By:  Sibley                                            S.B. No. 943
       73R5355 CAS-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to regulation of certain herbicides; providing penalties.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 75, Agriculture Code, is amended to read
    1-5  as follows:
    1-6                   CHAPTER 75.  HERBICIDE REGULATION
    1-7        Sec. 75.001.  Purpose.  The purpose of this chapter is to
    1-8  regulate the distribution <sale>, use, and transportation of
    1-9  certain herbicides to prevent a hazard to desirable vegetation.
   1-10        Sec. 75.002.  Definitions.  In this chapter:
   1-11              (1)  "Application of a herbicide" means the spreading
   1-12  of a herbicide on real property having a continuous boundary line.
   1-13              (2)  "Commercial applicator <Custom applier>" means a
   1-14  person who applies a herbicide to land belonging to another person
   1-15  <or plants> for hire.
   1-16              (3)  "Distribute" means to offer for sale, hold for
   1-17  sale, sell, barter, or supply.
   1-18              (4)  "Equipment" means a device used to apply a
   1-19  herbicide.
   1-20        Sec. 75.003.  REGULATED HERBICIDES.  (a)  After a public
   1-21  hearing on the issue, and in accordance with Subsection (b) of this
   1-22  section, the department by rule may adopt a list of regulated
   1-23  herbicides for the state or for one or more designated areas in the
   1-24  state <This chapter applies to the following herbicides:>
    2-1              <(1)  2, 4-Dichlorophenoxyacetic Acid (2, 4-D);>
    2-2              <(2)  2, 4, 5-Trichlorophenoxyacetic Acid (2, 4, 5-T);>
    2-3              <(3)  2-Methyl-4-Chlorophenoxyacetic Acid (MCPA);>
    2-4              <(4)  2-(2, 4, 5-Trichlorophenoxy) propionic Acid
    2-5  (silvex);>
    2-6              <(5)  Polychlorinated benzoic acids; and>
    2-7              <(6)  derivatives and formulations of substances listed
    2-8  by Subdivisions (1)-(5) of this subsection>.
    2-9        (b)  The department may include a herbicide on the list of
   2-10  regulated herbicides if the department determines that, if used as
   2-11  directed or in accordance with widespread and commonly recognized
   2-12  practice, the herbicide requires additional restrictions to <To>
   2-13  prevent a hazard to desirable vegetation through drift or other
   2-14  uncontrolled application<, the department may, after a public
   2-15  hearing, determine that this chapter applies to a substance, in
   2-16  addition to those listed by Subsection (a) of this section, that is
   2-17  used to control plants growing where they are not wanted>.
   2-18        Sec. 75.004.  Dealer's License.  (a)  A <Except as provided
   2-19  by Subsection (b) of this section, a> person may not <sell,
   2-20  wholesale,> distribute<, offer or expose for sale, exchange,
   2-21  barter, or give away in this state,> a regulated herbicide <in a
   2-22  container having a net capacity of more than 16 fluid ounces>
   2-23  unless the person has a <first obtains a> dealer's license from the
   2-24  department.
   2-25        (b)  A person must obtain a license for each location in the
   2-26  state that is used for distribution.  If the person does not have a
   2-27  place of business in this state, the person may obtain one license
    3-1  for all out-of-state locations, but must designate an agent for
    3-2  service of process in this state before the department may issue
    3-3  the license <is not required to be licensed if the container
    3-4  described by Subsection (a) of this section:>
    3-5              <(1)  has a net capacity that does not exceed one
    3-6  gallon;>
    3-7              <(2)  contains a substance with a concentration of
    3-8  herbicide not exceeding 10 percent by volume; and>
    3-9              <(3)  bears a label stating that its contents are for
   3-10  lawn use only>.
   3-11        (c)  A person must apply for a dealer's license under this
   3-12  section on a form prescribed by the department <Except as provided
   3-13  by this subsection, an application for a dealer's license must be
   3-14  accompanied by a dealer's license fee for each warehouse or branch
   3-15  of the applicant's business.  If the applicant's principal office
   3-16  keeps and reports satisfactory records for all subsidiary branches,
   3-17  the applicant shall pay one license fee>.
   3-18        (d)  The department by rule shall set the fee for a dealer's
   3-19  license in an amount not to exceed $100.
   3-20        (e)  A dealer's license expires December 31 <January 1> of
   3-21  each year.
   3-22        (f)  A person who fails to submit a renewal fee on or before
   3-23  the expiration date of the license must pay, in addition to the
   3-24  renewal fee, the late fee provided by Section 12.024 of this code.
   3-25        Sec. 75.005.  RECORD OF DISTRIBUTION <SALE>.  (a)  A person
   3-26  required to obtain a dealer's license by Section 75.004 of this
   3-27  code shall record each distribution of a regulated <sale of a>
    4-1  herbicide <that is sold in a container having a net capacity of
    4-2  more than 16 fluid ounces> and shall keep a copy of the record for
    4-3  at least two years after the date of the distribution <sale>.
    4-4        (b)  The department shall adopt rules that prescribe the
    4-5  information to be stated in the records required by this section.
    4-6        (c)  The department may require that a copy of the records
    4-7  required by this section be submitted periodically to the
    4-8  department.  The copies submitted to the department are public
    4-9  information.
   4-10        (d)  The department may revoke a dealer's license if the
   4-11  licensee fails to submit a copy of a record as required under
   4-12  Subsection (c) of this section.
   4-13        Sec. 75.0055.  DENIAL, Revocation, Modification, or
   4-14  Suspension of License.  (a)  The department may deny an application
   4-15  for a dealer's license if the applicant fails to comply with this
   4-16  chapter.  The department shall revoke, modify, or suspend a
   4-17  license, assess an administrative penalty, <suspend an
   4-18  administrative penalty for good cause,> place on probation a person
   4-19  whose license has been suspended, or reprimand a licensee for a
   4-20  violation of this chapter <Section 75.005 of this code> or a rule
   4-21  adopted by the department under this chapter <that section>.
   4-22        (b)  If a license suspension is probated, the department may
   4-23  require the person to:
   4-24              (1)  report regularly to the department on matters that
   4-25  are the basis of the probation;
   4-26              (2)  limit practice to the areas prescribed by the
   4-27  department; or
    5-1              (3)  continue or renew professional education until the
    5-2  person attains a degree of skill satisfactory to the department in
    5-3  those areas that are the basis of the probation.
    5-4        (c)  If the department proposes to deny a person's
    5-5  application for a license or revoke, modify, or suspend a person's
    5-6  license, the person is entitled to a hearing before a hearings
    5-7  officer designated by the department.  The decision of the
    5-8  department is appealable in the same manner as provided for
    5-9  contested cases under the Administrative Procedure and Texas
   5-10  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
   5-11        Sec. 75.006.  PERMIT<; FEE>.  (a)  Except as provided by
   5-12  Subsection (b) of this section, during a period in which the
   5-13  commissioners court of a county has determined, as provided by
   5-14  Section 75.021(a) of this code, the existence in the county of a
   5-15  crop or vegetation of value that is susceptible to being adversely
   5-16  affected by the application of a regulated herbicide, a person must
   5-17  obtain a permit from the department before applying the regulated
   5-18  herbicide in the county <Except as provided by this section, a
   5-19  person may not apply a herbicide to any land or plants unless the
   5-20  person first obtains a permit to apply a herbicide from the
   5-21  department>.
   5-22        (b)  The department may exempt from the permit requirement
   5-23  under Subsection (a) of this section a county or portion of a
   5-24  county during a period the department determines a crop or
   5-25  vegetation of value susceptible to being adversely affected from
   5-26  application of a regulated herbicide does not exist in the county
   5-27  or portion of the county <An application for a permit to apply a
    6-1  herbicide must be accompanied by a permit fee set by the department
    6-2  in an amount not to exceed 10 cents an acre for the area to which
    6-3  the herbicide is to be applied>.
    6-4        (c)  <A permit is not required if during any one year the
    6-5  person applies a herbicide to a total acreage of 10 acres or less.>
    6-6        <(d)>  The department by rule may exempt from the permit <and
    6-7  fee> requirement of this section:
    6-8              (1)  a particular type of application of a herbicide,
    6-9  including an application for structural pest  control purposes by
   6-10  an applicator licensed by the Structural Pest Control Board or a
   6-11  nurseryman licensed by the department to apply turf weed control
   6-12  measures; or
   6-13              (2)  a governmental body.
   6-14        (d) <(e)>  If the department finds that a type of application
   6-15  of a herbicide does not create a hazard in a particular area, the
   6-16  department by rule shall exempt that area from the permit <and fee>
   6-17  requirement of this section.
   6-18        (e) <(f)>  A permit to apply a herbicide <and payment of the
   6-19  permit fee> is not required for experimental work with a herbicide
   6-20  by the department, a recognized college or university, the United
   6-21  States Department of Agriculture, a governmental body, or a public
   6-22  organization if the entity gives written notice of the work to the
   6-23  department and does the work in accordance with rules adopted by
   6-24  the department.  The department may exempt those entities from any
   6-25  other requirement of this chapter or rule adopted under this
   6-26  chapter.
   6-27        Sec. 75.007.  Inspection Before Issuing Permit.  Before
    7-1  issuing a permit to spray a regulated herbicide, the department is
    7-2  entitled to enter and inspect the area to be sprayed and the area
    7-3  surrounding it.
    7-4        Sec. 75.008.  Types of Permits.  The department may issue:
    7-5              (1)  an individual permit to apply a regulated
    7-6  herbicide; or
    7-7              (2)  a blanket permit.
    7-8        Sec. 75.009.  Powder or Dry Herbicides.  <(a)>  The
    7-9  department may not issue a permit to apply a powder or dry-type
   7-10  herbicide unless:
   7-11              (1)  all particles of the herbicide can pass through a
   7-12  U.S. standard 10-mesh sieve; and
   7-13              (2)  not more than one percent of the particles can
   7-14  pass through a U.S.  standard 60-mesh sieve.
   7-15        <(b)  The holder of a permit to apply a powder or dry-type
   7-16  herbicide may not apply a powder or dry-type herbicide that does
   7-17  not meet the requirements of Subsection (a) of this section.>
   7-18        Sec. 75.010.  Term of Permit.  <(a)>  A permit to apply a
   7-19  regulated herbicide expires:
   7-20              (1)  when the herbicide has been applied to the area
   7-21  described by the permit;
   7-22              (2)  when all acreage for which the permit was granted
   7-23  has been treated; or
   7-24              (3)  if the acreage is not treated, on the 180th day
   7-25  after the day on which the permit was issued.
   7-26        <(b)  If a herbicide is not applied to acreage for which a
   7-27  permit was issued, the person to whom the permit was issued, after
    8-1  filing a request for a refund, shall receive a refund equal to the
    8-2  amount of fees paid for acreage not treated.>
    8-3        Sec. 75.011.  Refusal, Amendment, or Revocation of Permit.
    8-4  The department may amend, revoke, or refuse to grant a permit to
    8-5  apply a regulated herbicide.
    8-6        Sec. 75.012.  Application of Herbicide.  (a)  If a person
    8-7  applies a regulated herbicide, the person shall act in accordance
    8-8  with rules adopted by the department, including rules adopted under
    8-9  Subchapter E, Chapter 76, of this code regulating application of
   8-10  pesticides that the department  adapts to apply to regulated
   8-11  herbicides.
   8-12        (b)  If a regulated herbicide is applied by a commercial
   8-13  applicator <custom applier>, the person in control of the crop or
   8-14  land to which the regulated herbicide is applied <for whom the
   8-15  application of a herbicide is made> and the commercial applicator
   8-16  <custom applier shall> jointly are responsible for ensuring that
   8-17  <supervise> the application is in compliance with this chapter and
   8-18  the rules adopted by the department <under Subsection (a) of this
   8-19  section>.
   8-20        (c)  <Regardless of whether a permit for the application of a
   8-21  herbicide is required under this chapter, each person before
   8-22  spraying a herbicide on land or plants, other than a lawn, shall:>
   8-23              <(1)  give notice of intent to spray; and>
   8-24              <(2)  submit a record of the spraying in accordance
   8-25  with rules of the department.>
   8-26        <(d)>  If the department finds that an application of a
   8-27  regulated herbicide is hazardous to crops or valuable plants in an
    9-1  area, the department may prohibit the application of a regulated
    9-2  herbicide in that area for the period during which the hazard
    9-3  exists.
    9-4        Sec. 75.013.  APPLICATOR'S <APPLIER'S> RECORDS.  (a)  Except
    9-5  as provided by Subsection (d) of this section, each person who
    9-6  applies a regulated herbicide shall record each application of a
    9-7  regulated herbicide that he or she makes and shall keep a copy of
    9-8  the records for at least two years after the date the application
    9-9  was made.
   9-10        (b)  The department shall adopt rules that prescribe the
   9-11  information to be stated in the records required by this section.
   9-12        (c)  <To be eligible to hold a valid permit to apply a
   9-13  herbicide, a person must submit to the department, within a period
   9-14  prescribed by rule of the department, the record of each
   9-15  application of a herbicide made by the person.>  The department may
   9-16  require all persons who apply a regulated herbicide to submit
   9-17  periodically to the department a copy of the records required by
   9-18  this section.
   9-19        (d)  A person, other than a commercial applicator <custom
   9-20  applier>, who applies a regulated herbicide to a lawn is not
   9-21  required to make and keep the records required by Subsection (a) of
   9-22  this section for that application of a herbicide.
   9-23        Sec. 75.014.  PROOF OF FINANCIAL RESPONSIBILITY <CROP DAMAGE
   9-24  PROTECTION>.  (a)  Except as otherwise provided by this section,
   9-25  each applicant for a commercial applicator's license <custom
   9-26  applier> shall:
   9-27              (1)  deposit with the department a surety bond executed
   10-1  by the applicant as principal and by a corporate surety licensed to
   10-2  do business in Texas as surety <approved by the department in the
   10-3  amount of $20,000 plus $2,000 for each piece of spraying equipment
   10-4  licensed for use by the custom applier>; or
   10-5              (2)  file with the department <subscribe for and hold>
   10-6  a liability insurance policy protecting people who may suffer
   10-7  damages as a result of the applicant's operations or a
   10-8  certification of the insurance <of crop damage insurance approved
   10-9  by the department with coverage in the amount described by
  10-10  Subdivision (1) of this subsection>.
  10-11        (b)  If an applicant <a custom applier> cannot reasonably
  10-12  obtain insurance coverage or a bond as specified by Subsection (a)
  10-13  of this section, the department shall accept a certificate of
  10-14  deposit or a letter of credit that meets the requirements of
  10-15  Subsection (c)(1) and rules adopted under Subsection (e) of this
  10-16  section.
  10-17        (c)  If the State Board of Insurance determines after giving
  10-18  notice to the department that the liability <crop damage> insurance
  10-19  required by Subsection (a)(2) of this section is not generally and
  10-20  reasonably available to commercial applicators <custom appliers>,
  10-21  then in lieu of the requirements of Subsection (a) of this section,
  10-22  the applicant <a custom applier> may:
  10-23              (1)  tender from a state or federal financial
  10-24  institution whose deposits are insured by the Federal Deposit
  10-25  Insurance Corporation <or by the Federal Savings and Loan Insurance
  10-26  Corporation> a certificate of deposit or letter of credit in the
  10-27  amounts prescribed by Subsection (f) <(a)> of this section, made
   11-1  payable to the department and issued for the purpose of protecting
   11-2  people who may suffer damages as a result of the operations of the
   11-3  commercial applicator <crop damage protection>;
   11-4              (2)  file a property damage and personal injury
   11-5  <subscribe for and hold crop damage> insurance policy or
   11-6  certification of the insurance if that insurance <that> is
   11-7  generally and reasonably available as determined by the State Board
   11-8  of Insurance; or
   11-9              (3)  comply with other proof of financial
  11-10  responsibility requirements adopted by rule of the department under
  11-11  this chapter.
  11-12        (d)  The proof of financial responsibility required by this
  11-13  section is not required to  apply   to damages or injury to
  11-14  agricultural crops, plants, or land being worked on by the
  11-15  commercial applicator <A custom applier shall increase the amount
  11-16  of crop damage coverage by $2,000 for each piece of spraying
  11-17  equipment used by the custom applier>.
  11-18        (e)  The proof <A surety bond, certificate of deposit, letter
  11-19  of credit, or other type> of financial responsibility <security>
  11-20  must be approved by the department and conditioned on compliance
  11-21  with this chapter and rules adopted under this chapter.
  11-22        (f)  Except as otherwise provided by this section, the amount
  11-23  of financial responsibility that must be proved may not be less
  11-24  than $100,000 for property damage and may be not less than $100,000
  11-25  for bodily injury.  The head of the department by rule may require
  11-26  different amounts of coverage for different classifications of
  11-27  operations under this chapter.  During the period for which a
   12-1  license is issued, the coverage must be maintained at not less than
   12-2  the amount set by the commissioner or the State Board of Insurance,
   12-3  as applicable <Failure to perform the conditions of a bond,
   12-4  certificate of deposit, letter of credit, or other type of
   12-5  financial security that results in injury to any crop or valuable
   12-6  plants is grounds for forfeiture of the financial security to the
   12-7  person owning the crop or plants in a suit brought by the
   12-8  department or an interested party>.
   12-9        (g)  At least 10 days before any reduction in insurance
  12-10  coverage requested by a licensee or a cancellation of a bond or
  12-11  liability insurance policy, the insurer, surety, or other party
  12-12  taking the action shall notify the commissioner.  If the party does
  12-13  not give that notice, the liability of the surety or insurer is
  12-14  limited to the amount of the bond or liability insurance policy
  12-15  <Except as otherwise provided by this section, the department shall
  12-16  prescribe by rule requirements of crop damage insurance policies,
  12-17  surety bonds, certificates of deposit, letters of credit, or other
  12-18  types of financial security.  The department may adopt rules
  12-19  governing the conditions and handling of certificates of deposit
  12-20  and letters of credit, but may not disburse funds or release a
  12-21  certificate or letter except by consent of the custom applier or
  12-22  pursuant to court order>.
  12-23        (h)  Except as provided by this subsection, the commissioner
  12-24  may accept a bond or liability insurance policy in the amount
  12-25  required by this section that has a deductible clause in an amount
  12-26  of not more than $1,000 for the total amount of the bond or
  12-27  liability insurance policy required by this section.  If the
   13-1  applicant has not satisfied the deductible amount in a prior legal
   13-2  claim, the commissioner may not accept a bond or policy with a
   13-3  deductible clause unless the commercial applicator furnishes to the
   13-4  department a surety bond that satisfies the amount of the
   13-5  deductible as to all claims that may arise as a result of the
   13-6  commercial applicator's operation <The furnishing of a surety bond,
   13-7  crop damage insurance, or other proof of financial responsibility
   13-8  does not limit any civil or criminal liability incurred because of
   13-9  the negligent or unlawful use of a herbicide>.
  13-10        (i)  If notified that the security furnished under this
  13-11  section has become insufficient or otherwise unsatisfactory, a
  13-12  commercial applicator immediately shall file a new bond, liability
  13-13  insurance policy, or other proof of financial responsibility as
  13-14  authorized by rule of the department.  A commercial applicator may
  13-15  not operate after receiving notice that the security is
  13-16  insufficient or defective until the commercial applicator files new
  13-17  proof of financial responsibility.  Failure to file a bond,
  13-18  liability insurance policy, or other proof of authorized financial
  13-19  responsibility or failure to maintain the security in the required
  13-20  amount is a ground for suspension or revocation of a commercial
  13-21  applicator license.
  13-22        (j)  The department by rule may prescribe acceptable proof of
  13-23  financial responsibility and appropriate procedures to carry out
  13-24  the purposes of this section.  The department may adopt rules
  13-25  governing the conditions and handling of certificates of deposit
  13-26  and letters of credit but may not disburse funds or release a
  13-27  certificate or letter except with the consent of the commercial
   14-1  applicator or pursuant to court order.
   14-2        Sec. 75.015.  REGULATED HERBICIDE COMPLAINT REPORT <NOTICE OF
   14-3  EFFECTS OF HERBICIDE; INSPECTION>.  (a)  A person claiming damage
   14-4  from application of a regulated herbicide may file with the
   14-5  department a written complaint report.  To be eligible for
   14-6  consideration by the department, the complaint report must be filed
   14-7  not later than the 30th day after the date of the alleged
   14-8  application or, if a growing crop is alleged to have been damaged,
   14-9  before the earlier of the date that 25 percent of the crop has been
  14-10  harvested or the 30th day.  The complaint report must contain the
  14-11  name of the person allegedly responsible for the application of the
  14-12  regulated herbicide and the name of the owner or lessee of the land
  14-13  on which any damaged crop is grown.  The department shall prepare a
  14-14  form to be furnished to persons for use in filing complaint
  14-15  reports.  The form may contain other information that is required
  14-16  by the commissioner <The department shall:>
  14-17              <(1)  inspect all crops reported to it as being
  14-18  affected by a herbicide;>
  14-19              <(2)  inspect the area surrounding the crops to find
  14-20  possible sources of drift; and>
  14-21              <(3)  report all findings concerning the affected
  14-22  crops>.
  14-23        (b)  As soon as practicable after receiving a complaint
  14-24  report, the department shall notify the licensee, the owner or
  14-25  lessee of the land on which the alleged application occurred, and
  14-26  any other person who may be charged with responsibility for the
  14-27  damage claimed.  The department shall furnish copies of the report
   15-1  to those people on request <If a person's crops or plants are
   15-2  affected by drift of a hormone-type herbicide, the person shall
   15-3  notify the department of the effect.  The person shall give notice
   15-4  before the crop is harvested or the plants are destroyed, whichever
   15-5  occurs first>.
   15-6        (c)  The department may give a preliminary report to the
   15-7  parties who file the complaint and who are required to be given
   15-8  notice of the complaint under Subsection (a) of this section.  In a
   15-9  case in which damage cannot be documented, the department shall
  15-10  give the information to the complaining party and cease the
  15-11  investigation.  To assess damage, the complaining party shall
  15-12  permit the department and the licensee to observe, within
  15-13  reasonable hours, the land or other entity alleged to have been
  15-14  damaged <If notice is not given in accordance with Subsection (b)
  15-15  of this section, it is presumed that there was no effect of a
  15-16  hormone-type herbicide.  This presumption is rebuttable>.
  15-17        (d)  Failure to file a complaint report does not bar a civil
  15-18  or criminal action from being filed and maintained.  If a person
  15-19  fails to file a report and is the only person claiming damage from
  15-20  the particular use or application of a regulated herbicide, the
  15-21  department may, if in the public interest, refuse to hold a hearing
  15-22  for the denial, suspension, or revocation of a license issued under
  15-23  this chapter to the person alleged to have caused the damage.
  15-24        Sec. 75.016.  <EQUIPMENT LICENSE; FEE.  (a)  A custom applier
  15-25  may not use equipment to apply a herbicide unless the equipment
  15-26  first is inspected and licensed by the department.>
  15-27        <(b)  The department shall inspect a piece of equipment
   16-1  before renewing an equipment license.  If the equipment is used on
   16-2  an aircraft, the department shall inspect the equipment:>
   16-3              <(1)  during each 30-day period while the equipment is
   16-4  installed on the aircraft and is in use; or>
   16-5              <(2)  before the equipment is used, if removed from the
   16-6  aircraft and reinstalled after the 30th day after the day on which
   16-7  the equipment was last inspected.>
   16-8        <(c)  At the time of inspection, a custom applier shall pay
   16-9  an inspection fee of $10 for each piece of equipment inspected.>
  16-10        <(d)  An equipment license expires on January 1 of each year.>
  16-11        <Sec. 75.017.>  Regulation of Equipment.  The department by
  16-12  rule may:
  16-13              (1)  provide requirements for all equipment regardless
  16-14  of whether the equipment is required to be licensed; and
  16-15              (2)  regulate or prohibit the use of equipment that may
  16-16  be hazardous in an area of the state<; and>
  16-17              <(3)  define what constitutes an installation of
  16-18  equipment on an aircraft>.
  16-19        Sec. 75.017 <75.018>.  Rules.  (a)  As soon as practicable
  16-20  <Before the 21st day> after receiving <the day on which the
  16-21  department receives, from an interested person,> a written request
  16-22  for a revision of a rule, an exemption from a requirement of this
  16-23  chapter, or a prohibition of the spraying of a regulated herbicide
  16-24  in an area, the department may <shall> hold a public hearing to
  16-25  consider the request.
  16-26        (b)  <Before the 10th day before the day on which a hearing
  16-27  required by this section is held, the department shall deliver
   17-1  notice of the hearing to each holder of a permit or license in the
   17-2  area affected by the hearing.>
   17-3        <(c)>  The department may not hold more than one hearing to
   17-4  consider the condition of a particular area during a 90-day period
   17-5  unless the department determines that more frequent hearings are
   17-6  necessary.
   17-7        (c) <(d)>  The department may <shall> distribute in printed
   17-8  form all rules of the department adopted under this chapter and may
   17-9  <shall> deliver a copy of those rules to each applicant for a
  17-10  permit or license.
  17-11        Sec. 75.018 <75.019>.  ENFORCEMENT.  (a)  The department
  17-12  shall enforce this chapter and rules adopted under this chapter.
  17-13        (b)  If a county or district attorney refuses to act on
  17-14  behalf of the department in its enforcement of this chapter or a
  17-15  rule adopted under this chapter, the attorney general shall act on
  17-16  the department's behalf.
  17-17        Sec. 75.019 <75.020>.  Employees.  The department may employ
  17-18  inspectors and other employees necessary for the proper enforcement
  17-19  of this chapter and rules adopted under this chapter.
  17-20        Sec. 75.020 <75.021>.  County Herbicide Inspector.  (a)  The
  17-21  commissioners court of each county may appoint and compensate
  17-22  persons to be herbicide inspectors for the area designated by the
  17-23  appointment.
  17-24        (b)  A county herbicide inspector shall cooperate with and
  17-25  work under the supervision of the department in enforcing this
  17-26  chapter and rules adopted under it.
  17-27        (c)  A county herbicide inspector has the powers of an
   18-1  employee of the department.
   18-2        Sec. 75.021.  COUNTY REGULATIONS.  <75.022.  APPLICATION OF
   18-3  CHAPTER.  (a)  Because there is no crop or vegetation of value
   18-4  susceptible to damage in the area, Sections 75.006-75.017 of this
   18-5  code do not apply to a county of this state, except Dawson County,
   18-6  that lies north or west of:>
   18-7              <(1)  the southern boundaries of Andrews, Martin,
   18-8  Howard, Mitchell, Nolan, Taylor, Callahan, and Eastland counties;>
   18-9              <(2)  the eastern boundaries of Eastland, Stephens, and
  18-10  Young counties; and>
  18-11              <(3)  the southern and eastern boundaries of Clay
  18-12  County.>
  18-13        <(b)  Sections 75.006-75.017 of this code do not apply to:
  18-14  Bandera, Brewster, Brooks, Burnet, Cameron, Coleman, Coke, Concho,
  18-15  Crane, Crockett, Dimmit, Duval, Edwards, Frio, Gillespie,
  18-16  Glasscock, Hidalgo, Irion, Jeff Davis, Jim Hogg, Jim Wells, Kenedy,
  18-17  Kerr, Kimble, Kinney, Kleberg, LaSalle, Lampasas, Llano, McCulloch,
  18-18  McMullen, Mason, Maverick, Menard, Mills, Montague, Nueces, Panola,
  18-19  Pecos, Presidio, Reagan, Real, Runnels, San Saba, Schleicher,
  18-20  Starr, Sterling, Sutton, Terrell, Tom Green, Upton, Uvalde, Val
  18-21  Verde, Webb, Willacy, Zapata, and Zavala counties.>
  18-22        <(c)  Sections 75.004-75.017 of this code do not apply to
  18-23  Caldwell and Gonzales counties.>
  18-24        <Sec. 75.023.  REVOCATION AND REINSTATEMENT OF EXEMPTION.>
  18-25  (a)  If the commissioners court of a county <exempted by Section
  18-26  75.022 of this code> determines that a crop or vegetation of value
  18-27  that is susceptible to being adversely affected by the application
   19-1  of a regulated herbicide <damage> exists in the county or a portion
   19-2  of the county and evidences its determination by an appropriate
   19-3  order entered in the minutes of the court, Sections 75.006-75.016
   19-4  <75.017> of this code become effective in that county or portion of
   19-5  the county on January 1 of the year following entry of the order
   19-6  <immediately on entry of the order>.
   19-7        (b)  If the commissioners court of a county<, all or a part
   19-8  of which has been removed from the exemption of Section 75.022 of
   19-9  this code under Subsection (a) of this section,> determines that
  19-10  there is no longer a crop or vegetation susceptible to being
  19-11  adversely affected by the application of a regulated herbicide  <to
  19-12  damage> in that county or portion of the county, the court may
  19-13  order that Sections 75.006-75.016 are no longer effective in the
  19-14  county or portion of the county.  The commissioners court shall
  19-15  enter the order in the minutes of the court.  The order takes
  19-16  effect on January 1 of the year following entry of the order <the
  19-17  exemption reinstated>.
  19-18        (c)  The department shall adopt rules concerning the use of a
  19-19  regulated herbicide in a county in which a commissioners court has
  19-20  entered an order under Subsection (a) of this section <If the
  19-21  commissioners court of a county that is subject to this chapter
  19-22  determines that there is no crop or vegetation of value susceptible
  19-23  to damage in the county or a portion of the county, the court by
  19-24  order may exempt the county or that portion of the county from the
  19-25  application of Sections 75.006-75.017 of this code>.
  19-26        (d)  On request by a commissioners court of a county in which
  19-27  Sections 75.006-75.016 of this code are in effect, and a
   20-1  determination by the department that an emergency exists, the
   20-2  department may suspend county regulations concerning the dates for
   20-3  application of regulated herbicides.  Only an imminent threat to
   20-4  agricultural interests in a county that, if not immediately
   20-5  addressed, would create a significant economic loss to producers
   20-6  and ranchers in the county is an emergency for purposes of this
   20-7  subsection  <If a county or a portion of a county has been exempted
   20-8  under Subsection (c) of this section, the commissioners court may
   20-9  hold a hearing and enter an order revoking that exemption>.
  20-10        (e)  Before an order may be entered under this section, the
  20-11  commissioners court shall hold a hearing to determine whether the
  20-12  order should be issued.  The hearing may be held only once each
  20-13  year and only in the month of October, November, or December.
  20-14  Before the 10th day before the day on which the hearing is to be
  20-15  held, the commissioners court shall give notice of the hearing in
  20-16  at least one newspaper in the county.
  20-17        (f)  Before the 21st day after the day on which an order is
  20-18  entered, an interested person may appeal an order of a
  20-19  commissioners court issued under this section to district court to
  20-20  test the reasonableness of the commissioners court's fact-finding.
  20-21  On appeal, the district court shall follow the rules governing
  20-22  judicial review of contested cases under Section 19, Administrative
  20-23  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
  20-24  Civil Statutes), and shall apply the substantial evidence rule.
  20-25  Appeals may be taken from the district court as in other civil
  20-26  cases.
  20-27        (g)  <An order issued by the commissioners court under this
   21-1  section becomes effective January 1 of the year following the date
   21-2  of the hearing.>
   21-3        <(h)>  The commissioners court shall notify the department of
   21-4  a change in the status of the <exemption of a> county or a portion
   21-5  of a county under this section.
   21-6        Sec. 75.022 <75.024>.  Penalties.  (a)  A person commits an
   21-7  offense if the person:
   21-8              (1)  applies a herbicide without a permit in violation
   21-9  of Section 75.006 of this code;
  21-10              (2)  acts in violation of Section 75.004(a) of this
  21-11  code;
  21-12              (3)  has a permit to apply a powder or dry-type
  21-13  herbicide and applies a herbicide that does not meet the
  21-14  requirements of Section 75.009 of this code;
  21-15              (4)  violates a rule adopted under <operates unlicensed
  21-16  equipment in violation of> Section 75.016 of this code;
  21-17              (5)  fails to keep or submit records in violation of
  21-18  Sections 75.005 and 75.013 of this code; or
  21-19              (6)  violates or fails to comply with a rule adopted
  21-20  under this chapter.
  21-21        (b)  An offense under this section is a Class A misdemeanor.
  21-22        (c)  Section 76.1555 of this code, which provides for the
  21-23  assessment of administrative penalties, applies to a person who
  21-24  violates this chapter or a rule or order adopted by the department
  21-25  under this chapter.
  21-26        (d)  A penalty provided by this section does not affect the
  21-27  civil liability of a person convicted under this section.
   22-1        Sec. 75.023.  CIVIL PENALTY.  (a)  A person who violates this
   22-2  chapter or a rule adopted by the department under this chapter is
   22-3  liable for a civil penalty of not less than $50 or more than
   22-4  $10,000 for each violation.  A penalty under this subsection may
   22-5  not exceed $25,000 for all violations related to a single incident.
   22-6        (b)  A civil penalty may not be collected for a violation
   22-7  that constituted the basis for a department proceeding to assess an
   22-8  administrative penalty regardless of whether the department was or
   22-9  was not successful in collecting the administrative penalty.
  22-10        (c)  A county attorney, a district attorney, or the attorney
  22-11  general shall sue in the name of the state for the collection of a
  22-12  civil penalty provided by this section.
  22-13        (d)  A local government may request an appropriate
  22-14  prosecuting attorney to bring suit under this section.
  22-15        (e)  A civil penalty collected by the attorney general under
  22-16  this section shall be deposited in the state treasury to the credit
  22-17  of the general revenue fund.  A civil penalty recovered in a suit
  22-18  first instituted by a local government under this section shall be
  22-19  divided equally between the state and the local government with 50
  22-20  percent of the recovery to be paid to the general revenue fund and
  22-21  the other 50 percent to the local government instituting the suit.
  22-22  If more than one local government instituted the suit, the local
  22-23  governments' share shall be divided equally between or among the
  22-24  local governments.
  22-25        SECTION 2.  A civil penalty authorized under Section 75.023,
  22-26  Agriculture Code, as added by this Act, may be imposed only for a
  22-27  violation that occurs on or after the effective date of this Act.
   23-1  For purposes of this section, a violation occurs before the
   23-2  effective date of this Act if any element of the violation occurs
   23-3  before the effective date.
   23-4        SECTION 3.  This Act takes effect September 1, 1993.
   23-5        SECTION 4.  The importance of this legislation and the
   23-6  crowded condition of the calendars in both houses create an
   23-7  emergency and an imperative public necessity that the
   23-8  constitutional rule requiring bills to be read on three several
   23-9  days in each house be suspended, and this rule is hereby suspended.