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.
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