Amend CSSB 1814 by striking all below the enacting clause and
substituting the following:
ARTICLE 1
SECTION 1.01. Section 74.101, Agriculture Code, is amended to
read as follows:
Sec. 74.101. FINDINGS AND DECLARATION OF POLICY. (a) It is
hereby found and declared that:
(1) the insects Anthonomus grandis Boheman, known as
the boll weevil, and Pectinophora gossypiella, known as the pink
bollworm, are public nuisances and a menace to the cotton industry,
and their eradication is a public necessity <boll weevil entered
Texas from Mexico in 1892 and presents a major economic threat to
Texas' cotton crop>;
(2) because of the differences in soil conditions,
growing seasons, farming techniques, and climate conditions among
several areas in the state where cotton is grown, the eradication
and suppression of the nuisance can best be accomplished by
dividing the cotton-growing areas into separate zones so that
integrated pest management programs may be developed for each zone
<there exists a need to develop, carry out, and participate in
programs of research such as disease and insect control; marketing
to show low risk of pests in interstate and intrastate movement of
cotton commodities; promotion of pest-free cotton commodities
which increase market demand; and education of cotton raisers,
cotton users, regulators, policymakers, and the general public on
the effect of pests on cotton, its utility, its marketing, its
yield, and its promotion>; <and>
(3) there is a need for a private entity outside the
department whose members are actual cotton growers who would be
represented on the board of the entity by directors elected by them
to act as the agent of the department to manage eradication and
suppression programs and to furnish expertise in the field of
insect control and eradication, because such an entity would
enhance the interest and participation of cotton growers in the
program; and
(4) because of the progress made in eradication,
investments made by cotton growers in certain areas, the potential
injustice to certain cotton growers who have made such investments,
and the stage of development of the cotton crops in the statutory
eradication zones, an urgent public necessity exists to validate
and ratify the assessments, agreements, and obligations of the
Texas Boll Weevil Eradication Foundation, Inc., made or incurred by
the foundation and related to certain statutory zones <it is the
intent of the legislature that the program be carried out with the
best available integrated pest management techniques>.
(b) It is the intent of the legislature that the program of
eradication and suppression be carried out with the best available
integrated pest management techniques.
(c) The department may recover costs for administration of
this subchapter.
<(c) The creation and use of a boll weevil eradication
foundation as a vehicle to provide for assessments and governing
boards and to establish eradication zones in order to suppress and
eradicate boll weevils and other cotton pests are consistent with
the goals and uses of revenue established under Article XVI,
Section 68, of the Texas Constitution.>
SECTION 1.02. Subchapter D, Chapter 74, Agriculture Code, is
amended by adding Section 74.1011 to read as follows:
Sec. 74.1011. DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL
ERADICATION. (a) The Texas Boll Weevil Eradication Foundation,
Inc., a Texas nonprofit corporation chartered by the secretary of
state on September 14, 1993, shall be recognized by the department
as the entity to plan, carry out, and operate eradication and
diapause programs to eliminate the boll weevil and the pink
bollworm from cotton in the state under the supervision of the
department as provided by this subchapter.
(b) The commissioner may terminate the foundation's
designation as the entity recognized to carry out boll weevil
eradication by giving 45 days' written notice to the foundation and
by designating a successor entity. If the commissioner designates
a successor to the foundation, the successor has all the powers and
duties of the foundation under this subchapter.
SECTION 1.03. Section 74.102, Agriculture Code, is amended to
read as follows:
Sec. 74.102. DEFINITIONS. In this subchapter:
(1) "Board" means the board of directors of the Texas
Boll Weevil Eradication Foundation, Inc <official cotton growers'
boll weevil eradication foundation>.
(2) "Boll weevil" has the meaning assigned by Section
74.002 <of this code>.
(3) "Commissioner" means commissioner of agriculture.
(4) "Cotton" means:
(A) a cotton plant;
(B) a part of a cotton plant, including bolls,
stalks, flowers, roots, and leaves; or
(C) cotton products, including seed cotton,
cottonseed, and hulls.
(5) "Cotton grower" means a person <an individual> who
grows cotton and receives income <on or after June 1, 1992,> from
the sale of cotton. The term includes an individual who as owner,
landlord, tenant, or sharecropper is entitled to share in the
cotton grown and available for marketing from a farm or to share in
the proceeds from the sale of the cotton from the farm<, under 7
C.F.R. Part 1413>.
(6) "Eradication" means elimination of boll weevils or
pink bollworms to the extent that the commissioner does not
consider further elimination of boll weevils or pink bollworms
necessary to prevent economic loss to cotton growers. Eradication
includes diapause activities.
(7) "Eradication zone" means a geographic area:
(A) established under Section 74.1021; or
(B) designated by the commissioner in accordance
with Section 74.105 in which cotton growers by referendum approve
their participation in a boll weevil or pink bollworm eradication
program.
(8) "Foundation" means the Texas Boll Weevil
Eradication Foundation, Inc., a Texas nonprofit corporation
<official cotton growers' boll weevil eradication foundation>.
(9) <"High Plains Boll Weevil Suppression Program
Area" includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby,
Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,
Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,
Swisher, Terry, and Yoakum counties. The High Plains Boll Weevil
Suppression Program Area may also include other counties or parts
of counties if areas are added to the High Plains Boll Weevil
Suppression Program Area as provided under this subchapter.>
<(10)> "Host" means a plant or plant product in which
the boll weevil or pink bollworm is capable of completing any
portion of its life cycle.
(10) <(11)> "Infested" means the presence of the boll
weevil or pink bollworm in any life stage or the existence of
generally accepted entomological evidence from which it may be
concluded with reasonable certainty that the boll weevil or pink
bollworm is present.
(11) <(12)> "Integrated pest management" is the
coordinated use of pest and environmental information with
available pest control methods to prevent unacceptable levels of
pest damage by the most economical means and with the least
possible hazard to people, property, and the environment.
(12) "Pink bollworm" has the meaning assigned by
Section 74.002.
(13) "Regulated article" means an article carrying or
capable of carrying the boll weevil or pink bollworm, including
cotton plants, seed cotton, gin trash, other hosts, or mechanical
cotton harvesters.
<(14) "St. Lawrence Cotton Growers Boll Weevil Control
Zone" may include, subject to change as provided under this
subchapter, all or part of Glasscock, Reagan, Upton, south Midland,
or other counties.>
<(15) The pink bollworm eradication zone includes
Reeves and Pecos counties.>
SECTION 1.04. Subchapter D, Chapter 74, Agriculture Code, is
amended by adding Section 74.1021 to read as follows:
Sec. 74.1021. STATUTORY ZONES. (a) The Northern High
Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,
Castro, Floyd, Hale, Lamb, Parmer, Randall, and Swisher counties,
and other areas as proposed by the commissioner by rule for
inclusion in the zone and approved by referendum in the area to be
added.
(b) The Rolling Plains Central Eradication Zone consists of
Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,
Jones, King, Knox, Mitchell, Nolan, Palo Pinto, Scurry,
Shackelford, Stephens, Stonewall, Throckmorton, and Young counties;
all land in Archer County south of a line following Farm-to-Market
Road 422 commencing at the Baylor County line running east to the
intersection of Farm-to-Market Road 210, continuing east to the
intersection of State Highway 25, and continuing east to the Clay
County line; all land in Borden County east of a line seven miles
west of the Scurry County line running south from the Garza County
line to the Howard County line; and all land in Taylor County east
of U.S. Highway 83 from a point commencing at the intersection of
U.S. Highway 83 and the south Taylor County line, north to the town
of Bradshaw; thence north of Farm-to-Market Road 1086, as the
farm-to-market road proceeds west and north to the intersection of
the Farm-to-Market Road 1086 and U.S. Highway 277, being all land
lying north of the farm-to-market road and west of U.S. Highway 277
from the intersection of Farm-to-Market Road 1086 and U.S. Highway
277 to the point where U.S. Highway 277 intersects the south
boundary line of Taylor County; all land in Brown County east of a
line following State Highway 279 to Brownwood and continuing along
U.S. Highway 377 south to the McCulloch County line; and other
areas as proposed by the commissioner by rule for inclusion in the
zone and approved by referendum in the area to be added.
(c) The St. Lawrence Eradication Zone consists of that area
of Midland County south of a line 15 miles south of Interstate 20
running from the Ector County line east to the Glasscock County
line; Glasscock, Reagan, and Upton counties; and other areas as
proposed by the commissioner by rule for inclusion in the zone and
approved by referendum in the area to be added.
(d) The South Texas Winter Garden Eradication Zone consists
of Aransas, Atascosa, Austin, Bee, Bexar, Calhoun, Colorado,
DeWitt, Dimmit, Duval, Frio, Goliad, Jackson, Jim Wells, Karnes,
Kinney, Kleberg, La Salle, Lavaca, Live Oak, Matagorda, McMullen,
Medina, Nueces, Refugio, San Patricio, Uvalde, Victoria, Wharton,
Wilson, and Zavala counties, and other areas as proposed by the
commissioner by rule for inclusion in the zone and approved by
referendum in the area to be added. Brazoria and Fort Bend
counties are included in the South Texas Winter Garden Eradication
Zone only for purposes of the repayment of debt existing on
April 30, 1997, and those counties may not be included in the zone
for any other purpose unless the commissioner by rule proposes that
an area be included in the zone and the proposal is approved by
referendum in the area to be added.
(e) The Southern High Plains-Caprock Eradication Zone
consists of Andrews, Cochran, Crosby, Dawson, Dickens, Gaines,
Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin, Motley, Terry,
and Yoakum counties; all land in Borden County lying west of a line
seven miles west of the Scurry County line running south from the
Garza County line to the Howard County line; that area of Midland
County north of a line 15 miles south of Interstate 20 running from
the Ector County line east to the Glasscock County line; and other
areas as proposed by the commissioner by rule for inclusion in the
zone and approved by referendum in the area to be added.
(f) The Southern Rolling Plains Eradication Zone consists of
Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and
Tom Green counties, all land in Taylor County lying west of U.S.
Highway 83 from a point commencing at the intersection of U.S.
Highway 83 and the south Taylor County line, north of the town of
Bradshaw; thence all the land lying south of Farm-to-Market Road
1086, as the farm-to-market road proceeds west and north to its
intersection with U.S. Highway 277, being all land lying south of
the farm-to-market road and east of U.S. Highway 277 from the
intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to
the point where U.S. Highway 277 intersects the south boundary line
of Taylor County, and other areas as proposed by the commissioner
by rule for inclusion in the zone and approved by referendum in the
area to be added.
SECTION 1.05. Subchapter D, Chapter 74, is amended by adding
Sections 74.1041 and 74.1042 to read as follows:
Sec. 74.1041. INTERIM ADVISORY GROUPS. (a) The
commissioner may designate an interim advisory group for each
geographic region of the state that is to be considered by the
commissioner for inclusion in an eradication zone. The groups
shall gather advice, input, and guidance from cotton growers from
each area of the state concerning the interest in and concerns
about the implementation of this subchapter.
(b) Each interim advisory group shall consider and make
recommendations to the commissioner concerning:
(1) the geographic boundaries for the proposed
eradication zone;
(2) the amount of local interest in operating an
eradication program;
(3) the basis and amount of an assessment necessary to
support an eradication program;
(4) the need to restructure any pre-existing debt from
prior eradication activities;
(5) crediting a cotton grower's 1996 assessment
payments to any future assessment; and
(6) any other matter requested by the commissioner.
(c) Each interim advisory group shall include at least one
cotton grower from each county and other persons as determined by
the commissioner.
Sec. 74.1042. CREATION OF NONSTATUTORY ERADICATION ZONES.
(a) The commissioner may by rule designate an area of the state as
a proposed eradication zone as long as the area is not within a
statutory zone under Section 74.1021 that has approved an
eradication program by referendum.
(b) The commissioner may hold a public hearing within the
proposed eradication zone to discuss the proposed geographic
boundaries of the zone. The public hearing may include any other
topics allowed under this subchapter.
(c) After the adoption of a rule under Subsection (a), the
commissioner shall conduct a referendum under Section 74.105.
SECTION 1.06. Subsections (a), (d), (e), and (f), Section
74.105, Agriculture Code, are amended to read as follows:
(a) The commissioner <organization certified under Section
74.104 of this code or the foundation> shall conduct a referendum
in each proposed eradication zone to determine whether cotton
growers desire to establish an <official boll weevil or pink
bollworm> eradication zone.
(d) If a referendum to establish an eradication zone fails,
the concurrent election of a board member <members> from the
proposed eradication zone under Section 74.106 <of this code> has
no effect, and the commissioner shall appoint a representative to
the board from the area.
(e) The <organization certified under Section 74.104 of this
code or the> foundation<, as appropriate,> may request the
commissioner to call additional referenda in a proposed eradication
zone in which a referendum has failed. An additional eradication
zone referendum and concurrent board election may be held no
earlier than the 121st day after the date of the last referendum.
(f) After the passage of any referendum, the eligible voters
shall be allowed, by subsequent referenda <periodically as
specified in the initial referendum>, to vote on whether to
continue their assessments. All of the requirements for an initial
referendum must be met in subsequent referenda.
SECTION 1.07. Section 74.106, Agriculture Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsection (h) to
read as follows:
(a) The initial election for board members from a proposed
eradication zone shall be held concurrently with an eradication
zone referendum held under Section 74.105 <of this code>. Each
eradication zone shall be represented on the board and shall remain
represented on the board until eradication operations are concluded
and all debt of the eradication zone is paid.
(c) A cotton grower who is eligible to vote in a referendum
or election under this subchapter is eligible to be a candidate for
and member of the board if the person has at least seven years of
experience as a cotton grower and otherwise meets the
qualifications for the position.
(d) A cotton grower who wants to be a candidate for the
board must meet the qualifications for board membership and file an
application with the <secretary of the foundation or, before
certification of the organization under Section 74.104 of this
code, the> commissioner. The application must be:
(1) filed not later than the 30th day before the date
set for the board election;
(2) on a form approved by the commissioner; and
(3) signed by at least 10 cotton growers who are
eligible to vote in the board election.
(h) Each board member shall be sworn into office by a
representative of the commissioner by taking the oath of office
required for elected officers of the state.
SECTION 1.08. Section 74.107, Agriculture Code, is amended to
read as follows:
Sec. 74.107. COMPOSITION OF BOARD. (a) The board shall be
composed of members elected from each statutory eradication zone
established and validated by referendum, members appointed by the
commissioner from other cotton growing areas of the state, and
members appointed by the commissioner under Subsection (b). The
commissioner shall appoint an initial board composed of 15 members.
Except as provided by Subsection (b), the term of each board
position may not exceed four years <High Plains Boll Weevil
Suppression Program Area and the St. Lawrence Cotton Growers Boll
Weevil Control Zone are separate zones for the purposes of boll
weevil eradication; however, an area in the St. Lawrence Cotton
Growers Boll Weevil Control Zone may be assigned to another zone as
provided by this subchapter>.
(b) In making appointments under this section, the
commissioner shall appoint the following for four-year terms:
(1) an agricultural lender;
(2) an independent entomologist or an integrated pest
management specialist;
(3) two representatives from industries allied with
cotton production; and
(4) a representative from the pest control industry.
(c) The commissioner <board, with the commissioner's
approval,> may change the number of board positions or the
eradication zone representation on the board to accomodate changes
in the number of eradication zones. A change under this subsection
may not contravene another provision of this subchapter.
(d) A vacancy on the board shall be filled by appointment by
the commissioner for the unexpired term.
(e) On 30 days' notice and opportunity for hearing, the
commissioner may replace any unelected board member of the
foundation.
SECTION 1.09. Section 74.108, Agriculture Code, is amended to
read as follows:
Sec. 74.108. <BOARD> POWERS OF BOARD AND COMMISSIONER.
(a) The board may:
(1) <conduct board elections;>
<(2) conduct eradication zone referenda;>
<(3) conduct assessment referenda under Section 74.113
of this code;>
<(4)> conduct programs consistent with the declaration
of policy stated in Section 74.101 <of this code>;
(2) <(5)> accept, as necessary to implement this
chapter, gifts and grants;
(3) <(6)> borrow money, with the approval of the
commissioner, as necessary to execute this chapter;
(4) <(7)> take other action and exercise other
authority as necessary to execute any act authorized by this
subchapter or the Texas Non-Profit Corporation Act (Article
1396-1.01 et seq., Vernon's Texas Civil Statutes); and
(5) <(8)> form an advisory committee composed of
individuals from this state, other states, or other countries and
change membership on the committee, as necessary. Any advisory
committee created under this subdivision for the purpose of
establishing treatment methods shall include among its members
persons with knowledge of the effects of different treatments on
the health of agricultural workers, the local population, and the
ecosystem, including but not limited to the effects of a particular
method of treatment on beneficial organisms and wildlife, the
potential for secondary infestations from nontarget pests, and the
potential for pest resistance to particular methods of treatment.
(b) The commissioner <board> may by rule add an area to an
eradication zone if:
(1) cotton production has begun or could begin
<begins> in the area;
(2) the area is adjacent to an eradication zone or is
in an area with biological characteristics similar to the
eradication zone; and
(3) the addition is approved in a referendum held in
the area.
(c) The board must adopt a procurement policy, subject to
approval by the commissioner, outlining the procedures to be used
in purchasing <may initiate the boll weevil eradication program in
an area added to an eradication zone and may assess cotton growers
in the area added to the eradication zone to ensure the integrity
and success of the eradication program. The board shall provide
notice of intent to initiate eradication and collect assessments
through informational meetings in the affected area not later than
60 days before the date recognized by the board as the average
planting date for the area>.
<(d) The board may not reduce the area of the High Plains
Boll Weevil Suppression Program Area.>
SECTION 1.10. Section 74.109, Agriculture Code, is amended by
amending Subsections (a), (d), (e), (g), and (h) and adding
Subsections (i) and (j) to read as follows:
(a) The board shall make available to the state auditor for
inspection at an annual independent audit all books, records of
account, and minutes of proceedings maintained by the foundation.
The financial transactions of the foundation are subject to audit
by the state auditor in accordance with Chapter 321, Government
Code.
(d) The foundation and the board are state agencies for the
following purposes only:
(1) exemption from taxation including exemption from
sales and use taxes, vehicle registration fees, and taxes under
Chapter 152, Tax Code; and
(2) indemnification under Chapter 104, Civil Practice
and Remedies Code.
(e) Funds collected by the foundation are not state funds
and are not required to be deposited in the state treasury. The
foundation shall deposit all money collected under this subchapter
in a bank or other depository approved by the commissioner <board>.
(g) The board shall collect data on the type and quantity of
pesticides used in accordance with this subchapter. The data shall
be filed with the commissioner.
(h) All revenue collected under this subchapter shall be
used solely to finance programs approved by the commissioner as
consistent with this subchapter <and applicable provisions of the
constitution>.
(i) The foundation is subject to the requirements of:
(1) the open meetings law, Chapter 551, Government
Code;
(2) the open records law, Chapter 552, Government
Code; and
(3) the administrative procedure law, Chapter 2001,
Government Code.
(j) A board member may not vote on any matter in which the
member has a direct pecuniary interest. A board member is subject
to the same restrictions as a local public official under Chapter
171, Local Government Code.
SECTION 1.11. Section 74.110, Agriculture Code, is amended to
read as follows:
Sec. 74.110. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
EMPLOYEES AND APPLICATORS. (a) Except for instances of gross
negligence, individual criminal actions, or acts of dishonesty, the
foundation, the foundation's members, directors, officers, and
employees, and applicators are not individually liable to a cotton
grower or other person for:
(1) errors in judgment;
(2) mistakes; or
(3) other acts or omissions.
(b) A foundation member, officer, or employee or an
applicator is not individually liable for an act or omission of
another foundation member, officer, or employee or of an
applicator.
(c) Except as provided by Subsection (d), an applicator is
liable to a person for death, damage, or injury to a person or the
person's property proximately caused by the applicator while acting
to further or support eradication or diapause efforts undertaken
pursuant to this subchapter if the death, damage, or injury
resulted from:
(1) any negligent act or omission in the application,
loading, handling, storage, or use of pesticides or other
chemicals;
(2) any act taken with specific intent to wrongfully
injure the person or the person's property; or
(3) any act done with conscious indifference or
reckless disregard for the safety of others.
(d) An applicator is immune from civil liability for any act
or omission resulting in death, damage, or injury if the
applicator:
(1) was acting pursuant to reasonably precise
directions, instructions, or specifications provided by the
foundation;
(2) complied with those directions, instructions, or
specifications; and
(3) did not actually know of any risks of harm to the
person injured or property damaged before the time of the act or
omission in question that were not known to the foundation at that
time.
(e) The foundation shall have liability coverage in effect
for any eradication or diapause efforts for which it uses
applicators. The coverage shall apply to acts and omissions of the
foundation and volunteers and be in the amount of at least $500,000
for each single occurrence of death, bodily injury, or property
damage.
(f) In this section, "applicator" means an individual or
other person that is not a member, director, officer, or employee
of the foundation and that contracts with the foundation to apply
pesticides or other chemicals using aircraft or other equipment to
further or support the eradication or diapause efforts undertaken
pursuant to this subchapter.
(g) Nothing in this section shall be construed to mean that
an applicator or other person cannot be held responsible for
violations of state and federal pesticide and herbicide laws and
regulations adopted thereunder.
SECTION 1.12. Subsections (f), (g), (h), and (i), Section
74.112, Agriculture Code, are amended to read as follows:
(f) If 40 percent or more of the producers eligible to vote
within a zone participating in the program present to the
commissioner <foundation> a petition calling for a referendum of
the qualified voters on the proposition of discontinuing the
program, the commissioner <board> shall conduct a referendum for
that purpose.
(g) The commissioner <board> shall give notice of the
referendum, the referendum shall be conducted, and the results
shall be declared in the manner provided by law for the original
referendum and election, with any necessary exceptions provided by
rule of the commissioner.
(h) The commissioner <board> shall conduct the referendum
within 90 days of the date of filing of the petition, except that
no such referendum may be held within two years of any other
referendum in the eradication zone pertaining to establishing or
discontinuing the eradication zone.
(i) Approval of the proposition is by the same vote as
required in a referendum under Section 74.114(g) <majority vote of
those voting>. If the proposition is approved, the eradication
program is abolished and the eradication zone ceases to exist on
payment of all debts of the eradication zone.
SECTION 1.13. Section 74.113, Agriculture Code, is amended to
read as follows:
Sec. 74.113. ASSESSMENT REFERENDA. (a) The commissioner
<foundation> shall propose <determine> the assessment needed in
each eradication zone to ensure the stability of the cotton
industry by eradicating the public nuisance caused by the boll
weevil and the pink bollworm <accomplish the following goal: to
finance programs of marketing, promotion, research, and education
calculated to increase the production and use of cotton>.
(b) The commissioner <foundation> shall propose in a
referendum the:
(1) maximum assessment to be paid by cotton growers
having production in the eradication zone; and
(2) time for which the assessment will be made.
(c) With the commissioner's approval, the <The> foundation
may make an assessment in an eradication zone at a level less than
the assessment approved by the referendum.
(d) The commissioner <foundation> shall conduct an
assessment referendum under the procedures provided by Section
74.114 <of this code>.
(e) If an assessment referendum is approved, the foundation
may collect the assessment.
(f) An assessment levied on cotton growers in an eradication
zone may be applied only to:
(1) eradication in that zone;
(2) the foundation's operating costs, including
payments on debt incurred for a foundation activity, except that
the funds of one zone may not be used to pay another zone's bank
loans or debts; and
(3) the conducting of other programs consistent with
the declaration of policy stated in Section 74.101 <of this code>.
(g) The assessment shall be adequate and necessary to
achieve the goals of this subchapter. The amount of the assessment
shall be determined by criteria established by the commissioner,
including:
(1) the extent of infestation;
(2) the amount of acreage planted;
(3) historical efforts to eradicate;
(4) the growing season;
(5) epidemiology;
(6) historical weather conditions; and
(7) the costs and financing of the program.
(h) The commissioner shall give notice of and hold a public
hearing within the eradication zone regarding the proposed
assessment referendum. Before the referendum, the commissioner
shall review and approve:
(1) the amount of the assessment;
(2) the basis for the assessment;
(3) the time for payment of the assessment;
(4) the method of allocation of the assessment among
cotton growers;
(5) the restructuring and repayment schedule for any
pre-existing debt; and
(6) the amount of debt to be incurred in the
eradication zone.
(i) The commissioner shall on a zone-by-zone basis set the
date on which assessments are due and payable.
(j) Each year, the commissioner shall review and approve the
foundation's operating budget.
(k) The foundation shall prepare and mail billing statements
to each cotton grower subject to the assessment that state the
amount due and the due date. The assessments shall be paid in cash
to the foundation.
SECTION 1.14. Subsections (a), (c), (d), (f), (h), and (i),
Section 74.114, Agriculture Code, are amended to read as follows:
(a) The commissioner <foundation> shall conduct a referendum
or board election authorized under this subchapter <its
jurisdiction>. At the end of each four-year period in which an
eradication program has been operational in a zone, the
commissioner shall hold a referendum in the zone on the
continuation of the eradication program. The referendum shall be
held at the same time as the election of a board member from the
zone. Approval of the referendum on continuation is by a majority
of those voting in the referendum.
(c) The commissioner shall adopt rules for voting in <the
initial> board elections <election> and <initial> referenda to
establish or continue eradication zones. <The board shall adopt
rules for voting in other referenda and board elections.> Rules
adopted under this subsection must include provisions for
determining:
(1) who is a cotton grower eligible to vote in an
election or referendum;
(2) whether a board member is elected by a plurality
or a majority of the votes cast; and
(3) the area from which each board member is elected.
(d) A cotton grower having cotton production in a proposed
or established eradication zone is entitled to:
(1) vote in a referendum concerning the eradication
zone; and
(2) elect board members to represent the eradication
zone.
(f) Ballots in a referendum or board election shall be
mailed directly to a central location, to be <initially> determined
by the commissioner <and later determined by the board>. A cotton
grower eligible to vote in a referendum or board election who has
not received a ballot from the commissioner, foundation, or another
source shall be offered the option of requesting a ballot by mail
or obtaining a ballot at the office of the county agent of the
Texas Agricultural Extension Service or a government office
distributing ballots in a county in the proposed or established
zone in which the referendum or board election is conducted.
(h) If a referendum under this subchapter is not approved,
the <foundation may with the approval of the> commissioner may
conduct another referendum. A referendum under this subsection may
not be held before the 121st day after the date on which the last
referendum on the same issue was held.
(i) A public hearing regarding the proposed eradication
program, including information regarding regulations to be
promulgated by the <foundation and the> commissioner, may <shall>
be held by the commissioner <foundation> in each of several
locations within each boll weevil or pink bollworm eradication
zone. The area posted for each hearing shall include no more than
six contiguous counties that have cotton production at the time of
the hearing.
SECTION 1.15. Section 74.115, Agriculture Code, is amended to
read as follows:
Sec. 74.115. FAILURE TO PAY ASSESSMENTS. (a) A cotton
grower who fails to pay an assessment levied under this subchapter
when due may be subject, after reasonable notice and opportunity
for hearing, to a penalty set by the commissioner <board>. The
amount of the penalty shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, and extent of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) the economic situation of the cotton grower; and
(5) any other matter that justice may require.
(b) <A cotton grower who fails to pay all assessments and
penalties before the 10th day after receiving notice of the
delinquency shall destroy any cotton growing on the grower's
acreage that is subject to the assessment. Cotton plants that are
not destroyed are a public nuisance, and, on recommendation of the
foundation, the department shall follow the procedures for
destruction of host plants provided by Subchapters A and B of this
chapter, including procedures for reimbursement by the grower of
costs required for destruction. The department may apply to a
district court with jurisdiction in the county in which the public
nuisance is located to have the nuisance condemned and destroyed.
Injunctive relief available to the department under this subchapter
is in addition to any other legal remedy available to the
department. The department is not required to file a bond in a
proceeding under this subsection.>
<(c)> In addition to any other remedies for the collection
of assessments and penalties, the department may place and perfect
an assessment <a> lien on cotton produced and harvested that year
from the acreage that is subject to the assessment that is due and
unpaid. A buyer of cotton takes free of the assessment lien if the
buyer has not received written or actual notice of the assessment
lien <from the department> or if the buyer has paid for the cotton
by a check on which the department is named as a joint payee. In
an action to enforce the assessment lien, the burden is on the
department to prove that the buyer of cotton received written or
actual notice of the assessment lien. A buyer of cotton other than
a person buying cotton from the cotton grower takes free of the
assessment lien.
SECTION 1.16. Section 74.116, Agriculture Code, is amended to
read as follows:
Sec. 74.116. EXEMPTION FROM ASSESSMENT PENALTIES. (a) The
commissioner by rule shall adopt criteria for exemption from
payment of assessment penalties under Section 74.115 of this code a
cotton grower for whom payment would impose an undue financial
burden.
(b) A cotton grower may not qualify for an exemption under
this section for a year in which the amount computed by subtracting
the assessments and penalties due under this subchapter from the
cotton grower's net income subject to federal income taxation in
the previous year is greater than $15,000.
(c) A cotton grower who applies for an exemption under this
section must use a form prescribed by the commissioner. A cotton
grower must file a separate application form for each year for
which the cotton grower claims an exemption.
(d) The <commissioner shall forward to the foundation a
completed exemption application form. The foundation shall
determine whether the applicant qualifies for an exemption and
shall notify the commissioner of its determination.>
<(e) On notification by the foundation that a cotton grower
qualifies for an exemption, the commissioner shall exempt the
cotton grower from payment of an assessment penalty under Section
74.115 of this code.>
<(f) On the foundation's recommendation, the> commissioner
may establish a payment plan for a cotton grower applying for an
exemption under this section.
(e) <(g)> The commissioner shall promptly notify an
applicant of the <foundation's> determination regarding the
applicant's request for an exemption.
(f) <(h)> If an exemption under this section is denied,
assessments and penalties for the year for which the application is
made are due on the later of:
(1) the date on which they would be due in the absence
of an application for exemption; or
(2) 30 days after the date the applicant receives
notice of the denial.
(g) In addition to the authority provided under Subsections
(a)-(f), the commissioner may, on recommendation of the foundation,
reduce or waive assessment penalties as appropriate.
SECTION 1.17. Section 74.117, Agriculture Code, is amended to
read as follows:
Sec. 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
INSPECTIONS. The department, the foundation, or a designated
representative of either entity may enter cotton fields or other
premises to carry out the purposes of this subchapter and
Subchapters A and B of this chapter, which include the treatment
and<,> monitoring<, and destruction> of growing cotton or other
host plants. The department, the foundation, or a designated
representative of either entity may inspect fields or premises in
this state for the purpose of determining whether the property is
infested with the boll weevil or the pink bollworm. An inspection
must be conducted during reasonable daylight hours. The
commissioner shall adopt rules that give notice to the cotton
grower of the intent of the department, the foundation, or a
designated representative of either entity to enter the cotton
grower's fields or premises to carry out the purposes of this
subchapter and Subchapters A and B of this chapter.
SECTION 1.18. Subsections (b), (c), and (d), Section 74.120,
Agriculture Code, are amended to read as follows:
(b) Rules adopted under this section shall establish the
criteria by which the foundation develops its <rules,>
procedures<,> and methods of treatment, which shall <rules>:
(1) establish a methodology for determining when boll
weevil or pink bollworm population levels have reached economic
significance;
(2) establish an effective treatment regimen that
seeks to provide the least possible risk to workers, the public,
and the environment;
(3) minimize the effects of the use of pesticides on
long-term control methods, including but not limited to the effect
a particular pesticide may have on biological controls;
(4) establish methods for monitoring boll weevils,
pink bollworms, and secondary pests;
(5) establish methods for verifying pesticide use
reduction; and
(6) consider the acute and chronic toxicity of
particular pesticides and the quantity of particular pesticides
needed. Eradication zone treatment plans may take into account the
potential for the use of smaller quantities of more toxic
substances to result in fewer health and environmental risks than
larger quantities of less toxic substances.
(c) The commissioner <foundation and the department> may
adopt other reasonable rules necessary to carry out the purposes of
this subchapter and Subchapters A and B of this chapter. All
rules issued under this subchapter must be adopted and published in
accordance with state requirements. <Rules adopted by the
foundation under this section shall be consistent with rules
adopted by the commissioner under this subchapter.>
(d) An advisory committee may <shall> be established to
assist the commissioner in the development of rules adopted under
this section. The advisory committee may <shall> be composed of:
(1) three cotton producers from different regions of
the state, appointed by the commissioner;
(2) three entomologists with knowledge of the
principles of integrated pest management, at least one of whom has
special knowledge of nonchemical or biological pest control,
appointed by the commissioner;
(3) two individuals with experience representing the
general interests of the environment, appointed by the chair of the
Texas Natural Resource Conservation Commission;
(4) an environmental engineer with expert knowledge of
ground and surface water protection from contamination, appointed
by the chair of the Texas Natural Resource Conservation Commission;
(5) a toxicologist, appointed by the Commissioner of
Health; and
(6) an individual with experience representing the
general interests of consumers and an individual with experience
representing the general interests of agricultural workers,
appointed by the governor.
SECTION 1.19. Section 74.121, Agriculture Code, is amended to
read as follows:
Sec. 74.121. REPORTS. Each person in an active eradication
zone growing cotton in this state shall furnish to the foundation
on forms supplied by the foundation information that the foundation
requires concerning the size and location of all commercial cotton
fields and of noncommercial patches of cotton grown for ornamental
or other purposes. The foundation may provide an incentive for
early and timely reporting.
SECTION 1.20. Section 74.124, Agriculture Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) The foundation may carry out programs to destroy and
eliminate the boll weevil and the pink bollworm in this state by
cooperating through written agreements, as approved by the
commissioner, with:
(1) an agency of the federal government;
(2) a state agency;
(3) an appropriate agency of a foreign country
contiguous to the affected area to the extent allowed by federal
law;
(4) a person who is engaged in growing, processing,
marketing, or handling cotton; or
(5) a group of persons in this state involved in
similar programs to carry out the purposes of this subchapter.
(c) An agency, person, or group of persons that enters into
an agreement with the foundation under Subsection (a) to carry out
programs in an eradication zone may not enter into an agreement
with the foundation to carry out programs in another eradication
zone. This subsection does not preclude the sharing of technical
information between an agency, person, or group of persons and the
foundation.
SECTION 1.21. Section 74.125, Agriculture Code, is amended to
read as follows:
Sec. 74.125. ORGANIC PRODUCERS. (a) The <board, in
cooperation with the> commissioner<,> shall develop rules and
procedures to:
(1) protect the eligibility of organic producers to be
certified by the commissioner;
(2) ensure that organic and transitional certification
by the commissioner continue to meet national certification
standards in order for organic cotton to maintain international
marketability; and
(3) in all events maintain the effectiveness of the
boll weevil or pink bollworm eradication program administered under
this subchapter.
(b) The board may not treat or require treatment of organic
cotton fields with chemicals that are not approved for use on
certified organic cotton. Plow-up may be required as an
alternative to chemicals. Rules <In the rules> adopted under
Subsection (a)<, the board> may provide indemnity for the organic
producers for reasonable losses that result from a prohibition of
production of organic cotton or from any requirement of destruction
of organic cotton. If time is reasonably available for the
production of an economically feasible alternative crop, the board
may require mitigation of losses with the production of an
alternative crop.
SECTION 1.22. Subsection (c), Section 74.126, Agriculture
Code, is amended to read as follows:
(c) If the commissioner <or the foundation> determines that
a violation of this subchapter or a rule adopted under this
subchapter has occurred, the commissioner <or the foundation> may
request that the attorney general or the county or district
attorney of the county in which the alleged violation occurred or
is occurring file suit for civil, injunctive, and/or other
appropriate relief.
SECTION 1.23. Subchapter D, Chapter 74, Agriculture Code, is
amended by adding Sections 74.128 and 74.129 to read as follows:
Sec. 74.128. ANNUAL REPORT. The board shall issue to the
commissioner and the appropriate oversight committee in the house
of representatives an annual report detailing its efforts to carry
out the purposes of this subchapter.
Sec. 74.129. EXEMPTION FROM EXECUTION. All payments,
contributions, and funds received or held by the foundation under
this subchapter are exempt from garnishment, attachment, execution,
or other seizure, state and local taxation, levies, sales, and any
other process and are unassignable.
SECTION 1.24. (a) All agreements made and obligations
incurred by the Texas Boll Weevil Eradication Foundation, Inc.,
before the effective date of this Act are validated, ratified, and
confirmed. The foundation's members, directors, officers,
employees, and agents are not individually liable for, or in
connection with, any agreement or obligation validated under this
section.
(b) Except for instances of gross negligence, individual
criminal actions, or acts of dishonesty, the foundation's members,
directors, officers, and employees are not individually liable to a
cotton grower or other person for errors in judgment, mistakes, or
other acts or omissions made or occurring before the effective date
of this Act under the authority of Subchapter D, Chapter 74,
Agriculture Code, as originally enacted or subsequently amended.
(c) This section does not make any obligation validated,
ratified, or confirmed under this section a debt of this state.
SECTION 1.25. (a) Assessments approved on February 28, 1994,
for the Southern Rolling Plains Boll Weevil Eradication Zone, on
December 1, 1994, and August 2, 1996, for the Central Rolling
Plains Boll Weevil Eradication Zone, and on February 16, 1995, for
the South Texas/Winter Garden Boll Weevil Eradication Zone, and all
agreements and obligations of the Texas Boll Weevil Eradication
Foundation, Inc., related to the statutory zones made or approved
before the effective date of this Act are validated, ratified, and
confirmed.
(b) Not later than one year after the effective date of this
Act, the commissioner of agriculture shall hold a retention
referendum and board election in each statutory zone to determine
the continued necessity of an eradication program under Section
74.114, Agriculture Code, as amended by this Act. The retention
referendum will be determined by a vote of the majority of the
cotton growers.
(c) The commissioner of agriculture may, in each statutory
zone, solicit public comment through public hearings to determine
whether to divide any of the statutory zones as defined in Section
74.1021, Agriculture Code, as added by this Act. After considering
public opinion, the commissioner may by rule divide a statutory
zone and fairly apportion any debt to each portion of the divided
zone.
SECTION 1.26. The Texas Boll Weevil Eradication Foundation,
Inc., shall, not later than 30 days after the effective date of
this Act, take whatever steps are necessary to adjust the
composition of its board of directors to permit the commissioner of
agriculture to appoint board members in compliance with Section
74.107, Agriculture Code, as amended by this Act. If the
foundation does not comply with Section 74.107, Agriculture Code,
as amended by this Act, the commissioner may cancel the
designations and designate another nonprofit entity that meets the
qualifications of Section 74.107, Agriculture Code, as amended by
this Act. In the interim, the current directors and officers of
the foundation shall remain in office and carry out the
foundation's duties under Subchapter D, Chapter 74, Agriculture
Code, as amended by this Act.
SECTION 1.27. Sections 74.103 and 74.104, Agriculture Code,
are repealed.
ARTICLE 2
SECTION 2.01. Sections 74.105(b) and (c), Agriculture Code,
are reenacted to read as follows:
(b) Eradication zone referenda shall be conducted under the
procedures provided by Section 74.114 of this code.
(c) A proposed eradication zone referendum ballot must
include or be accompanied by information about the proposed
eradication zone, including:
(1) a statement of the purpose of the boll weevil or
pink bollworm eradication program;
(2) the geographic area included in the proposed
eradication zone;
(3) a general summary of rules adopted by the
commissioner under Sections 74.114, 74.118, and 74.120 of this
code, including a description of:
(A) cotton grower responsibilities; and
(B) penalties for noncompliance with rules
adopted under this subchapter; and
(4) an address and toll-free telephone number that a
cotton grower may use to request more information about the
referendum or the boll weevil or pink bollworm eradication program.
SECTION 2.02. Sections 74.106(b), (e), (f), and (g),
Agriculture Code, are reenacted to read as follows:
(b) A board election shall be conducted under the procedures
provided by this section and Section 74.114 of this code.
(e) On receipt of an application and verification that the
application meets the requirements of Subsection (d) of this
section, an applicant's name shall be placed on the ballot for the
board election.
(f) An eligible voter may vote for a cotton grower whose
name does not appear on the official ballot by writing that
person's name on the ballot.
(g) A board election must be preceded by at least 45 days
notice published in one or more newspapers published and
distributed in the proposed or established eradication zone. The
notice shall be published not less than once a week for three
consecutive weeks. Not later than the 45th day before the date of
the election, direct written notice of the election shall be given
to each county agent in the eradication zone.
SECTION 2.03. Sections 74.109(b), (c), and (f), Agriculture
Code, are reenacted to read as follows:
(b) Not later than the 45th day after the last day of the
fiscal year, the board shall submit to the commissioner a report
itemizing all income and expenditures and describing all activities
of the foundation during the fiscal year.
(c) The foundation shall provide fidelity bonds in amounts
determined by the board for employees or agents who handle funds
for the foundation.
(f) The foundation is a governmental unit under Section
101.001, Civil Practice and Remedies Code, and is entitled to
governmental immunity. A tort claim against the foundation must be
made under Chapter 101, Civil Practice and Remedies Code.
SECTION 2.04. Section 74.111, Agriculture Code, is reenacted
to read as follows:
Sec. 74.111. BOARD MEMBER COMPENSATION. Board members serve
without compensation but are entitled to reimbursement for
reasonable and necessary expenses incurred in the discharge of
their duties.
SECTION 2.05. Sections 74.112(a)-(e), Agriculture Code, are
reenacted to read as follows:
(a) On the determination by the foundation that the boll
weevil eradication program has been completed in all eradication
zones established under this subchapter for boll weevil control and
the pink bollworm eradication program has been completed in any
eradication zone established under this chapter for pink bollworm
control, the foundation shall provide notice of such completion to
the commissioner along with a request for discontinuance of the
eradication program and collection of the assessment. Any such
request shall include documentation supporting the eradication of
the boll weevil in all eradication zones established for boll
weevil eradication or pink bollworm in any eradication zone
established for pink bollworm eradication and a plan for
discontinuance of the program and assessment.
(b) The commissioner shall determine whether or not the
further elimination of the boll weevil or pink bollworm is
necessary in the eradication zones and approve or disapprove
discontinuance of the foundation and the plan for dissolution.
(c) On completion of dissolution, the foundation shall file
a final report with the commissioner, including a financial report,
and submit all remaining funds into the trust of the commissioner.
Final books of the foundation shall be filed with the commissioner
and are subject to audit by the department.
(d) The commissioner shall pay from the foundation's
remaining funds all of the foundation's outstanding obligations.
(e) Funds remaining after payment under Subsection (d) of
this section shall be returned to contributing cotton growers on a
pro rata basis.
SECTION 2.06. Sections 74.114(b), (e), (g), and (j),
Agriculture Code, are reenacted to read as follows:
(b) The foundation shall bear all expenses incurred in
conducting a referendum or board election.
(e) An eligible cotton grower may vote only once in a
referendum or board election.
(g) A referendum is approved if:
(1) at least two-thirds of those voting vote in favor
of the referendum; or
(2) those voting in favor of the referendum farm more
than 50 percent, as determined by the commissioner, of the cotton
acreage in the relevant eradication zone.
(j) Individual voter information, including an individual's
vote in a referendum or board election conducted under this
section, is confidential and is not subject to disclosure under the
open records law, Chapter 552, Government Code.
SECTION 2.07. Section 74.118, Agriculture Code, is reenacted
to read as follows:
Sec. 74.118. AUTHORITY TO PROHIBIT PLANTING OF COTTON AND
REQUIRE PARTICIPATION IN ERADICATION PROGRAM. (a) The commissioner
may adopt reasonable rules regarding areas where cotton may not be
planted in an eradication zone if there is reason to believe
planting will jeopardize the success of the program or present a
hazard to public health or safety.
(b) The commissioner may adopt rules prohibiting the
planting of noncommercial cotton in eradication zones and requiring
that all growers of commercial cotton in an eradication zone
participate in a boll weevil or pink bollworm eradication program
that includes cost sharing as required by the rules.
(c) Notice of prohibitions and requirements shall be given
by publication for one day each week for three successive weeks in
a newspaper having general circulation in the affected area.
(d) The commissioner may adopt a reasonable schedule of
penalty fees to be assessed against growers in a designated
eradication zone who do not meet the requirements of the rules
issued by the commissioner relating to reporting of acreage and
participation in cost sharing. The penalty fees adopted may not
exceed $50 per acre.
(e) If a grower fails to meet the requirements of rules
adopted by the commissioner, the commissioner may order the
destruction of cotton not in compliance with the rules. Costs
incurred by the commissioner in the destruction of cotton may be
assessed against the grower.
SECTION 2.08. Section 74.119, Agriculture Code, is reenacted
to read as follows:
Sec. 74.119. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The department
may destroy or treat volunteer or other noncommercial cotton and
establish procedures for the purchase and destruction of commercial
cotton in eradication zones if the department determines the action
is necessary to carry out the purposes of this subchapter. The
department is not liable to the owner or lessee for the destruction
of or injury to any cotton that was planted in an eradication zone
after publication of notice as provided by this subchapter. The
foundation is liable for the destruction of cotton if the cotton
was planted in an eradication zone before publication of the
notice.
SECTION 2.09. Section 74.120(a), Agriculture Code, is
reenacted to read as follows:
(a) The commissioner shall adopt rules to protect
individuals, livestock, wildlife, and honeybee colonies on any
premises in an eradication zone on which cotton plants are being
grown that have been or are being treated to eradicate the boll
weevil or the pink bollworm.
SECTION 2.10. Section 74.122, Agriculture Code, is reenacted
to read as follows:
Sec. 74.122. QUARANTINE. The department may adopt rules
relating to quarantining areas of this state that are infested with
the boll weevil or the pink bollworm. The rules must address the
storage of regulated articles and the movement of regulated
articles into and out of a quarantined area. The department may
also adopt rules governing the movement of regulated articles from
other states into this state if the articles are known to be
infested with the boll weevil or the pink bollworm.
SECTION 2.11. Section 74.123, Agriculture Code, is reenacted
to read as follows:
Sec. 74.123. DOCUMENTING REGULATED ARTICLES. To implement
this subchapter, the department may issue or authorize issuance of:
(1) a certificate that indicates that a regulated
article is not infested with the boll weevil or the pink bollworm;
and
(2) a permit that provides for the movement of a
regulated article to a restricted designation for limited handling,
use, or processing.
SECTION 2.12. Section 74.124(b), Agriculture Code, is
reenacted to read as follows:
(b) An agreement entered into under this section may provide
for cost sharing and for division of duties and responsibilities
under this subchapter and may include other provisions to carry out
the purposes of this subchapter.
SECTION 2.13. Sections 74.126(a) and (b), Agriculture Code,
are reenacted to read as follows:
(a) A person who violates this subchapter or a rule adopted
under this subchapter or who alters, forges, counterfeits, or uses
without authority a certificate, permit, or other document issued
under this subchapter or under a rule adopted under this subchapter
commits an offense.
(b) An offense under this section is a Class C misdemeanor.
SECTION 2.14. Section 74.127, Agriculture Code, is reenacted
to read as follows:
Sec. 74.127. SUNSET PROVISION. (a) The board is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the board is abolished
and this subchapter expires September 1, 2004.
(b) The commissioner may order the dissolution of the
foundation at any time the commissioner determines that the
purposes of this subchapter have been fulfilled or that the
foundation is inoperative and abandoned. Dissolution shall be
conducted in accordance with Section 74.112 of this code.
(c) If the foundation is abolished or the program
discontinued for any reason, assessments approved, levied, or
otherwise collectible on the date of abolishment remain valid as
necessary to pay the financial obligations of the foundation.
ARTICLE 3
SECTION 3.01. The importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in each house be suspended, and this rule is hereby suspended,
and that this Act take effect and be in force from and after its
passage, and it is so enacted.