1-1 By: Duncan S.B. No. 1814
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 15, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 10, Nays 0; May 15, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1814 By: Fraser
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to modifications of the official cotton growers' boll
1-11 weevil eradication program.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 74.101, Agriculture Code, is amended to
1-14 read as follows:
1-15 Sec. 74.101. FINDINGS AND DECLARATION OF POLICY. (a) It is
1-16 hereby found and declared that:
1-17 (1) the insects Anthonomus grandis Boheman, known as
1-18 the boll weevil, and Pectinophora gossypiella, known as the pink
1-19 bollworm, are public nuisances and a menace to the cotton industry,
1-20 and their eradication is a public necessity [boll weevil entered
1-21 Texas from Mexico in 1892 and presents a major economic threat to
1-22 Texas' cotton crop];
1-23 (2) because of the differences in soil conditions,
1-24 growing seasons, farming techniques, and climate conditions among
1-25 several areas in the state where cotton is grown, the eradication
1-26 and suppression of the nuisance can best be accomplished by
1-27 dividing the cotton-growing areas into separate zones so that
1-28 integrated pest management programs may be developed for each zone
1-29 [there exists a need to develop, carry out, and participate in
1-30 programs of research such as disease and insect control; marketing
1-31 to show low risk of pests in interstate and intrastate movement of
1-32 cotton commodities; promotion of pest-free cotton commodities
1-33 which increase market demand; and education of cotton raisers,
1-34 cotton users, regulators, policymakers, and the general public on
1-35 the effect of pests on cotton, its utility, its marketing, its
1-36 yield, and its promotion]; [and]
1-37 (3) there is a need for a private entity outside the
1-38 department whose members are actual cotton growers who would be
1-39 represented on the board of the entity by directors elected by them
1-40 to act as the agent of the department to manage eradication and
1-41 suppression programs and to furnish expertise in the field of
1-42 insect control and eradication, because such an entity would
1-43 enhance the interest and participation of cotton growers in the
1-44 program; and
1-45 (4) because of the progress made in eradication,
1-46 investments made by cotton growers in certain areas, the potential
1-47 injustice to certain cotton growers who have made such investments,
1-48 and the stage of development of the cotton crops in the statutory
1-49 eradication zones, an urgent public necessity exists to validate
1-50 and ratify the assessments, agreements, and obligations of the
1-51 Texas Boll Weevil Eradication Foundation, Inc., made or incurred by
1-52 the foundation and related to certain statutory zones [it is the
1-53 intent of the legislature that the program be carried out with the
1-54 best available integrated pest management techniques].
1-55 (b) It is the intent of the legislature that the program of
1-56 eradication and suppression be carried out with the best available
1-57 integrated pest management techniques.
1-58 (c) The department may recover costs for administration of
1-59 this subchapter.
1-60 [(c) The creation and use of a boll weevil eradication
1-61 foundation as a vehicle to provide for assessments and governing
1-62 boards and to establish eradication zones in order to suppress and
1-63 eradicate boll weevils and other cotton pests are consistent with
1-64 the goals and uses of revenue established under Article XVI,
2-1 Section 68, of the Texas Constitution.]
2-2 SECTION 2. Subchapter D, Chapter 74, Agriculture Code, is
2-3 amended by adding Section 74.1011 to read as follows:
2-4 Sec. 74.1011. DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL
2-5 ERADICATION. (a) The Texas Boll Weevil Eradication Foundation,
2-6 Inc., a Texas nonprofit corporation chartered by the secretary of
2-7 state on September 14, 1993, shall be recognized by the department
2-8 as the entity to plan, carry out, and operate eradication and
2-9 diapause programs to eliminate the boll weevil and the pink
2-10 bollworm from cotton in the state under the supervision of the
2-11 department as provided by this subchapter.
2-12 (b) The commissioner may terminate the foundation's
2-13 designation as the entity recognized to carry out boll weevil
2-14 eradication by giving 45 days' written notice to the foundation and
2-15 by designating a successor entity. If the commissioner designates
2-16 a successor to the foundation, the successor has all the powers and
2-17 duties of the foundation under this subchapter.
2-18 SECTION 3. Section 74.102, Agriculture Code, is amended to
2-19 read as follows:
2-20 Sec. 74.102. DEFINITIONS. In this subchapter:
2-21 (1) "Board" means the board of directors of the Texas
2-22 Boll Weevil Eradication Foundation, Inc [official cotton growers'
2-23 boll weevil eradication foundation].
2-24 (2) "Boll weevil" has the meaning assigned by Section
2-25 74.002 [of this code].
2-26 (3) "Commissioner" means commissioner of agriculture.
2-27 (4) "Cotton" means:
2-28 (A) a cotton plant;
2-29 (B) a part of a cotton plant, including bolls,
2-30 stalks, flowers, roots, and leaves; or
2-31 (C) cotton products, including seed cotton,
2-32 cottonseed, and hulls.
2-33 (5) "Cotton grower" means a person [an individual] who
2-34 grows cotton and receives income [on or after June 1, 1992,] from
2-35 the sale of cotton. The term includes an individual who as owner,
2-36 landlord, tenant, or sharecropper is entitled to share in the
2-37 cotton grown and available for marketing from a farm or to share in
2-38 the proceeds from the sale of the cotton from the farm[, under 7
2-39 C.F.R. Part 1413].
2-40 (6) "Eradication" means elimination of boll weevils or
2-41 pink bollworms to the extent that the commissioner does not
2-42 consider further elimination of boll weevils or pink bollworms
2-43 necessary to prevent economic loss to cotton growers. Eradication
2-44 includes diapause activities.
2-45 (7) "Eradication zone" means a geographic area:
2-46 (A) established under Section 74.1021; or
2-47 (B) designated by the commissioner in accordance
2-48 with Section 74.105 in which cotton growers by referendum approve
2-49 their participation in a boll weevil or pink bollworm eradication
2-50 program.
2-51 (8) "Foundation" means the Texas Boll Weevil
2-52 Eradication Foundation, Inc., a Texas nonprofit corporation
2-53 [official cotton growers' boll weevil eradication foundation].
2-54 (9) ["High Plains Boll Weevil Suppression Program
2-55 Area" includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby,
2-56 Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,
2-57 Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,
2-58 Swisher, Terry, and Yoakum counties. The High Plains Boll Weevil
2-59 Suppression Program Area may also include other counties or parts
2-60 of counties if areas are added to the High Plains Boll Weevil
2-61 Suppression Program Area as provided under this subchapter.]
2-62 [(10)] "Host" means a plant or plant product in which
2-63 the boll weevil or pink bollworm is capable of completing any
2-64 portion of its life cycle.
2-65 (10) [(11)] "Infested" means the presence of the boll
2-66 weevil or pink bollworm in any life stage or the existence of
2-67 generally accepted entomological evidence from which it may be
2-68 concluded with reasonable certainty that the boll weevil or pink
2-69 bollworm is present.
3-1 (11) [(12)] "Integrated pest management" is the
3-2 coordinated use of pest and environmental information with
3-3 available pest control methods to prevent unacceptable levels of
3-4 pest damage by the most economical means and with the least
3-5 possible hazard to people, property, and the environment.
3-6 (12) "Pink bollworm" has the meaning assigned by
3-7 Section 74.002.
3-8 (13) "Regulated article" means an article carrying or
3-9 capable of carrying the boll weevil or pink bollworm, including
3-10 cotton plants, seed cotton, gin trash, other hosts, or mechanical
3-11 cotton harvesters.
3-12 [(14) "St. Lawrence Cotton Growers Boll Weevil Control
3-13 Zone" may include, subject to change as provided under this
3-14 subchapter, all or part of Glasscock, Reagan, Upton, south Midland,
3-15 or other counties.]
3-16 [(15) The pink bollworm eradication zone includes
3-17 Reeves and Pecos counties.]
3-18 SECTION 4. Subchapter D, Chapter 74, Agriculture Code, is
3-19 amended by adding Section 74.1021 to read as follows:
3-20 Sec. 74.1021. STATUTORY ZONES. (a) The Northern High
3-21 Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,
3-22 Castro, Floyd, Hale, Lamb, Parmer, Randall, and Swisher counties,
3-23 and other areas as proposed by the commissioner by rule for
3-24 inclusion in the zone and approved by referendum in the area to be
3-25 added.
3-26 (b) The Rolling Plains Central Eradication Zone consists of
3-27 Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,
3-28 Jones, King, Knox, Mitchell, Nolan, Palo Pinto, Scurry,
3-29 Shackelford, Stephens, Stonewall, Throckmorton, and Young counties;
3-30 all land in Archer County south of a line following Farm-to-Market
3-31 Road 422 commencing at the Baylor County line running east to the
3-32 intersection of Farm-to-Market Road 210, continuing east to the
3-33 intersection of State Highway 25, and continuing east to the Clay
3-34 County line; all land in Borden County east of a line seven miles
3-35 west of the Scurry County line running south from the Garza County
3-36 line to the Howard County line; and all land in Taylor County east
3-37 of U.S. Highway 83 from a point commencing at the intersection of
3-38 U.S. Highway 83 and the south Taylor County line, north to the town
3-39 of Bradshaw; thence north of Farm-to-Market Road 1086, as the
3-40 farm-to-market road proceeds west and north to the intersection of
3-41 the Farm-to-Market Road 1086 and U.S. Highway 277, being all land
3-42 lying north of the farm-to-market road and west of U.S. Highway 277
3-43 from the intersection of Farm-to-Market Road 1086 and U.S. Highway
3-44 277 to the point where U.S. Highway 277 intersects the south
3-45 boundary line of Taylor County; all land in Brown County east of a
3-46 line following State Highway 279 to Brownwood and continuing along
3-47 U.S. Highway 377 south to the McCulloch County line; and other
3-48 areas as proposed by the commissioner by rule for inclusion in the
3-49 zone and approved by referendum in the area to be added.
3-50 (c) The St. Lawrence Eradication Zone consists of that area
3-51 of Midland County south of a line 15 miles south of Interstate 20
3-52 running from the Ector County line east to the Glasscock County
3-53 line; Glasscock, Reagan, and Upton counties; and other areas as
3-54 proposed by the commissioner by rule for inclusion in the zone and
3-55 approved by referendum in the area to be added.
3-56 (d) The South Texas Winter Garden Eradication Zone consists
3-57 of Aransas, Atascosa, Austin, Bee, Bexar, Calhoun, Colorado,
3-58 DeWitt, Dimmit, Duval, Frio, Goliad, Jackson, Jim Wells, Karnes,
3-59 Kinney, Kleberg, La Salle, Lavaca, Live Oak, Matagorda, McMullen,
3-60 Medina, Nueces, Refugio, San Patricio, Uvalde, Victoria, Wharton,
3-61 Wilson, and Zavala counties, and other areas as proposed by the
3-62 commissioner by rule for inclusion in the zone and approved by
3-63 referendum in the area to be added. Brazoria and Fort Bend
3-64 counties are included in the South Texas Winter Garden Eradication
3-65 Zone only for purposes of the repayment of debt existing on
3-66 April 30, 1997, and those counties may not be included in the zone
3-67 for any other purpose unless the commissioner by rule proposes that
3-68 an area be included in the zone and the proposal is approved by
3-69 referendum in the area to be added.
4-1 (e) The Southern High Plains-Caprock Eradication Zone
4-2 consists of Andrews, Cochran, Crosby, Dawson, Dickens, Gaines,
4-3 Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin, Motley, Terry,
4-4 and Yoakum counties; all land in Borden County lying west of a line
4-5 seven miles west of the Scurry County line running south from the
4-6 Garza County line to the Howard County line; that area of Midland
4-7 County north of a line 15 miles south of Interstate 20 running from
4-8 the Ector County line east to the Glasscock County line; and other
4-9 areas as proposed by the commissioner by rule for inclusion in the
4-10 zone and approved by referendum in the area to be added.
4-11 (f) The Southern Rolling Plains Eradication Zone consists of
4-12 Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and
4-13 Tom Green counties, all land in Taylor County lying west of U.S.
4-14 Highway 83 from a point commencing at the intersection of U.S.
4-15 Highway 83 and the south Taylor County line, north of the town of
4-16 Bradshaw; thence all the land lying south of Farm-to-Market Road
4-17 1086, as the farm-to-market road proceeds west and north to its
4-18 intersection with U.S. Highway 277, being all land lying south of
4-19 the farm-to-market road and east of U.S. Highway 277 from the
4-20 intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to
4-21 the point where U.S. Highway 277 intersects the south boundary line
4-22 of Taylor County, and other areas as proposed by the commissioner
4-23 by rule for inclusion in the zone and approved by referendum in the
4-24 area to be added.
4-25 SECTION 5. Subchapter D, Chapter 74, is amended by adding
4-26 Sections 74.1041 and 74.1042 to read as follows:
4-27 Sec. 74.1041. INTERIM ADVISORY GROUPS. (a) The
4-28 commissioner may designate an interim advisory group for each
4-29 geographic region of the state that is to be considered by the
4-30 commissioner for inclusion in an eradication zone. The groups
4-31 shall gather advice, input, and guidance from cotton growers from
4-32 each area of the state concerning the interest in and concerns
4-33 about the implementation of this subchapter.
4-34 (b) Each interim advisory group shall consider and make
4-35 recommendations to the commissioner concerning:
4-36 (1) the geographic boundaries for the proposed
4-37 eradication zone;
4-38 (2) the amount of local interest in operating an
4-39 eradication program;
4-40 (3) the basis and amount of an assessment necessary to
4-41 support an eradication program;
4-42 (4) the need to restructure any pre-existing debt from
4-43 prior eradication activities;
4-44 (5) crediting a cotton grower's 1996 assessment
4-45 payments to any future assessment; and
4-46 (6) any other matter requested by the commissioner.
4-47 (c) Each interim advisory group shall include at least one
4-48 cotton grower from each county and other persons as determined by
4-49 the commissioner.
4-50 Sec. 74.1042. CREATION OF NONSTATUTORY ERADICATION ZONES.
4-51 (a) The commissioner may by rule designate an area of the state as
4-52 a proposed eradication zone as long as the area is not within a
4-53 statutory zone under Section 74.1021 that has approved an
4-54 eradication program by referendum.
4-55 (b) The commissioner may hold a public hearing within the
4-56 proposed eradication zone to discuss the proposed geographic
4-57 boundaries of the zone. The public hearing may include any other
4-58 topics allowed under this subchapter.
4-59 (c) After the adoption of a rule under Subsection (a), the
4-60 commissioner shall conduct a referendum under Section 74.105.
4-61 SECTION 6. Subsections (a), (d), (e), and (f), Section
4-62 74.105, Agriculture Code, are amended to read as follows:
4-63 (a) The commissioner [organization certified under Section
4-64 74.104 of this code or the foundation] shall conduct a referendum
4-65 in each proposed eradication zone to determine whether cotton
4-66 growers desire to establish an [official boll weevil or pink
4-67 bollworm] eradication zone.
4-68 (d) If a referendum to establish an eradication zone fails,
4-69 the concurrent election of a board member [members] from the
5-1 proposed eradication zone under Section 74.106 [of this code] has
5-2 no effect, and the commissioner shall appoint a representative to
5-3 the board from the area.
5-4 (e) The [organization certified under Section 74.104 of this
5-5 code or the] foundation[, as appropriate,] may request the
5-6 commissioner to call additional referenda in a proposed eradication
5-7 zone in which a referendum has failed. An additional eradication
5-8 zone referendum and concurrent board election may be held no
5-9 earlier than the 121st day after the date of the last referendum.
5-10 (f) After the passage of any referendum, the eligible voters
5-11 shall be allowed, by subsequent referenda [periodically as
5-12 specified in the initial referendum], to vote on whether to
5-13 continue their assessments. All of the requirements for an initial
5-14 referendum must be met in subsequent referenda.
5-15 SECTION 7. Section 74.106, Agriculture Code, is amended by
5-16 amending Subsections (a), (c), and (d) and adding Subsection (h) to
5-17 read as follows:
5-18 (a) The initial election for board members from a proposed
5-19 eradication zone shall be held concurrently with an eradication
5-20 zone referendum held under Section 74.105 [of this code]. Each
5-21 eradication zone shall be represented on the board and shall remain
5-22 represented on the board until eradication operations are concluded
5-23 and all debt of the eradication zone is paid.
5-24 (c) A cotton grower who is eligible to vote in a referendum
5-25 or election under this subchapter is eligible to be a candidate for
5-26 and member of the board if the person has at least seven years of
5-27 experience as a cotton grower and otherwise meets the
5-28 qualifications for the position.
5-29 (d) A cotton grower who wants to be a candidate for the
5-30 board must meet the qualifications for board membership and file an
5-31 application with the [secretary of the foundation or, before
5-32 certification of the organization under Section 74.104 of this
5-33 code, the] commissioner. The application must be:
5-34 (1) filed not later than the 30th day before the date
5-35 set for the board election;
5-36 (2) on a form approved by the commissioner; and
5-37 (3) signed by at least 10 cotton growers who are
5-38 eligible to vote in the board election.
5-39 (h) Each board member shall be sworn into office by a
5-40 representative of the commissioner by taking the oath of office
5-41 required for elected officers of the state.
5-42 SECTION 8. Section 74.107, Agriculture Code, is amended to
5-43 read as follows:
5-44 Sec. 74.107. COMPOSITION OF BOARD. (a) The board shall be
5-45 composed of members elected from each statutory eradication zone
5-46 established and validated by referendum, members appointed by the
5-47 commissioner from other cotton growing areas of the state, and
5-48 members appointed by the commissioner under Subsection (b). The
5-49 commissioner shall appoint an initial board composed of 15 members.
5-50 Except as provided by Subsection (b), the term of each board
5-51 position may not exceed four years [High Plains Boll Weevil
5-52 Suppression Program Area and the St. Lawrence Cotton Growers Boll
5-53 Weevil Control Zone are separate zones for the purposes of boll
5-54 weevil eradication; however, an area in the St. Lawrence Cotton
5-55 Growers Boll Weevil Control Zone may be assigned to another zone as
5-56 provided by this subchapter].
5-57 (b) In making appointments under this section, the
5-58 commissioner shall appoint the following for four-year terms:
5-59 (1) an agricultural lender;
5-60 (2) an independent entomologist or an integrated pest
5-61 management specialist;
5-62 (3) two representatives from industries allied with
5-63 cotton production; and
5-64 (4) a representative from the pest control industry.
5-65 (c) The commissioner [board, with the commissioner's
5-66 approval,] may change the number of board positions or the
5-67 eradication zone representation on the board to accomodate changes
5-68 in the number of eradication zones. A change under this subsection
5-69 may not contravene another provision of this subchapter.
6-1 (d) A vacancy on the board shall be filled by appointment by
6-2 the commissioner for the unexpired term.
6-3 (e) On 30 days' notice and opportunity for hearing, the
6-4 commissioner may replace any unelected board member of the
6-5 foundation.
6-6 SECTION 9. Section 74.108, Agriculture Code, is amended to
6-7 read as follows:
6-8 Sec. 74.108. [BOARD] POWERS OF BOARD AND COMMISSIONER.
6-9 (a) The board may:
6-10 (1) [conduct board elections;]
6-11 [(2) conduct eradication zone referenda;]
6-12 [(3) conduct assessment referenda under Section 74.113
6-13 of this code;]
6-14 [(4)] conduct programs consistent with the declaration
6-15 of policy stated in Section 74.101 [of this code];
6-16 (2) [(5)] accept, as necessary to implement this
6-17 chapter, gifts and grants;
6-18 (3) [(6)] borrow money, with the approval of the
6-19 commissioner, as necessary to execute this chapter;
6-20 (4) [(7)] take other action and exercise other
6-21 authority as necessary to execute any act authorized by this
6-22 subchapter or the Texas Non-Profit Corporation Act (Article
6-23 1396-1.01 et seq., Vernon's Texas Civil Statutes); and
6-24 (5) [(8)] form an advisory committee composed of
6-25 individuals from this state, other states, or other countries and
6-26 change membership on the committee, as necessary. Any advisory
6-27 committee created under this subdivision for the purpose of
6-28 establishing treatment methods shall include among its members
6-29 persons with knowledge of the effects of different treatments on
6-30 the health of agricultural workers, the local population, and the
6-31 ecosystem, including but not limited to the effects of a particular
6-32 method of treatment on beneficial organisms and wildlife, the
6-33 potential for secondary infestations from nontarget pests, and the
6-34 potential for pest resistance to particular methods of treatment.
6-35 (b) The commissioner [board] may by rule add an area to an
6-36 eradication zone if:
6-37 (1) cotton production has begun or could begin
6-38 [begins] in the area;
6-39 (2) the area is adjacent to an eradication zone or is
6-40 in an area with biological characteristics similar to the
6-41 eradication zone; and
6-42 (3) the addition is approved in a referendum held in
6-43 the area.
6-44 (c) The board must adopt a procurement policy, subject to
6-45 approval by the commissioner, outlining the procedures to be used
6-46 in purchasing [may initiate the boll weevil eradication program in
6-47 an area added to an eradication zone and may assess cotton growers
6-48 in the area added to the eradication zone to ensure the integrity
6-49 and success of the eradication program. The board shall provide
6-50 notice of intent to initiate eradication and collect assessments
6-51 through informational meetings in the affected area not later than
6-52 60 days before the date recognized by the board as the average
6-53 planting date for the area].
6-54 [(d) The board may not reduce the area of the High Plains
6-55 Boll Weevil Suppression Program Area.]
6-56 SECTION 10. Section 74.109, Agriculture Code, is amended by
6-57 amending Subsections (a), (d), (e), (g), and (h) and adding
6-58 Subsections (i) and (j) to read as follows:
6-59 (a) The board shall make available to the state auditor for
6-60 inspection at an annual independent audit all books, records of
6-61 account, and minutes of proceedings maintained by the foundation.
6-62 The financial transactions of the foundation are subject to audit
6-63 by the state auditor in accordance with Chapter 321, Government
6-64 Code.
6-65 (d) The foundation and the board are state agencies for the
6-66 following purposes only:
6-67 (1) exemption from taxation including exemption from
6-68 sales and use taxes, vehicle registration fees, and taxes under
6-69 Chapter 152, Tax Code; and
7-1 (2) indemnification under Chapter 104, Civil Practice
7-2 and Remedies Code.
7-3 (e) Funds collected by the foundation are not state funds
7-4 and are not required to be deposited in the state treasury. The
7-5 foundation shall deposit all money collected under this subchapter
7-6 in a bank or other depository approved by the commissioner [board].
7-7 (g) The board shall collect data on the type and quantity of
7-8 pesticides used in accordance with this subchapter. The data shall
7-9 be filed with the commissioner.
7-10 (h) All revenue collected under this subchapter shall be
7-11 used solely to finance programs approved by the commissioner as
7-12 consistent with this subchapter [and applicable provisions of the
7-13 constitution].
7-14 (i) The foundation is subject to the requirements of:
7-15 (1) the open meetings law, Chapter 551, Government
7-16 Code;
7-17 (2) the open records law, Chapter 552, Government
7-18 Code; and
7-19 (3) the administrative procedure law, Chapter 2001,
7-20 Government Code.
7-21 (j) A board member may not vote on any matter in which the
7-22 member has a direct pecuniary interest. A board member is subject
7-23 to the same restrictions as a local public official under Chapter
7-24 171, Local Government Code.
7-25 SECTION 11. Section 74.110, Agriculture Code, is amended to
7-26 read as follows:
7-27 Sec. 74.110. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
7-28 EMPLOYEES AND APPLICATORS. (a) Except for instances of gross
7-29 negligence, individual criminal actions, or acts of dishonesty, the
7-30 foundation, the foundation's members, directors, officers, and
7-31 employees, and applicators are not individually liable to a cotton
7-32 grower or other person for:
7-33 (1) errors in judgment;
7-34 (2) mistakes; or
7-35 (3) other acts or omissions.
7-36 (b) A foundation member, officer, or employee or an
7-37 applicator is not individually liable for an act or omission of
7-38 another foundation member, officer, or employee or of an
7-39 applicator.
7-40 (c) Except as provided by Subsection (d), an applicator is
7-41 liable to a person for death, damage, or injury to a person or the
7-42 person's property proximately caused by the applicator while acting
7-43 to further or support eradication or diapause efforts undertaken
7-44 pursuant to this subchapter if the death, damage, or injury
7-45 resulted from:
7-46 (1) any negligent act or omission in the application,
7-47 loading, handling, storage, or use of pesticides or other
7-48 chemicals;
7-49 (2) any act taken with specific intent to wrongfully
7-50 injure the person or the person's property; or
7-51 (3) any act done with conscious indifference or
7-52 reckless disregard for the safety of others.
7-53 (d) An applicator is immune from civil liability for any act
7-54 or omission resulting in death, damage, or injury if the
7-55 applicator:
7-56 (1) was acting pursuant to reasonably precise
7-57 directions, instructions, or specifications provided by the
7-58 foundation;
7-59 (2) complied with those directions, instructions, or
7-60 specifications; and
7-61 (3) did not actually know of any risks of harm to the
7-62 person injured or property damaged before the time of the act or
7-63 omission in question that were not known to the foundation at that
7-64 time.
7-65 (e) The foundation shall have liability coverage in effect
7-66 for any eradication or diapause efforts for which it uses
7-67 applicators. The coverage shall apply to acts and omissions of the
7-68 foundation and volunteers and be in the amount of at least $500,000
7-69 for each single occurrence of death, bodily injury, or property
8-1 damage.
8-2 (f) In this section, "applicator" means an individual or
8-3 other person that is not a member, director, officer, or employee
8-4 of the foundation and that contracts with the foundation to apply
8-5 pesticides or other chemicals using aircraft or other equipment to
8-6 further or support the eradication or diapause efforts undertaken
8-7 pursuant to this subchapter.
8-8 (g) Nothing in this section shall be construed to mean that
8-9 an applicator or other person cannot be held responsible for
8-10 violations of state and federal pesticide and herbicide laws and
8-11 regulations adopted thereunder.
8-12 SECTION 12. Subsections (f), (g), (h), and (i), Section
8-13 74.112, Agriculture Code, are amended to read as follows:
8-14 (f) If 40 percent or more of the producers eligible to vote
8-15 within a zone participating in the program present to the
8-16 commissioner [foundation] a petition calling for a referendum of
8-17 the qualified voters on the proposition of discontinuing the
8-18 program, the commissioner [board] shall conduct a referendum for
8-19 that purpose.
8-20 (g) The commissioner [board] shall give notice of the
8-21 referendum, the referendum shall be conducted, and the results
8-22 shall be declared in the manner provided by law for the original
8-23 referendum and election, with any necessary exceptions provided by
8-24 rule of the commissioner.
8-25 (h) The commissioner [board] shall conduct the referendum
8-26 within 90 days of the date of filing of the petition, except that
8-27 no such referendum may be held within two years of any other
8-28 referendum in the eradication zone pertaining to establishing or
8-29 discontinuing the eradication zone.
8-30 (i) Approval of the proposition is by the same vote as
8-31 required in a referendum under Section 74.114(g) [majority vote of
8-32 those voting]. If the proposition is approved, the eradication
8-33 program is abolished and the eradication zone ceases to exist on
8-34 payment of all debts of the eradication zone.
8-35 SECTION 13. Section 74.113, Agriculture Code, is amended to
8-36 read as follows:
8-37 Sec. 74.113. ASSESSMENT REFERENDA. (a) The commissioner
8-38 [foundation] shall propose [determine] the assessment needed in
8-39 each eradication zone to ensure the stability of the cotton
8-40 industry by eradicating the public nuisance caused by the boll
8-41 weevil and the pink bollworm [accomplish the following goal: to
8-42 finance programs of marketing, promotion, research, and education
8-43 calculated to increase the production and use of cotton].
8-44 (b) The commissioner [foundation] shall propose in a
8-45 referendum the:
8-46 (1) maximum assessment to be paid by cotton growers
8-47 having production in the eradication zone; and
8-48 (2) time for which the assessment will be made.
8-49 (c) With the commissioner's approval, the [The] foundation
8-50 may make an assessment in an eradication zone at a level less than
8-51 the assessment approved by the referendum.
8-52 (d) The commissioner [foundation] shall conduct an
8-53 assessment referendum under the procedures provided by Section
8-54 74.114 [of this code].
8-55 (e) If an assessment referendum is approved, the foundation
8-56 may collect the assessment.
8-57 (f) An assessment levied on cotton growers in an eradication
8-58 zone may be applied only to:
8-59 (1) eradication in that zone;
8-60 (2) the foundation's operating costs, including
8-61 payments on debt incurred for a foundation activity, except that
8-62 the funds of one zone may not be used to pay another zone's bank
8-63 loans or debts; and
8-64 (3) the conducting of other programs consistent with
8-65 the declaration of policy stated in Section 74.101 [of this code].
8-66 (g) The assessment shall be adequate and necessary to
8-67 achieve the goals of this subchapter. The amount of the assessment
8-68 shall be determined by criteria established by the commissioner,
8-69 including:
9-1 (1) the extent of infestation;
9-2 (2) the amount of acreage planted;
9-3 (3) historical efforts to eradicate;
9-4 (4) the growing season;
9-5 (5) epidemiology;
9-6 (6) historical weather conditions; and
9-7 (7) the costs and financing of the program.
9-8 (h) The commissioner shall give notice of and hold a public
9-9 hearing within the eradication zone regarding the proposed
9-10 assessment referendum. Before the referendum, the commissioner
9-11 shall review and approve:
9-12 (1) the amount of the assessment;
9-13 (2) the basis for the assessment;
9-14 (3) the time for payment of the assessment;
9-15 (4) the method of allocation of the assessment among
9-16 cotton growers;
9-17 (5) the restructuring and repayment schedule for any
9-18 pre-existing debt; and
9-19 (6) the amount of debt to be incurred in the
9-20 eradication zone.
9-21 (i) The commissioner shall on a zone-by-zone basis set the
9-22 date on which assessments are due and payable.
9-23 (j) Each year, the commissioner shall review and approve the
9-24 foundation's operating budget.
9-25 (k) The foundation shall prepare and mail billing statements
9-26 to each cotton grower subject to the assessment that state the
9-27 amount due and the due date. The assessments shall be paid in cash
9-28 to the foundation.
9-29 SECTION 14. Subsections (a), (c), (d), (f), (h), and (i),
9-30 Section 74.114, Agriculture Code, are amended to read as follows:
9-31 (a) The commissioner [foundation] shall conduct a referendum
9-32 or board election authorized under this subchapter [its
9-33 jurisdiction]. At the end of each four-year period in which an
9-34 eradication program has been operational in a zone, the
9-35 commissioner shall hold a referendum in the zone on the
9-36 continuation of the eradication program. The referendum shall be
9-37 held at the same time as the election of a board member from the
9-38 zone. Approval of the referendum on continuation is by a majority
9-39 of those voting in the referendum.
9-40 (c) The commissioner shall adopt rules for voting in [the
9-41 initial] board elections [election] and [initial] referenda to
9-42 establish or continue eradication zones. [The board shall adopt
9-43 rules for voting in other referenda and board elections.] Rules
9-44 adopted under this subsection must include provisions for
9-45 determining:
9-46 (1) who is a cotton grower eligible to vote in an
9-47 election or referendum;
9-48 (2) whether a board member is elected by a plurality
9-49 or a majority of the votes cast; and
9-50 (3) the area from which each board member is elected.
9-51 (d) A cotton grower having cotton production in a proposed
9-52 or established eradication zone is entitled to:
9-53 (1) vote in a referendum concerning the eradication
9-54 zone; and
9-55 (2) elect board members to represent the eradication
9-56 zone.
9-57 (f) Ballots in a referendum or board election shall be
9-58 mailed directly to a central location, to be [initially] determined
9-59 by the commissioner [and later determined by the board]. A cotton
9-60 grower eligible to vote in a referendum or board election who has
9-61 not received a ballot from the commissioner, foundation, or another
9-62 source shall be offered the option of requesting a ballot by mail
9-63 or obtaining a ballot at the office of the county agent of the
9-64 Texas Agricultural Extension Service or a government office
9-65 distributing ballots in a county in the proposed or established
9-66 zone in which the referendum or board election is conducted.
9-67 (h) If a referendum under this subchapter is not approved,
9-68 the [foundation may with the approval of the] commissioner may
9-69 conduct another referendum. A referendum under this subsection may
10-1 not be held before the 121st day after the date on which the last
10-2 referendum on the same issue was held.
10-3 (i) A public hearing regarding the proposed eradication
10-4 program, including information regarding regulations to be
10-5 promulgated by the [foundation and the] commissioner, may [shall]
10-6 be held by the commissioner [foundation] in each of several
10-7 locations within each boll weevil or pink bollworm eradication
10-8 zone. The area posted for each hearing shall include no more than
10-9 six contiguous counties that have cotton production at the time of
10-10 the hearing.
10-11 SECTION 15. Section 74.115, Agriculture Code, is amended to
10-12 read as follows:
10-13 Sec. 74.115. FAILURE TO PAY ASSESSMENTS. (a) A cotton
10-14 grower who fails to pay an assessment levied under this subchapter
10-15 when due may be subject, after reasonable notice and opportunity
10-16 for hearing, to a penalty set by the commissioner [board]. The
10-17 amount of the penalty shall be based on:
10-18 (1) the seriousness of the violation, including the
10-19 nature, circumstances, and extent of the violation;
10-20 (2) the history of previous violations;
10-21 (3) the amount necessary to deter future violations;
10-22 (4) the economic situation of the cotton grower; and
10-23 (5) any other matter that justice may require.
10-24 (b) [A cotton grower who fails to pay all assessments and
10-25 penalties before the 10th day after receiving notice of the
10-26 delinquency shall destroy any cotton growing on the grower's
10-27 acreage that is subject to the assessment. Cotton plants that are
10-28 not destroyed are a public nuisance, and, on recommendation of the
10-29 foundation, the department shall follow the procedures for
10-30 destruction of host plants provided by Subchapters A and B of this
10-31 chapter, including procedures for reimbursement by the grower of
10-32 costs required for destruction. The department may apply to a
10-33 district court with jurisdiction in the county in which the public
10-34 nuisance is located to have the nuisance condemned and destroyed.
10-35 Injunctive relief available to the department under this subchapter
10-36 is in addition to any other legal remedy available to the
10-37 department. The department is not required to file a bond in a
10-38 proceeding under this subsection.]
10-39 [(c)] In addition to any other remedies for the collection
10-40 of assessments and penalties, the department may place and perfect
10-41 an assessment [a] lien on cotton produced and harvested that year
10-42 from the acreage that is subject to the assessment that is due and
10-43 unpaid. A buyer of cotton takes free of the assessment lien if the
10-44 buyer has not received written or actual notice of the assessment
10-45 lien [from the department] or if the buyer has paid for the cotton
10-46 by a check on which the department is named as a joint payee. In
10-47 an action to enforce the assessment lien, the burden is on the
10-48 department to prove that the buyer of cotton received written or
10-49 actual notice of the assessment lien. A buyer of cotton other than
10-50 a person buying cotton from the cotton grower takes free of the
10-51 assessment lien.
10-52 SECTION 16. Section 74.116, Agriculture Code, is amended to
10-53 read as follows:
10-54 Sec. 74.116. EXEMPTION FROM ASSESSMENT PENALTIES. (a) The
10-55 commissioner by rule shall adopt criteria for exemption from
10-56 payment of assessment penalties under Section 74.115 of this code a
10-57 cotton grower for whom payment would impose an undue financial
10-58 burden.
10-59 (b) A cotton grower may not qualify for an exemption under
10-60 this section for a year in which the amount computed by subtracting
10-61 the assessments and penalties due under this subchapter from the
10-62 cotton grower's net income subject to federal income taxation in
10-63 the previous year is greater than $15,000.
10-64 (c) A cotton grower who applies for an exemption under this
10-65 section must use a form prescribed by the commissioner. A cotton
10-66 grower must file a separate application form for each year for
10-67 which the cotton grower claims an exemption.
10-68 (d) The [commissioner shall forward to the foundation a
10-69 completed exemption application form. The foundation shall
11-1 determine whether the applicant qualifies for an exemption and
11-2 shall notify the commissioner of its determination.]
11-3 [(e) On notification by the foundation that a cotton grower
11-4 qualifies for an exemption, the commissioner shall exempt the
11-5 cotton grower from payment of an assessment penalty under Section
11-6 74.115 of this code.]
11-7 [(f) On the foundation's recommendation, the] commissioner
11-8 may establish a payment plan for a cotton grower applying for an
11-9 exemption under this section.
11-10 (e) [(g)] The commissioner shall promptly notify an
11-11 applicant of the [foundation's] determination regarding the
11-12 applicant's request for an exemption.
11-13 (f) [(h)] If an exemption under this section is denied,
11-14 assessments and penalties for the year for which the application is
11-15 made are due on the later of:
11-16 (1) the date on which they would be due in the absence
11-17 of an application for exemption; or
11-18 (2) 30 days after the date the applicant receives
11-19 notice of the denial.
11-20 (g) In addition to the authority provided under Subsections
11-21 (a)-(f), the commissioner may, on recommendation of the foundation,
11-22 reduce or waive assessment penalties as appropriate.
11-23 SECTION 17. Section 74.117, Agriculture Code, is amended to
11-24 read as follows:
11-25 Sec. 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
11-26 INSPECTIONS. The department, the foundation, or a designated
11-27 representative of either entity may enter cotton fields or other
11-28 premises to carry out the purposes of this subchapter and
11-29 Subchapters A and B of this chapter, which include the treatment
11-30 and[,] monitoring[, and destruction] of growing cotton or other
11-31 host plants. The department, the foundation, or a designated
11-32 representative of either entity may inspect fields or premises in
11-33 this state for the purpose of determining whether the property is
11-34 infested with the boll weevil or the pink bollworm. An inspection
11-35 must be conducted during reasonable daylight hours. The
11-36 commissioner shall adopt rules that give notice to the cotton
11-37 grower of the intent of the department, the foundation, or a
11-38 designated representative of either entity to enter the cotton
11-39 grower's fields or premises to carry out the purposes of this
11-40 subchapter and Subchapters A and B of this chapter.
11-41 SECTION 18. Subsections (b), (c), and (d), Section 74.120,
11-42 Agriculture Code, are amended to read as follows:
11-43 (b) Rules adopted under this section shall establish the
11-44 criteria by which the foundation develops its [rules,]
11-45 procedures[,] and methods of treatment, which shall [rules]:
11-46 (1) establish a methodology for determining when boll
11-47 weevil or pink bollworm population levels have reached economic
11-48 significance;
11-49 (2) establish an effective treatment regimen that
11-50 seeks to provide the least possible risk to workers, the public,
11-51 and the environment;
11-52 (3) minimize the effects of the use of pesticides on
11-53 long-term control methods, including but not limited to the effect
11-54 a particular pesticide may have on biological controls;
11-55 (4) establish methods for monitoring boll weevils,
11-56 pink bollworms, and secondary pests;
11-57 (5) establish methods for verifying pesticide use
11-58 reduction; and
11-59 (6) consider the acute and chronic toxicity of
11-60 particular pesticides and the quantity of particular pesticides
11-61 needed. Eradication zone treatment plans may take into account the
11-62 potential for the use of smaller quantities of more toxic
11-63 substances to result in fewer health and environmental risks than
11-64 larger quantities of less toxic substances.
11-65 (c) The commissioner [foundation and the department] may
11-66 adopt other reasonable rules necessary to carry out the purposes of
11-67 this subchapter and Subchapters A and B of this chapter. All
11-68 rules issued under this subchapter must be adopted and published in
11-69 accordance with state requirements. [Rules adopted by the
12-1 foundation under this section shall be consistent with rules
12-2 adopted by the commissioner under this subchapter.]
12-3 (d) An advisory committee may [shall] be established to
12-4 assist the commissioner in the development of rules adopted under
12-5 this section. The advisory committee may [shall] be composed of:
12-6 (1) three cotton producers from different regions of
12-7 the state, appointed by the commissioner;
12-8 (2) three entomologists with knowledge of the
12-9 principles of integrated pest management, at least one of whom has
12-10 special knowledge of nonchemical or biological pest control,
12-11 appointed by the commissioner;
12-12 (3) two individuals with experience representing the
12-13 general interests of the environment, appointed by the chair of the
12-14 Texas Natural Resource Conservation Commission;
12-15 (4) an environmental engineer with expert knowledge of
12-16 ground and surface water protection from contamination, appointed
12-17 by the chair of the Texas Natural Resource Conservation Commission;
12-18 (5) a toxicologist, appointed by the Commissioner of
12-19 Health; and
12-20 (6) an individual with experience representing the
12-21 general interests of consumers and an individual with experience
12-22 representing the general interests of agricultural workers,
12-23 appointed by the governor.
12-24 SECTION 19. Section 74.121, Agriculture Code, is amended to
12-25 read as follows:
12-26 Sec. 74.121. REPORTS. Each person in an active eradication
12-27 zone growing cotton in this state shall furnish to the foundation
12-28 on forms supplied by the foundation information that the foundation
12-29 requires concerning the size and location of all commercial cotton
12-30 fields and of noncommercial patches of cotton grown for ornamental
12-31 or other purposes. The foundation may provide an incentive for
12-32 early and timely reporting.
12-33 SECTION 20. Section 74.124, Agriculture Code, is amended by
12-34 amending Subsection (a) and adding Subsection (c) to read as
12-35 follows:
12-36 (a) The foundation may carry out programs to destroy and
12-37 eliminate the boll weevil and the pink bollworm in this state by
12-38 cooperating through written agreements, as approved by the
12-39 commissioner, with:
12-40 (1) an agency of the federal government;
12-41 (2) a state agency;
12-42 (3) an appropriate agency of a foreign country
12-43 contiguous to the affected area to the extent allowed by federal
12-44 law;
12-45 (4) a person who is engaged in growing, processing,
12-46 marketing, or handling cotton; or
12-47 (5) a group of persons in this state involved in
12-48 similar programs to carry out the purposes of this subchapter.
12-49 (c) An agency, person, or group of persons that enters into
12-50 an agreement with the foundation under Subsection (a) to carry out
12-51 programs in an eradication zone may not enter into an agreement
12-52 with the foundation to carry out programs in another eradication
12-53 zone. This subsection does not preclude the sharing of technical
12-54 information between an agency, person, or group of persons and the
12-55 foundation.
12-56 SECTION 21. Section 74.125, Agriculture Code, is amended to
12-57 read as follows:
12-58 Sec. 74.125. ORGANIC PRODUCERS. (a) The [board, in
12-59 cooperation with the] commissioner[,] shall develop rules and
12-60 procedures to:
12-61 (1) protect the eligibility of organic producers to be
12-62 certified by the commissioner;
12-63 (2) ensure that organic and transitional certification
12-64 by the commissioner continue to meet national certification
12-65 standards in order for organic cotton to maintain international
12-66 marketability; and
12-67 (3) in all events maintain the effectiveness of the
12-68 boll weevil or pink bollworm eradication program administered under
12-69 this subchapter.
13-1 (b) The board may not treat or require treatment of organic
13-2 cotton fields with chemicals that are not approved for use on
13-3 certified organic cotton. Plow-up may be required as an
13-4 alternative to chemicals. Rules [In the rules] adopted under
13-5 Subsection (a)[, the board] may provide indemnity for the organic
13-6 producers for reasonable losses that result from a prohibition of
13-7 production of organic cotton or from any requirement of destruction
13-8 of organic cotton. If time is reasonably available for the
13-9 production of an economically feasible alternative crop, the board
13-10 may require mitigation of losses with the production of an
13-11 alternative crop.
13-12 SECTION 22. Subsection (c), Section 74.126, Agriculture
13-13 Code, is amended to read as follows:
13-14 (c) If the commissioner [or the foundation] determines that
13-15 a violation of this subchapter or a rule adopted under this
13-16 subchapter has occurred, the commissioner [or the foundation] may
13-17 request that the attorney general or the county or district
13-18 attorney of the county in which the alleged violation occurred or
13-19 is occurring file suit for civil, injunctive, and/or other
13-20 appropriate relief.
13-21 SECTION 23. Subchapter D, Chapter 74, Agriculture Code, is
13-22 amended by adding Sections 74.128 and 74.129 to read as follows:
13-23 Sec. 74.128. ANNUAL REPORT. The board shall issue to the
13-24 commissioner and the appropriate oversight committee in the house
13-25 of representatives an annual report detailing its efforts to carry
13-26 out the purposes of this subchapter.
13-27 Sec. 74.129. EXEMPTION FROM EXECUTION. All payments,
13-28 contributions, and funds received or held by the foundation under
13-29 this subchapter are exempt from garnishment, attachment, execution,
13-30 or other seizure, state and local taxation, levies, sales, and any
13-31 other process and are unassignable.
13-32 SECTION 24. (a) All agreements made and obligations
13-33 incurred by the Texas Boll Weevil Eradication Foundation, Inc.,
13-34 before the effective date of this Act are validated, ratified, and
13-35 confirmed. The foundation's members, directors, officers,
13-36 employees, and agents are not individually liable for, or in
13-37 connection with, any agreement or obligation validated under this
13-38 section.
13-39 (b) Except for instances of gross negligence, individual
13-40 criminal actions, or acts of dishonesty, the foundation's members,
13-41 directors, officers, and employees are not individually liable to a
13-42 cotton grower or other person for errors in judgment, mistakes, or
13-43 other acts or omissions made or occurring before the effective date
13-44 of this Act under the authority of Subchapter D, Chapter 74,
13-45 Agriculture Code, as originally enacted or subsequently amended.
13-46 (c) This section does not make any obligation validated,
13-47 ratified, or confirmed under this section a debt of this state.
13-48 SECTION 25. (a) Assessments approved on February 28, 1994,
13-49 for the Southern Rolling Plains Boll Weevil Eradication Zone, on
13-50 December 1, 1994, and August 2, 1996, for the Central Rolling
13-51 Plains Boll Weevil Eradication Zone, and on February 16, 1995, for
13-52 the South Texas/Winter Garden Boll Weevil Eradication Zone, and all
13-53 agreements and obligations of the Texas Boll Weevil Eradication
13-54 Foundation, Inc., related to the statutory zones made or approved
13-55 before the effective date of this Act are validated, ratified, and
13-56 confirmed.
13-57 (b) Not later than one year after the effective date of this
13-58 Act, the commissioner of agriculture shall hold a retention
13-59 referendum and board election in each statutory zone to determine
13-60 the continued necessity of an eradication program under Section
13-61 74.114, Agriculture Code, as amended by this Act. The retention
13-62 referendum will be determined by a vote of the majority of the
13-63 cotton growers.
13-64 (c) The commissioner of agriculture may, in each statutory
13-65 zone, solicit public comment through public hearings to determine
13-66 whether to divide any of the statutory zones as defined in Section
13-67 74.1021, Agriculture Code, as added by this Act. After considering
13-68 public opinion, the commissioner may by rule divide a statutory
13-69 zone and fairly apportion any debt to each portion of the divided
14-1 zone.
14-2 SECTION 26. The Texas Boll Weevil Eradication Foundation,
14-3 Inc., shall, not later than 30 days after the effective date of
14-4 this Act, take whatever steps are necessary to adjust the
14-5 composition of its board of directors to permit the commissioner of
14-6 agriculture to appoint board members in compliance with Section
14-7 74.107, Agriculture Code, as amended by this Act. If the
14-8 foundation does not comply with Section 74.107, Agriculture Code,
14-9 as amended by this Act, the commissioner may cancel the
14-10 designations and designate another nonprofit entity that meets the
14-11 qualifications of Section 74.107, Agriculture Code, as amended by
14-12 this Act. In the interim, the current directors and officers of
14-13 the foundation shall remain in office and carry out the
14-14 foundation's duties under Subchapter D, Chapter 74, Agriculture
14-15 Code, as amended by this Act.
14-16 SECTION 27. Sections 74.103 and 74.104, Agriculture Code,
14-17 are repealed.
14-18 SECTION 28. The importance of this legislation and the
14-19 crowded condition of the calendars in both houses create an
14-20 emergency and an imperative public necessity that the
14-21 constitutional rule requiring bills to be read on three several
14-22 days in each house be suspended, and this rule is hereby suspended,
14-23 and that this Act take effect and be in force from and after its
14-24 passage, and it is so enacted.
14-25 * * * * *