AN ACT
1-1 relating to the boll weevil eradication program.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 74.108, Agriculture Code, is amended by
1-4 adding Subsection (d) to read as follows:
1-5 (d) The commissioner at any time may inspect the books and
1-6 other financial records of the foundation.
1-7 SECTION 2. Section 74.1101, Agriculture Code, is amended to
1-8 read as follows:
1-9 Sec. 74.1101. LIABILITY OF APPLICATORS. (a) In this
1-10 section, "applicator" means an individual or other person that is
1-11 not a member, director, officer, or employee of the foundation and
1-12 that contracts with the foundation to apply pesticides or other
1-13 chemicals using aircraft or other equipment to further or support
1-14 the eradication or diapause efforts undertaken under this
1-15 subchapter.
1-16 (b) An applicator is not jointly and severally liable for
1-17 any act or omission of the foundation under this subchapter
1-18 [provided that the foundation maintains the liability coverage
1-19 required under Subsection (c)].
1-20 (c) The foundation shall have liability coverage in effect
1-21 for any eradication or diapause efforts for which it uses
1-22 applicators. The coverage shall apply to acts and omissions of the
1-23 foundation and volunteers and be in the amount of at least $500,000
1-24 for each single occurrence of death, bodily injury, or property
2-1 damage.
2-2 [(d) The commissioner may provide that the foundation
2-3 include an applicator as an additional named insured in any policy
2-4 of insurance required under Subsection (c).]
2-5 [(e) This section expires September 1, 1999.]
2-6 SECTION 3. Subchapter D, Chapter 74, Agriculture Code, is
2-7 amended by adding Section 74.1102 to read as follows:
2-8 Sec. 74.1102. CONTRACTING. (a) For a purchase of goods and
2-9 services under this chapter, the foundation may purchase goods and
2-10 services that provide the best value for the foundation.
2-11 (b) In determining the best value for the foundation, the
2-12 purchase price and whether the goods or services meet
2-13 specifications are the most important considerations. However, the
2-14 foundation may consider other relevant factors, including:
2-15 (1) the quality and reliability of the goods and
2-16 services;
2-17 (2) the delivery terms;
2-18 (3) indicators of probable vendor performance under
2-19 the contract, including:
2-20 (A) past vendor performance;
2-21 (B) the vendor's financial resources and ability
2-22 to perform;
2-23 (C) the vendor's experience or demonstrated
2-24 capability and responsibility; and
2-25 (D) the vendor's ability to provide reliable
2-26 maintenance agreements and support;
3-1 (4) the cost of any employee training associated with
3-2 a purchase; and
3-3 (5) other factors relevant to determining the best
3-4 value for the foundation in the context of a particular purchase.
3-5 SECTION 4. Section 74.115, Agriculture Code, is amended to
3-6 read as follows:
3-7 Sec. 74.115. PAYMENT OF [FAILURE TO PAY] ASSESSMENTS;
3-8 ASSESSMENT LIENS. (a) A cotton grower who fails to pay an
3-9 assessment levied under this subchapter when due may be subject,
3-10 after reasonable notice and opportunity for hearing, to a penalty
3-11 set by the commissioner. In determining the amount of the penalty
3-12 to be assessed, the commissioner shall consider:
3-13 (1) the seriousness of the violation, including the
3-14 nature, circumstances, and extent of the violation;
3-15 (2) the history of previous violations;
3-16 (3) the amount necessary to deter future violations;
3-17 (4) the economic situation of the cotton grower; and
3-18 (5) any other matter that justice may require.
3-19 (b) The foundation may develop a compliance certificate
3-20 program to manage the payment and collection of an assessment
3-21 levied under this subchapter. Under the program the foundation,
3-22 subject to department rules, may issue a compliance certificate for
3-23 cotton for which an assessment has been paid.
3-24 (c) In addition to any other remedies for the collection of
3-25 assessments and penalties, the commissioner may adopt rules
3-26 relating to the compliance certificate program for eradication
4-1 assessments. The rules may include:
4-2 (1) provisions establishing and relating to the
4-3 obligations of growers, ginners, and buyers in due course of cotton
4-4 produced in active eradication zones to ensure that assessments are
4-5 paid within a prescribed time period;
4-6 (2) provisions allowing incentives in the form of
4-7 discounted assessments for growers who pay assessments within a
4-8 prescribed time period;
4-9 (3) provisions establishing penalties and interest
4-10 against growers who pay assessments after a prescribed time period;
4-11 and
4-12 (4) other provisions the commissioner may determine
4-13 are proper.
4-14 (d) In addition to any other remedies for the collection of
4-15 assessments and penalties, [the department may place and perfect]
4-16 an assessment lien in favor of the foundation attaches and is
4-17 perfected 60 days after the date the foundation mails notice of the
4-18 assessment on cotton produced and harvested that year from the
4-19 acreage that is subject to the assessment that is due and unpaid.
4-20 A buyer of cotton takes free of the assessment lien if the buyer:
4-21 (1) receives a compliance certificate issued by the
4-22 foundation when the buyer purchases the cotton that certifies that
4-23 the assessment has been paid to the foundation; [has not received
4-24 written or actual notice of the assessment lien] or
4-25 (2) pays [if the buyer has paid] for the cotton by a
4-26 check on which the department is named as a joint payee.
5-1 (e) The foundation may assign, with the approval of the
5-2 commissioner, assessments or liens in favor of the foundation as
5-3 collateral for a loan to the foundation only if the proceeds of the
5-4 loan are designated for use in the eradication zone from which the
5-5 assessments or liens originated. [In an action to enforce the
5-6 assessment lien, the burden is on the department to prove that the
5-7 buyer of cotton received written or actual notice of the assessment
5-8 lien. A buyer of cotton other than a person buying cotton from the
5-9 cotton grower takes free of the assessment lien.]
5-10 SECTION 5. Subchapter D, Chapter 74, Agriculture Code, is
5-11 amended by adding Section 74.131 to read as follows:
5-12 Sec. 74.131. VENUE. (a) Venue for an action arising out of
5-13 this subchapter in which the foundation is a party is in Travis
5-14 County.
5-15 (b) This section does not expand the liability of the
5-16 foundation beyond the liability provided under Section 74.129.
5-17 SECTION 6. The importance of this legislation and the
5-18 crowded condition of the calendars in both houses create an
5-19 emergency and an imperative public necessity that the
5-20 constitutional rule requiring bills to be read on three several
5-21 days in each house be suspended, and this rule is hereby suspended,
5-22 and that this Act take effect and be in force from and after its
5-23 passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 631 passed the Senate on
April 6, 1999, by the following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 631 passed the House on
May 13, 1999, by the following vote: Yeas 144, Nays 0, one present
not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor