DME S.B. 1814 75(R)BILL ANALYSIS


AGRICULTURE & LIVESTOCK
C.S.S.B. 1814
By: Duncan (Junell/Finnell/Seaman/Walker)
5-21-97
Committee Report (Substituted)

BACKGROUND 

The 73rd Legislature created the Official Cotton Growers' Boll Weevil
Eradication program. The constitutionality of that program was challenged
on several grounds by growers from the Rio Grande Valley and High Plains
zones. The court found the statute unconstitutional on the grounds that
the state's delegation of authority to a private entity was too broad and
inappropriate. S.B. 1814 addresses the court's eight-part test regarding
the appropriateness of such delegations primarily by prescribing a
heightened role for the Texas Department of Agriculture in the operation
of the program. This bill also addresses problems with the operation of
the program. Opportunities for grower input are provided through interim
advisory groups consisting of at least one grower from each county in an
eradication zone, which would report directly to the Commissioner of
Agriculture.  

The program is being updated to reflect other concerns. As a result of
climatic conditions last winter and the the effect of the court ruling on
the implementation of the program, the Texas Agricultural Extension
Service is predicting 1.5 to 3 times more boll weevils to emerge this
season than last season. Boll weevils damage cotton crops and pose a
significant threat to the welfare of a number of regions in Texas which
depend largely on cotton. In an effort to improve the existing official
cotton growers' boll weevil eradication program, this bill would include
the pink bollworm along with the boll weevil; give additional authority to
the Commissioner of Agriculture in managing eradication programs; create
new and expanded statutory zones for eradication; change the basis of
assessment of penalties on growers who fail to pay certain assessments;
and amend provisions regarding the composition of the board of directors
of the official cotton growers' boll weevil eradication foundation.   

PURPOSE

S.B. 1814 amends the current provisions regarding boll weevil eradication
programs to include pink bollworm eradication along with boll weevil
eradication, gives additional authority to the commissioner of agriculture
in managing eradication programs, creates new and expanded statutory zones
for eradication, changes the basis of assessment of penalties on growers
who fail to pay certain assessments; and amends provisions regarding the
composition of the board of directors of the official cotton growers' boll
weevil eradication foundation.     

RULEMAKING AUTHORITY

It is the Committee's opinion that this bill expressly grants additional
rulemaking authority to the commissioner of agriculture in SECTION 1.04
(Section 74.1021(a), (b), (c), (d), (e), and (f), Agriculture Code),
SECTION 1.05 (Section 74.1042(a), Agriculture Code), SECTION 1.09 (Section
74.108(b), Agriculture Code), SECTION 1.11 (Section 74.1095(a),
Agriculture Code),  SECTION 1.22 (Section 74.125(a), Agriculture Code),
SECTION 1.24 (Section 74.130(a), Agriculture Code), and SECTION 1.26(c). 

SECTION 1.13 (Section 74.112(g), Agriculture Code) and SECTION 1.19
(Section 74.120(c), Agriculture Code) do not expressly grant additional
rulemaking authority, but the existing rulemaking authority is transferred
to a new entity, the commissioner. SECTION 1.15 (Section 74.114(c),
Agriculture Code) expands the commissioner's rulemaking authority. 

SECTION BY SECTION ANALYSIS

ARTICLE 1
 
SECTION 1.01. Amends Section 74.101, Agriculture Code, to state that the
boll weevil and the pink bollworm are public nuisances and menaces to the
cotton industry and their eradication is a public necessity; provides
cotton-growing areas will be divided into zones to best utilize integrated
pest management programs; outlines the need for a quasi-governmental
entity that represents cotton growers and is under the supervision and
control of the commissioner to manage an eradication and suppression
program; describes the urgent public necessity to validate and ratify the
assessments, agreements, and obligations, of the Texas Boll Weevil
Eradication Foundation, Inc. related to certain statutory zones.  Sets
forth the intent of the legislature that the program utilize the best
available integrated pest management techniques.  Deletes language
regarding the previous purpose and necessity of the program. 

SECTION 1.02. Amends Chapter 74D, Agriculture Code, by adding Section
74.1011, as follows: 

Sec. 74.1011.  DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL ERADICATION.
Requires the Texas Boll Weevil Eradication Foundation, Inc., (foundation),
to be the recognized as the entity to plan, carry out, and operate
eradication and diapause programs under the supervision of the Texas
Department of Agriculture.  Sets forth provisions regarding termination of
the foundation's designation as the entity recognized to carry out boll
weevil eradication and the designation of a successor agent to the
foundation. 
 Specifies successor agent is responsible for obligations and liabilities
of the former  designated entity. 

SECTION 1.03. Amends Section 74.102, Agriculture Code, to redefine
"board," "cotton grower," "eradication," "eradication zone," and
"foundation", and defines "pink bollworm."  Deletes Subdivisions (9) and
(14) regarding the "High Plains Boll Weevil Suppression Program Area" and
"St. Lawrence Cotton Growers Boll Weevil Control Zone," and deletes
Subdivision (15) regarding the pink bollworm eradication zone.  

SECTION 1.04. Amends Chapter 74D, Agriculture Code, by adding Section
74.1021, as follows: 

Sec. 74.1021.   STATUTORY ZONES. Sets forth provisions regarding the area
and counties composing the Northern High Plains Eradication Zone, the
Rolling Plains Central Eradication Zone,  the St. Lawrence Eradication
Zone, the South Texas Winter Garden Eradication Zone, the Southern High
Plains-Caprock Eradication Zone, and the Southern Rolling Plains
Eradication Zone. Sets forth that other areas may be added to these zones
if approved by referendum. Outlines that Austin, Brazoria, Colorado, Fort
Bend, Jackson, Matagorda and Wharton Counties will remain a part of the
South Texas Winter Garden Zone only for repayment of existing debt and may
be included for other purposes if approved by referendum and the
commissioner.  Authorizes the commissioner to apportion debt existing on
April 30, 1997, to counties removed from the South Texas Winter Garden
Eradication Zone. 

SECTION 1.05. Amends Chapter 74D, Agriculture Code, by adding Sections
74.1041 and 74.1042, as follows: 

 Sec. 74.1041.  INTERIM ADVISORY GROUPS.  Authorizes the commissioner to
designate  an interim advisory group for each statutory zone or geographic
region of the state that is to  be considered by the commissioner for
inclusion in an eradication zone.  Sets forth provisions  regarding
advisory groups and gathering input from cotton growers. 

 Sec. 74.1042.  CREATION OF NONSTATUTORY ERADICATION ZONES.  Authorizes
the commissioner, by rule, to designate an area of the state as a proposed
eradication zone  under certain conditions.  Authorizes the commissioner
to hold a public hearing and sets forth  provisions regarding the holding
of such a hearing.  Requires the commissioner, after  adoption of a rule
under Subsection (a), to conduct a referendum under Section 74.105. 

SECTION 1.06. Amends Sections 74.105(a), (d), (e), and (f), Agriculture
Code, to require the commissioner, rather than an organization certified
under Section 74.104 of this code or the foundation, to conduct an
establishment referendum.  Provides that if a referendum to establish an
eradication zone fails, the concurrent election of a board member from the
proposed eradication zone under Section 74.106 of this code has no effect.
Requires the commissioner to appoint a representative to the board from
the area.  Authorizes the foundation to request the commissioner to call
additional referenda in a proposed eradication zone in which a referendum
has failed. Specifies establishment referendums can only be held once a
year. Requires the eligible voters, after the passage of any referendum,
to be allowed by subsequent referenda to vote on whether to continue their
assessments.   

SECTION 1.07. Amends Section 74.106, Agriculture Code, by amending
Subsections (a), (c), and (d), and adding Subsection (h), as follows: 


(a)  Sets forth provisions regarding the representation of each
eradication zone on the board of directors of the official cotton growers'
boll weevil eradication foundation (board). 

(c) Sets forth the requirements for eligibility for a candidate and member
of the board. 

(d) Sets forth an additional requirement for a cotton grower to serve on
the board. 

(h) Requires a representative of the commissioner to swear in each board
member into office as required for elected officers of the state. 

SECTION 1.08. Amends Section 74.107, Agriculture Code, to require the
board to include  members elected from each statutory eradication zone
established and validated by referendum, members elected from each
nonstatutory zone established by referendum, members appointed by the
commissioner from other cotton growing areas of the state, and members
appointed by the commissioner under Subsection (b).  Requires the
commissioner to appoint an initial 15-member board.  Prohibits, except as
provided by Subsection (b), the term of each board position from exceeding
four years. Lists five non-cotton grower members who must be appointed to
the board. Authorizes the commissioner, rather than the board with the
commissioner's approval, to change the number of board positions or the
eradication zone representation on the board to accommodate changes in the
number of eradication zones.  Requires a vacancy on the board to be filled
by appointment by the commissioner for the unexpired term.  Authorizes the
commissioner, upon 30 days' notice and opportunity for hearing, to replace
any unelected board member of the foundation. Deletes language regarding
the High Plains and St. Lawrence Zones. 

SECTION 1.09. Amends Sections 74.108, Agriculture Code, as follows:

Sec. 74.108. POWERS OF BOARD AND COMMISSIONER.  Deletes certain
authorizations of the board.  Authorizes the board to borrow money, with
the approval of the commissioner.  Authorizes the commissioner, rather
than the board, by rule, to add an area to an eradication zone or transfer
an area or county from one statutory zone to another under certain
conditions.  Requires the board to adopt a procurement policy outlining
purchasing procedures, subject to approval by the commissioner.  Deletes
language regarding initiating the program in new areas and the High Plains
Boll Weevil Suppression Program Area. 

SECTION 1.10. Amends Section 74.109, Agriculture Code, by amending
Subsections (a), (d), (e), (g), and (h), and adding Subsections (i) and
(j), to require the board to 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.  Provides that
the financial transactions of the foundation are subject to audit by the
state auditor in accordance with Chapter 321, Government Code.  Requires
the auditor to include individual zone information in the foundation
audit. Requires this audit to be made available to the public. Provides
that the foundation and the board are state agencies for certain purposes
only, including indemnification under Chapter 104, Civil Practice and
Remedies Code. Requires that the bank or depository used for foundation
funds be approved by the commissioner rather than the board. Requires the
board to collect data to be filed with the commissioner on the type and
quantity of pesticides used in accordance with this subchapter.  Provides
that the foundation is subject to certain requirements.  Prohibits a board
member from voting on any matter in which the member has a direct
pecuniary interest.  Provides that a board member is subject to the same
restrictions as a local public official under Chapter 171, Local
Government Code. 

SECTION 1.11 Amends Subchapter D, Chapter 74, Agriculture Code, by adding
Section 74.1095 as follows: 

 Section 74.1095. ADMINISTRATIVE REVIEW.  Requires the commissioner to
establish  
 rules regarding administrative review procedures for claims resolution.
Outlines claims  
 procedures. Requires the commissioner to provide a written statement
regarding reasons and  the legal basis for any resulting changes. Outlines
that the commissioner's formal order is  subject to judicial review.
Specifies this section is not a waiver of the state's immunity from
liability.  

SECTION 1.12. Amends Section 74.110, Agriculture Code, as follows:

Sec. 74.110.  LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND EMPLOYEES AND
APPLICATORS.  Sets forth the liability of the foundation's members,
directors, officers, and employees. Sets forth provisions regarding an
applicator's liability. Defines "applicator."  Prohibits anything in this
section from being 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 1.13. Amends Sections 74.112(f), (g), (h), and (i), Agriculture
Code, to require the commissioner to conduct a recall referendum if 30
percent or more of the cotton growers eligible to vote within a zone
petition him to do so. Requires the commissioner to give notice of the
referendum and conduct the referendum within a certain deadline.  Outlines
that an establishing or discontinuing referendum can only be held every
two years. Provides that approval of the proposition is by the same vote
as required in a referendum under Section 74.114(g).  Provides that 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 1.14. Amends Section 74.113, Agriculture Code, to require the
commissioner, rather than the foundation, to propose, rather than
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. Requires the commissioner to
make certain propositions in a referendum.  Authorizes the foundation,
with the commissioner's approval, to make an assessment in an eradication
zone at a level less than the assessment approved by the referendum.
Requires the commissioner to conduct an assessment referendum under the
procedures provided by Section 74.114 of this code.   Prohibits an
assessment levied on cotton growers in an eradication zone from being used
to pay another zone's bank loans or debts.  Sets forth provisions
regarding the assessment and the amount of the assessment.  Requires the
commissioner to give notice of and hold a public hearing within the
eradication zone regarding the proposed assessment referendum.  Sets forth
certain requirements for the commissioner before the referendum.  Requires
the commissioner, on a zone-by-zone basis, to set the date on which
assessments are due and payable.  Requires the commissioner, each year, to
review and approve the foundation's operating budget.  Requires the
foundation to prepare and mail billing statements to each cotton grower
subject to the assessment that state the amount due and the due date.
Requires the assessments to be remitted to the foundation. 

SECTION 1.15. Amends Sections 74.114(a), (c), (d), (f), (h), and (i),
Agriculture Code, to require the commissioner, rather than the foundation,
to conduct a referendum or board election authorized under this
subchapter.  Requires the commissioner to hold a referendum in the zone on
the continuation of the eradication program every four years at the same
time as the election of a board member from the zone.  Provides the
continuation referendum must be approved by a majority of those voting in
the referendum.  Requires the commissioner to adopt rules for voting in
board elections and referenda to establish or continue eradication zones.
Deletes language regarding the adoption of rules by the board for voting
in other referenda and board elections.  Sets forth requirements regarding
rules adopted under this subsection.  Sets forth additional provisions
regarding a referendum or board election, including ballot determination
by the commissioner. Specifies that if a continuation referendum fails,
another referendum may not be held for one year.  Authorizes, rather than
requires, the commissioner to hold a public hearing regarding the proposed
eradication program, including information regarding proposed regulations. 

SECTION 1.16. Amends Section 74.115, Agriculture Code, to set forth
requirements regarding the amount of penalties for not paying assessments.
Deletes existing Subsection (b) regarding a cotton grower who fails to pay
all assessments and penalties.  Authorizes the department to place and
perfect an assessment lien on cotton produced and harvested that year from
certain acreage.   

SECTION 1.17. Amends Section 74.116, Agriculture Code, by amending
Subsections (d) and (f), deleting Subsection (e), and adding Subsection
(g), to authorize the commissioner to establish a payment plan for a
cotton grower applying for an exemption under this section. Deletes
language regarding the foundation's authority to qualify exemptions.
Authorizes the commissioner to reduce or waive assessment penalties. 

SECTION 1.18. Amends Section 74.117, Agriculture Code, to require the
department to publish in a newspaper of general publication notice of the
intent to enter the cotton growers' fields or premises to carry out the
purposes of this subchapter, including treatment, monitoring, or
inspection. Requires the foundation to post notice of intent to enter
fields or premises in each county's courthouse. Requires the foundation to
attempt to notify cotton growers before chemical treatment.  Deletes
language regarding destroying cotton or other host plants. 

SECTION 1.19. Amends Sections 74.120(b), (c), and (d), Agriculture Code,
to set forth provisions regarding the adoption of rules by which the
foundation develops its procedures and methods of treatment.  Authorizes
the commissioner, rather than the foundation and the department, to adopt
other reasonable rules necessary to carry out  the purposes of this
subchapter and Subchapters A and B of this chapter.  Deletes text
regarding the adoption of rules by the foundation under this section.
Authorizes, rather than requires, an advisory committee to be established
to assist the commissioner in the development of rules adopted under this
section.   

SECTION 1.20. Amends Section 74.121, Agriculture Code, to allow the
foundation to provide an incentive for early and timely reporting.     

SECTION 1.21. Amends Section 74.124, Agriculture Code, to require
commissioner approval for certain foundation programs. Provides that
agreements under Subsection (a) (4)-(5) must be approved in certain
referendums by the same margin as required in a retention referendum. 

SECTION 1.22. Amends Section 74.125, Agriculture Code, to make
nonsubstantive and conforming changes.   

SECTION 1.23. Amends Section 74.126(c), Agriculture Code, to make
conforming changes. 

SECTION 1.24. Amends Chapter 74D, Agriculture Code, by adding Sections
74.128, 74.129 and 74.130, as follows: 

Sec. 74.128.  ANNUAL REPORT.  Requires the board to 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 LAWSUITS, LIABILITY, TAXATION AND LEGAL
PROCESS.  Outlines that the Legislature recognizes the foundation as a
quasi-governmental entity immune from lawsuits and liability with
exceptions. Sets forth provisions regarding the exemption of payments,
contributions and funds received or held by the foundation from state and
local taxes, levies, and certain execution with exceptions. Clarifies that
a lender may attempt to collect on any debt existing before or after this
legislation. 
 
 Sec. 74.130. USE OF BIO-INTENSIVE CONTROLS. Requires the commissioner to
adopt  
 rules allowing the use of biological, botanical, or other non-synthetic
control methods.  Outlines the commissioner's required considerations.
Specifies grower's are responsible for  any additional cost of
bio-intensive control in addition to assessments. 
 
SECTION 1.25. (a) Provides that 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.
Provides that 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) Provides that 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 Chapter 74D, Agriculture Code, as originally
enacted or subsequently amended. 

(c) Provides that this section does not make any obligation validated,
ratified, or confirmed under this section a state debt. 

SECTION 1.26. (a)  Provides that assessments approved on certain dates for
the Southern Rolling Plains Boll Weevil Eradication Zone, the Central
Rolling Plains Boll Weevil Eradication Zone, the South Texas/Winter Garden
Boll Weevil Eradication Zone, and all agreements and obligations of the
foundation related to the statutory zones made or approved before the
effective date of this Act are validated, ratified, and confirmed and
shall continue. Provides that assessments already collected in zones not
listed are validated, ratified and confirmed. Outlines that certain
assessments are not considered as collected by the foundation. 

(b) Requires the commissioner, by October 20, 1997, to hold a retention
referendum and board election in each statutory zone listed in Subsection
(a) to determine the continued necessity of an eradication program under
Section 74.114, Agriculture Code, as amended by this Act. Provides that
the referendum will be determined by a vote of the majority of cotton
growers voting in the retention referendum. Specifies that only a diapause
program may be carried out until a retention referendum is held. 

(c) Authorizes the commissioner, in each statutory zone, to 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.  Authorizes the commissioner, by rule, to divide a statutory
zone and fairly apportion any debt to each portion of the divided zone,
after considering public opinion.   

 (d) Requires the commissioner to conduct an eradication referendum in the
Southern High  Plains-Caprock Eradication Zone before August 1, 1997 in
compliance with notice  requirements under Subchapter D of this Act. 

 (e) Clarifies that a continuation referendum shall be held every four
years with the 4-year  period beginning after the effective date of this
Act. 

 (f) States that certain rules previously adopted by the commissioner
shall continue in effect. 

SECTION 1.27. Sets forth provisions regarding the adjustment of the
composition of the board of directors of the Texas Boll Weevil Eradication
Foundation, Inc. If the foundation does not comply, the commissioner may
cancel its designation.   

SECTION 1.28. Requires the commissioner to develop and adopt rules
regarding bio-intensive controls before September 1, 1998. Specifies the
eradication program will continue as outlined during the time rules are
adopted.  

SECTION 1.29. Repealers:  Sections 74.103 and 74.104, Agriculture Code
(Certification by Commissioner; Requirements, and Certification;
Revocation). 

ARTICLE 2

SECTION 2.01. Reenacts existing Sections 74.105(b) and (c), Agriculture
Code. 
 
SECTION 2.02. Reenacts existing Sections 74.106(b), (e), (f), and (g),
Agriculture Code. 

SECTION 2.03. Reenacts existing Sections 74.109(b), (c), and (f),
Agriculture Code. 

SECTION 2.04. Reenacts existing Sections 74.111, Agriculture Code.

SECTION 2.05. Reenacts existing Sections 74.112(a)-(e), Agriculture Code.

SECTION 2.06. Reenacts existing Sections 74.114(b), (e), (g), and (j),
Agriculture Code. 

SECTION 2.07. Reenacts existing Section 74.118, Agriculture Code.

SECTION 2.08. Reenacts existing Section 74.119, Agriculture Code.

SECTION 2.09. Reenacts existing Section 74.120(a), Agriculture Code.

SECTION 2.10. Reenacts existing Section 74.122, Agriculture Code.

SECTION 2.11. Reenacts existing Section 74.123, Agriculture Code.

SECTION 2.12. Reenacts existing Section 74.124(b), Agriculture Code.

SECTION 2.13. Reenacts existing Section 74.126(a) and (b), Agriculture
Code. 

SECTION 2.14. Reenacts existing Section 74.127, Agriculture Code.

ARTICLE 3

SECTION 3.01. Emergency clause. Effective date: upon passage.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute makes the following changes:
 
-  Requires the commissioner to adopt rules to allow growers to use
bio-intensive control methods if the grower pays any additional costs
associated with the methods. 
-  Clarifies that a continuation referendum shall be held every four
years. The four-year period begins after the effective date of this Act
and after the program begins operation.  
- States that certain rules previously adopted by the commissioner will
remain in effect. 
- Provides more specific notification language regarding entering and/or
treating a grower's property. 
- Deletes language subjecting the foundation to the administrative
procedure law and replaces it with administrative review procedures for
claims resolutions. 
- Deletes King County from the Rolling Plains Central Eradication Zone
because it was inadvertently added. 
- Clarifies language regarding the removal of Brazoria and Fort Bend
Counties from the South Texas Winter Garden Eradication Zone. 
-  Clarifies that the commissioner will apportion debt to the counties
that are removed from the South Texas Winter Garden Eradication Zone. 
- Adds Ector County to the Southern High Plains-Caprock Eradication Zone
because it was inadvertently left out. 
- Clarifies that if a non-statutory zone is formed, the zone will have a
representative on the board. 
- States that a referendum to establish an eradication zone shall occur no
more than once a year rather than every 121 days. 
- States that if a referendum to continue an eradication zone fails,
another referendum may not be held again for one year. 
- Clarifies that the commissioner sets the amount of the penalty based on
set criteria. 
- Allows the commissioner to reduce or waive penalties without
recommendation of the foundation. 
- Makes a conforming change to remove any language pertaining to the
foundation as an agent of the department.  
 - Removes Austin County from the South Texas Winter Garden Eradication
Zone.  
- Requires that the entomologist who is appointed to the board is an
integrated pest management expert. 
- Reduces the percentage of eligible voters required to sign a petition to
discontinue the program in a zone from 40% to 30%. 
- Requires the auditor to include zone by zone information in the
foundation audit. Requires this audit to be made available to the public. 
- Makes conforming changes to consistently replace "producer" with "cotton
grower." 
- States that assessments may be "remitted" rather than "paid in cash."
- States that a retention election be not later than October 20, 1997,
rather than one year from the effective date of this Act. Specifies that
only a diapause program may be carried out until that time.