1-1 By: Duncan S.B. No. 631
1-2 (In the Senate - Filed February 22, 1999; February 23, 1999,
1-3 read first time and referred to Committee on Natural Resources;
1-4 March 29, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 4, Nays 0; March 29, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 631 By: Armbrister
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the boll weevil eradication program.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 74.108, Agriculture Code, is amended by
1-13 adding Subsection (d) to read as follows:
1-14 (d) The commissioner at any time may inspect the books and
1-15 other financial records of the foundation.
1-16 SECTION 2. Section 74.1101, Agriculture Code, is amended to
1-17 read as follows:
1-18 Sec. 74.1101. LIABILITY OF APPLICATORS. (a) In this
1-19 section, "applicator" means an individual or other person that is
1-20 not a member, director, officer, or employee of the foundation and
1-21 that contracts with the foundation to apply pesticides or other
1-22 chemicals using aircraft or other equipment to further or support
1-23 the eradication or diapause efforts undertaken under this
1-24 subchapter.
1-25 (b) An applicator is not jointly and severally liable for
1-26 any act or omission of the foundation under this subchapter
1-27 [provided that the foundation maintains the liability coverage
1-28 required under Subsection (c)].
1-29 (c) The foundation shall have liability coverage in effect
1-30 for any eradication or diapause efforts for which it uses
1-31 applicators. The coverage shall apply to acts and omissions of the
1-32 foundation and volunteers and be in the amount of at least $500,000
1-33 for each single occurrence of death, bodily injury, or property
1-34 damage.
1-35 [(d) The commissioner may provide that the foundation
1-36 include an applicator as an additional named insured in any policy
1-37 of insurance required under Subsection (c).]
1-38 [(e) This section expires September 1, 1999.]
1-39 SECTION 3. Subchapter D, Chapter 74, Agriculture Code, is
1-40 amended by adding Section 74.1102 to read as follows:
1-41 Sec. 74.1102. CONTRACTING. (a) For a purchase of goods and
1-42 services under this chapter, the foundation may purchase goods and
1-43 services that provide the best value for the foundation.
1-44 (b) In determining the best value for the foundation, the
1-45 purchase price and whether the goods or services meet
1-46 specifications are the most important considerations. However, the
1-47 foundation may consider other relevant factors, including:
1-48 (1) the quality and reliability of the goods and
1-49 services;
1-50 (2) the delivery terms;
1-51 (3) indicators of probable vendor performance under
1-52 the contract, including:
1-53 (A) past vendor performance;
1-54 (B) the vendor's financial resources and ability
1-55 to perform;
1-56 (C) the vendor's experience or demonstrated
1-57 capability and responsibility; and
1-58 (D) the vendor's ability to provide reliable
1-59 maintenance agreements and support;
1-60 (4) the cost of any employee training associated with
1-61 a purchase; and
1-62 (5) other factors relevant to determining the best
1-63 value for the foundation in the context of a particular purchase.
1-64 SECTION 4. Section 74.115, Agriculture Code, is amended to
2-1 read as follows:
2-2 Sec. 74.115. PAYMENT OF [FAILURE TO PAY] ASSESSMENTS;
2-3 ASSESSMENT LIENS. (a) A cotton grower who fails to pay an
2-4 assessment levied under this subchapter when due may be subject,
2-5 after reasonable notice and opportunity for hearing, to a penalty
2-6 set by the commissioner. In determining the amount of the penalty
2-7 to be assessed, the commissioner shall consider:
2-8 (1) the seriousness of the violation, including the
2-9 nature, circumstances, and extent of the violation;
2-10 (2) the history of previous violations;
2-11 (3) the amount necessary to deter future violations;
2-12 (4) the economic situation of the cotton grower; and
2-13 (5) any other matter that justice may require.
2-14 (b) The foundation may develop a compliance certificate
2-15 program to manage the payment and collection of an assessment
2-16 levied under this subchapter. Under the program the foundation,
2-17 subject to department rules, may issue a compliance certificate for
2-18 cotton for which an assessment has been paid.
2-19 (c) In addition to any other remedies for the collection of
2-20 assessments and penalties, the commissioner may adopt rules
2-21 relating to the compliance certificate program for eradication
2-22 assessments. The rules may include:
2-23 (1) provisions establishing and relating to the
2-24 obligations of growers, ginners, and buyers in due course of cotton
2-25 produced in active eradication zones to ensure that assessments are
2-26 paid within a prescribed time period;
2-27 (2) provisions allowing incentives in the form of
2-28 discounted assessments for growers who pay assessments within a
2-29 prescribed time period;
2-30 (3) provisions establishing penalties and interest
2-31 against growers who pay assessments after a prescribed time period;
2-32 and
2-33 (4) other provisions the commissioner may determine
2-34 are proper.
2-35 (d) In addition to any other remedies for the collection of
2-36 assessments and penalties, [the department may place and perfect]
2-37 an assessment lien in favor of the foundation attaches and is
2-38 perfected 60 days after the date the foundation mails notice of the
2-39 assessment on cotton produced and harvested that year from the
2-40 acreage that is subject to the assessment that is due and unpaid.
2-41 A buyer of cotton takes free of the assessment lien if the buyer:
2-42 (1) receives a compliance certificate issued by the
2-43 foundation when the buyer purchases the cotton that certifies that
2-44 the assessment has been paid to the foundation; [has not received
2-45 written or actual notice of the assessment lien] or
2-46 (2) pays [if the buyer has paid] for the cotton by a
2-47 check on which the department is named as a joint payee.
2-48 (e) The foundation may assign, with the approval of the
2-49 commissioner, assessments or liens in favor of the foundation as
2-50 collateral for a loan to the foundation only if the proceeds of the
2-51 loan are designated for use in the eradication zone from which the
2-52 assessments or liens originated. [In an action to enforce the
2-53 assessment lien, the burden is on the department to prove that the
2-54 buyer of cotton received written or actual notice of the assessment
2-55 lien. A buyer of cotton other than a person buying cotton from the
2-56 cotton grower takes free of the assessment lien.]
2-57 SECTION 5. Subchapter D, Chapter 74, Agriculture Code, is
2-58 amended by adding Section 74.131 to read as follows:
2-59 Sec. 74.131. VENUE. (a) Venue for an action arising out of
2-60 this subchapter in which the foundation is a party is in Travis
2-61 County.
2-62 (b) This section does not expand the liability of the
2-63 foundation beyond the liability provided under Section 74.129.
2-64 SECTION 6. The importance of this legislation and the
2-65 crowded condition of the calendars in both houses create an
2-66 emergency and an imperative public necessity that the
2-67 constitutional rule requiring bills to be read on three several
2-68 days in each house be suspended, and this rule is hereby suspended,
2-69 and that this Act take effect and be in force from and after its
3-1 passage, and it is so enacted.
3-2 * * * * *