By Ellis, McReynolds H.B. No. 2246
77R12185 MI-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the purchase and sale of timber;
1-3 providing a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 151, Natural Resources Code, is amended to
1-6 read as follows:
1-7 CHAPTER 151. PROVISIONS GENERALLY APPLICABLE
1-8 SUBCHAPTER A. [BRANDING AND FLOATING TIMBER]
1-9 [Sec. 151.001. DEFINITIONS. In this subchapter:]
1-10 [(1) "Lumber" means lumber attached or bound together
1-11 in some way for floating, but does not include loose lumber.]
1-12 [(2) "Shingles" means shingles in bunches or bundles,
1-13 but does not include loose shingles.]
1-14 [Sec. 151.002. TIMBER TO BE BRANDED. A person engaged in
1-15 floating or rafting timber on the water of a river or creek of this
1-16 state shall have a log brand and shall brand distinctly each log or
1-17 stick which he floats or hauls and puts in the water for sale or
1-18 market.]
1-19 [Sec. 151.003. RECORDING BRAND. (a) A person engaged in
1-20 floating or rafting timber on the water of a river or creek of this
1-21 state shall have his log brand recorded by the county clerk in:]
1-22 [(1) each county in which he cuts timber; and]
1-23 [(2) the county in which he proposes to sell or market
1-24 the timber.]
2-1 [(b) The brand shall be recorded in a book kept by the
2-2 county clerk for that purpose or on microfilm as permitted in
2-3 Chapter 194, Local Government Code.]
2-4 [(c) The county clerk shall receive the same fee as is
2-5 allowed by law for recording stock brands.]
2-6 [Sec. 151.004. FILING WRITTEN REPORT. (a) A person who
2-7 floats any logs or timber in this state shall make a written report
2-8 under oath on the first day of January, April, July, and October of
2-9 each year, or within 15 days of those dates, showing:]
2-10 [(1) the number of logs cut or floated during the next
2-11 preceding three months;]
2-12 [(2) the survey or surveys of land from which the logs
2-13 were cut or carried;]
2-14 [(3) the number of logs cut from each survey; and]
2-15 [(4) a description of the brand placed on the logs.]
2-16 [(b) The person who floats the logs or timber shall file the
2-17 report required in Subsection (a) of this section with the county
2-18 clerk of the county in which the timber was cut. The county clerk
2-19 shall record and index the report in a book kept for that purpose
2-20 or on microfilm as permitted in Chapter 194, Local Government Code.]
2-21 [(c) This section of the code does not apply to pickets,
2-22 posts, rails, or firewood.]
2-23 [Sec. 151.005. EVIDENCE OF OWNERSHIP. A certificate signed
2-24 by the county clerk, containing a description of a log brand and
2-25 the name of the owner of the brand, with a transfer on the back of
2-26 it, signed and acknowledged by the owner or proved as other
2-27 instruments for record, shall be prima facie evidence that the
3-1 person to whom the transfer is made owns the logs described in the
3-2 certificate.]
3-3 [Sec. 151.006. PENALTIES. (a) A person who buys or sells
3-4 any timber or log floating, or that has been floated, in this state
3-5 before it is branded shall be fined not more than $10 for each
3-6 unbranded log or piece of timber purchased, sold, or traced.]
3-7 [(b) A person shall be fined not more than $200 for each
3-8 offense if he:]
3-9 [(1) floats any unbranded log or timber for market;]
3-10 [(2) fails to make the reports required under Section
3-11 151.004 of this code;]
3-12 [(3) brands any log or timber of another without his
3-13 authority;]
3-14 [(4) defaces a brand on any log or timber except when
3-15 it is in the act of being sawed or manufactured into lumber or
3-16 other commodity for use in building; or]
3-17 [(5) is not an employee of the owner and without the
3-18 written consent of the owner takes into possession any branded or
3-19 unbranded log or timber cut for floating or sawing, or any sawed
3-20 timber, lumber, or shingle floating in any water of this state or
3-21 deposited on the banks of a river or stream in this state.]
3-22 [Sec. 151.007. VENUE. The accused may be prosecuted in any
3-23 county in which the timber or lumber was deposited in the water or
3-24 in which it was unlawfully taken into possession or unlawfully
3-25 defaced, sold, purchased, or branded.]
3-26 [SUBCHAPTER B.] BILL OF SALE FOR PURCHASE
3-27 OF TREES AND TIMBER
4-1 Sec. 151.001 [151.041]. REQUIRED BILL OF SALE. Before
4-2 purchasing or accepting delivery of any trees, [or] timber, [in the
4-3 form of] logs, [or] pulpwood, or in-woods chips, a seller [person,
4-4 firm, partnership, or corporation] shall provide and a purchaser
4-5 shall require a bill of sale for the trees, [or] timber, logs,
4-6 pulpwood, or in-woods chips executed [and acknowledged] by the
4-7 seller [in the manner required by law for registration]. The bill
4-8 of sale may be a part of, a compilation of information taken from,
4-9 or an addendum to, by way of example, a timber deed, scale ticket,
4-10 weight ticket, cutting contract, harvest agreement, wood purchase
4-11 agreement, or other records of the sale and purchase made at the
4-12 time if all the information required by Section 151.002 is
4-13 included.
4-14 Sec. 151.002 [151.042]. INFORMATION IN BILL OF SALE. (a)
4-15 The bill of sale, which may be filed of record in the appropriate
4-16 real property records, shall at a minimum include:
4-17 (1) the name [and address] of the:
4-18 (A) owner of the land from which the trees,
4-19 timber, logs, pulpwood, or in-woods chips were or are to be
4-20 obtained;
4-21 (B) seller, if the seller is not the owner of
4-22 the land; and
4-23 (C) purchaser;
4-24 (2) a description of the survey or tract of land from
4-25 which the trees, timber, logs, [or] pulpwood, or in-woods chips
4-26 were or are to be obtained, or information from which the identity
4-27 of that tract of land may be ascertained, but in any event
5-1 including the county name [cut];
5-2 (3) a general description of the trees, timber, [the
5-3 number of] logs, [or] pulpwood, or in-woods chips conveyed in the
5-4 bill of sale; and
5-5 (4) representations and a warranty from the seller
5-6 that the seller is the lawful owner of all the trees, timber, [the
5-7 markings, if any, on the] logs, [or] pulpwood, or in-woods chips
5-8 conveyed in the bill of sale and that the trees, timber, logs,
5-9 pulpwood, or in-woods chips are free and clear of all liens,
5-10 security agreements, encumbrances, claims, demands, and charges.
5-11 (b) The purchaser of trees, timber, logs, pulpwood, or
5-12 in-woods chips conveyed in the bill of sale may, and is entitled
5-13 to, rely on the information required to be provided by the seller
5-14 to be incorporated into the bill of sale, as well as on the
5-15 representations and warranty of the seller.
5-16 Sec. 151.003 [151.043]. RETENTION OF [EXPENSES IN CONNECTION
5-17 WITH] BILL OF SALE. A person that purchases trees, timber, logs,
5-18 pulpwood, or in-woods chips shall retain the bill of sale for not
5-19 less than two years following the later of the date of execution of
5-20 the bill of sale or the expiration date referenced in the bill of
5-21 sale [Notarial fees, filing fees, and other expenses in connection
5-22 with the bill of sale shall be assumed and paid by the purchaser].
5-23 Sec. 151.004 [151.044]. NOTICE CONCERNING SALE OR PURCHASE
5-24 OF TREES OR TIMBER [STATEMENT IN LIEU OF BILL OF SALE FOR STAVES OR
5-25 CROSSTIES]. At each designated point of delivery for trees, timber,
5-26 logs, pulpwood, or in-woods chips, a wood yard, transfer yard, mill
5-27 site, or storage yard shall post the following written notice in
6-1 lettering not less than one inch:
6-2 NOTICE CONCERNING SALE OR PURCHASE OF TREES OR TIMBER
6-3 1. A seller or purchaser of trees, timber, logs, pulpwood,
6-4 or in-woods chips who knowingly fails to provide, obtain,
6-5 or retain a bill of sale as provided in Chapter 151,
6-6 Natural Resources Code, is guilty of a misdemeanor and on
6-7 conviction is subject to a fine of not more than $500 for
6-8 each offense.
6-9 2. A person, firm, partnership, or corporation adjudged
6-10 guilty of theft or fraud in connection with the sale or
6-11 purchase of trees or timber will be punished as provided
6-12 by the Penal Code.
6-13 3. The Texas Forest Service Timber Theft Hotline is
6-14 1-800-364-3470 [(a) On or before the 10th day of each
6-15 succeeding month from the date of purchase, a purchaser of staves
6-16 or crossties who does not secure a bill of sale or deed to the
6-17 staves or crossties shall file a verified statement with the county
6-18 clerk of the county in which the land is located from which the
6-19 staves or crossties were cut.]
6-20 [(b) The verified statement shall include:]
6-21 [(1) the name and address of the seller and purchaser;]
6-22 [(2) a description of the survey or tract of land from
6-23 which the staves or crossties were cut;]
6-24 [(3) the number of staves or crossties; and]
6-25 [(4) the markings, if any, on the staves or
6-26 crossties].
6-27 Sec. 151.005 [151.045]. PENALTY. (a) A seller or purchaser
7-1 who knowingly fails to provide, obtain, or retain [see that] a bill
7-2 of sale [is given in a sale] as required by Sections 151.001,
7-3 151.002, and 151.003 [provided for in this subchapter, or a
7-4 purchaser who does not secure a bill of sale and fails to file the
7-5 statement required by Section 151.044 of this code,] is guilty of a
7-6 misdemeanor and on conviction is subject to a fine of not more than
7-7 $500 for each offense [$100 or confinement for not more than 30
7-8 days in the county jail, or both].
7-9 (b) A wood yard, transfer yard, mill site, or storage yard
7-10 that knowingly fails to post the notice concerning sale or purchase
7-11 of trees or timber as required by Section 151.004 is guilty of a
7-12 misdemeanor and on conviction is subject to a fine of not more than
7-13 $500 for each offense.
7-14 Sec. 151.006 [151.046]. APPLICABILITY. This [The provisions
7-15 of this] subchapter does [shall] not apply to the sale of:
7-16 (1) finished [lumber, cedar staves,] wood products;
7-17 (2) logs or pulpwood from a wood yard, transfer yard,
7-18 mill site, or storage yard;
7-19 (3) trees from a nursery; or
7-20 (4) trees, logs, or pulpwood with a commercial value
7-21 of less than $250[, or posts].
7-22 Sec. 151.007. PENALTIES CUMULATIVE. A penalty provided by
7-23 this subchapter is in addition to a penalty provided under other
7-24 law.
7-25 Sec. 151.008. CIVIL LIABILITY. Nothing in this subchapter
7-26 shall be construed to affect the liability under any other statute
7-27 or under common law, provided that failure to comply with the
8-1 provisions of this subchapter shall not, by itself, create civil
8-2 liability.
8-3 SUBCHAPTER B [C]. UNAUTHORIZED HARVESTING OF TIMBER
8-4 Sec. 151.051 [151.101]. DAMAGES FOR UNAUTHORIZED HARVESTING.
8-5 (a) A person who harvests standing timber with knowledge that the
8-6 harvesting is without the permission of the owner of the standing
8-7 timber and a person who causes another person to harvest standing
8-8 timber without the permission of the owner of the standing timber
8-9 are jointly and severally liable to the owner for damages in an
8-10 amount equal to three times the market price of the timber
8-11 harvested without permission.
8-12 (b) Payment of damages by a person under this section does
8-13 not preclude a prosecution of the person under Section 151.005
8-14 [151.045].
8-15 (c) This section does not apply to the trimming or clearing
8-16 of trees in the vicinity of a utility line or right-of-way.
8-17 SUBCHAPTER C [D]. PAYMENT FOR TIMBER PURCHASED
8-18 Sec. 151.101 [151.151]. DEFINITION. In this subchapter,
8-19 "timber purchaser" means a person who purchases standing timber for
8-20 harvest.
8-21 Sec. 151.102 [151.152]. MONEY COLLECTED FOR TIMBER AS TRUST
8-22 MONEY. Money a timber purchaser collects for harvested timber is
8-23 trust money.
8-24 Sec. 151.103 [151.153]. TIMBER PURCHASER AS TRUSTEE. A
8-25 timber purchaser and each officer, director, partner, or agent of a
8-26 timber purchaser are trustees of trust money.
8-27 Sec. 151.104 [151.154]. BENEFICIARY OF TRUST. Each seller of
9-1 standing timber is a beneficiary of trust money to the extent of
9-2 the beneficiary's share of the purchase price for the timber.
9-3 Sec. 151.105 [151.155]. OFFENSE. (a) A trustee commits an
9-4 offense if the trustee, knowingly or with intent to defraud,
9-5 directly or indirectly retains, uses, disperses, or otherwise
9-6 diverts more than $500 of trust money without first fully paying
9-7 all of the beneficiaries the purchase price for the timber.
9-8 (b) A trustee acts with intent to defraud if the trustee
9-9 retains, uses, disperses, or diverts trust money with the intent to
9-10 deprive a beneficiary of trust money.
9-11 (c) A trustee is presumed to have acted with intent to
9-12 defraud if the trustee does not pay all of the beneficiaries the
9-13 purchase price for the timber not later than the 45th day after the
9-14 date the trustee collects money for the timber.
9-15 (d) An offense under this section is a state jail felony.
9-16 Sec. 151.106 [151.156]. DEFENSES TO PROSECUTION. It is an
9-17 affirmative defense to prosecution under this section that:
9-18 (1) the trustee paid the beneficiaries all trust money
9-19 to which the beneficiaries were entitled not later than the 15th
9-20 day after the date written notice was given to the trustee at the
9-21 trustee's most recent address known that a criminal complaint has
9-22 been filed against the trustee or that a criminal investigation of
9-23 the trustee is pending; or
9-24 (2) two or more persons claim to be beneficiaries of
9-25 the same trust money, and the trustee has deposited the amount of
9-26 the disputed trust money into the registry of the district court of
9-27 the county in which the standing timber was located by action in
10-1 interpleader or other appropriate legal proceeding for the benefit
10-2 of persons the district court determines to be entitled to the
10-3 trust money.
10-4 Sec. 151.107 [151.157]. ELECTION OF OFFENSES. If conduct
10-5 constituting an offense under Section 151.105 [151.155] is an
10-6 offense under another law of this state, the state may elect the
10-7 offense for which it prosecutes the trustee.
10-8 SECTION 2. This Act takes effect September 1, 2001.