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.