83R24702 JXC-D

By: M. Gonzalez of El Paso H.B. No. 1825

Substitute the following for H.B. No. 1825:

By: Kacal C.S.H.B. No. 1825

A BILL TO BE ENTITLED

AN ACT

relating to the sale or transportation of certain desert plants; creating an offense and providing penalties; providing authority to impose a fee.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 5, Agriculture Code, is amended by adding Subtitle F to read as follows:

SUBTITLE F. PRODUCTION, PROCESSING, AND SALE OF NURSERY PRODUCTS

CHAPTER 121. SALE OF DESERT PLANTS

Sec. 121.001. DEFINITIONS. In this chapter:

(1) "Commercial purchaser" means a person who purchases a plant for the purpose of wholesale or retail sale.

(2) "Desert plant" means the following genera of plants:

(A) Agave;

(B) Ariocarpus;

(C) Echinocactus;

(D) Echinocereus;

(E) Ferocactus;

(F) Fouquieria;

(G) Mammillaria; and

(H) Yucca.

Sec. 121.002. ADMINISTRATION. The department shall administer this chapter and adopt rules necessary for its enforcement.

Sec. 121.003. REQUIREMENTS FOR SALE OR TRANSPORTATION. A person may not sell or offer for sale to a commercial purchaser a desert plant or transport for transfer out of this state a desert plant unless the person:

(1) complies with Sections 121.004 and 121.005 and department rules on providing documentation of the source of the desert plant; or

(2) owns the property from which the desert plant was harvested and provides with the plant a shipping order or other document showing the source of the plant or of a group of plants that includes the plant.

Sec. 121.004. REGISTRATION AND COMPLIANCE AGREEMENT. (a) A person who grows desert plants on or harvests desert plants from property owned by another person for sale must register with the department and enter into a compliance agreement with the department that requires the person to provide a manifest or other form of documentation during a sale or transfer in compliance with Section 121.005.

(b) The department by rule shall establish minimum standards for compliance agreements and the manifests or other forms of documentation to be provided in accordance with compliance agreements. A manifest or other form of documentation must:

(1) show the source of the desert plants; and

(2) verify compliance with the compliance agreement conditions.

(c) The department shall adopt rules, including procedures for inspection or other mechanisms, to ensure that a manifest or other form of documentation provided under a compliance agreement does not misrepresent the source of a desert plant.

(d) A person must include with an application for registration under this section written documentation that the owner of the property from which the desert plants are to be harvested grants the person the authority to harvest the plants from that property.

(e) The department may charge a registration and compliance agreement fee to offset the costs of administering this chapter.

Sec. 121.005. DOCUMENTATION PROVIDED UNDER COMPLIANCE AGREEMENT. (a) A person who sells or offers for sale a desert plant and has entered into a compliance agreement under this chapter shall, in accordance with department rules, provide a manifest or other form of documentation of the source of the desert plant to:

(1) a commercial purchaser;

(2) a person who sells or offers for sale the desert plant to a commercial purchaser; or

(3) a person who transports the desert plant for transfer out of this state.

(b) The manifest or other form of documentation must accompany the desert plant when the plant is:

(1) sold or offered for sale; or

(2) transported for transfer out of this state.

Sec. 121.006. STOP-SALE ORDER. In enforcing this chapter, the department may issue and enforce a written or printed order to stop the sale of a desert plant or a shipment of desert plants that is not accompanied by a manifest or other form of documentation if required under Sections 121.004 and 121.005. If an order is issued, a person may not sell the desert plant or shipment until proper documentation is provided.

Sec. 121.007. AUTHORITY TO SEIZE DESERT PLANTS. (a) In enforcing this chapter, the department with or without process may seize a desert plant or a shipment of desert plants that is:

(1) not accompanied by a manifest or other form of documentation if required by Sections 121.004 and 121.005; and

(2) intended for transfer out of this state.

(b) The department shall:

(1) return desert plants seized under this section to the owner of the land from which they were harvested; or

(2) if the department is not able to identify the owner of the land from which the desert plants were harvested, deliver them to the Parks and Wildlife Department.

Sec. 121.008. PENALTY. (a) A person commits an offense if the person advertises, sells, or offers for sale to a commercial purchaser a desert plant or a shipment of desert plants that is not accompanied by a manifest or other form of documentation if required by Sections 121.004 and 121.005.

(b) An offense under this section is punishable by:

(1) a fine not to exceed $1,000;

(2) imprisonment for a term not to exceed 180 days; or

(3) both fine and imprisonment under this subsection.

SECTION 2. Section 12.020, Agriculture Code, is amended by amending Subsections (a) and (b) and adding Subsections (c-1) and (c-2) to read as follows:

(a) If a person violates a provision of law described by Subsection (c) or (c-1) or a rule or order adopted by the department under a provision of law described by Subsection (c) or (c-1), the department may assess an administrative penalty against the person as provided by this section.

(b) The penalty for each violation may be in an amount not to exceed the maximum provided by Subsection (c) or (c-1) [of this section]. Each day a violation continues or occurs may be considered a separate violation for purposes of penalty assessments.

(c-1) In addition to provisions described by Subsection (c), Chapter 121 is subject to this section and the applicable penalty amount is $500.

(c-2) Subsection (c-1) does not authorize the department to assess an administrative penalty against a person described by Section 121.003(2).

SECTION 3. (a) Not later than December 1, 2013, the Department of Agriculture shall adopt rules to administer Chapter 121, Agriculture Code, as added by this Act.

(b) Chapter 121, Agriculture Code, as added by this Act, applies only to a desert plant that is sold, offered for sale, or transported on or after January 1, 2014.

SECTION 4. This Act takes effect September 1, 2013.