1-1 By: Armbrister S.B. No. 372
1-2 (In the Senate - Filed March 8, 1995; March 9, 1995, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 20, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; April 20, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 372 By: Armbrister
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the continuation and functions of the Department of
1-11 Agriculture and certain associated entities, including the Texas
1-12 Agricultural Finance Authority, the Agriculture Resources
1-13 Protection Authority, the State Seed and Plant Board, and the
1-14 Produce Recovery Fund Board, and generally to matters regarding
1-15 agriculture in this state; providing penalties.
1-16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-17 ARTICLE 1. GENERAL PROVISIONS
1-18 SECTION 1.01. Section 11.008, Agriculture Code, is amended
1-19 to read as follows:
1-20 Sec. 11.008. FUNDS OF THE DEPARTMENT. Except as otherwise
1-21 provided by law, all money paid to the department is subject to
1-22 Subchapter F, Chapter 404, Government Code <the department shall
1-23 deposit all money collected or received by it in the state treasury
1-24 to the credit of the general revenue fund>.
1-25 SECTION 1.02. Section 12.013, Agriculture Code, is amended
1-26 to read as follows:
1-27 Sec. 12.013. Employees. (a) The department may employ
1-28 personnel as the duties of the department require. The
1-29 commissioner shall provide to the department's employees, as often
1-30 as necessary, information regarding their qualifications for
1-31 employment and their responsibilities under applicable laws
1-32 relating to standards of conduct for state employees.
1-33 (b) The commissioner or the commissioner's designee shall
1-34 develop a system of annual performance evaluations that are based
1-35 on documented employee performance. All merit pay for department
1-36 employees must be based on the system established under this
1-37 subsection.
1-38 (c) The commissioner or the commissioner's designee shall
1-39 develop an intraagency career ladder program that addresses
1-40 opportunities for mobility and advancement for employees within the
1-41 department. The program shall require intraagency postings of all
1-42 <nonentry level> positions concurrently with any public posting.
1-43 (d) The commissioner or the commissioner's designee shall
1-44 prepare and maintain a written policy statement to assure
1-45 implementation of a program of equal employment opportunity under
1-46 which all personnel transactions are made without regard to race,
1-47 color, disability <handicap>, sex, religion, age, or national
1-48 origin. The policy statement must include:
1-49 (1) personnel policies, including policies relating to
1-50 recruitment, evaluation, selection, appointment, training, and
1-51 promotion of personnel that comply with the requirements of Chapter
1-52 21, Labor Code;
1-53 (2) a comprehensive analysis of the department work
1-54 force that meets federal and state guidelines;
1-55 (3) procedures by which a determination can be made
1-56 about the extent of underuse <of significant underutilization> in
1-57 the department work force of all persons for whom federal or state
1-58 guidelines encourage a more equitable balance; and
1-59 (4) reasonable methods to appropriately address those
1-60 areas of underuse <significant underutilization>.
1-61 (e) A policy statement prepared under Subsection (d) of this
1-62 section must cover an annual period, be updated <at least> annually
1-63 and reviewed by the Texas Commission on Human Rights for compliance
1-64 with Subsection (d)(1) of this section, and be filed with the
1-65 governor's office.
1-66 (f) The governor's office shall deliver a biennial report to
1-67 the legislature based on the information received under Subsection
1-68 (e) of this section. The report may be made separately or as a
2-1 part of other biennial reports made to the legislature.
2-2 SECTION 1.03. Section 12.016, Agriculture Code, is amended
2-3 to read as follows:
2-4 Sec. 12.016. RULES. The department may adopt rules as
2-5 necessary for the administration of its powers and duties under
2-6 <Sections 12.001-12.015 of> this code.
2-7 SECTION 1.04. Chapter 12, Agriculture Code, is amended by
2-8 adding Sections 12.0201 and 12.0202 to read as follows:
2-9 Sec. 12.0201. LICENSE SANCTIONS. The department shall
2-10 revoke, modify, suspend, or refuse to renew a license, assess an
2-11 administrative penalty, place on probation a person whose license
2-12 has been suspended, or reprimand a license holder for a violation
2-13 of this code or a rule of the department. If a license suspension
2-14 is probated, the department may require the practitioner:
2-15 (1) to report regularly to the department on matters
2-16 that are the basis of the probation;
2-17 (2) to limit practice to the areas prescribed by the
2-18 department; or
2-19 (3) to continue or review professional education until
2-20 the practitioner attains a degree of skill satisfactory to the
2-21 department in those areas that are the basis of the probation.
2-22 Sec. 12.0202. ADMINISTRATIVE HEARINGS. If the department
2-23 proposes to suspend, revoke, or refuse to renew a person's license,
2-24 the person is entitled to a hearing conducted by the State Office
2-25 of Administrative Hearings. Proceedings for a disciplinary action
2-26 are governed by Chapter 2001, Government Code. Rules of practice
2-27 adopted by the department under Section 2001.004, Government Code,
2-28 applicable to the proceedings for a disciplinary action may not
2-29 conflict with rules adopted by the State Office of Administrative
2-30 Hearings.
2-31 SECTION 1.05. Section 12.023, Agriculture Code, is amended
2-32 to read as follows:
2-33 Sec. 12.023. Expiration of Registration or Licenses. The
2-34 department by rule may adopt a system under which registrations
2-35 <the registration> or licenses required by the department <Section
2-36 14.004, 61.013, 71.043, 71.057, 75.004, 76.071, 76.105, or 132.021
2-37 of this code> expire on various dates during the year. For the
2-38 year in which the registration or license expiration date is
2-39 changed, <fees payable on renewal of the> registration or license
2-40 fees shall be prorated on a monthly basis so that each registrant
2-41 or licensee pays <shall pay> only that portion of the fee that is
2-42 allocable to the number of months during which the registration or
2-43 license is valid. On renewal of the registration or license on the
2-44 new expiration date, the total renewal fee is payable.
2-45 SECTION 1.06. Section 12.025, Agriculture Code, is amended
2-46 to read as follows:
2-47 Sec. 12.025. PROGRAM ACCESSIBILITY PLAN. The department
2-48 shall comply with federal and state laws related to program and
2-49 facility accessibility. The commissioner <department> shall also
2-50 prepare and maintain a written plan that describes how a person who
2-51 does not speak English <or who has a physical, mental, or
2-52 developmental disability> can be provided reasonable access to the
2-53 department's programs and services.
2-54 SECTION 1.07. Subsections (c) and (d), Section 12.026,
2-55 Agriculture Code, are amended to read as follows:
2-56 (c) The department shall keep an information file about each
2-57 complaint filed with the department <that the department has
2-58 authority to resolve>. The information shall include:
2-59 (1) the date the complaint is received;
2-60 (2) the name of the complainant;
2-61 (3) the subject matter of the complaint;
2-62 (4) a record of all persons contacted in relation to
2-63 the complaint;
2-64 (5) a summary of the results of the review or
2-65 investigation of the complaint; and
2-66 (6) for complaints for which the agency took no
2-67 action, an explanation of the reason the complaint was closed
2-68 without action.
2-69 (d) The department shall keep a file about each written
2-70 complaint filed with the department that the department has
3-1 authority to resolve. The department shall provide to the person
3-2 filing the complaint and the persons or entities complained about
3-3 the department's policies and procedures pertaining to complaint
3-4 investigation and resolution. The <If a written complaint is filed
3-5 with the department that the department has authority to resolve,
3-6 the> department, at least quarterly and until final disposition of
3-7 the complaint, shall notify the person filing <parties to> the
3-8 complaint and the persons or entities complained about of the
3-9 status of the complaint unless the notice would jeopardize an
3-10 undercover investigation.
3-11 SECTION 1.08. Chapter 12, Agriculture Code, is amended by
3-12 adding Section 12.0261 to read as follows:
3-13 Sec. 12.0261. ADMINISTRATIVE PROCEDURE. The department is
3-14 subject to Chapter 2001, Government Code.
3-15 SECTION 1.09. Chapter 12, Agriculture Code, is amended by
3-16 adding Sections 12.035, 12.036, and 12.037 to read as follows:
3-17 Sec. 12.035. NOTICE TO EXAMINEE. Not later than the 30th
3-18 day after the date on which a licensing or registration examination
3-19 is administered under this code, the department shall notify each
3-20 examinee of the results of the examination. However, if an
3-21 examination is graded or reviewed by a national testing service,
3-22 the department shall notify examinees of the results of the
3-23 examination not later than the 14th day after the date on which the
3-24 department receives the results from the testing service. If the
3-25 notice of examination results graded or reviewed by a national
3-26 testing service will be delayed for longer than 90 days after the
3-27 examination date, the department shall notify the examinee of the
3-28 reason for the delay before the 90th day. The department may
3-29 require a testing service to notify examinees of the results of an
3-30 examination.
3-31 Sec. 12.036. LICENSING OUT-OF-STATE APPLICANTS. The
3-32 department may waive any prerequisite to obtaining a license or
3-33 registration for an applicant after reviewing the applicant's
3-34 credentials and determining that the applicant holds a valid
3-35 license from another state that has license or registration
3-36 requirements substantially equivalent to those of this state.
3-37 Sec. 12.037. CONTINUING EDUCATION. The department may
3-38 recognize, prepare, or administer continuing education programs for
3-39 its license holders.
3-40 SECTION 1.10. Subsection (a), Section 14.015, Agriculture
3-41 Code, is amended to read as follows:
3-42 (a) The department may deny an application for a license or
3-43 license renewal if the applicant fails to comply with a requirement
3-44 of this subchapter or a rule adopted by the department under this
3-45 subchapter.
3-46 SECTION 1.11. Section 52.085, Agriculture Code, is amended
3-47 to read as follows:
3-48 Sec. 52.085. Voting. (a) Except as provided by Subsection
3-49 (b) of this section, a member of a marketing association is
3-50 entitled to one vote.
3-51 (b) A marketing association may provide in its articles of
3-52 incorporation or bylaws for a member association or group to have
3-53 more than one vote if the association providing for the vote:
3-54 (1) is organized primarily for the production,
3-55 cultivation, and care of citrus groves or for processing and
3-56 marketing citrus products;
3-57 (2) has its principal office in a county that has at
3-58 least 500 acres of land planted in citrus groves; and
3-59 (3) includes as members one or more associations or
3-60 groups organized on a cooperative basis.
3-61 (c) A marketing association that provides for a member
3-62 association or group to have more than one vote under Subsection
3-63 (b) shall comply with Section 52.012(a)(2).
3-64 (d) In accordance with a bylaw adopted under Section 52.052
3-65 of this code, a marketing association may provide for its members
3-66 to vote by proxy or by mail.
3-67 SECTION 1.12. Section 58.012, Agriculture Code, is amended
3-68 by adding Subsection (f) to read as follows:
3-69 (f) Appointments to the board shall be made without regard
3-70 to the race, color, disability, sex, religion, age, or national
4-1 origin of the appointees.
4-2 SECTION 1.13. Subsection (a), Section 58.013, Agriculture
4-3 Code, is amended to read as follows:
4-4 (a) The governor shall designate a member of the board as
4-5 <appoint> the chairman of the board to serve in that capacity at
4-6 the pleasure of the governor. The board shall elect a
4-7 vice-chairman biennially from its members and shall elect a
4-8 secretary, a treasurer, and other officers it considers necessary.
4-9 SECTION 1.14. The heading to Section 58.014, Agriculture
4-10 Code, is amended to read as follows:
4-11 Sec. 58.014. MEETINGS; ADMINISTRATIVE PROCEDURE.
4-12 SECTION 1.15. Section 58.014, Agriculture Code, is amended
4-13 by adding Subsections (c) and (d) to read as follows:
4-14 (c) The board shall develop and implement policies that
4-15 provide the public with a reasonable opportunity to appear before
4-16 the board and to speak on any issue under the jurisdiction of the
4-17 board.
4-18 (d) The board is subject to Chapter 551, Government Code,
4-19 and Chapter 2001, Government Code.
4-20 SECTION 1.16. Chapter 58, Agriculture Code, is amended by
4-21 adding Sections 58.0172, 58.0173, 58.0174, 58.0175, and 58.0176 to
4-22 read as follows:
4-23 Sec. 58.0172. BOARD CONFLICT OF INTEREST. (a) An officer,
4-24 employee, or paid consultant of a Texas trade association in the
4-25 field of agriculture may not be a member of the board.
4-26 (b) A person who is the spouse of an officer, manager, or
4-27 paid consultant of a Texas trade association in the field of
4-28 agriculture may not be a member of the board.
4-29 (c) For the purposes of this section, a Texas trade
4-30 association is a nonprofit, cooperative, and voluntarily joined
4-31 association of business or professional competitors in this state
4-32 designed to assist its members and its industry or profession in
4-33 dealing with mutual business or professional problems and in
4-34 promoting their common interest.
4-35 (d) A person may not serve as a member of the board or act
4-36 as the general counsel to the board if the person is required to
4-37 register as a lobbyist under Chapter 305, Government Code, because
4-38 of the person's activities for compensation on behalf of a
4-39 profession related to the operation of the board.
4-40 Sec. 58.0173. REMOVAL OF BOARD MEMBER. (a) It is a ground
4-41 for removal from the board if a member:
4-42 (1) does not have at the time of appointment the
4-43 qualifications required by Section 58.012;
4-44 (2) does not maintain during service on the board the
4-45 qualifications required by Section 58.012;
4-46 (3) violates a prohibition established by Section
4-47 58.0172;
4-48 (4) cannot because of illness or disability discharge
4-49 the member's duties for a substantial part of the term for which
4-50 the member is appointed; or
4-51 (5) is absent from more than half of the regularly
4-52 scheduled board meetings that the member is eligible to attend
4-53 during a calendar year unless the absence is excused by majority
4-54 vote of the board.
4-55 (b) The validity of an action of the board is not affected
4-56 by the fact that it is taken when a ground for removal of a board
4-57 member exists.
4-58 (c) If the commissioner has knowledge that a potential
4-59 ground for removal exists, the commissioner shall notify the
4-60 chairman of the board of the potential ground. The chairman shall
4-61 then notify the governor and the attorney general that a potential
4-62 ground for removal exists. If the potential ground for removal
4-63 involves the chairman, the commissioner shall notify the next
4-64 highest officer of the board, who shall notify the governor and the
4-65 attorney general that a potential ground for removal exists.
4-66 Sec. 58.0174. STANDARDS OF CONDUCT. The commissioner or the
4-67 commissioner's designee shall provide to members of the board, as
4-68 often as necessary, information regarding their qualification for
4-69 office under this chapter and their responsibilities under
4-70 applicable laws relating to standards of conduct for state
5-1 officers.
5-2 Sec. 58.0175. SEPARATION OF RESPONSIBILITIES. The board
5-3 shall develop and implement policies that clearly separate the
5-4 policymaking responsibilities of the board and the management
5-5 responsibilities of the commissioner and the staff of the
5-6 department.
5-7 Sec. 58.0176. BOARD MEMBER TRAINING. (a) Before a member
5-8 of the board may assume the member's duties and before the member
5-9 may be confirmed by the senate, the member must complete at least
5-10 one course of the training program established under this section.
5-11 (b) A training program established under this section shall
5-12 provide information to the member regarding:
5-13 (1) the enabling legislation that created the board;
5-14 (2) the programs operated by the board;
5-15 (3) the role and functions of the board;
5-16 (4) the rules of the board;
5-17 (5) the current budget for funds the board
5-18 administers;
5-19 (6) the results of the most recent formal audit of the
5-20 board;
5-21 (7) the requirements of:
5-22 (A) Chapter 551, Government Code;
5-23 (B) Chapter 552, Government Code; and
5-24 (C) Chapter 2001, Government Code;
5-25 (8) the requirements of the conflict of interest laws
5-26 and other laws relating to public officials; and
5-27 (9) any applicable ethics policies adopted by the
5-28 department or the Texas Ethics Commission.
5-29 SECTION 1.17. Section 62.002, Agriculture Code, is amended
5-30 by amending Subsection (d) and by adding Subsection (e) to read as
5-31 follows:
5-32 (d) The governor shall designate a member of the board as
5-33 the chairman to serve in that capacity at the pleasure of the
5-34 governor. The board annually shall elect a <chairman,>
5-35 vice-chairman<,> and secretary. The board shall meet at times and
5-36 places determined by the chairman.
5-37 (e) Appointments to the board shall be made without regard
5-38 to the race, color, disability, sex, religion, age, or national
5-39 origin of the appointees.
5-40 SECTION 1.18. Chapter 62, Agriculture Code, is amended by
5-41 adding Sections 62.0022, 62.0023, 62.0024, 62.0025, 62.0026, and
5-42 62.0027 to read as follows:
5-43 Sec. 62.0022. BOARD CONFLICT OF INTEREST. (a) An officer,
5-44 employee, or paid consultant of a Texas trade association in the
5-45 field of agriculture may not be a member of the board.
5-46 (b) A person who is the spouse of an officer, manager, or
5-47 paid consultant of a Texas trade association in the field of
5-48 agriculture may not be a member of the board.
5-49 (c) For the purposes of this section, a Texas trade
5-50 association is a nonprofit, cooperative, and voluntarily joined
5-51 association of business or professional competitors in this state
5-52 designed to assist its members and its industry or profession in
5-53 dealing with mutual business or professional problems and in
5-54 promoting their common interest.
5-55 (d) A person may not serve as a member of the board or act
5-56 as the general counsel to the board if the person is required to
5-57 register as a lobbyist under Chapter 305, Government Code, because
5-58 of the person's activities for compensation on behalf of a
5-59 profession related to the operation of the board.
5-60 Sec. 62.0023. REMOVAL OF BOARD MEMBER. (a) It is a ground
5-61 for removal from the board if a member:
5-62 (1) does not have at the time of appointment the
5-63 qualifications required by Section 62.002;
5-64 (2) does not maintain during service on the board the
5-65 qualifications required by Section 62.002;
5-66 (3) violates a prohibition established by Section
5-67 62.0022;
5-68 (4) cannot because of illness or disability discharge
5-69 the member's duties for a substantial part of the term for which
5-70 the member is appointed; or
6-1 (5) is absent from more than half of the regularly
6-2 scheduled board meetings that the member is eligible to attend
6-3 during a calendar year unless the absence is excused by majority
6-4 vote of the board.
6-5 (b) The validity of an action of the board is not affected
6-6 by the fact that it is taken when a ground for removal of a board
6-7 member exists.
6-8 (c) If the commissioner has knowledge that a potential
6-9 ground for removal exists, the commissioner shall notify the
6-10 chairman of the board of the potential ground. The chairman shall
6-11 then notify the governor and the attorney general that a potential
6-12 ground for removal exists. If the potential ground for removal
6-13 involves the chairman, the commissioner shall notify the next
6-14 highest officer of the board who shall notify the governor and the
6-15 attorney general that a potential ground for removal exists.
6-16 Sec. 62.0024. STANDARDS OF CONDUCT. The commissioner or the
6-17 commissioner's designee shall provide to members of the board, as
6-18 often as necessary, information regarding their qualification for
6-19 office under this chapter and their responsibilities under
6-20 applicable laws relating to standards of conduct for state officers
6-21 or employees.
6-22 Sec. 62.0025. BOARD MEETINGS; ADMINISTRATIVE PROCEDURE.
6-23 (a) The board shall develop and implement policies that provide
6-24 the public with a reasonable opportunity to appear before the
6-25 board and to speak on any issue under the jurisdiction of the
6-26 board.
6-27 (b) The board is subject to Chapter 551, Government Code,
6-28 and Chapter 2001, Government Code.
6-29 Sec. 62.0026. SEPARATION OF RESPONSIBILITIES. The board
6-30 shall develop and implement policies that clearly separate the
6-31 policymaking responsibilities of the board and the management
6-32 responsibilities of the commissioner and the staff of the
6-33 department.
6-34 Sec. 62.0027. BOARD MEMBER TRAINING. (a) Before a member
6-35 of the board may assume the member's duties and before the member
6-36 may be confirmed by the senate, the member must complete at least
6-37 one course of the training program established under this section.
6-38 (b) A training program established under this section shall
6-39 provide information to the member regarding:
6-40 (1) Chapter 64, this chapter, and the enabling
6-41 legislation that created the board;
6-42 (2) the programs operated by the board;
6-43 (3) the role and functions of the board;
6-44 (4) the rules of the board with an emphasis on the
6-45 rules that relate to disciplinary and investigatory authority;
6-46 (5) the requirements of:
6-47 (A) Chapter 551, Government Code;
6-48 (B) Chapter 552, Government Code; and
6-49 (C) Chapter 2001, Government Code;
6-50 (6) the requirements of the conflict of interest laws
6-51 and other laws relating to public officials; and
6-52 (7) any applicable ethics policies adopted by the
6-53 department or the Texas Ethics Commission.
6-54 SECTION 1.19. Subsection (a), Section 62.0065, Agriculture
6-55 Code, is amended to read as follows:
6-56 (a) Not later than the 30th day after the date on which a
6-57 licensing or registration examination is administered under this
6-58 chapter, the board shall notify each examinee of the results of the
6-59 examination. However, if an examination is graded or reviewed by a
6-60 national testing service, the board shall notify examinees of the
6-61 results of the examination not later than the 14th day after the
6-62 date on which the board receives the results from the testing
6-63 service. If the notice of examination results graded or reviewed
6-64 by a national testing service will be delayed for longer than 90
6-65 days after the examination date, the board shall notify the
6-66 examinee of the reason for the delay before the 90th day. The
6-67 board may require a testing service to notify examinees of the
6-68 results of an examination.
6-69 SECTION 1.20. Subsections (b) and (d), Section 76.110,
6-70 Agriculture Code, are amended to read as follows:
7-1 (b) Not later than the 30th day after the date on which a
7-2 licensing examination is administered under this section, the
7-3 appropriate regulatory agency shall notify each examinee of the
7-4 results of the examination. However, if an examination is graded
7-5 or reviewed by a national testing service, the appropriate
7-6 regulatory agency shall notify examinees of the results of the
7-7 examination not later than the 14th day after the date on which the
7-8 appropriate regulatory agency receives the results from the testing
7-9 service. If the notice of examination results graded or reviewed
7-10 by a national testing service will be delayed for longer than 90
7-11 days after the examination date, the appropriate regulatory agency
7-12 shall notify the examinee of the reason for the delay before the
7-13 90th day. The appropriate regulatory agency may require a testing
7-14 service to notify examinees of the results of an examination.
7-15 (d) The appropriate <head of a> regulatory agency may waive
7-16 <part or all of> any prerequisite to obtaining a license for an
7-17 applicant after reviewing the applicant's credentials and
7-18 determining that the applicant holds a valid license from another
7-19 state that has license <examination> requirements <on a reciprocal
7-20 basis with any other state or federal agency that has>
7-21 substantially equivalent to those of this state <the same
7-22 examination standards>.
7-23 SECTION 1.21. Section 103.003, Agriculture Code, is amended
7-24 by adding Subsections (e), (f), and (g) to read as follows:
7-25 (e) Appointments to the board shall be made without regard
7-26 to the race, color, disability, sex, religion, age, or national
7-27 origin of the appointees.
7-28 (f) The governor shall designate a member of the board as
7-29 the chairman of the board to serve in that capacity at the pleasure
7-30 of the governor.
7-31 (g) The board is subject to Chapter 551, Government Code,
7-32 and Chapter 2001, Government Code.
7-33 SECTION 1.22. Section 103.004, Agriculture Code, is amended
7-34 to read as follows:
7-35 Sec. 103.004. DUTIES OF THE BOARD. (a) The board shall:
7-36 (1) advise the department on all matters relating to
7-37 the fund, including the fund's budget and the revenues necessary to
7-38 accomplish the purposes of the fund;
7-39 (2) advise the department in the adoption of rules
7-40 relating to the payment of claims from the fund and to the
7-41 administration of the fund; and
7-42 (3) conduct adjudicative hearings on disputed claims
7-43 presented for payment from the fund.
7-44 (b) The board shall develop and implement policies that
7-45 provide the public with a reasonable opportunity to appear before
7-46 the board and to speak on any issue under the jurisdiction of the
7-47 board.
7-48 (c) The board shall develop and implement policies that
7-49 clearly separate the policymaking responsibilities of the board and
7-50 the management responsibilities of the commissioner and the staff
7-51 of the department.
7-52 SECTION 1.23. Chapter 103, Agriculture Code, is amended by
7-53 adding Sections 103.016, 103.017, 103.018, and 103.019 to read as
7-54 follows:
7-55 Sec. 103.016. BOARD CONFLICT OF INTEREST. (a) An officer,
7-56 employee, or paid consultant of a Texas trade association in the
7-57 field of agriculture may not be a member of the board.
7-58 (b) A person who is the spouse of an officer, manager, or
7-59 paid consultant of a Texas trade association in the field of
7-60 agriculture may not be a member of the board.
7-61 (c) For the purposes of this section, a Texas trade
7-62 association is a nonprofit, cooperative, and voluntarily joined
7-63 association of business or professional competitors in this state
7-64 designed to assist its members and its industry or profession in
7-65 dealing with mutual business or professional problems and in
7-66 promoting their common interest.
7-67 (d) A person may not serve as a member of the board or act
7-68 as the general counsel to the board if the person is required to
7-69 register as a lobbyist under Chapter 305, Government Code, because
7-70 of the person's activities for compensation on behalf of a
8-1 profession related to the operation of the board.
8-2 Sec. 103.017. REMOVAL OF BOARD MEMBER. (a) It is a ground
8-3 for removal from the board if a member:
8-4 (1) does not have at the time of appointment the
8-5 qualifications required by Section 103.003;
8-6 (2) does not maintain during service on the board the
8-7 qualifications required by Section 103.003;
8-8 (3) violates a prohibition established by Section
8-9 103.016;
8-10 (4) cannot because of illness or disability discharge
8-11 the member's duties for a substantial part of the term for which
8-12 the member is appointed; or
8-13 (5) is absent from more than half of the regularly
8-14 scheduled board meetings that the member is eligible to attend
8-15 during a calendar year unless the absence is excused by majority
8-16 vote of the board.
8-17 (b) The validity of an action of the board is not affected
8-18 by the fact that it is taken when a ground for removal of a board
8-19 member exists.
8-20 (c) If the commissioner has knowledge that a potential
8-21 ground for removal exists, the commissioner shall notify the
8-22 chairman of the board of the potential ground. The chairman shall
8-23 then notify the governor and the attorney general that a potential
8-24 ground for removal exists. If the potential ground for removal
8-25 involves the chairman, the commissioner shall notify the next
8-26 highest officer of the board who shall notify the governor and the
8-27 attorney general that a potential ground for removal exists.
8-28 Sec. 103.018. QUALIFICATIONS AND STANDARDS OF CONDUCT. The
8-29 commissioner or the commissioner's designee shall provide to
8-30 members of the board, as often as necessary, information regarding
8-31 their qualification for office under this chapter and their
8-32 responsibilities under applicable laws relating to standards of
8-33 conduct for state officers or employees.
8-34 Sec. 103.019. BOARD MEMBER TRAINING. (a) Before a member
8-35 of the board may assume the member's duties and before the member
8-36 may be confirmed by the senate, the member must complete at least
8-37 one course of the training program established under this section.
8-38 (b) A training program established under this section shall
8-39 provide information to the member regarding:
8-40 (1) this chapter;
8-41 (2) the programs operated by the board;
8-42 (3) the role and functions of the board;
8-43 (4) the rules of the board with an emphasis on the
8-44 rules that relate to disciplinary and investigatory authority;
8-45 (5) the current budget for the produce recovery fund;
8-46 (6) the requirements of:
8-47 (A) Chapter 551, Government Code;
8-48 (B) Chapter 552, Government Code; and
8-49 (C) Chapter 2001, Government Code;
8-50 (7) the requirements of the conflict of interest laws
8-51 and other laws relating to public officials; and
8-52 (8) any applicable ethics policies adopted by the
8-53 department or the Texas Ethics Commission.
8-54 ARTICLE 2. FEES
8-55 SECTION 2.01. Chapter 12, Agriculture Code, is amended by
8-56 adding Section 12.0144 to read as follows:
8-57 Sec. 12.0144. FEE SCHEDULE. The department shall by rule
8-58 adopt a schedule for all fees set by the department under this
8-59 code. Except for those activities exempted in the General
8-60 Appropriations Act, the department shall set fees in an amount
8-61 which offsets, when feasible, the direct and indirect state costs
8-62 of administering its regulatory activities.
8-63 SECTION 2.02. Subsections (a) and (c), Section 12.018,
8-64 Agriculture Code, are amended to read as follows:
8-65 (a) On request of any person, the department may test an
8-66 agricultural product for aflatoxins. The department may set and
8-67 charge a fee, as provided by department rule, <of not less than $20
8-68 nor more than $40> for each test.
8-69 (c) <The department shall charge a fee of not less than $5
8-70 nor more than $150 for each laboratory analysis performed under
9-1 Subsection (b) of this section.> The department shall set by rule
9-2 the fee for each type of laboratory analysis. <Each fee shall be
9-3 designed to recover at least half of the costs of performing the
9-4 analysis.>
9-5 SECTION 2.03. Section 12.021, Agriculture Code, is amended
9-6 to read as follows:
9-7 Sec. 12.021. FEE FOR PHYTOSANITATION CERTIFICATE INSPECTION.
9-8 The department shall collect an inspection fee, as provided by
9-9 department rule, <of not less than $25> for <the issuance of> a
9-10 phytosanitation inspection <fee certificate> required by foreign
9-11 countries or other states for agricultural products exported from
9-12 this state.
9-13 SECTION 2.04. Section 12.024, Agriculture Code, is amended
9-14 to read as follows:
9-15 Sec. 12.024. Late Renewal of License or Registration.
9-16 (a) A person who is otherwise eligible to renew a license or
9-17 registration may renew an unexpired license or registration by
9-18 paying the required renewal fee to the department before the
9-19 expiration date of the license or registration. A person whose
9-20 license or registration has expired may not engage in activities
9-21 that require a license or registration until the license or
9-22 registration has been renewed under the provisions of this section.
9-23 <This section is applicable only to a renewal fee under Section
9-24 13.304, 13.354, 14.005, 18.003, 18.004, 71.043, 71.057, 75.004,
9-25 76.044, 76.073, 76.113, or 132.025 of this code.>
9-26 (b) If the person's license or registration has been expired
9-27 for 90 days or less, the person may renew the license or
9-28 registration by paying to the department 1-1/2 times the required
9-29 renewal fee. <A late fee is assessed according to the following
9-30 schedule:>
9-31 <Days Late Late Fee Amount>
9-32 <at least 1 but less than 31 20% of the renewal fee>
9-33 <at least 31 but less than 91 50% of the renewal fee>
9-34 <at least 91 but less than 365 100% of the renewal fee>
9-35 (c) If the person's license or registration has been expired
9-36 for longer than 90 days but less than one year, the person may
9-37 renew the license or registration by paying to the department two
9-38 times the required renewal fee.
9-39 (d) If the person's license or registration has been expired
9-40 for one year or longer, the person may not renew the license or
9-41 registration. The person may obtain a new license or registration
9-42 by submitting to reexamination, if applicable, and complying with
9-43 the requirements and procedures for obtaining an original license
9-44 or registration.
9-45 (e) If the person was licensed or registered in this state,
9-46 moved to another state, and is currently licensed or registered and
9-47 has been in practice in the other state for the two years preceding
9-48 application, the person may renew an expired license or
9-49 registration without reexamination, if required. The person must
9-50 pay to the department a fee that is equal to two times the required
9-51 renewal fee for the license or registration.
9-52 (f) At least 30 days before the expiration of a person's
9-53 license or registration, the department shall send written notice
9-54 of the impending license or registration expiration to the person
9-55 at the license holder's or registrant's last known address
9-56 according to the records of the department.
9-57 (g) The department by rule shall set fees required by this
9-58 section. <A person who fails to pay the renewal fee and the
9-59 applicable late fee within one year after the due date of the
9-60 renewal fee is not eligible to renew a license. The ineligible
9-61 person may reapply for an initial license or registration.>
9-62 SECTION 2.05. Chapter 12, Agriculture Code, is amended by
9-63 adding Section 12.034 to read as follows:
9-64 Sec. 12.034. REFUND OF FEES. The department by rule may
9-65 provide for the full or partial refund of a fee collected by the
9-66 department.
9-67 SECTION 2.06. Subsections (c), (d), (e), and (f), Section
9-68 13.115, Agriculture Code, are amended to read as follows:
9-69 (c) The department shall charge a fee, as provided by
9-70 department rule, for tolerance testing of a weight by the
10-1 department's metrology laboratory. <is:>
10-2 <WEIGHT FEE>
10-3 <Less than 10 pounds $ 2>
10-4 <10 pounds or more but less than 500 pounds $ 5>
10-5 <500 pounds or more but less than 2,500 pounds $10>
10-6 <2,500 pounds or more $20>
10-7 (d) The department shall charge a fee, as provided by
10-8 department rule, for tolerance testing of a measure by the
10-9 department's metrology laboratory. <is:>
10-10 <MEASURE CAPACITY FEES>
10-11 <5 gallons or less $10>
10-12 <More than 5 gallons $10>
10-13 <plus 20 cents for each gallon over 5>
10-14 (e) The department shall charge a fee, as provided by
10-15 department rule, for precision testing performed by the
10-16 department's metrology laboratory. <is:>
10-17 <WEIGHT FEES>
10-18 <Not more than 3 kilograms $25>
10-19 <More than 3 kilograms but not more than 30 kilograms $50>
10-20 <More than 30 kilograms $70>
10-21 (f) The department shall charge a fee, as provided by
10-22 department rule, for precision testing of tapes, rules, glassware,
10-23 and other measuring devices performed by the department's metrology
10-24 laboratory <is $25 for each increment>.
10-25 SECTION 2.07. Subsections (b), (c), and (d), Section
10-26 13.1151, Agriculture Code, are amended to read as follows:
10-27 (b) The department shall charge an annual fee, as provided
10-28 by department rule, for registration of a pump <may not exceed
10-29 $6.25>.
10-30 (c) The department shall charge an annual fee, as provided
10-31 by department rule, for registration of a scale. <may not exceed
10-32 the following amounts:>
10-33 <SCALE CAPACITY FEE>
10-34 <Less than 4,999 pounds $12.50>
10-35 <4,999 pounds or more $100>
10-36 (d) The department shall charge an annual fee, as provided
10-37 by department rule, for registration of a bulk or liquefied
10-38 petroleum gas metering device <may not exceed $80>.
10-39 SECTION 2.08. Subsection (b), Section 13.255, Agriculture
10-40 Code, is amended to read as follows:
10-41 (b) A state public weigher must submit a nonrefundable fee,
10-42 as provided by department rule, <of $400> with the application for
10-43 a certificate of authority. A county public weigher or a deputy
10-44 public weigher must submit a <nonrefundable> fee, as provided by
10-45 department rule, <of $100> with the application for a certificate
10-46 of authority.
10-47 SECTION 2.09. Subsections (a) and (b), Section 13.304,
10-48 Agriculture Code, are amended to read as follows:
10-49 (a) An application for a license shall be submitted to the
10-50 department on a form prescribed by the department, accompanied by
10-51 an <a nonrefundable> annual license fee in an amount established by
10-52 department rule<, not to exceed $200>.
10-53 (b) A license issued under this subchapter expires on the
10-54 anniversary date of the person's test equipment calibration, as
10-55 such anniversary is defined by a department rule, and may be
10-56 renewed by filing with the department a renewal application form
10-57 prescribed by the department, accompanied by an <a nonrefundable>
10-58 annual license renewal fee in an amount established by department
10-59 rule<, not to exceed $200>.
10-60 SECTION 2.10. Subsections (a) and (b), Section 13.354,
10-61 Agriculture Code, are amended to read as follows:
10-62 (a) An application for a license shall be submitted to the
10-63 department on a form prescribed by the department, accompanied by
10-64 an <a nonrefundable> annual license fee in an amount established by
10-65 department rule<, not to exceed $200>.
10-66 (b) A license issued under this subchapter expires on the
10-67 anniversary date of the person's test equipment calibration, as
10-68 such anniversary is defined by department rule, and may be renewed
10-69 by filing with the department a renewal application form prescribed
10-70 by the department, accompanied by an <a nonrefundable> annual
11-1 license renewal fee in an amount established by department rule<,
11-2 not to exceed $200>.
11-3 SECTION 2.11. Subsection (b), Section 14.005, Agriculture
11-4 Code, is amended to read as follows:
11-5 (b) An applicant must file a separate application for each
11-6 license, renewal, or amendment and shall accompany each application
11-7 for a license or renewal with an <a nonrefundable> annual license
11-8 fee, as provided by department rule <of $75>. The department shall
11-9 prescribe the information to be contained in the application. A
11-10 person who fails to submit a renewal fee on or before the
11-11 expiration date of the license must pay, in addition to the renewal
11-12 fee, the late fee provided by Section 12.024 of this code.
11-13 SECTION 2.12. Subsection (d), Section 14.014, Agriculture
11-14 Code, is amended to read as follows:
11-15 (d) The department shall collect from the warehouseman whose
11-16 public grain warehouse is inspected an inspection fee for an annual
11-17 inspection or an inspection requested by the warehouseman, but may
11-18 not collect an inspection fee for other inspections. The
11-19 department by rule shall set the inspection fee <is $4 for each
11-20 10,000 bushels or fraction of 10,000 bushels of licensed storage
11-21 capacity of the warehouse inspected or $100, whichever is greater>.
11-22 SECTION 2.13. Subsection (c), Section 14.107, Agriculture
11-23 Code, is amended to read as follows:
11-24 (c) The department shall collect a filing fee, as provided
11-25 by department rule, <of $1> for the certificate of qualification.
11-26 SECTION 2.14. Subsection (c), Section 14.118, Agriculture
11-27 Code, is amended to read as follows:
11-28 (c) The corporation shall pay to the department a just and
11-29 reasonable fee, as determined by the department, for an examination
11-30 under this section. <The fee may not exceed:>
11-31 <(1) $5 for a corporation with a capital stock of less
11-32 than $2,500;>
11-33 <(2) $10 for a corporation with a capital stock of
11-34 $2,500 or more but not more than $10,000;>
11-35 <(3) $20 for a corporation with a capital stock of
11-36 more than $10,000 but not more than $25,000; and>
11-37 <(4) $200 for a corporation with a capital stock of
11-38 $1,000,000 or more.>
11-39 SECTION 2.15. Subsection (c), Section 16.002, Agriculture
11-40 Code, is amended to read as follows:
11-41 (c) The <Each December, the> person responsible for
11-42 registration shall apply for registration and pay a registration
11-43 fee, as provided by department rule, <of $40> for each brand of
11-44 antifreeze to be sold. Unless canceled, the registration is valid
11-45 for the following <calendar> year.
11-46 SECTION 2.16. Section 17.008, Agriculture Code, is amended
11-47 to read as follows:
11-48 Sec. 17.008. Fees. The department may prescribe and collect
11-49 an initial registration fee and may prescribe and collect an annual
11-50 renewal fee. <Neither fee may exceed $100.>
11-51 SECTION 2.17. Subsection (b), Section 18.003, Agriculture
11-52 Code, is amended to read as follows:
11-53 (b) A person may apply for an organic certification, or a
11-54 renewal of an organic certification, by submitting an application
11-55 and an <a nonrefundable> annual fee prescribed by the department.
11-56 SECTION 2.18. Subsection (b), Section 18.004, Agriculture
11-57 Code, is amended to read as follows:
11-58 (b) A person may apply for a certificate of accreditation,
11-59 or a renewal of a certificate of accreditation, by submitting an
11-60 application and an <a nonrefundable> annual fee prescribed by the
11-61 department.
11-62 SECTION 2.19. Section 18.006, Agriculture Code, is amended
11-63 to read as follows:
11-64 Sec. 18.006. Fees. (a) The department shall <may> charge
11-65 an annual fee, as provided by department rule, <not to exceed
11-66 $2,500> for each applicant certified as a producer, distributor, or
11-67 retailer and a fee, as provided by department rule, <not to exceed
11-68 $5,000> for each applicant certified as a processor of organic food
11-69 or fiber produced in this state.
11-70 (b) The department shall <may> charge an annual fee, as
12-1 provided by department rule, <not to exceed $2,500> for each
12-2 applicant certified as a distributor or retailer and a fee, as
12-3 provided by department rule, <not to exceed $5,000> for each
12-4 applicant certified as a processor of organic food or fiber
12-5 produced outside of this state.
12-6 (c) The department shall <may> charge an annual fee, as
12-7 provided by department rule, <not to exceed $2,500> for a person
12-8 who obtains a certificate of accreditation as an organic certifying
12-9 agent.
12-10 <(d) The department shall set fees under this chapter in
12-11 amounts that enable it to recover the costs of administering this
12-12 chapter.>
12-13 SECTION 2.20. Subsection (c), Section 52.151, Agriculture
12-14 Code, is amended to read as follows:
12-15 (c) Each marketing association shall pay to the department
12-16 an annual license fee, as provided by department rule <of $10>. A
12-17 marketing association is exempt from all other franchise or license
12-18 taxes, except that a marketing association is exempt from the
12-19 franchise tax imposed by Chapter 171, Tax Code, only if exempted by
12-20 that chapter.
12-21 SECTION 2.21. Section 53.006, Agriculture Code, is amended
12-22 to read as follows:
12-23 Sec. 53.006. Certification. The department shall issue to a
12-24 financial pool a certificate of authority to do business under this
12-25 chapter after the department:
12-26 (1) receives the bond required by Section 53.005 of
12-27 this code;
12-28 (2) receives payment of a fee, as provided by
12-29 department rule <of $10>; and
12-30 (3) determines that the bond is genuine.
12-31 SECTION 2.22. Subsection (d), Section 61.011, Agriculture
12-32 Code, is amended to read as follows:
12-33 (d) Quarterly reports filed under Subsection (c)(2) of this
12-34 section are due within 30 days after the last day of November,
12-35 February, May, and August. Unless filed in accordance with prior
12-36 written approval of the department for late filing, a person who
12-37 does not file the report within the allotted time shall pay to the
12-38 department a penalty fee, as provided by department rule <not to
12-39 exceed $25 or 10 percent of the amount of the fee due, whichever is
12-40 greater>.
12-41 SECTION 2.23. Subsection (d), Section 62.005, Agriculture
12-42 Code, is amended to read as follows:
12-43 (d) An application for licensing as a Foundation,
12-44 Registered, or Certified producer of seed or plants must be
12-45 accompanied by a <nonrefundable license> fee <not to exceed $100>,
12-46 as provided by department rule.
12-47 SECTION 2.24. Subsection (a), Section 62.006, Agriculture
12-48 Code, is amended to read as follows:
12-49 (a) A person engaging in the development, maintenance, or
12-50 production of seed or plants for which standards of genetic purity
12-51 and identity have been established by the board may apply to the
12-52 board for registration as a plant breeder. The applicant shall
12-53 apply on forms prescribed by the board and shall include with the
12-54 application a <nonrefundable> registration fee <of not more than
12-55 $100>, as determined by the board. To be registered as a plant
12-56 breeder, a person must satisfy the board that the person is skilled
12-57 in the science of plant breeding. The board may require skill to
12-58 be shown by evidence of accomplishments in the field and may
12-59 require an oral or written examination in the subject.
12-60 SECTION 2.25. Subsection (a), Section 64.006, Agriculture
12-61 Code, is amended to read as follows:
12-62 (a) A purchaser may begin arbitration by filing with the
12-63 commissioner a sworn complaint and a <nonrefundable> filing fee, as
12-64 provided by department rule <of $10>. The purchaser shall send a
12-65 copy of the complaint to the seller by certified mail. Except in
12-66 the case of seed that has not been planted, the complaint must be
12-67 filed within the time necessary to permit effective inspection of
12-68 the plants under field conditions.
12-69 SECTION 2.26. Subsection (c), Section 71.005, Agriculture
12-70 Code, is amended to read as follows:
13-1 (c) The department<, by rule,> may charge a fee, as provided
13-2 by department rule, <not to exceed $25> for an inspection required
13-3 for the movement of plants into or out of a quarantined area.
13-4 SECTION 2.27. Subsection (b), Section 71.043, Agriculture
13-5 Code, is amended to read as follows:
13-6 (b) A florist or nursery owner may apply for registration or
13-7 renewal of registration by submitting an application prescribed by
13-8 the department and an <a nonrefundable> annual fee. The fee shall
13-9 be based on the size and type of a location, as defined by
13-10 department rule, where a florist or nursery owner grows for sale or
13-11 lease or offers for sale or lease a florist item or nursery
13-12 product.
13-13 SECTION 2.28. Subsection (a), Section 71.050, Agriculture
13-14 Code, is amended to read as follows:
13-15 (a) Nursery products <Each nursery product> or florist items
13-16 <item> offered for sale or lease, consigned for shipment, or
13-17 shipped by freight, express, or other means of transportation shall
13-18 be accompanied by a copy of the certificate of inspection issued by
13-19 the department when required by foreign countries or other states
13-20 for agricultural products exported from this state.
13-21 SECTION 2.29. Subsections (c) and (d), Section 71.051,
13-22 Agriculture Code, are amended to read as follows:
13-23 (c) <If the department approves a certificate of another
13-24 state filed under this section, the department shall issue to the
13-25 person filing the certificate a permit allowing the person to ship
13-26 the nursery product or florist item into this state. The permit
13-27 shall be known as a Texas Importation Certificate.>
13-28 <(d)> Each car, box, bale, or package of a nursery product
13-29 or florist item shall bear a tag printed with a copy of the <Texas
13-30 Importation Certificate and the> certificate of inspection from the
13-31 originating state.
13-32 SECTION 2.30. Subsection (a), Section 71.056, Agriculture
13-33 Code, is amended to read as follows:
13-34 (a) The department shall fix by rule and collect a fee for
13-35 inspection of nursery products or florist items when the inspection
13-36 is required by foreign countries or other states for nursery
13-37 products or florist items exported from this state <for the
13-38 issuance of an importation certificate>.
13-39 SECTION 2.31. Subsection (e), Section 71.057, Agriculture
13-40 Code, is amended to read as follows:
13-41 (e) A nursery dealer or nursery agent may apply for
13-42 registration or renewal of registration by submitting an
13-43 application prescribed by the department and an <a nonrefundable>
13-44 annual fee. The fee shall be based on the size and type of a
13-45 location, as defined by department rule, where a nursery dealer or
13-46 nursery agent offers a nursery product for sale or lease.
13-47 SECTION 2.32. Subsections (b) and (c), Section 71.114,
13-48 Agriculture Code, are amended to read as follows:
13-49 (b) The department shall charge an inspection fee <is $5
13-50 plus not less than 25 cents nor more than $1>, as provided <set> by
13-51 rule of the department, for each acre over five acres to be
13-52 inspected.
13-53 (c) In addition to the inspection fee, a person applying for
13-54 certification of sweet potatoes shall pay a fee, as provided by
13-55 department rule, <of not less than one cent nor more than three
13-56 cents> for each certificate tag or stamp issued.
13-57 SECTION 2.33. Section 74.090, Agriculture Code, is amended
13-58 to read as follows:
13-59 Sec. 74.090. Escrow Fee. From each escrow account, the
13-60 department is entitled to deduct an escrow fee, as provided by
13-61 department rule <not to exceed an amount equal to one percent of
13-62 the total deposit>. Fees collected under this section shall be
13-63 used for the purpose of compensating inspectors and defraying other
13-64 necessary costs in the administration of this subchapter.
13-65 SECTION 2.34. Subsection (d), Section 75.004, Agriculture
13-66 Code, is amended to read as follows:
13-67 (d) The department by rule shall set the fee for a dealer's
13-68 license <in an amount not to exceed $100>.
13-69 SECTION 2.35. Subsection (a), Section 76.044, Agriculture
13-70 Code, is amended to read as follows:
14-1 (a) The department shall charge a <A nonrefundable> fee, as
14-2 provided by department rule, <of $100> for each pesticide to be
14-3 registered. The fee must be submitted with an application for
14-4 registration or renewal of registration.
14-5 SECTION 2.36. Subsection (a), Section 76.073, Agriculture
14-6 Code, is amended to read as follows:
14-7 (a) An application for a pesticide dealer license must be
14-8 accompanied by an <a nonrefundable> annual registration fee <of not
14-9 more than $100>, as fixed by the department.
14-10 SECTION 2.37. Subsection (c), Section 76.106, Agriculture
14-11 Code, is amended to read as follows:
14-12 (c) Each regulatory agency may charge a <nonrefundable>
14-13 testing fee, as fixed by the head of the regulatory agency, <of not
14-14 more than $20> for testing in each license use category.
14-15 SECTION 2.38. Subsection (b), Section 76.108, Agriculture
14-16 Code, is amended to read as follows:
14-17 (b) A person shall apply for an original or renewal
14-18 commercial applicator license on forms prescribed by the regulatory
14-19 agency. The application shall include information as required by
14-20 rule of the head of the agency and must be accompanied by an <a
14-21 nonrefundable> annual license fee <of no more than $150>, as fixed
14-22 by the head of the agency.
14-23 SECTION 2.39. Subsection (b), Section 76.109, Agriculture
14-24 Code, is amended to read as follows:
14-25 (b) A person shall apply for an original or renewal
14-26 noncommercial applicator license on forms prescribed by the
14-27 regulatory agency. A nongovernmental applicant shall include with
14-28 the application an <a nonrefundable> annual license fee <of not
14-29 more than $100>, as fixed by the head of the regulatory agency. A
14-30 regulatory agency may not charge a governmental entity applicant a
14-31 license fee.
14-32 SECTION 2.40. Subsection (e), Section 76.112, Agriculture
14-33 Code, is amended to read as follows:
14-34 (e) A person shall apply for an original or renewal private
14-35 applicator license on forms prescribed by the regulatory agency.
14-36 The application shall include information as required by agency
14-37 rule and must be accompanied by a <nonrefundable> fee, as fixed by
14-38 the head of the regulatory agency <of $50>.
14-39 SECTION 2.41. Section 95.034, Agriculture Code, is amended
14-40 to read as follows:
14-41 Sec. 95.034. Inspection Fees. <(a)> The department shall
14-42 collect a fee, as provided by department rule, <in the following
14-43 amount> from each person who applies coloring matter to citrus
14-44 fruit<:>
14-45 <(1) no more than one cent per container for each
14-46 container with a capacity greater than one-half bushel;>
14-47 <(2) no more than one-half cent per container for each
14-48 container with a capacity that is one-half bushel or less; or>
14-49 <(3) no more than one cent per 80-pound lot, or
14-50 portion of 80-pound lot, for each lot that is sold or transported
14-51 in bulk>.
14-52 <(b) The department shall set the fees authorized by this
14-53 section at amounts that are as nearly as possible equal to the cost
14-54 of administering this chapter.>
14-55 SECTION 2.42. Section 94.035, Agriculture Code, is amended
14-56 to read as follows:
14-57 Sec. 94.035. INSPECTION FEES. (a) A person who sells or
14-58 ships citrus fruit after August 31 and before December 16 shall pay
14-59 to the department a <maximum> fee, as provided by department rule
14-60 <of:>
14-61 <(1) 2.5 cents per standard box that is sold,
14-62 transported, or delivered for transportation;>
14-63 <(2) 1.5 cents per one-half standard box, or other
14-64 container that is one-half the size of a standard container, that
14-65 is sold, transported, or delivered for transportation; or>
14-66 <(3) 2.5 cents per 80-pound lot, or portion of an
14-67 80-pound lot, that is sold or transported in bulk>.
14-68 (b) <The commissioner shall set the fees authorized by this
14-69 section at amounts that are as nearly as possible equal to the cost
14-70 of administering this chapter, and will reduce fees as necessary to
15-1 prevent the accumulation of a surplus.>
15-2 <(c)> The fees under this section are due when citrus fruit
15-3 is prepared for market or transportation.
15-4 SECTION 2.43. Section 101.006, Agriculture Code, is amended
15-5 to read as follows:
15-6 Sec. 101.006. License Fee. (a) Except as otherwise
15-7 provided by this section, a person applying for a license shall
15-8 include with the license application a refundable license fee, as
15-9 provided by department rule <of $75>.
15-10 (b) The department shall charge a license fee for a cash
15-11 dealer <is $25>.
15-12 (c) Except as otherwise provided by this section, a person
15-13 who applies for a license as a commission merchant or retailer
15-14 under both this chapter and Chapter 102 of this code is entitled to
15-15 pay a single license fee, as provided by department rule <of $75>.
15-16 The person's license shall reflect that the person is licensed to
15-17 handle both citrus fruit and vegetables.
15-18 (d) A person who applies for a license under Subsection (b)
15-19 of this section and Subsection (b) of Section 102.006 of this code
15-20 is entitled to pay a single license fee, as provided by department
15-21 rule <of $25>. The person's license shall reflect that the person
15-22 is licensed to handle both citrus fruit and vegetables.
15-23 SECTION 2.44. Subsection (c), Section 101.008, Agriculture
15-24 Code, is amended to read as follows:
15-25 (c) To renew a license after the license has expired, the
15-26 applicant must pay a late fee, as provided by Section 12.024 of
15-27 this code <of $25 per day for each day after the expiration date of
15-28 the license. A late fee under this subsection may not exceed
15-29 $500>.
15-30 SECTION 2.45. Subsection (b), Section 101.010, Agriculture
15-31 Code, is amended to read as follows:
15-32 (b) The department shall <may> collect a fee, as provided by
15-33 department rule, <not to exceed $5> for each card and shall issue
15-34 transporting agent cards in a color different from buying agent
15-35 cards.
15-36 SECTION 2.46. Section 102.006, Agriculture Code, is amended
15-37 to read as follows:
15-38 Sec. 102.006. License Fee. (a) Except as otherwise
15-39 provided by this section, a person applying for a license shall
15-40 include with the license application a refundable license fee, as
15-41 provided by department rule <of $75>.
15-42 (b) The department shall charge a license fee for a cash
15-43 dealer <is $25>.
15-44 (c) Except as otherwise provided by this section, a person
15-45 who applies for a license as a commission merchant or retailer
15-46 under both this chapter and Chapter 101 of this code is entitled to
15-47 pay a single license fee, as provided by department rule <of $75>.
15-48 The person's license shall reflect that the person is licensed to
15-49 handle both citrus fruit and vegetables.
15-50 (d) A person who applies for a license under Subsection (b)
15-51 of this section and Subsection (b) of Section 101.006 of this code
15-52 is entitled to pay a single license fee, as provided by department
15-53 rule <of $25>. The person's license shall reflect that the person
15-54 is licensed to handle both citrus fruit and vegetables.
15-55 SECTION 2.47. Subsection (c), Section 102.008, Agriculture
15-56 Code, is amended to read as follows:
15-57 (c) To renew a license after the license has expired, the
15-58 applicant must pay a late fee, as provided by Section 12.024 of
15-59 this code <of $25 per day for each day after the expiration date of
15-60 the license. A late fee under this subsection may not exceed
15-61 $500>.
15-62 SECTION 2.48. Subsection (b), Section 102.010, Agriculture
15-63 Code, is amended to read as follows:
15-64 (b) The department shall <may> collect a fee, as provided by
15-65 department rule, <not to exceed $1> for each card and shall issue
15-66 transporting agent cards in a color different from buying agent
15-67 cards.
15-68 SECTION 2.49. Section 102.162, Agriculture Code, is amended
15-69 to read as follows:
15-70 Sec. 102.162. Fees. Each person applying for a marketing
16-1 agreement or license shall submit to the department a filing fee,
16-2 as provided by department rule, <of $10> and a deposit in an amount
16-3 that the department considers sufficient and necessary to defray
16-4 the expenses of preparing and making effective the marketing
16-5 agreement or license.
16-6 SECTION 2.50. Section 103.005, Agriculture Code, is amended
16-7 to read as follows:
16-8 Sec. 103.005. Initiation of Claim. A person who deals with
16-9 a commission merchant or retailer licensed under Chapter 101 or 102
16-10 of this code in the purchasing, handling, selling, and accounting
16-11 for sales of vegetables or citrus fruit and who is aggrieved by an
16-12 action of the commission merchant or retailer as a result of a
16-13 violation of terms or conditions of a contract made by the
16-14 commission merchant or retailer may initiate a claim against the
16-15 fund by filing with the department:
16-16 (1) a sworn complaint against the commission merchant
16-17 or retailer; and
16-18 (2) a filing fee, as provided by department rule <of
16-19 $15>.
16-20 SECTION 2.51. Subsections (a), (b), and (c), Section
16-21 103.011, Agriculture Code, are amended to read as follows:
16-22 (a) Except as otherwise provided by this section, a
16-23 commission merchant or retailer licensed under Chapter 101 or 102
16-24 of this code shall pay an annual fee to the fund, as provided by
16-25 department rule <of $200>.
16-26 (b) A retailer who is licensed under Chapter 101 or 102 of
16-27 this code and whose annual purchases of vegetables and citrus fruit
16-28 are less than $15,000 a year shall pay an annual fee, as provided
16-29 by department rule <of $50>.
16-30 (c) A person who is required by Subsection (a) of this
16-31 section to pay a fee <of $200> and who is licensed in one of those
16-32 classifications under both Chapters 101 and 102 of this code may
16-33 pay a single fee, as provided by department rule <of $250>. A
16-34 person who is required by Subsection (b) of this section to pay a
16-35 <$50> fee and who is licensed in that classification under both
16-36 Chapters 101 and 102 of this code may pay a single fee, as provided
16-37 by department rule <of $75>.
16-38 SECTION 2.52. Subsection (c), Section 121.004, Agriculture
16-39 Code, is amended to read as follows:
16-40 (c) Each grower, dealer, wholesaler, and processor shall pay
16-41 an annual fee for a certificate of authority based on the actual
16-42 amount of work done by or under the direction of the department in
16-43 administering this chapter. The department shall fix a <the> fee,
16-44 as provided by department rule <in an amount not less than the
16-45 following>, according to the number of rose plants handled, sold,
16-46 or offered for sale during the calendar year. <:>
16-47 <NUMBER OF PLANTS FEE>
16-48 <Less than 100,000 $15>
16-49 <100,000 or more but less than 500,000 $25>
16-50 <500,000 or more but less than 1,000,000 $50>
16-51 <1,000,000 or more $100>
16-52 SECTION 2.53. Subsection (a), Section 132.026, Agriculture
16-53 Code, is amended to read as follows:
16-54 (a) The license fee for each plant operated by a
16-55 dealer-wholesaler is provided <determined> by department rule
16-56 <applying the fee schedule provided by Subsection (c) of this
16-57 section as follows:>
16-58 <(1) for an applicant for an initial dealer-wholesaler
16-59 license, the schedule is applied to an estimate of the average
16-60 weekly volume of the month in which the applicant will handle the
16-61 most eggs through the applicant's first license year;>
16-62 <(2) for an applicant for renewal of a
16-63 dealer-wholesaler's license who has been in business for less than
16-64 one year, the schedule is applied to the average weekly volume of
16-65 the month in which the licensee handled the most eggs through May
16-66 of the first license year; and>
16-67 <(3) for any other applicant for renewal of a
16-68 dealer-wholesaler license, the schedule is applied to the average
16-69 weekly volume of the 12 months preceding the last May 31>.
16-70 SECTION 2.54. Subsection (a), Section 132.027, Agriculture
17-1 Code, is amended to read as follows:
17-2 (a) The license fee for each plant operated by a processor
17-3 is provided <determined> by department rule <applying the fee
17-4 schedule provided by Subsection (c) of this section as follows:>
17-5 <(1) for an applicant for an initial processor's
17-6 license, the fee schedule is applied to an estimate of the average
17-7 weekly volume of the month in which the applicant will handle the
17-8 most eggs through the applicant's first license year;>
17-9 <(2) for an applicant for renewal of a processor's
17-10 license who has been in business for less than one year, the fee
17-11 schedule is applied to the average weekly volume of the month in
17-12 which the licensee handled the most eggs through May of the first
17-13 license year; and>
17-14 <(3) for any other applicant for renewal of a
17-15 processor's license, the fee schedule is applied to the average
17-16 weekly volume of the 12 months preceding the last May 31>.
17-17 SECTION 2.55. Section 132.028, Agriculture Code, is amended
17-18 to read as follows:
17-19 Sec. 132.028. FEE FOR BROKER'S LICENSE. The department
17-20 shall charge a license fee, as provided by department rule, for a
17-21 broker <is $350>.
17-22 SECTION 2.56. Subsections (a) and (b), Section 132.043,
17-23 Agriculture Code, are amended to read as follows:
17-24 (a) A person licensed under this chapter who first
17-25 establishes the grade, size, and classification of eggs offered for
17-26 sale or sold in this state shall collect a fee, as provided by
17-27 department rule <of five cents per case of 30 dozen eggs on the
17-28 first sale of the eggs>.
17-29 (b) A processor licensed under this chapter shall pay an
17-30 inspection fee, as provided by department rule, <of five cents per
17-31 case of 30 dozen eggs> on the processor's first use or change in
17-32 form of the eggs processed.
17-33 SECTION 2.57. Section 134.014, Agriculture Code, is amended
17-34 to read as follows:
17-35 Sec. 134.014. License Fees. The department shall issue an
17-36 aquaculture license or a fish farm vehicle license on the payment
17-37 of a fee, as provided by department rule <in an amount set by the
17-38 commissioner, not to exceed $100>.
17-39 SECTION 2.58. Subsection (b), Section 134.015, Agriculture
17-40 Code, is amended to read as follows:
17-41 (b) A license is valid for two years after the date of
17-42 issuance. The department shall renew a license on submission by
17-43 the licensee of a completed application and a renewal fee, as
17-44 provided by department rule <in an amount set by the commissioner,
17-45 not to exceed $100>, unless the department determines that the
17-46 licensee has violated this chapter or a rule adopted under this
17-47 chapter.
17-48 ARTICLE 3. HEARINGS
17-49 SECTION 3.01. Chapter 12, Agriculture Code, is amended by
17-50 adding Section 12.032 to read as follows:
17-51 Sec. 12.032. COOPERATION WITH STATE OFFICE OF ADMINISTRATIVE
17-52 HEARINGS. (a) The commissioner and the chief administrative law
17-53 judge of the State Office of Administrative Hearings by rule shall
17-54 adopt a memorandum of understanding under which the State Office of
17-55 Administrative Hearings conducts hearings for the department under
17-56 this code. The memorandum of understanding shall require the chief
17-57 administrative law judge, the department, and the commissioner to
17-58 cooperate in connection with the hearings under this code and may
17-59 authorize the State Office of Administrative Hearings to perform
17-60 any administrative act, including giving of notice, that is
17-61 required to be performed by the department or the commissioner
17-62 under this code. The memorandum of understanding shall also
17-63 require that hearings under this section be held at a location
17-64 agreed upon by the State Office of Administrative Hearings and the
17-65 department.
17-66 (b) For a hearing conducted by the State Office of
17-67 Administrative Hearings under this code, the department and the
17-68 commissioner retain the authority to decide whether the
17-69 administrative law judge conducting the hearing for the State
17-70 Office of Administrative Hearings shall:
18-1 (1) enter the final decision in the case after
18-2 completion of the hearing; or
18-3 (2) propose a decision to the department or the
18-4 commissioner for final consideration.
18-5 (c) Any provision of this code that provides that the
18-6 department or the commissioner take an action at a hearing means:
18-7 (1) that the department or the commissioner shall take
18-8 the action after the receipt of a proposal for decision from the
18-9 State Office of Administrative Hearings regarding the hearing
18-10 conducted by that office; or
18-11 (2) if so directed by the department or the
18-12 commissioner, the State Office of Administrative Hearings shall
18-13 enter the final decision in the case after completion of the
18-14 hearing.
18-15 (d) The department shall prescribe rules of procedure for
18-16 any cases not heard by the State Office of Administrative Hearings.
18-17 (e) The department by interagency contract shall reimburse
18-18 the State Office of Administrative Hearings for the costs incurred
18-19 in conducting administrative hearings for the department. The
18-20 department may pay an hourly fee for the costs of conducting these
18-21 hearings or a fixed annual fee negotiated biennially by the
18-22 department and the State Office of Administrative Hearings to
18-23 coincide with the department's legislative appropriations request.
18-24 (f) This section does not apply to hearings held under
18-25 Chapter 103.
18-26 SECTION 3.02. Section 12.020, Agriculture Code, is amended
18-27 to read as follows:
18-28 Sec. 12.020. Administrative Penalties. (a) If a person
18-29 violates a provision of this code described by Subsection (c) of
18-30 this section or a rule or order adopted by the department under a
18-31 provision of this code described by Subsection (c) of this section,
18-32 the department may assess an administrative penalty against the
18-33 person as provided by this section.
18-34 (b) The penalty for each violation may be in an amount not
18-35 to exceed the maximum provided by Subsection (c) of this section.
18-36 Each day a violation continues or occurs may be considered a
18-37 separate violation for purposes of penalty assessments.
18-38 (c) The provisions of this code subject to this section and
18-39 the applicable penalty amounts are as follows:
18-40 Provision Maximum Penalty
18-41 Chapters 13, 14, 18, 61, 94, 95,
18-42 101, 102, 103, 121, 125, <and> 132, and 134 $500
18-43 Subchapter B, Chapter 71
18-44 Chapters 75 and 76 $2,000
18-45 Subchapters A and C, Chapter 71
18-46 Chapters 72, 73, and 74 $5,000.
18-47 (d) In determining the amount of the penalty, the department
18-48 shall consider:
18-49 (1) the seriousness of the violation, including but
18-50 not limited to the nature, circumstances, extent, and gravity of
18-51 the prohibited acts, and the hazard or potential hazard created to
18-52 the health or safety of the public;
18-53 (2) the <economic> damage to property or the
18-54 environment caused by the violation;
18-55 (3) the history of previous violations;
18-56 (4) the amount necessary to deter future violations;
18-57 (5) efforts to correct the violation; and
18-58 (6) any other matter that justice may require.
18-59 (e) If, after investigation of a possible violation and the
18-60 facts surrounding that possible violation, the department
18-61 determines that a violation has occurred, the department may issue
18-62 a violation report stating the facts on which the conclusion that a
18-63 violation occurred is based, recommending that an administrative
18-64 penalty under this section be imposed on the person charged, and
18-65 recommending the amount of that proposed penalty. The department
18-66 shall base the recommended amount of the proposed penalty on the
18-67 seriousness of the violation determined by consideration of the
18-68 factors set forth in Subsection (d) of this section.
18-69 (f) Not later than the 14th day after the date on which the
18-70 report is issued, the department shall give written notice of the
19-1 report to the person charged. The notice shall include a brief
19-2 summary of the charges, a statement of the amount of the penalty
19-3 recommended, and a statement of the right of the person charged to
19-4 a hearing on the occurrence of the violation or the amount of the
19-5 penalty, or both the occurrence of the violation and the amount of
19-6 the penalty.
19-7 (g) Not later than the 20th day after the date on which
19-8 notice is received, the person charged may accept the determination
19-9 of the department made under Subsection (e) of this section,
19-10 including the recommended penalty, or make a written request for a
19-11 hearing on the determination.
19-12 (h) If the person charged with the violation accepts the
19-13 determination of the department, the commissioner shall issue an
19-14 order approving the determination and ordering the payment of the
19-15 recommended penalty.
19-16 (i) If the person charged requests a hearing or fails to
19-17 timely respond to the notice, the department shall set a hearing
19-18 and give notice of the hearing. The hearing shall be conducted
19-19 under Section 12.032 <held by a hearing examiner designated by the
19-20 department>. The administrative law judge <hearing examiner> shall
19-21 make findings of fact and conclusions of law and promptly issue to
19-22 the commissioner a proposal for decision as to the occurrence of
19-23 the violation, including a recommendation as to the amount of the
19-24 proposed penalty if a penalty is warranted. Based on the findings
19-25 of fact, conclusions of law, and recommendations of the judge
19-26 <hearing examiner>, the commissioner by order may find a violation
19-27 has occurred and may assess a penalty or may find that no violation
19-28 has occurred. <All proceedings under this subsection are subject
19-29 to the Administrative Procedure and Texas Register Act (Article
19-30 6252-13a, Vernon's Texas Civil Statutes).>
19-31 (j) The department shall give notice of the commissioner's
19-32 order to the person charged. The notice shall include:
19-33 (1) the findings of fact and conclusions of law
19-34 separately stated;
19-35 (2) the amount of the penalty ordered, if any;
19-36 (3) a statement of the right of the person charged to
19-37 judicial review of the commissioner's order, if any; and
19-38 (4) other information required by law.
19-39 (k) Within the 30-day period immediately following the day
19-40 on which the order becomes final under Section 2001.144, Government
19-41 Code <as provided by Subsection (c), Section 16, Administrative
19-42 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
19-43 Civil Statutes)>, the person charged with the penalty shall:
19-44 (1) pay the penalty in full; <or>
19-45 (2) pay the amount of the penalty and file a petition
19-46 for judicial review contesting the occurrence of the violation, the
19-47 amount of the penalty, or both the occurrence of the violation and
19-48 the amount of the penalty; or
19-49 (3) without paying the amount of the penalty, file a
19-50 petition for judicial review contesting the occurrence of the
19-51 violation, the amount of the penalty, or both the occurrence of the
19-52 violation and the amount of the penalty <if the person files a
19-53 petition for judicial review contesting either the amount of the
19-54 penalty or the fact of the violation or contesting both the fact of
19-55 the violation and the amount of the penalty:>
19-56 <(A) forward the amount to the department for
19-57 placement in an escrow account; or>
19-58 <(B) in lieu of payment into escrow, post with
19-59 the department a supersedeas bond in a form approved by the
19-60 department for the amount of the penalty, the bond to be effective
19-61 until all judicial review of the order or decision is final>.
19-62 (l) Within the 30-day period, a person who acts under
19-63 Subsection (k)(3) of this section may:
19-64 (1) stay enforcement of the penalty by:
19-65 (A) paying the amount of the penalty to the
19-66 court for placement in an escrow account; or
19-67 (B) giving to the court a supersedeas bond that
19-68 is approved by the court for the amount of the penalty and that is
19-69 effective until all judicial review of the commissioner's order is
19-70 final; or
20-1 (2) request the court to stay enforcement of the
20-2 penalty by:
20-3 (A) filing with the court a sworn affidavit of
20-4 the person stating that the person is financially unable to pay the
20-5 amount of the penalty and is financially unable to give the
20-6 supersedeas bond; and
20-7 (B) giving a copy of the affidavit to the
20-8 department by certified mail <If a person charged is financially
20-9 unable to either forward the amount of the penalty for placement in
20-10 an escrow account or post a supersedeas bond for the amount of the
20-11 penalty, the person may satisfy the requirements of Subsection
20-12 (k)(2) of this section by filing with the department an affidavit
20-13 sworn by the person charged, stating that the person is financially
20-14 unable to either forward the amount of the penalty or post a bond>.
20-15 (m) The department on receipt of a copy of an affidavit
20-16 under Subsection (l)(2) of this section may file with the court,
20-17 within five days after the date the copy is received, a contest to
20-18 the affidavit. The court shall hold a hearing on the facts alleged
20-19 in the affidavit as soon as practicable and shall stay the
20-20 enforcement of the penalty on finding that the alleged facts are
20-21 true. The person who files an affidavit has the burden of proving
20-22 that the person is financially unable to pay the amount of the
20-23 penalty and to give a supersedeas bond.
20-24 (n) If the person does not pay the amount of the penalty and
20-25 the enforcement of the penalty is not stayed, the department may
20-26 refer the matter to the attorney general for collection of the
20-27 amount of the penalty.
20-28 (o) Judicial review of the order of the commissioner:
20-29 (1) is instituted by filing a petition as provided by
20-30 Subchapter G, Chapter 2001, Government Code; and
20-31 (2) is under the substantial evidence rule.
20-32 (p) If the court sustains the occurrence of the violation,
20-33 the court may uphold or reduce the amount of the penalty and order
20-34 the person to pay the full or reduced amount of the penalty. If
20-35 the court does not sustain the occurrence of the violation, the
20-36 court shall order that no penalty is owed.
20-37 (q) When the judgment of the court becomes final, the court
20-38 shall proceed under this subsection. If the person paid the amount
20-39 of the penalty and if that amount is reduced or is not upheld by
20-40 the court, the court shall order that the appropriate amount plus
20-41 accrued interest be remitted to the person. The rate of the
20-42 interest is the rate charged on loans to depository institutions by
20-43 the New York Federal Reserve Bank, and the interest shall be paid
20-44 for the period beginning on the date the penalty was paid and
20-45 ending on the date the penalty is remitted. If the person gave a
20-46 supersedeas bond and if the amount of the penalty is not upheld by
20-47 the court, the court shall order the release of the bond. If the
20-48 person gave a supersedeas bond and if the amount of the penalty is
20-49 reduced, the court shall order the release of the bond after the
20-50 person pays the amount. <Failure to forward the money to or to
20-51 post the bond or file the affidavit with the department within the
20-52 time provided by Subsection (k) of this section results in a waiver
20-53 of all legal rights to judicial review. Also, if the person
20-54 charged fails to pay the penalty in full as provided under
20-55 Subsection (k)(1) of this section or forward the money, post the
20-56 bond, or file the affidavit as provided by Subsection (k) or (l) of
20-57 this section, the department may forward the matter to the attorney
20-58 general for enforcement.>
20-59 <(n) Judicial review of the order or decision of the
20-60 department assessing the penalty shall be under the substantial
20-61 evidence rule and shall be instituted by filing a petition with a
20-62 district court in Travis County, as provided by Section 19,
20-63 Administrative Procedure and Texas Register Act (Article 6252-13a,
20-64 Vernon's Texas Civil Statutes).>
20-65 <(o) If the penalty is reduced or not assessed by the court,
20-66 the department shall remit to the person charged the appropriate
20-67 amount plus accrued interest if the penalty has been paid or shall
20-68 execute a release of the bond if a supersedeas bond has been
20-69 posted. The accrued interest on amounts remitted by the department
20-70 under this subsection shall be paid at a rate equal to the rate
21-1 charged on loans to depository institutions by the New York Federal
21-2 Reserve Bank and shall be paid for the period beginning on the date
21-3 the penalty is paid to the department under Subsection (k) of this
21-4 section and ending on the date the penalty is remitted.>
21-5 (r) <(p)> A penalty collected under this section shall be
21-6 deposited in the state treasury to the credit of the General
21-7 Revenue Fund.
21-8 (s) All proceedings under this section are subject to
21-9 Chapter 2001, Government Code, except as provided in Subsections
21-10 (t) and (u).
21-11 (t) Notwithstanding Section 2001.058, Government Code, the
21-12 commissioner may change a finding of fact or conclusion of law made
21-13 by the administrative law judge if the commissioner:
21-14 (1) determines that the administrative law judge:
21-15 (A) did not properly apply or interpret
21-16 applicable law, department rules or policies, or prior
21-17 administrative decisions; or
21-18 (B) issued a finding of fact that is not
21-19 supported by a preponderence of the evidence; or
21-20 (2) determines that a department policy or a prior
21-21 administrative decision on which the administrative law judge
21-22 relied is incorrect or should be changed.
21-23 (u) The commissioner shall state in writing the specific
21-24 reason and legal basis for a determination under Subsection (t).
21-25 SECTION 3.03. Subsection (c), Section 13.2555, Agriculture
21-26 Code, is amended to read as follows:
21-27 (c) If the department proposes to revoke, modify, or suspend
21-28 a person's certificate, the person is entitled to a hearing
21-29 conducted under Section 12.032 <before a hearings officer
21-30 designated by the department>. The decision of the department is
21-31 appealable in the same manner as provided for contested cases under
21-32 Chapter 2001, Government Code <the Administrative Procedure and
21-33 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
21-34 Statutes)>.
21-35 SECTION 3.04. Subsection (d), Section 13.306, Agriculture
21-36 Code, is amended to read as follows:
21-37 (d) If the department proposed to deny a person's
21-38 application for a license for inspecting or testing of liquefied
21-39 gas meters or to revoke, modify, or suspend a person's license, the
21-40 person is entitled to a hearing conducted under Section 12.032
21-41 <before a hearings officer designated by the department>. The
21-42 decision of the department is appealable in the same manner as
21-43 provided for contested cases under Chapter 2001, Government Code
21-44 <the Administrative Procedure and Texas Register Act (Article
21-45 6252-13a, Vernon's Texas Civil Statutes)>.
21-46 SECTION 3.05. Subsection (d), Section 13.356, Agriculture
21-47 Code, is amended to read as follows:
21-48 (d) If the department proposes to deny a person's
21-49 application for a license for inspecting or testing of ranch scales
21-50 or to revoke, modify, or suspend a person's license, the person is
21-51 entitled to a hearing conducted under Section 12.032 <before a
21-52 hearings officer designated by the department>. The decision of
21-53 the department is appealable in the same manner as provided for
21-54 contested cases under Chapter 2001, Government Code <the
21-55 Administrative Procedure and Texas Register Act (Article 6252-13a,
21-56 Vernon's Texas Civil Statutes)>.
21-57 SECTION 3.06. Subsection (b), Section 14.003, Agriculture
21-58 Code, is amended to read as follows:
21-59 (b) In any hearing conducted <held by the department> under
21-60 this subchapter, the State Office of Administrative Hearings
21-61 <department> may:
21-62 (1) examine under oath any person and examine books
21-63 and records of any licensee;
21-64 (2) hear testimony and gather evidence for the
21-65 discharge of duties under this subchapter;
21-66 (3) administer oaths; and
21-67 (4) issue subpoenas, effective in any part of this
21-68 state, and require attendance of witnesses and the production of
21-69 books.
21-70 SECTION 3.07. Subsection (e), Section 14.015, Agriculture
22-1 Code, is amended to read as follows:
22-2 (e) Except as provided by Subsection (c) of this section, if
22-3 the department proposes to deny, revoke, modify, or suspend a
22-4 person's application or license, the person is entitled to a
22-5 hearing conducted under Section 12.032 <before a hearings officer
22-6 designated by the department>. The decision of the department is
22-7 appealable in the same manner as provided for contested cases under
22-8 Chapter 2001, Government Code <the Administrative Procedure and
22-9 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
22-10 Statutes)>.
22-11 SECTION 3.08. Subsection (c), Section 61.0135, Agriculture
22-12 Code, is amended to read as follows:
22-13 (c) If the department proposes to revoke, modify, or suspend
22-14 a person's license, the person is entitled to a hearing conducted
22-15 under Section 12.032 <before a hearings officer designated by the
22-16 department>. The decision of the department is appealable in the
22-17 same manner as provided for contested cases under Chapter 2001,
22-18 Government Code <the Administrative Procedure and Texas Register
22-19 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
22-20 SECTION 3.09. Subsection (d), Section 62.010, Agriculture
22-21 Code, is amended to read as follows:
22-22 (d) If the department proposes to revoke, modify, or suspend
22-23 a person's registration or license, the person is entitled to a
22-24 hearing conducted under Section 12.032 <before a hearings officer
22-25 designated by the department>. The board shall prescribe
22-26 procedures by which all decisions of the department to revoke,
22-27 modify, or suspend a registration or license issued under this
22-28 chapter are appealable to the board.
22-29 SECTION 3.10. Subsection (c), Section 75.0055, Agriculture
22-30 Code, is amended to read as follows:
22-31 (c) If the department proposes to deny a person's
22-32 application for a license or revoke, modify, or suspend a person's
22-33 license, the person is entitled to a hearing conducted under
22-34 Section 12.032 <before a hearings officer designated by the
22-35 department>. The decision of the department is appealable in the
22-36 same manner as provided for contested cases under Chapter 2001,
22-37 Government Code <the Administrative Procedure and Texas Register
22-38 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
22-39 SECTION 3.11. Subsection (f), Section 75.021, Agriculture
22-40 Code, is amended to read as follows:
22-41 (f) Before the 21st day after the day on which an order is
22-42 entered, an interested person may appeal an order of a
22-43 commissioners court issued under this section to district court to
22-44 test the reasonableness of the commissioners court's fact-finding.
22-45 On appeal, the district court shall follow the rules governing
22-46 judicial review of contested cases under Subchapter G, Chapter
22-47 2001, Government Code <Section 19, Administrative Procedure and
22-48 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
22-49 Statutes)>, and shall apply the substantial evidence rule. Appeals
22-50 may be taken from the district court as in other civil cases.
22-51 SECTION 3.12. Subsection (c), Section 75.022, Agriculture
22-52 Code, is amended to read as follows:
22-53 (c) Section 12.020 <76.1555> of this code, which provides
22-54 for the assessment of administrative penalties, applies to a person
22-55 who violates this chapter or a rule or order adopted by the
22-56 department under this chapter.
22-57 SECTION 3.13. Subsection (a), Section 76.047, Agriculture
22-58 Code, is amended to read as follows:
22-59 (a) If the department has reason to believe that any use of
22-60 a registered pesticide is in violation of a provision of this
22-61 chapter or is dangerous or harmful, the department shall determine
22-62 whether <may conduct> a hearing shall be held under Section 12.032
22-63 on denial or cancellation of registration.
22-64 SECTION 3.14. Subsection (d), Section 76.076, Agriculture
22-65 Code, is amended to read as follows:
22-66 (d) If the department proposes to deny a person's
22-67 application for a pesticide dealer license or to revoke, modify, or
22-68 suspend a person's license, the person is entitled to a hearing
22-69 conducted under Section 12.032 <before a hearings officer
22-70 designated by the department>. The decision of the department is
23-1 appealable in the same manner as provided for contested cases under
23-2 Chapter 2001, Government Code <the Administrative Procedure and
23-3 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
23-4 Statutes)>.
23-5 SECTION 3.15. Section 76.116, Agriculture Code, is amended
23-6 by amending Subsection (d) and by adding Subsection (e) to read as
23-7 follows:
23-8 (d) Except for a temporary suspension under Subsection (b)
23-9 of this section, if the regulatory agency, except for the
23-10 department, proposes to suspend, modify, or revoke a person's
23-11 license or certificate, the person is entitled to a hearing before
23-12 a hearings officer designated by the agency. The agency shall
23-13 prescribe procedures by which all decisions to suspend, modify, or
23-14 revoke are appealable to the governing officer or board of the
23-15 agency.
23-16 (e) Except for a temporary suspension under Subsection (b)
23-17 of this section, if the department proposes to suspend, modify, or
23-18 revoke a person's license or certificate, the person is entitled to
23-19 a hearing conducted as provided under Section 12.032. The decision
23-20 of the department is appealable in the same manner as provided for
23-21 contested cases under Chapter 2001, Government Code.
23-22 SECTION 3.16. Section 76.1555, Agriculture Code, is amended
23-23 to read as follows:
23-24 Sec. 76.1555. Administrative Penalty. (a) If a person
23-25 violates a provision of Chapter 75 or 76 of this code administered
23-26 by the department or a rule or order adopted by the department
23-27 under either of those chapters, the department may assess an
23-28 administrative penalty against the person as provided by Section
23-29 12.020, except <this section.>
23-30 <(b) The penalty may be in an amount not to exceed $2,000
23-31 for each violation, provided> that the penalty shall not exceed
23-32 $4,000 for all violations related to a single incident.
23-33 (b) The department shall establish a schedule stating the
23-34 types of violations possible under Chapters 75 and 76 of this code
23-35 <and the maximum fine applicable to each type of violation>. The
23-36 department is not required to comply with Subchapter B, Chapter
23-37 2001, Government Code <Section 5, Administrative Procedure and
23-38 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
23-39 Statutes)>, when establishing or revising the schedule. The
23-40 department shall publish the initial schedule and any subsequent
23-41 revision in the Texas Register before the schedule or revision is
23-42 implemented.
23-43 (c) <In determining the amount of the penalty, the
23-44 department shall consider:>
23-45 <(1) the seriousness of the violation, including but
23-46 not limited to the nature, circumstances, extent, and gravity of
23-47 the prohibited acts, and the hazard or potential hazard created to
23-48 the health or safety of the public;>
23-49 <(2) the economic damage to property or the
23-50 environment caused by the violation;>
23-51 <(3) the history of previous violations;>
23-52 <(4) the amount necessary to deter future violations;>
23-53 <(5) efforts to correct the violation; and>
23-54 <(6) any other matter that justice may require.>
23-55 <(d) If, after investigation of a possible violation and the
23-56 facts surrounding that possible violation, the department
23-57 determines that a violation has occurred, the department may issue
23-58 a violation report stating the facts on which the conclusion that a
23-59 violation occurred is based and may recommend that an
23-60 administrative penalty under this section be imposed on the person
23-61 charged and recommending the amount of that proposed penalty. The
23-62 department shall base the recommended amount of the proposed
23-63 penalty on the seriousness of the violation determined by
23-64 consideration of the factors set forth in Subsection (c) of this
23-65 section.>
23-66 <(e) Not later than the 14th day after the date on which the
23-67 report is issued, the department shall give written notice of the
23-68 report to the person charged. The notice shall include a brief
23-69 summary of the charges, a statement of the amount of the penalty,
23-70 if any is recommended, and a statement of the right of the person
24-1 charged to a hearing on the occurrence of the violation or the
24-2 amount of the penalty, or both the occurrence of the violation and
24-3 the amount of the penalty.>
24-4 <(f) Not later than the 20th day after the date on which
24-5 notice is received, the person charged either may accept the
24-6 determination of the department made under Subsection (d) of this
24-7 section, including the recommended penalty, or make a written
24-8 request for a hearing on the determination.>
24-9 <(g) If the person charged with the violation accepts the
24-10 determination of the department, the commissioner shall issue an
24-11 order approving the determination and ordering the payment of the
24-12 recommended penalty.>
24-13 <(h) If the person charged requests a hearing or fails to
24-14 timely respond to the notice, the department shall set a hearing
24-15 and give notice of the hearing. The hearing shall be held by a
24-16 hearing examiner designated by the department. The hearing
24-17 examiner shall make findings of fact and conclusions of law and
24-18 promptly issue to the commissioner a proposal for decision as to
24-19 the occurrence of the violation, including a recommendation as to
24-20 the amount of the proposed penalty if a penalty is warranted.
24-21 Based on the findings of fact, conclusions of law, and
24-22 recommendations of the hearing examiner, the commissioner by order
24-23 may find a violation has occurred and may assess a penalty or may
24-24 find that no violation has occurred. All proceedings under this
24-25 subsection are subject to the Administrative Procedure and Texas
24-26 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).>
24-27 <(i) The department shall give notice of the commissioner's
24-28 order to the person charged. The notice shall include:>
24-29 <(1) the findings of fact and conclusions of law
24-30 separately stated;>
24-31 <(2) the amount of the penalty ordered, if any;>
24-32 <(3) a statement of the right of the person charged to
24-33 judicial review of the commissioner's order, if any; and>
24-34 <(4) other information required by law.>
24-35 <(j) Within the 30-day period immediately following the day
24-36 on which the order becomes final as provided by Section 16(c),
24-37 Administrative Procedure and Texas Register Act (Article 6252-13a,
24-38 Vernon's Texas Civil Statutes), the person charged with the penalty
24-39 shall:>
24-40 <(1) pay the penalty in full; or>
24-41 <(2) if the person files a petition for judicial
24-42 review contesting either the amount of the penalty or the fact of
24-43 the violation or contesting both the fact of the violation and the
24-44 amount of the penalty, post a supersedeas bond in a form approved
24-45 by the department for the amount of the penalty or $1,000,
24-46 whichever is less, the bond to be effective until all judicial
24-47 review of the order or decision is final.>
24-48 <(k) A bond under Subsection (j)(2) of this section must be
24-49 posted with the district clerk. The bond must be filed at the same
24-50 time the petition for judicial review is filed.>
24-51 <(l) If a person charged is financially unable to post a
24-52 supersedeas bond, the person may satisfy the requirements of
24-53 Subsection (j)(2) of this section by filing with the district clerk
24-54 an affidavit sworn by the person charged stating that the person is
24-55 financially unable to post a bond.>
24-56 <(m) Failure to post the bond or file the affidavit within
24-57 the time provided by Subsection (j) of this section results in a
24-58 waiver of all legal rights to judicial review. Also, if the person
24-59 charged fails to pay the penalty in full as provided under
24-60 Subsection (j)(1) of this section or post the bond or file the
24-61 affidavit as provided by Subsection (j) or (l) of this section, the
24-62 department may forward the matter to the attorney general for
24-63 enforcement.>
24-64 <(n) Judicial review of the order or decision of the
24-65 department assessing the penalty shall be under the substantial
24-66 evidence rule and shall be instituted by filing a petition with a
24-67 district court in Travis County, as provided by Section 19,
24-68 Administrative Procedure and Texas Register Act (Article 6252-13a,
24-69 Vernon's Texas Civil Statutes).>
24-70 <(o) On final judgment of the court and payment of any
25-1 penalties and costs assessed by the court, the department shall
25-2 execute a release of any supersedeas bond posted under this
25-3 section.>
25-4 <(p) A penalty collected under this section shall be
25-5 deposited in the state treasury to the credit of the General
25-6 Revenue Fund.>
25-7 <(q)> If the department elects to assess an administrative
25-8 penalty, no action for a civil penalty may be based on the same
25-9 violation or violations.
25-10 SECTION 3.17. Subsection (a), Section 76.181, Agriculture
25-11 Code, is amended to read as follows:
25-12 (a) A person whose application for registration of a
25-13 pesticide has been denied or whose registration for a pesticide has
25-14 been canceled may appeal the action in the manner provided for
25-15 appeal of contested cases under Chapter 2001, Government Code <the
25-16 Administrative Procedure and Texas Register Act (Article 6252-13a,
25-17 Vernon's Texas Civil Statutes)>.
25-18 SECTION 3.18. Subsection (a), Section 76.182, Agriculture
25-19 Code, is amended to read as follows:
25-20 (a) A person whose application for an experimental use
25-21 permit, pesticide dealer license, commercial applicator license,
25-22 noncommercial applicator license, or private applicator license has
25-23 been denied or whose experimental use permit, pesticide dealer
25-24 license, commercial applicator license, noncommercial applicator
25-25 license, private applicator license, or private applicator
25-26 certificate has been suspended for more than 10 days, revoked, or
25-27 modified may appeal the action in the manner provided for appeal of
25-28 contested cases under Chapter 2001, Government Code <the
25-29 Administrative Procedure and Texas Register Act (Article 6252-13a,
25-30 Vernon's Texas Civil Statutes)>.
25-31 SECTION 3.19. Section 96.005, Agriculture Code, is amended
25-32 to read as follows:
25-33 Sec. 96.005. Revocation of License. Following a hearing
25-34 conducted under Section 12.032, the department shall revoke the
25-35 license of a licensed grain sampler who:
25-36 (1) fails to comply with the standards for sampling
25-37 prescribed by the department; or
25-38 (2) fails to keep the bond in force in the amount
25-39 required by the department.
25-40 SECTION 3.20. Subsection (d), Section 101.007, Agriculture
25-41 Code, is amended to read as follows:
25-42 (d) Before refusing an application for a license under this
25-43 section, <the department shall conduct> a hearing shall be
25-44 conducted under Section 12.032 on the license application, and the
25-45 applicant may appeal the decision <of the department,> in the
25-46 manner provided for contested cases under Chapter 2001, Government
25-47 Code <the Administrative Procedure and Texas Register Act (Article
25-48 6252-13a, Vernon's Texas Civil Statutes)>.
25-49 SECTION 3.21. Subsection (c), Section 101.012, Agriculture
25-50 Code, is amended to read as follows:
25-51 (c) If the department proposes to revoke, modify, or suspend
25-52 a person's license or identification card, the person is entitled
25-53 to a hearing conducted under Section 12.032 <before a hearings
25-54 officer designated by the department>. The decision <of the
25-55 department> is appealable in the same manner as provided for
25-56 contested cases under Chapter 2001, Government Code <the
25-57 Administrative Procedure and Texas Register Act (Article 6252-13a,
25-58 Vernon's Texas Civil Statutes)>.
25-59 SECTION 3.22. Subsection (d), Section 102.007, Agriculture
25-60 Code, is amended to read as follows:
25-61 (d) Before refusing an application for a license under this
25-62 section, <the department shall conduct> a hearing shall be
25-63 conducted under Section 12.032 on the license application, and the
25-64 applicant may appeal the decision <of the department,> in the
25-65 manner provided for contested cases under Chapter 2001, Government
25-66 Code <the Administrative Procedure and Texas Register Act (Article
25-67 6252-13a, Vernon's Texas Civil Statutes)>.
25-68 SECTION 3.23. Subsection (c), Section 102.012, Agriculture
25-69 Code, is amended to read as follows:
25-70 (c) If the department proposes to revoke, modify, or suspend
26-1 a person's license or identification card, the person is entitled
26-2 to a hearing conducted under Section 12.032 <before a hearings
26-3 officer designated by the department>. The decision <of the
26-4 department> is appealable in the same manner as provided for
26-5 contested cases under Chapter 2001, Government Code <the
26-6 Administrative Procedure and Texas Register Act (Article 6252-13a,
26-7 Vernon's Texas Civil Statutes)>.
26-8 SECTION 3.24. Subsection (b), Section 103.006, Agriculture
26-9 Code, is amended to read as follows:
26-10 (b) A quorum of the board must be present in order to
26-11 conduct a hearing. The board shall conduct the hearing and a party
26-12 not satisfied with the decision of the board may appeal in the
26-13 manner provided for contested cases under Chapter 2001, Government
26-14 Code <the Administrative Procedure and Texas Register Act (Article
26-15 6252-13a, Vernon's Texas Civil Statutes)>.
26-16 SECTION 3.25. Subsection (f), Section 125.005, Agriculture
26-17 Code, is amended to read as follows:
26-18 (f) If it is determined <After January 1, 1989, if the
26-19 department determines> after a hearing conducted under Section
26-20 12.032 that an employer has repeatedly failed to maintain the forms
26-21 and attachments as required, the department may require the
26-22 employer to file the documents with the department. In addition,
26-23 the person may be subject to any applicable penalties provided by
26-24 this chapter.
26-25 SECTION 3.26. Subsections (c), (d), and (h), Section
26-26 125.016, Agriculture Code, are amended to read as follows:
26-27 (c) The department shall complete an investigation of a
26-28 complaint not later than 90 days after the date on which the
26-29 complaint is filed. A <The department shall conduct a> hearing
26-30 shall be conducted under Section 12.032 and <issue> an enforcement
26-31 order issued, if appropriate, not later than 90 days after the date
26-32 on which the investigation is completed. If it is necessary to
26-33 commence an action relating to an alleged violation, the action
26-34 must be commenced not later than 60 days after the date on which
26-35 the investigation is completed.
26-36 (d) After providing at least 14 days' written notice and an
26-37 opportunity for a public hearing, the department may issue an
26-38 enforcement order requiring any employer or chemical manufacturer
26-39 covered by this chapter to comply with this chapter or rules
26-40 adopted under this chapter. <In addition, if the employer or
26-41 chemical manufacturer fails to comply with this chapter or rules
26-42 adopted under this chapter within 14 days after receiving the
26-43 written notice under this subsection, or fails at any time to
26-44 comply with an enforcement order issued under this chapter, the
26-45 department may require the employer or chemical manufacturer to pay
26-46 an administrative penalty of not more than $500 for each act that
26-47 is a violation of this chapter or a rule adopted or enforcement
26-48 order issued under this chapter.> A public hearing held under this
26-49 subsection is a contested case under Chapter 2001, Government Code
26-50 <the Administrative Procedure and Texas Register Act (Article
26-51 6252-13a, Vernon's Texas Civil Statutes)>, and may be appealed
26-52 under that chapter <Act>. In the case of a medical emergency, the
26-53 department may issue an enforcement order immediately and shall
26-54 provide the opportunity for a hearing on the order within 10 days
26-55 after the date on which the order is issued.
26-56 (h) The department may request the attorney general to
26-57 represent the department in any legal proceeding authorized under
26-58 this chapter. An action for civil or criminal penalties or
26-59 injunctive relief shall be brought in the county in which the
26-60 alleged violation occurred or is occurring.
26-61 SECTION 3.27. Subsection (c), Section 132.072, Agriculture
26-62 Code, is amended to read as follows:
26-63 (c) If the department proposes to revoke, modify, or suspend
26-64 a person's license, the person is entitled to a hearing conducted
26-65 under Section 12.032 <before a hearings officer designated by the
26-66 department>. The decision of the department is appealable in the
26-67 same manner as provided for contested cases under Chapter 2001,
26-68 Government Code <the Administrative Procedure and Texas Register
26-69 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
26-70 SECTION 3.28. Subsection (c), Section 252.028, Agriculture
27-1 Code, is amended to read as follows:
27-2 (c) If the borrower has not made arrangements to meet the
27-3 obligation by the end of the 180th day following the initial
27-4 default, the lender shall file a claim with the commissioner
27-5 identifying the loan and the nature of the default. A <The
27-6 commissioner shall then conduct a> hearing shall be conducted on
27-7 the alleged default as a contested case under Chapter 2001,
27-8 Government Code <the Administrative Procedure and Texas Register
27-9 Act, as amended (Article 6252-13a, Vernon's Texas Civil Statutes)>.
27-10 Appeal of the commissioner's decision to the district court is
27-11 under the substantial evidence rule. The commissioner may waive
27-12 default in the event of extenuating circumstances, including the
27-13 borrower's physical disability. If the commissioner finds that the
27-14 borrower is in default and the commissioner does not waive default,
27-15 the lender shall assign to the state all of the lender's security
27-16 and interest in the loan in exchange for payment of 90 percent of
27-17 all sums due and payable under the first real estate mortgage or
27-18 deed of trust or, if the borrower made a down payment of 10 percent
27-19 or more of the purchase price, all of the sums due and payable
27-20 under the first real estate mortgage or deed of trust. If the loan
27-21 is seller-sponsored, the seller may elect to pay the commissioner
27-22 all sums owed the commissioner by the applicant and retain title to
27-23 the property in lieu of payment by the commissioner under the terms
27-24 of the loan guarantee. If the commissioner determines that the
27-25 lender has met his or her obligations regarding the loan guarantee,
27-26 the commissioner shall authorize payment to the lender and shall
27-27 notify the defaulting party. Payment to the lender must be made
27-28 from amounts on deposit in the farm and ranch loan security fund.
27-29 The state shall then become holder of the mortgage or deed of
27-30 trust.
27-31 SECTION 3.29. Section 2003.021, Government Code, is amended
27-32 by adding Subsection (d) to read as follows:
27-33 (d) The office shall conduct hearings under the Agriculture
27-34 Code as provided under Section 12.032, Agriculture Code. In
27-35 conducting hearings under the Agriculture Code, the office shall
27-36 consider the applicable substantive rules and policies of the
27-37 Department of Agriculture.
27-38 ARTICLE 4. WEIGHTS AND MEASURES
27-39 SECTION 4.01. Section 13.002, Agriculture Code, is amended
27-40 to read as follows:
27-41 Sec. 13.002. Enforcement of Chapter. (a) The department
27-42 shall enforce the provisions of this chapter and shall supervise
27-43 all weights and measures sold or offered for sale in this state.
27-44 The department may purchase apparatus as necessary for the
27-45 administration of this chapter.
27-46 (b) The department shall, to the extent practical and cost
27-47 effective, allow another state agency by interagency contract to
27-48 execute the department's responsibilities under Subsection (a).
27-49 The contract may cover the whole state or only a specified region.
27-50 SECTION 4.02. Subsection (a), Section 13.110, Agriculture
27-51 Code, is amended to read as follows:
27-52 (a) In accordance with this subchapter, each sealer may
27-53 <shall> inspect and test all weights and measures used in the
27-54 locality to which the sealer is assigned or in the city or county
27-55 in which the sealer is appointed.
27-56 SECTION 4.03. Section 13.111, Agriculture Code, is amended
27-57 by adding Subsections (c) and (d) to read as follows:
27-58 (c) A person licensed under Subchapter H shall offer to
27-59 repair an incorrect weight or measure before taking the device out
27-60 of service as provided under Subsection (b). The weights and
27-61 measures inspector may collect a fee for a repair made to a weight
27-62 or measure.
27-63 (d) A person licensed under Subchapter F, G, or H:
27-64 (1) may not collect a fee for the first inspection of
27-65 a device after the device is taken out of service under Subsection
27-66 (b); and
27-67 (2) shall provide the owner or user of a device taken
27-68 out of service under Subsection (b) with a detailed written
27-69 estimate of the cost of repair of the device.
27-70 SECTION 4.04. Chapter 13, Agriculture Code, is amended by
28-1 adding Subchapter H to read as follows:
28-2 SUBCHAPTER H. LICENSED INSPECTORS OF WEIGHING AND
28-3 MEASURING DEVICES
28-4 Sec. 13.401. LICENSE REQUIREMENT. (a) A person who has a
28-5 license issued under this subchapter has all of the powers and
28-6 duties of a sealer under this chapter except for:
28-7 (1) testing of a package under Section 13.039;
28-8 (2) peace officer status under Section 13.108(b); and
28-9 (3) entering premises or conducting a stop under
28-10 Section 13.108(c).
28-11 (b) It is a defense to prosecution under Section 13.117 or
28-12 13.118 that the sealer is acting under the authority of a license
28-13 issued under this subchapter.
28-14 (c) A person who has a license issued under this subchapter
28-15 may also inspect or test:
28-16 (1) liquefied petroleum gas meters under Subchapter F;
28-17 or
28-18 (2) a ranch scale under Subchapter G.
28-19 (d) Unless appointed a sealer under Subchapter C, a person
28-20 may not perform the functions of a sealer without a license issued
28-21 under this subchapter.
28-22 (e) The department shall issue a license to a person who
28-23 meets the requirements of this subchapter.
28-24 (f) A license holder under this subchapter shall conduct
28-25 inspecting or testing activities in compliance with the rules of
28-26 the department.
28-27 (g) A license holder shall maintain and submit to the
28-28 department a report and record of all inspecting or testing
28-29 activities compiled in accordance with the rules of the department.
28-30 Sec. 13.402. General Requirements for License Issuance or
28-31 Renewal. Before a license is issued or renewed by the department
28-32 under this subchapter:
28-33 (1) the person applying for the license or renewal of
28-34 the license shall provide the department proof of completion of a
28-35 department-approved academic, trade, or professional course of
28-36 instruction required by the department's rules;
28-37 (2) the person shall file with the department an
28-38 insurance policy or other proof of insurance evidencing that the
28-39 applicant has a completed operations liability insurance policy
28-40 issued by an insurance company authorized to do business in this
28-41 state or by a surplus lines insurer that meets the requirements of
28-42 Article 1.14-2, Insurance Code, and rules adopted by the
28-43 commissioner of insurance in an amount set by the department and
28-44 based on the type of licensed activities to be provided; and
28-45 (3) the department, to verify compliance with trade
28-46 practices, rules of the department, and this chapter, may conduct
28-47 an inspection of the applicant's:
28-48 (A) facilities;
28-49 (B) inspecting and testing equipment and
28-50 procedures;
28-51 (C) repair and calibration equipment and
28-52 procedures; and
28-53 (D) transportation equipment.
28-54 Sec. 13.403. License and Renewal; Fees. (a) An application
28-55 for a license shall be submitted to the department on a form
28-56 prescribed by the department, accompanied by an annual license fee
28-57 in an amount established by department rule.
28-58 (b) A license issued under this subchapter is valid for one
28-59 year and may be renewed by filing with the department a renewal
28-60 application form prescribed by the department, accompanied by an
28-61 annual license renewal fee in an amount established by department
28-62 rule.
28-63 (c) A person who fails to submit a license renewal fee on or
28-64 before the expiration date of the license must pay, in addition to
28-65 the license renewal fee, the late fee provided by department rule.
28-66 Sec. 13.404. Duties of Department. (a) The department by
28-67 rule may adopt a system to periodically monitor and inspect or test
28-68 scales inspected and tested by the license holder.
28-69 (b) The department by rule shall adopt guidelines to allow a
28-70 representative of the license holder to perform functions of the
29-1 license holder.
29-2 (c) The department by rule may adopt additional requirements
29-3 for the issuance of a license and for the denial of an application
29-4 for a license or renewal of a license. The rules adopted by the
29-5 department shall be designed to protect the public health, safety,
29-6 and welfare and the proper operation of weighing and measuring
29-7 devices.
29-8 (d) The department by rule shall adopt a fee schedule for
29-9 services performed by a license holder.
29-10 Sec. 13.405. Denial, Revocation, Modification, or Suspension
29-11 of License. (a) The department may refuse to issue a license for
29-12 inspecting or testing of weighing and measuring devices if the
29-13 applicant fails to comply with this subchapter.
29-14 (b) The department shall revoke, modify, or suspend a
29-15 license, assess an administrative penalty, place on probation a
29-16 person whose license has been suspended, or reprimand a license
29-17 holder if the license holder fails to comply with this subchapter
29-18 or a rule adopted by the department under this subchapter.
29-19 (c) If a license suspension is probated, the department may
29-20 require the person to:
29-21 (1) report regularly to the department on matters that
29-22 are the basis of the probation;
29-23 (2) limit practice to the areas prescribed by the
29-24 department; or
29-25 (3) continue or renew professional education until the
29-26 person attains a degree of skill satisfactory to the department in
29-27 those areas that are the basis of the probation.
29-28 (d) If the department proposes to deny a person's
29-29 application for a license for inspecting or testing of weighing or
29-30 measuring devices or to revoke, modify, or suspend a person's
29-31 license, the person is entitled to a hearing conducted under
29-32 Section 12.032. The decision of the administrative law judge is
29-33 appealable in the same manner as provided for contested cases under
29-34 Chapter 2001, Government Code.
29-35 Sec. 13.406. Civil Penalty; Injunction. (a) A person who
29-36 violates this subchapter or a rule adopted under this subchapter is
29-37 liable to the state for a civil penalty of not less than $250 nor
29-38 more than $10,000 for each violation. Each day a violation
29-39 continues may be considered a separate violation for purposes of a
29-40 civil penalty assessment.
29-41 (b) On request of the department, the attorney general or
29-42 the county attorney or district attorney of the county in which the
29-43 violation is alleged to have occurred shall file suit to collect
29-44 the penalty.
29-45 (c) A civil penalty collected under this section shall be
29-46 deposited in the state treasury to the credit of the general
29-47 revenue fund. All civil penalties recovered in suits first
29-48 instituted by a local government or governments under this section
29-49 shall be equally divided between the State of Texas and the local
29-50 government or governments with 50 percent of the recovery to be
29-51 paid to the general revenue fund and the other 50 percent equally
29-52 to the local government or governments first instituting the suit.
29-53 (d) The department is entitled to appropriate injunctive
29-54 relief to prevent or abate a violation of this subchapter or a rule
29-55 adopted under this subchapter. On request of the department, the
29-56 attorney general or the county or district attorney of the county
29-57 in which the alleged violation is threatened or is occurring shall
29-58 file suit for the injunctive relief. Venue is in the county in
29-59 which the alleged violation is threatened or is occurring.
29-60 Sec. 13.407. Criminal Penalty. (a) An individual commits
29-61 an offense if the individual is required to be licensed under this
29-62 subchapter, is not licensed under this subchapter, and performs or
29-63 offers to perform an inspection or test on a weighing or measuring
29-64 device for compensation.
29-65 (b) An offense under this section is a Class B misdemeanor.
29-66 SECTION 4.05. Subchapter C, Chapter 13, Agriculture Code, is
29-67 amended by adding Section 13.1012 to read as follows:
29-68 Sec. 13.1012. SERVICE PERSON REGISTRATION REQUIREMENT.
29-69 (a) A person may not place into service or remove any out-of-order
29-70 tag from any weighing or measuring devices unless the person holds
30-1 a registration issued under this section or is licensed under
30-2 Subchapter F, G, or H.
30-3 (b) The department shall register a person who meets the
30-4 requirements of the department adopted under this section, which
30-5 may include:
30-6 (1) proof of completion of a department-approved
30-7 academic, trade, or professional course of instruction; and
30-8 (2) a written examination.
30-9 (c) Each registrant under this section shall conduct
30-10 installation or service activities in compliance with the rules of
30-11 the department.
30-12 (d) A registrant shall maintain and submit to the department
30-13 a report and record of all installation or service activities
30-14 compiled in accordance with the rules of the department.
30-15 (e) The department may conduct an inspection of an
30-16 applicant's or registrant's:
30-17 (1) facilities;
30-18 (2) inspecting and testing equipment and procedures;
30-19 (3) repair and calibration equipment and procedures;
30-20 and
30-21 (4) transportation equipment.
30-22 (f) An application for a registration or renewal shall be
30-23 submitted to the department on a form prescribed by the department,
30-24 accompanied by a registration, renewal, or late fee, in an amount
30-25 established by department rule.
30-26 (g) A registration issued under this section shall be for a
30-27 period determined by department rule.
30-28 (h) The department may refuse to register an applicant for
30-29 service of weighing and measuring devices if the applicant fails to
30-30 comply with this section.
30-31 (i) The department shall revoke, modify, or suspend a
30-32 registration, assess an administrative penalty, place on probation
30-33 a person whose registration has been suspended, or reprimand a
30-34 registrant if the registrant fails to comply with this section or a
30-35 rule adopted by the department under this section.
30-36 ARTICLE 5. OPERATIONS OF TEXAS AGRICULTURE
30-37 FINANCE AUTHORITY
30-38 SECTION 5.01. Subdivision (7), Section 44.001, Agriculture
30-39 Code, is amended to read as follows:
30-40 (7) "Rural area" means an area which is predominantly
30-41 rural in character, being one which the <advisory> board defines
30-42 and declares to be a rural area.
30-43 SECTION 5.02. Section 44.002, Agriculture Code, is amended
30-44 to read as follows:
30-45 Sec. 44.002. Creation of Programs. (a) The board
30-46 <commissioner> shall create an agricultural diversification program
30-47 to:
30-48 (1) support commercial use of agricultural research
30-49 and innovation;
30-50 (2) increase the capabilities of community and
30-51 regional organizations to train and assist new or expanding
30-52 agricultural-based businesses;
30-53 (3) start small business incubators; and
30-54 (4) encourage private commercial loans for enhanced
30-55 production, processing, and marketing of certain agricultural
30-56 crops.
30-57 (b) The board <commissioner> shall create a microenterprise
30-58 support program to provide financial assistance to microenterprises
30-59 in rural areas.
30-60 SECTION 5.03. Subsections (a) and (d), Section 44.004,
30-61 Agriculture Code, are amended to read as follows:
30-62 (a) The <commissioner with the consent of a majority of the>
30-63 board shall administer an agricultural diversification <a> grant
30-64 program supporting research and innovation leading to
30-65 organizational or marketing improvement in business based on
30-66 agriculture or to the commercialization of new crops, new
30-67 agricultural products, or new production processes.
30-68 (d) The board <commissioner> shall review and evaluate each
30-69 grant application submitted under this section and award the grants
30-70 <with the consent of a majority of the board>.
31-1 SECTION 5.04. Subsections (a) and (d), Section 44.0045,
31-2 Agriculture Code, are amended to read as follows:
31-3 (a) The <commissioner with the consent of a majority of the>
31-4 board shall administer a loan program supporting established and
31-5 proposed microenterprises in rural areas by providing loans to
31-6 expand, modernize, or otherwise improve established
31-7 microenterprises and to begin operation of proposed
31-8 microenterprises.
31-9 (d) The <commissioner and> board of the microenterprise
31-10 support program may reserve a portion of the total fund for use in
31-11 cooperative loan programs established with the participation of
31-12 other public or private lenders.
31-13 SECTION 5.05. Subsections (a) and (d), Section 44.005,
31-14 Agriculture Code, are amended to read as follows:
31-15 (a) The <commissioner with the consent of a majority of the>
31-16 board shall create an agricultural diversification <a business
31-17 assistance> grant program to increase the capabilities of community
31-18 and regional organizations to provide training and assistance to
31-19 new and expanding businesses based on agriculture.
31-20 (d) The board <commissioner> shall evaluate each grant
31-21 application submitted under this section and award the grants <with
31-22 the consent of a majority of the board>.
31-23 SECTION 5.06. Subsections (a) and (d), Section 44.006,
31-24 Agriculture Code, are amended to read as follows:
31-25 (a) The <commissioner with the consent of a majority of the>
31-26 board shall create an agricultural diversification <a> grant
31-27 program to provide seed money for self-financing small business
31-28 incubators. These incubators shall provide business services to
31-29 small enterprises that process or market agricultural crops in this
31-30 state or that produce alternative agricultural crops in this state.
31-31 (d) The board <commissioner> shall evaluate each grant
31-32 application under this section and award the grants <with the
31-33 consent of a majority of the board>.
31-34 SECTION 5.07. Section 44.007, Agriculture Code, is amended
31-35 to read as follows:
31-36 Sec. 44.007. Linked Deposit Program. (a) The board
31-37 <commissioner> shall establish a linked deposit program to
31-38 encourage commercial lending for the enhanced production,
31-39 processing, and marketing of certain agricultural crops and for the
31-40 purchase of water conservation equipment for agricultural
31-41 production purposes.
31-42 (b) The board <commissioner> shall promulgate rules for the
31-43 loan portion of the linked deposit program. The rules must
31-44 include:
31-45 (1) a list of the categories of crops customarily
31-46 grown in Texas;
31-47 (2) a list of crops that are alternative agricultural
31-48 crops;
31-49 (3) a list of crops the production of which has
31-50 declined markedly because of natural disasters; and
31-51 (4) identification of the types of equipment
31-52 considered as water conservation equipment for agricultural
31-53 production purposes.
31-54 (c) In order to participate in the linked deposit program,
31-55 an eligible lending institution may solicit loan applications from
31-56 eligible borrowers.
31-57 (d) After reviewing an application and determining that the
31-58 applicant is eligible and creditworthy, the eligible lending
31-59 institution shall send the application for a linked deposit loan to
31-60 the board <commissioner>.
31-61 (e) The eligible lending institution shall certify the
31-62 interest rate applicable to the specific eligible borrower and
31-63 attach it to the application sent to the board <commissioner>.
31-64 (f) After reviewing each linked deposit loan application,
31-65 the board <commissioner> shall recommend to the state treasurer the
31-66 acceptance or rejection of the application.
31-67 (g) After acceptance of the application, the state treasurer
31-68 shall place a linked deposit with the applicable eligible lending
31-69 institution for the period the treasurer considers appropriate.
31-70 The state treasurer may not place a deposit for a period extending
32-1 beyond the state fiscal biennium in which it is placed. Subject to
32-2 the limitation described by Section 44.010 of this chapter, the
32-3 treasurer may place time deposits at an interest rate described by
32-4 Section 44.001(5)(A) of this chapter, notwithstanding any order of
32-5 the State Depository Board to the contrary.
32-6 (h) Before the placing of a linked deposit, the eligible
32-7 lending institution and the state, represented by the state
32-8 treasurer and the board <commissioner>, shall enter into a written
32-9 deposit agreement containing the conditions on which the linked
32-10 deposit is made.
32-11 (i) If a lending institution holding linked deposits ceases
32-12 to be a state depository, the state treasurer may withdraw the
32-13 linked deposits.
32-14 (j) The board may adopt rules that create a procedure for
32-15 determining priorities for loans granted under this chapter. Each
32-16 rule adopted must state the policy objective of the rule. The
32-17 policy objectives of the rules may include preferences to:
32-18 (1) achieve adequate geographic distribution of loans;
32-19 (2) assist certain industries;
32-20 (3) encourage certain practices including water
32-21 conservation; and
32-22 (4) encourage value-added processing of agricultural
32-23 products.
32-24 SECTION 5.08. Section 44.008, Agriculture Code, is amended
32-25 to read as follows:
32-26 Sec. 44.008. Compliance. (a) On accepting a linked
32-27 deposit, an eligible lending institution must loan money to
32-28 eligible borrowers in accordance with the deposit agreement and
32-29 this chapter. The eligible lending institution shall forward a
32-30 compliance report to the board <commissioner>.
32-31 (b) The board <commissioner> shall monitor compliance with
32-32 this chapter and inform the state treasurer of noncompliance on the
32-33 part of an eligible lending institution.
32-34 SECTION 5.09. Section 44.011, Agriculture Code, is amended
32-35 to read as follows:
32-36 Sec. 44.011. Criteria for all Grants. In evaluating
32-37 applications for grants under this chapter, the <commissioner and
32-38 the> board shall consider:
32-39 (1) the scientific and technical merit of the
32-40 application;
32-41 (2) the anticipated benefits arising from a grant to
32-42 the applicant, including both potential job creation and commercial
32-43 benefits to the agricultural industry;
32-44 (3) the market value of the assets of the applicant;
32-45 (4) the qualifications of the applicant;
32-46 (5) the reasonableness of the applicant's proposed
32-47 budget;
32-48 (6) the extent and level of other funding sources for
32-49 the applicant;
32-50 (7) the funding commitments needed for continued
32-51 development; and
32-52 (8) the present involvement and support of local
32-53 organizations, including educational organizations.
32-54 SECTION 5.10. Section 44.012, Agriculture Code, is amended
32-55 to read as follows:
32-56 Sec. 44.012. Money for Grants and Loans. The board
32-57 <commissioner> may accept gifts and grants of money from the
32-58 federal government, local governments, or private corporations or
32-59 other persons for use in making grants and loans under the
32-60 agricultural diversification program and the rural microenterprise
32-61 support program. The legislature may appropriate money for grants
32-62 and loans under the programs.
32-63 SECTION 5.11. Subsection (a), Section 58.012, Agriculture
32-64 Code, is amended to read as follows:
32-65 (a) The authority is governed by a board of directors
32-66 composed of the commissioner of agriculture, the director of the
32-67 Institute for International Agribusiness Studies at Prairie View
32-68 A&M University, and seven members appointed by the governor with
32-69 the advice and consent of the senate. Members of the board <An
32-70 appointed member> must be appointed in the numbers specified and
33-1 from <one of> the following categories <with at least one member
33-2 but not more than two members from each category>:
33-3 (1) one person who is an elected or appointed official
33-4 <officials> of a municipality or county;
33-5 (2) four persons <representatives of lending
33-6 institutions chartered by the state or federal government> who are
33-7 knowledgeable about agricultural lending practices;
33-8 (3) one person who is a representative
33-9 <representatives> of agricultural businesses; and <or>
33-10 (4) one person who is a representative
33-11 <representatives> of agriculture related entities, including rural
33-12 chambers of commerce, foundations, trade associations, institutions
33-13 of higher education, or other entities involved in agricultural
33-14 matters.
33-15 SECTION 5.12. Section 58.015, Agriculture Code, is amended
33-16 to read as follows:
33-17 Sec. 58.015. ADMINISTRATION. (a) The commissioner with the
33-18 assistance of the board shall administer the Texas Agricultural
33-19 Finance Authority. The board shall reimburse the Department of
33-20 Agriculture for expenses incurred as required by the business of
33-21 the authority with the approval <of a majority> of the board.
33-22 (b) The commissioner may, with the approval <of a majority>
33-23 of the board, appoint, employ, contract with, and provide for the
33-24 compensation of employees, consultants, and agents including
33-25 engineers, attorneys, management consultants, financial advisors,
33-26 indexing agents, placement agents, and other experts as the
33-27 business of the authority may require.
33-28 (c) The commissioner may, with the approval <of a majority>
33-29 of the board, employ an administrator of the authority. The
33-30 administrator may attend all meetings and participate, but not
33-31 vote, in all proceedings of the authority.
33-32 SECTION 5.13. Subsection (b), Section 58.016, Agriculture
33-33 Code, is amended to read as follows:
33-34 (b) On or before August 1 of each year, the administrator
33-35 shall file with the board the <a> proposed annual budgets <budget>
33-36 for the young farmer loan guarantee program under Chapter 253, the
33-37 farm and ranch finance program under Chapter 59, and the programs
33-38 administered by the board under this chapter for the succeeding
33-39 fiscal year. If there is no administrator, the commissioner shall
33-40 assume the duties of the administrator in connection with
33-41 preparation of the budget. The budget must set forth the general
33-42 categories of expected expenditures out of revenues and income of
33-43 the funds administered by the authority and the amount on account
33-44 of each. On or before September 1 of each year, the board shall
33-45 consider the proposed annual budget and may approve it or amend it.
33-46 Copies of the annual budget certified by the chairman of the board
33-47 shall be promptly filed with the governor and the legislature. The
33-48 annual budget is not effective until it is filed. If for any
33-49 reason the authority does not adopt an annual budget before
33-50 September 2, no expenditures may be made from the funds until the
33-51 board approves the annual budget <for the preceding year shall
33-52 remain in effect until a new budget is adopted>. The authority may
33-53 adopt an amended annual budget for the current fiscal year, but the
33-54 amended annual budget may not supersede a prior budget until it is
33-55 filed with the governor and the legislature.
33-56 SECTION 5.14. Subchapter B, Chapter 58, Agriculture Code, is
33-57 amended by adding Section 58.017 to read as follows:
33-58 Sec. 58.017. COST-BENEFIT REPORT. (a) The board shall
33-59 perform a biennial cost-benefit study of the authority's active and
33-60 inactive programs and prepare a report regarding that study. The
33-61 study must include an examination of the number of jobs created or
33-62 retained in this state as a result of each program and the costs
33-63 and benefits associated with those jobs.
33-64 (b) The chairman of the board shall file the report prepared
33-65 under Subsection (a) with the state auditor before December 1 of
33-66 each even-numbered year.
33-67 (c) The state auditor shall review the report filed under
33-68 Subsection (b) and send the report and the auditor's comments
33-69 regarding the methodology used by the authority in performing the
33-70 cost-benefit study to the governor and the presiding officer of
34-1 each house of the legislature not later than February 1 of each
34-2 odd-numbered year. The state auditor shall provide assistance to
34-3 the department in preparing the report required by this section.
34-4 SECTION 5.15. Subchapter B, Chapter 58, Agriculture Code, is
34-5 amended by adding Section 58.0171 to read as follows:
34-6 Sec. 58.0171. REVIEW OF DEPARTMENT PLANS AND BUDGET REQUEST.
34-7 The department shall provide the board with sufficient opportunity
34-8 to review and comment on the finance program-related portions of
34-9 the department strategic plan and the department biennial
34-10 appropriation request, and any revision of a finance
34-11 program-related portion of the plan or request, before submission
34-12 to the legislature.
34-13 SECTION 5.16. Subchapter B, Chapter 58, Agriculture Code, is
34-14 amended by adding Section 58.0177 to read as follows:
34-15 Sec. 58.0177. APPOINTED MEMBER PREPARATION PROGRAM. The
34-16 board shall provide each appointed member of the board financial
34-17 training adequate to prepare the member for the responsibilities of
34-18 board membership before the member may begin service.
34-19 SECTION 5.17. Subsection (c), Section 58.021, Agriculture
34-20 Code, is amended to read as follows:
34-21 (c) Except as provided by this subsection, the maximum
34-22 aggregate amount of loans made to or guaranteed, insured,
34-23 coinsured, or reinsured under this subchapter for a single eligible
34-24 agricultural business by the authority from funds provided by the
34-25 authority is $1 <$2> million. The authority may make, guarantee,
34-26 insure, coinsure, or reinsure a loan for a single eligible
34-27 agricultural business that results in an aggregate amount exceeding
34-28 $1 <$2> million, but not exceeding $2 <$5> million, if the action
34-29 is approved by a two-thirds vote of the membership of the board.
34-30 SECTION 5.18. Subchapter C, Chapter 58, Agriculture Code, is
34-31 amended by adding Section 58.0211 to read as follows:
34-32 Sec. 58.0211. LOAN LIMITS. (a) The authority may make,
34-33 guarantee, insure, coinsure, or reinsure a loan up to the limits in
34-34 this section and Section 58.021 for a single eligible business
34-35 which already has an active loan if the action is approved by a
34-36 two-thirds vote of the members present.
34-37 (b) Except for programs administered by the authority under
34-38 Chapters 44 and 59, the authority shall give preference to loans,
34-39 loan guarantees, loan insurance, coinsurance, reinsurance, or any
34-40 other financing mechanism to value-added agricultural businesses.
34-41 The authority may decline to provide financial assistance to
34-42 businesses whose primary purpose is to establish or expand
34-43 conventional agricultural production.
34-44 (c) The authority may not guarantee more than 90 percent of
34-45 a loan to an eligible agricultural business made by a private
34-46 lender.
34-47 ARTICLE 6. AGRICULTURE RESOURCES PROTECTION AUTHORITY
34-48 SECTION 6.01. Section 76.009, Agriculture Code, is amended
34-49 to read as follows:
34-50 Sec. 76.009. Agriculture Resources Protection Authority.
34-51 (a) The Agriculture Resources Protection Authority is an agency of
34-52 state government. The authority is composed of the following
34-53 <nine> members:
34-54 (1) the director of the Texas Agricultural Experiment
34-55 Station;
34-56 (2) the dean of the College of Agricultural Sciences
34-57 of Texas Tech University;
34-58 (3) the dean of The University of Texas School of
34-59 Public Health at Houston;
34-60 (4) the director of the environmental epidemiology
34-61 program of the Texas Department of Health;
34-62 (5) the chief of the groundwater conservation section
34-63 of the Texas Natural Resource Conservation <Water> Commission;
34-64 (6) the director of the Institute for International
34-65 Agribusiness Studies of Prairie View A&M University;
34-66 (7) one person appointed by the governor to represent
34-67 the interests of consumers;
34-68 (8) a producer of agricultural products appointed by
34-69 the governor; <and>
34-70 (9) the executive director of the Texas Structural
35-1 Pest Control Board;
35-2 (10) the executive director of the State Soil and
35-3 Water Conservation Board;
35-4 (11) a person appointed by the governor and licensed
35-5 by the department as a commercial, noncommercial, or private
35-6 applicator;
35-7 (12) a person appointed by the governor and licensed
35-8 by the department as a pesticide dealer or involved in the
35-9 development or manufacture of agricultural chemicals;
35-10 (13) a person appointed by the governor and employed
35-11 as a farm worker or serving as a representative of farm workers;
35-12 (14) a person appointed by the governor and associated
35-13 with an organization primarily engaged in environmental
35-14 conservation or protection efforts; and
35-15 (15) the commissioner of agriculture.
35-16 (b) A person appointed by the governor<, with the advice and
35-17 consent of the senate,> under Subdivision (7), (8), (11), (12),
35-18 (13), or (14) <or (8)> of Subsection (a) of this section serves a
35-19 two-year term ending on February 1 of each odd-numbered year. A
35-20 vacancy in one of those positions shall be filled by appointment by
35-21 the governor for the unexpired term. All appointments made by the
35-22 governor under this section must be with the advice and consent of
35-23 the senate.
35-24 (c) The governor shall designate <commissioner of
35-25 agriculture is> the presiding officer of the authority.
35-26 (d) The authority shall meet quarterly and at the call of
35-27 the presiding officer or a majority of the members. <To take an
35-28 action, the authority must approve the action by a concurring vote
35-29 of a majority of the total membership of the authority.>
35-30 (e) A member may not receive compensation for service as a
35-31 member of the authority. A member is entitled to reimbursement for
35-32 actual and necessary expenses incurred in the performance of the
35-33 functions of the authority, subject to any limitations on
35-34 reimbursement provided by the General Appropriations Act.
35-35 (f) The delegation of functions under this section is
35-36 designed to avoid overlapping responsibilities, to provide a means
35-37 for all involved agencies to participate in the regulation of
35-38 pesticides, and to clarify various areas of responsibility.
35-39 (g) The authority is the coordinating body for the policies
35-40 and programs of management, regulation, and control of pesticides
35-41 conducted by the department, the State Soil and Water Conservation
35-42 Board, the Texas Agricultural Extension Service, the Texas
35-43 Department of Health, the Texas Natural Resource Conservation
35-44 <Water> Commission, and the Texas Structural Pest Control Board.
35-45 Notwithstanding any other provision of this code or of any other
35-46 law, the authority may:
35-47 (1) adopt any rule relating to any duty of the
35-48 authority <pesticides, including a rule that amends or repeals an
35-49 existing rule, except that the authority may not:>
35-50 <(A) adopt, amend, or repeal a rule under
35-51 Chapter 125 of this code;>
35-52 <(B) repeal a rule that was adopted by an agency
35-53 for which the authority is the coordinating body and that was in
35-54 effect on May 1, 1989; or>
35-55 <(C) amend a rule in effect on May 1, 1989, that
35-56 would make the rule less protective of the public health, safety,
35-57 or welfare>;
35-58 (2) review and make comments regarding <approve or
35-59 disapprove> any rule relating to pesticides that is proposed by an
35-60 agency for which the authority is the coordinating body<, except a
35-61 rule under Chapter 125 of this code>;
35-62 (3) cooperate with and advise the department, the
35-63 State Soil and Water Conservation Board, the Texas Agricultural
35-64 Extension Service, the Texas Department of Health, the Texas
35-65 Natural Resource Conservation <Water> Commission, the Texas
35-66 Structural Pest Control Board, and any other state agency that may
35-67 be concerned with the regulation of pesticides and notify those
35-68 agencies of any rule the authority intends to adopt;
35-69 (4) collect, analyze, and disseminate information
35-70 necessary for the effective operation of all existing or
36-1 contemplated programs regulating pesticides;
36-2 (5) provide professional advice to private agencies
36-3 and citizens of this state on matters relating to pesticides in
36-4 cooperation with other state agencies, with professional groups,
36-5 and with either state or private educational institutions;
36-6 (6) accept gifts, devises, and bequests and, with the
36-7 approval of the governor, comply with the terms and conditions of
36-8 any grant to accomplish any of the purposes of the authority;
36-9 (7) inform and advise the governor on matters
36-10 involving pesticides and prepare and recommend to the governor and
36-11 to the legislature any legislation the authority considers proper
36-12 for the management and control of pesticides; and
36-13 (8) make annual reports to the governor and the
36-14 appropriate legislative oversight committees<;>
36-15 <(9) exempt any federal or state agency from any
36-16 regulatory provision if the authority determines that emergency
36-17 conditions exist that require the exemption; and>
36-18 <(10) notwithstanding any conflicting or inconsistent
36-19 provision in this code, hear and determine all appeals from orders
36-20 entered, by an agency for which the authority is the coordinating
36-21 body, under this chapter or Chapter 75 or 125 of this code>.
36-22 (h) A member of the authority by a written statement may
36-23 designate a person to execute any responsibility of the member
36-24 including voting <An agency for which the authority is the
36-25 coordinating body may not adopt a rule disapproved by the authority
36-26 under Subsection (g)(2) of this section>.
36-27 (i) The authority shall develop and implement policies that
36-28 provide the public with a reasonable opportunity to appear before
36-29 the authority semiannually to comment on the status of the state's
36-30 pesticide regulation efforts <To ensure due process, the
36-31 commissioner, because of the commissioner's statutory power over
36-32 departmental orders, may not participate in the discussions or the
36-33 determinations to be reached on appeals to the authority under
36-34 Subsection (g)(10) of this section>.
36-35 (j) The commissioner shall:
36-36 (1) as necessary, employ personnel as the duties of
36-37 the authority may require and to the extent of legislative
36-38 appropriations to the authority;
36-39 (2) keep an accurate and complete record of all
36-40 authority meetings and hearings of the authority and maintain legal
36-41 custody of all books, papers, documents, and other records of the
36-42 authority;
36-43 (3) administer this chapter and Chapters 75 and 125 of
36-44 this code <and the rules adopted by the authority>; and
36-45 (4) assign, reassign, or delegate the administrative
36-46 and enforcement functions assigned to the commissioner by this
36-47 subsection or by rules or policies established under this
36-48 subsection to one or more of the divisions or other units within
36-49 the department or to one or more employees of the department.
36-50 (k) The authority shall adopt rules requiring quarterly
36-51 submission to the authority by the department, State Soil and Water
36-52 Conservation Board, Texas Agricultural Extension Service, Texas
36-53 Department of Health, Texas Natural Resource Conservation
36-54 Commission, and the Texas Structural Pest Control Board of a report
36-55 regarding each agency's pesticide regulatory enforcement activity.
36-56 (l) The authority shall review and make comments regarding
36-57 the information received by the authority under Subsection (k).
36-58 The authority shall make its comments available to the public.
36-59 (m) The department, State Soil and Water Conservation Board,
36-60 Texas Agricultural Extension Service, Texas Department of Health,
36-61 Texas Natural Resource Conservation Commission, and the Texas
36-62 Structural Pest Control Board shall provide the authority with
36-63 sufficient opportunity to review and comment on the strategic plan
36-64 and biennial appropriation request of each agency, and any revision
36-65 of a plan or request, before submission of a plan or request to the
36-66 legislature.
36-67 SECTION 6.02. Section 76.041, Agriculture Code, is amended
36-68 by amending Subsection (a) and adding Subsection (d) to read as
36-69 follows:
36-70 (a) Except as provided by Subsection (b), <or> (c), or (d)
37-1 of this section, before a pesticide is distributed in this state or
37-2 is delivered for transportation or is transported in intrastate
37-3 commerce or between points within this state through a point
37-4 outside the state, it must be registered with the department. The
37-5 manufacturer or other person whose name appears on the label of the
37-6 pesticide shall register the pesticide.
37-7 (d) Unless otherwise required by department rule,
37-8 registration is not required for a pesticide that is exempt from
37-9 registration with the United States Environmental Protection Agency
37-10 under federal law.
37-11 SECTION 6.03. Subsections (a) and (c), Section 76.043,
37-12 Agriculture Code, are amended to read as follows:
37-13 (a) Registration of a pesticide expires on the second
37-14 anniversary of the date of its approval or renewal except that the
37-15 department shall by rule adopt a system under which registrations
37-16 expire on various dates during the year <annually on December 31>.
37-17 (c) A registration in effect on its expiration date
37-18 <December 31> for which a renewal application has been filed and
37-19 renewal fee has been paid continues in effect until the department
37-20 notifies the applicant that the registration has been renewed or
37-21 denied renewal.
37-22 ARTICLE 7. EGG REGULATION
37-23 SECTION 7.01. Section 132.003, Agriculture Code, is amended
37-24 to read as follows:
37-25 Sec. 132.003. Powers and Duties of Department. (a) The
37-26 department shall administer this chapter and adopt and enforce
37-27 necessary rules. <Rules adopted and enforced by the department
37-28 must be approved by the attorney general. The attorney general
37-29 shall retain written approval of the rules for public inspection.>
37-30 (b) <The department shall annually publish information on
37-31 the movement and sale of eggs and a report of the results of
37-32 official inspections of eggs sold, offered for sale, or distributed
37-33 within this state. Published information on the movement and sale
37-34 of eggs may not disclose the scope of operations of any person.>
37-35 <(c)> The department may:
37-36 (1) prescribe record forms and require the reporting
37-37 of information as necessary in the administration of this chapter;
37-38 and
37-39 (2) make reciprocal agreements with other states for
37-40 the inspection of locations outside of the state at which eggs are
37-41 classed, graded, and weighed.
37-42 SECTION 7.02. Section 132.004, Agriculture Code, is amended
37-43 to read as follows:
37-44 Sec. 132.004. ADOPTION OF STANDARDS. Standards for the
37-45 inspection and regulation of shell eggs, including <egg> quality,
37-46 grade, and size of shell eggs, shall be at least equal to those
37-47 adopted by the United States Department of Agriculture and the
37-48 federal Food and Drug Administration.
37-49 SECTION 7.03. Subchapter A, Chapter 132, Agriculture Code,
37-50 is amended by adding Section 132.008 to read as follows:
37-51 Sec. 132.008. MEMORANDA OF UNDERSTANDING WITH OTHER STATE
37-52 AGENCY. (a) The department shall initiate negotiations for and
37-53 enter into a memorandum of understanding with the Texas Department
37-54 of Health to coordinate regulatory programs and eliminate
37-55 conflicting regulatory requirements and inspection standards.
37-56 (b) The department shall enter into an agreement as required
37-57 by Subsection (a) with the Texas Department of Health regarding the
37-58 regulation of eggs.
37-59 (c) The department and the Texas Department of Health may
37-60 enter into memoranda of understanding in areas other than those
37-61 under Subsections (a) and (b).
37-62 (d) A memorandum of understanding between the department and
37-63 the Texas Department of Health must be adopted by the commissioner
37-64 and the governing body of the Texas Department of Health.
37-65 (e) After a memorandum of understanding is adopted, the
37-66 department shall publish the memorandum of understanding in the
37-67 Texas Register.
37-68 SECTION 7.04. Subsection (b), Section 132.021, Agriculture
37-69 Code, is amended to read as follows:
37-70 (b) This section does not apply to:
38-1 (1) a hatchery buying eggs exclusively for hatching
38-2 purposes;
38-3 (2) a hotel, restaurant, or other public eating place
38-4 where all eggs purchased are served by the establishment;
38-5 (3) a food manufacturer purchasing eggs for use only
38-6 in the manufacture of food products, except for a person who
38-7 operates a plant for the purpose of breaking eggs for freezing,
38-8 drying, or commercial food manufacturing; <or>
38-9 (4) an agent employed and paid a salary by a person
38-10 licensed under this chapter; or
38-11 (5) a retailer selling eggs to the ultimate consumer
38-12 of the eggs.
38-13 ARTICLE 8. LICENSE CONSOLIDATION
38-14 SECTION 8.01. Chapter 12, Agriculture Code, is amended by
38-15 adding Section 12.033 to read as follows:
38-16 Sec. 12.033. MULTIPLE LICENSES. (a) In this section:
38-17 (1) "Component license" means a license issued by the
38-18 department that is consolidated under this section.
38-19 (2) "Grocer" means a person whose business consists
38-20 primarily of the retail sale of food for human consumption.
38-21 (b) A grocer who holds more than one type of license issued
38-22 by the department may obtain from the department a single
38-23 consolidated license. A consolidated license authorizes each of
38-24 the activities of the component licenses.
38-25 (c) The department by rule shall implement a program for the
38-26 issuance of a consolidated license under this section. The rules
38-27 shall include provisions for:
38-28 (1) a fee schedule for the consolidated license that
38-29 considers:
38-30 (A) the cost of operating each component license
38-31 program; and
38-32 (B) the economic efficiency gained by the
38-33 department through the operation of a consolidated license program;
38-34 (2) the suspension or revocation of a consolidated
38-35 license for a violation of a rule or statute authorizing one of the
38-36 component licenses;
38-37 (3) the combination of all inspections required for
38-38 the component licenses into a single inspection; and
38-39 (4) any other provision the department determines is
38-40 necessary to implement this section.
38-41 ARTICLE 9. CONTINUATION OF DEPARTMENT
38-42 SECTION 9.01. Section 11.003, Agriculture Code, is amended
38-43 to read as follows:
38-44 Sec. 11.003. Sunset Provision. The Department of
38-45 Agriculture is subject to Chapter 325, Government Code (Texas
38-46 Sunset Act). Unless continued in existence as provided by that
38-47 chapter, the department is abolished September 1, 2007 <1995>.
38-48 ARTICLE 10. TRANSITION PROVISIONS; REPEALER;
38-49 EFFECTIVE DATE; EMERGENCY
38-50 SECTION 10.01. TRANSITION: FEES. The change in law made by
38-51 this Act relating to a fee charged under the Agriculture Code
38-52 applies only to a fee that first becomes due on or after September
38-53 1, 1996. A fee that first becomes due before that date is governed
38-54 by the law in effect immediately before September 1, 1995, and the
38-55 former law is continued in effect for that purpose.
38-56 SECTION 10.02. TRANSITION: HEARINGS. (a) The change in
38-57 law made by this Act relating to a hearing conducted under the
38-58 Agriculture Code by the State Office of Administrative Hearings
38-59 applies only to a hearing that begins on or after January 1, 1996.
38-60 A hearing that begins before that date is governed by the law in
38-61 effect immediately before September 1, 1995, and the former law is
38-62 continued in effect for that purpose.
38-63 (b) The commissioner of agriculture and the chief
38-64 administrative law judge of the State Office of Administrative
38-65 Hearings may agree to transfer contested cases pending before the
38-66 Department of Agriculture to the State Office of Administrative
38-67 Hearings before January 1, 1996.
38-68 SECTION 10.03. TRANSITION: LICENSING. Subchapter H,
38-69 Chapter 13, Agriculture Code, as added by this Act, relating to
38-70 inspecting or testing of a weighing or measuring device, applies to
39-1 a person only after the Department of Agriculture reasonably
39-2 demonstrates to the Legislative Budget Board that the department's
39-3 licensing programs for inspection and testing of liquefied
39-4 petroleum gas meters and inspection and testing of ranch scales
39-5 under Subchapters F and G, Chapter 13, Agriculture Code,
39-6 respectively, will attain the performance goals established by the
39-7 Legislative Budget Board.
39-8 SECTION 10.04. TRANSITION: REVIEW OF ENFORCEMENT OF
39-9 PESTICIDE REGULATION. The Agriculture Resources Protection
39-10 Authority shall review penalties used in enforcement of pesticide
39-11 regulation by the Department of Agriculture, the State Soil and
39-12 Water Conservation Board, the Texas Agricultural Extension Service,
39-13 the Texas Department of Health, the Texas Natural Resource
39-14 Conservation Commission, and the Texas Structural Pest Control
39-15 Board. Not later than December 1, 1996, the Agriculture Resources
39-16 Protection Authority shall file with the governor, the lieutenant
39-17 governor, and the speaker of the house of representatives a report
39-18 regarding the Agriculture Resources Protection Authority's plan for
39-19 making the use of penalties in pesticide enforcement matters
39-20 consistent among the agencies studied by the Agriculture Resources
39-21 Protection Authority.
39-22 SECTION 10.05. TRANSITION: PESTICIDE REGISTRATION. A
39-23 registration of a pesticide that is in effect on the effective date
39-24 of this Act remains in effect until the earlier of the date on
39-25 which the registration expires or is revoked by the department.
39-26 SECTION 10.06. TRANSITION: COLLECTION OF ADMINISTRATIVE
39-27 PENALTY. The changes in law made by this Act apply only to an
39-28 action to collect an administrative penalty that is commenced on or
39-29 after the effective date of this Act. An action to collect an
39-30 administrative penalty that is commenced before the effective date
39-31 of this Act is governed by the law in effect on the date the action
39-32 was commenced, and the former law is continued in effect for this
39-33 purpose.
39-34 SECTION 10.07. TRANSITION: COMPOSITION OF BOARDS. (a) The
39-35 changes in law made by this Act to the requirements for appointed
39-36 members on the board of directors of the Agriculture Resources
39-37 Protection Authority and the board of directors of the Texas
39-38 Agricultural Finance Authority apply only to membership positions
39-39 on those boards filled on or after the effective date of this Act
39-40 and do not affect the entitlement of a member serving on those
39-41 boards on the effective date of this Act to continue to hold office
39-42 for the remainder of the term to which the person was appointed.
39-43 (b) As the terms of members of the boards expire or as
39-44 vacancies on the board occur, the governor shall make appointments
39-45 to achieve, as soon as possible, the membership plans prescribed
39-46 for the boards by the Agriculture Code, as amended by this Act. If
39-47 new positions on a board are created under this Act, the governor
39-48 shall make appointments to the new positions as soon as possible
39-49 after the effective date of this Act.
39-50 SECTION 10.08. CONTINGENCY. The changes made to Subsection
39-51 (c), Section 58.021, Agriculture Code, by Section 5.17 of this Act
39-52 are contingent on the failure of the constitutional amendments
39-53 proposed in S.J.R. No. 51 or H.J.R. No. 92, Acts of the 74th
39-54 Legislature, Regular Session, 1995, or similar legislation. If
39-55 either of those constitutional amendments passes and is approved by
39-56 the voters, the changes made to Subsection (c), Section 58.021,
39-57 Agriculture Code, by Section 5.17 of this Act have no effect.
39-58 SECTION 10.09. REPEALER. The following statutes are
39-59 repealed:
39-60 (1) Section 12.019, Agriculture Code;
39-61 (2) Section 12.027, Agriculture Code;
39-62 (3) Section 13.003, Agriculture Code;
39-63 (4) Section 13.029, Agriculture Code;
39-64 (5) Section 13.115(b), Agriculture Code;
39-65 (6) Subchapter D, Chapter 13, Agriculture Code;
39-66 (7) Subchapter B, Chapter 14, Agriculture Code;
39-67 (8) Subchapter B, Chapter 15, Agriculture Code;
39-68 (9) Chapter 16, Agriculture Code;
39-69 (10) Chapter 57, Agriculture Code;
39-70 (11) Section 58.021(d), Agriculture Code;
40-1 (12) Section 94.004, Agriculture Code;
40-2 (13) Section 101.007(e), Agriculture Code;
40-3 (14) Section 102.007(e), Agriculture Code;
40-4 (15) Chapter 112, Agriculture Code;
40-5 (16) Section 132.022(e), Agriculture Code;
40-6 (17) Section 132.026(c), Agriculture Code;
40-7 (18) Section 132.027(c), Agriculture Code; and
40-8 (19) Chapter 224, Acts of the 55th Legislature,
40-9 Regular Session, 1957 (Article 6701i, Vernon's Texas Civil
40-10 Statutes).
40-11 SECTION 10.10. EFFECTIVE DATE. This Act takes effect
40-12 September 1, 1995.
40-13 SECTION 10.11. EMERGENCY. The importance of this
40-14 legislation and the crowded condition of the calendars in both
40-15 houses create an emergency and an imperative public necessity that
40-16 the constitutional rule requiring bills to be read on three several
40-17 days in each house be suspended, and this rule is hereby suspended.
40-18 * * * * *