By Duncan S.B. No. 779 Substitute the following for S.B. No. 779: By Swinford C.S.S.B. No. 779 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the creation of an agricultural lien. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Chapter 70, Property Code, is amended by adding 1-5 Subchapter E to read as follows: 1-6 SUBCHAPTER E. AGRICULTURAL LIENS 1-7 Sec. 70.401. DEFINITIONS. In this subchapter: 1-8 (1) "Agricultural crop" means a plant product that is 1-9 grown, produced, or harvested as a result of an agricultural 1-10 producer's farm operation. 1-11 (2) "Agricultural producer" means a person who is 1-12 engaged in the business of growing, producing, or harvesting an 1-13 agricultural crop. 1-14 (3) "Buyer in ordinary course of business" has the 1-15 meaning assigned by Section 1.201, Business & Commerce Code. 1-16 (4) "Contract purchaser" means a person who, before 1-17 the planting of an agricultural crop, has agreed under a written 1-18 contract to purchase the crop or otherwise pay the agricultural 1-19 producer for growing, producing, or harvesting the agricultural 1-20 crop. The term does not include a person who, as to the 1-21 transaction in question, is licensed and bonded under Chapter 14, 1-22 Agriculture Code, or the United States Warehouse Act (7 U.S.C. 1-23 Section 241 et seq.). 1-24 Sec. 70.402. LIEN CREATED. (a) An agricultural producer 2-1 who, under a written contract with a contract purchaser, is to 2-2 receive consideration for selling an agricultural crop grown, 2-3 produced, or harvested by the producer has a lien for the amount 2-4 owed under the contract, or for the reasonable value of the crop on 2-5 the date of transfer or delivery if there is no provision 2-6 concerning the amount owed in the agreement. 2-7 (b) A lien created under this subchapter is on every 2-8 agricultural crop, either in raw or processed form, that has been 2-9 transferred or delivered by the agricultural producer and is in the 2-10 possession of the contract purchaser. If the agricultural crop is 2-11 commingled after the crop has been transferred or delivered, a lien 2-12 created under this subchapter applies only to that portion of the 2-13 contract purchaser's inventory in an amount that is equal to the 2-14 amount of the crop transferred or delivered by the agricultural 2-15 producer. 2-16 (c) For purposes of this subchapter, an agricultural crop or 2-17 processed form of an agricultural crop deposited by a contract 2-18 purchaser with a warehouse, whether or not a warehouse receipt is 2-19 given as security, is considered to be in the possession of the 2-20 contract purchaser and subject to the lien. 2-21 Sec. 70.403. WHEN LIEN ATTACHES. A lien created under this 2-22 subchapter attaches to the agricultural crop on the date on which 2-23 physical possession of the crop is delivered or transferred by the 2-24 agricultural producer to the contract purchaser or the purchaser's 2-25 agent, or if there is to be a series of deliveries to the contract 2-26 purchaser or purchaser's agent, on the date of the last delivery of 2-27 the agricultural crop to the contract purchaser or purchaser's 3-1 agent. 3-2 Sec. 70.404. APPLICABILITY OF OTHER LAW. Chapter 9, Business 3-3 & Commerce Code, including applicable filing and perfection 3-4 requirements, applies to a lien created under this subchapter. 3-5 Sec. 70.405. DURATION OF LIEN. A lien created under this 3-6 subchapter expires on the first anniversary of the date of 3-7 attachment. 3-8 Sec. 70.406. EFFECT OF LIEN; RECOVERY. (a) A buyer in 3-9 ordinary course of business of an agricultural crop, including a 3-10 person who buys any portion of an agricultural crop from a contract 3-11 purchaser, whether or not the agricultural crop has been 3-12 commingled, takes the agricultural crop free of a lien created 3-13 under this subchapter, and the lien created by this subchapter does 3-14 not pass to any subsequent claimant of the agricultural crop. 3-15 (b) An unequal pro rata recovery between agricultural 3-16 producers is not prohibited under this subchapter if the inequality 3-17 results from a lien on accounts receivable. 3-18 Sec. 70.407. DISCHARGE OF LIEN. (a) A lien created under 3-19 this subchapter is discharged when: 3-20 (1) the lienholder receives full payment for the 3-21 agricultural crop; or 3-22 (2) payment is tendered by the contract purchaser and 3-23 the lienholder, without coercion, defers payment. 3-24 (b) If payment for the agricultural crop is received in the 3-25 form of a negotiable instrument, full payment is received when the 3-26 negotiable instrument clears all financial institutions. 3-27 Sec. 70.408. JOINDER OF ACTIONS. Persons claiming a lien 4-1 against the same agricultural crop under this subchapter may join 4-2 in the same action, and if separate actions are commenced, the 4-3 court may consolidate them. 4-4 Sec. 70.409. RECOVERY OF COSTS. An agricultural producer who 4-5 prevails in an action brought to enforce a lien created under this 4-6 subchapter is entitled to recover: 4-7 (1) reasonable and necessary attorney's fees and court 4-8 costs; and 4-9 (2) interest on funds subject to the lien at the 4-10 judgment interest rate as provided by Chapter 304, Finance Code. 4-11 Sec. 70.410. WAIVER OF CERTAIN RIGHTS PROHIBITED. An 4-12 agricultural producer's agreement with a contract purchaser to 4-13 waive the producer's right to seek a remedy provided by this 4-14 subchapter is void. 4-15 SECTION 2. This Act takes effect September 1, 2001, and 4-16 applies only to a contract to purchase agricultural crops entered 4-17 into on or after the effective date of this Act. A contract to 4-18 purchase agricultural crops entered into before the effective date 4-19 of this Act is governed by the law in effect immediately before the 4-20 effective date of this Act, and that law is continued in effect for 4-21 that purpose.