By:  Sims                                             S.B. No. 1196
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the boll weevil eradication program.
    1-2        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-3        SECTION 1.  Section 74.102, Agriculture Code, is amended by
    1-4  amending Subdivisions (5) and (7) to read as follows:
    1-5              (5)  "Cotton grower means an individual who<:  (A)>
    1-6  grows cotton and <B> receives <direct> income on or after June 1,
    1-7  1992, from the sale of cotton.  This includes an individual, entity
    1-8  or joint operator who as owner, landlord, tenant or sharecropper is
    1-9  entitled to share in the cotton available for marketing from the
   1-10  farm or share in the proceeds thereof, as determined in accordance
   1-11  with 7 Code of Federal Regulations, Part 1413.
   1-12              (7)  "Eradication zone" means a geographic area in
   1-13  which cotton growers by referendum approve their participation in a
   1-14  boll weevil eradication program.  Pest populations, eradication
   1-15  program needs, and/or other entomological factors can result in the
   1-16  addition of new counties to an established zone or the movement of
   1-17  counties or portions of counties between zones upon approval of the
   1-18  board, including areas and zones found under this subchapter.
   1-19        SECTION 2.  Section 74.105, Agriculture Code, is amended by
   1-20  amending Subsection (f) as follows:
   1-21        (f)  After the passage of any referendum, the eligible voters
   1-22  shall be allowed, by subsequent referenda periodically as specified
   1-23  in, and only if expressly provided for in, the initial referendum,
    2-1  to vote on whether to continue their assessments.  All of the
    2-2  requirements for an initial referendum must be met in subsequent
    2-3  referenda.
    2-4        SECTION 3.  Section 74.107, Agriculture Code, is amended by
    2-5  amending Subsection (a) to read as follows:
    2-6        (a)  The High Plains Boll Weevil Suppression Program Area and
    2-7  the St. Lawrence Cotton Growers Boll Weevil Control Zone are
    2-8  separate zones for the purposes of boll weevil eradication and may
    2-9  not be combined with another area in an eradication zone under this
   2-10  subchapter; provided, however, specific counties within these two
   2-11  zones may be assigned or moved to other zones in accordance with
   2-12  other provisions of the subchapter.
   2-13        SECTION 4.  Section 74.108, Agriculture Code, is amended by
   2-14  adding Subdivisions (6), (7) and (8) to read as follows:
   2-15              (6)  annex a county where cotton production commences
   2-16  adjacent to or in the biological area of an established eradication
   2-17  zone and initiate the boll weevil eradication program and assess
   2-18  cotton growers in order to ensure the integrity and success of the
   2-19  overall program.  Notice of intent to initiate eradication and
   2-20  collect assessments shall be preceded by informational meetings
   2-21  within the affected areas no later than 60 days before the average
   2-22  planting date for the area;
   2-23              (7)  accept, for the purposes of implementing this
   2-24  chapter, gifts, grants and donations, and where necessary for
   2-25  carrying out this chapter, obtain financing through the borrowing
    3-1  of funds or other methods; and
    3-2              (8)  take any such other actions and exercise such
    3-3  other authority and power as may be necessary to carry out any act
    3-4  authorized or permitted by this subchapter and/or by the Texas
    3-5  Non-Profit Corporation Act.
    3-6        SECTION 5.  Sec. 74.109, Agriculture Code, is amended by
    3-7  amending Subsection (c) and (d) as follows:
    3-8        (c)  The foundation shall provide fidelity <surety> bonds <in
    3-9  amounts determined by the commissioner> for employees or agents who
   3-10  handle funds for the foundation, in amounts determined by the
   3-11  board.
   3-12        (d)  The foundation and the board are state agencies for the
   3-13  purpose of exemption from taxation (including without limitation
   3-14  exemption from the payment of sales taxes and of vehicle
   3-15  registration fees and taxes of all types under Chapter 152 of the
   3-16  Texas Tax Code) and indemnification and for no other purpose.
   3-17  Provided, however, the foundation shall be a "governmental unit",
   3-18  as defined in and for the limited purpose of Section 101.001 of the
   3-19  Texas Civil Practices and Remedies Code, and shall be entitled to
   3-20  governmental immunity, and any tort claims against the foundation
   3-21  must be brought pursuant to, and are subject to, the provisions of
   3-22  Chapter 101 of the Texas Civil Practices and Remedies Code.  <The
   3-23  foundation shall collect, receive, hold in trust, and disburse all
   3-24  assessments and other funds collected under this subchapter as
   3-25  trust funds of the foundation.  The foundation board is a state
    4-1  agency for exemption from taxation and indemnification only and for
    4-2  no other purpose.>  Funds collected by the foundation are not state
    4-3  funds and are not required to be deposited in the state treasury.
    4-4  The foundation shall deposit all money collected under this
    4-5  subchapter in a bank or other depository approved by the board.
    4-6        SECTION 6.  Section 74.110, Agriculture Code, is amended by
    4-7  amending Subsection (a) to read as follows:
    4-8        (a)  Except for instances of gross negligence, individual
    4-9  criminal actions, or acts of dishonesty, the foundation and the
   4-10  foundation's members, directors, officers, and employees are not
   4-11  liable to a cotton grower or any other person for:
   4-12              (1)  errors in judgment;
   4-13              (2)  mistakes; or
   4-14              (3)  other acts or omissions.
   4-15        SECTION 7.  Section 74.113, Agriculture Code, is amended by
   4-16  amending subsection (f) to read as follows:
   4-17        (f)  An assessment levied on cotton growers in an eradication
   4-18  zone may be applied only to:
   4-19              (1)  eradication in that zone;
   4-20              (2)  the foundation's operating costs, including
   4-21  payments on debt incurred for any foundation activity; and
   4-22              (3)  the conducting of other programs consistent with
   4-23  the declaration of policy stated in Section 74.101 of this code.
   4-24        SECTION 8.  Section 74.114, Agriculture Code, is amended by
   4-25  amending subsections (e), (f) and (i) to read as follows:  (e)  An
    5-1  eligible cotton grower may vote only once in a referendum or board
    5-2  election.  Individual voter information, including the individual's
    5-3  vote on referenda or in board elections conducted in accordance
    5-4  with this section is deemed confidential and is not subject to
    5-5  disclosure under the Texas Open Records Act.
    5-6        (f)  Ballots in a referendum or board election must <may> be
    5-7  mailed to a central location to be initially determined by the
    5-8  commissioner and later determined by the board.  A cotton grower
    5-9  eligible to vote in a referendum or board election who has not
   5-10  received a ballot from the foundation or the local FSA office shall
   5-11  be offered the option of requesting a ballot by mail or obtaining a
   5-12  ballot <voting in person> at the office of the county agent of the
   5-13  Texas Agricultural Extension Service or the FSA office in a <the>
   5-14  county within the proposed or established zone in which the
   5-15  referendum or board election is being conducted <in which the
   5-16  cotton grower resides>.  All completed ballots must be mailed by
   5-17  the voter to the designated central  location and cannot be held by
   5-18  a county agent  <A county agent shall hold ballots received under
   5-19  this section in trust and shall count the ballots and report the
   5-20  results to the commissioner and the foundation>.
   5-21        (i)  A public hearing regarding the proposed eradication
   5-22  program <plan>, including information on regulations to be
   5-23  promulgated by the foundation and the commissioner, shall be held
   5-24  by the foundation in each of several locations within each boll
   5-25  weevil eradication zone.  The area posted for each hearing shall
    6-1  cover no more than six contiguous counties that have cotton
    6-2  production at the time of the hearing.
    6-3        SECTION 9.  Section 74.115, Agriculture Code, is amended by
    6-4  amending Subsections (b) and (c) to read as follows:
    6-5        (b)  A cotton grower who fails to pay all assessments and
    6-6  penalties before the 10th <31st> day after receiving notice of the
    6-7  delinquency shall destroy any cotton growing on the grower's
    6-8  acreage that is subject to the assessment.  Cotton plants that are
    6-9  not destroyed are a public nuisance, and, on recommendation of the
   6-10  foundation, the department shall follow the procedures for
   6-11  destruction of host plants provided by Subchapter A of this
   6-12  chapter, including procedures for reimbursement by the grower of
   6-13  costs required for destruction.  The department may apply to a
   6-14  district court with jurisdiction in the county in which the public
   6-15  nuisance is located to have the nuisance condemned and destroyed.
   6-16  Injunctive relief available to the department under this subchapter
   6-17  is in addition to any other legal remedy available to the
   6-18  department.  The department is not required to file a bond in a
   6-19  proceeding under this subsection.
   6-20        (c)  In addition to any other remedies for the collection of
   6-21  assessments and penalties, the department may place and perfect a
   6-22  lien on any cotton produced and harvested from the acreage that is
   6-23  subject to the assessment <before the destruction of other cotton
   6-24  grown from the acreage that is subject to the assessment> that is
   6-25  due and unpaid for the next five years.  A buyer of cotton takes
    7-1  free of the lien if the buyer has not received written or actual
    7-2  notice of the lien from the department or if the buyer has paid for
    7-3  the cotton by a check on which the department is named as a joint
    7-4  payee.  In an action to enforce the lien, the burden is on the
    7-5  department to prove that the buyer of cotton received written or
    7-6  actual notice of the lien.  A buyer of cotton other than a person
    7-7  buying cotton from the cotton grower takes free of the lien.
    7-8        SECTION 10.  Section 74.116(b), Agriculture Code, is amended
    7-9  by amending Subsection (b) to read as follows:
   7-10        (b)  A cotton grower may not qualify for an exemption under
   7-11  this section for a year in which the amount computed by subtracting
   7-12  the assessments and penalties due under this subchapter from the
   7-13  cotton grower's new income subject to federal income taxation for
   7-14  the prior year is greater than $15,000.
   7-15        SECTION 11.  Sec. 74.120, Agriculture Code, is amended by
   7-16  amending Subsection (c) to read as follows:
   7-17        (c)  The foundation and the department may adopt other
   7-18  reasonable rules <it considers> necessary to carry out the purposes
   7-19  of this subchapter and Subchapter A of this chapter.  All rules
   7-20  issued under this subchapter must be adopted and published in
   7-21  accordance with state requirements.  Rules adopted by the
   7-22  foundation under this section shall be consistent with rules
   7-23  adopted by the commissioner under this subchapter.
   7-24        SECTION 12.  Sec. 74.125, Agriculture Code, is amended to
   7-25  read as follows:  The board, in cooperation with the commissioner,
    8-1  shall endeavor to develop rules and procedures to:
    8-2              (1)  protect the eligibility of organic producers to be
    8-3  certified by the commissioner;
    8-4              (2)  ensure that organic and transitional certification
    8-5  by the commissioner continue to meet national certification
    8-6  standards in order for organic cotton to maintain international
    8-7  marketability; <and>
    8-8              (3)  but in all events shall maintain the effectiveness
    8-9  of the boll weevil eradication program administered under this
   8-10  subchapter.
   8-11        SECTION 13.  Sec. 74.126, Agriculture Code, is amended by
   8-12  amending Subsection (c) to read as follows:
   8-13        (c)  If the commissioner or the foundation determines that a
   8-14  violation of this subchapter or a rule adopted under this
   8-15  subchapter has occurred, the commissioner or the foundation may
   8-16  request that the attorney general or the county or district
   8-17  attorney of the county in which the alleged violation occurred or
   8-18  is occurring file suit for civil, injunctive, and/or other
   8-19  appropriate relief.
   8-20        SECTION 14.  Sec. 74.127, Agriculture Code, is amended by
   8-21  adding Subsection (c) to read as follows:  Sunset Provision.
   8-22  (a)  The board is subject to Chapter 325, Government Code (Texas
   8-23  Sunset Act).  Unless continued in existence as provided by that
   8-24  chapter, the board is abolished and this subchapter expires
   8-25  September 1, 2004.
    9-1        (b)  The commissioner may order the dissolution of the
    9-2  foundation at any time the commissioner determines that the
    9-3  purposes of this subchapter have been fulfilled or that the
    9-4  foundation is inoperative and abandoned.  Dissolution shall be
    9-5  conducted in accordance with Section 74.112 of this code.
    9-6        (c)  If the foundation is abolished under Sec. 74.127, Texas
    9-7  Agriculture Code, assessments approved, levied or otherwise
    9-8  collectable on the date of abolishment will be continued if
    9-9  necessary to fulfill financial obligations of the foundation.
   9-10        SECTION 15.  This Act takes effect September 1, 1995.
   9-11        SECTION 16.  The importance of this legislation and the
   9-12  crowded condition of the calendars in both houses create an
   9-13  emergency and an imperative public necessity that the
   9-14  constitutional rule requiring bills to be read on three several
   9-15  days in each house be suspended, and this rule is hereby suspended,
   9-16  and that this Act take effect and be in force from and after its
   9-17  passage, and it is so enacted.