By Cuellar of Hidalgo H.B. No. 2489
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the handling and marketing of citrus fruits and
1-3 vegetables and to the produce recovery fund.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 101.003, Agriculture Code, is amended by
1-6 amending Subsection (b) and adding Subsection (c) to read as
1-7 follows:
1-8 (b) This section does not apply to<:>
1-9 <(1) a retailer, unless the retailer:>
1-10 <(A) has annual sales of vegetables and citrus
1-11 fruit that comprise 75 percent or more of the retailer's total
1-12 sales; or>
1-13 <(B) employs a buying agent who buys directly
1-14 from a producer; or>
1-15 <(2)> a producer who handles or deals exclusively in
1-16 the producer's own products.
1-17 (c) A person who holds a license under this section is also
1-18 considered, without paying an additional fee, to hold a license
1-19 under Section 102.003 of this code.
1-20 SECTION 2. Section 101.004(b), Agriculture Code, is amended
1-21 to read as follows:
1-22 (b) A person shall apply for licensing as a <commission>
1-23 merchant if the person:
1-24 (1) purchases vegetables on credit;
2-1 (2) takes possession of vegetables for consignment or
2-2 handling on behalf of the producer or owner of the vegetables; or
2-3 (3) takes possession of vegetables for consignment or
2-4 handling in a manner that does not require or result in payment to
2-5 the producer, seller, or consignor of the full amount of the
2-6 purchase price in United States currency at the time of delivery or
2-7 at the time that the vegetables pass from the producer, seller, or
2-8 consignor to the person.
2-9 SECTION 3. Section 101.006(a), Agriculture Code, is amended
2-10 to read as follows:
2-11 (a) A <Except as otherwise provided by this section, a>
2-12 person applying for a license as a merchant shall include with the
2-13 license application a license fee of $100 <$75>.
2-14 SECTION 4. Sections 101.010(a) and (b), Agriculture Code,
2-15 are amended to read as follows:
2-16 (a) In accordance with the rules of the department, a person
2-17 licensed as a <commission> merchant <or retailer> may apply to the
2-18 department for a reasonable number of identification cards for:
2-19 (1) transporting agents to act for the license holder
2-20 <licensee> in the transporting of vegetables; and
2-21 (2) buying agents to act for the license holder
2-22 <licensee> in any act requiring licensing under Section 101.003 of
2-23 this code.
2-24 (b) The department may collect a fee not to exceed $5 for
2-25 each card and shall issue transporting agent cards in a color
2-26 different from buying agent cards.
2-27 SECTION 5. Section 101.020(a), Agriculture Code, is amended
3-1 to read as follows:
3-2 (a) A person commits an offense if the person:
3-3 (1) acts in violation of Section 101.003 of this code
3-4 without first obtaining a license or after receiving notice of
3-5 cancellation of a license;
3-6 (2) acts or assumes to act as a <commission> merchant
3-7 without first obtaining a license as a <commission> merchant;
3-8 (3) acts or assumes to act as a transporting agent or
3-9 buying agent without first obtaining an identification card;
3-10 (4) as a transporting agent or buying agent, fails and
3-11 refuses to turn over to the department an identification card in
3-12 accordance with Section 101.010(e) of this code;
3-13 (5) as a license holder <licensee>, fails to furnish
3-14 information under Section 101.017 of this code before the 11th day
3-15 following the date of demand;
3-16 (6) as a license holder <licensee>, fails to settle
3-17 with a producer or seller on the grade and quality of vegetables in
3-18 the manner provided by Section 101.015 of this code;
3-19 (7) as a cash dealer, pays for vegetables by a means
3-20 other than United States currency;
3-21 (8) as a license holder <licensee>, transporting
3-22 agent, or buying agent, violates a provision of this chapter;
3-23 <(9) acts or assumes to act as a retailer without
3-24 first obtaining a license as a retailer;> or
3-25 (9) <(10)> acts or assumes to act as a cash dealer
3-26 without first obtaining a license as a cash dealer.
3-27 SECTION 6. Section 102.003, Agriculture Code, is amended by
4-1 amending Subsection (b) and adding Subsection (c) to read as
4-2 follows:
4-3 (b) This section does not apply to:
4-4 (1) <a retailer, unless the retailer:>
4-5 <(A) has annual sales of citrus fruit and
4-6 vegetables that comprise 75 percent or more of the retailer's total
4-7 sales; or>
4-8 <(B) employs a buying agent who buys directly
4-9 from a producer;>
4-10 <(2)> a person shipping less than six standard boxes
4-11 of citrus fruit in any one separate shipment;
4-12 (2) <(3)> a person who ships a noncommercial shipment
4-13 of citrus fruit; or
4-14 (3) <(4)> a producer who handles or deals exclusively
4-15 in the producer's own products.
4-16 (c) A person who holds a license under this section is also
4-17 considered, without paying an additional fee, to hold a license
4-18 under Section 101.003 of this code.
4-19 SECTION 7. Section 102.004(b), Agriculture Code, is amended
4-20 to read as follows:
4-21 (b) A person shall apply for licensing as a <commission>
4-22 merchant if the person:
4-23 (1) purchases citrus fruit on credit;
4-24 (2) takes possession of citrus fruit for consignment
4-25 or handling on behalf of the producer or owner of the fruit; or
4-26 (3) takes possession of citrus fruit for consignment
4-27 or handling in a manner or under a contract that does not require
5-1 or result in payment to the producer, seller, or consignor of the
5-2 full amount of the purchase price in United States currency at the
5-3 time of delivery or at the time the citrus fruit passes from the
5-4 producer or seller to the person.
5-5 SECTION 8. Section 102.006(a), Agriculture Code, is amended
5-6 to read as follows:
5-7 (a) A <Except as otherwise provided by this section, a>
5-8 person applying for a license as a merchant shall include with the
5-9 license application a license fee of $100 <$75>.
5-10 SECTION 9. Sections 102.010(a) and (b), Agriculture Code,
5-11 are amended to read as follows:
5-12 (a) In accordance with the rules of the department, a person
5-13 licensed as a <commission> merchant <or retailer> may apply to the
5-14 department for a reasonable number of identification cards for:
5-15 (1) transporting agents to act for the license holder
5-16 <licensee> in the transporting of citrus fruits; and
5-17 (2) buying agents to act for the license holder
5-18 <licensee> in any act requiring licensing under Section 102.003 of
5-19 this code.
5-20 (b) The department may collect a fee not to exceed $1 for
5-21 each card and shall issue transporting agent cards in a color
5-22 different from buying agent cards.
5-23 SECTION 10. Section 102.021(a), Agriculture Code, is amended
5-24 to read as follows:
5-25 (a) A person commits an offense if the person:
5-26 (1) acts in violation of Section 102.003 of this code
5-27 without a license or after receiving notice of cancellation of a
6-1 license;
6-2 (2) acts or assumes to act as a <commission> merchant
6-3 without a license as a <commission> merchant;
6-4 (3) acts or assumes to act as a transporting agent or
6-5 buying agent without an identification card or after receiving
6-6 notice of cancellation of an identification card;
6-7 (4) as a transporting agent or buying agent, fails and
6-8 refuses to turn over to the department an identification card in
6-9 accordance with Section 102.010(e) of this code;
6-10 (5) as a license holder <licensee>, fails to furnish
6-11 information under Section 102.018 of this code before the 11th day
6-12 following the date of demand;
6-13 (6) as a license holder <licensee>, buys citrus fruit
6-14 by weight and does not have the fruit weighed on state-tested
6-15 scales;
6-16 (7) as a license holder <licensee>, fails to settle
6-17 with a producer or seller on the grade and quality of citrus fruit
6-18 in the manner provided by Section 102.015 of this code;
6-19 (8) as a cash dealer, pays for citrus fruit by a means
6-20 other than United States currency;
6-21 (9) fails to maintain records required by Section
6-22 102.017(b) of this code;
6-23 (10) as a license holder <licensee>, transporting
6-24 agent, or buying agent, violates a provision of this subchapter;
6-25 <(11) acts or assumes to act as a retailer without a
6-26 license as a retailer;> or
6-27 (11) <(12)> acts or assumes to act as a cash dealer
7-1 without a license as a cash dealer.
7-2 SECTION 11. Section 103.002(a), Agriculture Code, is amended
7-3 to read as follows:
7-4 (a) The produce recovery fund is a special trust fund with
7-5 the state treasurer administered by the department, without
7-6 appropriation, for the payment of claims against <commission>
7-7 merchants <and retailers> licensed under Chapter 101 or 102 of this
7-8 code.
7-9 SECTION 12. Section 103.005, Agriculture Code, is amended to
7-10 read as follows:
7-11 Sec. 103.005. Initiation of Claim. (a) A person who deals
7-12 with a <commission> merchant <or retailer> licensed under Chapter
7-13 101 or 102 of this code in the purchasing, handling, selling, and
7-14 accounting for sales of vegetables or citrus fruit and who is
7-15 aggrieved by an action of the <commission> merchant <or retailer>
7-16 as a result of a violation of terms or conditions of a contract
7-17 made by the <commission> merchant <or retailer> may initiate a
7-18 claim against the fund by filing with the department:
7-19 (1) a sworn complaint against the <commission>
7-20 merchant <or retailer>; and
7-21 (2) a filing fee of $15.
7-22 (b) A complaint and the fee under Subsection (a) of this
7-23 section must be filed on or before the first anniversary of the
7-24 date of the violation, or recovery from the fund is barred.
7-25 SECTION 13. Section 103.0055, Agriculture Code, is amended
7-26 to read as follows:
7-27 Sec. 103.0055. Bankruptcy of Merchant or Retailer. For
8-1 purposes of this chapter, the amount due an aggrieved party by a
8-2 <commission> merchant <or retailer> is not affected by a final
8-3 judgment of a bankruptcy court that releases the <commission>
8-4 merchant <or retailer> from the legal duty to satisfy the claim.
8-5 SECTION 14. Section 103.006(a), Agriculture Code, is amended
8-6 to read as follows:
8-7 (a) After a claim is initiated, the department shall
8-8 investigate the complaint and determine the amount due the
8-9 aggrieved party. If the amount determined by the department is
8-10 disputed by the <commission> merchant <or retailer> or the
8-11 aggrieved party, the board shall conduct a hearing on the claim and
8-12 determine the amount due the aggrieved party.
8-13 SECTION 15. Section 103.007(a), Agriculture Code, is amended
8-14 to read as follows:
8-15 (a) If the amount determined by the department's
8-16 investigation to be due the aggrieved party is not disputed by the
8-17 <commission> merchant <or retailer> or the aggrieved party, the
8-18 department shall pay the claim within the limits prescribed by this
8-19 chapter.
8-20 SECTION 16. Section 103.008, Agriculture Code, is amended by
8-21 amending Subsections (b), (c), and (d) and adding Subsection (f) to
8-22 read as follows:
8-23 (b) The total payment of all claims filed by a claimant and
8-24 arising from all contracts and all transactions executed between
8-25 that claimant and a single merchant during a single license year
8-26 <the same transaction> may not exceed $20,000.
8-27 (c) The total payment of claims against a single
9-1 <commission> merchant <or retailer> may not exceed $50,000 in any
9-2 one year.
9-3 (d) The department may not pay a claim against:
9-4 (1) a <commission> merchant <or retailer> who was not
9-5 licensed on the date the contract <at the time of the transaction>
9-6 on which the claim is based was executed; or
9-7 (2) a cash dealer licensed under Chapter 101 or 102 of
9-8 this code.
9-9 (f) If a merchant owes money to the produce recovery fund at
9-10 the time the merchant makes a claim against the fund, the
9-11 department shall offset the amount owed to the fund from the amount
9-12 dispensed.
9-13 SECTION 17. Sections 103.009(a), (c), and (d), Agriculture
9-14 Code, are amended to read as follows:
9-15 (a) If the department pays a claim against a <commission>
9-16 merchant <or retailer>, the <commission> merchant <or retailer>
9-17 shall:
9-18 (1) reimburse the fund immediately or agree in writing
9-19 to reimburse the fund on a schedule to be determined by rule of the
9-20 department; and
9-21 (2) immediately pay the aggrieved party any amount due
9-22 that party or agree in writing to pay the aggrieved party on a
9-23 schedule to be determined by rule of the department.
9-24 (c) If the <commission> merchant <or retailer> does not
9-25 reimburse the fund or pay the aggrieved party, or does not agree to
9-26 do so, in accordance with this section, the department shall issue
9-27 an order canceling the license of the <commission> merchant <or
10-1 retailer> and may not issue a new license to that person for four
10-2 years from the date of cancellation. If the <commission> merchant
10-3 <or retailer> is a corporation, an officer or director of the
10-4 corporation or a person owning more than 25 percent of the stock in
10-5 the corporation may not be licensed as a <commission> merchant <or
10-6 retailer> under Chapter 101 or 102 of this code during the
10-7 four-year period in which the corporation is ineligible for
10-8 licensing.
10-9 (d) This section does not apply to a <commission> merchant
10-10 <or retailer> who is released by a final judgment of a bankruptcy
10-11 court from the legal duty to satisfy the claim paid by the
10-12 department.
10-13 SECTION 18. Section 103.010, Agriculture Code, is amended to
10-14 read as follows:
10-15 Sec. 103.010. Subrogation of Rights. If the department pays
10-16 a claim against a <commission> merchant <or retailer>, the
10-17 department is subrogated to all rights of the aggrieved party
10-18 against the <commission> merchant <or retailer> to the extent of
10-19 the amount paid to the aggrieved party.
10-20 SECTION 19. Section 103.011, Agriculture Code, is amended to
10-21 read as follows:
10-22 Sec. 103.011. Fee. (a) A <Except as otherwise provided by
10-23 this section, a commission> merchant <or retailer> licensed under
10-24 Chapter 101 or 102 of this code shall pay an annual fee to the fund
10-25 of $200.
10-26 (b) <A retailer who is licensed under Chapter 101 or 102 of
10-27 this code and whose annual purchases of vegetables and citrus fruit
11-1 are less than $15,000 a year shall pay an annual fee of $50.>
11-2 <(c) A person who is required by Subsection (a) of this
11-3 section to pay a fee of $200 and who is licensed in one of those
11-4 classifications under both Chapters 101 and 102 of this code may
11-5 pay a single fee of $250. A person who is required by Subsection
11-6 (b) of this section to pay a $50 fee and who is licensed in that
11-7 classification under both Chapters 101 and 102 of this code may pay
11-8 a single fee of $75.>
11-9 <(d)> A person licensed as a cash dealer or a marketing
11-10 association organized under Chapter 52 of this code that handles
11-11 citrus fruit only for its members is exempt from payment of the fee
11-12 under this section.
11-13 (c) <(e)> The fee is in addition to any licensing fee paid
11-14 and is due at the time of making the license application. The
11-15 department may not issue a license to a person who fails to pay the
11-16 fee.
11-17 SECTION 20. Section 103.013(a), Agriculture Code, is amended
11-18 to read as follows:
11-19 (a) A person commits an offense if the person acts or
11-20 assumes to act as a <commission> merchant <or retailer> under
11-21 Chapter 101 or 102 of this code without first paying the fee
11-22 required by this chapter.
11-23 SECTION 21. Sections 101.004(d), 101.006(c) and (d),
11-24 102.004(d), and 102.006(c) and (d), Agriculture Code, are repealed.
11-25 SECTION 22. A license or identification card that is issued
11-26 under Chapters 101 and 102, Agriculture Code, and that is valid on
11-27 the effective date of this Act remains valid until it expires or is
12-1 revoked or suspended.
12-2 SECTION 23. This Act takes effect September 1, 1993.
12-3 SECTION 24. The importance of this legislation and the
12-4 crowded condition of the calendars in both houses create an
12-5 emergency and an imperative public necessity that the
12-6 constitutional rule requiring bills to be read on three several
12-7 days in each house be suspended, and this rule is hereby suspended.