S.B. No. 1196
AN ACT
1-1 relating to the boll weevil and pink bollworm eradication programs
1-2 and to pesticide and herbicide application.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (c), Section 74.101, Agriculture Code,
1-5 is amended to read as follows:
1-6 (c) The creation and use of a boll weevil eradication
1-7 foundation as a vehicle to provide for assessments and governing
1-8 boards and to establish eradication zones in order to suppress and
1-9 eradicate boll weevils and other cotton pests are consistent with
1-10 the goals and uses of revenue established under Article XVI,
1-11 Section 68, of the Texas Constitution.
1-12 SECTION 2. Section 74.102, Agriculture Code, is amended by
1-13 amending Subdivisions (5), (6), (7), (9), (10), (11), (13), and
1-14 (14) and by adding Subdivision (15) to read as follows:
1-15 (5) "Cotton grower" means an individual who<:>
1-16 <(A)> grows cotton<;> and
1-17 <(B)> receives <direct> income on or after June
1-18 1, 1992, from the sale of cotton. The term includes an individual
1-19 who as owner, landlord, tenant, or sharecropper is entitled to
1-20 share in the cotton grown and available for marketing from a farm
1-21 or to share in the proceeds from the sale of the cotton from the
1-22 farm, under 7 C.F.R. Part 1413.
1-23 (6) "Eradication" means elimination of boll weevils or
2-1 pink bollworms to the extent that the commissioner does not
2-2 consider further elimination of boll weevils or pink bollworms
2-3 necessary to prevent economic loss to cotton growers.
2-4 (7) "Eradication zone" means a geographic area in
2-5 which cotton growers by referendum approve their participation in a
2-6 boll weevil or pink bollworm eradication program.
2-7 (9) "High Plains Boll Weevil Suppression Program Area"
2-8 includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby, Dawson,
2-9 Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley, Howard,
2-10 Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer, Swisher,
2-11 Terry, and Yoakum counties. The High Plains Boll Weevil
2-12 Suppression Program Area may also include other counties or parts
2-13 of counties if areas are added to the High Plains Boll Weevil
2-14 Suppression Program Area as provided under this subchapter.
2-15 (10) "Host" means a plant or plant product in which
2-16 the boll weevil or pink bollworm is capable of completing any
2-17 portion of its life cycle.
2-18 (11) "Infested" means the presence of the boll weevil
2-19 or pink bollworm in any life stage or the existence of generally
2-20 accepted entomological evidence from which it may be concluded with
2-21 reasonable certainty that the boll weevil or pink bollworm is
2-22 present.
2-23 (13) "Regulated article" means an article carrying or
2-24 capable of carrying the boll weevil or pink bollworm, including
2-25 cotton plants, seed cotton, gin trash, other hosts, or mechanical
3-1 cotton harvesters.
3-2 (14) "St. Lawrence Cotton Growers Boll Weevil Control
3-3 Zone" may include, subject to change as provided under this
3-4 subchapter, all or part of <includes> Glasscock, Reagan, Upton,
3-5 <and> south Midland, or other counties.
3-6 (15) The pink bollworm eradication zone includes
3-7 Reeves and Pecos counties.
3-8 SECTION 3. Subsections (a) and (c), Section 74.105,
3-9 Agriculture Code, are amended to read as follows:
3-10 (a) The organization certified under Section 74.104 of this
3-11 code or the foundation shall conduct a referendum in each proposed
3-12 eradication zone to determine whether cotton growers desire to
3-13 establish an official boll weevil or pink bollworm eradication
3-14 zone.
3-15 (c) A proposed eradication zone referendum ballot must
3-16 include or be accompanied by information about the proposed
3-17 eradication zone, including:
3-18 (1) a statement of the purpose of the boll weevil or
3-19 pink bollworm eradication program;
3-20 (2) the geographic area included in the proposed
3-21 eradication zone;
3-22 (3) a general summary of rules adopted by the
3-23 commissioner under Sections 74.114, 74.118, and 74.120 of this
3-24 code, including a description of:
3-25 (A) cotton grower responsibilities; and
4-1 (B) penalties for noncompliance with rules
4-2 adopted under this subchapter; and
4-3 (4) an address and toll-free telephone number that a
4-4 cotton grower may use to request more information about the
4-5 referendum or the boll weevil or pink bollworm eradication program.
4-6 SECTION 4. Subsection (a), Section 74.107, Agriculture Code,
4-7 is amended to read as follows:
4-8 (a) The High Plains Boll Weevil Suppression Program Area and
4-9 the St. Lawrence Cotton Growers Boll Weevil Control Zone are
4-10 separate zones for the purposes of boll weevil eradication;
4-11 however, an area in the St. Lawrence Cotton Growers Boll Weevil
4-12 Control Zone may be assigned to another zone as provided by <and
4-13 may not be combined with another area in an eradication zone under>
4-14 this subchapter.
4-15 SECTION 5. Section 74.108, Agriculture Code, is amended to
4-16 read as follows:
4-17 Sec. 74.108. Board Powers. (a) The board may:
4-18 (1) conduct board elections;
4-19 (2) conduct eradication zone referenda;
4-20 (3) conduct assessment referenda under Section 74.113
4-21 of this code;
4-22 (4) conduct programs consistent with the declaration
4-23 of policy stated in Section 74.101 of this code;
4-24 (5) accept, as necessary to implement this chapter,
4-25 gifts and grants;
5-1 (6) borrow money as necessary to execute this chapter;
5-2 (7) take other action and exercise other authority as
5-3 necessary to execute any act authorized by this subchapter or the
5-4 Texas Non-Profit Corporation Act (Article 1396-1.01 et seq.,
5-5 Vernon's Texas Civil Statutes); and
5-6 (8) <(5)> form an advisory committee composed of
5-7 individuals from this state, other states, or other countries and
5-8 change membership on the committee, as necessary. Any advisory
5-9 committee created under this subdivision for the purpose of
5-10 establishing treatment methods shall include among its members
5-11 persons with knowledge of the effects of different treatments on
5-12 the health of agricultural workers, the local population, and the
5-13 ecosystem, including but not limited to the effects of a particular
5-14 method of treatment on beneficial organisms and wildlife, the
5-15 potential for secondary infestations from nontarget pests, and the
5-16 potential for pest resistance to particular methods of treatment.
5-17 (b) The board may add an area to an eradication zone if:
5-18 (1) cotton production begins in the area;
5-19 (2) the area is adjacent to an eradication zone or is
5-20 in an area with biological characteristics similar to the
5-21 eradication zone; and
5-22 (3) the addition is approved in a referendum held in
5-23 the area.
5-24 (c) The board may initiate the boll weevil eradication
5-25 program in an area added to an eradication zone and may assess
6-1 cotton growers in the area added to the eradication zone to ensure
6-2 the integrity and success of the eradication program. The board
6-3 shall provide notice of intent to initiate eradication and collect
6-4 assessments through informational meetings in the affected area not
6-5 later than 60 days before the date recognized by the board as the
6-6 average planting date for the area.
6-7 (d) The board may not reduce the area of the High Plains
6-8 Boll Weevil Suppression Program Area.
6-9 SECTION 6. Section 74.109, Agriculture Code, is amended to
6-10 read as follows:
6-11 Sec. 74.109. Board Duties. (a) The board shall make
6-12 available for inspection at an annual independent audit all books,
6-13 records of account, and minutes of proceedings maintained by the
6-14 foundation.
6-15 (b) Not later than the 45th day after the last day of the
6-16 fiscal year, the board shall submit to the commissioner a report
6-17 itemizing all income and expenditures and describing all activities
6-18 of the foundation during the fiscal year.
6-19 (c) The foundation shall provide fidelity <surety> bonds in
6-20 amounts determined by the board <commissioner> for employees or
6-21 agents who handle funds for the foundation.
6-22 (d) <The foundation shall collect, receive, hold in trust,
6-23 and disburse all assessments and other funds collected under this
6-24 subchapter as trust funds of the foundation.> The foundation and
6-25 the board are <is a> state agencies <agency> for the following
7-1 purposes only:
7-2 (1) exemption from taxation including exemption from
7-3 sales and use taxes, vehicle registration fees, and taxes under
7-4 Chapter 152, Tax Code; and
7-5 (2) indemnification <only and for no other purpose>.
7-6 (e) Funds collected by the foundation are not state funds
7-7 and are not required to be deposited in the state treasury. The
7-8 foundation shall deposit all money collected under this subchapter
7-9 in a bank or other depository approved by the board.
7-10 (f) The foundation is a governmental unit under Section
7-11 101.001, Civil Practice and Remedies Code, and is entitled to
7-12 governmental immunity. A tort claim against the foundation must be
7-13 made under Chapter 101, Civil Practice and Remedies Code.
7-14 (g) <(e)> The board shall collect data on the type and
7-15 quantity of pesticides used in accordance with this subchapter.
7-16 (h) <(f)> All revenue collected under this subchapter shall
7-17 be used solely to finance programs approved by the commissioner as
7-18 consistent with this subchapter and applicable provisions of the
7-19 constitution.
7-20 SECTION 7. Subsection (a), Section 74.110, Agriculture Code,
7-21 is amended to read as follows:
7-22 (a) Except for instances of gross negligence, individual
7-23 criminal actions, or acts of dishonesty, the foundation, the
7-24 foundation's members, directors, officers, and employees are not
7-25 individually liable to a cotton grower or other person for:
8-1 (1) errors in judgment;
8-2 (2) mistakes; or
8-3 (3) other acts or omissions.
8-4 SECTION 8. Subsections (a) and (b), Section 74.112,
8-5 Agriculture Code, are amended to read as follows:
8-6 (a) On the determination by the foundation that the boll
8-7 weevil eradication program has been completed in all eradication
8-8 zones established under this subchapter for boll weevil control and
8-9 the pink bollworm eradication program has been completed in any
8-10 eradication zone established under this chapter for pink bollworm
8-11 control, the foundation shall provide notice of such completion to
8-12 the commissioner along with a request for discontinuance of the
8-13 eradication program and collection of the assessment. Any such
8-14 request shall include documentation supporting the eradication of
8-15 the boll weevil in all eradication zones established for boll
8-16 weevil eradication or pink bollworm in any eradication zone
8-17 established for pink bollworm eradication and a plan for
8-18 discontinuance of the program and assessment.
8-19 (b) The commissioner shall determine whether or not the
8-20 further elimination of the boll weevil or pink bollworm is
8-21 necessary in the eradication zones and approve or disapprove
8-22 discontinuance of the foundation and the plan for dissolution.
8-23 SECTION 9. Subsection (f), Section 74.113, Agriculture Code,
8-24 is amended to read as follows:
8-25 (f) An assessment levied on cotton growers in an eradication
9-1 zone may be applied only to:
9-2 (1) eradication in that zone;
9-3 (2) the foundation's operating costs, including
9-4 payments on debt incurred for a foundation activity, except that
9-5 the funds of one zone may not be used to pay another zone's bank
9-6 loans; and
9-7 (3) the conducting of other programs consistent with
9-8 the declaration of policy stated in Section 74.101 of this code.
9-9 SECTION 10. Section 74.114, Agriculture Code, is amended by
9-10 amending Subsections (f) and (i) and by adding Subsection (j) to
9-11 read as follows:
9-12 (f) Ballots in a referendum or board election shall <may> be
9-13 mailed directly to a central location, to be initially determined
9-14 by the commissioner and later determined by the board. A cotton
9-15 grower eligible to vote in a referendum or board election who has
9-16 not received a ballot from the foundation or another source shall
9-17 be offered the option of requesting a ballot by mail or obtaining a
9-18 ballot <voting in person> at the office of the county agent of the
9-19 Texas Agricultural Extension Service or a government office
9-20 distributing ballots in a <the> county in the proposed or
9-21 established zone in which the referendum or board election is
9-22 conducted <which the cotton grower resides. A county agent shall
9-23 hold ballots received under this section in trust and shall count
9-24 the ballots and report the results to the commissioner and the
9-25 foundation>.
10-1 (i) A public hearing regarding the proposed eradication
10-2 program <plan>, including information regarding regulations to be
10-3 promulgated by the foundation and the commissioner, shall be held
10-4 by the foundation in each of several locations within each boll
10-5 weevil or pink bollworm eradication zone. The area posted for each
10-6 hearing shall include no more than six contiguous counties that
10-7 have cotton production at the time of the hearing.
10-8 (j) Individual voter information, including an individual's
10-9 vote in a referendum or board election conducted under this
10-10 section, is confidential and is not subject to disclosure under the
10-11 open records law, Chapter 552, Government Code.
10-12 SECTION 11. Subsections (b) and (c), Section 74.115,
10-13 Agriculture Code, are amended to read as follows:
10-14 (b) A cotton grower who fails to pay all assessments and
10-15 penalties before the 10th <31st> day after receiving notice of the
10-16 delinquency shall destroy any cotton growing on the grower's
10-17 acreage that is subject to the assessment. Cotton plants that are
10-18 not destroyed are a public nuisance, and, on recommendation of the
10-19 foundation, the department shall follow the procedures for
10-20 destruction of host plants provided by Subchapters <Subchapter> A
10-21 and B of this chapter, including procedures for reimbursement by
10-22 the grower of costs required for destruction. The department may
10-23 apply to a district court with jurisdiction in the county in which
10-24 the public nuisance is located to have the nuisance condemned and
10-25 destroyed. Injunctive relief available to the department under
11-1 this subchapter is in addition to any other legal remedy available
11-2 to the department. The department is not required to file a bond
11-3 in a proceeding under this subsection.
11-4 (c) In addition to any other remedies for the collection of
11-5 assessments and penalties, the department may place and perfect a
11-6 lien on cotton produced and harvested that year <before the
11-7 destruction of other cotton grown> from the acreage that is subject
11-8 to the assessment that is due and unpaid. A buyer of cotton takes
11-9 free of the lien if the buyer has not received written or actual
11-10 notice of the lien from the department or if the buyer has paid for
11-11 the cotton by a check on which the department is named as a joint
11-12 payee. In an action to enforce the lien, the burden is on the
11-13 department to prove that the buyer of cotton received written or
11-14 actual notice of the lien. A buyer of cotton other than a person
11-15 buying cotton from the cotton grower takes free of the lien.
11-16 SECTION 12. Subsection (b), Section 74.116, Agriculture
11-17 Code, is amended to read as follows:
11-18 (b) A cotton grower may not qualify for an exemption under
11-19 this section for a year in which the amount computed by subtracting
11-20 the assessments and penalties due under this subchapter from the
11-21 cotton grower's net income subject to federal income taxation in
11-22 the previous year is greater than $15,000.
11-23 SECTION 13. Section 74.117, Agriculture Code, is amended to
11-24 read as follows:
11-25 Sec. 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
12-1 INSPECTIONS. The department, the foundation, or a designated
12-2 representative of either entity may enter cotton fields or other
12-3 premises to carry out the purposes of this subchapter and
12-4 Subchapters <Subchapter> A and B of this chapter, which include the
12-5 treatment, monitoring, and destruction of growing cotton or other
12-6 host plants. The department, the foundation, or a designated
12-7 representative of either entity may inspect fields or premises in
12-8 this state for the purpose of determining whether the property is
12-9 infested with the boll weevil or the pink bollworm. An inspection
12-10 must be conducted during reasonable daylight hours.
12-11 SECTION 14. Section 74.118, Agriculture Code, is amended to
12-12 read as follows:
12-13 (b) The commissioner may adopt rules prohibiting the
12-14 planting of noncommercial cotton in eradication zones and requiring
12-15 that all growers of commercial cotton in an eradication zone
12-16 participate in a boll weevil or pink bollworm eradication program
12-17 that includes cost sharing as required by the rules.
12-18 SECTION 15. Subsections (a), (b), and (c), Section 74.120,
12-19 Agriculture Code, are amended to read as follows:
12-20 (a) The commissioner shall adopt rules to protect
12-21 individuals, livestock, wildlife, and honeybee colonies on any
12-22 premises in an eradication zone on which cotton plants are being
12-23 grown that have been or are being treated to eradicate the boll
12-24 weevil or the pink bollworm.
12-25 (b) Rules adopted under this section shall establish the
13-1 criteria by which the foundation develops its rules, procedures,
13-2 and methods of treatment, which rules:
13-3 (1) establish a methodology for determining when boll
13-4 weevil or pink bollworm population levels have reached economic
13-5 significance;
13-6 (2) establish an effective treatment regimen that
13-7 seeks to provide the least possible risk to workers, the public,
13-8 and the environment;
13-9 (3) minimize the effects of the use of pesticides on
13-10 long-term control methods, including but not limited to the effect
13-11 a particular pesticide may have on biological controls;
13-12 (4) establish methods for monitoring boll weevils,
13-13 pink bollworms, and secondary pests;
13-14 (5) establish methods for verifying pesticide use
13-15 reduction; and
13-16 (6) consider the acute and chronic toxicity of
13-17 particular pesticides and the quantity of particular pesticides
13-18 needed. Eradication zone treatment plans may take into account the
13-19 potential for the use of smaller quantities of more toxic
13-20 substances to result in fewer health and environmental risks than
13-21 larger quantities of less toxic substances.
13-22 (c) The foundation and the department may adopt other
13-23 reasonable rules <it considers> necessary to carry out the purposes
13-24 of this subchapter and Subchapters <Subchapter> A and B of this
13-25 chapter. All rules issued under this subchapter must be adopted
14-1 and published in accordance with state requirements. Rules adopted
14-2 by the foundation under this section shall be consistent with rules
14-3 adopted by the commissioner under this subchapter.
14-4 SECTION 16. Section 74.122, Agriculture Code, is amended to
14-5 read as follows:
14-6 Sec. 74.122. QUARANTINE. The department may adopt rules
14-7 relating to quarantining areas of this state that are infested with
14-8 the boll weevil or the pink bollworm. The rules must address the
14-9 storage of regulated articles and the movement of regulated
14-10 articles into and out of a quarantined area. The department may
14-11 also adopt rules governing the movement of regulated articles from
14-12 other states into this state if the articles are known to be
14-13 infested with the boll weevil or the pink bollworm.
14-14 SECTION 17. Section 74.123, Agriculture Code, is amended to
14-15 read as follows:
14-16 Sec. 74.123. DOCUMENTING REGULATED ARTICLES. To implement
14-17 this subchapter, the department may issue or authorize issuance of:
14-18 (1) a certificate that indicates that a regulated
14-19 article is not infested with the boll weevil or the pink bollworm;
14-20 and
14-21 (2) a permit that provides for the movement of a
14-22 regulated article to a restricted designation for limited handling,
14-23 use, or processing.
14-24 SECTION 18. Subsection (a), Section 74.124, Agriculture
14-25 Code, is amended to read as follows:
15-1 (a) The foundation may carry out programs to destroy and
15-2 eliminate the boll weevil and the pink bollworm in this state by
15-3 cooperating through written agreements with:
15-4 (1) an agency of the federal government;
15-5 (2) a state agency;
15-6 (3) an appropriate agency of a foreign country
15-7 contiguous to the affected area to the extent allowed by federal
15-8 law;
15-9 (4) a person who is engaged in growing, processing,
15-10 marketing, or handling cotton; or
15-11 (5) a group of persons in this state involved in
15-12 similar programs to carry out the purposes of this subchapter.
15-13 SECTION 19. Section 74.125, Agriculture Code, is amended to
15-14 read as follows:
15-15 Sec. 74.125. Organic Producers. (a) The board, in
15-16 cooperation with the commissioner, shall develop rules and
15-17 procedures to:
15-18 (1) protect the eligibility of organic producers to be
15-19 certified by the commissioner;
15-20 (2) ensure that organic and transitional certification
15-21 by the commissioner continue to meet national certification
15-22 standards in order for organic cotton to maintain international
15-23 marketability; and
15-24 (3) in all events maintain the effectiveness of the
15-25 boll weevil or pink bollworm eradication program administered under
16-1 this subchapter.
16-2 (b) The board may not treat or require treatment of organic
16-3 cotton fields with chemicals that are not approved for use on
16-4 certified organic cotton. Plow-up may be required as an
16-5 alternative to chemicals. In the rules adopted under Subsection
16-6 (a), the board may provide indemnity for the organic producers for
16-7 reasonable losses that result from a prohibition of production of
16-8 organic cotton or from any requirement of destruction of organic
16-9 cotton. If time is reasonably available for the production of an
16-10 economically feasible alternative crop, the board may require
16-11 mitigation of losses with the production of an alternative crop.
16-12 SECTION 20. Subsection (c), Section 74.126, Agriculture
16-13 Code, is amended to read as follows:
16-14 (c) If the commissioner or the foundation determines that a
16-15 violation of this subchapter or a rule adopted under this
16-16 subchapter has occurred, the commissioner or the foundation may
16-17 request that the attorney general or the county or district
16-18 attorney of the county in which the alleged violation occurred or
16-19 is occurring file suit for civil, injunctive, and/or other
16-20 appropriate relief.
16-21 SECTION 21. Section 74.127, Agriculture Code, is amended by
16-22 adding Subsection (c) to read as follows:
16-23 (c) If the foundation is abolished or the program
16-24 discontinued for any reason, assessments approved, levied, or
16-25 otherwise collectible on the date of abolishment remain valid as
17-1 necessary to pay the financial obligations of the foundation.
17-2 SECTION 22. Section 75.012, Agriculture Code, is amended by
17-3 amending Subsection (b) and adding Subsection (d) to read as
17-4 follows:
17-5 (b) If a regulated herbicide is applied by a commercial
17-6 applicator, the person in control of the crop or land to which the
17-7 regulated herbicide is applied and the commercial applicator
17-8 jointly are responsible for ensuring that the application is in
17-9 compliance with this chapter and the rules adopted by the
17-10 department, except as provided by Subsection (d).
17-11 (d) The person in control of the crop or land to which the
17-12 regulated herbicide is applied is not responsible for damages
17-13 resulting from the application or for ensuring that the application
17-14 is in compliance with this chapter and the rules adopted by the
17-15 department if:
17-16 (1) the regulated herbicide is applied under a local,
17-17 state, or federal government program that requires the application
17-18 of a regulated herbicide to the crop or land; and
17-19 (2) the person in control of the crop or land to which
17-20 the regulated herbicide is applied does not control or have a right
17-21 to control the time and manner of the application of the regulated
17-22 herbicide to the crop or land.
17-23 SECTION 23. Subchapter H, Chapter 76, Agriculture Code, is
17-24 amended by adding Section 76.185 to read as follows:
17-25 Sec. 76.185. DAMAGES RESULTING FROM APPLICATION OF PESTICIDE
18-1 UNDER GOVERNMENT PROGRAM. Notwithstanding other law, the owner or
18-2 lessee of land on which a pesticide is applied is not responsible
18-3 for damages resulting from the application of the pesticide or
18-4 subject to a criminal or civil penalty in connection with the
18-5 application of the pesticide if:
18-6 (1) the pesticide is applied under a local, state, or
18-7 federal government program that requires the application of the
18-8 pesticide to the land; and
18-9 (2) the owner or lessee of the land on which the
18-10 pesticide is applied does not control or have a right to control
18-11 the time and manner of the application of the pesticide to the
18-12 land.
18-13 SECTION 24. This Act takes effect September 1, 1995.
18-14 SECTION 25. The importance of this legislation and the
18-15 crowded condition of the calendars in both houses create an
18-16 emergency and an imperative public necessity that the
18-17 constitutional rule requiring bills to be read on three several
18-18 days in each house be suspended, and this rule is hereby suspended.