By: Sims S.B. No. 30
A BILL TO BE ENTITLED
AN ACT
1-1 relating to providing for methods and procedures for the
1-2 eradication of boll weevils in cotton; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 74, Agriculture Code, is amended by
1-5 adding Subchapter D to read as follows:
1-6 SUBCHAPTER D. OFFICIAL COTTON GROWERS' BOLL WEEVIL ERADICATION
1-7 FOUNDATION
1-8 Sec. 74.101. DEFINITIONS. In this subchapter:
1-9 (1) "Board" means the board of directors of the
1-10 official cotton growers' boll weevil eradication foundation.
1-11 (2) "Boll weevil" has the meaning assigned by Section
1-12 74.002 of this code.
1-13 (3) "Certificate" means a document issued or
1-14 authorized by the department indicating a regulated article is not
1-15 contaminated with the boll weevil.
1-16 (4) "Cotton" means a cotton plant or any part of it
1-17 including bolls, stalk, flowers, root, or leaves or cotton products
1-18 such as seed cotton, cottonseed, and hulls.
1-19 (5) "Cotton grower" means any person actively engaged
1-20 in the business of producing cotton or who causes cotton to be
1-21 produced for commercial purposes.
1-22 (6) "Eradication" means elimination of the boll weevil
1-23 as an economic pest and to a level that causes no economic loss to
2-1 cotton production.
2-2 (7) "Eradication zone" means a geographic area where
2-3 cotton growers have officially approved, by referendum, their
2-4 participation in a boll weevil eradication program.
2-5 (8) "Foundation" means the official cotton growers'
2-6 boll weevil eradication foundation.
2-7 (9) "Host" means any plant or plant product in which
2-8 the boll weevil is capable of completing any portion of its life
2-9 cycle.
2-10 (10) "Infested" means the presence of the boll weevil
2-11 in any life stage or the existence of generally accepted
2-12 entomological evidence from which it could be concluded with
2-13 reasonable certainty that the boll weevil is present.
2-14 (11) "Permit" means a document issued or authorized by
2-15 the department to provide for the movement of regulated articles to
2-16 restricted designations for limited handling, use, or processing.
2-17 (12) "Pesticide" means a substance or mixture of
2-18 substances intended to destroy, repel, or retard the development of
2-19 pests, or any substance or mixture of substances intended for use
2-20 as a plant regulator, defoliant, or desiccant.
2-21 (13) "Regulated article" means any article carrying or
2-22 capable of carrying the boll weevil, including but not limited to
2-23 cotton plants, seed cotton, gin trash, other hosts, or mechanical
2-24 cotton pickers.
2-25 Sec. 74.102. CERTIFICATION OF A PETITIONING ORGANIZATION BY
3-1 COMMISSIONER; REQUIREMENTS. (a) Any nonprofit organization
3-2 authorized under the laws of this state representing cotton growers
3-3 may petition the commissioner for certification as the organization
3-4 to create an official cotton growers' eradication foundation, to
3-5 conduct the initial election of the foundation board, and to
3-6 conduct referenda to establish boll weevil eradication zones.
3-7 (b) Should more than one nonprofit organization petition the
3-8 commissioner, the commissioner shall, based upon objective criteria
3-9 to be developed by the commissioner, select the organization that
3-10 can best carry out the intent of this bill.
3-11 (c) If an initial board election is to be conducted in a
3-12 limited area of the state, the petition must describe the
3-13 boundaries of the area to be included.
3-14 (d) The petition must propose an initial six-member,
3-15 nine-member, 12-member, or 15-member board with an initial district
3-16 representation plan.
3-17 (e) Not later than the 60th day after the day on which a
3-18 petition for certification is received, the commissioner shall hold
3-19 a public hearing to consider the petition or petitions.
3-20 (f) After the hearing the commissioner shall certify:
3-21 (1) that the petition of the selected organization
3-22 complies with and conforms to the purposes and provisions of this
3-23 subchapter;
3-24 (2) that the selected organization is representative
3-25 of cotton growers within the area described in the petition;
4-1 (3) that the selected organization is authorized to
4-2 create the official cotton growers' boll weevil eradication
4-3 foundation; and
4-4 (4) that the selected organization is authorized to
4-5 conduct referenda to establish official boll weevil eradication
4-6 zones, and to conduct the election of the initial foundation board
4-7 as provided by Section 74.104.
4-8 Sec. 74.103. CERTIFICATION; REVOCATION. (a) If the
4-9 commissioner determines that the foundation meets the requirements
4-10 of this subchapter and that the board members have been properly
4-11 elected, the commissioner shall certify the foundation as the
4-12 official cotton growers' boll weevil eradication foundation. A
4-13 certification is valid for the purposes of this subchapter only and
4-14 does not affect other organizations or associations of cotton
4-15 growers established for other purposes.
4-16 (b) The commissioner shall certify only one such foundation
4-17 and the commissioner may revoke the certification of the foundation
4-18 upon 60 days written notice if at any time the foundation fails to
4-19 meet the requirements of this subchapter, or if the petitioning
4-20 organization requests the commissioner's revocation.
4-21 Sec. 74.104. BOARD ELECTIONS AND ERADICATION ZONE REFERENDA.
4-22 (a) At the time of the initial election of board members from any
4-23 proposed eradication zone, the petitioning organization shall
4-24 conduct a referendum to determine whether cotton growers desire to
4-25 establish an official boll weevil eradication zone, and whether
5-1 cotton growers wish to participate in the activities of the boll
5-2 weevil eradication program as conducted by the foundation.
5-3 (b) Board elections and proposed boll weevil eradication
5-4 zone referenda shall be conducted as provided in Section 74.107.
5-5 (c) Information shall be provided with any proposed
5-6 eradication zone referendum ballot that shall include, but shall
5-7 not be limited to, the following:
5-8 (1) a statement as to the purpose of the boll weevil
5-9 eradication program;
5-10 (2) the geographic area to be included within the
5-11 proposed eradication zone;
5-12 (3) a general summary of rules and regulations adopted
5-13 by the commissioner under Sections 74.108, 74.109 and 74.110 of
5-14 this subchapter. This summary shall include cotton grower
5-15 responsibilities and possible penalties that may be assessed in the
5-16 event of the cotton grower's non-compliance with rules and
5-17 regulations adopted under this subchapter;
5-18 (4) an address and toll free telephone number that the
5-19 cotton grower may use in the event he needs additional information
5-20 regarding the referendum or boll weevil eradication program.
5-21 (d) In the event that a referendum to establish a boll
5-22 weevil eradication zone fails to receive the required number of
5-23 affirmative votes, the election of board members from that proposed
5-24 eradication zone is considered null and void. Subsequent initial
5-25 elections and referenda to establish an eradication zone within an
6-1 original area where cotton growers had previously rejected the
6-2 proposal, may be called at the discretion of the petitioning
6-3 organization.
6-4 (e) One position to the foundation board shall be occupied
6-5 by a representative of the petitioning organization.
6-6 (f) If, at any time, the geographic area of the High Plains
6-7 Boll Weevil Suppression Program, or any portion of the High Plains
6-8 Boll Weevil Suppression Program area, becomes activated as a boll
6-9 weevil eradication zone under this subchapter, one position to the
6-10 foundation board shall be occupied by a representative of the High
6-11 Plains Boll Weevil Suppression Program.
6-12 (g) The foundation board may recommend a change in the
6-13 number of board positions and representation plan as may be needed
6-14 to fulfill the directives of this subchapter, or for other
6-15 justifiable reasons. In this event, the board must apply to the
6-16 petitioning organization and the commissioner for approval to make
6-17 change in the number of board positions or representation plan.
6-18 (g) A cotton grower who is eligible to vote in a referendum
6-19 or election as provided by this subchapter is eligible to be a
6-20 member of or a candidate for membership on the board.
6-21 (h) Not later than the 30th day before the date set for any
6-22 board election any eligible cotton grower wishing to be a candidate
6-23 for the board shall file an application with the secretary of the
6-24 foundation or, if in the initial election, with the commissioner,
6-25 and such application shall be signed by 10 or more cotton growers
7-1 eligible to vote in the board election. Upon receipt and
7-2 verification of such application the applicant's name shall be
7-3 placed on the ballot for board election purposes.
7-4 (i) Any board election of the foundation shall be preceded
7-5 with 45 days notice published in one or more newspapers published
7-6 and distributed within the geographic area to be included in the
7-7 boll weevil eradication zone. The notice shall be published for
7-8 not less than once a week for three consecutive weeks. At least 45
7-9 days before the date of the election, direct written notice shall
7-10 be given to each county agent in any county within the eradication
7-11 zone.
7-12 (j) An eligible voter may vote for a cotton grower whose
7-13 name does not appear on the official ballot by writing in the
7-14 eligible cotton grower's name on the ballot.
7-15 Sec. 74.105. DUTIES AND RESPONSIBILITIES OF THE BOARD.
7-16 (a) The board has the authority to conduct an assessment
7-17 referendum as provided in Section 74.106.
7-18 (b) Other than the initial election of the board and
7-19 referenda to establish official boll weevil eradication zones, the
7-20 board has the authority to conduct subsequent board elections
7-21 within established eradication zones.
7-22 (c) The board shall conduct other referenda and elections
7-23 previously reserved in this subchapter for the petitioning
7-24 organization, provided that the board is directed and authorized in
7-25 writing to do so by the petitioning organization.
8-1 (d) The board has the authority to form an advisory
8-2 committee composed of representatives from this state, other
8-3 states, or other countries. The board may change membership on the
8-4 committee from time to time as may be necessary.
8-5 (e) The board shall make available for inspection or audit
8-6 by the commissioner at any reasonable time all books and records of
8-7 account and minutes of proceedings maintained by the foundation.
8-8 Not later than the 45th day after the last day of the fiscal year,
8-9 the foundation board shall submit to the commissioner a report
8-10 itemizing all income and expenditures and describing all activities
8-11 of the foundation during the fiscal year.
8-12 (f) The foundation board shall provide surety bonds in
8-13 amount determined by the commissioner for employees and agents who
8-14 handle funds for the foundation.
8-15 (g) Except for instances of gross negligence, individual
8-16 criminal actions or acts of dishonesty, the members, officers and
8-17 employees of the foundation are not individually liable to any
8-18 cotton grower or any other person for errors in judgement,
8-19 mistakes, or other acts of omission or commission. A member,
8-20 officer or employee of the foundation is not individually liable
8-21 for any act or omission of any other member, officer or employee of
8-22 the foundation. If liable, members of the foundation are severally
8-23 liable and not jointly liable, and a member is not liable for the
8-24 default of any other member.
8-25 (h) The foundation shall collect, receive, hold in trust and
9-1 disburse all assessments and other funds collected under this
9-2 subchapter as trust funds of the foundation. Funds collected by
9-3 the foundation are not required to be deposited in the State
9-4 Treasury. The foundation shall deposit all money collected under
9-5 this subchapter in a bank or other depository approved by the
9-6 board.
9-7 (i) Members of the board shall serve without compensation
9-8 but are entitled to reimbursement for reasonable and necessary
9-9 expenses incurred in the discharge of their duties.
9-10 (j) Upon the discontinuation of the foundation, the
9-11 commissioner shall pay from the remaining funds of the foundation
9-12 all obligations of the foundation and any remaining funds shall be
9-13 returned to the contributing cotton growers on a pro rata basis.
9-14 Sec. 74.106. ASSESSMENT REFERENDA. (a) After the
9-15 foundation has been certified as provided in Section 74.103, the
9-16 foundation shall determine the assessment needed within each
9-17 eradication zone in order to obtain the goals of the eradication
9-18 program. The foundation shall propose in a referendum the maximum
9-19 amount of the assessment to be paid by cotton growers having
9-20 production within the boundaries of the eradication zone, and the
9-21 period that the levy should exist. The actual assessment within an
9-22 eradication zone may be established at a level less than the
9-23 assessment approved by the referendum.
9-24 (b) Balloting in any assessment referendum shall be
9-25 conducted as provided in Section 74.107 of this subchapter.
10-1 (c) If an assessment referendum is approved, the foundation
10-2 shall collect the assessment from the affected cotton growers.
10-3 (d) Assessments collected by the foundation under this
10-4 subchapter are not state funds.
10-5 Sec. 74.107. CONDUCT OF BOARD ELECTIONS AND ASSESSMENT
10-6 REFERENDA; BALLOTING. (a) The foundation will arrange for and
10-7 manage any referendum or board election under its jurisdiction, or
10-8 any referendum or board election as is directed and authorized by
10-9 the petitioning organization.
10-10 (b) The foundation shall bear all expenses incurred in
10-11 conducting any referendum or board election.
10-12 (c) The commissioner, with the advice of the petitioning
10-13 organization, shall adopt rules for voting in the initial election
10-14 of the foundation board and initial referenda to establish boll
10-15 weevil eradication zones. Rules for voting in subsequent referenda
10-16 and subsequent board elections shall be reviewed and adopted by the
10-17 commissioner, with advice of the foundation board.
10-18 (d) Each cotton grower having cotton production within the
10-19 geographic area to be included in a proposed eradication zone or
10-20 within an already established eradication zone is entitled to vote
10-21 in any referendum concerning that eradication zone, and to elect
10-22 members to the board to represent that eradication zone.
10-23 (e) Eligible cotton growers may not vote more than once in
10-24 any referendum or board election.
10-25 (f) The balloting in any referendum or board election may be
11-1 conducted by mail to a central location to be initially determined
11-2 by the commissioner and subsequently determined by the foundation
11-3 board. Cotton growers eligible to vote in a referendum or board
11-4 election shall be offered the option of voting in person at the
11-5 office of the county agent of the Texas Agricultural Extension
11-6 Service in the county where the cotton grower resides. In such
11-7 instance, the county agent is authorized to take each ballot in
11-8 trust and to hold and count such ballots and report the results
11-9 thereof to the commissioner and the foundation.
11-10 (g) If at least two-thirds of those voting vote in favor of
11-11 any referendum, or if those voting in favor of any referendum
11-12 proposition farm more than 50 percent of the cotton acres
11-13 represented in the relevant eradication zone, the referendum shall
11-14 be considered approved.
11-15 (h) If any referendum conducted under this subchapter fails
11-16 to receive the required number of affirmative votes, the foundation
11-17 may, with the consent of the commissioner and the petitioning
11-18 organization, request a subsequent referendum.
11-19 Sec. 74.108. FAILURE TO PAY ASSESSMENTS. (a) A cotton
11-20 grower who fails to pay, when due and after reasonable notice, any
11-21 assessment levied under this subchapter may be subjected to a
11-22 penalty as may be prescribed by the foundation board.
11-23 (b) A cotton grower who fails to pay all assessments and
11-24 penalties before the 31st day after receiving notice of the
11-25 delinquency shall destroy any cotton growing on the grower's
12-1 acreage that is subject to the assessment. Cotton plants that are
12-2 not destroyed are a public nuisance, and on recommendation of the
12-3 foundation, the department shall follow the procedures for
12-4 destruction of host plants provided by Subchapter A of this
12-5 chapter. The department may apply to a district court with
12-6 jurisdiction in the county in which the public nuisance is located
12-7 to have the nuisance condemned and destroyed. Injunctive relief
12-8 available to the department under this subchapter is in addition to
12-9 any other legal remedy available to the department. The department
12-10 is not required to file a bond in a proceeding under this
12-11 subsection.
12-12 (c) In addition to any other remedies for the collection of
12-13 assessments and penalties, the department may place and perfect a
12-14 lien on cotton produced and harvested before the destruction of
12-15 other cotton grown from the acreage that is subject to the
12-16 assessment that is due and unpaid. A buyer of cotton takes free of
12-17 the lien if the buyer has not received written or actual notice of
12-18 the lien from the department or if the buyer has paid for the
12-19 cotton by a check on which the department is named as a joint
12-20 payee. In an action to enforce the lien, the burden is on the
12-21 department to prove that the buyer of cotton received written
12-22 notice of the lien. A buyer of cotton other than a person buying
12-23 cotton from the cotton grower takes free of the lien.
12-24 Sec. 74.109. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
12-25 INSPECTIONS. (a) The department, foundation or their designated
13-1 representatives may enter cotton fields or other premises to carry
13-2 out the purposes of this subchapter and Subchapter A of this
13-3 chapter which include the treatment, monitoring, and destruction of
13-4 growing cotton or other host plants. The department, foundation or
13-5 their designated representatives may inspect fields or premises in
13-6 this state for the purpose of determining whether the property in
13-7 infested with the boll weevil. An inspection must be conducted
13-8 during reasonable daylight hours.
13-9 (b) The commissioner may authorize pesticide applications
13-10 within a boll weevil eradication zone, when data is collected
13-11 through the use of field traps or in-field inspections that
13-12 indicates boll weevil infestation to the extent that cotton
13-13 production is not economically viable.
13-14 Sec. 74.110. PROHIBIT PLANTING OF COTTON AND REQUIRE
13-15 PARTICIPATION IN ERADICATION PROGRAM. The commissioner may adopt
13-16 reasonable rules regarding areas where cotton may not be planted in
13-17 an eradication zone if there is reason to believe planting will
13-18 jeopardize the success of the program or present a hazard to public
13-19 health or safety. The commissioner may adopt rules prohibiting the
13-20 planting of noncommercial cotton in eradication zones, as described
13-21 in this subchapter, and requiring that all growers of commercial
13-22 cotton in an eradication zone participate in a boll weevil
13-23 eradication program that includes cost sharing as required by the
13-24 rules. Notice of prohibitions and requirements shall be given by
13-25 publication for one day each week for three successive weeks in a
14-1 newspaper having general circulation in the affected area. The
14-2 commissioner may adopt a reasonable schedule of penalty fees to be
14-3 assessed on growers in a designated eradication zone who do not
14-4 meet the requirements of the rules issued by the commissioner
14-5 relating to reporting of acreage and participation in cost sharing.
14-6 The penalty fees adopted may not exceed $50.00 per acre. If a
14-7 grower fails to meet the requirements of rules adopted by the
14-8 commissioner, the commissioner may order the destruction of cotton
14-9 not in compliance with the rules. Costs incurred by the
14-10 commissioner in the destruction of cotton may be assessed against
14-11 the grower.
14-12 Sec. 74.111. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
14-13 COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The department
14-14 may destroy or treat volunteer or other noncommercial cotton and
14-15 establish procedures for the purchase and destruction of commercial
14-16 cotton in eradication zones if the department determines the action
14-17 is necessary to carry out the purposes of this subchapter. The
14-18 department is not liable to the owner or lessee for the destruction
14-19 or injury of any cotton that was planted in an eradication zone
14-20 after publication of notice as provided by this subchapter. The
14-21 foundation is liable for the destruction of cotton if the cotton
14-22 was planted in an eradication zone before publication of the
14-23 notice.
14-24 Sec. 74.112. AUTHORITY TO ADOPT RULES. (a) The
14-25 commissioner may adopt rules necessary to protect people, livestock
15-1 or honeybee colonies on any premise where cotton plants are being
15-2 grown within an eradication zone, and the cotton plants have been
15-3 or are being treated with a pesticide to eradicate the boll weevil.
15-4 (b) The commissioner and the foundation may adopt other
15-5 reasonable rules deemed necessary to carry out the purpose of this
15-6 subchapter and Subchapter A of this chapter. All rules issued
15-7 under this subchapter must be adopted and published in accordance
15-8 with state requirements.
15-9 Sec. 74.113. REPORTS. Each person growing cotton in this
15-10 state shall furnish to the foundation on forms supplied by the
15-11 foundation information that the foundation requires concerning the
15-12 size and location of all commercial cotton fields and of
15-13 noncommercial patches of cotton grown as ornamental or for other
15-14 purposes.
15-15 Sec. 74.114. PENALTIES. (a) A person who violates this
15-16 subchapter or rules adopted under this subchapter or who alters,
15-17 forges, or counterfeits, or uses without authority a certificate,
15-18 permit, or other document issued under the authority of this
15-19 subchapter or rules adopted under this subchapter commits an
15-20 offense.
15-21 (b) A person who in violation of the rules of the
15-22 commissioner moves a regulated article that is infected by the boll
15-23 weevil into this state from any other state commits an offense.
15-24 Sec. 74.115. QUARANTINE. The department, at the advice of
15-25 the foundation, may adopt rules relating to quarantining areas of
16-1 this state that are infected with the boll weevil. The rules shall
16-2 address the storage of regulated articles and the movement of
16-3 regulated articles into and out of a quarantined area. The
16-4 department may also adopt rules governing the movement of regulated
16-5 articles from other states into this state if the articles are
16-6 known to be infested with the boll weevil.
16-7 Sec. 74.116. COOPERATIVE PROGRAMS AUTHORIZED. The
16-8 commissioner shall carry out programs to destroy and eliminate the
16-9 boll weevil in this state. The commissioner and the foundation are
16-10 authorized to cooperate through written agreements with any agency
16-11 of the federal government, and state agency, any appropriate agency
16-12 of a foreign country contiguous to the affected area, any person
16-13 who is engaged in growing, processing, marketing, or handling
16-14 cotton, or any group of persons in this state involved in programs
16-15 similarly established to carry out the purposes of this subchapter.
16-16 Agreements entered into under this section may provide for cost
16-17 sharing and for division of duties and responsibilities under this
16-18 subchapter and may include other provisions to carry out the
16-19 purposes of this subchapter.
16-20 Sec. 74.117. SUNSET PROVISION. The board is subject to
16-21 Chapter 325, Government Code (Texas Sunset Act). Unless continued
16-22 in existence as provided by that chapter, the board is abolished
16-23 and this subchapter expires September 1, 2003.
16-24 SECTION 2. This Act takes Effect June 1, 1992 except that
16-25 the Department of Agriculture may not destroy or treat cotton as
17-1 permitted by Section 74.114, Agriculture Code, as added by this
17-2 Act, before June 1, 1994.
17-3 SECTION 3. The importance of this legislation and the
17-4 crowded condition of the calendars in both houses create an
17-5 emergency and an imperative public necessity that the
17-6 constitutional rule requiring bills to be read on three several
17-7 days in each house be suspended, and this rule is hereby suspended.