By Bivins S.B. No. 251
74R2940 JRD-D
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 101.003, Agriculture Code, is amended by
1-6 amending Subsection (b) and adding Subsection (c) to read as
1-7 follows:
1-8 (b) This section does not apply to:
1-9 (1) a retailer, unless the retailer:
1-10 (A) has annual sales of vegetables and citrus
1-11 fruit that comprise 75 percent or more of the retailer's total
1-12 sales; or
1-13 (B) employs a buying agent who buys directly
1-14 from a producer; <or>
1-15 (2) a producer who handles or deals exclusively in the
1-16 producer's own products; or
1-17 (3) a person paying for a vegetable in currency at or
1-18 before the time delivery is made or possession is taken.
1-19 (c) A person who holds a license under this section is also
1-20 considered, without paying an additional fee, to hold a license
1-21 under Section 102.003 of this code.
1-22 SECTION 2. Section 101.005(a), Agriculture Code, is amended
1-23 to read as follows:
1-24 (a) A person required under Section 101.003 of this code to
2-1 be licensed shall apply for a license to the department on a form
2-2 furnished by the department. The application must be made under
2-3 oath and contain the following information:
2-4 (1) the full name of the applicant and whether the
2-5 applicant is an individual, partnership, corporation, exchange, or
2-6 association;
2-7 (2) the full name and address of the principal
2-8 business office of the applicant;
2-9 (3) the address of the applicant's principal business
2-10 office in this state;
2-11 (4) if the applicant is a foreign corporation, the
2-12 state in which the corporation is chartered and the name and
2-13 address of an agent in this state for service of legal process; and
2-14 (5) the length of time that the applicant has been
2-15 engaged in business in this state<; and>
2-16 <(6) the category of license for which the applicant
2-17 is applying>.
2-18 SECTION 3. Section 101.006, Agriculture Code, is amended to
2-19 read as follows:
2-20 Sec. 101.006. License Fee. A <(a) Except as otherwise
2-21 provided by this section, a> person applying for a license shall
2-22 include with the license application a license fee of $100 <$75>.
2-23 <(b) The license fee for a cash dealer is $25.>
2-24 <(c) Except as otherwise provided by this section, a person
2-25 who applies for a license as a commission merchant or retailer
2-26 under both this chapter and Chapter 102 of this code is entitled to
2-27 pay a single license fee of $75. The person's license shall
3-1 reflect that the person is licensed to handle both citrus fruit and
3-2 vegetables.>
3-3 <(d) A person who applies for a license under Subsection (b)
3-4 of this section and Subsection (b) of Section 102.006 of this code
3-5 is entitled to pay a single license fee of $25. The person's
3-6 license shall reflect that the person is licensed to handle both
3-7 citrus fruit and vegetables.>
3-8 SECTION 4. Sections 101.010(a) and (b), Agriculture Code,
3-9 are amended to read as follows:
3-10 (a) In accordance with the rules of the department, a
3-11 license holder <person licensed as a commission merchant or
3-12 retailer> may apply to the department for a reasonable number of
3-13 identification cards for:
3-14 (1) transporting agents to act for the license holder
3-15 <licensee> in the transporting of vegetables; and
3-16 (2) buying agents to act for the license holder
3-17 <licensee> in any act requiring licensing under Section 101.003 of
3-18 this code.
3-19 (b) The department may collect a fee not to exceed $10 <$5>
3-20 for each card and shall issue transporting agent cards in a color
3-21 different from buying agent cards.
3-22 SECTION 5. Section 101.020(a), Agriculture Code, is amended
3-23 to read as follows:
3-24 (a) A person commits an offense if the person:
3-25 (1) acts in violation of Section 101.003 of this code
3-26 without first obtaining a license or after receiving notice of
3-27 cancellation of a license;
4-1 (2) <acts or assumes to act as a commission merchant
4-2 without first obtaining a license as a commission merchant;>
4-3 <(3)> acts or assumes to act as a transporting agent
4-4 or buying agent without first obtaining an identification card;
4-5 (3) <(4)> as a transporting agent or buying agent,
4-6 fails and refuses to turn over to the department an identification
4-7 card in accordance with Section 101.010(e) of this code;
4-8 (4) <(5)> as a license holder <licensee>, fails to
4-9 furnish information under Section 101.017 of this code before the
4-10 11th day following the date of demand;
4-11 (5) <(6)> as a license holder <licensee>, fails to
4-12 settle with a producer or seller on the grade and quality of
4-13 vegetables in the manner provided by Section 101.015 of this code;
4-14 or
4-15 (6) <(7) as a cash dealer, pays for vegetables by a
4-16 means other than United States currency;>
4-17 <(8)> as a license holder <licensee>, transporting
4-18 agent, or buying agent, violates a provision of this chapter<;>
4-19 <(9) acts or assumes to act as a retailer without
4-20 first obtaining a license as a retailer; or>
4-21 <(10) acts or assumes to act as a cash dealer without
4-22 first obtaining a license as a cash dealer>.
4-23 SECTION 6. Section 102.003, Agriculture Code, is amended by
4-24 amending Subsection (b) and adding Subsection (c) to read as
4-25 follows:
4-26 (b) This section does not apply to:
4-27 (1) a retailer, unless the retailer:
5-1 (A) has annual sales of citrus fruit and
5-2 vegetables that comprise 75 percent or more of the retailer's total
5-3 sales; or
5-4 (B) employs a buying agent who buys directly
5-5 from a producer;
5-6 (2) a person shipping less than six standard boxes of
5-7 citrus fruit in any one separate shipment;
5-8 (3) a person who ships a noncommercial shipment of
5-9 citrus fruit; <or>
5-10 (4) a producer who handles or deals exclusively in the
5-11 producer's own products; or
5-12 (5) a person paying for citrus fruit in currency at or
5-13 before the time delivery is made or possession is taken.
5-14 (c) A person who holds a license under this section is also
5-15 considered, without paying an additional fee, to hold a license
5-16 under Section 101.003 of this code.
5-17 SECTION 7. Section 102.005(a), Agriculture Code, is amended
5-18 to read as follows:
5-19 (a) A person required under Section 102.003 of this code to
5-20 be licensed shall apply for a license to the department on a form
5-21 furnished by the department. The application must be made under
5-22 oath and contain the following information:
5-23 (1) the full name of the applicant and whether the
5-24 applicant is an individual, partnership, corporation, exchange, or
5-25 association;
5-26 (2) the full name and address of the principal
5-27 business office of the applicant;
6-1 (3) the address of the applicant's principal business
6-2 office in this state;
6-3 (4) if the applicant is a foreign corporation, the
6-4 state in which the corporation is chartered and the name and
6-5 address of an agent in this state for service of legal process; and
6-6 (5) <the category of license for which the applicant
6-7 is applying; and>
6-8 <(6)> the length of time that the applicant has been
6-9 engaged in business in this state.
6-10 SECTION 8. Section 102.006, Agriculture Code, is amended to
6-11 read as follows:
6-12 Sec. 102.006. License Fee. A <(a) Except as otherwise
6-13 provided by this section, a> person applying for a license shall
6-14 include with the license application a license fee of $100 <$75>.
6-15 <(b) The license fee for a cash dealer is $25.>
6-16 <(c) Except as otherwise provided by this section, a person
6-17 who applies for a license as a commission merchant or retailer
6-18 under both this chapter and Chapter 101 of this code is entitled to
6-19 pay a single license fee of $75. The person's license shall
6-20 reflect that the person is licensed to handle both citrus fruit and
6-21 vegetables.>
6-22 <(d) A person who applies for a license under Subsection (b)
6-23 of this section and Subsection (b) of Section 101.006 of this code
6-24 is entitled to pay a single license fee of $25. The person's
6-25 license shall reflect that the person is licensed to handle both
6-26 citrus fruit and vegetables.>
6-27 SECTION 9. Sections 102.010(a) and (b), Agriculture Code,
7-1 are amended to read as follows:
7-2 (a) In accordance with the rules of the department, a
7-3 license holder <person licensed as a commission merchant or
7-4 retailer> may apply to the department for a reasonable number of
7-5 identification cards for:
7-6 (1) transporting agents to act for the license holder
7-7 <licensee> in the transporting of citrus fruits; and
7-8 (2) buying agents to act for the license holder
7-9 <licensee> in any act requiring licensing under Section 102.003 of
7-10 this code.
7-11 (b) The department may collect a fee not to exceed $10 <$1>
7-12 for each card and shall issue transporting agent cards in a color
7-13 different from buying agent cards.
7-14 SECTION 10. Section 102.021(a), Agriculture Code, is amended
7-15 to read as follows:
7-16 (a) A person commits an offense if the person:
7-17 (1) acts in violation of Section 102.003 of this code
7-18 without a license or after receiving notice of cancellation of a
7-19 license;
7-20 (2) <acts or assumes to act as a commission merchant
7-21 without a license as a commission merchant;>
7-22 <(3)> acts or assumes to act as a transporting agent
7-23 or buying agent without an identification card or after receiving
7-24 notice of cancellation of an identification card;
7-25 (3) <(4)> as a transporting agent or buying agent,
7-26 fails and refuses to turn over to the department an identification
7-27 card in accordance with Section 102.010(e) of this code;
8-1 (4) <(5)> as a license holder <licensee>, fails to
8-2 furnish information under Section 102.018 of this code before the
8-3 11th day following the date of demand;
8-4 (5) <(6)> as a license holder <licensee>, buys citrus
8-5 fruit by weight and does not have the fruit weighed on state-tested
8-6 scales;
8-7 (6) <(7)> as a license holder <licensee>, fails to
8-8 settle with a producer or seller on the grade and quality of citrus
8-9 fruit in the manner provided by Section 102.015 of this code;
8-10 (7) <(8) as a cash dealer, pays for citrus fruit by a
8-11 means other than United States currency;>
8-12 <(9)> fails to maintain records required by Section
8-13 102.017(b) of this code; or
8-14 (8) <(10)> as a license holder <licensee>,
8-15 transporting agent, or buying agent, violates a provision of this
8-16 subchapter<;>
8-17 <(11) acts or assumes to act as a retailer without a
8-18 license as a retailer; or>
8-19 <(12) acts or assumes to act as a cash dealer without
8-20 a license as a cash dealer>.
8-21 SECTION 11. Sections 103.002(b) and (c), Agriculture Code,
8-22 are amended to read as follows:
8-23 (b) Fees <collected under Section 101.008, 102.008, or
8-24 103.011 of this code> and <50 percent of the> fines collected under
8-25 Chapters 101 and 102 of this code and this chapter <Section
8-26 101.020, 102.021, or 103.013 of this code> shall be deposited in
8-27 the fund.
9-1 (c) The clerk of the county court or county court-at-law and
9-2 the custodian of the county treasury funds shall keep separate
9-3 records of all fines collected under Chapters 101 and 102 of this
9-4 code and this chapter <Section 101.020, 102.021, or 103.013 of
9-5 this code>. On the first day of each January, April, July, and
9-6 October, the custodian of the funds in the county treasury shall
9-7 remit <50 percent of> the fines collected under those chapters
9-8 <sections> to the comptroller of public accounts, and the
9-9 comptroller shall deposit that amount in the fund.
9-10 SECTION 12. Section 103.005, Agriculture Code, is amended to
9-11 read as follows:
9-12 Sec. 103.005. Initiation of Claim. (a) A person who deals
9-13 with a license holder <commission merchant or retailer licensed>
9-14 under Chapter 101 or 102 of this code in the purchasing, handling,
9-15 selling, and accounting for sales of vegetables or citrus fruit and
9-16 who is aggrieved by an action of the license holder <commission
9-17 merchant or retailer> as a result of a violation of terms or
9-18 conditions of a contract made by the license holder <commission
9-19 merchant or retailer> may initiate a claim against the fund by
9-20 filing with the department:
9-21 (1) a sworn complaint against the license holder
9-22 <commission merchant or retailer>; and
9-23 (2) a filing fee of $25 <$15>.
9-24 (b) A complaint and the fee under Subsection (a) of this
9-25 section must be filed on or before the first anniversary of the
9-26 date of the violation, or recovery from the fund is barred.
9-27 SECTION 13. Section 103.0055, Agriculture Code, is amended
10-1 to read as follows:
10-2 Sec. 103.0055. Bankruptcy of Merchant or Retailer. For
10-3 purposes of this chapter, the amount due an aggrieved party by a
10-4 license holder <commission merchant or retailer> is not affected by
10-5 a final judgment of a bankruptcy court that releases the license
10-6 holder <commission merchant or retailer> from the legal duty to
10-7 satisfy the claim.
10-8 SECTION 14. Section 103.006(a), Agriculture Code, is amended
10-9 to read as follows:
10-10 (a) After a claim is initiated, the department shall
10-11 investigate the complaint and determine the amount due the
10-12 aggrieved party. If the amount determined by the department is
10-13 disputed by the license holder <commission merchant or retailer> or
10-14 the aggrieved party, the board shall conduct a hearing on the claim
10-15 and determine the amount due the aggrieved party.
10-16 SECTION 15. Section 103.007(a), Agriculture Code, is amended
10-17 to read as follows:
10-18 (a) If the amount determined by the department's
10-19 investigation to be due the aggrieved party is not disputed by the
10-20 license holder <commission merchant or retailer> or the aggrieved
10-21 party, the department shall pay the claim within the limits
10-22 prescribed by this chapter.
10-23 SECTION 16. Section 103.008, Agriculture Code, is amended by
10-24 amending Subsections (b), (c), and (d) and adding Subsection (f) to
10-25 read as follows:
10-26 (b) The total payment of all claims arising from a contract
10-27 executed during a single license year with a single license holder
11-1 <the same transaction> may not exceed $20,000.
11-2 (c) The total payment of claims against a single license
11-3 holder <commission merchant or retailer> may not exceed $50,000 in
11-4 any one year.
11-5 (d) The department may not pay a claim against<:>
11-6 <(1)> a person <commission merchant or retailer> who
11-7 was not licensed on the date the contract <at the time of the
11-8 transaction> on which the claim is based was executed<; or>
11-9 <(2) a cash dealer licensed under Chapter 101 or 102
11-10 of this code>.
11-11 (f) If a license holder owes money to the produce recovery
11-12 fund at the time the license holder makes a claim against the fund,
11-13 the department shall offset the amount owed to the fund from the
11-14 amount dispensed.
11-15 SECTION 17. Sections 103.009(a), (c), and (d), Agriculture
11-16 Code, are amended to read as follows:
11-17 (a) If the department pays a claim against a license holder
11-18 <commission merchant or retailer>, the license holder <commission
11-19 merchant or retailer> shall:
11-20 (1) reimburse the fund immediately or agree in writing
11-21 to reimburse the fund on a schedule to be determined by rule of the
11-22 department; and
11-23 (2) immediately pay the aggrieved party any amount due
11-24 that party or agree in writing to pay the aggrieved party on a
11-25 schedule to be determined by rule of the department.
11-26 (c) If the license holder <commission merchant or retailer>
11-27 does not reimburse the fund or pay the aggrieved party, or does not
12-1 agree to do so, in accordance with this section, the department
12-2 shall issue an order canceling the license <of the commission
12-3 merchant or retailer> and may not issue a new license to that
12-4 person for four years from the date of cancellation. If the
12-5 license holder <commission merchant or retailer> is a corporation,
12-6 an officer or director of the corporation or a person owning more
12-7 than 25 percent of the stock in the corporation may not be licensed
12-8 <as a commission merchant or retailer> under Chapter 101 or 102 of
12-9 this code during the four-year period in which the corporation is
12-10 ineligible for licensing.
12-11 (d) This section does not apply to a license holder
12-12 <commission merchant or retailer> who is released by a final
12-13 judgment of a bankruptcy court from the legal duty to satisfy the
12-14 claim paid by the department.
12-15 SECTION 18. Section 103.010, Agriculture Code, is amended to
12-16 read as follows:
12-17 Sec. 103.010. Subrogation of Rights. If the department pays
12-18 a claim against a license holder <commission merchant or retailer>,
12-19 the department is subrogated to all rights of the aggrieved party
12-20 against the license holder <commission merchant or retailer> to the
12-21 extent of the amount paid to the aggrieved party.
12-22 SECTION 19. Section 103.011, Agriculture Code, is amended to
12-23 read as follows:
12-24 Sec. 103.011. Fee. A person <(a) Except as otherwise
12-25 provided by this section, a commission merchant or retailer>
12-26 licensed under Chapter 101 or 102 of this code shall pay an annual
12-27 fee to the fund <of $200>. The department by rule shall establish
13-1 the amount of the fee. The fee may not exceed $45.
13-2 <(b) A retailer who is licensed under Chapter 101 or 102 of
13-3 this code and whose annual purchases of vegetables and citrus fruit
13-4 are less than $15,000 a year shall pay an annual fee of $50.>
13-5 <(c) A person who is required by Subsection (a) of this
13-6 section to pay a fee of $200 and who is licensed in one of those
13-7 classifications under both Chapters 101 and 102 of this code may
13-8 pay a single fee of $250. A person who is required by Subsection
13-9 (b) of this section to pay a $50 fee and who is licensed in that
13-10 classification under both Chapters 101 and 102 of this code may pay
13-11 a single fee of $75.>
13-12 <(d) A person licensed as a cash dealer or a marketing
13-13 association organized under Chapter 52 of this code that handles
13-14 citrus fruit only for its members is exempt from payment of the fee
13-15 under this section.>
13-16 <(e) The fee is in addition to any licensing fee paid and is
13-17 due at the time of making the license application. The department
13-18 may not issue a license to a person who fails to pay the fee.>
13-19 SECTION 20. Section 103.013(a), Agriculture Code, is amended
13-20 to read as follows:
13-21 (a) A person commits an offense if the person acts or
13-22 assumes to act as a license holder <commission merchant or
13-23 retailer> under Chapter 101 or 102 of this code without first
13-24 paying the fee required by this chapter.
13-25 SECTION 21. Sections 101.004 and 102.004, Agriculture Code,
13-26 are repealed.
13-27 SECTION 22. A license or identification card that is issued
14-1 under Chapters 101 and 102, Agriculture Code, and that is valid on
14-2 the effective date of this Act remains valid until it expires or is
14-3 revoked or suspended.
14-4 SECTION 23. This Act takes effect September 1, 1995.
14-5 SECTION 24. The importance of this legislation and the
14-6 crowded condition of the calendars in both houses create an
14-7 emergency and an imperative public necessity that the
14-8 constitutional rule requiring bills to be read on three several
14-9 days in each house be suspended, and this rule is hereby suspended.