By: Duncan S.B. No. 1814
A BILL TO BE ENTITLED
AN ACT
1-1 relating to modifications of the official cotton growers' boll
1-2 weevil eradication program.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1
1-5 SECTION 1.01. Section 74.101, Agriculture Code, is amended
1-6 to read as follows:
1-7 Sec. 74.101. FINDINGS AND DECLARATION OF POLICY. (a) It is
1-8 hereby found and declared that:
1-9 (1) the insects Anthonomus grandis Boheman, known as
1-10 the boll weevil, and Pectinophora gossypiella, known as the pink
1-11 bollworm, are public nuisances and a menace to the cotton industry,
1-12 and their eradication is a public necessity [boll weevil entered
1-13 Texas from Mexico in 1892 and presents a major economic threat to
1-14 Texas' cotton crop];
1-15 (2) because of the differences in soil conditions,
1-16 growing seasons, farming techniques, and climate conditions among
1-17 several areas in the state where cotton is grown, the eradication
1-18 and suppression of the nuisance can best be accomplished by
1-19 dividing the cotton-growing areas into separate zones so that
1-20 integrated pest management programs may be developed for each zone
1-21 [there exists a need to develop, carry out, and participate in
1-22 programs of research such as disease and insect control; marketing
1-23 to show low risk of pests in interstate and intrastate movement of
2-1 cotton commodities; promotion of pest-free cotton commodities
2-2 which increase market demand; and education of cotton raisers,
2-3 cotton users, regulators, policymakers, and the general public on
2-4 the effect of pests on cotton, its utility, its marketing, its
2-5 yield, and its promotion]; [and]
2-6 (3) there is a need for a quasi-governmental entity
2-7 acting under the supervision and control of the commissioner whose
2-8 members are actual cotton growers who would be represented on the
2-9 board of the entity by directors elected by them to act as the
2-10 agent of the department to manage eradication and suppression
2-11 programs and to furnish expertise in the field of insect control
2-12 and eradication, because such an entity would enhance the interest
2-13 and participation of cotton growers in the program; and
2-14 (4) because of the progress made in eradication,
2-15 investments made by cotton growers in certain areas, the potential
2-16 injustice to certain cotton growers who have made such investments,
2-17 and the stage of development of the cotton crops in the statutory
2-18 eradication zones, an urgent public necessity exists to validate
2-19 and ratify the assessments, agreements, and obligations of the
2-20 Texas Boll Weevil Eradication Foundation, Inc., made or incurred by
2-21 the foundation and related to certain statutory zones [it is the
2-22 intent of the legislature that the program be carried out with the
2-23 best available integrated pest management techniques].
2-24 (b) It is the intent of the legislature that the program of
2-25 eradication and suppression be carried out with the best available
3-1 integrated pest management techniques.
3-2 (c) The department may recover costs for administration of
3-3 this subchapter.
3-4 [(c) The creation and use of a boll weevil eradication
3-5 foundation as a vehicle to provide for assessments and governing
3-6 boards and to establish eradication zones in order to suppress and
3-7 eradicate boll weevils and other cotton pests are consistent with
3-8 the goals and uses of revenue established under Article XVI,
3-9 Section 68, of the Texas Constitution.]
3-10 SECTION 1.02. Subchapter D, Chapter 74, Agriculture Code, is
3-11 amended by adding Section 74.1011 to read as follows:
3-12 Sec. 74.1011. DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL
3-13 ERADICATION. (a) The Texas Boll Weevil Eradication Foundation,
3-14 Inc., a Texas nonprofit corporation chartered by the secretary of
3-15 state on September 14, 1993, shall be recognized by the department
3-16 as the entity to plan, carry out, and operate eradication and
3-17 diapause programs to eliminate the boll weevil and the pink
3-18 bollworm from cotton in the state under the supervision of the
3-19 department as provided by this subchapter.
3-20 (b) The commissioner may terminate the foundation's
3-21 designation as the entity recognized to carry out boll weevil
3-22 eradication by giving 45 days' written notice to the foundation and
3-23 by designating a successor entity. If the commissioner designates
3-24 a successor to the foundation, the successor has all the powers and
3-25 duties of the foundation under this subchapter. Any successor to
4-1 the foundation shall assume and shall be responsible for all
4-2 obligations and liabilities relating to any notes, security
4-3 agreements, assignments, loan agreements, and any other contracts
4-4 or other documents entered into by the foundation with or for the
4-5 benefit of any financial institution or its predecessor, successor,
4-6 or assignee.
4-7 SECTION 1.03. Section 74.102, Agriculture Code, is amended
4-8 to read as follows:
4-9 Sec. 74.102. DEFINITIONS. In this subchapter:
4-10 (1) "Board" means the board of directors of the Texas
4-11 Boll Weevil Eradication Foundation, Inc [official cotton growers'
4-12 boll weevil eradication foundation].
4-13 (2) "Boll weevil" has the meaning assigned by Section
4-14 74.002 [of this code].
4-15 (3) "Commissioner" means commissioner of agriculture.
4-16 (4) "Cotton" means:
4-17 (A) a cotton plant;
4-18 (B) a part of a cotton plant, including bolls,
4-19 stalks, flowers, roots, and leaves; or
4-20 (C) cotton products, including seed cotton,
4-21 cottonseed, and hulls.
4-22 (5) "Cotton grower" means a person [an individual] who
4-23 grows cotton and receives income [on or after June 1, 1992,] from
4-24 the sale of cotton. The term includes an individual who as owner,
4-25 landlord, tenant, or sharecropper is entitled to share in the
5-1 cotton grown and available for marketing from a farm or to share in
5-2 the proceeds from the sale of the cotton from the farm[, under 7
5-3 C.F.R. Part 1413].
5-4 (6) "Eradication" means elimination of boll weevils or
5-5 pink bollworms to the extent that the commissioner does not
5-6 consider further elimination of boll weevils or pink bollworms
5-7 necessary to prevent economic loss to cotton growers. Eradication
5-8 includes diapause activities.
5-9 (7) "Eradication zone" means a geographic area:
5-10 (A) established under Section 74.1021; or
5-11 (B) designated by the commissioner in accordance
5-12 with Section 74.105 in which cotton growers by referendum approve
5-13 their participation in a boll weevil or pink bollworm eradication
5-14 program.
5-15 (8) "Foundation" means the Texas Boll Weevil
5-16 Eradication Foundation, Inc., a Texas nonprofit corporation
5-17 [official cotton growers' boll weevil eradication foundation].
5-18 (9) ["High Plains Boll Weevil Suppression Program
5-19 Area" includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby,
5-20 Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,
5-21 Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,
5-22 Swisher, Terry, and Yoakum counties. The High Plains Boll Weevil
5-23 Suppression Program Area may also include other counties or parts
5-24 of counties if areas are added to the High Plains Boll Weevil
5-25 Suppression Program Area as provided under this subchapter.]
6-1 [(10)] "Host" means a plant or plant product in which
6-2 the boll weevil or pink bollworm is capable of completing any
6-3 portion of its life cycle.
6-4 (10) [(11)] "Infested" means the presence of the boll
6-5 weevil or pink bollworm in any life stage or the existence of
6-6 generally accepted entomological evidence from which it may be
6-7 concluded with reasonable certainty that the boll weevil or pink
6-8 bollworm is present.
6-9 (11) [(12)] "Integrated pest management" is the
6-10 coordinated use of pest and environmental information with
6-11 available pest control methods to prevent unacceptable levels of
6-12 pest damage by the most economical means and with the least
6-13 possible hazard to people, property, and the environment.
6-14 (12) "Pink bollworm" has the meaning assigned by
6-15 Section 74.002.
6-16 (13) "Regulated article" means an article carrying or
6-17 capable of carrying the boll weevil or pink bollworm, including
6-18 cotton plants, seed cotton, gin trash, other hosts, or mechanical
6-19 cotton harvesters.
6-20 [(14) "St. Lawrence Cotton Growers Boll Weevil Control
6-21 Zone" may include, subject to change as provided under this
6-22 subchapter, all or part of Glasscock, Reagan, Upton, south Midland,
6-23 or other counties.]
6-24 [(15) The pink bollworm eradication zone includes
6-25 Reeves and Pecos counties.]
7-1 SECTION 1.04. Subchapter D, Chapter 74, Agriculture Code, is
7-2 amended by adding Section 74.1021 to read as follows:
7-3 Sec. 74.1021. STATUTORY ZONES. (a) The Northern High
7-4 Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,
7-5 Castro, Floyd, Hale, Lamb, Parmer, Randall, and Swisher counties,
7-6 and other areas as proposed by the commissioner by rule for
7-7 inclusion in the zone and approved by referendum in the area to be
7-8 added.
7-9 (b) The Rolling Plains Central Eradication Zone consists of
7-10 Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,
7-11 Jones, King, Knox, Mitchell, Nolan, Palo Pinto, Scurry,
7-12 Shackelford, Stephens, Stonewall, Throckmorton, and Young counties;
7-13 all land in Archer County south of a line following Farm-to-Market
7-14 Road 422 commencing at the Baylor County line running east to the
7-15 intersection of Farm-to-Market Road 210, continuing east to the
7-16 intersection of State Highway 25, and continuing east to the Clay
7-17 County line; all land in Borden County east of a line seven miles
7-18 west of the Scurry County line running south from the Garza County
7-19 line to the Howard County line; and all land in Taylor County east
7-20 of U.S. Highway 83 from a point commencing at the intersection of
7-21 U.S. Highway 83 and the south Taylor County line, north to the town
7-22 of Bradshaw; thence north of Farm-to-Market Road 1086, as the
7-23 farm-to-market road proceeds west and north to the intersection of
7-24 the Farm-to-Market Road 1086 and U.S. Highway 277, being all land
7-25 lying north of the farm-to-market road and west of U.S. Highway 277
8-1 from the intersection of Farm-to-Market Road 1086 and U.S. Highway
8-2 277 to the point where U.S. Highway 277 intersects the south
8-3 boundary line of Taylor County; all land in Brown County east of a
8-4 line following State Highway 279 to Brownwood and continuing along
8-5 U.S. Highway 377 south to the McCulloch County line; and other
8-6 areas as proposed by the commissioner by rule for inclusion in the
8-7 zone and approved by referendum in the area to be added.
8-8 (c) The St. Lawrence Eradication Zone consists of that area
8-9 of Midland County south of a line 15 miles south of Interstate 20
8-10 running from the Ector County line east to the Glasscock County
8-11 line; Glasscock, Reagan, and Upton counties; and other areas as
8-12 proposed by the commissioner by rule for inclusion in the zone and
8-13 approved by referendum in the area to be added.
8-14 (d) The South Texas Winter Garden Eradication Zone consists
8-15 of Aransas, Atascosa, Austin, Bee, Bexar, Calhoun, Colorado,
8-16 DeWitt, Dimmit, Duval, Frio, Goliad, Jackson, Jim Wells, Karnes,
8-17 Kinney, Kleberg, La Salle, Lavaca, Live Oak, Matagorda, McMullen,
8-18 Medina, Nueces, Refugio, San Patricio, Uvalde, Victoria, Wharton,
8-19 Wilson, and Zavala counties, and other areas as proposed by the
8-20 commissioner by rule for inclusion in the zone and approved by
8-21 referendum in the area to be added. Brazoria, Colorado, Fort Bend,
8-22 Jackson, Matagorda, and Wharton counties are included in the South
8-23 Texas Winter Garden Eradication Zone only for purposes of the
8-24 repayment of debt existing on April 30, 1997, and those counties
8-25 may not be included in the zone for any other purpose unless the
9-1 commissioner by rule proposes that an area be included in the zone
9-2 and the proposal is approved by referendum in the area to be added.
9-3 (e) The Southern High Plains-Caprock Eradication Zone
9-4 consists of Andrews, Cochran, Crosby, Dawson, Dickens, Gaines,
9-5 Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin, Motley, Terry,
9-6 and Yoakum counties; all land in Borden County lying west of a line
9-7 seven miles west of the Scurry County line running south from the
9-8 Garza County line to the Howard County line; that area of Midland
9-9 County north of a line 15 miles south of Interstate 20 running from
9-10 the Ector County line east to the Glasscock County line; and other
9-11 areas as proposed by the commissioner by rule for inclusion in the
9-12 zone and approved by referendum in the area to be added.
9-13 (f) The Southern Rolling Plains Eradication Zone consists of
9-14 Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and
9-15 Tom Green counties, all land in Taylor County lying west of U.S.
9-16 Highway 83 from a point commencing at the intersection of U.S.
9-17 Highway 83 and the south Taylor County line, north of the town of
9-18 Bradshaw; thence all the land lying south of Farm-to-Market Road
9-19 1086, as the farm-to-market road proceeds west and north to its
9-20 intersection with U.S. Highway 277, being all land lying south of
9-21 the farm-to-market road and east of U.S. Highway 277 from the
9-22 intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to
9-23 the point where U.S. Highway 277 intersects the south boundary line
9-24 of Taylor County, and other areas as proposed by the commissioner
9-25 by rule for inclusion in the zone and approved by referendum in the
10-1 area to be added.
10-2 SECTION 1.05. Subchapter D, Chapter 74, is amended by adding
10-3 Sections 74.1041 and 74.1042 to read as follows:
10-4 Sec. 74.1041. INTERIM ADVISORY GROUPS. (a) The
10-5 commissioner may designate an interim advisory group for each
10-6 geographic statutory zone or region of the state that is to be
10-7 considered by the commissioner for inclusion in an eradication
10-8 zone. The groups shall gather advice, input, and guidance from
10-9 cotton growers from each area of the state concerning the interest
10-10 in and concerns about the implementation of this subchapter.
10-11 (b) Each interim advisory group shall consider and make
10-12 recommendations to the commissioner concerning:
10-13 (1) the geographic boundaries for the proposed
10-14 eradication zone;
10-15 (2) the amount of local interest in operating an
10-16 eradication program;
10-17 (3) the basis and amount of an assessment necessary to
10-18 support an eradication program;
10-19 (4) the need to restructure any pre-existing debt from
10-20 prior eradication activities;
10-21 (5) crediting a cotton grower's 1996 assessment
10-22 payments to any future assessment; and
10-23 (6) any other matter requested by the commissioner.
10-24 (c) Each interim advisory group shall include at least one
10-25 cotton grower from each county in the zone and other persons as
11-1 determined by the commissioner.
11-2 Sec. 74.1042. CREATION OF NONSTATUTORY ERADICATION ZONES.
11-3 (a) The commissioner may by rule designate an area of the state as
11-4 a proposed eradication zone as long as the area is not within a
11-5 statutory zone under Section 74.1021 that has approved an
11-6 eradication program by referendum.
11-7 (b) The commissioner may hold a public hearing within the
11-8 proposed eradication zone to discuss the proposed geographic
11-9 boundaries of the zone. The public hearing may include any other
11-10 topics allowed under this subchapter.
11-11 (c) After the adoption of a rule under Subsection (a), the
11-12 commissioner shall conduct a referendum under Section 74.105.
11-13 SECTION 1.06. Subsections (a), (d), (e), and (f), Section
11-14 74.105, Agriculture Code, are amended to read as follows:
11-15 (a) The commissioner [organization certified under Section
11-16 74.104 of this code or the foundation] shall conduct a referendum
11-17 in each proposed eradication zone to determine whether cotton
11-18 growers desire to establish an [official boll weevil or pink
11-19 bollworm] eradication zone.
11-20 (d) If a referendum to establish an eradication zone fails,
11-21 the concurrent election of a board member [members] from the
11-22 proposed eradication zone under Section 74.106 [of this code] has
11-23 no effect, and the commissioner shall appoint a representative to
11-24 the board from the area.
11-25 (e) The [organization certified under Section 74.104 of this
12-1 code or the] foundation[, as appropriate,] may request the
12-2 commissioner to call additional referenda in a proposed eradication
12-3 zone in which a referendum has failed. An additional eradication
12-4 zone referendum and concurrent board election may be held no
12-5 earlier than the 121st day after the date of the last referendum.
12-6 (f) After the passage of any referendum, the eligible voters
12-7 shall be allowed, by subsequent referenda [periodically as
12-8 specified in the initial referendum], to vote on whether to
12-9 continue their assessments. All of the requirements for an initial
12-10 referendum must be met in subsequent referenda.
12-11 SECTION 1.07. Section 74.106, Agriculture Code, is amended
12-12 by amending Subsections (a), (c), and (d) and adding Subsection (h)
12-13 to read as follows:
12-14 (a) The initial election for board members from a proposed
12-15 eradication zone shall be held concurrently with an eradication
12-16 zone referendum held under Section 74.105 [of this code]. Each
12-17 eradication zone shall be represented on the board and shall remain
12-18 represented on the board until eradication operations are concluded
12-19 and all debt of the eradication zone is paid.
12-20 (c) A cotton grower who is eligible to vote in a referendum
12-21 or election under this subchapter is eligible to be a candidate for
12-22 and member of the board if the person has at least seven years of
12-23 experience as a cotton grower and otherwise meets the
12-24 qualifications for the position.
12-25 (d) A cotton grower who wants to be a candidate for the
13-1 board must meet the qualifications for board membership and file an
13-2 application with the [secretary of the foundation or, before
13-3 certification of the organization under Section 74.104 of this
13-4 code, the] commissioner. The application must be:
13-5 (1) filed not later than the 30th day before the date
13-6 set for the board election;
13-7 (2) on a form approved by the commissioner; and
13-8 (3) signed by at least 10 cotton growers who are
13-9 eligible to vote in the board election.
13-10 (h) Each board member shall be sworn into office by a
13-11 representative of the commissioner by taking the oath of office
13-12 required for elected officers of the state.
13-13 SECTION 1.08. Section 74.107, Agriculture Code, is amended
13-14 to read as follows:
13-15 Sec. 74.107. COMPOSITION OF BOARD. (a) The board shall be
13-16 composed of members elected from each statutory eradication zone
13-17 established and validated by referendum, members appointed by the
13-18 commissioner from other cotton growing areas of the state, and
13-19 members appointed by the commissioner under Subsection (b). The
13-20 commissioner shall appoint an initial board composed of 15 members.
13-21 Except as provided by Subsection (b), the term of each board
13-22 position may not exceed four years [High Plains Boll Weevil
13-23 Suppression Program Area and the St. Lawrence Cotton Growers Boll
13-24 Weevil Control Zone are separate zones for the purposes of boll
13-25 weevil eradication; however, an area in the St. Lawrence Cotton
14-1 Growers Boll Weevil Control Zone may be assigned to another zone as
14-2 provided by this subchapter].
14-3 (b) In making appointments under this section, the
14-4 commissioner shall appoint the following for four-year terms:
14-5 (1) an agricultural lender;
14-6 (2) an independent entomologist or an integrated pest
14-7 management specialist;
14-8 (3) two representatives from industries allied with
14-9 cotton production; and
14-10 (4) a representative from the pest control industry.
14-11 (c) The commissioner [board, with the commissioner's
14-12 approval,] may change the number of board positions or the
14-13 eradication zone representation on the board to accommodate changes
14-14 in the number of eradication zones. A change under this subsection
14-15 may not contravene another provision of this subchapter.
14-16 (d) A vacancy on the board shall be filled by appointment by
14-17 the commissioner for the unexpired term.
14-18 (e) On 30 days' notice and opportunity for hearing, the
14-19 commissioner may replace any unelected board member of the
14-20 foundation.
14-21 SECTION 1.09. Section 74.108, Agriculture Code, is amended
14-22 to read as follows:
14-23 Sec. 74.108. [BOARD] POWERS OF BOARD AND COMMISSIONER.
14-24 (a) The board may:
14-25 (1) [conduct board elections;]
15-1 [(2) conduct eradication zone referenda;]
15-2 [(3) conduct assessment referenda under Section 74.113
15-3 of this code;]
15-4 [(4)] conduct programs consistent with the declaration
15-5 of policy stated in Section 74.101 [of this code];
15-6 (2) [(5)] accept, as necessary to implement this
15-7 chapter, gifts and grants;
15-8 (3) [(6)] borrow money, with the approval of the
15-9 commissioner, as necessary to execute this chapter;
15-10 (4) [(7)] take other action and exercise other
15-11 authority as necessary to execute any act authorized by this
15-12 subchapter or the Texas Non-Profit Corporation Act (Article
15-13 1396-1.01 et seq., Vernon's Texas Civil Statutes); and
15-14 (5) [(8)] form an advisory committee composed of
15-15 individuals from this state, other states, or other countries and
15-16 change membership on the committee, as necessary. Any advisory
15-17 committee created under this subdivision for the purpose of
15-18 establishing treatment methods shall include among its members
15-19 persons with knowledge of the effects of different treatments on
15-20 the health of agricultural workers, the local population, and the
15-21 ecosystem, including but not limited to the effects of a particular
15-22 method of treatment on beneficial organisms and wildlife, the
15-23 potential for secondary infestations from nontarget pests, and the
15-24 potential for pest resistance to particular methods of treatment.
15-25 (b) The commissioner [board] may by rule add an area to an
16-1 eradication zone or transfer an area or county from one statutory
16-2 zone to another zone if:
16-3 (1) cotton production has begun or could begin
16-4 [begins] in the area;
16-5 (2) the area is adjacent to an eradication zone or is
16-6 in an area with biological characteristics similar to the
16-7 eradication zone; and
16-8 (3) the addition is approved in a referendum held in
16-9 the area.
16-10 (c) The board must adopt a procurement policy, subject to
16-11 approval by the commissioner, outlining the procedures to be used
16-12 in purchasing [may initiate the boll weevil eradication program in
16-13 an area added to an eradication zone and may assess cotton growers
16-14 in the area added to the eradication zone to ensure the integrity
16-15 and success of the eradication program. The board shall provide
16-16 notice of intent to initiate eradication and collect assessments
16-17 through informational meetings in the affected area not later than
16-18 60 days before the date recognized by the board as the average
16-19 planting date for the area].
16-20 [(d) The board may not reduce the area of the High Plains
16-21 Boll Weevil Suppression Program Area.]
16-22 SECTION 1.10. Section 74.109, Agriculture Code, is amended
16-23 by amending Subsections (a), (d), (e), (g), and (h) and adding
16-24 Subsections (i) and (j) to read as follows:
16-25 (a) The board shall make available to the state auditor for
17-1 inspection at an annual independent audit all books, records of
17-2 account, and minutes of proceedings maintained by the foundation.
17-3 The financial transactions of the foundation are subject to audit
17-4 by the state auditor in accordance with Chapter 321, Government
17-5 Code.
17-6 (d) The foundation and the board are state agencies for the
17-7 following purposes only:
17-8 (1) exemption from taxation including exemption from
17-9 sales and use taxes, vehicle registration fees, and taxes under
17-10 Chapter 152, Tax Code; and
17-11 (2) indemnification under Chapter 104, Civil Practice
17-12 and Remedies Code.
17-13 (e) Funds collected by the foundation are not state funds
17-14 and are not required to be deposited in the state treasury. The
17-15 foundation shall deposit all money collected under this subchapter
17-16 in a bank or other depository approved by the commissioner [board].
17-17 (g) The board shall collect data on the type and quantity of
17-18 pesticides used in accordance with this subchapter. The data shall
17-19 be filed with the commissioner.
17-20 (h) All revenue collected under this subchapter shall be
17-21 used solely to finance programs approved by the commissioner as
17-22 consistent with this subchapter [and applicable provisions of the
17-23 constitution].
17-24 (i) The foundation is subject to the requirements of:
17-25 (1) the open meetings law, Chapter 551, Government
18-1 Code;
18-2 (2) the open records law, Chapter 552, Government
18-3 Code; and
18-4 (3) the administrative procedure law, Chapter 2001,
18-5 Government Code.
18-6 (j) A board member may not vote on any matter in which the
18-7 member has a direct pecuniary interest. A board member is subject
18-8 to the same restrictions as a local public official under Chapter
18-9 171, Local Government Code.
18-10 SECTION 1.11. Section 74.110, Agriculture Code, is amended
18-11 to read as follows:
18-12 Sec. 74.110. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
18-13 EMPLOYEES AND APPLICATORS. (a) Except for instances of gross
18-14 negligence, individual criminal actions, or acts of dishonesty, the
18-15 foundation, the foundation's members, directors, officers, and
18-16 employees, and applicators are not individually liable to a cotton
18-17 grower or other person for:
18-18 (1) errors in judgment;
18-19 (2) mistakes; or
18-20 (3) other acts or omissions.
18-21 (b) A foundation member, officer, or employee or an
18-22 applicator is not individually liable for an act or omission of
18-23 another foundation member, officer, or employee or of an
18-24 applicator.
18-25 (c) Except as provided by Subsection (d), an applicator is
19-1 liable to a person for death, damage, or injury to a person or the
19-2 person's property proximately caused by the applicator while acting
19-3 to further or support eradication or diapause efforts undertaken
19-4 pursuant to this subchapter if the death, damage, or injury
19-5 resulted from:
19-6 (1) any negligent act or omission in the application,
19-7 loading, handling, storage, or use of pesticides or other
19-8 chemicals;
19-9 (2) any act taken with specific intent to wrongfully
19-10 injure the person or the person's property; or
19-11 (3) any act done with conscious indifference or
19-12 reckless disregard for the safety of others.
19-13 (d) An applicator is immune from civil liability for any act
19-14 or omission resulting in death, damage, or injury if the
19-15 applicator:
19-16 (1) was acting pursuant to reasonably precise
19-17 directions, instructions, or specifications provided by the
19-18 foundation;
19-19 (2) complied with those directions, instructions, or
19-20 specifications; and
19-21 (3) did not actually know of any risks of harm to the
19-22 person injured or property damaged before the time of the act or
19-23 omission in question that were not known to the foundation at that
19-24 time.
19-25 (e) The foundation shall have liability coverage in effect
20-1 for any eradication or diapause efforts for which it uses
20-2 applicators. The coverage shall apply to acts and omissions of the
20-3 foundation and volunteers and be in the amount of at least $500,000
20-4 for each single occurrence of death, bodily injury, or property
20-5 damage.
20-6 (f) In this section, "applicator" means an individual or
20-7 other person that is not a member, director, officer, or employee
20-8 of the foundation and that contracts with the foundation to apply
20-9 pesticides or other chemicals using aircraft or other equipment to
20-10 further or support the eradication or diapause efforts undertaken
20-11 pursuant to this subchapter.
20-12 (g) Nothing in this section shall be construed to mean that
20-13 an applicator or other person cannot be held responsible for
20-14 violations of state and federal pesticide and herbicide laws and
20-15 regulations adopted thereunder.
20-16 SECTION 1.12. Subsections (f), (g), (h), and (i), Section
20-17 74.112, Agriculture Code, are amended to read as follows:
20-18 (f) If 40 percent or more of the producers eligible to vote
20-19 within a zone participating in the program present to the
20-20 commissioner [foundation] a petition calling for a referendum of
20-21 the qualified voters on the proposition of discontinuing the
20-22 program, the commissioner [board] shall conduct a referendum for
20-23 that purpose.
20-24 (g) The commissioner [board] shall give notice of the
20-25 referendum, the referendum shall be conducted, and the results
21-1 shall be declared in the manner provided by law for the original
21-2 referendum and election, with any necessary exceptions provided by
21-3 rule of the commissioner.
21-4 (h) The commissioner [board] shall conduct the referendum
21-5 within 90 days of the date of filing of the petition, except that
21-6 no such referendum may be held within two years of any other
21-7 referendum in the eradication zone pertaining to establishing or
21-8 discontinuing the eradication zone.
21-9 (i) Approval of the proposition is by the same vote as
21-10 required in a referendum under Section 74.114(g) [majority vote of
21-11 those voting]. If the proposition is approved, the eradication
21-12 program is abolished and the eradication zone ceases to exist on
21-13 payment of all debts of the eradication zone.
21-14 SECTION 1.13. Section 74.113, Agriculture Code, is amended
21-15 to read as follows:
21-16 Sec. 74.113. ASSESSMENT REFERENDA. (a) The commissioner
21-17 [foundation] shall propose [determine] the assessment needed in
21-18 each eradication zone to ensure the stability of the cotton
21-19 industry by eradicating the public nuisance caused by the boll
21-20 weevil and the pink bollworm [accomplish the following goal: to
21-21 finance programs of marketing, promotion, research, and education
21-22 calculated to increase the production and use of cotton].
21-23 (b) The commissioner [foundation] shall propose in a
21-24 referendum the:
21-25 (1) maximum assessment to be paid by cotton growers
22-1 having production in the eradication zone; and
22-2 (2) time for which the assessment will be made.
22-3 (c) With the commissioner's approval, the [The] foundation
22-4 may make an assessment in an eradication zone at a level less than
22-5 the assessment approved by the referendum.
22-6 (d) The commissioner [foundation] shall conduct an
22-7 assessment referendum under the procedures provided by Section
22-8 74.114 [of this code].
22-9 (e) If an assessment referendum is approved, the foundation
22-10 may collect the assessment.
22-11 (f) An assessment levied on cotton growers in an eradication
22-12 zone may be applied only to:
22-13 (1) eradication in that zone;
22-14 (2) the foundation's operating costs, including
22-15 payments on debt incurred for a foundation activity, except that
22-16 the funds of one zone may not be used to pay another zone's bank
22-17 loans or debts; and
22-18 (3) the conducting of other programs consistent with
22-19 the declaration of policy stated in Section 74.101 [of this code].
22-20 (g) The assessment shall be adequate and necessary to
22-21 achieve the goals of this subchapter. The amount of the assessment
22-22 shall be determined by criteria established by the commissioner,
22-23 including:
22-24 (1) the extent of infestation;
22-25 (2) the amount of acreage planted;
23-1 (3) historical efforts to eradicate;
23-2 (4) the growing season;
23-3 (5) epidemiology;
23-4 (6) historical weather conditions; and
23-5 (7) the costs and financing of the program.
23-6 (h) The commissioner shall give notice of and hold a public
23-7 hearing within the eradication zone regarding the proposed
23-8 assessment referendum. Before the referendum, the commissioner
23-9 shall review and approve:
23-10 (1) the amount of the assessment;
23-11 (2) the basis for the assessment;
23-12 (3) the time for payment of the assessment;
23-13 (4) the method of allocation of the assessment among
23-14 cotton growers;
23-15 (5) the restructuring and repayment schedule for any
23-16 pre-existing debt; and
23-17 (6) the amount of debt to be incurred in the
23-18 eradication zone.
23-19 (i) The commissioner shall on a zone-by-zone basis set the
23-20 date on which assessments are due and payable.
23-21 (j) Each year, the commissioner shall review and approve the
23-22 foundation's operating budget.
23-23 (k) The foundation shall prepare and mail billing statements
23-24 to each cotton grower subject to the assessment that state the
23-25 amount due and the due date. The assessments shall be paid in cash
24-1 to the foundation.
24-2 SECTION 1.14. Subsections (a), (c), (d), (f), (h), and (i),
24-3 Section 74.114, Agriculture Code, are amended to read as follows:
24-4 (a) The commissioner [foundation] shall conduct a referendum
24-5 or board election authorized under this subchapter [its
24-6 jurisdiction]. At the end of each four-year period in which an
24-7 eradication program has been operational in a zone, the
24-8 commissioner shall hold a referendum in the zone on the
24-9 continuation of the eradication program. The referendum shall be
24-10 held at the same time as the election of a board member from the
24-11 zone. Approval of the referendum on continuation is by a majority
24-12 of those voting in the referendum.
24-13 (c) The commissioner shall adopt rules for voting in [the
24-14 initial] board elections [election] and [initial] referenda to
24-15 establish or continue eradication zones. [The board shall adopt
24-16 rules for voting in other referenda and board elections.] Rules
24-17 adopted under this subsection must include provisions for
24-18 determining:
24-19 (1) who is a cotton grower eligible to vote in an
24-20 election or referendum;
24-21 (2) whether a board member is elected by a plurality
24-22 or a majority of the votes cast; and
24-23 (3) the area from which each board member is elected.
24-24 (d) A cotton grower having cotton production in a proposed
24-25 or established eradication zone is entitled to:
25-1 (1) vote in a referendum concerning the eradication
25-2 zone; and
25-3 (2) elect board members to represent the eradication
25-4 zone.
25-5 (f) Ballots in a referendum or board election shall be
25-6 mailed directly to a central location, to be [initially] determined
25-7 by the commissioner [and later determined by the board]. A cotton
25-8 grower eligible to vote in a referendum or board election who has
25-9 not received a ballot from the commissioner, foundation, or another
25-10 source shall be offered the option of requesting a ballot by mail
25-11 or obtaining a ballot at the office of the county agent of the
25-12 Texas Agricultural Extension Service or a government office
25-13 distributing ballots in a county in the proposed or established
25-14 zone in which the referendum or board election is conducted.
25-15 (h) If a referendum under this subchapter is not approved,
25-16 the [foundation may with the approval of the] commissioner may
25-17 conduct another referendum. A referendum under this subsection may
25-18 not be held before the 121st day after the date on which the last
25-19 referendum on the same issue was held.
25-20 (i) A public hearing regarding the proposed eradication
25-21 program, including information regarding regulations to be
25-22 promulgated by the [foundation and the] commissioner, may [shall]
25-23 be held by the commissioner [foundation] in each of several
25-24 locations within each boll weevil or pink bollworm eradication
25-25 zone. The area posted for each hearing shall include no more than
26-1 six contiguous counties that have cotton production at the time of
26-2 the hearing.
26-3 SECTION 1.15. Section 74.115, Agriculture Code, is amended
26-4 to read as follows:
26-5 Sec. 74.115. FAILURE TO PAY ASSESSMENTS. (a) A cotton
26-6 grower who fails to pay an assessment levied under this subchapter
26-7 when due may be subject, after reasonable notice and opportunity
26-8 for hearing, to a penalty set by the commissioner [board]. The
26-9 amount of the penalty shall be based on:
26-10 (1) the seriousness of the violation, including the
26-11 nature, circumstances, and extent of the violation;
26-12 (2) the history of previous violations;
26-13 (3) the amount necessary to deter future violations;
26-14 (4) the economic situation of the cotton grower; and
26-15 (5) any other matter that justice may require.
26-16 (b) [A cotton grower who fails to pay all assessments and
26-17 penalties before the 10th day after receiving notice of the
26-18 delinquency shall destroy any cotton growing on the grower's
26-19 acreage that is subject to the assessment. Cotton plants that are
26-20 not destroyed are a public nuisance, and, on recommendation of the
26-21 foundation, the department shall follow the procedures for
26-22 destruction of host plants provided by Subchapters A and B of this
26-23 chapter, including procedures for reimbursement by the grower of
26-24 costs required for destruction. The department may apply to a
26-25 district court with jurisdiction in the county in which the public
27-1 nuisance is located to have the nuisance condemned and destroyed.
27-2 Injunctive relief available to the department under this subchapter
27-3 is in addition to any other legal remedy available to the
27-4 department. The department is not required to file a bond in a
27-5 proceeding under this subsection.]
27-6 [(c)] In addition to any other remedies for the collection
27-7 of assessments and penalties, the department may place and perfect
27-8 an assessment [a] lien on cotton produced and harvested that year
27-9 from the acreage that is subject to the assessment that is due and
27-10 unpaid. A buyer of cotton takes free of the assessment lien if the
27-11 buyer has not received written or actual notice of the assessment
27-12 lien [from the department] or if the buyer has paid for the cotton
27-13 by a check on which the department is named as a joint payee. In
27-14 an action to enforce the assessment lien, the burden is on the
27-15 department to prove that the buyer of cotton received written or
27-16 actual notice of the assessment lien. A buyer of cotton other than
27-17 a person buying cotton from the cotton grower takes free of the
27-18 assessment lien.
27-19 SECTION 1.16. Section 74.116, Agriculture Code, is amended
27-20 to read as follows:
27-21 Sec. 74.116. EXEMPTION FROM ASSESSMENT PENALTIES. (a) The
27-22 commissioner by rule shall adopt criteria for exemption from
27-23 payment of assessment penalties under Section 74.115 of this code a
27-24 cotton grower for whom payment would impose an undue financial
27-25 burden.
28-1 (b) A cotton grower may not qualify for an exemption under
28-2 this section for a year in which the amount computed by subtracting
28-3 the assessments and penalties due under this subchapter from the
28-4 cotton grower's net income subject to federal income taxation in
28-5 the previous year is greater than $15,000.
28-6 (c) A cotton grower who applies for an exemption under this
28-7 section must use a form prescribed by the commissioner. A cotton
28-8 grower must file a separate application form for each year for
28-9 which the cotton grower claims an exemption.
28-10 (d) The [commissioner shall forward to the foundation a
28-11 completed exemption application form. The foundation shall
28-12 determine whether the applicant qualifies for an exemption and
28-13 shall notify the commissioner of its determination.]
28-14 [(e) On notification by the foundation that a cotton grower
28-15 qualifies for an exemption, the commissioner shall exempt the
28-16 cotton grower from payment of an assessment penalty under Section
28-17 74.115 of this code.]
28-18 [(f) On the foundation's recommendation, the] commissioner
28-19 may establish a payment plan for a cotton grower applying for an
28-20 exemption under this section.
28-21 (e) [(g)] The commissioner shall promptly notify an
28-22 applicant of the [foundation's] determination regarding the
28-23 applicant's request for an exemption.
28-24 (f) [(h)] If an exemption under this section is denied,
28-25 assessments and penalties for the year for which the application is
29-1 made are due on the later of:
29-2 (1) the date on which they would be due in the absence
29-3 of an application for exemption; or
29-4 (2) 30 days after the date the applicant receives
29-5 notice of the denial.
29-6 (g) In addition to the authority provided under Subsections
29-7 (a)-(f), the commissioner may, on recommendation of the foundation,
29-8 reduce or waive assessment penalties as appropriate.
29-9 SECTION 1.17. Section 74.117, Agriculture Code, is amended
29-10 to read as follows:
29-11 Sec. 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
29-12 INSPECTIONS. The department, the foundation, or a designated
29-13 representative of either entity may enter cotton fields or other
29-14 premises to carry out the purposes of this subchapter and
29-15 Subchapters A and B of this chapter, which include the treatment
29-16 and[,] monitoring[, and destruction] of growing cotton or other
29-17 host plants. The department, the foundation, or a designated
29-18 representative of either entity may inspect fields or premises in
29-19 this state for the purpose of determining whether the property is
29-20 infested with the boll weevil or the pink bollworm. An inspection
29-21 must be conducted during reasonable daylight hours. The
29-22 commissioner shall require that notice be given to a cotton grower
29-23 of the intent to enter the cotton grower's fields or premises to
29-24 carry out the purposes of this subchapter. The foundation shall
29-25 notify a cotton grower of the foundation's intent to treat cotton
30-1 acres before the actual treatment.
30-2 SECTION 1.18. Subsections (b), (c), and (d), Section 74.120,
30-3 Agriculture Code, are amended to read as follows:
30-4 (b) Rules adopted under this section shall establish the
30-5 criteria by which the foundation develops its [rules,]
30-6 procedures[,] and methods of treatment, which shall [rules]:
30-7 (1) establish a methodology for determining when boll
30-8 weevil or pink bollworm population levels have reached economic
30-9 significance;
30-10 (2) establish an effective treatment regimen that
30-11 seeks to provide the least possible risk to workers, the public,
30-12 and the environment;
30-13 (3) minimize the effects of the use of pesticides on
30-14 long-term control methods, including but not limited to the effect
30-15 a particular pesticide may have on biological controls;
30-16 (4) establish methods for monitoring boll weevils,
30-17 pink bollworms, and secondary pests;
30-18 (5) establish methods for verifying pesticide use
30-19 reduction; and
30-20 (6) consider the acute and chronic toxicity of
30-21 particular pesticides and the quantity of particular pesticides
30-22 needed. Eradication zone treatment plans may take into account the
30-23 potential for the use of smaller quantities of more toxic
30-24 substances to result in fewer health and environmental risks than
30-25 larger quantities of less toxic substances.
31-1 (c) The commissioner [foundation and the department] may
31-2 adopt other reasonable rules necessary to carry out the purposes of
31-3 this subchapter and Subchapters A and B of this chapter. All
31-4 rules issued under this subchapter must be adopted and published in
31-5 accordance with state requirements. [Rules adopted by the
31-6 foundation under this section shall be consistent with rules
31-7 adopted by the commissioner under this subchapter.]
31-8 (d) An advisory committee may [shall] be established to
31-9 assist the commissioner in the development of rules adopted under
31-10 this section. The advisory committee may [shall] be composed of:
31-11 (1) three cotton producers from different regions of
31-12 the state, appointed by the commissioner;
31-13 (2) three entomologists with knowledge of the
31-14 principles of integrated pest management, at least one of whom has
31-15 special knowledge of nonchemical or biological pest control,
31-16 appointed by the commissioner;
31-17 (3) two individuals with experience representing the
31-18 general interests of the environment, appointed by the chair of the
31-19 Texas Natural Resource Conservation Commission;
31-20 (4) an environmental engineer with expert knowledge of
31-21 ground and surface water protection from contamination, appointed
31-22 by the chair of the Texas Natural Resource Conservation Commission;
31-23 (5) a toxicologist, appointed by the Commissioner of
31-24 Health; and
31-25 (6) an individual with experience representing the
32-1 general interests of consumers and an individual with experience
32-2 representing the general interests of agricultural workers,
32-3 appointed by the governor.
32-4 SECTION 1.19. Section 74.121, Agriculture Code, is amended
32-5 to read as follows:
32-6 Sec. 74.121. REPORTS. Each person in an active eradication
32-7 zone growing cotton in this state shall furnish to the foundation
32-8 on forms supplied by the foundation information that the foundation
32-9 requires concerning the size and location of all commercial cotton
32-10 fields and of noncommercial patches of cotton grown for ornamental
32-11 or other purposes. The foundation may provide an incentive for
32-12 early and timely reporting.
32-13 SECTION 1.20. Section 74.124, Agriculture Code, is amended
32-14 by amending Subsection (a) and adding Subsection (c) to read as
32-15 follows:
32-16 (a) The foundation may carry out programs to destroy and
32-17 eliminate the boll weevil and the pink bollworm in this state by
32-18 cooperating through written agreements, as approved by the
32-19 commissioner, with:
32-20 (1) an agency of the federal government;
32-21 (2) a state agency;
32-22 (3) an appropriate agency of a foreign country
32-23 contiguous to the affected area to the extent allowed by federal
32-24 law;
32-25 (4) a person who is engaged in growing, processing,
33-1 marketing, or handling cotton; or
33-2 (5) a group of persons in this state involved in
33-3 similar programs to carry out the purposes of this subchapter.
33-4 (c) Agreements under Subsections (a)(4)-(5) must be approved
33-5 in each referendum required under this subchapter other than a
33-6 referendum to discontinue an eradication program. The agreements
33-7 must be approved by the same margin as required in the retention
33-8 referendum.
33-9 SECTION 1.21. Section 74.125, Agriculture Code, is amended
33-10 to read as follows:
33-11 Sec. 74.125. ORGANIC PRODUCERS. (a) The [board, in
33-12 cooperation with the] commissioner[,] shall develop rules and
33-13 procedures to:
33-14 (1) protect the eligibility of organic producers to be
33-15 certified by the commissioner;
33-16 (2) ensure that organic and transitional certification
33-17 by the commissioner continue to meet national certification
33-18 standards in order for organic cotton to maintain international
33-19 marketability; and
33-20 (3) in all events maintain the effectiveness of the
33-21 boll weevil or pink bollworm eradication program administered under
33-22 this subchapter.
33-23 (b) The board may not treat or require treatment of organic
33-24 cotton fields with chemicals that are not approved for use on
33-25 certified organic cotton. Plow-up may be required as an
34-1 alternative to chemicals. Rules [In the rules] adopted under
34-2 Subsection (a)[, the board] may provide indemnity for the organic
34-3 producers for reasonable losses that result from a prohibition of
34-4 production of organic cotton or from any requirement of destruction
34-5 of organic cotton. If time is reasonably available for the
34-6 production of an economically feasible alternative crop, the board
34-7 may require mitigation of losses with the production of an
34-8 alternative crop.
34-9 SECTION 1.22. Subsection (c), Section 74.126, Agriculture
34-10 Code, is amended to read as follows:
34-11 (c) If the commissioner [or the foundation] determines that
34-12 a violation of this subchapter or a rule adopted under this
34-13 subchapter has occurred, the commissioner [or the foundation] may
34-14 request that the attorney general or the county or district
34-15 attorney of the county in which the alleged violation occurred or
34-16 is occurring file suit for civil, injunctive, and/or other
34-17 appropriate relief.
34-18 SECTION 1.23. Subchapter D, Chapter 74, Agriculture Code, is
34-19 amended by adding Sections 74.128 and 74.129 to read as follows:
34-20 Sec. 74.128. ANNUAL REPORT. The board shall issue to the
34-21 commissioner and the appropriate oversight committee in the house
34-22 of representatives an annual report detailing its efforts to carry
34-23 out the purposes of this subchapter.
34-24 Sec. 74.129. EXEMPTION FROM LAWSUITS, LIABILITY, TAXATION,
34-25 AND LEGAL PROCESS. The legislature recognizes that the foundation,
35-1 acting under the supervision and control of the commissioner, is
35-2 carrying out an important governmental function and that therefore
35-3 the foundation, as a quasi-governmental entity, must be immune from
35-4 lawsuits and liability except to the extent provided in Chapter
35-5 101, Civil Practice and Remedies Code, and as provided by this
35-6 section. Therefore, no claims may be brought or continued against
35-7 the foundation except: (1) claims allowed by Chapter 101, Civil
35-8 Practice and Remedies Code; and (2) claims pending against the
35-9 foundation on April 30, 1997, plus attorney's fees and costs of
35-10 court. With the exception of finally adjudicated claims arising
35-11 from Chapter 101, Civil Practice and Remedies Code, and claims for
35-12 assessments, attorney's fees, and costs of court paid by named
35-13 plaintiffs in lawsuits pending on or before April 30, 1997, all
35-14 payments, contributions, funds, and assessments received or held by
35-15 the foundation under this subchapter are exempt from garnishment,
35-16 attachment, execution, or other seizure and from state and local
35-17 taxation, levies, sales, and any other process and are
35-18 unassignable. Nothing in this section shall affect or impair any
35-19 existing or future indebtedness or any existing or future security
35-20 interest created under a note, security agreement, assignment, or
35-21 other loan agreement between the foundation and a lender or any
35-22 judgment, to the extent such judgment allows recovery against the
35-23 foundation pursuant to a note, security agreement, loan agreement,
35-24 or other document.
35-25 SECTION 1.24. (a) All agreements made and obligations
36-1 incurred by the Texas Boll Weevil Eradication Foundation, Inc.,
36-2 before the effective date of this Act are validated, ratified, and
36-3 confirmed. The foundation's members, directors, officers,
36-4 employees, and agents are not individually liable for, or in
36-5 connection with, any agreement or obligation validated under this
36-6 section.
36-7 (b) Except for instances of gross negligence, individual
36-8 criminal actions, or acts of dishonesty, the foundation's members,
36-9 directors, officers, and employees are not individually liable to a
36-10 cotton grower or other person for errors in judgment, mistakes, or
36-11 other acts or omissions made or occurring before the effective date
36-12 of this Act under the authority of Subchapter D, Chapter 74,
36-13 Agriculture Code, as originally enacted or subsequently amended.
36-14 (c) This section does not make any obligation validated,
36-15 ratified, or confirmed under this section a debt of this state.
36-16 SECTION 1.25. (a) To the extent assessments have not been
36-17 previously validated, ratified, and confirmed, assessments approved
36-18 on February 28, 1994, for the Southern Rolling Plains Boll Weevil
36-19 Eradication Zone, on December 1, 1994, and August 2, 1996, for the
36-20 Central Rolling Plains Boll Weevil Eradication Zone, and on
36-21 February 16, 1995, for the South Texas/Winter Garden Boll Weevil
36-22 Eradication Zone, and all agreements and obligations of the
36-23 foundation related to the statutory zones made or approved before
36-24 the effective date of this Act are validated, ratified, and
36-25 confirmed and shall continue under this subsection. In any
37-1 eradication zone existing prior to the effective date of this Act,
37-2 other than zones named in this subsection, assessments are
37-3 validated, ratified, and confirmed only as to amounts actually
37-4 collected by the Texas Boll Weevil Eradication Foundation, Inc.,
37-5 prior to the effective date of this Act. For purposes of this
37-6 subsection, any assessments in any such pre-existing zone which
37-7 have been deposited in the registry of a court of this state on or
37-8 before April 30, 1997, or paid by named plaintiffs in a pleading
37-9 filed on or before April 30, 1997, in lawsuits against the
37-10 foundation are not assessments actually collected by the
37-11 foundation.
37-12 (b) Not later than one year after the effective date of this
37-13 Act, the commissioner of agriculture shall hold a retention
37-14 referendum and board election in each statutory zone listed in
37-15 Subsection (a) of this section to determine the continued necessity
37-16 of an eradication program under Section 74.114, Agriculture Code,
37-17 as amended by this Act. The retention referendum will be
37-18 determined by a vote of the majority of the cotton growers voting
37-19 in the retention referendum.
37-20 (c) The commissioner of agriculture may, in each statutory
37-21 zone, solicit public comment through public hearings to determine
37-22 whether to divide any of the statutory zones as defined in Section
37-23 74.1021, Agriculture Code, as added by this Act. After considering
37-24 public opinion, the commissioner may by rule divide a statutory
37-25 zone and fairly apportion any debt to each portion of the divided
38-1 zone.
38-2 (d) The commissioner of agriculture shall conduct an
38-3 eradication referendum under Section 74.114, Agriculture Code, as
38-4 amended by this Act in the Southern High Plains-Caprock Eradication
38-5 Zone not later than August 1, 1997. The commissioner shall comply
38-6 with the notice requirements of Subchapter D, Chapter 74,
38-7 Agriculture Code, as amended by this Act, and other law, to the
38-8 extent reasonable to conduct the eradication referendum required
38-9 under this subsection.
38-10 SECTION 1.26. The Texas Boll Weevil Eradication Foundation,
38-11 Inc., shall, not later than 30 days after the effective date of
38-12 this Act, take whatever steps are necessary to adjust the
38-13 composition of its board of directors to permit the commissioner of
38-14 agriculture to appoint board members in compliance with Section
38-15 74.107, Agriculture Code, as amended by this Act. If the
38-16 foundation does not comply with Section 74.107, Agriculture Code,
38-17 as amended by this Act, the commissioner may cancel the
38-18 designations and designate another nonprofit entity that meets the
38-19 qualifications of Section 74.107, Agriculture Code, as amended by
38-20 this Act. In the interim, the current directors and officers of
38-21 the foundation shall remain in office and carry out the
38-22 foundation's duties under Subchapter D, Chapter 74, Agriculture
38-23 Code, as amended by this Act.
38-24 SECTION 1.27. Sections 74.103 and 74.104, Agriculture Code,
38-25 are repealed.
39-1 ARTICLE 2
39-2 SECTION 2.01. Subsections (b) and (c), Section 74.105,
39-3 Agriculture Code, are reenacted to read as follows:
39-4 (b) Eradication zone referenda shall be conducted under the
39-5 procedures provided by Section 74.114 of this code.
39-6 (c) A proposed eradication zone referendum ballot must
39-7 include or be accompanied by information about the proposed
39-8 eradication zone, including:
39-9 (1) a statement of the purpose of the boll weevil or
39-10 pink bollworm eradication program;
39-11 (2) the geographic area included in the proposed
39-12 eradication zone;
39-13 (3) a general summary of rules adopted by the
39-14 commissioner under Sections 74.114, 74.118, and 74.120 of this
39-15 code, including a description of:
39-16 (A) cotton grower responsibilities; and
39-17 (B) penalties for noncompliance with rules
39-18 adopted under this subchapter; and
39-19 (4) an address and toll-free telephone number that a
39-20 cotton grower may use to request more information about the
39-21 referendum or the boll weevil or pink bollworm eradication program.
39-22 SECTION 2.02. Subsections (b), (e), (f), and (g), Section
39-23 74.106, Agriculture Code, are reenacted to read as follows:
39-24 (b) A board election shall be conducted under the procedures
39-25 provided by this section and Section 74.114 of this code.
40-1 (e) On receipt of an application and verification that the
40-2 application meets the requirements of Subsection (d) of this
40-3 section, an applicant's name shall be placed on the ballot for the
40-4 board election.
40-5 (f) An eligible voter may vote for a cotton grower whose
40-6 name does not appear on the official ballot by writing that
40-7 person's name on the ballot.
40-8 (g) A board election must be preceded by at least 45 days
40-9 notice published in one or more newspapers published and
40-10 distributed in the proposed or established eradication zone. The
40-11 notice shall be published not less than once a week for three
40-12 consecutive weeks. Not later than the 45th day before the date of
40-13 the election, direct written notice of the election shall be given
40-14 to each county agent in the eradication zone.
40-15 SECTION 2.03. Subsections (b), (c), and (f), Section 74.109,
40-16 Agriculture Code, are reenacted to read as follows:
40-17 (b) Not later than the 45th day after the last day of the
40-18 fiscal year, the board shall submit to the commissioner a report
40-19 itemizing all income and expenditures and describing all activities
40-20 of the foundation during the fiscal year.
40-21 (c) The foundation shall provide fidelity bonds in amounts
40-22 determined by the board for employees or agents who handle funds
40-23 for the foundation.
40-24 (f) The foundation is a governmental unit under Section
40-25 101.001, Civil Practice and Remedies Code, and is entitled to
41-1 governmental immunity. A tort claim against the foundation must be
41-2 made under Chapter 101, Civil Practice and Remedies Code.
41-3 SECTION 2.04. Section 74.111, Agriculture Code, is reenacted
41-4 to read as follows:
41-5 Sec. 74.111. BOARD MEMBER COMPENSATION. Board members serve
41-6 without compensation but are entitled to reimbursement for
41-7 reasonable and necessary expenses incurred in the discharge of
41-8 their duties.
41-9 SECTION 2.05. Subsections (a) through (e), Section 74.112,
41-10 Agriculture Code, are reenacted to read as follows:
41-11 (a) On the determination by the foundation that the boll
41-12 weevil eradication program has been completed in all eradication
41-13 zones established under this subchapter for boll weevil control and
41-14 the pink bollworm eradication program has been completed in any
41-15 eradication zone established under this chapter for pink bollworm
41-16 control, the foundation shall provide notice of such completion to
41-17 the commissioner along with a request for discontinuance of the
41-18 eradication program and collection of the assessment. Any such
41-19 request shall include documentation supporting the eradication of
41-20 the boll weevil in all eradication zones established for boll
41-21 weevil eradication or pink bollworm in any eradication zone
41-22 established for pink bollworm eradication and a plan for
41-23 discontinuance of the program and assessment.
41-24 (b) The commissioner shall determine whether or not the
41-25 further elimination of the boll weevil or pink bollworm is
42-1 necessary in the eradication zones and approve or disapprove
42-2 discontinuance of the foundation and the plan for dissolution.
42-3 (c) On completion of dissolution, the foundation shall file
42-4 a final report with the commissioner, including a financial report,
42-5 and submit all remaining funds into the trust of the commissioner.
42-6 Final books of the foundation shall be filed with the commissioner
42-7 and are subject to audit by the department.
42-8 (d) The commissioner shall pay from the foundation's
42-9 remaining funds all of the foundation's outstanding obligations.
42-10 (e) Funds remaining after payment under Subsection (d) of
42-11 this section shall be returned to contributing cotton growers on a
42-12 pro rata basis.
42-13 SECTION 2.06. Subsections (b), (e), (g), and (j), Section
42-14 74.114, Agriculture Code, are reenacted to read as follows:
42-15 (b) The foundation shall bear all expenses incurred in
42-16 conducting a referendum or board election.
42-17 (e) An eligible cotton grower may vote only once in a
42-18 referendum or board election.
42-19 (g) A referendum is approved if:
42-20 (1) at least two-thirds of those voting vote in favor
42-21 of the referendum; or
42-22 (2) those voting in favor of the referendum farm more
42-23 than 50 percent, as determined by the commissioner, of the cotton
42-24 acreage in the relevant eradication zone.
42-25 (j) Individual voter information, including an individual's
43-1 vote in a referendum or board election conducted under this
43-2 section, is confidential and is not subject to disclosure under the
43-3 open records law, Chapter 552, Government Code.
43-4 SECTION 2.07. Section 74.118, Agriculture Code, is reenacted
43-5 to read as follows:
43-6 Sec. 74.118. AUTHORITY TO PROHIBIT PLANTING OF COTTON AND
43-7 REQUIRE PARTICIPATION IN ERADICATION PROGRAM. (a) The
43-8 commissioner may adopt reasonable rules regarding areas where
43-9 cotton may not be planted in an eradication zone if there is reason
43-10 to believe planting will jeopardize the success of the program or
43-11 present a hazard to public health or safety.
43-12 (b) The commissioner may adopt rules prohibiting the
43-13 planting of noncommercial cotton in eradication zones and requiring
43-14 that all growers of commercial cotton in an eradication zone
43-15 participate in a boll weevil or pink bollworm eradication program
43-16 that includes cost sharing as required by the rules.
43-17 (c) Notice of prohibitions and requirements shall be given
43-18 by publication for one day each week for three successive weeks in
43-19 a newspaper having general circulation in the affected area.
43-20 (d) The commissioner may adopt a reasonable schedule of
43-21 penalty fees to be assessed against growers in a designated
43-22 eradication zone who do not meet the requirements of the rules
43-23 issued by the commissioner relating to reporting of acreage and
43-24 participation in cost sharing. The penalty fees adopted may not
43-25 exceed $50 per acre.
44-1 (e) If a grower fails to meet the requirements of rules
44-2 adopted by the commissioner, the commissioner may order the
44-3 destruction of cotton not in compliance with the rules. Costs
44-4 incurred by the commissioner in the destruction of cotton may be
44-5 assessed against the grower.
44-6 SECTION 2.08. Section 74.119, Agriculture Code, is reenacted
44-7 to read as follows:
44-8 Sec. 74.119. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
44-9 COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The department
44-10 may destroy or treat volunteer or other noncommercial cotton and
44-11 establish procedures for the purchase and destruction of commercial
44-12 cotton in eradication zones if the department determines the action
44-13 is necessary to carry out the purposes of this subchapter. The
44-14 department is not liable to the owner or lessee for the destruction
44-15 of or injury to any cotton that was planted in an eradication zone
44-16 after publication of notice as provided by this subchapter. The
44-17 foundation is liable for the destruction of cotton if the cotton
44-18 was planted in an eradication zone before publication of the
44-19 notice.
44-20 SECTION 2.09. Subsection (a), Section 74.120, Agriculture
44-21 Code, is reenacted to read as follows:
44-22 (a) The commissioner shall adopt rules to protect
44-23 individuals, livestock, wildlife, and honeybee colonies on any
44-24 premises in an eradication zone on which cotton plants are being
44-25 grown that have been or are being treated to eradicate the boll
45-1 weevil or the pink bollworm.
45-2 SECTION 2.10. Section 74.122, Agriculture Code, is reenacted
45-3 to read as follows:
45-4 Sec. 74.122. QUARANTINE. The department may adopt rules
45-5 relating to quarantining areas of this state that are infested with
45-6 the boll weevil or the pink bollworm. The rules must address the
45-7 storage of regulated articles and the movement of regulated
45-8 articles into and out of a quarantined area. The department may
45-9 also adopt rules governing the movement of regulated articles from
45-10 other states into this state if the articles are known to be
45-11 infested with the boll weevil or the pink bollworm.
45-12 SECTION 2.11. Section 74.123, Agriculture Code, is reenacted
45-13 to read as follows:
45-14 Sec. 74.123. DOCUMENTING REGULATED ARTICLES. To implement
45-15 this subchapter, the department may issue or authorize issuance of:
45-16 (1) a certificate that indicates that a regulated
45-17 article is not infested with the boll weevil or the pink bollworm;
45-18 and
45-19 (2) a permit that provides for the movement of a
45-20 regulated article to a restricted designation for limited handling,
45-21 use, or processing.
45-22 SECTION 2.12. Subsection (b), Section 74.124, Agriculture
45-23 Code, is reenacted to read as follows:
45-24 (b) An agreement entered into under this section may provide
45-25 for cost sharing and for division of duties and responsibilities
46-1 under this subchapter and may include other provisions to carry out
46-2 the purposes of this subchapter.
46-3 SECTION 2.13. Subsections (a) and (b), Section 74.126,
46-4 Agriculture Code, are reenacted to read as follows:
46-5 (a) A person who violates this subchapter or a rule adopted
46-6 under this subchapter or who alters, forges, counterfeits, or uses
46-7 without authority a certificate, permit, or other document issued
46-8 under this subchapter or under a rule adopted under this subchapter
46-9 commits an offense.
46-10 (b) An offense under this section is a Class C misdemeanor.
46-11 SECTION 2.14. Section 74.127, Agriculture Code, is reenacted
46-12 to read as follows:
46-13 Sec. 74.127. SUNSET PROVISION. (a) The board is subject to
46-14 Chapter 325, Government Code (Texas Sunset Act). Unless continued
46-15 in existence as provided by that chapter, the board is abolished
46-16 and this subchapter expires September 1, 2004.
46-17 (b) The commissioner may order the dissolution of the
46-18 foundation at any time the commissioner determines that the
46-19 purposes of this subchapter have been fulfilled or that the
46-20 foundation is inoperative and abandoned. Dissolution shall be
46-21 conducted in accordance with Section 74.112 of this code.
46-22 (c) If the foundation is abolished or the program
46-23 discontinued for any reason, assessments approved, levied, or
46-24 otherwise collectible on the date of abolishment remain valid as
46-25 necessary to pay the financial obligations of the foundation.
47-1 ARTICLE 3
47-2 SECTION 3.01. The importance of this legislation and the
47-3 crowded condition of the calendars in both houses create an
47-4 emergency and an imperative public necessity that the
47-5 constitutional rule requiring bills to be read on three several
47-6 days in each house be suspended, and this rule is hereby suspended,
47-7 and that this Act take effect and be in force from and after its
47-8 passage, and it is so enacted.