1-1 By: Ellis, McReynolds (Senate Sponsor - Staples) H.B. No. 2246
1-2 (In the Senate - Received from the House May 3, 2001;
1-3 May 4, 2001, read first time and referred to Committee on Natural
1-4 Resources; May 10, 2001, reported favorably by the following vote:
1-5 Yeas 4, Nays 0; May 10, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the regulation of the purchase and sale of timber;
1-9 providing a penalty.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 151, Natural Resources Code, is amended to
1-12 read as follows:
1-13 CHAPTER 151. PROVISIONS GENERALLY APPLICABLE
1-14 SUBCHAPTER A. [BRANDING AND FLOATING TIMBER]
1-15 [Sec. 151.001. DEFINITIONS. In this subchapter:]
1-16 [(1) "Lumber" means lumber attached or bound together
1-17 in some way for floating, but does not include loose lumber.]
1-18 [(2) "Shingles" means shingles in bunches or bundles,
1-19 but does not include loose shingles.]
1-20 [Sec. 151.002. TIMBER TO BE BRANDED. A person engaged in
1-21 floating or rafting timber on the water of a river or creek of this
1-22 state shall have a log brand and shall brand distinctly each log or
1-23 stick which he floats or hauls and puts in the water for sale or
1-24 market.]
1-25 [Sec. 151.003. RECORDING BRAND. (a) A person engaged in
1-26 floating or rafting timber on the water of a river or creek of this
1-27 state shall have his log brand recorded by the county clerk in:]
1-28 [(1) each county in which he cuts timber; and]
1-29 [(2) the county in which he proposes to sell or market
1-30 the timber.]
1-31 [(b) The brand shall be recorded in a book kept by the
1-32 county clerk for that purpose or on microfilm as permitted in
1-33 Chapter 194, Local Government Code.]
1-34 [(c) The county clerk shall receive the same fee as is
1-35 allowed by law for recording stock brands.]
1-36 [Sec. 151.004. FILING WRITTEN REPORT. (a) A person who
1-37 floats any logs or timber in this state shall make a written report
1-38 under oath on the first day of January, April, July, and October of
1-39 each year, or within 15 days of those dates, showing:]
1-40 [(1) the number of logs cut or floated during the next
1-41 preceding three months;]
1-42 [(2) the survey or surveys of land from which the logs
1-43 were cut or carried;]
1-44 [(3) the number of logs cut from each survey; and]
1-45 [(4) a description of the brand placed on the logs.]
1-46 [(b) The person who floats the logs or timber shall file the
1-47 report required in Subsection (a) of this section with the county
1-48 clerk of the county in which the timber was cut. The county clerk
1-49 shall record and index the report in a book kept for that purpose
1-50 or on microfilm as permitted in Chapter 194, Local Government Code.]
1-51 [(c) This section of the code does not apply to pickets,
1-52 posts, rails, or firewood.]
1-53 [Sec. 151.005. EVIDENCE OF OWNERSHIP. A certificate signed
1-54 by the county clerk, containing a description of a log brand and
1-55 the name of the owner of the brand, with a transfer on the back of
1-56 it, signed and acknowledged by the owner or proved as other
1-57 instruments for record, shall be prima facie evidence that the
1-58 person to whom the transfer is made owns the logs described in the
1-59 certificate.]
1-60 [Sec. 151.006. PENALTIES. (a) A person who buys or sells
1-61 any timber or log floating, or that has been floated, in this state
1-62 before it is branded shall be fined not more than $10 for each
1-63 unbranded log or piece of timber purchased, sold, or traced.]
1-64 [(b) A person shall be fined not more than $200 for each
2-1 offense if he:]
2-2 [(1) floats any unbranded log or timber for market;]
2-3 [(2) fails to make the reports required under Section
2-4 151.004 of this code;]
2-5 [(3) brands any log or timber of another without his
2-6 authority;]
2-7 [(4) defaces a brand on any log or timber except when
2-8 it is in the act of being sawed or manufactured into lumber or
2-9 other commodity for use in building; or]
2-10 [(5) is not an employee of the owner and without the
2-11 written consent of the owner takes into possession any branded or
2-12 unbranded log or timber cut for floating or sawing, or any sawed
2-13 timber, lumber, or shingle floating in any water of this state or
2-14 deposited on the banks of a river or stream in this state.]
2-15 [Sec. 151.007. VENUE. The accused may be prosecuted in any
2-16 county in which the timber or lumber was deposited in the water or
2-17 in which it was unlawfully taken into possession or unlawfully
2-18 defaced, sold, purchased, or branded.]
2-19 [SUBCHAPTER B.] BILL OF SALE FOR PURCHASE
2-20 OF TREES AND TIMBER
2-21 Sec. 151.001 [151.041]. REQUIRED BILL OF SALE. Before
2-22 purchasing or accepting delivery of any trees, [or] timber, [in the
2-23 form of] logs, [or] pulpwood, or in-woods chips, a seller [person,
2-24 firm, partnership, or corporation] shall provide and a purchaser
2-25 shall require a bill of sale for the trees, [or] timber, logs,
2-26 pulpwood, or in-woods chips executed [and acknowledged] by the
2-27 seller [in the manner required by law for registration]. The bill
2-28 of sale may be a part of, a compilation of information taken from,
2-29 or an addendum to, by way of example, a timber deed, scale ticket,
2-30 weight ticket, cutting contract, harvest agreement, wood purchase
2-31 agreement, or other records of the sale and purchase made at the
2-32 time if all the information required by Section 151.002 is
2-33 included.
2-34 Sec. 151.002 [151.042]. INFORMATION IN BILL OF SALE. (a)
2-35 The bill of sale, which may be filed of record in the appropriate
2-36 real property records, shall at a minimum include:
2-37 (1) the name [and address] of the:
2-38 (A) owner of the land from which the trees,
2-39 timber, logs, pulpwood, or in-woods chips were or are to be
2-40 obtained;
2-41 (B) seller, if the seller is not the owner of
2-42 the land; and
2-43 (C) purchaser;
2-44 (2) a description of the survey or tract of land from
2-45 which the trees, timber, logs, [or] pulpwood, or in-woods chips
2-46 were or are to be obtained, or information from which the identity
2-47 of that tract of land may be ascertained, but in any event
2-48 including the county name [cut];
2-49 (3) a general description of the trees, timber, [the
2-50 number of] logs, [or] pulpwood, or in-woods chips conveyed in the
2-51 bill of sale; and
2-52 (4) representations and a warranty from the seller
2-53 that the seller is the lawful owner of all the trees, timber, [the
2-54 markings, if any, on the] logs, [or] pulpwood, or in-woods chips
2-55 conveyed in the bill of sale and that the trees, timber, logs,
2-56 pulpwood, or in-woods chips are free and clear of all liens,
2-57 security agreements, encumbrances, claims, demands, and charges.
2-58 (b) The purchaser of trees, timber, logs, pulpwood, or
2-59 in-woods chips conveyed in the bill of sale may, and is entitled
2-60 to, rely on the information required to be provided by the seller
2-61 to be incorporated into the bill of sale, as well as on the
2-62 representations and warranty of the seller.
2-63 Sec. 151.003 [151.043]. RETENTION OF [EXPENSES IN CONNECTION
2-64 WITH] BILL OF SALE. A person that purchases trees, timber, logs,
2-65 pulpwood, or in-woods chips shall retain the bill of sale for not
2-66 less than two years following the later of the date of execution of
2-67 the bill of sale or the expiration date referenced in the bill of
2-68 sale [Notarial fees, filing fees, and other expenses in connection
2-69 with the bill of sale shall be assumed and paid by the purchaser].
3-1 Sec. 151.004 [151.044]. NOTICE CONCERNING SALE OR PURCHASE
3-2 OF TREES OR TIMBER [STATEMENT IN LIEU OF BILL OF SALE FOR STAVES OR
3-3 CROSSTIES]. At each designated point of delivery for trees, timber,
3-4 logs, pulpwood, or in-woods chips, a wood yard, transfer yard, mill
3-5 site, or storage yard shall post the following written notice in
3-6 lettering not less than one inch:
3-7 NOTICE CONCERNING SALE OR PURCHASE OF TREES OR TIMBER
3-8 1. A seller or purchaser of trees, timber, logs, pulpwood,
3-9 or in-woods chips who knowingly fails to provide, obtain,
3-10 or retain a bill of sale as provided in Chapter 151,
3-11 Natural Resources Code, is guilty of a misdemeanor and on
3-12 conviction is subject to a fine of not more than $500 for
3-13 each offense.
3-14 2. A person, firm, partnership, or corporation adjudged
3-15 guilty of theft or fraud in connection with the sale or
3-16 purchase of trees or timber will be punished as provided
3-17 by the Penal Code.
3-18 3. The Texas Forest Service Timber Theft Hotline is
3-19 1-800-364-3470 [(a) On or before the 10th day of each
3-20 succeeding month from the date of purchase, a purchaser of staves
3-21 or crossties who does not secure a bill of sale or deed to the
3-22 staves or crossties shall file a verified statement with the county
3-23 clerk of the county in which the land is located from which the
3-24 staves or crossties were cut.]
3-25 [(b) The verified statement shall include:]
3-26 [(1) the name and address of the seller and purchaser;]
3-27 [(2) a description of the survey or tract of land from
3-28 which the staves or crossties were cut;]
3-29 [(3) the number of staves or crossties; and]
3-30 [(4) the markings, if any, on the staves or
3-31 crossties].
3-32 Sec. 151.005 [151.045]. PENALTY. (a) A seller or purchaser
3-33 who knowingly fails to provide, obtain, or retain [see that] a bill
3-34 of sale [is given in a sale] as required by Sections 151.001,
3-35 151.002, and 151.003 [provided for in this subchapter, or a
3-36 purchaser who does not secure a bill of sale and fails to file the
3-37 statement required by Section 151.044 of this code,] is guilty of a
3-38 misdemeanor and on conviction is subject to a fine of not more than
3-39 $500 for each offense [$100 or confinement for not more than 30
3-40 days in the county jail, or both].
3-41 (b) A wood yard, transfer yard, mill site, or storage yard
3-42 that knowingly fails to post the notice concerning sale or purchase
3-43 of trees or timber as required by Section 151.004 is guilty of a
3-44 misdemeanor and on conviction is subject to a fine of not more than
3-45 $500 for each offense.
3-46 Sec. 151.006 [151.046]. APPLICABILITY. This [The provisions
3-47 of this] subchapter does [shall] not apply to the sale of:
3-48 (1) finished [lumber, cedar staves,] wood products;
3-49 (2) logs or pulpwood from a wood yard, transfer yard,
3-50 mill site, or storage yard;
3-51 (3) trees from a nursery; or
3-52 (4) trees, logs, or pulpwood with a commercial value
3-53 of less than $250[, or posts].
3-54 Sec. 151.007. PENALTIES CUMULATIVE. A penalty provided by
3-55 this subchapter is in addition to a penalty provided under other
3-56 law.
3-57 Sec. 151.008. CIVIL LIABILITY. Nothing in this subchapter
3-58 shall be construed to affect the liability under any other statute
3-59 or under common law, provided that failure to comply with the
3-60 provisions of this subchapter shall not, by itself, create civil
3-61 liability.
3-62 SUBCHAPTER B [C]. UNAUTHORIZED HARVESTING OF TIMBER
3-63 Sec. 151.051 [151.101]. DAMAGES FOR UNAUTHORIZED HARVESTING.
3-64 (a) A person who harvests standing timber with knowledge that the
3-65 harvesting is without the permission of the owner of the standing
3-66 timber and a person who causes another person to harvest standing
3-67 timber without the permission of the owner of the standing timber
3-68 are jointly and severally liable to the owner for damages in an
3-69 amount equal to three times the market price of the timber
4-1 harvested without permission.
4-2 (b) Payment of damages by a person under this section does
4-3 not preclude a prosecution of the person under Section 151.005
4-4 [151.045].
4-5 (c) This section does not apply to the trimming or clearing
4-6 of trees in the vicinity of a utility line or right-of-way.
4-7 SUBCHAPTER C [D]. PAYMENT FOR TIMBER PURCHASED
4-8 Sec. 151.101 [151.151]. DEFINITION. In this subchapter,
4-9 "timber purchaser" means a person who purchases standing timber for
4-10 harvest.
4-11 Sec. 151.102 [151.152]. MONEY COLLECTED FOR TIMBER AS TRUST
4-12 MONEY. Money a timber purchaser collects for harvested timber is
4-13 trust money.
4-14 Sec. 151.103 [151.153]. TIMBER PURCHASER AS TRUSTEE. A
4-15 timber purchaser and each officer, director, partner, or agent of a
4-16 timber purchaser are trustees of trust money.
4-17 Sec. 151.104 [151.154]. BENEFICIARY OF TRUST. Each seller of
4-18 standing timber is a beneficiary of trust money to the extent of
4-19 the beneficiary's share of the purchase price for the timber.
4-20 Sec. 151.105 [151.155]. OFFENSE. (a) A trustee commits an
4-21 offense if the trustee, knowingly or with intent to defraud,
4-22 directly or indirectly retains, uses, disperses, or otherwise
4-23 diverts more than $500 of trust money without first fully paying
4-24 all of the beneficiaries the purchase price for the timber.
4-25 (b) A trustee acts with intent to defraud if the trustee
4-26 retains, uses, disperses, or diverts trust money with the intent to
4-27 deprive a beneficiary of trust money.
4-28 (c) A trustee is presumed to have acted with intent to
4-29 defraud if the trustee does not pay all of the beneficiaries the
4-30 purchase price for the timber not later than the 45th day after the
4-31 date the trustee collects money for the timber.
4-32 (d) An offense under this section is a state jail felony.
4-33 Sec. 151.106 [151.156]. DEFENSES TO PROSECUTION. It is an
4-34 affirmative defense to prosecution under this section that:
4-35 (1) the trustee paid the beneficiaries all trust money
4-36 to which the beneficiaries were entitled not later than the 15th
4-37 day after the date written notice was given to the trustee at the
4-38 trustee's most recent address known that a criminal complaint has
4-39 been filed against the trustee or that a criminal investigation of
4-40 the trustee is pending; or
4-41 (2) two or more persons claim to be beneficiaries of
4-42 the same trust money, and the trustee has deposited the amount of
4-43 the disputed trust money into the registry of the district court of
4-44 the county in which the standing timber was located by action in
4-45 interpleader or other appropriate legal proceeding for the benefit
4-46 of persons the district court determines to be entitled to the
4-47 trust money.
4-48 Sec. 151.107 [151.157]. ELECTION OF OFFENSES. If conduct
4-49 constituting an offense under Section 151.105 [151.155] is an
4-50 offense under another law of this state, the state may elect the
4-51 offense for which it prosecutes the trustee.
4-52 SECTION 2. This Act takes effect September 1, 2001.
4-53 * * * * *