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.