 payment of the permit fee> is not required for experimental work
3-33 with a regulated herbicide by the department, a recognized college
3-34 or university, the United States Department of Agriculture, a
3-35 governmental body, or a public organization if the entity gives
3-36 written notice of the work to the department and does the work in
3-37 accordance with rules adopted by the department. The department
3-38 may exempt those entities from any other requirement of this
3-39 chapter or rule adopted under this chapter.
3-40 Sec. 75.007. Inspection Before Issuing Permit. Before
3-41 issuing a permit to spray a regulated herbicide, the department is
3-42 entitled to enter and inspect the area to be sprayed and the area
3-43 surrounding it.
3-44 Sec. 75.008. Types of Permits. The department may issue:
3-45 (1) an individual permit to apply a regulated
3-46 herbicide; or
3-47 (2) a blanket permit.
3-48 Sec. 75.009. Powder or Dry Herbicides. <(a)> The
3-49 department may not issue a permit to apply a powder or dry-type
3-50 regulated herbicide unless:
3-51 (1) all particles of the herbicide can pass through a
3-52 U.S. standard 10-mesh sieve; and
3-53 (2) not more than one percent of the particles can
3-54 pass through a U.S. standard 60-mesh sieve.
3-55 <(b) The holder of a permit to apply a powder or dry-type
3-56 herbicide may not apply a powder or dry-type herbicide that does
3-57 not meet the requirements of Subsection (a) of this section.>
3-58 Sec. 75.010. Term of Permit. <(a)> A permit to apply a
3-59 regulated herbicide expires:
3-60 (1) when the herbicide has been applied to the area
3-61 described by the permit;
3-62 (2) when all acreage for which the permit was granted
3-63 has been treated; or
3-64 (3) if the acreage is not treated, on the 180th day
3-65 after the day on which the permit was issued.
3-66 <(b) If a herbicide is not applied to acreage for which a
3-67 permit was issued, the person to whom the permit was issued, after
3-68 filing a request for a refund, shall receive a refund equal to the
3-69 amount of fees paid for acreage not treated.>
3-70 Sec. 75.011. Refusal, Amendment, or Revocation of Permit.
4-1 The department may amend, revoke, or refuse to grant a permit to
4-2 apply a regulated herbicide.
4-3 Sec. 75.012. APPLICATION OF REGULATED HERBICIDE. (a) If a
4-4 person applies a regulated herbicide, the person shall act in
4-5 accordance with rules adopted by the department, including rules
4-6 adopted under Subchapter E, Chapter 76, of this code regulating
4-7 application of pesticides that the department adapts to apply to
4-8 regulated herbicides.
4-9 (b) If a regulated herbicide is applied by a commercial
4-10 applicator <custom applier>, the person in control of the crop or
4-11 land to which the regulated herbicide is applied <for whom the
4-12 application of a herbicide is made> and the commercial applicator
4-13 <custom applier shall> jointly are responsible for ensuring that
4-14 <supervise> the application is in compliance with this chapter and
4-15 the rules adopted by the department <under Subsection (a) of this
4-16 section>.
4-17 (c) <Regardless of whether a permit for the application of a
4-18 herbicide is required under this chapter, each person before
4-19 spraying a herbicide on land or plants, other than a lawn, shall:>
4-20 <(1) give notice of intent to spray; and>
4-21 <(2) submit a record of the spraying in accordance
4-22 with rules of the department.>
4-23 <(d)> If the department finds that an application of a
4-24 regulated herbicide is hazardous to crops or valuable plants in an
4-25 area, the department may prohibit the application of a regulated
4-26 herbicide in that area for the period during which the hazard
4-27 exists.
4-28 Sec. 75.013. APPLICATOR'S <APPLIER'S> RECORDS. (a) Except
4-29 as provided by Subsection (d) of this section, each person who
4-30 applies a regulated herbicide shall record each application of a
4-31 regulated herbicide that he or she makes and shall keep a copy of
4-32 the records for at least two years after the date the application
4-33 was made.
4-34 (b) The department shall adopt rules that prescribe the
4-35 information to be stated in the records required by this section.
4-36 (c) <To be eligible to hold a valid permit to apply a
4-37 herbicide, a person must submit to the department, within a period
4-38 prescribed by rule of the department, the record of each
4-39 application of a herbicide made by the person.> The department may
4-40 require all persons who apply a regulated herbicide to submit
4-41 periodically to the department a copy of the records required by
4-42 this section.
4-43 (d) A person, other than a commercial applicator <custom
4-44 applier>, who applies a regulated herbicide to a lawn is not
4-45 required to make and keep the records required by Subsection (a) of
4-46 this section for that application of a herbicide.
4-47 Sec. 75.014. PROOF OF FINANCIAL RESPONSIBILITY <CROP DAMAGE
4-48 PROTECTION>. (a) Except as otherwise provided by this section,
4-49 each applicant for a commercial applicator's license <custom
4-50 applier> shall file with the department:
4-51 (1) <deposit with the department> a <surety> bond
4-52 executed by the applicant as principal and by a corporate surety
4-53 licensed to do business in Texas as surety <approved by the
4-54 department in the amount of $20,000 plus $2,000 for each piece of
4-55 spraying equipment licensed for use by the custom applier>; or
4-56 (2) <subscribe for and hold> a liability insurance
4-57 policy or certification of a policy protecting people who may
4-58 suffer adverse effects as a result of the applicant's operations
4-59 <of crop damage insurance approved by the department with coverage
4-60 in the amount described by Subdivision (1) of this subsection>.
4-61 (b) If an applicant <a custom applier> cannot reasonably
4-62 obtain insurance coverage or a bond as specified by Subsection (a)
4-63 of this section, the department shall accept a certificate of
4-64 deposit or a letter of credit that meets the requirements of
4-65 Subsection (c)(1) and rules adopted under Subsection (e) of this
4-66 section.
4-67 (c) If the State Board of Insurance determines after giving
4-68 notice to the department that the liability <crop damage> insurance
4-69 policy required by Subsection (a)(2) of this section is not
4-70 generally and reasonably available to commercial applicators
5-1 <custom appliers>, then in lieu of the requirements of Subsection
5-2 (a) of this section, the applicant <a custom applier> may:
5-3 (1) tender from a state or federal financial
5-4 institution whose deposits are insured by the Federal Deposit
5-5 Insurance Corporation <or by the Federal Savings and Loan Insurance
5-6 Corporation> a certificate of deposit or letter of credit in the
5-7 amounts prescribed by Subsection (f) <(a)> of this section, made
5-8 payable to the department and issued for the purpose of protecting
5-9 people who may suffer adverse effects as a result of the operations
5-10 of the commercial applicator <crop damage protection>;
5-11 (2) file a property damage and personal injury
5-12 <subscribe for and hold crop damage> insurance policy or
5-13 certification of the insurance that is generally and reasonably
5-14 available as determined by the State Board of Insurance; or
5-15 (3) comply with other proof of financial
5-16 responsibility requirements adopted by rule of the department under
5-17 this chapter.
5-18 (d) The proof of financial responsibility required by this
5-19 section is not required to cover adverse effects to agricultural
5-20 crops, plants, or land being worked on by the commercial applicator
5-21 <A custom applier shall increase the amount of crop damage coverage
5-22 by $2,000 for each piece of spraying equipment used by the custom
5-23 applier>.
5-24 (e) The proof <A surety bond, certificate of deposit, letter
5-25 of credit, or other type> of financial responsibility required by
5-26 this section <security> must be approved by the department and
5-27 conditioned on compliance with this chapter and rules adopted under
5-28 this chapter.
5-29 (f) Except as otherwise provided by this section, the amount
5-30 of financial responsibility may not be less than $100,000 for
5-31 property damage and may not be less than $100,000 for bodily
5-32 injury. The commissioner by rule may require different amounts of
5-33 coverage for different classifications of operations under this
5-34 chapter. During the entire period for which a license is issued,
5-35 the coverage must be maintained at not less than the amount set by
5-36 the commissioner or the State Board of Insurance, as applicable
5-37 <Failure to perform the conditions of a bond, certificate of
5-38 deposit, letter of credit, or other type of financial security that
5-39 results in injury to any crop or valuable plants is grounds for
5-40 forfeiture of the financial security to the person owning the crop
5-41 or plants in a suit brought by the department or an interested
5-42 party>.
5-43 (g) At least 10 days before any reduction requested by a
5-44 licensee or a cancellation of a bond or liability insurance policy,
5-45 the party taking the action shall notify the commissioner. If the
5-46 party does not give that notice, the liability of the surety or
5-47 insurer is limited to the amount of the bond or liability insurance
5-48 policy <Except as otherwise provided by this section, the
5-49 department shall prescribe by rule requirements of crop damage
5-50 insurance policies, surety bonds, certificates of deposit, letters
5-51 of credit, or other types of financial security. The department
5-52 may adopt rules governing the conditions and handling of
5-53 certificates of deposit and letters of credit, but may not disburse
5-54 funds or release a certificate or letter except by consent of the
5-55 custom applier or pursuant to court order>.
5-56 (h) Except as provided by this subsection, the commissioner
5-57 may accept a bond or liability insurance policy in the amount
5-58 required by this section that has a deductible clause in an amount
5-59 of not more than $1,000 for the total amount of the bond or
5-60 liability insurance policy required by this section. If the
5-61 applicant has not satisfied the deductible amount in a prior legal
5-62 claim, the commissioner may not accept a bond or policy with a
5-63 deductible clause unless the applicant furnishes to the department
5-64 a surety bond that satisfies the amount of the deductible as to all
5-65 claims that may arise as a result of the applicant's operation <The
5-66 furnishing of a surety bond, crop damage insurance, or other proof
5-67 of financial responsibility does not limit any civil or criminal
5-68 liability incurred because of the negligent or unlawful use of a
5-69 herbicide>.
5-70 (i) If notified that the security furnished under this
6-1 section has become insufficient or otherwise unsatisfactory, a
6-2 commercial applicator immediately shall file a new bond, liability
6-3 insurance policy, or other proof of financial responsibility as
6-4 authorized by rule of the department. An individual holding a
6-5 commercial applicator's license may not operate as a commercial
6-6 applicator after receiving notice that the security is insufficient
6-7 or defective until the commercial applicator files new proof of
6-8 financial responsibility. Failure to file a bond, liability
6-9 insurance policy, or other proof of authorized financial
6-10 responsibility or failure to maintain the security in the required
6-11 amount is a ground for suspension or revocation of a commercial
6-12 applicator license.
6-13 (j) The commissioner by rule may prescribe acceptable proof
6-14 of financial responsibility and appropriate procedures to carry out
6-15 the purposes of this section. The commissioner may adopt rules
6-16 governing the conditions and handling of certificates of deposit
6-17 and letters of credit but may not disburse funds or release a
6-18 certificate or letter except with the consent of the commercial
6-19 applicator or pursuant to court order.
6-20 Sec. 75.015. REGULATED HERBICIDE COMPLAINT REPORT <NOTICE OF
6-21 EFFECTS OF HERBICIDE; INSPECTION>. (a) A person claiming adverse
6-22 effects from application of a regulated herbicide may file with the
6-23 department a written complaint report. To be eligible for
6-24 consideration by the department, the complaint report must be filed
6-25 before the 31st day after the date of the alleged application or,
6-26 if a growing crop is alleged to have been adversely affected,
6-27 before the earlier of the date that 25 percent of the crop has been
6-28 harvested or the 31st day. The complaint report must contain the
6-29 name of the person allegedly responsible for the application of the
6-30 regulated herbicide and the name of the owner or lessee of the land
6-31 on which the crop is grown and to which adverse effects are alleged
6-32 to have occurred. The department shall prepare a form to be
6-33 furnished to persons for use in filing complaint reports. The form
6-34 may contain other information that is required by the commissioner
6-35 <The department shall:>
6-36 <(1) inspect all crops reported to it as being
6-37 affected by a herbicide;>
6-38 <(2) inspect the area surrounding the crops to find
6-39 possible sources of drift; and>
6-40 <(3) report all findings concerning the affected
6-41 crops>.
6-42 (b) As soon as practicable after receiving a complaint
6-43 report, the department shall notify the licensee, the owner or
6-44 lessee of the land on which the alleged application occurred, and
6-45 any other person who may be charged with responsibility for the
6-46 adverse effects claimed. The department shall furnish copies of
6-47 the report to those people on request <If a person's crops or
6-48 plants are affected by drift of a hormone-type herbicide, the
6-49 person shall notify the department of the effect. The person shall
6-50 give notice before the crop is harvested or the plants are
6-51 destroyed, whichever occurs first>.
6-52 (c) The department may give a preliminary report to the
6-53 parties directly involved in the incident. In a case in which
6-54 adverse effects cannot be documented, the department shall give the
6-55 information to the complaining party and cease the investigation.
6-56 To assess any adverse effects, the complaining party shall permit
6-57 the department and the licensee to observe, within reasonable
6-58 hours, the land or nontarget organism alleged to have been
6-59 adversely affected <If notice is not given in accordance with
6-60 Subsection (b) of this section, it is presumed that there was no
6-61 effect of a hormone-type herbicide. This presumption is
6-62 rebuttable>.
6-63 (d) Failure to file a complaint report does not bar a civil
6-64 or criminal action from being filed and maintained. If a person
6-65 fails to file a report and is the only person claiming adverse
6-66 effects from the particular use or application of a regulated
6-67 herbicide, the department may, if in the public interest, refuse to
6-68 hold a hearing for the denial, suspension, or revocation of a
6-69 license issued under this chapter to the person alleged to have
6-70 caused the adverse effects.
7-1 Sec. 75.016. <EQUIPMENT LICENSE; FEE. (a) A custom applier
7-2 may not use equipment to apply a herbicide unless the equipment
7-3 first is inspected and licensed by the department.>
7-4 <(b) The department shall inspect a piece of equipment
7-5 before renewing an equipment license. If the equipment is used on
7-6 an aircraft, the department shall inspect the equipment:>
7-7 <(1) during each 30-day period while the equipment is
7-8 installed on the aircraft and is in use; or>
7-9 <(2) before the equipment is used, if removed from the
7-10 aircraft and reinstalled after the 30th day after the day on which
7-11 the equipment was last inspected.>
7-12 <(c) At the time of inspection, a custom applier shall pay
7-13 an inspection fee of $20 for each piece of equipment inspected.>
7-14 <(d) An equipment license expires on January 1 of each year.>
7-15 <Sec. 75.017.> Regulation of Equipment. The department by
7-16 rule may:
7-17 (1) provide requirements for all equipment regardless
7-18 of whether the equipment is required to be licensed; and
7-19 (2) regulate or prohibit the use of equipment that may
7-20 be hazardous in an area of the state<; and>
7-21 <(3) define what constitutes an installation of
7-22 equipment on an aircraft>.
7-23 Sec. 75.017 <75.018>. Rules. (a) As soon as practicable
7-24 <Before the 21st day> after receiving <the day on which the
7-25 department receives, from an interested person,> a written request
7-26 for a revision of a rule, an exemption from a requirement of this
7-27 chapter, or a prohibition of the spraying of a regulated herbicide
7-28 in an area, the department may <shall> hold a public hearing to
7-29 consider the request.
7-30 (b) <Before the 10th day before the day on which a hearing
7-31 required by this section is held, the department shall deliver
7-32 notice of the hearing to each holder of a permit or license in the
7-33 area affected by the hearing.>
7-34 <(c)> The department may not hold more than one hearing to
7-35 consider the condition of a particular area during a 90-day period
7-36 unless the department determines that more frequent hearings are
7-37 necessary.
7-38 (c) <(d)> The department may <shall> distribute in printed
7-39 form all rules of the department adopted under this chapter and may
7-40 <shall> deliver a copy of those rules to each applicant for a
7-41 permit or license.
7-42 Sec. 75.018 <75.019>. ENFORCEMENT. (a) The department
7-43 shall enforce this chapter and rules adopted under this chapter.
7-44 (b) If a county or district attorney refuses to act on
7-45 behalf of the department in its enforcement of this chapter or a
7-46 rule adopted under this chapter, the attorney general shall act on
7-47 the department's behalf.
7-48 Sec. 75.019 <75.020>. Employees. The department may employ
7-49 inspectors and other employees necessary for the proper enforcement
7-50 of this chapter and rules adopted under this chapter.
7-51 Sec. 75.020 <75.021>. County Herbicide Inspector. (a) The
7-52 commissioners court of each county may appoint and compensate
7-53 persons to be herbicide inspectors for the area designated by the
7-54 appointment.
7-55 (b) A county herbicide inspector shall cooperate with and
7-56 work under the supervision of the department in enforcing this
7-57 chapter and rules adopted under it.
7-58 (c) A county herbicide inspector has the powers of an
7-59 employee of the department.
7-60 Sec. 75.021. COUNTY REGULATIONS. <75.022. APPLICATION OF
7-61 CHAPTER. (a) Because there is no crop or vegetation of value
7-62 susceptible to damage in the area, Sections 75.006-75.017 of this
7-63 code do not apply to a county of this state, except Dawson County,
7-64 that lies north or west of:>
7-65 <(1) the southern boundaries of Andrews, Martin,
7-66 Howard, Mitchell, Nolan, Taylor, Callahan, and Eastland counties;>
7-67 <(2) the eastern boundaries of Eastland, Stephens, and
7-68 Young counties; and>
7-69 <(3) the southern and eastern boundaries of Clay
7-70 County.>
8-1 <(b) Sections 75.006-75.017 of this code do not apply to:
8-2 Bandera, Brewster, Brooks, Burnet, Cameron, Coleman, Coke, Concho,
8-3 Crane, Crockett, Dimmit, Duval, Edwards, Frio, Gillespie,
8-4 Glasscock, Hidalgo, Irion, Jeff Davis, Jim Hogg, Jim Wells, Kenedy,
8-5 Kerr, Kimble, Kinney, Kleberg, LaSalle, Lampasas, Llano, McCulloch,
8-6 McMullen, Mason, Maverick, Menard, Mills, Montague, Nueces, Panola,
8-7 Pecos, Presidio, Reagan, Real, Runnels, San Saba, Schleicher,
8-8 Starr, Sterling, Sutton, Terrell, Tom Green, Upton, Uvalde, Val
8-9 Verde, Webb, Willacy, Zapata, and Zavala counties.>
8-10 <(c) Sections 75.004-75.017 of this code do not apply to
8-11 Caldwell and Gonzales counties.>
8-12 <Sec. 75.023. REVOCATION AND REINSTATEMENT OF EXEMPTION.>
8-13 (a) If the commissioners court of a county <exempted by Section
8-14 75.022 of this code> determines that a crop or vegetation of value
8-15 that is susceptible to being adversely affected by the application
8-16 of a regulated herbicide <damage> exists in the county or a portion
8-17 of the county and evidences its determination by an appropriate
8-18 order entered in the minutes of the court, Sections 75.006-75.016
8-19 <75.017> of this code become effective in that county or portion of
8-20 the county on January 1 of the year following entry of the order
8-21 <immediately on entry of the order>.
8-22 (b) If the commissioners court of a county<, all or a part
8-23 of which has been removed from the exemption of Section 75.022 of
8-24 this code under Subsection (a) of this section,> determines that
8-25 there is no longer a crop or vegetation susceptible to being
8-26 adversely affected by the application of a regulated herbicide <to
8-27 damage> in that county or portion of the county, the court may
8-28 order that Sections 75.006-75.016 are no longer effective in the
8-29 county or portion of the county. The commissioners court shall
8-30 enter the order in the minutes of the court. The order takes
8-31 effect on January 1 of the year following entry of the order <the
8-32 exemption reinstated>.
8-33 (c) The department shall adopt rules concerning the use of a
8-34 regulated herbicide in a county in which a commissioners court has
8-35 entered an order under Subsection (a) of this section <If the
8-36 commissioners court of a county that is subject to this chapter
8-37 determines that there is no crop or vegetation of value susceptible
8-38 to damage in the county or a portion of the county, the court by
8-39 order may exempt the county or that portion of the county from the
8-40 application of Sections 75.006-75.017 of this code>.
8-41 (d) On request by a commissioners court of a county in which
8-42 Sections 75.006-75.016 of this code are in effect, and a
8-43 determination by the department that an emergency exists, the
8-44 department may suspend county regulations concerning the dates for
8-45 application of regulated herbicides. Only an imminent threat to
8-46 agricultural interests in a county that, if not immediately
8-47 addressed, would create a significant economic loss to producers
8-48 and ranchers in the county is an emergency for purposes of this
8-49 subsection <If a county or a portion of a county has been exempted
8-50 under Subsection (c) of this section, the commissioners court may
8-51 hold a hearing and enter an order revoking that exemption>.
8-52 (e) Before an order may be entered under this section, the
8-53 commissioners court shall hold a hearing to determine whether the
8-54 order should be issued. The hearing may be held only once each
8-55 year and only in the month of October, November, or December.
8-56 Before the 10th day before the day on which the hearing is to be
8-57 held, the commissioners court shall give notice of the hearing in
8-58 at least one newspaper in the county.
8-59 (f) Before the 21st day after the day on which an order is
8-60 entered, an interested person may appeal an order of a
8-61 commissioners court issued under this section to district court to
8-62 test the reasonableness of the commissioners court's fact-finding.
8-63 On appeal, the district court shall follow the rules governing
8-64 judicial review of contested cases under Section 19, Administrative
8-65 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
8-66 Civil Statutes), and shall apply the substantial evidence rule.
8-67 Appeals may be taken from the district court as in other civil
8-68 cases.
8-69 (g) <An order issued by the commissioners court under this
8-70 section becomes effective January 1 of the year following the date
9-1 of the hearing.>
9-2 <(h)> The commissioners court shall notify the department of
9-3 a change in the status of the <exemption of a> county or a portion
9-4 of a county under this section.
9-5 Sec. 75.022 <75.024>. Penalties. (a) A person commits an
9-6 offense if the person:
9-7 (1) applies a regulated herbicide without a permit in
9-8 violation of Section 75.006 of this code;
9-9 (2) acts in violation of Section 75.004(a) of this
9-10 code;
9-11 (3) has a permit to apply a powder or dry-type
9-12 regulated herbicide and applies a herbicide that does not meet the
9-13 requirements of Section 75.009 of this code;
9-14 (4) violates a rule adopted under <operates unlicensed
9-15 equipment in violation of> Section 75.016 of this code;
9-16 (5) fails to keep or submit records in violation of
9-17 Sections 75.005 and 75.013 of this code; or
9-18 (6) violates or fails to comply with a rule adopted
9-19 under this chapter.
9-20 (b) An offense under this section is a Class A misdemeanor.
9-21 (c) Section 76.1555 of this code, which provides for the
9-22 assessment of administrative penalties, applies to a person who
9-23 violates this chapter or a rule or order adopted by the department
9-24 under this chapter.
9-25 (d) A penalty provided by this section does not affect the
9-26 civil liability of a person convicted under this section.
9-27 SECTION 2. This Act takes effect September 1, 1993.
9-28 SECTION 3. The importance of this legislation and the
9-29 crowded condition of the calendars in both houses create an
9-30 emergency and an imperative public necessity that the
9-31 constitutional rule requiring bills to be read on three several
9-32 days in each house be suspended, and this rule is hereby suspended.
9-33 * * * * *
9-34 Austin,
9-35 Texas
9-36 May 21, 1993
9-37 Hon. Bob Bullock
9-38 President of the Senate
9-39 Sir:
9-40 We, your Committee on Natural Resources to which was referred H.B.
9-41 No. 2242, have had the same under consideration, and I am
9-42 instructed to report it back to the Senate with the recommendation
9-43 that it do pass and be printed.
9-44 Sims,
9-45 Chairman
9-46 * * * * *
9-47 WITNESSES
9-48 FOR AGAINST ON
9-49 ___________________________________________________________________
9-50 Name: Durwood Tucker x
9-51 Representing: Texas Farm Bureau
9-52 City: Austin, TX
9-53 -------------------------------------------------------------------
9-54 Name: Jimmy D. Bush x
9-55 Representing: TX Department of Agriculture
9-56 City: Austin, TX
9-57 -------------------------------------------------------------------
9-58 Name: Steve B. Bearden x
9-59 Representing: TX Department of Agriculture
9-60 City: Austin, TX
9-61 -------------------------------------------------------------------