By Cuellar of Hidalgo H.B. No. 2475
74R7792 E
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the handling and marketing of citrus fruits and
1-3 vegetables and to the produce recovery fund.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 101.002(a), Agriculture Code, is amended
1-6 to read as follows:
1-7 (a) This chapter applies to vegetables whether or not packed
1-8 in ice or held in cold storage, but only if grown in this state,
1-9 and does not apply to vegetables that have been manufactured into
1-10 an article of food of a different kind or character.
1-11 SECTION 2. Section 101.003, Agriculture Code, is amended by
1-12 adding Subsection (c) to read as follows:
1-13 (c) A person who holds a license under this section is also
1-14 considered, without paying an additional fee, to hold a license or
1-15 be registered under Section 102.003 of this code.
1-16 SECTION 3. Section 101.004, Agriculture Code, is amended to
1-17 read as follows:
1-18 Sec. 101.004. LICENSE AND REGISTRATION CATEGORIES. (a) A
1-19 person who is required by Section 101.003 of this code to be
1-20 licensed or registered shall apply to the department for the
1-21 appropriate <licensing in the> category described by this section
1-22 that is appropriate to the actions of the person.
1-23 (b) A person shall apply for a license <licensing as a
1-24 commission merchant> if the person:
2-1 (1) purchases vegetables on credit;
2-2 (2) takes possession of vegetables for consignment or
2-3 handling on behalf of the producer or owner of the vegetables; or
2-4 (3) takes possession of vegetables for consignment or
2-5 handling in a manner that does not require or result in payment to
2-6 the producer, seller, or consignor of the full amount of the
2-7 purchase price in United States currency at the time of delivery or
2-8 at the time that the vegetables pass from the producer, seller, or
2-9 consignor to the person.
2-10 (c) A person shall register <apply for licensing> as a cash
2-11 dealer if the person purchases vegetables and pays for the
2-12 vegetables in United States currency before or at the time of
2-13 delivery or taking possession.
2-14 <(d) A person shall apply for licensing as a retailer if the
2-15 person:>
2-16 <(1) has annual sales of vegetables and citrus fruit
2-17 that comprise 75 percent or more of the retailer's total sales; or>
2-18 <(2) employs a buying agent who buys directly from a
2-19 producer.>
2-20 SECTION 4. The section heading to Section 101.005 and
2-21 Section 101.005(a), Agriculture Code, are amended to read as
2-22 follows:
2-23 Sec. 101.005. APPLICATION FOR LICENSE OR REGISTRATION.
2-24 (a) A person required under Section 101.003 of this code to be
2-25 licensed or registered shall apply <for a license> to the
2-26 department on a form furnished by the department. The application
2-27 must be made under oath and contain the following information:
3-1 (1) the full name of the applicant and whether the
3-2 applicant is an individual, partnership, corporation, exchange, or
3-3 association;
3-4 (2) the full name and address of the principal
3-5 business office of the applicant;
3-6 (3) the address of the applicant's principal business
3-7 office in this state;
3-8 (4) if the applicant is a foreign corporation, the
3-9 state in which the corporation is chartered and the name and
3-10 address of an agent in this state for service of legal process; and
3-11 (5) the length of time that the applicant has been
3-12 engaged in business in this state; <and>
3-13 <(6) the category of license for which the applicant
3-14 is applying.>
3-15 SECTION 5. Section 101.006, Agriculture Code, is amended to
3-16 read as follows:
3-17 Sec. 101.006. FEES <LICENSE FEE>. (a) Except as otherwise
3-18 provided by this section, a person applying for a license shall
3-19 include with the license application a license fee of $75.
3-20 (b) The registration <license> fee for a cash dealer is $25.
3-21 <(c) Except as otherwise provided by this section, a person
3-22 who applies for a license as a commission merchant or retailer
3-23 under both this chapter and Chapter 102 of this code is entitled to
3-24 pay a single license fee of $75. The person's license shall
3-25 reflect that the person is licensed to handle both citrus fruit and
3-26 vegetables.>
3-27 <(d) A person who applies for a license under Subsection (b)
4-1 of this section and Subsection (b) of Section 102.006 of this code
4-2 is entitled to pay a single license fee of $25. The person's
4-3 license shall reflect that the person is licensed to handle both
4-4 citrus fruit and vegetables.>
4-5 SECTION 6. Sections 101.010(a), (c), and (e), Agriculture
4-6 Code, are amended to read as follows:
4-7 (a) In accordance with the rules of the department, a
4-8 license holder <person licensed as a commission merchant or
4-9 retailer> may apply to the department for a reasonable number of
4-10 identification cards for:
4-11 (1) transporting agents to act for the licensee in the
4-12 transporting of vegetables; and
4-13 (2) buying agents to act for the licensee in any act
4-14 requiring licensing under Section 101.003 of this code.
4-15 (c) An identification card must bear:
4-16 (1) the name of the license holder <licensee>;
4-17 (2) the number of the license holder's <licensee's>
4-18 license;
4-19 (3) the name of the agent; and
4-20 (4) a statement that the license holder <licensee>, as
4-21 principal, has authorized the agent named on the card to act for
4-22 and on behalf of the license holder <licensee>, either as buying
4-23 agent or transporting agent, as applicable.
4-24 (e) If the holder of an identification card ceases to be the
4-25 agent of the license holder <licensee>, the agent shall immediately
4-26 return the card to the department for cancellation.
4-27 SECTION 7. Sections 101.020(a) and (c), Agriculture Code,
5-1 are amended to read as follows:
5-2 (a) A person commits an offense if the person:
5-3 (1) acts in violation of Section 101.003 of this code
5-4 by not <without first> obtaining a license or registration or after
5-5 receiving notice of cancellation of a license or registration;
5-6 (2) <acts or assumes to act as a commission merchant
5-7 without first obtaining a license as a commission merchant;>
5-8 <(3)> acts or assumes to act as a transporting agent
5-9 or buying agent without first obtaining an identification card;
5-10 (3) <(4)> as a transporting agent or buying agent,
5-11 fails and refuses to turn over to the department an identification
5-12 card in accordance with Section 101.010(e) of this code;
5-13 (4) <(5)> as a license holder <licensee>, fails to
5-14 furnish information under Section 101.017 of this code before the
5-15 11th day following the date of demand;
5-16 (5) <(6)> as a license holder <licensee>, fails to
5-17 settle with a producer or seller on the grade and quality of
5-18 vegetables in the manner provided by Section 101.015 of this code;
5-19 (6) <(7)> as a cash dealer, pays for vegetables by a
5-20 means other than United States currency;
5-21 (7) <(8)> as a license holder <licensee>, transporting
5-22 agent, or buying agent, violates a provision of this chapter; or
5-23 (8) <(9) acts or assumes to act as a retailer without
5-24 first obtaining a license as a retailer; or>
5-25 <(10)> acts or assumes to act as a cash dealer without
5-26 first registering <obtaining a license> as a cash dealer.
5-27 (c) A person commits a separate offense for each day the
6-1 person acts in violation of Section 101.003 of this code without
6-2 first obtaining a license or registration or violates Subsection
6-3 (a)(2) <or (a)(3)> of this section.
6-4 SECTION 8. Section 102.003, Agriculture Code, is amended by
6-5 adding Subsection (c) to read as follows:
6-6 (c) A person who holds a license or is registered under this
6-7 section is also considered, without paying an additional fee, to
6-8 hold a license or be registered under Section 101.003 of this code.
6-9 SECTION 9. Section 102.004, Agriculture Code, is amended to
6-10 read as follows:
6-11 Sec. 102.004. LICENSE AND REGISTRATION CATEGORIES. (a) A
6-12 person who is required by Section 102.003 of this code to be
6-13 licensed or registered shall apply to the department for the
6-14 appropriate <licensing in the> category described by this section
6-15 that is appropriate to the actions of the person.
6-16 (b) A person shall apply for a license <licensing as a
6-17 commission merchant> if the person:
6-18 (1) purchases citrus fruit on credit;
6-19 (2) takes possession of citrus fruit for consignment
6-20 or handling on behalf of the producer or owner of the fruit; or
6-21 (3) takes possession of citrus fruit for consignment
6-22 or handling in a manner or under a contract that does not require
6-23 or result in payment to the producer, seller, or consignor of the
6-24 full amount of the purchase price in United States currency at the
6-25 time of delivery or at the time the citrus fruit passes from the
6-26 producer or seller to the person.
6-27 (c) A person shall register <apply for licensing> as a cash
7-1 dealer if the person purchases citrus fruit and pays for the citrus
7-2 fruit in United States currency before or at the time of delivery
7-3 or taking possession.
7-4 <(d) A person shall apply for licensing as a retailer if the
7-5 person:>
7-6 <(1) has annual sales of citrus fruit and vegetables
7-7 that comprise 75 percent or more of the retailer's total sales; or>
7-8 <(2) employs a buying agent who buys directly from a
7-9 producer.>
7-10 SECTION 10. The section heading of Section 102.005, and
7-11 Section 102.005(a), Agriculture Code, are amended to read as
7-12 follows:
7-13 Sec. 102.005. APPLICATION FOR LICENSE OR REGISTRATION.
7-14 (a) A person required under Section 102.003 of this code to be
7-15 licensed or registered shall apply for a license or registration
7-16 to the department on a form furnished by the department. The
7-17 application must be made under oath and contain the following
7-18 information:
7-19 (1) the full name of the applicant and whether the
7-20 applicant is an individual, partnership, corporation, exchange, or
7-21 association;
7-22 (2) the full name and address of the principal
7-23 business office of the applicant;
7-24 (3) the address of the applicant's principal business
7-25 office in this state;
7-26 (4) if the applicant is a foreign corporation, the
7-27 state in which the corporation is chartered and the name and
8-1 address of an agent in this state for service of legal process; and
8-2 (5) <the category of license for which the applicant
8-3 is applying; and>
8-4 <(6)> the length of time that the applicant has been
8-5 engaged in business in this state.
8-6 SECTION 11. Section 102.006, Agriculture Code is amended to
8-7 read as follows:
8-8 Sec. 102.006. FEES <LICENSE FEE>. (a) Except as otherwise
8-9 provided by this section, a person applying for a license shall
8-10 include with the license application a license fee of $75.
8-11 (b) The registration <license> fee for a cash dealer is $25.
8-12 <(c) Except as otherwise provided by this section, a person
8-13 who applies for a license as a commission merchant or retailer
8-14 under both this chapter and Chapter 101 of this code is entitled to
8-15 pay a single license fee of $75. The person's license shall
8-16 reflect that the person is licensed to handle both citrus fruit and
8-17 vegetables.>
8-18 <(d) A person who applies for a license under Subsection (b)
8-19 of this section and Subsection (b) of Section 101.006 of this code
8-20 is entitled to pay a single license fee of $25. The person's
8-21 license shall reflect that the person is licensed to handle both
8-22 citrus fruit and vegetables.>
8-23 SECTION 12. Sections 102.010(a), (c), and (e), Agriculture
8-24 Code, are amended to read as follows:
8-25 (a) In accordance with the rules of the department, a
8-26 license holder <person licensed as a commission merchant or
8-27 retailer> may apply to the department for a reasonable number of
9-1 identification cards for:
9-2 (1) transporting agents to act for the license holder
9-3 <licensee> in the transporting of citrus fruits; and
9-4 (2) buying agents to act for the license holder
9-5 <licensee> in any act requiring licensing under Section 102.003 of
9-6 this code.
9-7 (c) An identification card must bear:
9-8 (1) the name of the license holder <licensee>;
9-9 (2) the number of the license holder's <licensee's>
9-10 license;
9-11 (3) the name of the agent; and
9-12 (4) a statement that the license holder <licensee>, as
9-13 principal, has authorized the agent named on the card to act for
9-14 and on behalf of the license holder <licensee>, either as buying
9-15 agent or transporting agent, as applicable.
9-16 (e) If the holder of an identification card ceases to be the
9-17 agent of the license holder <licensee>, the agent shall immediately
9-18 return the card to the department for cancellation.
9-19 SECTION 13. Section 102.016, Agriculture Code, is amended to
9-20 read as follows:
9-21 Sec. 102.016. BUYING BY WEIGHT. A license holder <licensee>
9-22 who buys citrus fruit by weight shall weigh the fruit on
9-23 state-registered <state-tested> scales.
9-24 SECTION 14. Sections 102.021(a), (c), and (d), Agriculture
9-25 Code, are amended to read as follows:
9-26 (a) A person commits an offense if the person:
9-27 (1) acts in violation of Section 102.003 of this code
10-1 by not obtaining <without> a license or after receiving notice of
10-2 cancellation of a license;
10-3 (2) <acts or assumes to act as a commission merchant
10-4 without a license as a commission merchant;>
10-5 <(3)> acts or assumes to act as a transporting agent
10-6 or buying agent without an identification card or after receiving
10-7 notice of cancellation of an identification card;
10-8 (3) <(4)> as a transporting agent or buying agent,
10-9 fails and refuses to turn over to the department an identification
10-10 card in accordance with Section 102.010(e) of this code;
10-11 (4) <(5)> as a license holder <licensee>, fails to
10-12 furnish information under Section 102.018 of this code before the
10-13 11th day following the date of demand;
10-14 (5) <(6)> as a license holder <licensee>, buys citrus
10-15 fruit by weight and does not have the fruit weighed on
10-16 state-registered <state-tested> scales;
10-17 (6) <(7)> as a license holder <licensee>, fails to
10-18 settle with a producer or seller on the grade and quality of citrus
10-19 fruit in the manner provided by Section 102.015 of this code;
10-20 (7) <(8)> as a cash dealer, pays for citrus fruit by a
10-21 means other than United States currency;
10-22 (8) <(9)> fails to maintain records required by
10-23 Section 102.017(b) of this code;
10-24 (9) <(10)> as a license holder <licensee>,
10-25 transporting agent, or buying agent, violates a provision of this
10-26 subchapter;
10-27 <(11) acts or assumes to act as a retailer without a
11-1 license as a retailer;> or
11-2 (10) <(12)> acts or assumes to act as a cash dealer
11-3 without being registered <a license> as a cash dealer.
11-4 (c) A person commits a separate offense for each day the
11-5 person acts under Subsection (a)(1) or<,> (a)(2)<, or (a)(3)> of
11-6 this section.
11-7 (d) An offense under Subsection (a)(8) <(a)(9)> of this
11-8 section is a misdemeanor punishable by a fine of not more than
11-9 $100, unless the defendant has been previously convicted of an
11-10 offense under that subsection. A second offense is punishable by a
11-11 fine of more than $100 but not more than $200. A third or
11-12 subsequent offense is punishable by a fine of $500.
11-13 SECTION 15. Section 103.005, Agriculture Code, is amended to
11-14 read as follows:
11-15 Sec. 103.005. INITIATION OF CLAIM. (a) A person who deals
11-16 with a license holder <commission merchant or retailer licensed>
11-17 under Chapter 101 or 102 of this code in the purchasing, handling,
11-18 selling, and accounting for sales of vegetables or citrus fruit and
11-19 who is aggrieved by an action of the license holder <commission
11-20 merchant or retailer> as a result of a violation of terms or
11-21 conditions of a contract made by the license holder for the sale of
11-22 Texas-grown produce <commission merchant or retailer> may initiate
11-23 a claim against the fund by filing with the department:
11-24 (1) a sworn complaint against the license holder
11-25 <commission merchant or retailer>; and
11-26 (2) a filing fee of $15.
11-27 (b) A complaint and the fee under Subsection (a) of this
12-1 section must be filed on or before the first anniversary of the
12-2 date of the violation, or recovery from the fund is barred.
12-3 SECTION 16. Section 103.0055, Agriculture Code, is amended
12-4 to read as follows:
12-5 Sec. 103.0055. BANKRUPTCY OF LICENSE HOLDER <MERCHANT OR
12-6 RETAILER>. For purposes of this chapter, the amount due an
12-7 aggrieved party by a license holder <commission merchant or
12-8 retailer> is not affected by a final judgment of a bankruptcy court
12-9 that releases the license holder <commission merchant or retailer>
12-10 from the legal duty to satisfy the claim.
12-11 SECTION 17. Section 103.006(a), Agriculture Code, is amended
12-12 to read as follows:
12-13 (a) After a claim is initiated, the department shall
12-14 investigate the complaint and determine the amount due the
12-15 aggrieved party. If the amount determined by the department is
12-16 disputed by the license holder <commission merchant or retailer> or
12-17 the aggrieved party, the board shall conduct a hearing on the claim
12-18 and determine the amount due the aggrieved party.
12-19 SECTION 18. Section 103.007(a), Agriculture Code, is amended
12-20 to read as follows:
12-21 (a) If the amount determined by the department's
12-22 investigation to be due the aggrieved party is not disputed by the
12-23 license holder <commission merchant or retailer> or the aggrieved
12-24 party, the department shall pay the claim within the limits
12-25 prescribed by this chapter.
12-26 SECTION 19. Section 103.008, Agriculture Code, is amended by
12-27 amending Subsections (a), (b), (c), and (d) and adding Subsection
13-1 (f) to read as follows:
13-2 (a) In making payments from the fund the department can <may
13-3 not> pay the aggrieved party all of the first $1,000 of any claim
13-4 and no more than 60 percent of the <any> claim above <for more
13-5 than> $1,000.
13-6 (b) The total payment of all claims arising from the same
13-7 contract with a license holder <transaction> may not exceed
13-8 $20,000.
13-9 (c) The total payment of claims against a single license
13-10 holder <commission merchant or retailer> may not exceed $50,000 in
13-11 any one calendar year.
13-12 (d) The department may not pay a claim against:
13-13 (1) a person <commission merchant or retailer> who was
13-14 not licensed on the date the contract <at the time of the
13-15 transaction> on which the claim is based was entered into; or
13-16 (2) a cash dealer licensed under Chapter 101 or 102 of
13-17 this code.
13-18 (f) If a license holder owes money to the produce recovery
13-19 fund at the time the license holder makes a claim against the fund,
13-20 the department shall offset the amount owed to the fund from the
13-21 amount dispensed.
13-22 SECTION 20. Section 103.009, Agriculture Code, is amended to
13-23 read as follows:
13-24 Sec. 103.009. REIMBURSEMENT OF FUND AND PAYMENT TO
13-25 COMPLAINING PARTY BY LICENSE HOLDER <LICENSEE>. (a) If the
13-26 department pays a claim against a license holder <commission
13-27 merchant or retailer>, the license holder <commission merchant or
14-1 retailer> shall:
14-2 (1) reimburse the fund immediately or agree in writing
14-3 to reimburse the fund on a schedule to be determined by rule of the
14-4 department; and
14-5 (2) immediately pay the aggrieved party any amount due
14-6 that party or agree in writing to pay the aggrieved party on a
14-7 schedule to be determined by rule of the department.
14-8 (b) Payments made to the fund or to the aggrieved party
14-9 under this section shall include interest at the rate of eight
14-10 percent a year.
14-11 (c) If the license holder <commission merchant or retailer>
14-12 does not reimburse the fund or pay the aggrieved party, or does not
14-13 agree to do so, in accordance with this section, the department
14-14 shall issue an order canceling the license <of the commission
14-15 merchant or retailer> and may not issue a new license to that
14-16 person for four years from the date of cancellation. If the
14-17 license holder <commission merchant or retailer> is a corporation,
14-18 an officer or director of the corporation or a person owning more
14-19 than 25 percent of the stock in the corporation may not be licensed
14-20 <as a commission merchant or retailer> under Chapter 101 or 102 of
14-21 this code during the four-year period in which the corporation is
14-22 ineligible for licensing.
14-23 (d) This section does not apply to a license holder
14-24 <commission merchant or retailer> who is released by a final
14-25 judgment of a bankruptcy court from the legal duty to satisfy the
14-26 claim paid by the department.
14-27 SECTION 21. Section 103.010, Agriculture Code, is amended to
15-1 read as follows:
15-2 Sec. 103.010. SUBROGATION OF RIGHTS. If the department pays
15-3 a claim against a license holder <commission merchant or retailer>,
15-4 the department is subrogated to all rights of the aggrieved party
15-5 against the license holder <commission merchant or retailer> to the
15-6 extent of the amount paid to the aggrieved party.
15-7 SECTION 22. Section 103.011, Agriculture Code, is amended to
15-8 read as follows:
15-9 Sec. 103.011. FEE. (a) Except as otherwise provided by
15-10 this section, a license holder <commission merchant or retailer>
15-11 licensed under Chapter 101 or 102 of this code shall pay an annual
15-12 fee to the fund of $200.
15-13 (b) <A retailer who is licensed under Chapter 101 or 102 of
15-14 this code and whose annual purchases of vegetables and citrus fruit
15-15 are less than $15,000 a year shall pay an annual fee of $50.>
15-16 <(c) A person who is required by Subsection (a) of this
15-17 section to pay a fee of $200 and who is licensed in one of those
15-18 classifications under both Chapters 101 and 102 of this code may
15-19 pay a single fee of $250. A person who is required by Subsection
15-20 (b) of this section to pay a $50 fee and who is licensed in that
15-21 classification under both Chapters 101 and 102 of this code may pay
15-22 a single fee of $75.>
15-23 <(d)> A person registered <licensed> as a cash dealer or a
15-24 marketing association organized under Chapter 52 of this code that
15-25 handles citrus fruit only for its members is exempt from payment of
15-26 the fee under this section.
15-27 (c) <(e)> The fee is in addition to any licensing fee paid
16-1 and is due at the time of making the license application. The
16-2 department may not issue a license to a person who fails to pay the
16-3 fee.
16-4 SECTION 23. Section 103.013(a), Agriculture Code, is amended
16-5 to read as follows:
16-6 (a) A person commits an offense if the person acts or
16-7 assumes to act as a license holder <commission merchant or
16-8 retailer> under Chapter 101 or 102 of this code without first
16-9 paying the fee required by this chapter.
16-10 SECTION 24. A license, registration, or identification card
16-11 that is issued under Chapter 101 or 102, Agriculture Code, and that
16-12 is valid on the effective date of this Act remains valid until it
16-13 expires or is revoked or suspended.
16-14 SECTION 25. This Act takes effect September 1, 1995.
16-15 SECTION 26. The importance of this legislation and the
16-16 crowded condition of the calendars in both houses create an
16-17 emergency and an imperative public necessity that the
16-18 constitutional rule requiring bills to be read on three several
16-19 days in each house be suspended, and this rule is hereby suspended.