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 which

 2-2     increase market demand; and education of cotton raisers, cotton

 2-3     users, regulators, policymakers, and the general public on the

 2-4     effect of pests on cotton, its utility, its marketing, its yield,

 2-5     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 manage

2-10     eradication and suppression programs and to furnish expertise in

2-11     the field of insect control and eradication, because such an entity

2-12     would enhance the interest and participation of cotton growers in

2-13     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, including pesticides, natural

6-12     predator controls, cultural farming practices, and climatic

6-13     conditions, to prevent unacceptable levels of pest damage by the

6-14     most economical means and with the least possible hazard to people,

6-15     property, and the environment.

6-16                 (12)  "Pink bollworm" has the meaning assigned by

6-17     Section 74.002.

6-18                 (13)  "Regulated article" means an article carrying or

6-19     capable of carrying the boll weevil or pink bollworm, including

6-20     cotton plants, seed cotton, gin trash, other hosts, or mechanical

6-21     cotton harvesters.

6-22                 [(14)  "St. Lawrence Cotton Growers Boll Weevil Control

6-23     Zone" may include, subject to change as provided under this

6-24     subchapter, all or part of Glasscock, Reagan, Upton, south Midland,

6-25     or other counties.]

 7-1                 [(15)  The pink bollworm eradication zone includes

 7-2     Reeves and Pecos counties.]

 7-3           SECTION 1.04.  Subchapter D, Chapter 74, Agriculture Code, is

 7-4     amended by adding Section 74.1021 to read as follows:

 7-5           Sec. 74.1021.  STATUTORY ZONES.  (a)  The Northern High

 7-6     Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,

 7-7     Castro, Deaf Smith, Floyd, Hale, Lamb, Parmer, Randall, and Swisher

 7-8     counties, and other areas as proposed by the commissioner by rule

 7-9     for inclusion in the zone and approved by referendum in the area to

7-10     be added.

7-11           (b)  The Rolling Plains Central Eradication Zone consists of

7-12     Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,

7-13     Jones, Knox, Mitchell, Nolan, Palo Pinto, Scurry, Shackelford,

7-14     Stephens, Stonewall, Throckmorton, and Young counties; all land in

7-15     Archer County south of a line following Farm-to-Market Road 422

7-16     commencing at the Baylor County line running east to the

7-17     intersection of Farm-to-Market Road 210, continuing east to the

7-18     intersection of State Highway 25, and continuing east to the Clay

7-19     County line; all land in Borden County east of a line seven miles

7-20     west of the Scurry County line running south from the Garza County

7-21     line to the Howard County line; and all land in Taylor County east

7-22     of U.S. Highway 83 from a point commencing at the intersection of

7-23     U.S. Highway 83 and the south Taylor County line, north to the town

7-24     of Bradshaw; thence north of Farm-to-Market Road 1086, as the

7-25     farm-to-market road proceeds west and north to the intersection of

 8-1     the Farm-to-Market Road 1086 and U.S. Highway 277, being all land

 8-2     lying north of the farm-to-market road and west of U.S. Highway 277

 8-3     from the intersection of Farm-to-Market Road 1086 and U.S. Highway

 8-4     277 to the point where U.S. Highway 277 intersects the south

 8-5     boundary line of Taylor County; all land in Brown County east of a

 8-6     line following State Highway 279 to Brownwood and continuing along

 8-7     U.S. Highway 377 south to the McCulloch County line; and other

 8-8     areas as proposed by the commissioner by rule for inclusion in the

 8-9     zone and approved by referendum in the area to be added.

8-10           (c)  The St. Lawrence Eradication Zone consists of that area

8-11     of Midland County south of a line 15 miles south of Interstate 20

8-12     running from the Ector County line east to the Glasscock County

8-13     line; Glasscock, Reagan, and Upton counties; and other areas as

8-14     proposed by the commissioner by rule for inclusion in the zone and

8-15     approved by referendum in the area to be added.

8-16           (d)  The South Texas Winter Garden Eradication Zone consists

8-17     of Aransas, Atascosa, Austin, Bee, Bexar, Brazoria, Calhoun,

8-18     Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Goliad, Jackson,

8-19     Jim Wells, Karnes, Kinney, Kleberg, La Salle, Lavaca, Live Oak,

8-20     Matagorda, McMullen, Medina, Nueces, Refugio, San Patricio, Uvalde,

8-21     Victoria, Wharton, Wilson, and Zavala counties, and other areas as

8-22     proposed by the commissioner by rule for inclusion in the zone and

8-23     approved by referendum in the area to be added.  Austin, Brazoria,

8-24     Colorado, Fort Bend, Jackson, Matagorda, and Wharton counties are

8-25     included in the South Texas Winter Garden Eradication Zone only for

 9-1     purposes of the repayment of debt existing on April 30, 1997, and

 9-2     those counties may not be included in the zone for any other

 9-3     purpose unless the commissioner by rule proposes that an area be

 9-4     included in the zone and the proposal is approved by referendum in

 9-5     the area to be added.  The commissioner may apportion any debt

 9-6     existing on April 30, 1997, and designate the appropriate

 9-7     assessment.

 9-8           (e)  The Southern High Plains-Caprock Eradication Zone

 9-9     consists of Andrews, Cochran, Crosby, Dawson, Dickens, Ector,

9-10     Gaines, Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin,

9-11     Motley, Terry, and Yoakum counties; all land in Borden County lying

9-12     west of a line seven miles west of the Scurry County line running

9-13     south from the Garza County line to the Howard County line; that

9-14     area of Midland County north of a line 15 miles south of Interstate

9-15     20 running from the Ector County line east to the Glasscock County

9-16     line; and other areas as proposed by the commissioner by rule for

9-17     inclusion in the zone and approved by referendum in the area to be

9-18     added.

9-19           (f)  The Southern Rolling Plains Eradication Zone consists of

9-20     Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and

9-21     Tom Green counties, all land in Taylor County lying west of U.S.

9-22     Highway 83 from a point commencing at the intersection of U.S.

9-23     Highway 83 and the south Taylor County line, north of the town of

9-24     Bradshaw; thence all the land lying south of Farm-to-Market Road

9-25     1086, as the farm-to-market road proceeds west and north to its

 10-1    intersection with U.S. Highway 277, being all land lying south of

 10-2    the farm-to-market road and east of U.S. Highway 277 from the

 10-3    intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to

 10-4    the point where U.S. Highway 277 intersects the south boundary line

 10-5    of Taylor County, and other areas as proposed by the commissioner

 10-6    by rule for inclusion in the zone and approved by referendum in the

 10-7    area to be added.

 10-8          SECTION 1.05.  Subchapter D, Chapter 74, is amended by adding

 10-9    Sections 74.1041 and 74.1042 to read as follows:

10-10          Sec. 74.1041.  INTERIM ADVISORY GROUPS.  (a)  The

10-11    commissioner may designate an interim advisory group for each

10-12    geographic statutory zone or region of the state that is to be

10-13    considered by the commissioner for inclusion in an eradication

10-14    zone.  The groups shall gather advice, input, and guidance from

10-15    cotton growers from each area of the state concerning the interest

10-16    in and concerns about the implementation of this subchapter.

10-17          (b)  Each interim advisory group shall consider and make

10-18    recommendations to the commissioner concerning:

10-19                (1)  the geographic boundaries for the proposed

10-20    eradication zone;

10-21                (2)  the amount of local interest in operating an

10-22    eradication program;

10-23                (3)  the basis and amount of an assessment necessary to

10-24    support an eradication program;

10-25                (4)  the need to restructure any pre-existing debt from

 11-1    prior eradication activities;

 11-2                (5)  crediting a cotton grower's 1996 assessment

 11-3    payments to any future assessment; and

 11-4                (6)  any other matter requested by the commissioner.

 11-5          (c)  Each interim advisory group shall include at least one

 11-6    cotton grower from each county in the zone and other persons as

 11-7    determined by the commissioner.

 11-8          Sec. 74.1042.  CREATION OF NONSTATUTORY ERADICATION ZONES.

 11-9    (a)  The commissioner may by rule designate an area of the state as

11-10    a proposed eradication zone as long as the area is not within a

11-11    statutory zone under Section 74.1021 that has approved an

11-12    eradication program by referendum.

11-13          (b)  The commissioner may hold a public hearing within the

11-14    proposed eradication zone to discuss the proposed geographic

11-15    boundaries of the zone.  The public hearing may include any other

11-16    topics allowed under this subchapter.

11-17          (c)  After the adoption of a rule under Subsection (a), the

11-18    commissioner shall conduct a referendum under Section 74.105.

11-19          SECTION 1.06.  Subsections (a), (d), (e), and (f), Section

11-20    74.105, Agriculture Code, are amended to read as follows:

11-21          (a)  The commissioner [organization certified under Section

11-22    74.104 of this code or the foundation] shall conduct a referendum

11-23    in each proposed eradication zone to determine whether cotton

11-24    growers desire to establish an [official boll weevil or pink

11-25    bollworm] eradication zone.

 12-1          (d)  If a referendum to establish an eradication zone fails,

 12-2    the concurrent election of a board member [members] from the

 12-3    proposed eradication zone under Section 74.106 [of this code] has

 12-4    no effect, and the commissioner shall appoint a representative to

 12-5    the board from the area.

 12-6          (e)  The [organization certified under Section 74.104 of this

 12-7    code or the] foundation[, as appropriate,] may request the

 12-8    commissioner to call additional referenda in a proposed eradication

 12-9    zone in which a referendum has failed.  An additional eradication

12-10    zone referendum and concurrent board election may be held no

12-11    earlier than one year [the 121st day] after the date of the last

12-12    referendum.

12-13          (f)  After the passage of any referendum, the eligible voters

12-14    shall be allowed, by subsequent referenda [periodically as

12-15    specified in the initial referendum], to vote on whether to

12-16    continue their assessments.  All of the requirements for an initial

12-17    referendum must be met in subsequent referenda.

12-18          SECTION 1.07.  Section 74.106, Agriculture Code, is amended

12-19    by amending Subsections (a), (c), and (d) and adding Subsection (h)

12-20    to read as follows:

12-21          (a)  The initial election for board members from a proposed

12-22    eradication zone shall be held concurrently with an eradication

12-23    zone referendum held under Section 74.105 [of this code].  Each

12-24    eradication zone shall be represented on the board and shall remain

12-25    represented on the board until eradication operations are concluded

 13-1    and all debt of the eradication zone is paid.

 13-2          (c)  A cotton grower who is eligible to vote in a referendum

 13-3    or election under this subchapter is eligible to be a candidate for

 13-4    and member of the board if the person has at least seven years of

 13-5    experience as a cotton grower and otherwise meets the

 13-6    qualifications for the position.

 13-7          (d)  A cotton grower who wants to be a candidate for the

 13-8    board must meet the qualifications for board membership and file an

 13-9    application with the [secretary of the foundation or, before

13-10    certification of the organization under Section 74.104 of this

13-11    code, the] commissioner.  The application must be:

13-12                (1)  filed not later than the 30th day before the date

13-13    set for the board election;

13-14                (2)  on a form approved by the commissioner; and

13-15                (3)  signed by at least 10 cotton growers who are

13-16    eligible to vote in the board election.

13-17          (h)  Each board member shall be sworn into office by a

13-18    representative of the commissioner by taking the oath of office

13-19    required for elected officers of the state.

13-20          SECTION 1.08.  Section 74.107, Agriculture Code, is amended

13-21    to read as follows:

13-22          Sec. 74.107.  COMPOSITION OF BOARD.  (a)  The board shall be

13-23    composed of members elected from each statutory eradication zone

13-24    established and validated by referendum, members elected from each

13-25    nonstatutory eradication zone established by referendum, members

 14-1    appointed by the commissioner from other cotton-growing areas of

 14-2    the state, and members appointed by the commissioner under

 14-3    Subsection (b).  The commissioner shall appoint an initial board

 14-4    composed of 15 members.  Except as provided by Subsection (b), the

 14-5    term of each board position may not exceed four years [High Plains

 14-6    Boll Weevil Suppression Program Area and the St. Lawrence Cotton

 14-7    Growers Boll Weevil Control Zone are separate zones for the

 14-8    purposes of boll weevil eradication;  however, an area in the St.

 14-9    Lawrence Cotton Growers Boll Weevil Control Zone may be assigned to

14-10    another zone as provided by this subchapter].

14-11          (b)  In making appointments under this section, the

14-12    commissioner shall appoint the following board members, selected

14-13    from a variety of cotton-growing regions of the state, for

14-14    four-year terms:

14-15                (1)  an agricultural lender;

14-16                (2)  an independent entomologist who is an integrated

14-17    pest management specialist;

14-18                (3)  two representatives from industries allied with

14-19    cotton production; and

14-20                (4)  a representative from the pest control industry.

14-21          (c)  The commissioner [board, with the commissioner's

14-22    approval,] may change the number of board positions or the

14-23    eradication zone representation on the board to accommodate changes

14-24    in the number of eradication zones.  A change under this subsection

14-25    may not contravene another provision of this subchapter.

 15-1          (d)  A vacancy on the board shall be filled by appointment by

 15-2    the commissioner for the unexpired term.

 15-3          (e)  On 30 days' notice and opportunity for hearing, the

 15-4    commissioner may replace any unelected board member of the

 15-5    foundation.

 15-6          SECTION 1.09.  Section 74.108, Agriculture Code, is amended

 15-7    to read as follows:

 15-8          Sec. 74.108.  [BOARD] POWERS OF BOARD AND COMMISSIONER.

 15-9    (a)  The board may:

15-10                (1)  [conduct board elections;]

15-11                [(2)  conduct eradication zone referenda;]

15-12                [(3)  conduct assessment referenda under Section 74.113

15-13    of this code;]

15-14                [(4)]  conduct programs consistent with the declaration

15-15    of policy stated in Section 74.101 [of this code];

15-16                (2) [(5)]  accept, as necessary to implement this

15-17    chapter, gifts and grants;

15-18                (3) [(6)]  borrow money, with the approval of the

15-19    commissioner, as necessary to execute this chapter;

15-20                (4) [(7)]  take other action and exercise other

15-21    authority as necessary to execute any act authorized by this

15-22    subchapter or the Texas Non-Profit Corporation Act (Article

15-23    1396-1.01 et seq., Vernon's Texas Civil Statutes); and

15-24                (5) [(8)]  form an advisory committee composed of

15-25    individuals from this state, other states, or other countries and

 16-1    change membership on the committee, as necessary.  Any advisory

 16-2    committee created under this subdivision for the purpose of

 16-3    establishing treatment methods shall include among its members

 16-4    persons with knowledge of the effects of different treatments on

 16-5    the health of agricultural workers, the local population, and the

 16-6    ecosystem, including but not limited to the effects of a particular

 16-7    method of treatment on beneficial organisms and wildlife, the

 16-8    potential for secondary infestations from nontarget pests, and the

 16-9    potential for pest resistance to particular methods of treatment.

16-10          (b)  On petition of 30 percent of the cotton growers eligible

16-11    to vote within the proposed area, the commissioner may, or at the

16-12    commissioner's discretion, the commissioner [The board] may, by

16-13    rule add an area to an eradication zone or transfer an area or

16-14    county from one statutory zone to another zone if:

16-15                (1)  cotton production has begun or could begin

16-16    [begins] in the area;

16-17                (2)  the area is adjacent to an eradication zone or is

16-18    in an area with biological characteristics similar to the

16-19    eradication zone; and

16-20                (3)  the addition is approved in a referendum held in

16-21    the area.

16-22          (c)  The board must adopt a procurement policy, subject to

16-23    approval by the commissioner, outlining the procedures to be used

16-24    in purchasing [may initiate the boll weevil eradication program in

16-25    an area added to an eradication zone and may assess cotton growers

 17-1    in the area added to the eradication zone to ensure the integrity

 17-2    and success of the eradication program.  The board shall provide

 17-3    notice of intent to initiate eradication and collect assessments

 17-4    through informational meetings in the affected area not later than

 17-5    60 days before the date recognized by the board as the average

 17-6    planting date for the area].

 17-7          [(d)  The board may not reduce the area of the High Plains

 17-8    Boll Weevil Suppression Program Area.]

 17-9          SECTION 1.10.  Section 74.109, Agriculture Code, is amended

17-10    by amending Subsections (a), (d), (e), (g), and (h) and adding

17-11    Subsections (i) and (j) to read as follows:

17-12          (a)  The board shall have [make available for inspection at]

17-13    an annual independent audit of the [all] books, records of account,

17-14    and minutes of proceedings maintained by the foundation prepared by

17-15    an independent certified public accountant or a firm of independent

17-16    certified public accountants.  The audit shall include information

17-17    for each zone in which an eradication program has been conducted

17-18    under this subchapter.  The audit shall be filed with the board,

17-19    the commissioner, and the state auditor and shall be made available

17-20    to the public by the foundation or the commissioner.  The state

17-21    auditor may examine any work papers from the independent audit or

17-22    may audit the transactions of the foundation if the state auditor

17-23    determines that an audit is necessary.

17-24          (d)  The foundation and the board are state agencies for the

17-25    following purposes only:

 18-1                (1)  exemption from taxation including exemption from

 18-2    sales and use taxes, vehicle registration fees, and taxes under

 18-3    Chapter 152, Tax Code; and

 18-4                (2)  indemnification under Chapter 104, Civil Practice

 18-5    and Remedies Code.

 18-6          (e)  Funds collected by the foundation are not state funds

 18-7    and are not required to be deposited in the state treasury.  The

 18-8    foundation shall deposit all money collected under this subchapter

 18-9    in a bank or other depository approved by the commissioner [board].

18-10          (g)  The board shall collect data on the type and quantity of

18-11    pesticides used in accordance with this subchapter.  The data shall

18-12    be filed with the commissioner.

18-13          (h)  All revenue collected under this subchapter shall be

18-14    used solely to finance programs approved by the commissioner as

18-15    consistent with this subchapter [and applicable provisions of the

18-16    constitution].

18-17          (i)  The foundation is subject to the requirements of:

18-18                (1)  the open meetings law, Chapter 551, Government

18-19    Code; and

18-20                (2)  the open records law, Chapter 552, Government

18-21    Code.

18-22          (j)  A board member may not vote on any matter in which the

18-23    member has a direct pecuniary interest.  A board member is subject

18-24    to the same restrictions as a local public official under Chapter

18-25    171, Local Government Code.

 19-1          SECTION 1.11.  Subchapter D, Chapter 74, Agriculture Code, is

 19-2    amended by adding Section 74.1095 to read as follows:

 19-3          Sec. 74.1095.  ADMINISTRATIVE REVIEW.  (a)  The commissioner

 19-4    by rule shall establish procedures for the informal review and

 19-5    resolution of a claim arising out of certain acts taken by the

 19-6    foundation under this subchapter.  Rules established under this

 19-7    section shall include a designation of the acts that are subject to

 19-8    review under this subsection and the appropriate remedial action,

 19-9    as authorized by this subchapter.

19-10          (b)  A person dissatisfied with the department's informal

19-11    resolution of a claim under procedures adopted under Subsection (a)

19-12    may appeal the department's decision to the commissioner.

19-13          (c)  A decision issued by the commissioner on a claim

19-14    appealed under Subsection (b) is the final administrative action of

19-15    the department and is subject to judicial review under Chapter

19-16    2001, Government Code.

19-17          (d)  This section does not constitute a waiver of the state's

19-18    immunity from liability.

19-19          SECTION 1.12.  Section 74.110, Agriculture Code, is amended

19-20    to read as follows:

19-21          Sec. 74.110.  LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND

19-22    EMPLOYEES.  (a)  Except for instances of gross negligence,

19-23    individual criminal actions, or acts of dishonesty, [the

19-24    foundation,] the foundation's members, directors, officers, and

19-25    employees are not individually liable to a cotton grower or other

 20-1    person for:

 20-2                (1)  errors in judgment;

 20-3                (2)  mistakes; or

 20-4                (3)  other acts or omissions.

 20-5          (b)  A foundation member, officer, or employee is not

 20-6    individually liable for an act or omission of another foundation

 20-7    member, officer, or employee.

 20-8          SECTION 1.13.  Subchapter D, Chapter 74, Agriculture Code, is

 20-9    amended by adding Section 74.1101 to read as follows:

20-10          Sec. 74.1101.  LIABILITY OF APPLICATORS.  (a)  In this

20-11    section, "applicator" means an individual or other person that is

20-12    not a member, director, officer, or employee of the foundation and

20-13    that contracts with the foundation to apply pesticides or other

20-14    chemicals using aircraft or other equipment to further or support

20-15    the eradication or diapause efforts undertaken under this

20-16    subchapter.

20-17          (b)  An applicator is not jointly and severally liable for

20-18    any act or omission of the foundation under this subchapter

20-19    provided that the foundation maintains the liability coverage

20-20    required under Subsection (c).

20-21          (c)  The foundation shall have liability coverage in effect

20-22    for any eradication or diapause efforts for which it uses

20-23    applicators. The coverage shall apply to acts and omissions of the

20-24    foundation and volunteers and be in the amount of at least $500,000

20-25    for each single occurrence of death, bodily injury, or property

 21-1    damage.

 21-2          (d)  The commissioner may provide that the foundation include

 21-3    an applicator as an additional named insured in any policy of

 21-4    insurance required under Subsection (c).

 21-5          (e)  This section expires September 1, 1999.

 21-6          SECTION 1.14.  Subsections (f), (g), (h), and (i), Section

 21-7    74.112, Agriculture Code, are amended to read as follows:

 21-8          (f)  If 30 [40] percent or more of the cotton growers

 21-9    eligible to vote [producers] within a zone participating in the

21-10    program present to the commissioner [foundation] a petition calling

21-11    for a referendum of the qualified voters on the proposition of

21-12    discontinuing the program, the commissioner [board] shall conduct a

21-13    referendum for that purpose.

21-14          (g)  The commissioner [board] shall give notice of the

21-15    referendum, the referendum shall be conducted, and the results

21-16    shall be declared in the manner provided by law for the original

21-17    referendum and election, with any necessary exceptions provided by

21-18    rule of the commissioner.

21-19          (h)  The commissioner [board] shall conduct the referendum

21-20    within 90 days of the date of filing of the petition, except that

21-21    no such referendum may be held within two years of any other

21-22    referendum in the eradication zone pertaining to establishing or

21-23    discontinuing the eradication zone.

21-24          (i)  Approval of the proposition is by the same vote as

21-25    required in a referendum under Section 74.114(g) [majority vote of

 22-1    those voting].  If the proposition is approved, the eradication

 22-2    program is abolished and the eradication zone ceases to exist on

 22-3    payment of all debts of the eradication zone.

 22-4          SECTION 1.15.  Section 74.113, Agriculture Code, is amended

 22-5    to read as follows:

 22-6          Sec. 74.113.  ASSESSMENT REFERENDA.  (a)  The commissioner

 22-7    [foundation] shall propose [determine] the assessment needed in

 22-8    each eradication zone to ensure the stability of the cotton

 22-9    industry by eradicating the public nuisance caused by the boll

22-10    weevil and the pink bollworm [accomplish the following goal:  to

22-11    finance programs of marketing, promotion, research, and education

22-12    calculated to increase the production and use of cotton].

22-13          (b)  The commissioner [foundation] shall propose in a

22-14    referendum the:

22-15                (1)  maximum assessment to be paid by cotton growers

22-16    having production in the eradication zone; and

22-17                (2)  time for which the assessment will be made.

22-18          (c)  With the commissioner's approval, the [The] foundation

22-19    may make an assessment in an eradication zone at a level less than

22-20    the assessment approved by the referendum.

22-21          (d)  The commissioner [foundation] shall conduct an

22-22    assessment referendum under the procedures provided by Section

22-23    74.114 [of this code].

22-24          (e)  If an assessment referendum is approved, the foundation

22-25    may collect the assessment.

 23-1          (f)  An assessment levied on cotton growers in an eradication

 23-2    zone may be applied only to:

 23-3                (1)  eradication in that zone;

 23-4                (2)  the foundation's operating costs, including

 23-5    payments on debt incurred for a foundation activity, except that

 23-6    the funds of one zone may not be used to pay another zone's bank

 23-7    loans or debts; and

 23-8                (3)  the conducting of other programs consistent with

 23-9    the declaration of policy stated in Section 74.101 [of this code].

23-10          (g)  The assessment shall be adequate and necessary to

23-11    achieve the goals of this subchapter.  The amount of the assessment

23-12    shall be determined by criteria established by the commissioner,

23-13    including:

23-14                (1)  the extent of infestation;

23-15                (2)  the amount of acreage planted;

23-16                (3)  historical efforts to eradicate;

23-17                (4)  the growing season;

23-18                (5)  epidemiology;

23-19                (6)  historical weather conditions; and

23-20                (7)  the costs and financing of the program.

23-21          (h)  The commissioner shall give notice of and hold a public

23-22    hearing within the eradication zone regarding the proposed

23-23    assessment referendum.  Before the referendum, the commissioner

23-24    shall review and approve:

23-25                (1)  the amount of the assessment;

 24-1                (2)  the basis for the assessment;

 24-2                (3)  the time for payment of the assessment;

 24-3                (4)  the method of allocation of the assessment among

 24-4    cotton growers;

 24-5                (5)  the restructuring and repayment schedule for any

 24-6    pre-existing debt; and

 24-7                (6)  the amount of debt to be incurred in the

 24-8    eradication zone.

 24-9          (i)  The commissioner shall on a zone-by-zone basis set the

24-10    date on which assessments are due and payable.

24-11          (j)  Each year, the commissioner shall review and approve the

24-12    foundation's operating budget.

24-13          (k)  The foundation shall prepare and mail billing statements

24-14    to each cotton grower subject to the assessment that state the

24-15    amount due and the due date.  The assessments shall be remitted to

24-16    the foundation.

24-17          SECTION 1.16.  Subsections (a), (c), (d), (f), (h), and (i),

24-18    Section 74.114, Agriculture Code, are amended to read as follows:

24-19          (a)  The commissioner [foundation] shall conduct a referendum

24-20    or board election authorized under this subchapter [its

24-21    jurisdiction].  At the end of each four-year period in which an

24-22    eradication program has been operational in a zone, the

24-23    commissioner shall hold a referendum in the zone on the

24-24    continuation of the eradication program.  The referendum shall be

24-25    held at the same time as the election of a board member from the

 25-1    zone.  Approval of the referendum on continuation is by a majority

 25-2    of those voting in the referendum.

 25-3          (c)  The commissioner shall adopt rules for voting in [the

 25-4    initial] board elections [election] and [initial] referenda to

 25-5    establish or continue eradication zones.  [The board shall adopt

 25-6    rules for voting in other referenda and board elections.]  Rules

 25-7    adopted under this subsection must include provisions for

 25-8    determining:

 25-9                (1)  who is a cotton grower eligible to vote in an

25-10    election or referendum;

25-11                (2)  whether a board member is elected by a plurality

25-12    or a majority of the votes cast; and

25-13                (3)  the area from which each board member is elected.

25-14          (d)  A cotton grower having cotton production in a proposed

25-15    or established eradication zone is entitled to:

25-16                (1)  vote in a referendum concerning the eradication

25-17    zone; and

25-18                (2)  elect board members to represent the eradication

25-19    zone.

25-20          (f)  Ballots in a referendum or board election shall be

25-21    mailed directly to a central location, to be [initially] determined

25-22    by the commissioner [and later determined by the board].  A cotton

25-23    grower eligible to vote in a referendum or board election who has

25-24    not received a ballot from the commissioner, foundation, or another

25-25    source shall be offered the option of requesting a ballot by mail

 26-1    or obtaining a ballot at the office of the county agent of the

 26-2    Texas Agricultural Extension Service or a government office

 26-3    distributing ballots in a county in the proposed or established

 26-4    zone in which the referendum or board election is conducted.

 26-5          (h)  If a referendum under this subchapter is not approved,

 26-6    the [foundation may with the approval of the] commissioner may

 26-7    conduct another referendum.  A referendum under this subsection may

 26-8    not be held before one year [the 121st day] after the date on which

 26-9    the last referendum on the same issue was held.

26-10          (i)  A public hearing regarding the proposed eradication

26-11    program, including information regarding regulations to be

26-12    promulgated by the [foundation and the] commissioner, may [shall]

26-13    be held by the commissioner [foundation] in each of several

26-14    locations within each boll weevil or pink bollworm eradication

26-15    zone.  The area posted for each hearing shall include no more than

26-16    six contiguous counties that have cotton production at the time of

26-17    the hearing.

26-18          SECTION 1.17.  Section 74.115, Agriculture Code, is amended

26-19    to read as follows:

26-20          Sec. 74.115.  FAILURE TO PAY ASSESSMENTS.  (a)  A cotton

26-21    grower who fails to pay an assessment levied under this subchapter

26-22    when due may be subject, after reasonable notice and opportunity

26-23    for hearing, to a penalty set by the commissioner [board].  In

26-24    determining the amount of the penalty to be assessed, the

26-25    commissioner shall consider:

 27-1                (1)  the seriousness of the violation, including the

 27-2    nature, circumstances, and extent of the violation;

 27-3                (2)  the history of previous violations;

 27-4                (3)  the amount necessary to deter future violations;

 27-5                (4)  the economic situation of the cotton grower; and

 27-6                (5)  any other matter that justice may require.

 27-7          (b)  [A cotton grower who fails to pay all assessments and

 27-8    penalties before the 10th day after receiving notice of the

 27-9    delinquency shall destroy any cotton growing on the grower's

27-10    acreage that is subject to the assessment.  Cotton plants that are

27-11    not destroyed are a public nuisance, and, on recommendation of the

27-12    foundation, the department shall follow the procedures for

27-13    destruction of host plants provided by Subchapters A and B of this

27-14    chapter, including procedures for reimbursement by the grower of

27-15    costs required for destruction.  The department may apply to a

27-16    district court with jurisdiction in the county in which the public

27-17    nuisance is located to have the nuisance condemned and destroyed.

27-18    Injunctive relief available to the department under this subchapter

27-19    is in addition to any other legal remedy available to the

27-20    department.  The department is not required to file a bond in a

27-21    proceeding under this subsection.]

27-22          [(c)]  In addition to any other remedies for the collection

27-23    of assessments and penalties, the department may place and perfect

27-24    an assessment [a] lien on cotton produced and harvested that year

27-25    from the acreage that is subject to the assessment that is due and

 28-1    unpaid.  A buyer of cotton takes free of the assessment lien if the

 28-2    buyer has not received written or actual notice of the assessment

 28-3    lien [from the department] or if the buyer has paid for the cotton

 28-4    by a check on which the department is named as a joint payee.  In

 28-5    an action to enforce the assessment lien, the burden is on the

 28-6    department to prove that the buyer of cotton received written or

 28-7    actual notice of the assessment lien.  A buyer of cotton other than

 28-8    a person buying cotton from the cotton grower takes free of the

 28-9    assessment lien.

28-10          SECTION 1.18.  Section 74.116, Agriculture Code, is amended

28-11    to read as follows:

28-12          Sec. 74.116.  EXEMPTION FROM ASSESSMENT PENALTIES.  (a)  The

28-13    commissioner by rule shall adopt criteria for exemption from

28-14    payment of assessment penalties under Section 74.115 of this code a

28-15    cotton grower for whom payment would impose an undue financial

28-16    burden.

28-17          (b)  A cotton grower may not qualify for an exemption under

28-18    this section for a year in which the amount computed by subtracting

28-19    the assessments and penalties due under this subchapter from the

28-20    cotton grower's net income subject to federal income taxation in

28-21    the previous year is greater than $15,000.

28-22          (c)  A cotton grower who applies for an exemption under this

28-23    section must use a form prescribed by the commissioner.  A cotton

28-24    grower must file a separate application form for each year for

28-25    which the cotton grower claims an exemption.

 29-1          (d)  The [commissioner shall forward to the foundation a

 29-2    completed exemption application form.  The foundation shall

 29-3    determine whether the applicant qualifies for an exemption and

 29-4    shall notify the commissioner of its determination.]

 29-5          [(e)  On notification by the foundation that a cotton grower

 29-6    qualifies for an exemption, the commissioner shall exempt the

 29-7    cotton grower from payment of an assessment penalty under Section

 29-8    74.115 of this code.]

 29-9          [(f)  On the foundation's recommendation, the] commissioner

29-10    may establish a payment plan for a cotton grower applying for an

29-11    exemption under this section.

29-12          (e) [(g)]  The commissioner shall promptly notify an

29-13    applicant of the [foundation's] determination regarding the

29-14    applicant's request for an exemption.

29-15          (f) [(h)]  If an exemption under this section is denied,

29-16    assessments and penalties for the year for which the application is

29-17    made are due on the later of:

29-18                (1)  the date on which they would be due in the absence

29-19    of an application for exemption; or

29-20                (2)  30 days after the date the applicant receives

29-21    notice of the denial.

29-22          (g)  In addition to the authority provided under Subsections

29-23    (a)-(f), the commissioner may reduce or waive assessment penalties

29-24    as appropriate and necessary.

29-25          SECTION 1.19.  Section 74.117, Agriculture Code, is amended

 30-1    to read as follows:

 30-2          Sec. 74.117.  ENTRY OF PREMISES; ERADICATION ACTIVITIES;

 30-3    INSPECTIONS.  The department, the foundation, or a designated

 30-4    representative of either entity may enter cotton fields or other

 30-5    premises to carry out the purposes of this subchapter and

 30-6    Subchapters A and B of this chapter, which include the treatment

 30-7    and[,] monitoring[, and destruction] of growing cotton or other

 30-8    host plants.  The department, the foundation, or a designated

 30-9    representative of either entity may inspect fields or premises in

30-10    this state for the purpose of determining whether the property is

30-11    infested with the boll weevil or the pink bollworm.  An inspection

30-12    must be conducted during reasonable daylight hours.  The department

30-13    shall give notice by publication of the planned schedule of dates

30-14    for entry by the department, the foundation, or a designated

30-15    representative of either entity, to the fields or premises to carry

30-16    out the purposes of this subchapter, including treatment,

30-17    monitoring, or inspection functions.  The department shall publish

30-18    notice of the planned schedule to enter the fields or premises in a

30-19    newspaper of general circulation in the eradication zone not less

30-20    than once a week for two weeks immediately before the scheduled

30-21    dates of entry.  In addition to the notice published by the

30-22    department, the foundation shall post notice of the planned

30-23    schedule to enter fields or premises to carry out the purposes of

30-24    this subchapter at the county courthouse of each county in the

30-25    eradication zone not less than 15 days before the planned dates of

 31-1    entry.

 31-2          SECTION 1.20.  Subsections (b), (c), and (d), Section 74.120,

 31-3    Agriculture Code, are amended to read as follows:

 31-4          (b)  Rules adopted under this section shall establish the

 31-5    criteria by which the foundation develops its [rules,]

 31-6    procedures[,] and methods of treatment, which shall [rules]:

 31-7                (1)  establish a methodology for determining when boll

 31-8    weevil or pink bollworm population levels have reached economic

 31-9    significance;

31-10                (2)  establish an effective treatment regimen that

31-11    seeks to provide the least possible risk to workers, the public,

31-12    and the environment;

31-13                (3)  minimize the effects of the use of pesticides on

31-14    long-term control methods, including but not limited to the effect

31-15    a particular pesticide may have on biological controls;

31-16                (4)  establish methods for monitoring boll weevils,

31-17    pink bollworms, and secondary pests;

31-18                (5)  establish methods for verifying pesticide use

31-19    reduction; and

31-20                (6)  consider the acute and chronic toxicity of

31-21    particular pesticides and the quantity of particular pesticides

31-22    needed.  Eradication zone treatment plans may take into account the

31-23    potential for the use of smaller quantities of more toxic

31-24    substances to result in fewer health and environmental risks than

31-25    larger quantities of less toxic substances.

 32-1          (c)  The commissioner [foundation and the department] may

 32-2    adopt other reasonable rules necessary to carry out the purposes of

 32-3    this subchapter and Subchapters A and B of this chapter.   All

 32-4    rules issued under this subchapter must be adopted and published in

 32-5    accordance with state requirements.  [Rules adopted by the

 32-6    foundation under this section shall be consistent with rules

 32-7    adopted by the commissioner under this subchapter.]

 32-8          (d)  An advisory committee may [shall] be established to

 32-9    assist the commissioner in the development of rules adopted under

32-10    this section.  The advisory committee may [shall] be composed of:

32-11                (1)  three cotton growers [producers] from different

32-12    regions of the state, appointed by the commissioner;

32-13                (2)  three entomologists with knowledge of the

32-14    principles of integrated pest management, at least one of whom has

32-15    special knowledge of nonchemical or biological pest control,

32-16    appointed by the commissioner;

32-17                (3)  two individuals with experience representing the

32-18    general interests of the environment, appointed by the chair of the

32-19    Texas Natural Resource Conservation Commission;

32-20                (4)  an environmental engineer with expert knowledge of

32-21    ground and surface water protection from contamination, appointed

32-22    by the chair of the Texas Natural Resource Conservation Commission;

32-23                (5)  a toxicologist, appointed by the Commissioner of

32-24    Health; and

32-25                (6)  an individual with experience representing the

 33-1    general interests of consumers and an individual with experience

 33-2    representing the general interests of agricultural workers,

 33-3    appointed by the governor.

 33-4          SECTION 1.21.  Section 74.121, Agriculture Code, is amended

 33-5    to read as follows:

 33-6          Sec. 74.121.  REPORTS.  Each person in an active eradication

 33-7    zone growing cotton in this state shall furnish to the foundation

 33-8    on forms supplied by the foundation information that the foundation

 33-9    requires concerning the size and location of all commercial cotton

33-10    fields and of noncommercial patches of cotton grown for ornamental

33-11    or other purposes.  The foundation may provide an incentive for

33-12    early and timely reporting.

33-13          SECTION 1.22.  Section 74.124, Agriculture Code, is amended

33-14    by amending Subsection (a) and adding Subsection (c) to read as

33-15    follows:

33-16          (a)  The foundation may carry out programs to destroy and

33-17    eliminate the boll weevil and the pink bollworm in this state by

33-18    cooperating through written agreements, as approved by the

33-19    commissioner, with:

33-20                (1)  an agency of the federal government;

33-21                (2)  a state agency;

33-22                (3)  an appropriate agency of a foreign country

33-23    contiguous to the affected area to the extent allowed by federal

33-24    law;

33-25                (4)  a person who is engaged in growing, processing,

 34-1    marketing, or handling cotton; or

 34-2                (5)  a group of persons in this state involved in

 34-3    similar programs to carry out the purposes of this subchapter.

 34-4          (c)  Agreements under Subsections (a)(4)-(5) must be approved

 34-5    in each referendum required under this subchapter other than a

 34-6    referendum to discontinue an eradication program.  The agreements

 34-7    must be approved by the same margin as required in the retention

 34-8    referendum.

 34-9          SECTION 1.23.  Section 74.125, Agriculture Code, is amended

34-10    to read as follows:

34-11          Sec. 74.125.  ORGANIC COTTON GROWERS [PRODUCERS].  (a)  The

34-12    [board, in cooperation with the] commissioner[,] shall develop

34-13    rules and procedures to:

34-14                (1)  protect the eligibility of organic cotton growers

34-15    [producers] to be certified by the commissioner;

34-16                (2)  ensure that organic and transitional certification

34-17    by the commissioner continue to meet national certification

34-18    standards in order for organic cotton to maintain international

34-19    marketability; and

34-20                (3)  in all events maintain the effectiveness of the

34-21    boll weevil or pink bollworm eradication program administered under

34-22    this subchapter.

34-23          (b)  The board may not treat or require treatment of organic

34-24    cotton fields with chemicals that are not approved for use on

34-25    certified organic cotton.  Plow-up may be required as an

 35-1    alternative to chemicals.  Rules [In the rules] adopted under

 35-2    Subsection (a)[, the board] may provide indemnity for the organic

 35-3    cotton growers [producers] for reasonable losses that result from a

 35-4    prohibition of production of organic cotton or from any requirement

 35-5    of destruction of organic cotton.  If time is reasonably available

 35-6    for the production of an economically feasible alternative crop,

 35-7    the board may require mitigation of losses with the production of

 35-8    an alternative crop.

 35-9          SECTION 1.24.  Subsection (c), Section 74.126, Agriculture

35-10    Code, is amended to read as follows:

35-11          (c)  If the commissioner [or the foundation] determines that

35-12    a violation of this subchapter or a rule adopted under this

35-13    subchapter has occurred, the commissioner [or the foundation] may

35-14    request that the attorney general or the county or district

35-15    attorney of the county in which the alleged violation occurred or

35-16    is occurring file suit for civil, injunctive, and/or other

35-17    appropriate relief.

35-18          SECTION 1.25.  Subchapter D, Chapter 74, Agriculture Code, is

35-19    amended by adding Sections 74.128, 74.129, and 74.130 to read as

35-20    follows:

35-21          Sec. 74.128.  ANNUAL REPORT.  The board shall issue to the

35-22    commissioner and the appropriate oversight committee in the house

35-23    of representatives an annual report detailing its efforts to carry

35-24    out the purposes of this subchapter.

35-25          Sec. 74.129.  EXEMPTION FROM LAWSUITS, LIABILITY, TAXATION,

 36-1    AND LEGAL PROCESS.  The legislature recognizes that the foundation,

 36-2    acting under the supervision and control of the commissioner, is

 36-3    carrying out an important governmental function and that therefore

 36-4    the foundation, as a quasi-governmental entity, must be immune from

 36-5    lawsuits and liability except to the extent provided in Chapter

 36-6    101, Civil Practice and Remedies Code, and as provided by this

 36-7    section.  Therefore, no claims may be brought or continued against

 36-8    the foundation except:  (1) claims allowed by Chapter 101, Civil

 36-9    Practice and Remedies Code; and (2) claims pending against the

36-10    foundation on April 30, 1997, plus attorney's fees and costs of

36-11    court.  With the exception of finally adjudicated claims arising

36-12    from Chapter 101, Civil Practice and Remedies Code, and claims for

36-13    assessments, attorney's fees, and costs of court paid by named

36-14    plaintiffs in lawsuits pending on or before April 30, 1997, all

36-15    payments, contributions, funds, and assessments received or held by

36-16    the foundation under this subchapter are exempt from garnishment,

36-17    attachment, execution, or other seizure and from state and local

36-18    taxation, levies, sales, and any other process and are

36-19    unassignable.  Nothing in this section shall affect or impair any

36-20    existing or future indebtedness or any existing or future security

36-21    interest created under a note, security agreement, assignment, or

36-22    other loan agreement between the foundation and a lender or any

36-23    judgment, to the extent such judgment allows recovery against the

36-24    foundation pursuant to a note, security agreement, loan agreement,

36-25    or other document.

 37-1          Sec. 74.130.  USE OF BIO-INTENSIVE CONTROLS.  (a)  The

 37-2    commissioner shall develop and adopt rules to allow a cotton grower

 37-3    in an eradication program to use biological, botanical, or other

 37-4    non-synthetic pest control methods.  In developing the rules, the

 37-5    commissioner shall consider:

 37-6                (1)  scientific studies and field trials of the

 37-7    effectiveness of a proposed alternative control method;

 37-8                (2)  the feasibility of using a proposed alternative

 37-9    control technique within a particular region;

37-10                (3)  the degree of monitoring necessary to establish

37-11    the success of the use of a proposed alternative control; and

37-12                (4)  methods to prevent the use of substances that

37-13    would impede the use of alternative controls and the promotion of

37-14    beneficial insect populations.

37-15          (b)  A cotton grower that chooses to use an alternative

37-16    method of control as provided in Subsection (a) shall notify the

37-17    board.  The board and the cotton grower shall coordinate their

37-18    actions to prevent the use of substances that would impede the use

37-19    of alternative controls and the promotion of beneficial insect

37-20    populations.

37-21          (c)  The cotton grower shall pay any additional cost of

37-22    bio-intensive control in addition to any assessment.

37-23          SECTION 1.26.  (a)  All agreements made and obligations

37-24    incurred by the Texas Boll Weevil Eradication Foundation, Inc.,

37-25    before the effective date of this Act are validated, ratified, and

 38-1    confirmed.  The foundation's members, directors, officers,

 38-2    employees, and agents are not individually liable for, or in

 38-3    connection with, any agreement or obligation validated under this

 38-4    section.

 38-5          (b)  Except for instances of gross negligence, individual

 38-6    criminal actions, or acts of dishonesty, the foundation's members,

 38-7    directors, officers, and employees are not individually liable to a

 38-8    cotton grower or other person for errors in judgment, mistakes, or

 38-9    other acts or omissions made or occurring before the effective date

38-10    of this Act under the authority of Subchapter D, Chapter 74,

38-11    Agriculture Code, as originally enacted or subsequently amended.

38-12          (c)  This section does not make any obligation validated,

38-13    ratified, or confirmed under this section a debt of this state.

38-14          SECTION 1.27.  (a)  To the extent assessments have not been

38-15    previously validated, ratified, and confirmed, assessments approved

38-16    on February 28, 1994, for the Southern Rolling Plains Boll Weevil

38-17    Eradication Zone, on December 1, 1994, and August 2, 1996, for the

38-18    Central Rolling Plains Boll Weevil Eradication Zone, and on

38-19    February 16, 1995, for the South Texas/Winter Garden Boll Weevil

38-20    Eradication Zone, and all agreements and obligations of the

38-21    foundation related to the statutory zones made or approved before

38-22    the effective date of this Act are validated, ratified, and

38-23    confirmed and shall continue under this subsection.  In any

38-24    eradication zone existing prior to the effective date of this Act,

38-25    other than zones named in this subsection, assessments are

 39-1    validated, ratified, and confirmed only as to amounts actually

 39-2    collected by the Texas Boll Weevil Eradication Foundation, Inc.,

 39-3    prior to the effective date of this Act.  For purposes of this

 39-4    subsection, any assessments in any such pre-existing zone which

 39-5    have been deposited in the registry of a court of this state on or

 39-6    before April 30, 1997, or paid by named plaintiffs in a pleading

 39-7    filed on or before April 30, 1997, in lawsuits against the

 39-8    foundation are not assessments actually collected by the

 39-9    foundation.

39-10          (b)  Not later than October 20, 1997, the commissioner of

39-11    agriculture shall hold a retention referendum and board election in

39-12    the South Texas Winter Garden Eradication Zone to determine the

39-13    continued necessity of an eradication program under Section 74.114,

39-14    Agriculture Code, as amended by this Act.  The retention referendum

39-15    will be determined by a vote of the majority of the cotton growers

39-16    voting in the retention referendum.  Only a diapause program may be

39-17    carried out until that time.

39-18          (c)  Not later than one year after the effective date of this

39-19    Act, the commissioner of agriculture shall hold a retention

39-20    referendum and board election in the Southern Rolling Plains

39-21    Eradication Zone and the Rolling Plains Central Eradication Zone to

39-22    determine the continued necessity of an eradication program under

39-23    Section 74.114, Agriculture Code, as amended by this Act.  The

39-24    retention referendum will be determined by a vote of the majority

39-25    of the cotton growers voting in the retention referendum.

 40-1          (d)  The commissioner of agriculture may, in each statutory

 40-2    zone, solicit public comment through public hearings to determine

 40-3    whether to divide any of the statutory zones as defined in Section

 40-4    74.1021, Agriculture Code, as added by this Act.  After considering

 40-5    public opinion, the commissioner may by rule divide a statutory

 40-6    zone and fairly apportion any debt to each portion of the divided

 40-7    zone.

 40-8          (e)  The commissioner of agriculture shall conduct an

 40-9    eradication referendum under Section 74.114, Agriculture Code, as

40-10    amended by this Act in the Southern High Plains-Caprock Eradication

40-11    Zone not later than August 1, 1997.  The commissioner shall comply

40-12    with the notice requirements of Subchapter D, Chapter 74,

40-13    Agriculture Code, as amended by this Act, and other law, to the

40-14    extent reasonable to conduct the eradication referendum required

40-15    under this subsection.  In the event the initial referendum

40-16    required by this subsection is unsuccessful, the commissioner may

40-17    also hold one referendum under Section 74.114, Agriculture Code, as

40-18    amended by this Act, in the Southern High Plains-Caprock

40-19    Eradication Zone during the 1998 calendar year, notwithstanding the

40-20    provisions of Subsection (e), Section 74.105, or Subsection (h),

40-21    Section 74.114, Agriculture Code.

40-22          (f)  For purposes of Subsection (a), Section 74.114,

40-23    Agriculture Code, as amended by this Act, the four-year period in

40-24    which an eradication program has been operational begins on a date

40-25    after the effective date of this Act.

 41-1          (g)  Rules adopted before the effective date of this Act by

 41-2    the commissioner of agriculture in accordance with Sections 74.114,

 41-3    74.118, and 74.120, Agriculture Code, and published as Sections 3.1

 41-4    through 3.6, 3.20 through 3.24, and 3.50 through 3.57, Chapter 3,

 41-5    Title 4, Texas Administrative Code, are validated, ratified, and

 41-6    confirmed on the effective date of this Act and shall continue in

 41-7    effect to the extent the rules are consistent with this Act until

 41-8    amended or repealed by the commissioner.

 41-9          SECTION 1.28.  The Texas Boll Weevil Eradication Foundation,

41-10    Inc., shall, not later than 30 days after the effective date of

41-11    this Act, take whatever steps are necessary to adjust the

41-12    composition of its board of directors to permit the commissioner of

41-13    agriculture to appoint board members in compliance with Section

41-14    74.107, Agriculture Code, as amended by this Act.  If the

41-15    foundation does not comply with Section 74.107, Agriculture Code,

41-16    as amended by this Act,  the commissioner may cancel the

41-17    designations and designate another nonprofit entity that meets the

41-18    qualifications of Section 74.107, Agriculture Code, as amended by

41-19    this Act.  In the interim, the current directors and officers of

41-20    the foundation shall remain in office and carry out the

41-21    foundation's duties under Subchapter D, Chapter 74, Agriculture

41-22    Code, as amended by this Act.

41-23          SECTION 1.29.  The commissioner of agriculture shall develop

41-24    and adopt rules regarding the use of bio-intensive controls as

41-25    required under Section 74.130, Agriculture Code, as added by this

 42-1    Act, not later than September 1, 1998.  An eradication program

 42-2    continues as otherwise provided by Subchapter D, Chapter 74,

 42-3    Agriculture Code, as amended by this Act, during the period before

 42-4    initial rules are adopted under Section 74.130, Agriculture Code,

 42-5    as added by this Act.

 42-6          SECTION 1.30.  Sections 74.103 and 74.104, Agriculture Code,

 42-7    are repealed.

 42-8                                 ARTICLE 2

 42-9          SECTION 2.01.  Subsections (b) and (c), Section 74.105,

42-10    Agriculture Code, are reenacted to read as follows:

42-11          (b)  Eradication zone referenda shall be conducted under the

42-12    procedures provided by Section 74.114 of this code.

42-13          (c)  A proposed eradication zone referendum ballot must

42-14    include or be accompanied by information about the proposed

42-15    eradication zone, including:

42-16                (1)  a statement of the purpose of the boll weevil or

42-17    pink bollworm eradication program;

42-18                (2)  the geographic area included in the proposed

42-19    eradication zone;

42-20                (3)  a general summary of rules adopted by the

42-21    commissioner under Sections 74.114, 74.118, and 74.120 of this

42-22    code, including a description of:

42-23                      (A)  cotton grower responsibilities; and

42-24                      (B)  penalties for noncompliance with rules

42-25    adopted under this subchapter; and

 43-1                (4)  an address and toll-free telephone number that a

 43-2    cotton grower may use to request more information about the

 43-3    referendum or the boll weevil or pink bollworm eradication program.

 43-4          SECTION 2.02.  Subsections (b), (e), (f), and (g), Section

 43-5    74.106, Agriculture Code, are reenacted to read as follows:

 43-6          (b)  A board election shall be conducted under the procedures

 43-7    provided by this section and Section 74.114 of this code.

 43-8          (e)  On receipt of an application and verification that the

 43-9    application meets the requirements of Subsection (d) of this

43-10    section, an applicant's name shall be placed on the ballot for the

43-11    board election.

43-12          (f)  An eligible voter may vote for a cotton grower whose

43-13    name does not appear on the official ballot by writing that

43-14    person's name on the ballot.

43-15          (g)  A board election must be preceded by at least 45 days

43-16    notice published in one or more newspapers published and

43-17    distributed in the proposed or established eradication zone.  The

43-18    notice shall be published not less than once a week for three

43-19    consecutive weeks.  Not later than the 45th day before the date of

43-20    the election, direct written notice of the election shall be given

43-21    to each county agent in the eradication zone.

43-22          SECTION 2.03.  Subsections (b), (c), and (f), Section 74.109,

43-23    Agriculture Code, are reenacted to read as follows:

43-24          (b)  Not later than the 45th day after the last day of the

43-25    fiscal year, the board shall submit to the commissioner a report

 44-1    itemizing all income and expenditures and describing all activities

 44-2    of the foundation during the fiscal year.

 44-3          (c)  The foundation shall provide fidelity bonds in amounts

 44-4    determined by the board for employees or agents who handle funds

 44-5    for the foundation.

 44-6          (f)  The foundation is a governmental unit under Section

 44-7    101.001, Civil Practice and Remedies Code, and is entitled to

 44-8    governmental immunity.  A tort claim against the foundation must be

 44-9    made under Chapter 101, Civil Practice and Remedies Code.

44-10          SECTION 2.04.  Section 74.111, Agriculture Code, is reenacted

44-11    to read as follows:

44-12          Sec. 74.111.  BOARD MEMBER COMPENSATION.  Board members serve

44-13    without compensation but are entitled to reimbursement for

44-14    reasonable and necessary expenses incurred in the discharge of

44-15    their duties.

44-16          SECTION 2.05.  Subsections (a) through (e), Section 74.112,

44-17    Agriculture Code, are reenacted to read as follows:

44-18          (a)  On the determination by the foundation that the boll

44-19    weevil eradication program has been completed in all eradication

44-20    zones established under this subchapter for boll weevil control and

44-21    the pink bollworm eradication program has been completed in any

44-22    eradication zone established under this chapter for pink bollworm

44-23    control, the foundation shall provide notice of such completion to

44-24    the commissioner along with a request for discontinuance of the

44-25    eradication program and collection of the assessment.  Any such

 45-1    request shall include documentation supporting the eradication of

 45-2    the boll weevil in all eradication zones established for boll

 45-3    weevil eradication or pink bollworm in any eradication zone

 45-4    established for pink bollworm eradication and a plan for

 45-5    discontinuance of the program and assessment.

 45-6          (b)  The commissioner shall determine whether or not the

 45-7    further elimination of the boll weevil or pink bollworm is

 45-8    necessary in the eradication zones and approve or disapprove

 45-9    discontinuance of the foundation and the plan for dissolution.

45-10          (c)  On completion of dissolution, the foundation shall file

45-11    a final report with the commissioner, including a financial report,

45-12    and submit all remaining funds into the trust of the commissioner.

45-13    Final books of the foundation shall be filed with the commissioner

45-14    and are subject to audit by the department.

45-15          (d)  The commissioner shall pay from the foundation's

45-16    remaining funds all of the foundation's outstanding obligations.

45-17          (e)  Funds remaining after payment under Subsection (d) of

45-18    this section shall be returned to contributing cotton growers on a

45-19    pro rata basis.

45-20          SECTION 2.06.  Subsections (b), (e), (g), and (j), Section

45-21    74.114, Agriculture Code, are reenacted to read as follows:

45-22          (b)  The foundation shall bear all expenses incurred in

45-23    conducting a referendum or board election.

45-24          (e)  An eligible cotton grower may vote only once in a

45-25    referendum or board election.

 46-1          (g)  A referendum is approved if:

 46-2                (1)  at least two-thirds of those voting vote in favor

 46-3    of the referendum; or

 46-4                (2)  those voting in favor of the referendum farm more

 46-5    than 50 percent, as determined by the commissioner, of the cotton

 46-6    acreage in the relevant eradication zone.

 46-7          (j)  Individual voter information, including an individual's

 46-8    vote in a referendum or board election conducted under this

 46-9    section, is confidential and is not subject to disclosure under the

46-10    open records law, Chapter 552, Government Code.

46-11          SECTION 2.07.  Section 74.118, Agriculture Code, is reenacted

46-12    to read as follows:

46-13          Sec. 74.118.  AUTHORITY TO PROHIBIT PLANTING OF COTTON AND

46-14    REQUIRE PARTICIPATION IN ERADICATION PROGRAM.  (a)  The

46-15    commissioner may adopt reasonable rules regarding areas where

46-16    cotton may not be planted in an eradication zone if there is reason

46-17    to believe planting will jeopardize the success of the program or

46-18    present a hazard to public health or safety.

46-19          (b)  The commissioner may adopt rules prohibiting the

46-20    planting of noncommercial cotton in eradication zones and requiring

46-21    that all growers of commercial cotton in an eradication zone

46-22    participate in a boll weevil or pink bollworm eradication program

46-23    that includes cost sharing as required by the rules.

46-24          (c)  Notice of prohibitions and requirements shall be given

46-25    by publication for one day each week for three successive weeks in

 47-1    a newspaper having general circulation in the affected area.

 47-2          (d)  The commissioner may adopt a reasonable schedule of

 47-3    penalty fees to be assessed against growers in a designated

 47-4    eradication zone who do not meet the requirements of the rules

 47-5    issued by the commissioner relating to reporting of acreage and

 47-6    participation in cost sharing.  The penalty fees adopted may not

 47-7    exceed $50 per acre.

 47-8          (e)  If a grower fails to meet the requirements of rules

 47-9    adopted by the commissioner, the commissioner may order the

47-10    destruction of cotton not in compliance with the rules.  Costs

47-11    incurred by the commissioner in the destruction of cotton may be

47-12    assessed against the grower.

47-13          SECTION 2.08.  Section 74.119, Agriculture Code, is reenacted

47-14    to read as follows:

47-15          Sec. 74.119.  AUTHORITY FOR DESTRUCTION OR TREATMENT OF

47-16    COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE.  The department

47-17    may destroy or treat volunteer or other noncommercial cotton and

47-18    establish procedures for the purchase and destruction of commercial

47-19    cotton in eradication zones if the department determines the action

47-20    is necessary to carry out the purposes of this subchapter.  The

47-21    department is not liable to the owner or lessee for the destruction

47-22    of or injury to any cotton that was planted in an eradication zone

47-23    after publication of notice as provided by this subchapter.  The

47-24    foundation is liable for the destruction of cotton if the cotton

47-25    was planted in an eradication zone before publication of the

 48-1    notice.

 48-2          SECTION 2.09.  Subsection (a), Section 74.120, Agriculture

 48-3    Code, is reenacted to read as follows:

 48-4          (a)  The commissioner shall adopt rules to protect

 48-5    individuals, livestock, wildlife, and honeybee colonies on any

 48-6    premises in an eradication zone on which cotton plants are being

 48-7    grown that have been or are being treated to eradicate the boll

 48-8    weevil or the pink bollworm.

 48-9          SECTION 2.10.  Section 74.122, Agriculture Code, is reenacted

48-10    to read as follows:

48-11          Sec. 74.122.  QUARANTINE.  The department may adopt rules

48-12    relating to quarantining areas of this state that are infested with

48-13    the boll weevil or the pink bollworm.  The rules must address the

48-14    storage of regulated articles and the movement of regulated

48-15    articles into and out of a quarantined area.  The department may

48-16    also adopt rules governing the movement of regulated articles from

48-17    other states into this state if the articles are known to be

48-18    infested with the boll weevil or the pink bollworm.

48-19          SECTION 2.11.  Section 74.123, Agriculture Code, is reenacted

48-20    to read as follows:

48-21          Sec. 74.123.  DOCUMENTING REGULATED ARTICLES.  To implement

48-22    this subchapter, the department may issue or authorize issuance of:

48-23                (1)  a certificate that indicates that a regulated

48-24    article is not infested with the boll weevil or the pink bollworm;

48-25    and

 49-1                (2)  a permit that provides for the movement of a

 49-2    regulated article to a restricted designation for limited handling,

 49-3    use, or processing.

 49-4          SECTION 2.12.  Subsection (b), Section 74.124, Agriculture

 49-5    Code, is reenacted to read as follows:

 49-6          (b)  An agreement entered into under this section may provide

 49-7    for cost sharing and for division of duties and responsibilities

 49-8    under this subchapter and may include other provisions to carry out

 49-9    the purposes of this subchapter.

49-10          SECTION 2.13.  Subsections (a) and (b), Section 74.126,

49-11    Agriculture Code, are reenacted to read as follows:

49-12          (a)  A person who violates this subchapter or a rule adopted

49-13    under this subchapter or who alters, forges, counterfeits, or uses

49-14    without authority a certificate, permit, or other document issued

49-15    under this subchapter or under a rule adopted under this subchapter

49-16    commits an offense.

49-17          (b)  An offense under this section is a Class C misdemeanor.

49-18          SECTION 2.14.  Section 74.127, Agriculture Code, is reenacted

49-19    to read as follows:

49-20          Sec. 74.127.  SUNSET PROVISION.  (a)  The board is subject to

49-21    Chapter 325, Government Code (Texas Sunset Act).  Unless continued

49-22    in existence as provided by that chapter, the board is abolished

49-23    and this subchapter expires September 1, 2004.

49-24          (b)  The commissioner may order the dissolution of the

49-25    foundation at any time the commissioner determines that the

 50-1    purposes of this subchapter have been fulfilled or that the

 50-2    foundation is inoperative and abandoned.  Dissolution shall be

 50-3    conducted in accordance with Section 74.112 of this code.

 50-4          (c)  If the foundation is abolished or the program

 50-5    discontinued for any reason, assessments approved, levied, or

 50-6    otherwise collectible on the date of abolishment remain valid as

 50-7    necessary to pay the financial obligations of the foundation.

 50-8                                 ARTICLE 3

 50-9          SECTION 3.01.  The importance of this legislation and the

50-10    crowded condition of the calendars in both houses create an

50-11    emergency and an imperative public necessity that the

50-12    constitutional rule requiring bills to be read on three several

50-13    days in each house be suspended, and this rule is hereby suspended,

50-14    and that this Act take effect and be in force from and after its

50-15    passage, and it is so enacted.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I hereby certify that S.B. No. 1814 passed the Senate on

         May 16, 1997, by the following vote:  Yeas 30, Nays 0; and that the

         Senate concurred in House amendments on May 29, 1997, by the

         following vote:  Yeas 30, Nays 0.

                                             _______________________________

                                                 Secretary of the Senate

               I hereby certify that S.B. No. 1814 passed the House, with

         amendments, on May 27, 1997, by the following vote:  Yeas 145,

         Nays 0, one present not voting.

                                             _______________________________

                                                 Chief Clerk of the House

         Approved:

         _______________________________

                     Date

         _______________________________

                   Governor