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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of public grain warehouse operators. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 14.012, Agriculture Code, is amended to |
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read as follows: |
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Sec. 14.012. BUSINESS INFORMATION. (a) Except as provided |
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by Subsection (b), financial information of a warehouse operator |
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provided to the department [The following information, prepared by
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the department in the course of its regulatory authority under this
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chapter or required to be submitted to the department in accordance
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with the department's administration of this chapter,] is |
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confidential and not subject to public disclosure[:
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[(1)
inspection or investigation reports containing
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information regarding grain inventory; and
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[(2)
financial information provided to the department
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to establish net worth for purposes of licensing]. |
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(b) Notwithstanding Subsection (a), [inspection reports
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containing information regarding grain inventory of a warehouse
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operator or] financial information of a warehouse operator provided |
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to the department [to establish net worth] may be disclosed: |
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(1) [entered into evidence] without sealing [and made
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public] in[:
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[(A)] an administrative proceeding commenced by |
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the department against the [a] warehouse operator; |
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(2) to a local or state law enforcement officer, |
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[(B) a civil or criminal proceeding commenced by] a county |
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attorney, a district attorney, or the attorney general, acting |
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either independently or on behalf of the department, investigating |
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the [against a] warehouse operator; [or] |
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(3) in [(C)] a civil proceeding commenced by the |
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warehouse operator against the department; |
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(4) in response to a subpoena from a party in a civil |
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proceeding commenced against the warehouse operator; |
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(5) [(2) provided] to the issuer of the [a] warehouse |
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operator's bond or letter of credit [for the purpose of
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establishing a claim on the warehouse operator's bond or letter of
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credit]; |
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(6) [(3) disclosed] to the public after: |
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(A) revocation of the [a] warehouse operator's |
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license; |
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(B) a voluntary closeout of all of the license |
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holder's facilities in this state; |
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(C) a petition for bankruptcy has been filed; or |
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(D) a receiver [is appointed] for the warehouse |
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operator's assets has been appointed; or |
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(7) [(4) disclosed] to any federal agency or any |
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agency of another state conducting a compliance inspection or |
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criminal or civil investigation involving the handling, storing, |
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shipping, selling, purchasing, or receipt of grain. |
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(c) In this section, "financial information" means: |
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(1) a financial statement or other document provided |
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by the warehouse operator to the department to evaluate net worth |
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requirements under Section 14.031(e); |
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(2) a financial audit provided by the warehouse |
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operator to the department; and |
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(3) if the warehouse operator is subject to an ongoing |
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investigation by the department: |
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(A) the price of grain paid by the warehouse |
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operator to a depositor or other seller of grain delivered to or |
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stored or handled by the warehouse operator; |
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(B) the price of grain paid by or to the warehouse |
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operator by a depositor or other purchaser of grain delivered to or |
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stored or handled by the warehouse operator; and |
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(C) the terms of payment for a price described by |
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Paragraph (A) or (B). |
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(d) Notwithstanding any other provisions of this section: |
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(1) a party to a contract or other agreement with a |
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warehouse operator may obtain a nonredacted copy of the contract or |
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agreement; and |
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(2) a person who authored or contributed to the |
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creation of financial information may be provided access to the |
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financial information for the purpose of confirming the |
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authenticity, truthfulness, or accuracy of the information. |
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SECTION 2. Subsections (d) and (e), Section 14.031, |
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Agriculture Code, are amended to read as follows: |
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(d) The bond must be in an amount of not less than $35,000 |
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[$20,000] and be based on 10 [six] cents per bushel of storage |
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capacity, not to exceed a maximum of $500,000. |
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(e) If the actual net worth of an applicant equals less than |
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the greater of either 25 cents per bushel of storage capacity or |
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$200,000, the applicant shall file a deficiency bond in an amount |
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equal to the difference between the actual net worth and the greater |
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of either $200,000 or the [an] amount determined by multiplying 25 |
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cents times each bushel of storage capacity in the applicant's |
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warehouse. A deficiency bond is in addition to the bond required of |
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an applicant by this section. |
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SECTION 3. Subsection (a), Section 14.066, Agriculture |
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Code, is amended to read as follows: |
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(a) A department action or order affecting a warehouse |
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operator under this chapter[, other than by rulemaking, assessment
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of an administrative penalty, or imposition of a license sanction,
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including a suspension under Section 14.083(c),] is appealable in |
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accordance with this section unless the action involves agency |
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rulemaking, the assessment of an administrative penalty, |
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imposition of a license sanction, or any other action for which a |
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specific administrative or judicial remedy is available under this |
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chapter, Chapter 12 of this code, or Chapter 2001, Government Code. |
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SECTION 4. Subsections (a) and (f), Section 14.082, |
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Agriculture Code, are amended to read as follows: |
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(a) If the department determines that a warehouse operator |
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does not possess sufficient grain to cover outstanding receipts and |
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outstanding scale weight tickets issued or assumed by the warehouse |
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operator, or if a warehouse operator refuses or is unable to submit |
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records or property for lawful inspection or the department is |
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unable to conduct an inspection of the warehouse due to the |
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condition of the warehouse or grain stored in the warehouse, the |
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department may seal the warehouse to prevent delivery or receipt of |
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grain except as authorized by the department, suspend the license |
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of the warehouse operator, and give notice to the warehouse |
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operator requiring the warehouse operator to submit records or |
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property for lawful inspection, to correct any condition |
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interfering with the department's inspection of the warehouse or |
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grain, or to cover a shortage of a particular type of grain by: |
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(1) storing to the credit of or delivering to each |
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depositor affected by the shortage grain of the same type and |
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quality that is stored at any of the warehouse operator's licensed |
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warehouses in this state and that has been designated as |
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company-owned grain by the warehouse operator; |
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(2) purchasing and storing to the credit of or |
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delivering to each depositor affected by the shortage grain of the |
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same type and quality; |
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(3) selling company-owned grain of a different type |
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and paying to each depositor affected by the shortage, on a pro rata |
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basis, the market value of the depositor's grain as determined on |
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the day the shortage was discovered by the department; or |
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(4) using any combination of the remedies described by |
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Subdivisions (1)-(3) or another fair and reasonable method for |
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meeting the shortage approved by the department. |
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(f) A license suspension issued under this section remains |
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in effect until lifted by the department through written notice to |
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the warehouse operator or as provided by Section 14.066 [At any time
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before the 11th day following the day on which the department takes
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possession of grain under this section, the warehouse operator may
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serve notice on the department to appear in the district court of
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the county in which the public grain warehouse is located to show
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cause why possession should not be restored to the warehouse
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operator.
The court shall fix the time of the hearing not less than
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5 nor more than 15 days from the date of service of the notice]. |
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SECTION 5. Section 14.083, Agriculture Code, is amended by |
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amending Subsection (c) and adding Subsection (f) to read as |
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follows: |
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(c) In addition to or in lieu of a license suspension |
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authorized by another provision of this chapter, if [If] the |
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department considers it necessary, the department may suspend a |
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license and prohibit the movement of grain into or out of a |
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warehouse for up to 30 days without a hearing [for one or more
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periods not to cumulatively exceed 30 days in one licensing
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period]. For good cause, a suspension under this subsection may be |
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extended for additional periods of up to 30 days each, not to exceed |
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a total of 90 days of suspension in a licensing period. |
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(f) A license suspension under Subsection (c) remains in |
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effect until lifted by the department through written notice to the |
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warehouse operator or as provided by Section 14.066 or until it |
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expires by operation of law in accordance with the department's |
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notice of suspension or the limitations provided by Subsection (c). |
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SECTION 6. Subsection (a), Section 14.087, Agriculture |
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Code, is amended to read as follows: |
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(a) On prevailing in an action commenced by the department |
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through the attorney general under this chapter [or in a hearing
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commenced by the warehouse operator under Section 14.082(f)], the |
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department and the attorney general are each entitled to recover: |
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(1) investigation costs and fees; |
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(2) reasonable attorney's fees; |
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(3) court costs; and |
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(4) other costs relating to the action, including the |
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cost of depositions and other forms of discovery and copying |
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charges. |
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SECTION 7. This Act takes effect September 1, 2011. |