75R16227 E                          

         By Duncan, et al.                                     S.B. No. 1814

         Substitute the following for S.B. No. 1814:

         By Swinford                                       C.S.S.B. No. 1814

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to modifications of the official cotton growers' boll

 1-3     weevil eradication program.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5                                  ARTICLE 1

 1-6           SECTION 1.01.  Section 74.101, Agriculture Code, is amended

 1-7     to read as follows:

 1-8           Sec. 74.101.  FINDINGS AND DECLARATION OF POLICY.  (a)  It is

 1-9     hereby found and declared that:

1-10                 (1)  the insects Anthonomus grandis Boheman, known as

1-11     the boll weevil, and Pectinophora gossypiella, known as the pink

1-12     bollworm, are public nuisances and a menace to the cotton industry,

1-13     and their eradication is a public necessity [boll weevil entered

1-14     Texas from Mexico in 1892 and presents a major economic threat to

1-15     Texas' cotton crop];

1-16                 (2)  because of the differences in soil conditions,

1-17     growing seasons, farming techniques, and climate conditions among

1-18     several areas in the state where cotton is grown, the eradication

1-19     and suppression of the nuisance can best be accomplished by

1-20     dividing the cotton-growing areas into separate zones so that

1-21     integrated pest management programs may be developed for each zone

1-22     [there exists a need to develop, carry out, and participate in

1-23     programs of research such as disease and insect control;  marketing

1-24     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 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

2-26     integrated pest management techniques.

2-27           (c)  The department may recover costs for administration of

 3-1     this subchapter.

 3-2           [(c) The creation and use of a boll weevil eradication

 3-3     foundation as a vehicle to provide for assessments and governing

 3-4     boards and to establish eradication zones in order to suppress and

 3-5     eradicate boll weevils and other cotton pests are consistent with

 3-6     the goals and uses of revenue established under Article XVI,

 3-7     Section 68, of the Texas Constitution.]

 3-8           SECTION 1.02.  Subchapter D, Chapter 74, Agriculture Code, is

 3-9     amended by adding Section 74.1011 to read as follows:

3-10           Sec. 74.1011.  DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL

3-11     ERADICATION.  (a)  The Texas Boll Weevil Eradication Foundation,

3-12     Inc., a Texas nonprofit corporation chartered by the secretary of

3-13     state on September 14, 1993, shall be recognized by the department

3-14     as the entity to plan, carry out, and operate eradication and

3-15     diapause programs to eliminate the boll weevil and the pink

3-16     bollworm from cotton in the state under the supervision of the

3-17     department as provided by this subchapter.

3-18           (b)  The commissioner may terminate the foundation's

3-19     designation as the entity recognized to carry out boll weevil

3-20     eradication by giving 45 days' written notice to the foundation and

3-21     by designating a successor entity.  If the commissioner designates

3-22     a successor to the foundation, the successor has all the powers and

3-23     duties of the foundation under this subchapter.  Any successor to

3-24     the foundation shall assume and shall be responsible for all

3-25     obligations and liabilities relating to any notes, security

3-26     agreements, assignments, loan agreements, and any other contracts

3-27     or other documents entered into by the foundation with or for the

 4-1     benefit of any financial institution or its predecessor, successor,

 4-2     or assignee.

 4-3           SECTION 1.03.  Section 74.102, Agriculture Code, is amended

 4-4     to read as follows:

 4-5           Sec. 74.102.  DEFINITIONS.  In this subchapter:

 4-6                 (1)  "Board" means the board of directors of the Texas

 4-7     Boll Weevil Eradication Foundation, Inc [official cotton growers'

 4-8     boll weevil eradication foundation].

 4-9                 (2)  "Boll weevil" has the meaning assigned by Section

4-10     74.002 [of this code].

4-11                 (3)  "Commissioner" means commissioner of agriculture.

4-12                 (4)  "Cotton" means:

4-13                       (A)  a cotton plant;

4-14                       (B)  a part of a cotton plant, including bolls,

4-15     stalks, flowers, roots, and leaves; or

4-16                       (C)  cotton products, including seed cotton,

4-17     cottonseed, and hulls.

4-18                 (5)  "Cotton grower" means a person [an individual] who

4-19     grows cotton and receives income [on or after June 1, 1992,] from

4-20     the sale of cotton.  The term includes an individual who as owner,

4-21     landlord, tenant, or sharecropper is entitled to share in the

4-22     cotton grown and available for marketing from a farm or to share in

4-23     the proceeds from the sale of the cotton from the farm[, under 7

4-24     C.F.R. Part 1413].

4-25                 (6)  "Eradication" means elimination of boll weevils or

4-26     pink bollworms to the extent that the commissioner does not

4-27     consider further elimination of boll weevils or pink bollworms

 5-1     necessary to prevent economic loss to cotton growers.  Eradication

 5-2     includes diapause activities.

 5-3                 (7)  "Eradication zone" means a geographic area:

 5-4                       (A)  established under Section 74.1021; or

 5-5                       (B)  designated by the commissioner in accordance

 5-6     with Section 74.105 in which cotton growers by referendum approve

 5-7     their participation in a boll weevil or pink bollworm eradication

 5-8     program.

 5-9                 (8)  "Foundation" means the Texas Boll Weevil

5-10     Eradication Foundation, Inc., a Texas nonprofit corporation

5-11     [official cotton growers' boll weevil eradication foundation].

5-12                 (9)  ["High Plains Boll Weevil Suppression Program

5-13     Area" includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby,

5-14     Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,

5-15     Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,

5-16     Swisher, Terry, and Yoakum counties.  The High Plains Boll Weevil

5-17     Suppression Program Area may also include other counties or parts

5-18     of counties if areas are added to the High Plains Boll Weevil

5-19     Suppression Program Area as provided under this subchapter.]

5-20                 [(10)]  "Host" means a plant or plant product in which

5-21     the boll weevil or pink bollworm is capable of completing any

5-22     portion of its life cycle.

5-23                 (10) [(11)]  "Infested" means the presence of the boll

5-24     weevil or pink bollworm in any life stage or the existence of

5-25     generally accepted entomological evidence from which it may be

5-26     concluded with reasonable certainty that the boll weevil or pink

5-27     bollworm is present.

 6-1                 (11) [(12)]  "Integrated pest management" is the

 6-2     coordinated use of pest and environmental information with

 6-3     available pest control methods to prevent unacceptable levels of

 6-4     pest damage by the most economical means and with the least

 6-5     possible hazard to people, property, and the environment.

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

 6-7     Section 74.002.

 6-8                 (13)  "Regulated article" means an article carrying or

 6-9     capable of carrying the boll weevil or pink bollworm, including

6-10     cotton plants, seed cotton, gin trash, other hosts, or mechanical

6-11     cotton harvesters.

6-12                 [(14)  "St. Lawrence Cotton Growers Boll Weevil Control

6-13     Zone" may include, subject to change as provided under this

6-14     subchapter, all or part of Glasscock, Reagan, Upton, south Midland,

6-15     or other counties.]

6-16                 [(15)  The pink bollworm eradication zone includes

6-17     Reeves and Pecos counties.]

6-18           SECTION 1.04.  Subchapter D, Chapter 74, Agriculture Code, is

6-19     amended by adding Section 74.1021 to read as follows:

6-20           Sec. 74.1021.  STATUTORY ZONES.  (a)  The Northern High

6-21     Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,

6-22     Castro, Floyd, Hale, Lamb, Parmer, Randall, and Swisher counties,

6-23     and other areas as proposed by the commissioner by rule for

6-24     inclusion in the zone and approved by referendum in the area to be

6-25     added.

6-26           (b)  The Rolling Plains Central Eradication Zone consists of

6-27     Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,

 7-1     Jones, Knox, Mitchell, Nolan, Palo Pinto, Scurry, Shackelford,

 7-2     Stephens, Stonewall, Throckmorton, and Young counties; all land in

 7-3     Archer County south of a line following Farm-to-Market Road 422

 7-4     commencing at the Baylor County line running east to the

 7-5     intersection of Farm-to-Market Road 210, continuing east to the

 7-6     intersection of State Highway 25, and continuing east to the Clay

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

 7-8     west of the Scurry County line running south from the Garza County

 7-9     line to the Howard County line; and all land in Taylor County east

7-10     of U.S.  Highway 83 from a point commencing at the intersection of

7-11     U.S.  Highway 83 and the south Taylor County line, north to the

7-12     town of Bradshaw; thence north of Farm-to-Market Road 1086, as the

7-13     farm-to-market road proceeds west and north to the intersection of

7-14     the Farm-to-Market Road 1086 and U.S. Highway 277, being all land

7-15     lying north of the farm-to-market road and west of U.S. Highway 277

7-16     from the intersection of Farm-to-Market Road 1086 and U.S. Highway

7-17     277 to the point where U.S. Highway 277 intersects the south

7-18     boundary line of Taylor County; all land in Brown County east of a

7-19     line following State Highway 279 to Brownwood and continuing along

7-20     U.S. Highway 377 south to the McCulloch County line; and other

7-21     areas as proposed by the commissioner by rule for inclusion in the

7-22     zone and approved by referendum in the area to be added.

7-23           (c)  The St. Lawrence Eradication Zone consists of that area

7-24     of Midland County south of a line 15 miles south of Interstate 20

7-25     running from the Ector County line east to the Glasscock County

7-26     line; Glasscock, Reagan, and Upton counties; and other areas as

7-27     proposed by the commissioner by rule for inclusion in the zone and

 8-1     approved by referendum in the area to be added.

 8-2           (d)  The South Texas Winter Garden Eradication Zone consists

 8-3     of Aransas, Atascosa, Austin, Bee, Bexar, Brazoria, Calhoun,

 8-4     Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Goliad, Jackson,

 8-5     Jim Wells, Karnes, Kinney, Kleberg, La Salle, Lavaca, Live Oak,

 8-6     Matagorda, McMullen, Medina, Nueces, Refugio, San Patricio, Uvalde,

 8-7     Victoria, Wharton, Wilson, and Zavala counties, and other areas as

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

 8-9     approved by referendum in the area to be added.  Austin, Brazoria,

8-10     Colorado, Fort Bend, Jackson, Matagorda, and Wharton counties are

8-11     included in the South Texas Winter Garden Eradication Zone only for

8-12     purposes of the repayment of debt existing on April 30, 1997, and

8-13     those counties may not be included in the zone for any other

8-14     purpose unless the commissioner by rule proposes that an area be

8-15     included in the zone and the proposal is approved by referendum in

8-16     the area to be added.  The commissioner may apportion any debt

8-17     existing on April 30, 1997, and designate the appropriate

8-18     assessment.

8-19           (e)  The Southern High Plains-Caprock Eradication Zone

8-20     consists of Andrews, Cochran, Crosby, Dawson, Dickens, Ector,

8-21     Gaines, Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin,

8-22     Motley, Terry, and Yoakum counties; all land in Borden County lying

8-23     west of a line seven miles west of the Scurry County line running

8-24     south from the Garza County line to the Howard County line; that

8-25     area of Midland County north of a line 15 miles south of Interstate

8-26     20 running from the Ector County line east to the Glasscock County

8-27     line; and other areas as proposed by the commissioner by rule for

 9-1     inclusion in the zone and approved by referendum in the area to be

 9-2     added.

 9-3           (f)  The Southern Rolling Plains Eradication Zone consists of

 9-4     Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and

 9-5     Tom Green counties, all land in Taylor County lying west of U.S.

 9-6     Highway 83 from a point commencing at the intersection of U.S.

 9-7     Highway 83 and the south Taylor County line, north of the town of

 9-8     Bradshaw; thence all the land lying south of Farm-to-Market Road

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

9-10     intersection with U.S. Highway 277, being all land lying south of

9-11     the farm-to-market road and east of U.S. Highway 277 from the

9-12     intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to

9-13     the point where U.S.  Highway 277 intersects the south boundary

9-14     line of Taylor County, and other areas as proposed by the

9-15     commissioner by rule for inclusion in the zone and approved by

9-16     referendum in the area to be added.

9-17           SECTION 1.05.  Subchapter D, Chapter 74, is amended by adding

9-18     Sections 74.1041 and 74.1042 to read as follows:

9-19           Sec. 74.1041.  INTERIM ADVISORY GROUPS.  (a)  The

9-20     commissioner may designate an interim advisory group for each

9-21     geographic statutory zone or region of the state that is to be

9-22     considered by the commissioner for inclusion in an eradication

9-23     zone.  The groups shall gather advice, input, and guidance from

9-24     cotton growers from each area of the state concerning the interest

9-25     in and concerns about the implementation of this subchapter.

9-26           (b)  Each interim advisory group shall consider and make

9-27     recommendations to the commissioner concerning:

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

 10-2    eradication zone;

 10-3                (2)  the amount of local interest in operating an

 10-4    eradication program;

 10-5                (3)  the basis and amount of an assessment necessary to

 10-6    support an eradication program;

 10-7                (4)  the need to restructure any pre-existing debt from

 10-8    prior eradication activities;

 10-9                (5)  crediting a cotton grower's 1996 assessment

10-10    payments to any future assessment; and

10-11                (6)  any other matter requested by the commissioner.

10-12          (c)  Each interim advisory group shall include at least one

10-13    cotton grower from each county in the zone and other persons as

10-14    determined by the commissioner.

10-15          Sec. 74.1042.  CREATION OF NONSTATUTORY ERADICATION ZONES.

10-16    (a)  The commissioner may by rule designate an area of the state as

10-17    a proposed eradication zone as long as the area is not within a

10-18    statutory zone under Section 74.1021 that has approved an

10-19    eradication program by referendum.

10-20          (b)  The commissioner may hold a public hearing within the

10-21    proposed eradication zone to discuss the proposed geographic

10-22    boundaries of the zone.  The public hearing may include any other

10-23    topics allowed under this subchapter.

10-24          (c)  After the adoption of a rule under Subsection (a), the

10-25    commissioner shall conduct a referendum under Section 74.105.

10-26          SECTION 1.06.  Subsections (a), (d), (e), and (f), Section

10-27    74.105, Agriculture Code, are amended to read as follows:

 11-1          (a)  The commissioner [organization certified under Section

 11-2    74.104 of this code or the foundation] shall conduct a referendum

 11-3    in each proposed eradication zone to determine whether cotton

 11-4    growers desire to establish an [official boll weevil or pink

 11-5    bollworm] eradication zone.

 11-6          (d)  If a referendum to establish an eradication zone fails,

 11-7    the concurrent election of a board member [members] from the

 11-8    proposed eradication zone under Section 74.106 [of this code] has

 11-9    no effect, and the commissioner shall appoint a representative to

11-10    the board from the area.

11-11          (e)  The [organization certified under Section 74.104 of this

11-12    code or the] foundation[, as appropriate,] may request the

11-13    commissioner to call additional referenda in a proposed eradication

11-14    zone in which a referendum has failed.  An additional eradication

11-15    zone referendum and concurrent board election may be held no

11-16    earlier than one year [the 121st day] after the date of the last

11-17    referendum.

11-18          (f)  After the passage of any referendum, the eligible voters

11-19    shall be allowed, by subsequent referenda [periodically as

11-20    specified in the initial referendum], to vote on whether to

11-21    continue their assessments.  All of the requirements for an initial

11-22    referendum must be met in subsequent referenda.

11-23          SECTION 1.07.  Section 74.106, Agriculture Code, is amended

11-24    by amending Subsections (a), (c), and (d) and adding Subsection (h)

11-25    to read as follows:

11-26          (a)  The initial election for board members from a proposed

11-27    eradication zone shall be held concurrently with an eradication

 12-1    zone referendum held under Section 74.105 [of this code].  Each

 12-2    eradication zone shall be represented on the board and shall remain

 12-3    represented on the board until eradication operations are concluded

 12-4    and all debt of the eradication zone is paid.

 12-5          (c)  A cotton grower who is eligible to vote in a referendum

 12-6    or election under this subchapter is eligible to be a candidate for

 12-7    and member of the board if the person has at least seven years of

 12-8    experience as a cotton grower and otherwise meets the

 12-9    qualifications for the position.

12-10          (d)  A cotton grower who wants to be a candidate for the

12-11    board must meet the qualifications for board membership and file an

12-12    application with the [secretary of the foundation or, before

12-13    certification of the organization under Section 74.104 of this

12-14    code, the] commissioner.  The application must be:

12-15                (1)  filed not later than the 30th day before the date

12-16    set for the board election;

12-17                (2)  on a form approved by the commissioner; and

12-18                (3)  signed by at least 10 cotton growers who are

12-19    eligible to vote in the board election.

12-20          (h)  Each board member shall be sworn into office by a

12-21    representative of the commissioner by taking the oath of office

12-22    required for elected officers of the state.

12-23          SECTION 1.08.  Section 74.107, Agriculture Code, is amended

12-24    to read as follows:

12-25          Sec. 74.107.  COMPOSITION OF BOARD.  (a)  The board shall be

12-26    composed of members elected from each statutory eradication zone

12-27    established and validated by referendum, members elected from each

 13-1    nonstatutory eradication zone established by referendum, members

 13-2    appointed by the commissioner from other cotton growing areas of

 13-3    the state, and members appointed by the commissioner under

 13-4    Subsection (b).  The commissioner shall appoint an initial board

 13-5    composed of 15 members.  Except as provided by Subsection (b), the

 13-6    term of each board position may not exceed four years [High Plains

 13-7    Boll Weevil Suppression Program Area and the St. Lawrence Cotton

 13-8    Growers Boll Weevil Control Zone are separate zones for the

 13-9    purposes of boll weevil eradication;  however, an area in the St.

13-10    Lawrence Cotton Growers Boll Weevil Control Zone may be assigned to

13-11    another zone as provided by this subchapter].

13-12          (b)  In making appointments under this section, the

13-13    commissioner shall appoint the following for four-year terms:

13-14                (1)  an agricultural lender;

13-15                (2)  an independent entomologist who is an integrated

13-16    pest management specialist;

13-17                (3)  two representatives from industries allied with

13-18    cotton production; and

13-19                (4)  a representative from the pest control industry.

13-20          (c)  The commissioner [board, with the commissioner's

13-21    approval,] may change the number of board positions or the

13-22    eradication zone representation on the board to accommodate changes

13-23    in the number of eradication zones.  A change under this subsection

13-24    may not contravene another provision of this subchapter.

13-25          (d)  A vacancy on the board shall be filled by appointment by

13-26    the commissioner for the unexpired term.

13-27          (e)  On 30 days' notice and opportunity for hearing, the

 14-1    commissioner may replace any unelected board member of the

 14-2    foundation.

 14-3          SECTION 1.09.  Section 74.108, Agriculture Code, is amended

 14-4    to read as follows:

 14-5          Sec. 74.108.  [BOARD] POWERS OF BOARD AND COMMISSIONER.

 14-6    (a)  The board may:

 14-7                (1)  [conduct board elections;]

 14-8                [(2)  conduct eradication zone referenda;]

 14-9                [(3)  conduct assessment referenda under Section 74.113

14-10    of this code;]

14-11                [(4)]  conduct programs consistent with the declaration

14-12    of policy stated in Section 74.101 [of this code];

14-13                (2) [(5)]  accept, as necessary to implement this

14-14    chapter, gifts and grants;

14-15                (3) [(6)]  borrow money, with the approval of the

14-16    commissioner, as necessary to execute this chapter;

14-17                (4) [(7)]  take other action and exercise other

14-18    authority as necessary to execute any act authorized by this

14-19    subchapter or the Texas Non-Profit Corporation Act (Article

14-20    1396-1.01 et seq., Vernon's Texas Civil Statutes); and

14-21                (5) [(8)]  form an advisory committee composed of

14-22    individuals from this state, other states, or other countries and

14-23    change membership on the committee, as necessary.  Any advisory

14-24    committee created under this subdivision for the purpose of

14-25    establishing treatment methods shall include among its members

14-26    persons with knowledge of the effects of different treatments on

14-27    the health of agricultural workers, the local population, and the

 15-1    ecosystem, including but not limited to the effects of a particular

 15-2    method of treatment on beneficial organisms and wildlife, the

 15-3    potential for secondary infestations from nontarget pests, and the

 15-4    potential for pest resistance to particular methods of treatment.

 15-5          (b)  The commissioner [board] may by rule add an area to an

 15-6    eradication zone or transfer an area or county from one statutory

 15-7    zone to another zone if:

 15-8                (1)  cotton production has begun or could begin

 15-9    [begins] in the area;

15-10                (2)  the area is adjacent to an eradication zone or is

15-11    in an area with biological characteristics similar to the

15-12    eradication zone; and

15-13                (3)  the addition is approved in a referendum held in

15-14    the area.

15-15          (c)  The board must adopt a procurement policy, subject to

15-16    approval by the commissioner, outlining the procedures to be used

15-17    in purchasing [may initiate the boll weevil eradication program in

15-18    an area added to an eradication zone and may assess cotton growers

15-19    in the area added to the eradication zone to ensure the integrity

15-20    and success of the eradication program.  The board shall provide

15-21    notice of intent to initiate eradication and collect assessments

15-22    through informational meetings in the affected area not later than

15-23    60 days before the date recognized by the board as the average

15-24    planting date for the area].

15-25          [(d)  The board may not reduce the area of the High Plains

15-26    Boll Weevil Suppression Program Area.]

15-27          SECTION 1.10.  Section 74.109, Agriculture Code, is amended

 16-1    by amending Subsections (a), (d), (e), (g), and (h) and adding

 16-2    Subsections (i) and (j) to read as follows:

 16-3          (a)  The board shall make available to the state auditor for

 16-4    inspection at an annual independent audit all books, records of

 16-5    account, and minutes of proceedings maintained by the foundation.

 16-6    The financial transactions of the foundation are subject to audit

 16-7    by the state auditor in accordance with Chapter 321, Government

 16-8    Code.  The state auditor shall include audit information for each

 16-9    zone in which an eradication program has been conducted under this

16-10    subchapter.  Any such audit shall be made available to the public

16-11    by the commissioner.

16-12          (d)  The foundation and the board are state agencies for the

16-13    following purposes only:

16-14                (1)  exemption from taxation including exemption from

16-15    sales and use taxes, vehicle registration fees, and taxes under

16-16    Chapter 152, Tax Code; and

16-17                (2)  indemnification under Chapter 104, Civil Practice

16-18    and Remedies Code.

16-19          (e)  Funds collected by the foundation are not state funds

16-20    and are not required to be deposited in the state treasury.  The

16-21    foundation shall deposit all money collected under this subchapter

16-22    in a bank or other depository approved by the commissioner [board].

16-23          (g)  The board shall collect data on the type and quantity of

16-24    pesticides used in accordance with this subchapter.  The data shall

16-25    be filed with the commissioner.

16-26          (h)  All revenue collected under this subchapter shall be

16-27    used solely to finance programs approved by the commissioner as

 17-1    consistent with this subchapter [and applicable provisions of the

 17-2    constitution].

 17-3          (i)  The foundation is subject to the requirements of:

 17-4                (1)  the open meetings law, Chapter 551, Government

 17-5    Code; and

 17-6                (2)  the open records law, Chapter 552, Government

 17-7    Code.

 17-8          (j)  A board member may not vote on any matter in which the

 17-9    member has a direct pecuniary interest.  A board member is subject

17-10    to the same restrictions as a local public official under Chapter

17-11    171, Local Government Code.

17-12          SECTION 1.11.  Subchapter D, Chapter 74, Agriculture Code, is

17-13    amended by adding Section 74.1095 to read as follows:

17-14          Sec. 74.1095.  ADMINISTRATIVE REVIEW.  (a)  The commissioner

17-15    by rule shall establish procedures for the informal resolution of a

17-16    claim arising out of an act taken by the foundation under this

17-17    subchapter.

17-18          (b)  A person dissatisfied with the department's resolution

17-19    of a claim under procedures adopted under Subsection (a)  may

17-20    request a formal administrative hearing to resolve the claim under

17-21    Chapter 2001, Government Code.

17-22          (c)  An administrative law judge's proposal for decision

17-23    under Chapter 2001, Government Code, shall be submitted to the

17-24    commissioner for adoption.  Notwithstanding other law, the

17-25    commissioner may change a finding of fact or conclusion of law made

17-26    by the administrative law judge or may vacate or modify a proposed

17-27    order issued by the administrative law judge.  The commissioner

 18-1    must provide a written statement containing the reason and the

 18-2    legal basis for any change made under this subsection.

 18-3          (d)  The commissioner's formal order is subject to judicial

 18-4    review under Chapter 2001, Government Code, under the substantial

 18-5    evidence rule.

 18-6          (e)  This section does not constitute a waiver of the state's

 18-7    immunity from liability.

 18-8          SECTION 1.12.  Section 74.110, Agriculture Code, is amended

 18-9    to read as follows:

18-10          Sec. 74.110.  LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND

18-11    EMPLOYEES AND APPLICATORS.  (a)  Except for instances of gross

18-12    negligence, individual criminal actions, or acts of dishonesty, the

18-13    foundation, the foundation's members, directors, officers, and

18-14    employees, and applicators are not individually liable to a cotton

18-15    grower or other person for:

18-16                (1)  errors in judgment;

18-17                (2)  mistakes; or

18-18                (3)  other acts or omissions.

18-19          (b)  A foundation member, officer, or employee or an

18-20    applicator is not individually liable for an act or omission of

18-21    another foundation member, officer, or employee or of an

18-22    applicator.

18-23          (c)  Except as provided by Subsection (d), an applicator is

18-24    liable to a person for death, damage, or injury to a person or the

18-25    person's property proximately caused by the applicator while acting

18-26    to further or support eradication or diapause efforts undertaken

18-27    pursuant to this subchapter if the death, damage, or injury

 19-1    resulted from:

 19-2                (1)  any negligent act or omission in the application,

 19-3    loading, handling, storage, or use of pesticides or other

 19-4    chemicals;

 19-5                (2)  any act taken with specific intent to wrongfully

 19-6    injure the person or the person's property; or

 19-7                (3)  any act done with conscious indifference or

 19-8    reckless disregard for the safety of others.

 19-9          (d)  An applicator is immune from civil liability for any act

19-10    or omission resulting in death, damage, or injury if the

19-11    applicator:

19-12                (1)  was acting pursuant to reasonably precise

19-13    directions, instructions, or specifications provided by the

19-14    foundation;

19-15                (2)  complied with those directions, instructions, or

19-16    specifications; and

19-17                (3)  did not actually know of any risks of harm to the

19-18    person injured or property damaged before the time of the act or

19-19    omission in question that were not known to the foundation at that

19-20    time.

19-21          (e)  The foundation shall have liability coverage in effect

19-22    for any eradication or diapause efforts for which it uses

19-23    applicators.  The coverage shall apply to acts and omissions of the

19-24    foundation and volunteers and be in the amount of at least $500,000

19-25    for each single occurrence of death, bodily injury, or property

19-26    damage.

19-27          (f)  In this section, "applicator" means an individual or

 20-1    other person that is not a member, director, officer, or employee

 20-2    of the foundation and that contracts with the foundation to apply

 20-3    pesticides or other chemicals using aircraft or other equipment to

 20-4    further or support the eradication or diapause efforts undertaken

 20-5    pursuant to this subchapter.

 20-6          (g)  Nothing in this section shall be construed to mean that

 20-7    an applicator or other person cannot be held responsible for

 20-8    violations of state and federal pesticide and herbicide laws and

 20-9    regulations adopted thereunder.

20-10          SECTION 1.13.  Subsections (f), (g), (h), and (i), Section

20-11    74.112, Agriculture Code, are amended to read as follows:

20-12          (f)  If 30 [40] percent or more of the cotton growers

20-13    eligible to vote [producers] within a zone participating in the

20-14    program present to the commissioner [foundation] a petition calling

20-15    for a referendum of the qualified voters on the proposition of

20-16    discontinuing the program, the commissioner [board] shall conduct a

20-17    referendum for that purpose.

20-18          (g)  The commissioner [board] shall give notice of the

20-19    referendum, the referendum shall be conducted, and the results

20-20    shall be declared in the manner provided by law for the original

20-21    referendum and election, with any necessary exceptions provided by

20-22    rule of the commissioner.

20-23          (h)  The commissioner [board] shall conduct the referendum

20-24    within 90 days of the date of filing of the petition, except that

20-25    no such referendum may be held within two years of any other

20-26    referendum in the eradication zone pertaining to establishing or

20-27    discontinuing the eradication zone.

 21-1          (i)  Approval of the proposition is by the same vote as

 21-2    required in a referendum under Section 74.114(g) [majority vote of

 21-3    those voting].  If the proposition is approved, the eradication

 21-4    program is abolished and the eradication zone ceases to exist on

 21-5    payment of all debts of the eradication zone.

 21-6          SECTION 1.14.  Section 74.113, Agriculture Code, is amended

 21-7    to read as follows:

 21-8          Sec. 74.113.  ASSESSMENT REFERENDA.  (a)  The commissioner

 21-9    [foundation] shall propose [determine] the assessment needed in

21-10    each eradication zone to ensure the stability of the cotton

21-11    industry by eradicating the public nuisance caused by the boll

21-12    weevil and the pink bollworm [accomplish the following goal:  to

21-13    finance programs of marketing, promotion, research, and education

21-14    calculated to increase the production and use of cotton].

21-15          (b)  The commissioner [foundation] shall propose in a

21-16    referendum the:

21-17                (1)  maximum assessment to be paid by cotton growers

21-18    having production in the eradication zone; and

21-19                (2)  time for which the assessment will be made.

21-20          (c)  With the commissioner's approval, the [The] foundation

21-21    may make an assessment in an eradication zone at a level less than

21-22    the assessment approved by the referendum.

21-23          (d)  The commissioner [foundation] shall conduct an

21-24    assessment referendum under the procedures provided by Section

21-25    74.114 [of this code].

21-26          (e)  If an assessment referendum is approved, the foundation

21-27    may collect the assessment.

 22-1          (f)  An assessment levied on cotton growers in an eradication

 22-2    zone may be applied only to:

 22-3                (1)  eradication in that zone;

 22-4                (2)  the foundation's operating costs, including

 22-5    payments on debt incurred for a foundation activity, except that

 22-6    the funds of one zone may not be used to pay another zone's bank

 22-7    loans or debts; and

 22-8                (3)  the conducting of other programs consistent with

 22-9    the declaration of policy stated in Section 74.101 [of this code].

22-10          (g)  The assessment shall be adequate and necessary to

22-11    achieve the goals of this subchapter.  The amount of the assessment

22-12    shall be determined by criteria established by the commissioner,

22-13    including:

22-14                (1)  the extent of infestation;

22-15                (2)  the amount of acreage planted;

22-16                (3)  historical efforts to eradicate;

22-17                (4)  the growing season;

22-18                (5)  epidemiology;

22-19                (6)  historical weather conditions; and

22-20                (7)  the costs and financing of the program.

22-21          (h)  The commissioner shall give notice of and hold a public

22-22    hearing within the eradication zone regarding the proposed

22-23    assessment referendum.  Before the referendum, the commissioner

22-24    shall review and approve:

22-25                (1)  the amount of the assessment;

22-26                (2)  the basis for the assessment;

22-27                (3)  the time for payment of the assessment;

 23-1                (4)  the method of allocation of the assessment among

 23-2    cotton growers;

 23-3                (5)  the restructuring and repayment schedule for any

 23-4    pre-existing debt; and

 23-5                (6)  the amount of debt to be incurred in the

 23-6    eradication zone.

 23-7          (i)  The commissioner shall on a zone-by-zone basis set the

 23-8    date on which assessments are due and payable.

 23-9          (j)  Each year, the commissioner shall review and approve the

23-10    foundation's operating budget.

23-11          (k)  The foundation shall prepare and mail billing statements

23-12    to each cotton grower subject to the assessment that state the

23-13    amount due and the due date.  The assessments shall be remitted to

23-14    the foundation.

23-15          SECTION 1.15.  Subsections (a), (c), (d), (f), (h), and (i),

23-16    Section 74.114, Agriculture Code, are amended to read as follows:

23-17          (a)  The commissioner [foundation] shall conduct a referendum

23-18    or board election authorized under this subchapter [its

23-19    jurisdiction].  At the end of each four-year period in which an

23-20    eradication program has been operational in a zone, the

23-21    commissioner shall hold a referendum in the zone on the

23-22    continuation of the eradication program.  The referendum shall be

23-23    held at the same time as the election of a board member from the

23-24    zone.  Approval of the referendum on continuation is by a majority

23-25    of those voting in the referendum.

23-26          (c)  The commissioner shall adopt rules for voting in [the

23-27    initial] board elections [election] and [initial] referenda to

 24-1    establish or continue eradication zones.  [The board shall adopt

 24-2    rules for voting in other referenda and board elections.]  Rules

 24-3    adopted under this subsection must include provisions for

 24-4    determining:

 24-5                (1)  who is a cotton grower eligible to vote in an

 24-6    election or referendum;

 24-7                (2)  whether a board member is elected by a plurality

 24-8    or a majority of the votes cast; and

 24-9                (3)  the area from which each board member is elected.

24-10          (d)  A cotton grower having cotton production in a proposed

24-11    or established eradication zone is entitled to:

24-12                (1)  vote in a referendum concerning the eradication

24-13    zone; and

24-14                (2)  elect board members to represent the eradication

24-15    zone.

24-16          (f)  Ballots in a referendum or board election shall be

24-17    mailed directly to a central location, to be [initially] determined

24-18    by the commissioner [and later determined by the board].  A cotton

24-19    grower eligible to vote in a referendum or board election who has

24-20    not received a ballot from the commissioner, foundation, or another

24-21    source shall be offered the option of requesting a ballot by mail

24-22    or obtaining a ballot at the office of the county agent of the

24-23    Texas Agricultural Extension Service or a government office

24-24    distributing ballots in a county in the proposed or established

24-25    zone in which the referendum or board election is conducted.

24-26          (h)  If a referendum under this subchapter is not approved,

24-27    the [foundation may with the approval of the] commissioner may

 25-1    conduct another referendum.  A referendum under this subsection may

 25-2    not be held before one year [the 121st day] after the date on which

 25-3    the last referendum on the same issue was held.

 25-4          (i)  A public hearing regarding the proposed eradication

 25-5    program, including information regarding regulations to be

 25-6    promulgated by the [foundation and the] commissioner, may [shall]

 25-7    be held by the commissioner [foundation] in each of several

 25-8    locations within each boll weevil or pink bollworm eradication

 25-9    zone.  The area posted for each hearing shall include no more than

25-10    six contiguous counties that have cotton production at the time of

25-11    the hearing.

25-12          SECTION 1.16.  Section 74.115, Agriculture Code, is amended

25-13    to read as follows:

25-14          Sec. 74.115.  FAILURE TO PAY ASSESSMENTS.  (a)  A cotton

25-15    grower who fails to pay an assessment levied under this subchapter

25-16    when due may be subject, after reasonable notice and opportunity

25-17    for hearing, to a penalty set by the commissioner [board].  In

25-18    determining the amount of the penalty to be assessed, the

25-19    commissioner shall consider:

25-20                (1)  the seriousness of the violation, including the

25-21    nature, circumstances, and extent of the violation;

25-22                (2)  the history of previous violations;

25-23                (3)  the amount necessary to deter future violations;

25-24                (4)  the economic situation of the cotton grower; and

25-25                (5)  any other matter that justice may require.

25-26          (b)  [A cotton grower who fails to pay all assessments and

25-27    penalties before the 10th day after receiving notice of the

 26-1    delinquency shall destroy any cotton growing on the grower's

 26-2    acreage that is subject to the assessment.  Cotton plants that are

 26-3    not destroyed are a public nuisance, and, on recommendation of the

 26-4    foundation, the department shall follow the procedures for

 26-5    destruction of host plants provided by Subchapters A and B of this

 26-6    chapter, including procedures for reimbursement by the grower of

 26-7    costs required for destruction.  The department may apply to a

 26-8    district court with jurisdiction in the county in which the public

 26-9    nuisance is located to have the nuisance condemned and destroyed.

26-10    Injunctive relief available to the department under this subchapter

26-11    is in addition to any other legal remedy available to the

26-12    department.  The department is not required to file a bond in a

26-13    proceeding under this subsection.]

26-14          [(c)]  In addition to any other remedies for the collection

26-15    of assessments and penalties, the department may place and perfect

26-16    an assessment [a] lien on cotton produced and harvested that year

26-17    from the acreage that is subject to the assessment that is due and

26-18    unpaid.  A buyer of cotton takes free of the assessment lien if the

26-19    buyer has not received written or actual notice of the assessment

26-20    lien [from the department] or if the buyer has paid for the cotton

26-21    by a check on which the department is named as a joint payee.  In

26-22    an action to enforce the assessment lien, the burden is on the

26-23    department to prove that the buyer of cotton received written or

26-24    actual notice of the assessment lien.  A buyer of cotton other than

26-25    a person buying cotton from the cotton grower takes free of the

26-26    assessment lien.

26-27          SECTION 1.17.  Section 74.116, Agriculture Code, is amended

 27-1    to read as follows:

 27-2          Sec. 74.116.  EXEMPTION FROM ASSESSMENT PENALTIES.  (a)  The

 27-3    commissioner by rule shall adopt criteria for exemption from

 27-4    payment of assessment penalties under Section 74.115 of this code a

 27-5    cotton grower for whom payment would impose an undue financial

 27-6    burden.

 27-7          (b)  A cotton grower may not qualify for an exemption under

 27-8    this section for a year in which the amount computed by subtracting

 27-9    the assessments and penalties due under this subchapter from the

27-10    cotton grower's net income subject to federal income taxation in

27-11    the previous year is greater than $15,000.

27-12          (c)  A cotton grower who applies for an exemption under this

27-13    section must use a form prescribed by the commissioner.  A cotton

27-14    grower must file a separate application form for each year for

27-15    which the cotton grower claims an exemption.

27-16          (d)  The [commissioner shall forward to the foundation a

27-17    completed exemption application form.  The foundation shall

27-18    determine whether the applicant qualifies for an exemption and

27-19    shall notify the commissioner of its determination.]

27-20          [(e)  On notification by the foundation that a cotton grower

27-21    qualifies for an exemption, the commissioner shall exempt the

27-22    cotton grower from payment of an assessment penalty under Section

27-23    74.115 of this code.]

27-24          [(f)  On the foundation's recommendation, the] commissioner

27-25    may establish a payment plan for a cotton grower applying for an

27-26    exemption under this section.

27-27          (e) [(g)]  The commissioner shall promptly notify an

 28-1    applicant of the [foundation's] determination regarding the

 28-2    applicant's request for an exemption.

 28-3          (f) [(h)]  If an exemption under this section is denied,

 28-4    assessments and penalties for the year for which the application is

 28-5    made are due on the later of:

 28-6                (1)  the date on which they would be due in the absence

 28-7    of an application for exemption; or

 28-8                (2)  30 days after the date the applicant receives

 28-9    notice of the denial.

28-10          (g)  In addition to the authority provided under Subsections

28-11    (a)-(f), the commissioner may reduce or waive assessment penalties

28-12    as appropriate and necessary.

28-13          SECTION 1.18.  Section 74.117, Agriculture Code, is amended

28-14    to read as follows:

28-15          Sec. 74.117.  ENTRY OF PREMISES; ERADICATION ACTIVITIES;

28-16    INSPECTIONS.  The department, the foundation, or a designated

28-17    representative of either entity may enter cotton fields or other

28-18    premises to carry out the purposes of this subchapter and

28-19    Subchapters A and B of this chapter, which include the treatment

28-20    and[,] monitoring[, and destruction] of growing cotton or other

28-21    host plants.  The department, the foundation, or a designated

28-22    representative of either entity may inspect fields or premises in

28-23    this state for the purpose of determining whether the property is

28-24    infested with the boll weevil or the pink bollworm.  An inspection

28-25    must be conducted during reasonable daylight hours.  The department

28-26    shall give notice by publication to all cotton growers in the

28-27    eradication zone of the intent of the department, the foundation,

 29-1    or a designated representative of either entity to enter fields or

 29-2    premises to carry out the purposes of this subchapter, including

 29-3    treatment, monitoring, or inspection functions.  The department

 29-4    shall publish the planned schedule to enter fields or premises in a

 29-5    newspaper of general publication in the eradication zone not less

 29-6    than once a week during the two weeks before the proposed dates of

 29-7    entry.  In addition to the notice published by the department, the

 29-8    foundation shall post notice of the planned schedule to enter

 29-9    fields or premises in the county courthouse of each county in the

29-10    eradication zone not less than 15 days before the proposed dates of

29-11    entry.  Prior to each chemical treatment, the foundation shall make

29-12    an effort to notify each grower.

29-13          SECTION 1.19.  Subsections (b), (c), and (d), Section 74.120,

29-14    Agriculture Code, are amended to read as follows:

29-15          (b)  Rules adopted under this section shall establish the

29-16    criteria by which the foundation develops its [rules,]

29-17    procedures[,] and methods of treatment, which shall [rules]:

29-18                (1)  establish a methodology for determining when boll

29-19    weevil or pink bollworm population levels have reached economic

29-20    significance;

29-21                (2)  establish an effective treatment regimen that

29-22    seeks to provide the least possible risk to workers, the public,

29-23    and the environment;

29-24                (3)  minimize the effects of the use of pesticides on

29-25    long-term control methods, including but not limited to the effect

29-26    a particular pesticide may have on biological controls;

29-27                (4)  establish methods for monitoring boll weevils,

 30-1    pink bollworms, and secondary pests;

 30-2                (5)  establish methods for verifying pesticide use

 30-3    reduction; and

 30-4                (6)  consider the acute and chronic toxicity of

 30-5    particular pesticides and the quantity of particular pesticides

 30-6    needed.  Eradication zone treatment plans may take into account the

 30-7    potential for the use of smaller quantities of more toxic

 30-8    substances to result in fewer health and environmental risks than

 30-9    larger quantities of less toxic substances.

30-10          (c)  The commissioner [foundation and the department] may

30-11    adopt other reasonable rules necessary to carry out the purposes of

30-12    this subchapter and Subchapters A and B of this chapter.   All

30-13    rules issued under this subchapter must be adopted and published in

30-14    accordance with state requirements.  [Rules adopted by the

30-15    foundation under this section shall be consistent with rules

30-16    adopted by the commissioner under this subchapter.]

30-17          (d)  An advisory committee may [shall] be established to

30-18    assist the commissioner in the development of rules adopted under

30-19    this section.  The advisory committee may [shall] be composed of:

30-20                (1)  three cotton growers [producers] from different

30-21    regions of the state, appointed by the commissioner;

30-22                (2)  three entomologists with knowledge of the

30-23    principles of integrated pest management, at least one of whom has

30-24    special knowledge of nonchemical or biological pest control,

30-25    appointed by the commissioner;

30-26                (3)  two individuals with experience representing the

30-27    general interests of the environment, appointed by the chair of the

 31-1    Texas Natural Resource Conservation Commission;

 31-2                (4)  an environmental engineer with expert knowledge of

 31-3    ground and surface water protection from contamination, appointed

 31-4    by the chair of the Texas Natural Resource Conservation Commission;

 31-5                (5)  a toxicologist, appointed by the Commissioner of

 31-6    Health; and

 31-7                (6)  an individual with experience representing the

 31-8    general interests of consumers and an individual with experience

 31-9    representing the general interests of agricultural workers,

31-10    appointed by the governor.

31-11          SECTION 1.20.  Section 74.121, Agriculture Code, is amended

31-12    to read as follows:

31-13          Sec. 74.121.  REPORTS.  Each person in an active eradication

31-14    zone growing cotton in this state shall furnish to the foundation

31-15    on forms supplied by the foundation information that the foundation

31-16    requires concerning the size and location of all commercial cotton

31-17    fields and of noncommercial patches of cotton grown for ornamental

31-18    or other purposes.  The foundation may provide an incentive for

31-19    early and timely reporting.

31-20          SECTION 1.21.  Section 74.124, Agriculture Code, is amended

31-21    by amending Subsection (a) and adding Subsection (c) to read as

31-22    follows:

31-23          (a)  The foundation may carry out programs to destroy and

31-24    eliminate the boll weevil and the pink bollworm in this state by

31-25    cooperating through written agreements, as approved by the

31-26    commissioner, with:

31-27                (1)  an agency of the federal government;

 32-1                (2)  a state agency;

 32-2                (3)  an appropriate agency of a foreign country

 32-3    contiguous to the affected area to the extent allowed by federal

 32-4    law;

 32-5                (4)  a person who is engaged in growing, processing,

 32-6    marketing, or handling cotton; or

 32-7                (5)  a group of persons in this state involved in

 32-8    similar programs to carry out the purposes of this subchapter.

 32-9          (c)  Agreements under Subsections (a)(4)-(5) must be approved

32-10    in each referendum required under this subchapter other than a

32-11    referendum to discontinue an eradication program.  The agreements

32-12    must be approved by the same margin as required in the retention

32-13    referendum.

32-14          SECTION 1.22.  Section 74.125, Agriculture Code, is amended

32-15    to read as follows:

32-16          Sec. 74.125.  ORGANIC COTTON GROWERS [PRODUCERS].  (a)  The

32-17    [board, in cooperation with the] commissioner[,] shall develop

32-18    rules and procedures to:

32-19                (1)  protect the eligibility of organic cotton growers

32-20    [producers] to be certified by the commissioner;

32-21                (2)  ensure that organic and transitional certification

32-22    by the commissioner continue to meet national certification

32-23    standards in order for organic cotton to maintain international

32-24    marketability; and

32-25                (3)  in all events maintain the effectiveness of the

32-26    boll weevil or pink bollworm eradication program administered under

32-27    this subchapter.

 33-1          (b)  The board may not treat or require treatment of organic

 33-2    cotton fields with chemicals that are not approved for use on

 33-3    certified organic cotton.  Plow-up may be required as an

 33-4    alternative to chemicals.  Rules [In the rules] adopted under

 33-5    Subsection (a)[, the board] may provide indemnity for the organic

 33-6    cotton growers [producers] for reasonable losses that result from a

 33-7    prohibition of production of organic cotton or from any requirement

 33-8    of destruction of organic cotton.  If time is reasonably available

 33-9    for the production of an economically feasible alternative crop,

33-10    the board may require mitigation of losses with the production of

33-11    an alternative crop.

33-12          SECTION 1.23.  Subsection (c), Section 74.126, Agriculture

33-13    Code, is amended to read as follows:

33-14          (c)  If the commissioner [or the foundation] determines that

33-15    a violation of this subchapter or a rule adopted under this

33-16    subchapter has occurred, the commissioner [or the foundation] may

33-17    request that the attorney general or the county or district

33-18    attorney of the county in which the alleged violation occurred or

33-19    is occurring file suit for civil, injunctive, and/or other

33-20    appropriate relief.

33-21          SECTION 1.24.  Subchapter D, Chapter 74, Agriculture Code, is

33-22    amended by adding Sections 74.128, 74.129, and 74.130 to read as

33-23    follows:

33-24          Sec. 74.128.  ANNUAL REPORT.  The board shall issue to the

33-25    commissioner and the appropriate oversight committee in the house

33-26    of representatives an annual report detailing its efforts to carry

33-27    out the purposes of this subchapter.

 34-1          Sec. 74.129.  EXEMPTION FROM LAWSUITS, LIABILITY, TAXATION,

 34-2    AND LEGAL PROCESS.  The legislature recognizes that the foundation,

 34-3    acting under the supervision and control of the commissioner, is

 34-4    carrying out an important governmental function and that therefore

 34-5    the foundation, as a quasi-governmental entity, must be immune from

 34-6    lawsuits and liability except to the extent provided in Chapter

 34-7    101, Civil Practice and Remedies Code, and as provided by this

 34-8    section.  Therefore, no claims may be brought or continued against

 34-9    the foundation except:  (1) claims allowed by Chapter 101, Civil

34-10    Practice and Remedies Code; and (2) claims pending against the

34-11    foundation on April 30, 1997, plus attorney's fees and costs of

34-12    court.  With the exception of finally adjudicated claims arising

34-13    from Chapter 101, Civil Practice and Remedies Code, and claims for

34-14    assessments, attorney's fees, and costs of court paid by named

34-15    plaintiffs in lawsuits pending on or before April 30, 1997, all

34-16    payments, contributions, funds, and assessments received or held by

34-17    the foundation under this subchapter are exempt from garnishment,

34-18    attachment, execution, or other seizure and from state and local

34-19    taxation, levies, sales, and any other process and are

34-20    unassignable.  Nothing in this section shall affect or impair any

34-21    existing or future indebtedness or any existing or future security

34-22    interest created under a note, security agreement, assignment, or

34-23    other loan agreement between the foundation and a lender or any

34-24    judgment, to the extent such judgment allows recovery against the

34-25    foundation pursuant to a note, security agreement, loan agreement,

34-26    or other document.

34-27          Sec. 74.130.  USE OF BIO-INTENSIVE CONTROLS.  (a)  The

 35-1    commissioner shall develop and adopt rules to allow a cotton grower

 35-2    in an eradication program to use biological, botanical, or other

 35-3    non-synthetic pest control methods.  In developing the rules, the

 35-4    commissioner shall consider:

 35-5                (1)  scientific studies and field trials of the

 35-6    effectiveness of a proposed alternative control method;

 35-7                (2)  the feasibility of using a proposed alternative

 35-8    control technique within a particular region;

 35-9                (3)  the degree of monitoring necessary to establish

35-10    the success of the use of a proposed alternative control; and

35-11                (4)  methods to prevent the use of substances that

35-12    would impede the use of alternative controls and the promotion of

35-13    beneficial insect populations.

35-14          (b)  A cotton grower that chooses to use an alternative

35-15    method of control as provided in Subsection (a) shall notify the

35-16    board.  The board and the cotton grower shall coordinate their

35-17    actions to prevent the use of substances that would impede the use

35-18    of alternative controls and the promotion of beneficial insect

35-19    populations.

35-20          (c)  The cotton grower shall pay any additional cost of

35-21    bio-intensive control in addition to any assessment.

35-22          SECTION 1.25.  (a)  All agreements made and obligations

35-23    incurred by the Texas Boll Weevil Eradication Foundation, Inc.,

35-24    before the effective date of this Act are validated, ratified, and

35-25    confirmed.  The foundation's members, directors, officers,

35-26    employees, and agents are not individually liable for, or in

35-27    connection with, any agreement or obligation validated under this

 36-1    section.

 36-2          (b)  Except for instances of gross negligence, individual

 36-3    criminal actions, or acts of dishonesty, the foundation's members,

 36-4    directors, officers, and employees are not individually liable to a

 36-5    cotton grower or other person for errors in judgment, mistakes, or

 36-6    other acts or omissions made or occurring before the effective date

 36-7    of this Act under the authority of Subchapter D, Chapter 74,

 36-8    Agriculture Code, as originally enacted or subsequently amended.

 36-9          (c)  This section does not make any obligation validated,

36-10    ratified, or confirmed under this section a debt of this state.

36-11          SECTION 1.26.  (a)  To the extent assessments have not been

36-12    previously validated, ratified, and confirmed, assessments approved

36-13    on February 28, 1994, for the Southern Rolling Plains Boll Weevil

36-14    Eradication Zone, on December 1, 1994, and August 2, 1996, for the

36-15    Central Rolling Plains Boll Weevil Eradication Zone, and on

36-16    February 16, 1995, for the South Texas/Winter Garden Boll Weevil

36-17    Eradication Zone, and all agreements and obligations of the

36-18    foundation related to the statutory zones made or approved before

36-19    the effective date of this Act are validated, ratified, and

36-20    confirmed and shall continue under this subsection.  In any

36-21    eradication zone existing prior to the effective date of this Act,

36-22    other than zones named in this subsection, assessments are

36-23    validated, ratified, and confirmed only as to amounts actually

36-24    collected by the Texas Boll Weevil Eradication Foundation, Inc.,

36-25    prior to the effective date of this Act.  For purposes of this

36-26    subsection, any assessments in any such pre-existing zone which

36-27    have been deposited in the registry of a court of this state on or

 37-1    before April 30, 1997, or paid by named plaintiffs in a pleading

 37-2    filed on or before April 30, 1997, in lawsuits against the

 37-3    foundation are not assessments actually collected by the

 37-4    foundation.

 37-5          (b)  Not later than October 20, 1997, the commissioner of

 37-6    agriculture shall hold a retention referendum and board election in

 37-7    each statutory zone listed in Subsection (a) of this section to

 37-8    determine the continued necessity of an eradication program under

 37-9    Section 74.114, Agriculture Code, as amended by this Act.  The

37-10    retention referendum will be determined by a vote of the majority

37-11    of the cotton growers voting in the retention referendum.  Only a

37-12    diapause program may be carried out until that time.

37-13          (c)  The commissioner of agriculture may, in each statutory

37-14    zone, solicit public comment through public hearings to determine

37-15    whether to divide any of the statutory zones as defined in Section

37-16    74.1021, Agriculture Code, as added by this Act.  After considering

37-17    public opinion, the commissioner may by rule divide a statutory

37-18    zone and fairly apportion any debt to each portion of the divided

37-19    zone.

37-20          (d)  The commissioner of agriculture shall conduct an

37-21    eradication referendum under Section 74.114, Agriculture Code, as

37-22    amended by this Act in the Southern High Plains-Caprock Eradication

37-23    Zone not later than August 1, 1997.  The commissioner shall comply

37-24    with the notice requirements of Subchapter D, Chapter 74,

37-25    Agriculture Code, as amended by this Act, and other law, to the

37-26    extent reasonable to conduct the eradication referendum required

37-27    under this subsection.

 38-1          (e)  For purposes of Section 74.114(a), Agriculture Code, as

 38-2    amended by this Act, the four-year period in which an eradication

 38-3    program has been operational begins on a date after the effective

 38-4    date of this Act.

 38-5          (f)  Rules adopted before the effective date of this Act by

 38-6    the commissioner of agriculture in accordance with Sections 74.114,

 38-7    74.118, and 74.120, Agriculture Code, and published as Sections

 38-8    3.1-3.6, 3.20-3.24, and 3.50-3.57, Chapter 3, Title 4, Texas

 38-9    Administrative Code, are validated, ratified, and confirmed on the

38-10    effective date of this Act and shall continue in effect to the

38-11    extent the rules are consistent with this Act until amended or

38-12    repealed by the commissioner.

38-13          SECTION 1.27.  The Texas Boll Weevil Eradication Foundation,

38-14    Inc., shall, not later than 30 days after the effective date of

38-15    this Act, take whatever steps are necessary to adjust the

38-16    composition of its board of directors to permit the commissioner of

38-17    agriculture to appoint board members in compliance with Section

38-18    74.107, Agriculture Code, as amended by this Act.  If the

38-19    foundation does not comply with Section 74.107, Agriculture Code,

38-20    as amended by this Act,  the commissioner may cancel the

38-21    designations and designate another nonprofit entity that meets the

38-22    qualifications of Section 74.107, Agriculture Code, as amended by

38-23    this Act.  In the interim, the current directors and officers of

38-24    the foundation shall remain in office and carry out the

38-25    foundation's duties under Subchapter D, Chapter 74, Agriculture

38-26    Code, as amended by this Act.

38-27          SECTION 1.28.  The commissioner shall develop and adopt rules

 39-1    regarding the use of bio-intensive controls as required under

 39-2    Section 74.130, Agriculture Code, as added by this Act, not later

 39-3    than September 1, 1998.  An eradication program continues as

 39-4    otherwise provided by Subchapter D, Chapter 74, Agriculture Code,

 39-5    as amended by this Act, during the period before initial rules are

 39-6    adopted under Section 74.130, Agriculture Code, as added by this

 39-7    Act.

 39-8          SECTION 1.29.  Sections 74.103 and 74.104, Agriculture Code,

 39-9    are repealed.

39-10                                 ARTICLE 2

39-11          SECTION 2.01.  Subsections (b) and (c), Section 74.105,

39-12    Agriculture Code, are reenacted to read as follows:

39-13          (b)  Eradication zone referenda shall be conducted under the

39-14    procedures provided by Section 74.114 of this code.

39-15          (c)  A proposed eradication zone referendum ballot must

39-16    include or be accompanied by information about the proposed

39-17    eradication zone, including:

39-18                (1)  a statement of the purpose of the boll weevil or

39-19    pink bollworm eradication program;

39-20                (2)  the geographic area included in the proposed

39-21    eradication zone;

39-22                (3)  a general summary of rules adopted by the

39-23    commissioner under Sections 74.114, 74.118, and 74.120 of this

39-24    code, including a description of:

39-25                      (A)  cotton grower responsibilities; and

39-26                      (B)  penalties for noncompliance with rules

39-27    adopted under this subchapter; and

 40-1                (4)  an address and toll-free telephone number that a

 40-2    cotton grower may use to request more information about the

 40-3    referendum or the boll weevil or pink bollworm eradication program.

 40-4          SECTION 2.02.  Subsections (b), (e), (f), and (g), Section

 40-5    74.106, Agriculture Code, are reenacted to read as follows:

 40-6          (b)  A board election shall be conducted under the procedures

 40-7    provided by this section and Section 74.114 of this code.

 40-8          (e)  On receipt of an application and verification that the

 40-9    application meets the requirements of Subsection (d) of this

40-10    section, an applicant's name shall be placed on the ballot for the

40-11    board election.

40-12          (f)  An eligible voter may vote for a cotton grower whose

40-13    name does not appear on the official ballot by writing that

40-14    person's name on the ballot.

40-15          (g)  A board election must be preceded by at least 45 days

40-16    notice published in one or more newspapers published and

40-17    distributed in the proposed or established eradication zone.  The

40-18    notice shall be published not less than once a week for three

40-19    consecutive weeks.  Not later than the 45th day before the date of

40-20    the election, direct written notice of the election shall be given

40-21    to each county agent in the eradication zone.

40-22          SECTION 2.03.  Subsections (b), (c), and (f), Section 74.109,

40-23    Agriculture Code, are reenacted to read as follows:

40-24          (b)  Not later than the 45th day after the last day of the

40-25    fiscal year, the board shall submit to the commissioner a report

40-26    itemizing all income and expenditures and describing all activities

40-27    of the foundation during the fiscal year.

 41-1          (c)  The foundation shall provide fidelity bonds in amounts

 41-2    determined by the board for employees or agents who handle funds

 41-3    for the foundation.

 41-4          (f)  The foundation is a governmental unit under Section

 41-5    101.001, Civil Practice and Remedies Code, and is entitled to

 41-6    governmental immunity.  A tort claim against the foundation must be

 41-7    made under Chapter 101, Civil Practice and Remedies Code.

 41-8          SECTION 2.04.  Section 74.111, Agriculture Code, is reenacted

 41-9    to read as follows:

41-10          Sec. 74.111.  BOARD MEMBER COMPENSATION.  Board members serve

41-11    without compensation but are entitled to reimbursement for

41-12    reasonable and necessary expenses incurred in the discharge of

41-13    their duties.

41-14          SECTION 2.05.  Subsections (a) through (e), Section 74.112,

41-15    Agriculture Code, are reenacted to read as follows:

41-16          (a)  On the determination by the foundation that the boll

41-17    weevil eradication program has been completed in all eradication

41-18    zones established under this subchapter for boll weevil control and

41-19    the pink bollworm eradication program has been completed in any

41-20    eradication zone established under this chapter for pink bollworm

41-21    control, the foundation shall provide notice of such completion to

41-22    the commissioner along with a request for discontinuance of the

41-23    eradication program and collection of the assessment.  Any such

41-24    request shall include documentation supporting the eradication of

41-25    the boll weevil in all eradication zones established for boll

41-26    weevil eradication or pink bollworm in any eradication zone

41-27    established for pink bollworm eradication and a plan for

 42-1    discontinuance of the program and assessment.

 42-2          (b)  The commissioner shall determine whether or not the

 42-3    further elimination of the boll weevil or pink bollworm is

 42-4    necessary in the eradication zones and approve or disapprove

 42-5    discontinuance of the foundation and the plan for dissolution.

 42-6          (c)  On completion of dissolution, the foundation shall file

 42-7    a final report with the commissioner, including a financial report,

 42-8    and submit all remaining funds into the trust of the commissioner.

 42-9    Final books of the foundation shall be filed with the commissioner

42-10    and are subject to audit by the department.

42-11          (d)  The commissioner shall pay from the foundation's

42-12    remaining funds all of the foundation's outstanding obligations.

42-13          (e)  Funds remaining after payment under Subsection (d) of

42-14    this section shall be returned to contributing cotton growers on a

42-15    pro rata basis.

42-16          SECTION 2.06.  Subsections (b), (e), (g), and (j), Section

42-17    74.114, Agriculture Code,  are reenacted to read as follows:

42-18          (b)  The foundation shall bear all expenses incurred in

42-19    conducting a referendum or board election.

42-20          (e)  An eligible cotton grower may vote only once in a

42-21    referendum or board election.

42-22          (g)  A referendum is approved if:

42-23                (1)  at least two-thirds of those voting vote in favor

42-24    of the referendum; or

42-25                (2)  those voting in favor of the referendum farm more

42-26    than 50 percent, as determined by the commissioner, of the cotton

42-27    acreage in the relevant eradication zone.

 43-1          (j)  Individual voter information, including an individual's

 43-2    vote in a referendum or board election conducted under this

 43-3    section, is confidential and is not subject to disclosure under the

 43-4    open records law, Chapter 552, Government Code.

 43-5          SECTION 2.07.  Section 74.118, Agriculture Code, is reenacted

 43-6    to read as follows:

 43-7          Sec. 74.118.  AUTHORITY TO PROHIBIT PLANTING OF COTTON AND

 43-8    REQUIRE PARTICIPATION IN ERADICATION PROGRAM.  (a)  The

 43-9    commissioner may adopt reasonable rules regarding areas where

43-10    cotton may not be planted in an eradication zone if there is reason

43-11    to believe planting will jeopardize the success of the program or

43-12    present a hazard to public health or safety.

43-13          (b)  The commissioner may adopt rules prohibiting the

43-14    planting of noncommercial cotton in eradication zones and requiring

43-15    that all growers of commercial cotton in an eradication zone

43-16    participate in a boll weevil or pink bollworm eradication program

43-17    that includes cost sharing as required by the rules.

43-18          (c)  Notice of prohibitions and requirements shall be given

43-19    by publication for one day each week for three successive weeks in

43-20    a newspaper having general circulation in the affected area.

43-21          (d)  The commissioner may adopt a reasonable schedule of

43-22    penalty fees to be assessed against growers in a designated

43-23    eradication zone who do not meet the requirements of the rules

43-24    issued by the commissioner relating to reporting of acreage and

43-25    participation in cost sharing.  The penalty fees adopted may not

43-26    exceed $50 per acre.

43-27          (e)  If a grower fails to meet the requirements of rules

 44-1    adopted by the commissioner, the commissioner may order the

 44-2    destruction of cotton not in compliance with the rules.  Costs

 44-3    incurred by the commissioner in the destruction of cotton may be

 44-4    assessed against the grower.

 44-5          SECTION 2.08.  Section 74.119, Agriculture Code, is reenacted

 44-6    to read as follows:

 44-7          Sec. 74.119.  AUTHORITY FOR DESTRUCTION OR TREATMENT OF

 44-8    COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE.  The department

 44-9    may destroy or treat volunteer or other noncommercial cotton and

44-10    establish procedures for the purchase and destruction of commercial

44-11    cotton in eradication zones if the department determines the action

44-12    is necessary to carry out the purposes of this subchapter.  The

44-13    department is not liable to the owner or lessee for the destruction

44-14    of or injury to any cotton that was planted in an eradication zone

44-15    after publication of notice as provided by this subchapter.  The

44-16    foundation is liable for the destruction of cotton if the cotton

44-17    was planted in an eradication zone before publication of the

44-18    notice.

44-19          SECTION 2.09.  Subsection (a), Section 74.120, Agriculture

44-20    Code, is reenacted to read as follows:

44-21          (a)  The commissioner shall adopt rules to protect

44-22    individuals, livestock, wildlife, and honeybee colonies on any

44-23    premises in an eradication zone on which cotton plants are being

44-24    grown that have been or are being treated to eradicate the boll

44-25    weevil or the pink bollworm.

44-26          SECTION 2.10.  Section 74.122, Agriculture Code, is reenacted

44-27    to read as follows:

 45-1          Sec. 74.122.  QUARANTINE.  The department may adopt rules

 45-2    relating to quarantining areas of this state that are infested with

 45-3    the boll weevil or the pink bollworm.  The rules must address the

 45-4    storage of regulated articles and the movement of regulated

 45-5    articles into and out of a quarantined area.  The department may

 45-6    also adopt rules governing the movement of regulated articles from

 45-7    other states into this state if the articles are known to be

 45-8    infested with the boll weevil or the pink bollworm.

 45-9          SECTION 2.11.  Section 74.123, Agriculture Code, is reenacted

45-10    to read as follows:

45-11          Sec. 74.123.  DOCUMENTING REGULATED ARTICLES.  To implement

45-12    this subchapter, the department may issue or authorize issuance of:

45-13                (1)  a certificate that indicates that a regulated

45-14    article is not infested with the boll weevil or the pink bollworm;

45-15    and

45-16                (2)  a permit that provides for the movement of a

45-17    regulated article to a restricted designation for limited handling,

45-18    use, or processing.

45-19          SECTION 2.12.  Subsection (b), Section 74.124, Agriculture

45-20    Code, is reenacted to read as follows:

45-21          (b)  An agreement entered into under this section may provide

45-22    for cost sharing and for division of duties and responsibilities

45-23    under this subchapter and may include other provisions to carry out

45-24    the purposes of this subchapter.

45-25          SECTION 2.13.  Subsections (a) and (b), Section 74.126,

45-26    Agriculture Code, are reenacted to read as follows:

45-27          (a)  A person who violates this subchapter or a rule adopted

 46-1    under this subchapter or who alters, forges, counterfeits, or uses

 46-2    without authority a certificate, permit, or other document issued

 46-3    under this subchapter or under a rule adopted under this subchapter

 46-4    commits an offense.

 46-5          (b)  An offense under this section is a Class C misdemeanor.

 46-6          SECTION 2.14.  Section 74.127, Agriculture Code, is reenacted

 46-7    to read as follows:

 46-8          Sec. 74.127.  SUNSET PROVISION.  (a)  The board is subject to

 46-9    Chapter 325, Government Code (Texas Sunset Act).  Unless continued

46-10    in existence as provided by that chapter, the board is abolished

46-11    and this subchapter expires September 1, 2004.

46-12          (b)  The commissioner may order the dissolution of the

46-13    foundation at any time the commissioner determines that the

46-14    purposes of this subchapter have been fulfilled or that the

46-15    foundation is inoperative and abandoned.  Dissolution shall be

46-16    conducted in accordance with Section 74.112 of this code.

46-17          (c)  If the foundation is abolished or the program

46-18    discontinued for any reason, assessments approved, levied, or

46-19    otherwise collectible on the date of abolishment remain valid as

46-20    necessary to pay the financial obligations of the foundation.

46-21                                 ARTICLE 3

46-22          SECTION 3.01.  The importance of this legislation and the

46-23    crowded condition of the calendars in both houses create an

46-24    emergency and an imperative public necessity that the

46-25    constitutional rule requiring bills to be read on three several

46-26    days in each house be suspended, and this rule is hereby suspended,

46-27    and that this Act take effect and be in force from and after its

 47-1    passage, and it is so enacted.