1-1  By:  Cuellar of Hidalgo (Senate Sponsor - Bivins)     H.B. No. 2489
    1-2        (In the Senate - Received from the House May 5, 1993;
    1-3  May 6, 1993, read first time and referred to Committee on Natural
    1-4  Resources; May 11, 1993, reported favorably by the following vote:
    1-5  Yeas 8, Nays 0; May 11, 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 the handling and marketing of citrus fruits and
   1-22  vegetables and to the produce recovery fund.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Section 101.003, Agriculture Code, is amended  by
   1-25  amending Subsection (b) and adding Subsection (c) to read as
   1-26  follows:
   1-27        (b)  This section does not apply to<:>
   1-28              <(1)  a retailer, unless the retailer:>
   1-29                    <(A)  has annual sales of vegetables and citrus
   1-30  fruit that comprise 75 percent or more of the retailer's total
   1-31  sales; or>
   1-32                    <(B)  employs a buying agent who buys directly
   1-33  from a producer; or>
   1-34              <(2)>  a producer who handles or deals exclusively in
   1-35  the producer's own products.
   1-36        (c)  A person who holds a license under this section is also
   1-37  considered, without paying an additional fee, to hold a license
   1-38  under Section 102.003 of this code.
   1-39        SECTION 2.  Section 101.004(b), Agriculture Code, is amended
   1-40  to read as follows:
   1-41        (b)  A person shall apply for licensing as a <commission>
   1-42  merchant if the person:
   1-43              (1)  purchases vegetables on credit;
   1-44              (2)  takes possession of vegetables for consignment or
   1-45  handling on behalf of the producer or owner of the vegetables; or
   1-46              (3)  takes possession of vegetables for consignment or
   1-47  handling in a manner that does not require or result in payment to
   1-48  the producer, seller, or consignor of the full amount of the
   1-49  purchase price in United States currency at the time of delivery or
   1-50  at the time that the vegetables pass from the producer, seller, or
   1-51  consignor to the person.
   1-52        SECTION 3.  Section 101.006(a), Agriculture Code, is amended
   1-53  to read as follows:
   1-54        (a)  A <Except as otherwise provided by this section, a>
   1-55  person applying for a license as a merchant shall include with the
   1-56  license application a license fee of $100 <$75>.
   1-57        SECTION 4.  Sections 101.010(a) and (b), Agriculture Code,
   1-58  are amended to read as follows:
   1-59        (a)  In accordance with the rules of the department, a person
   1-60  licensed as a <commission> merchant <or retailer> may apply to the
   1-61  department for a reasonable number of identification cards for:
   1-62              (1)  transporting agents to act for the license holder
   1-63  <licensee> in the transporting of vegetables; and
   1-64              (2)  buying agents to act for the license holder
   1-65  <licensee> in any act requiring licensing under Section 101.003 of
   1-66  this code.
   1-67        (b)  The department may collect a fee not to exceed $5 for
   1-68  each card and shall issue transporting agent cards in a color
    2-1  different from buying agent cards.
    2-2        SECTION 5.  Section 101.020(a), Agriculture Code, is amended
    2-3  to read as follows:
    2-4        (a)  A person commits an offense if the person:
    2-5              (1)  acts in violation of Section 101.003 of this code
    2-6  without first obtaining a license or after receiving notice of
    2-7  cancellation of a license;
    2-8              (2)  acts or assumes to act as a <commission> merchant
    2-9  without first obtaining a license as a <commission> merchant;
   2-10              (3)  acts or assumes to act as a transporting agent or
   2-11  buying agent without first obtaining an identification card;
   2-12              (4)  as a transporting agent or buying agent, fails and
   2-13  refuses to turn over to the department an identification card in
   2-14  accordance with Section 101.010(e) of this code;
   2-15              (5)  as a license holder <licensee>, fails to furnish
   2-16  information under Section 101.017 of this code before the 11th day
   2-17  following the date of demand;
   2-18              (6)  as a license holder <licensee>, fails to settle
   2-19  with a producer or seller on the grade and quality of vegetables in
   2-20  the manner provided by Section 101.015 of this code;
   2-21              (7)  as a cash dealer, pays for vegetables by a means
   2-22  other than United States currency;
   2-23              (8)  as a license holder <licensee>, transporting
   2-24  agent, or buying agent, violates a provision of this chapter;
   2-25              <(9)  acts or assumes to act as a retailer without
   2-26  first obtaining a license as a retailer;> or
   2-27              (9) <(10)>  acts or assumes to act as a cash dealer
   2-28  without first obtaining a license as a cash dealer.
   2-29        SECTION 6.  Section 102.003, Agriculture Code, is amended  by
   2-30  amending Subsection (b) and adding Subsection (c)  to read as
   2-31  follows:
   2-32        (b)  This section does not apply to:
   2-33              (1)  <a retailer, unless the retailer:>
   2-34                    <(A)  has annual sales of citrus fruit and
   2-35  vegetables that comprise 75 percent or more of the retailer's total
   2-36  sales; or>
   2-37                    <(B)  employs a buying agent who buys directly
   2-38  from a producer;>
   2-39              <(2)>  a person shipping less than six standard boxes
   2-40  of citrus fruit in any one separate shipment;
   2-41              (2) <(3)>  a person who ships a noncommercial shipment
   2-42  of citrus fruit; or
   2-43              (3) <(4)>  a producer who handles or deals exclusively
   2-44  in the producer's own products.
   2-45        (c)  A person who holds a license under this section is also
   2-46  considered, without paying an additional fee, to hold a license
   2-47  under Section 101.003 of this code.
   2-48        SECTION 7.  Section 102.004(b), Agriculture Code, is amended
   2-49  to read as follows:
   2-50        (b)  A person shall apply for licensing as a <commission>
   2-51  merchant if the person:
   2-52              (1)  purchases citrus fruit on credit;
   2-53              (2)  takes possession of citrus fruit for consignment
   2-54  or handling on behalf of the producer or owner of the fruit; or
   2-55              (3)  takes possession of citrus fruit for consignment
   2-56  or handling in a manner or under a contract that does not require
   2-57  or result in payment to the producer, seller, or consignor of the
   2-58  full amount of the purchase price in United States currency at the
   2-59  time of delivery or at the time the citrus fruit passes from the
   2-60  producer or seller to the person.
   2-61        SECTION 8.  Section 102.006(a), Agriculture Code, is amended
   2-62  to read as follows:
   2-63        (a)  A <Except as otherwise provided by this section, a>
   2-64  person applying for a license as a merchant shall include with the
   2-65  license application a license fee of $100 <$75>.
   2-66        SECTION 9.  Sections 102.010(a) and (b), Agriculture Code,
   2-67  are amended to read as follows:
   2-68        (a)  In accordance with the rules of the department, a person
   2-69  licensed as a <commission> merchant <or retailer> may apply to the
   2-70  department for a reasonable number of identification cards for:
    3-1              (1)  transporting agents to act for the license holder
    3-2  <licensee> in the transporting of citrus fruits; and
    3-3              (2)  buying agents to act for the license holder
    3-4  <licensee> in any act requiring licensing under Section 102.003 of
    3-5  this code.
    3-6        (b)  The department may collect a fee not to exceed $1 for
    3-7  each card and shall issue transporting agent cards in a color
    3-8  different from buying agent cards.
    3-9        SECTION 10.  Section 102.021(a), Agriculture Code, is amended
   3-10  to read as follows:
   3-11        (a)  A person commits an offense if the person:
   3-12              (1)  acts in violation of Section 102.003 of this code
   3-13  without a license or after receiving notice of cancellation of a
   3-14  license;
   3-15              (2)  acts or assumes to act as a <commission> merchant
   3-16  without a license as a <commission> merchant;
   3-17              (3)  acts or assumes to act as a transporting agent or
   3-18  buying agent without an identification card or after receiving
   3-19  notice of cancellation of an identification card;
   3-20              (4)  as a transporting agent or buying agent, fails and
   3-21  refuses to turn over to the department an identification card in
   3-22  accordance with Section 102.010(e) of this code;
   3-23              (5)  as a license holder <licensee>, fails to furnish
   3-24  information under Section 102.018 of this code before the 11th day
   3-25  following the date of demand;
   3-26              (6)  as a license holder <licensee>, buys citrus fruit
   3-27  by weight and does not have the fruit weighed on state-tested
   3-28  scales;
   3-29              (7)  as a license holder <licensee>, fails to settle
   3-30  with a producer or seller on the grade and quality of citrus fruit
   3-31  in the manner provided by Section 102.015 of this code;
   3-32              (8)  as a cash dealer, pays for citrus fruit by a means
   3-33  other than United States currency;
   3-34              (9)  fails to maintain records required by Section
   3-35  102.017(b) of this code;
   3-36              (10)  as a license holder <licensee>, transporting
   3-37  agent, or buying agent, violates a provision of this subchapter;
   3-38              <(11)  acts or assumes to act as a retailer without a
   3-39  license as a retailer;> or
   3-40              (11) <(12)>  acts or assumes to act as a cash dealer
   3-41  without a license as a cash dealer.
   3-42        SECTION 11.  Section 103.002(a), Agriculture Code, is amended
   3-43  to read as follows:
   3-44        (a)  The produce recovery fund is a special trust fund with
   3-45  the state treasurer administered by the department, without
   3-46  appropriation, for the payment of claims against <commission>
   3-47  merchants <and retailers> licensed under Chapter 101 or 102 of this
   3-48  code.
   3-49        SECTION 12.  Section 103.005, Agriculture Code, is amended to
   3-50  read as follows:
   3-51        Sec. 103.005.  Initiation of Claim.  (a)  A person who deals
   3-52  with a  <commission> merchant  <or retailer> licensed under Chapter
   3-53  101 or 102 of this code in the purchasing, handling, selling, and
   3-54  accounting for sales of vegetables or citrus fruit and who is
   3-55  aggrieved by an action of the  <commission> merchant <or retailer>
   3-56  as a result of a violation of terms or conditions of a contract
   3-57  made by the <commission> merchant <or retailer> may initiate a
   3-58  claim against the fund by filing with the department:
   3-59              (1)  a sworn complaint against the  <commission>
   3-60  merchant <or retailer>; and
   3-61              (2)  a filing fee of $15.
   3-62        (b)  A complaint and the fee under Subsection (a) of this
   3-63  section must be filed on or before the first anniversary of the
   3-64  date of the violation, or recovery from the fund is barred.
   3-65        SECTION 13.  Section 103.0055, Agriculture Code, is amended
   3-66  to read as follows:
   3-67        Sec. 103.0055.  Bankruptcy of Merchant or Retailer.  For
   3-68  purposes of this chapter, the amount due an aggrieved party by a
   3-69  <commission> merchant <or retailer> is not affected by a final
   3-70  judgment of a bankruptcy court that releases the <commission>
    4-1  merchant <or retailer> from the legal duty to satisfy the claim.
    4-2        SECTION 14.  Section 103.006(a), Agriculture Code, is amended
    4-3  to read as follows:
    4-4        (a)  After a claim is initiated, the department shall
    4-5  investigate the complaint and determine the amount due the
    4-6  aggrieved party.  If the amount determined by the department is
    4-7  disputed by the <commission> merchant <or retailer> or the
    4-8  aggrieved party, the board shall conduct a hearing on the claim and
    4-9  determine the amount due the aggrieved party.
   4-10        SECTION 15.  Section 103.007(a), Agriculture Code, is amended
   4-11  to read as follows:
   4-12        (a)  If the amount determined by the department's
   4-13  investigation to be due the aggrieved party is not disputed by the
   4-14  <commission> merchant <or retailer> or the aggrieved party, the
   4-15  department shall pay the claim within the limits prescribed by this
   4-16  chapter.
   4-17        SECTION 16.  Section 103.008, Agriculture Code, is amended by
   4-18  amending Subsections (b), (c), and (d) and adding Subsection (f) to
   4-19  read as follows:
   4-20        (b)  The total payment of all claims filed by a claimant and
   4-21  arising from all contracts and all transactions executed between
   4-22  that claimant and a single merchant during a single license year
   4-23  <the same transaction> may not exceed $20,000.
   4-24        (c)  The total payment of claims against a single
   4-25  <commission> merchant <or retailer> may not exceed $50,000 in any
   4-26  one year.
   4-27        (d)  The department may not pay a claim against:
   4-28              (1)  a <commission> merchant <or retailer> who was not
   4-29  licensed on the date the contract <at the time of the transaction>
   4-30  on which the claim is based was executed; or
   4-31              (2)  a cash dealer licensed under Chapter 101 or 102 of
   4-32  this code.
   4-33        (f)  If a merchant owes money to the produce recovery fund at
   4-34  the time the merchant makes a claim against the fund, the
   4-35  department shall offset the amount owed to the fund from the amount
   4-36  dispensed.
   4-37        SECTION 17.  Sections 103.009(a), (c), and (d), Agriculture
   4-38  Code, are amended to read as follows:
   4-39        (a)  If the department pays a claim against a <commission>
   4-40  merchant <or retailer>, the <commission> merchant <or retailer>
   4-41  shall:
   4-42              (1)  reimburse the fund immediately or agree in writing
   4-43  to reimburse the fund on a schedule to be determined by rule of the
   4-44  department; and
   4-45              (2)  immediately pay the aggrieved party any amount due
   4-46  that party or agree in writing to pay the aggrieved party on a
   4-47  schedule to be determined by rule of the department.
   4-48        (c)  If the <commission> merchant <or retailer> does not
   4-49  reimburse the fund or pay the aggrieved party, or does not agree to
   4-50  do so, in accordance with this section, the department shall issue
   4-51  an order canceling the license of the <commission> merchant <or
   4-52  retailer> and may not issue a new license to that person for four
   4-53  years from the date of cancellation.  If the <commission> merchant
   4-54  <or retailer> is a corporation, an officer or director of the
   4-55  corporation or a person owning more than 25 percent of the stock in
   4-56  the corporation may not be licensed as a <commission> merchant <or
   4-57  retailer> under Chapter 101 or 102 of this code during the
   4-58  four-year period in which the corporation is ineligible for
   4-59  licensing.
   4-60        (d)  This section does not apply to a <commission> merchant
   4-61  <or retailer> who is released by a final judgment of a bankruptcy
   4-62  court from the legal duty to satisfy the claim paid by the
   4-63  department.
   4-64        SECTION 18.  Section 103.010, Agriculture Code, is amended to
   4-65  read as follows:
   4-66        Sec. 103.010.  Subrogation of Rights.  If the department pays
   4-67  a claim against a <commission> merchant <or retailer>, the
   4-68  department is subrogated to all rights of the aggrieved party
   4-69  against the  <commission> merchant <or retailer> to the extent of
   4-70  the amount paid to the aggrieved party.
    5-1        SECTION 19.  Section 103.011, Agriculture Code, is amended to
    5-2  read as follows:
    5-3        Sec. 103.011.  Fee.  (a)  A <Except as otherwise provided by
    5-4  this section, a commission> merchant <or retailer> licensed under
    5-5  Chapter 101 or 102 of this code shall pay an annual fee to the fund
    5-6  of $200.
    5-7        (b)  <A retailer who is licensed under Chapter 101 or 102 of
    5-8  this code and whose annual purchases of vegetables and citrus fruit
    5-9  are less than $15,000 a year shall pay an annual fee of $50.>
   5-10        <(c)  A person who is required by Subsection (a) of this
   5-11  section to pay a fee of $200 and who is licensed in one of those
   5-12  classifications under both Chapters 101 and 102 of this code may
   5-13  pay a single fee of $250.  A person who is required by Subsection
   5-14  (b) of this section to pay a $50 fee and who is licensed in that
   5-15  classification under both Chapters 101 and 102 of this code may pay
   5-16  a single fee of $75.>
   5-17        <(d)>  A person licensed as a cash dealer or a marketing
   5-18  association organized under Chapter 52 of this code that handles
   5-19  citrus fruit only for its members is exempt from payment of the fee
   5-20  under this section.
   5-21        (c) <(e)>  The fee is in addition to any licensing fee paid
   5-22  and is due at the time of making the license application.  The
   5-23  department may not issue a license to a person who fails to pay the
   5-24  fee.
   5-25        SECTION 20.  Section 103.013(a), Agriculture Code, is amended
   5-26  to read as follows:
   5-27        (a)  A person commits an offense if the person acts or
   5-28  assumes to act as a <commission> merchant <or retailer> under
   5-29  Chapter 101 or 102 of this code without first paying the fee
   5-30  required by this chapter.
   5-31        SECTION 21.  Sections 101.004(d), 101.006(c) and (d),
   5-32  102.004(d), and 102.006(c) and (d), Agriculture Code, are repealed.
   5-33        SECTION 22.  A license or identification card that is issued
   5-34  under Chapters 101 and 102, Agriculture Code, and that is valid on
   5-35  the effective date of this Act remains valid until it expires or is
   5-36  revoked or suspended.
   5-37        SECTION 23.  This Act takes effect September 1, 1993.
   5-38        SECTION 24.  The importance of this legislation and the
   5-39  crowded condition of the calendars in both houses create an
   5-40  emergency and an imperative public necessity that the
   5-41  constitutional rule requiring bills to be read on three several
   5-42  days in each house be suspended, and this rule is hereby suspended.
   5-43                               * * * * *
   5-44                                                         Austin,
   5-45  Texas
   5-46                                                         May 11, 1993
   5-47  Hon. Bob Bullock
   5-48  President of the Senate
   5-49  Sir:
   5-50  We, your Committee on Natural Resources to which was referred H.B.
   5-51  No. 2489, have had the same under consideration, and I am
   5-52  instructed to report it back to the Senate with the recommendation
   5-53  that it do pass and be printed.
   5-54                                                         Sims,
   5-55  Chairman
   5-56                               * * * * *
   5-57                               WITNESSES
   5-58  No witnesses appeared on H.B. No. 2489.