By: Estes, Hegar S.B. No. 1016
(In the Senate - Filed March 10, 2009; March 13, 2009, read
first time and referred to Committee on Government Organization;
April 8, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; April 8, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1016 By: Hegar
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Department of
Agriculture and the Prescribed Burning Board and the abolition of
the Texas-Israel Exchange Fund Board; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. TEXAS AGRICULTURAL FINANCE AUTHORITY
SECTION 1.01. Subdivisions (1) and (2), Section 44.001,
Agriculture Code, are amended to read as follows:
(1) "Eligible lending institution" means a financial
institution that makes commercial loans, is either a depository of
state funds or an institution of the Farm Credit System
headquartered in this state, and agrees to participate in the
interest rate reduction [linked deposit] program and to provide
collateral equal to the amount of linked deposits placed with it.
(2) "Eligible borrower" means a person who proposes to
use the proceeds of a loan under this chapter in a manner that will
help accomplish the state's goal of fostering the creation and
expansion of enterprises based on agriculture in this state [is in
the business or entering the business of:
[(A) processing and marketing agricultural crops
in this state;
[(B) producing alternative agricultural crops in
this state;
[(C) producing agricultural crops in this state
the production of which has declined because of natural disasters;
[(D) producing agricultural crops in this state
using water conservation equipment for agricultural production
purposes; or
[(E) providing nonagricultural goods or services
that provide an economic benefit to a municipality or county in a
rural area].
SECTION 1.02. The heading to Section 44.007, Agriculture
Code, is amended to read as follows:
Sec. 44.007. INTEREST RATE REDUCTION [LINKED DEPOSIT]
PROGRAM.
SECTION 1.03. Subsections (a), (c), (d), (k), and (l),
Section 44.007, Agriculture Code, are amended to read as follows:
(a) The board shall establish an interest rate reduction [a
linked deposit] program to foster the creation and expansion of
enterprises based on agriculture in this state[:
[(1) encourage commercial lending for the enhanced
production, processing, and marketing of certain agricultural
crops;
[(2) encourage the development or expansion of
businesses in rural areas of this state; and
[(3) finance water conservation projects or equipment
for agricultural production purposes].
(c) The board shall promulgate rules for the loan portion of
the interest rate reduction [linked deposit] program. [The rules
must include:
[(1) a list of the categories of crops customarily
grown in Texas, with consideration given to the Texas Agricultural
Statistics Service information available and relevant to this
determination;
[(2) a list of crops that are alternative agricultural
crops, with consideration given to the Texas Agricultural
Statistics Service information available and relevant to this
determination;
[(3) identification of criteria for a project eligible
for natural disaster assistance; and
[(4) identification of projects and types of equipment
considered as water conservation projects or equipment for
agricultural production purposes.]
(d) In order to participate in the interest rate reduction
[linked deposit] program, an eligible lending institution may
solicit loan applications from eligible borrowers.
(k) The board may adopt rules that create a procedure for
determining priorities for loans granted under this chapter. Each
rule adopted must state the policy objective of the rule. [The
policy objectives of the rules may include preferences to:
[(1) achieve adequate geographic distribution of
loans;
[(2) assist certain industries;
[(3) encourage certain practices including water
conservation; and
[(4) encourage value-added processing of agricultural
products.]
(l) A lending institution is not ineligible to participate
in the interest rate reduction [linked deposit] program solely
because a member of the board is also an officer, director, or
employee of the lending institution, provided that a board member
shall recuse himself or herself from any action taken by the board
on an application involving a lending institution by which the
board member is employed or for which the board member serves as an
officer or director.
SECTION 1.04. Subsections (a) and (b), Section 44.010,
Agriculture Code, are amended to read as follows:
(a) At any one time, not more than $30 million[, $10 million
of which may be used only to finance water conservation projects and
$5 million of which may be used only to finance the economic
development of businesses in rural areas,] may be placed in linked
deposits under this chapter.
(b) The maximum amount of a loan under this chapter [to
process and market Texas agricultural crops] is $500,000. [The
maximum amount of a loan under this chapter to produce alternative
agricultural crops in this state is $250,000. The maximum amount of
a loan under this chapter to finance water conservation projects or
equipment for agricultural production purposes is $250,000. The
maximum amount of a loan under this chapter to finance production of
a crop declared eligible for natural disaster relief, as defined by
board rule, is $250,000. The maximum amount of a loan under this
chapter to finance a business in a rural area is $250,000.]
SECTION 1.05. Section 58.012, Agriculture Code, is amended
by amending Subsections (a), (b), and (c) and adding Subsection (g)
to read as follows:
(a) The authority is governed by a board of directors
composed of the commissioner of agriculture, the director of the
Institute for International Agribusiness Studies at Prairie View
A&M University, and nine [seven] members appointed by the
commissioner [governor with the advice and consent of the senate].
Members of the board must be appointed in the numbers specified and
from the following categories:
(1) one person who is an elected or appointed official
of a municipality or county;
(2) four persons who are knowledgeable about
agricultural lending practices;
(3) one person who is a representative of agricultural
businesses; [and]
(4) one person who is a representative of agriculture
related entities, including rural chambers of commerce,
foundations, trade associations, institutions of higher education,
or other entities involved in agricultural matters; and
(5) two persons who represent young farmers and the
interests of young farmers.
(b) The appointed members of the board serve staggered terms
of two years, with the terms of four [three] members expiring on
January 1 of each even-numbered year and the terms of five [four]
members expiring on January 1 of each odd-numbered year.
(c) Any vacancy occurring in an appointed position on the
board shall be filled by the commissioner [governor] for the
unexpired term.
(g) Notwithstanding Subsection (f), age may be considered
by the commissioner in making appointments under Subsection (a)(5).
SECTION 1.06. Subsection (a), Section 58.013, Agriculture
Code, is amended to read as follows:
(a) The commissioner [governor] shall designate a member of
the board as the chairman of the board to serve in that capacity at
the pleasure of the commissioner [governor]. The board shall elect
a vice-chairman biennially from its members and shall elect a
secretary, a treasurer, and other officers it considers necessary.
SECTION 1.07. Subsection (a), Section 58.0176, Agriculture
Code, is amended to read as follows:
(a) Before a member of the board may assume the member's
duties [and before the member may be confirmed by the senate], the
member must complete at least one course of the training program
established under this section.
SECTION 1.08. Subsections (c) and (d), Section 58.023,
Agriculture Code, are amended to read as follows:
(c) Eligible agricultural businesses or lenders
participating in the authority's programs shall pay the costs of
applying for, participating in, and administering and servicing the
program, in amounts the board considers reasonable and necessary.
The board shall charge an administrative fee for guaranteeing a
loan under Subchapter E that may not be less than one percent of the
amount of the guaranteed loan. Any costs not paid by the eligible
agricultural businesses or lenders shall be paid from the funds of
the authority, including those funds established from bond
proceeds.
(d) The board by rule shall adopt an agreement to be used
between a lender and an approved applicant under which the
authority makes a payment from the Texas agricultural fund for the
purpose of providing a reduced interest rate on a loan guaranteed to
a borrower [under this subchapter]. The agreement must require the
borrower to use the proceeds of the loan for the purposes of the
program under which the payment is made. The board shall adopt
rules to implement this subsection.
SECTION 1.09. Subchapter D, Chapter 58, Agriculture Code,
is amended by adding Section 58.041 to read as follows:
Sec. 58.041. ISSUANCE OF DEBT BY TEXAS PUBLIC FINANCE
AUTHORITY. (a) In this section, "debt instrument" means a note,
debenture, bond, or other evidence of indebtedness.
(b) The Texas Public Finance Authority has the exclusive
authority to act on behalf of the authority in issuing debt
instruments authorized to be issued by the authority. A reference
in law to a debt instrument issued by the authority, in the context
of a debt instrument issued on or after September 1, 2009, means a
debt instrument issued by the Texas Public Finance Authority on
behalf of the authority.
(c) Notwithstanding Section 58.034(e), the authority shall
pay all costs incurred by the Texas Public Finance Authority for
issuing debt instruments on behalf of the authority and associated
fees and expenses.
(d) When the board authorizes the issuance of debt
instruments to fund a loan, the authority shall notify the Texas
Public Finance Authority of the amount of the loan and the recipient
of the loan and request the Texas Public Finance Authority to issue
debt instruments in an amount necessary to fund the loan. The
authority and the Texas Public Finance Authority shall determine
the amount and time of a debt instrument issue to best provide funds
for one or multiple loans.
(e) The Texas Public Finance Authority, at the request of
the authority, may issue debt instruments to provide money to the
Texas agricultural fund.
(f) The Texas Public Finance Authority may sell debt
instruments in any manner it determines to be in the best interest
of the authority, except that it may not sell a debt instrument that
has not been approved by the attorney general and registered with
the comptroller.
(g) The board, in consultation with the Texas Public Finance
Authority, shall adopt rules containing criteria for evaluating the
creditworthiness of loan applicants and the financial feasibility
of projects to be funded with debt instruments issued by the Texas
Public Finance Authority on behalf of the authority.
(h) The Texas Public Finance Authority may enter into a
credit agreement for a debt instrument issued by the Texas Public
Finance Authority on behalf of the authority for a period and on
conditions approved by the Texas Public Finance Authority.
(i) This subsection applies only in relation to general
obligation debt instruments. To the extent other sources of
revenue available for payment of the authority's debts are
insufficient and in accordance with the Texas Constitution, general
revenue is to be appropriated to the Texas Public Finance Authority
in an amount determined by the Texas Public Finance Authority to be
necessary to pay the principal, premium if any, and interest on
general obligation debt instruments issued by the Texas Public
Finance Authority on behalf of the authority, and that amount shall
be specified in the biennial appropriations acts.
SECTION 1.10. The heading to Subchapter E, Chapter 58,
Agriculture Code, is amended to read as follows:
SUBCHAPTER E. AGRICULTURAL [YOUNG FARMER] LOAN GUARANTEE PROGRAM
SECTION 1.11. Subdivision (2), Section 58.051, Agriculture
Code, is amended to read as follows:
(2) "Eligible applicant" means a person applying for a
loan guarantee under this subchapter who[:
[(A) is at least 18 years of age but younger than
40 years of age; and
[(B)] complies with the application procedures
prescribed by this subchapter.
SECTION 1.12. The heading to Section 58.052, Agriculture
Code, is amended to read as follows:
Sec. 58.052. AGRICULTURAL [YOUNG FARMER] LOAN GUARANTEE
PROGRAM.
SECTION 1.13. Section 58.052, Agriculture Code, is amended
by amending Subsections (b), (c), and (e) and adding Subsection (f)
to read as follows:
(b) The board, either directly or through authority
delegated to the commissioner, may grant to an eligible applicant a
guarantee of a loan made by a commercial lender for the purposes
prescribed by this subchapter. The board by rule shall establish
tiered loan guarantee limits. To be eligible to be guaranteed under
this subchapter, a loan with a term of more than one year must have a
fixed interest rate [guarantee amount may not exceed the lesser of
$250,000 or 90 percent of the loan amount].
(c) The aggregate amount guaranteed under this subchapter
may not exceed the lesser of three-fourths of [twice] the amount
contained in the [young farmer loan guarantee account within the]
Texas agricultural fund or $12 million.
(e) The board shall adopt an agreement, to be used between a
commercial lender and an approved eligible applicant, under which
the program provides a payment from money in the Texas agricultural
fund [young farmer loan guarantee account] for the purpose of
providing a reduced interest rate on a loan guaranteed to a borrower
under this subchapter. The board shall adopt rules to implement
this subsection. The maximum rate reduction under this subsection
per year for each borrower may [shall] not exceed three percentage
points or an amount that results in $10,000 in interest savings for
the borrower for the year.
(f) The board by rule shall establish a certified lender
program under which the board may certify commercial lenders to
participate in the agricultural loan guarantee program in order to
expedite the processing of loan guarantee applications by the
board.
SECTION 1.14. Section 58.056, Agriculture Code, is amended
to read as follows:
Sec. 58.056. MONEY FOR LOAN GUARANTEE PROGRAM. The
authority may accept gifts and grants of money from the federal
government, local governments, private corporations, or other
persons for use in the agricultural [young farmer] loan guarantee
program. The legislature may appropriate money for the program.
SECTION 1.15. Subsections (b) and (d), Section 58.057,
Agriculture Code, are transferred to Section 58.032, Agriculture
Code, relettered as Subsections (g) and (h) of that section, and
amended to read as follows:
(g) [(b)] The fund includes [account consists of funds and
transfers made to the account,] grants and donations made for the
purposes of the programs administered by the Texas Agricultural
Finance Authority [the young farmer loan guarantee program, income
earned on money in the account,] and any other money received under
this chapter [subchapter]. Notwithstanding Section 404.071,
Government Code, income and interest earned on money in the fund
[account] shall be deposited to the credit of the fund [account].
[At the end of each state fiscal year the authority shall transfer
to the general credit of the Texas agricultural fund any interest
earned on the account that remains after payment of any
administrative expenses of the program.] The fund [account] is
exempt from the application of Section 403.095, Government Code.
(h) [(d)] The board shall attempt to administer the fund in
a manner that makes private donations to the fund an eligible
itemized deduction for federal income taxation purposes.
SECTION 1.16. Chapter 58, Agriculture Code, is amended by
adding Subchapter F to read as follows:
SUBCHAPTER F. YOUNG FARMER INTEREST RATE REDUCTION PROGRAM
Sec. 58.071. DEFINITIONS. In this subchapter:
(1) "Eligible lending institution" means a financial
institution that makes commercial loans, is either a depository of
state funds or an institution of the Farm Credit System
headquartered in this state, and agrees to participate in the young
farmer interest rate reduction program and to provide collateral
equal to the amount of linked deposits placed with it.
(2) "Linked deposit" means a time deposit governed by
a written deposit agreement between the state and an eligible
lending institution that provides:
(A) that the eligible lending institution pay
interest on the deposit at a rate that is not less than the greater
of:
(i) the current market rate of a United
States treasury bill or note of comparable maturity minus three
percent; or
(ii) 0.5 percent;
(B) that the state not withdraw any part of the
deposit before the expiration of a period set by a written advance
notice of the intention to withdraw; and
(C) that the eligible lending institution agree
to lend the value of the deposit to an eligible borrower at a
maximum rate that is the linked deposit rate plus a maximum of four
percent.
Sec. 58.072. YOUNG FARMER INTEREST RATE REDUCTION PROGRAM.
(a) The board shall establish a young farmer interest rate
reduction program to promote the creation and expansion of
agricultural businesses by young people in this state.
(b) To be eligible to participate in the young farmer
interest rate reduction program, an applicant must be at least 18
years of age but younger than 46 years of age.
(c) The board shall approve or disapprove any and all
applications under this subchapter, provided that the board may
delegate this authority to the commissioner.
(d) The board shall adopt rules for the loan portion of the
young farmer interest rate reduction program.
(e) In order to participate in the young farmer interest
rate reduction program, an eligible lending institution may solicit
loan applications from eligible applicants.
(f) After reviewing an application and determining that the
applicant is eligible and creditworthy, the eligible lending
institution shall send the application for a linked deposit loan to
the administrator of the authority.
(g) The eligible lending institution shall certify the
interest rate applicable to the specific eligible applicant and
attach it to the application sent to the administrator of the
authority.
(h) After reviewing each loan application under this
subchapter, the board or the commissioner shall recommend to the
comptroller the acceptance or rejection of the application.
(i) After acceptance of the application, the comptroller
shall place a linked deposit with the applicable eligible lending
institution for the period the comptroller considers appropriate.
The comptroller may not place a deposit for a period extending
beyond the state fiscal biennium in which it is placed. Subject to
the limitation described by Section 58.075, the comptroller may
place time deposits at an interest rate described by Section
58.071(2).
(j) Before the placing of a linked deposit, the eligible
lending institution and the state, represented by the comptroller,
shall enter into a written deposit agreement containing the
conditions on which the linked deposit is made.
(k) If a lending institution holding linked deposits ceases
to be either a state depository or a Farm Credit System institution
headquartered in this state, the comptroller may withdraw the
linked deposits.
(l) The board may adopt rules that create a procedure for
determining priorities for loans granted under this subchapter.
Each rule adopted must state the policy objective of the rule.
(m) A lending institution is not ineligible to participate
in the young farmer interest rate reduction program solely because
a member of the board is also an officer, director, or employee of
the lending institution, provided that a board member shall recuse
himself or herself from any action taken by the board on an
application involving a lending institution by which the board
member is employed or for which the board member serves as an
officer or director.
(n) Linked deposits under the young farmer interest rate
reduction program shall be funded from the Texas agricultural fund.
Sec. 58.073. COMPLIANCE. (a) On accepting a linked
deposit, an eligible lending institution must loan money to
eligible applicants in accordance with the deposit agreement and
this subchapter. The eligible lending institution shall forward a
compliance report to the board.
(b) The board shall monitor compliance with this subchapter
and inform the comptroller of noncompliance on the part of an
eligible lending institution.
Sec. 58.074. STATE LIABILITY PROHIBITED. The state is not
liable to an eligible lending institution for payment of the
principal, interest, or any late charges on a loan made under this
subchapter. A delay in payment or default on a loan by a borrower
does not affect the validity of the deposit agreement. Linked
deposits are not an extension of the state's credit within the
meaning of any state constitutional prohibition.
Sec. 58.075. LIMITATIONS IN PROGRAM. (a) The maximum
amount of a loan under this subchapter is $500,000.
(b) A loan granted under this subchapter may be used for any
agriculture-related operating expense, including the purchase or
lease of land or fixed assets acquisition or improvement, as
identified in the application.
SECTION 1.17. Chapter 58, Agriculture Code, is amended by
adding Subchapter G to read as follows:
SUBCHAPTER G. YOUNG FARMER GRANT PROGRAM
Sec. 58.091. GRANT PROGRAM. (a) The authority shall
administer a young farmer grant program. A grant must be for the
purpose of fostering the creation and expansion of agricultural
businesses by young people in this state.
(b) The board shall adopt rules governing the operation of
the program and selection criteria for grant recipients.
(c) The board shall select grant recipients.
Sec. 58.092. ELIGIBILITY. To be eligible to receive a grant
under this subchapter, a person must:
(1) be an agricultural producer who is at least 18
years of age but younger than 46 years of age; and
(2) provide matching funds in the amount of not less
than one dollar for each dollar of grant money received.
Sec. 58.093. AMOUNT OF GRANTS. A grant under the young
farmer grant program may not be less than $5,000 or more than
$20,000.
Sec. 58.094. APPLICATIONS. (a) The authority shall accept
grant applications during two application periods each year.
(b) Applicants shall submit an application on a form
approved by the board or the board's designee.
Sec. 58.095. FUNDING. The source of funds for the young
farmer grant program is the Texas agricultural fund.
SECTION 1.18. Section 1232.101, Government Code, is amended
to read as follows:
Sec. 1232.101. ISSUANCE OF BONDS FOR CERTAIN STATE
AGENCIES. With respect to all bonds authorized to be issued by or
on behalf of the adjutant general's department, Parks and Wildlife
Department, Texas Agricultural Finance Authority, Texas Low-Level
Radioactive Waste Disposal Authority, Stephen F. Austin State
University, Midwestern State University, and Texas Southern
University, the authority has the exclusive authority to act on
behalf of those entities in issuing bonds on their behalf. In
connection with those issuances and with the issuance of refunding
bonds on behalf of those entities, the authority is subject to all
rights, duties, and conditions surrounding issuance previously
applicable to the issuing entity under the statute authorizing the
issuance. A reference in an authorizing statute to the entity on
whose behalf the bonds are being issued applies equally to the
authority in its capacity as issuer on behalf of the entity.
SECTION 1.19. Subsection (d), Section 1372.028, Government
Code, is amended to read as follows:
(d) An issuer is not required to provide the statement
required by Subsection (c)(3)(F) if the issuer:
(1) is an issuer of a state-voted issue;
(2) is the Texas Department of Housing and Community
Affairs[, the Texas Agricultural Finance Authority,] or the Texas
State Affordable Housing Corporation; or
(3) provides evidence that one or more binding
contracts have been entered into, or other evidence acceptable to
the board as described by program rule, to spend the unexpended
proceeds by the later of:
(A) 12 months after the date the board receives
the application; or
(B) December 31 of the program year for which the
application is filed.
SECTION 1.20. Subsection (b), Section 502.174,
Transportation Code, is amended to read as follows:
(b) The county assessor-collector shall send an assessment
collected under this section to the comptroller, at the time and in
the manner prescribed by the Texas Agricultural Finance Authority,
for deposit in the Texas agricultural fund [to the credit of the
young farmer loan guarantee account].
SECTION 1.21. The following provisions are repealed:
(1) Subdivision (3), Section 44.001, Agriculture
Code;
(2) Subsection (c), Section 58.0173, Agriculture
Code;
(3) Subsection (b), Section 58.0211, Agriculture
Code;
(4) Subsections (a), (c), and (e), Section 58.057,
Agriculture Code; and
(5) Section 1372.0235, Government Code.
SECTION 1.22. On the effective date of this Act:
(1) the young farmer loan guarantee program under
Subchapter E, Chapter 58, Agriculture Code, as that subchapter
existed before amendment by this Act, is abolished; and
(2) the agricultural loan guarantee program under
Subchapter E, Chapter 58, Agriculture Code, as amended by this Act,
is established.
SECTION 1.23. On the effective date of this Act, the young
farmer loan guarantee account is abolished. All money in the
account on that date remains in the Texas agricultural fund. All
deposits purportedly made to the account on or after that date shall
be deposited in the Texas agricultural fund. All references in law
or rule to the young farmer loan guarantee account mean the Texas
agricultural fund.
SECTION 1.24. (a) As soon as practicable on or after the
effective date of this Act, the commissioner of agriculture shall
appoint two members to the board of directors of the Texas
Agricultural Finance Authority who represent young farmers and the
interests of young farmers. In appointing those members, the
commissioner shall appoint one person to a term expiring January 1,
2010, and one to a term expiring January 1, 2011.
(b) The changes in law made by this Act by the amendment of
Section 58.012, Agriculture Code, do not affect the entitlement of
a member of the board of directors of the Texas Agricultural Finance
Authority serving on the board immediately before the effective
date of this Act to continue to serve on the board and carry out the
board's functions for the remainder of the member's term. The
changes in law apply only to a member appointed on or after the
effective date of this Act. This Act does not prohibit a person who
is a member of the board on the effective date of this Act from being
reappointed to the board if the person has the qualifications
required for a member under Section 58.012, Agriculture Code, as
amended by this Act.
SECTION 1.25. Subsection (b), Section 58.041, Agriculture
Code, as added by this Act, does not apply to the extension,
renewal, or renegotiation of debt issued by the Texas Agricultural
Finance Authority before the effective date of this Act. The
extension, renewal, or renegotiation of debt issued by the Texas
Agricultural Finance Authority before the effective date of this
Act is governed by the law in effect immediately before that date,
and the former law is continued in effect for that purpose.
ARTICLE 2. PRESCRIBED BURNING BOARD
SECTION 2.01. Section 153.001, Natural Resources Code, is
amended to read as follows:
Sec. 153.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Board" [, "board"] means the Prescribed Burning
Board.
(2) "Department" means the Department of Agriculture.
SECTION 2.02. Subchapter A, Chapter 153, Natural Resources
Code, is amended by adding Section 153.004 to read as follows:
Sec. 153.004. PRESCRIBED BURNING IN STATE OF EMERGENCY OR
DISASTER. A certified and insured prescribed burn manager may
conduct a burn in a county in which a state of emergency or state of
disaster has been declared by the governor or the president of the
United States, unless the declaration expressly prohibits all
outdoor burning.
SECTION 2.03. Subsection (a), Section 153.041, Natural
Resources Code, is amended to read as follows:
(a) The Prescribed Burning Board is established within the
department [Department of Agriculture] and is composed of:
(1) an employee of the Texas Forest Service designated
by the director of the Texas Forest Service;
(2) an employee of the Parks and Wildlife Department
appointed by the executive director of the Parks and Wildlife
Department;
(3) an employee of the Texas Commission on
Environmental Quality [Natural Resource Conservation Commission]
appointed by the executive director of the Texas Commission on
Environmental Quality [Natural Resource Conservation Commission];
(4) an employee of the Texas AgriLife [Agricultural]
Extension Service appointed by the executive director of the Texas
AgriLife [Agricultural] Extension Service;
(5) an employee of [the] Texas AgriLife Research
[Agricultural Experiment Station] appointed by the director of
[the] Texas AgriLife Research [Agricultural Experiment Station];
(6) an employee of the Texas Tech University Range and
Wildlife Department appointed by the dean of the Texas Tech
University College of Agricultural Sciences and Natural Resources;
(7) an employee of the department [Department of
Agriculture] appointed by the commissioner of agriculture;
(8) an employee of the State Soil and Water
Conservation Board appointed by the executive director of the State
Soil and Water Conservation Board; and
(9) five persons who are:
(A) owners of agricultural land, as that term is
defined by Section 153.081;
(B) self-employed or employed by a person other
than a governmental entity; and
(C) appointed by the commissioner of
agriculture.
SECTION 2.04. Section 153.044, Natural Resources Code, is
amended to read as follows:
Sec. 153.044. SUNSET PROVISION. The Prescribed Burning
Board is subject to Chapter 325, Government Code (Texas Sunset
Act). The board shall be reviewed during the period in which the
Department of Agriculture is reviewed [Unless continued in
existence as provided by that chapter, the board is abolished and
this chapter expires September 1, 2009].
SECTION 2.05. Section 153.046, Natural Resources Code, is
amended to read as follows:
Sec. 153.046. DUTIES. The board shall:
(1) establish standards for prescribed burning;
(2) develop a comprehensive training curriculum for
certified and insured prescribed burn managers;
(3) establish standards for certification,
recertification, and training for certified and insured prescribed
burn managers;
(4) establish minimum education and professional
requirements for instructors for the approved curriculum; and
(5) establish minimum insurance requirements for
certified and insured prescribed burn managers.
SECTION 2.06. Section 153.047, Natural Resources Code, is
amended to read as follows:
Sec. 153.047. PRESCRIBED BURNING STANDARDS. Minimum
standards established by the board for prescribed burning must:
(1) ensure that prescribed burning is the controlled
application of fire to naturally occurring or naturalized
vegetative fuels under specified environmental conditions in
accordance with a written prescription plan:
(A) designed to confine the fire to a
predetermined area and to accomplish planned land management
objectives; and
(B) that conforms to the standards established
under this section;
(2) require that at least one certified and insured
prescribed burn manager is present on site during the conduct of the
prescribed burn;
(3) establish appropriate guidelines for size of
burning crews sufficient to:
(A) conduct the burn in accordance with the
prescription plan; and
(B) provide adequate protection for the safety of
persons and of adjacent property;
(4) include standards for notification to adjacent
land owners, the Texas Commission on Environmental Quality [Natural
Resource Conservation Commission], and local fire authorities; and
(5) include minimum insurance requirements for
certified and insured prescribed burn managers.
SECTION 2.07. Subsections (c) and (e), Section 153.048,
Natural Resources Code, are amended to read as follows:
(c) The certification is for two [five] years.
(e) The board shall maintain a register of certified and
insured prescribed burn managers and dates of completion of initial
and continuing training.
SECTION 2.08. Subsections (a) and (b), Section 153.081,
Natural Resources Code, are amended to read as follows:
(a) Subject to Section 153.082, an owner, lessee, or
occupant of agricultural land is not liable for property damage or
for injury or death to persons caused by or resulting from
prescribed burning conducted on the land owned by, leased by, or
occupied by the person if the prescribed burning is conducted under
the supervision of a certified and insured prescribed burn manager.
(b) This section does not apply to an owner, lessee, or
occupant of agricultural land who is a certified and insured
prescribed burn manager and conducts a burn on that land.
SECTION 2.09. Section 153.082, Natural Resources Code, is
amended to read as follows:
Sec. 153.082. INSURANCE. The limitation on liability under
Section 153.081 does not apply to an owner, lessee, or occupant of
agricultural land unless the certified and insured prescribed burn
manager conducting a burn on the land has liability insurance
coverage:
(1) of at least $1 million for each single occurrence
of bodily injury or death, or injury to or destruction of property;
and
(2) with a policy period minimum aggregate limit of at
least $2 million.
SECTION 2.10. Chapter 153, Natural Resources Code, is
amended by adding Subchapter D to read as follows:
SUBCHAPTER D. COMPLAINTS, ENFORCEMENT, AND PENALTIES
Sec. 153.101. COMPLAINTS. The department shall receive and
process complaints concerning certified and insured prescribed
burn managers in the manner described by Section 12.026,
Agriculture Code, and rules adopted under that section.
Sec. 153.102. DISCIPLINARY ACTION; SCHEDULE OF SANCTIONS.
(a) The department may impose an administrative sanction,
including an administrative penalty, as provided by Sections
12.020, 12.0201, 12.0202, and 12.0261, Agriculture Code, for a
violation of this chapter.
(b) The department by rule shall adopt a schedule of the
disciplinary sanctions that the department may impose under this
chapter. In adopting the schedule of sanctions, the department
shall ensure that the severity of the sanction imposed is
appropriate to the type of violation or conduct that is the basis
for disciplinary action.
(c) In determining the appropriate disciplinary action,
including the amount of any administrative penalty to assess, the
department shall consider:
(1) whether the person:
(A) is being disciplined for multiple violations
of either this chapter or a rule or order adopted under this
chapter; or
(B) has previously been the subject of
disciplinary action by the department under this chapter and has
previously complied with department rules and this chapter;
(2) the seriousness of the violation;
(3) the threat to public safety; and
(4) any mitigating factors.
Sec. 153.103. INJUNCTION. (a) The department may apply to
a district court in any county for an injunction to restrain a
person who is not a certified and insured prescribed burn manager
from representing that the person is a certified and insured
prescribed burn manager.
(b) At the request of the department, the attorney general
shall initiate and conduct an action in a district court in the
state's name to obtain an injunction under this section.
Sec. 153.104. EMERGENCY SUSPENSION. (a) On determining
that a certification holder is engaged in or about to engage in a
violation of this chapter and that the certification holder's
continued practice constitutes an immediate threat to the public
welfare, the department may issue an order suspending the
certification holder's certification without notice or a hearing.
The department shall immediately serve notice of the suspension on
the certification holder.
(b) The notice required by Subsection (a) must:
(1) be personally served on the certification holder
or be sent by registered or certified mail, return receipt
requested, to the certification holder's last known address
according to the department's records;
(2) state the grounds for the suspension; and
(3) inform the certification holder of the right to a
hearing on the suspension order.
(c) A certification holder whose certification is suspended
under this section is entitled to request a hearing on the
suspension not later than the 30th day after the date of receipt of
notice of the suspension. Not later than the fifth day after the
date a hearing is requested, the department shall issue a notice of
hearing.
(d) A hearing on a suspension order under this section is
subject to Chapter 2001, Government Code. If the hearing is before
an administrative law judge, after the hearing, the administrative
law judge shall recommend to the department whether to uphold,
vacate, or modify the suspension order.
(e) A suspension order issued under this section remains in
effect until further action is taken by the department. If the
administrative law judge's recommendation under Subsection (d) is
to vacate the order, the department shall determine whether to
vacate the order not later than the second day after the date of the
recommendation.
SECTION 2.11. (a) Subsection (c), Section 153.048,
Natural Resources Code, as amended by this Act, applies to a
certification issued or renewed after the effective date of this
Act. A certification issued or renewed before the effective date of
this Act is governed by the law in effect on the date the
certification was issued or renewed, and the former law is
continued in effect for that purpose.
(b) Sections 153.102, 153.103, and 153.104, Natural
Resources Code, as added by this Act, apply only to conduct that
occurs on or after the effective date of this Act. Conduct that
occurs before the effective date of this Act is governed by the law
in effect when the conduct occurred, and the former law is continued
in effect for that purpose.
ARTICLE 3. TEXAS-ISRAEL EXCHANGE FUND BOARD
SECTION 3.01. The heading to Chapter 45, Agriculture Code,
is amended to read as follows:
CHAPTER 45. TEXAS-ISRAEL EXCHANGE RESEARCH PROGRAM [FUND]
SECTION 3.02. Section 45.001, Agriculture Code, is amended
to read as follows:
Sec. 45.001. LEGISLATIVE FINDINGS; PURPOSE. (a) The
legislature finds that Texas and Israel have many interests in
common. They face many of the same difficulties in agriculture; the
geography of both areas produces semiarid climatic conditions;
there is present in both areas a rising demand for a limited supply
of water coupled with increasing pressures to minimize the use of
energy in all aspects of agriculture. Scientific and technological
cooperatives already produce close ties between the two areas while
engaging in binational projects for scientific and industrial
research and development.
A program [fund] to support joint agricultural research and
development by, and the development of trade and business relations
between, Texas and Israel will address common problems and make
substantial contributions to the development of agriculture,
trade, and business in both areas. Since Texas has long emphasized
broad-based agricultural research and Israel has originated and
developed agricultural technologies designed to maximize
production with minimal use of resources such as water and labor,
each of the two areas will benefit by sharing information and
expertise.
(b) The purpose of this chapter is to:
(1) establish a program [fund] to promote and support
practical and applied agricultural research and development that
will result in mutual benefit to Texas and Israel and will help to
provide solutions to food and fiber production problems wherever
they exist, particularly those relating to water conservation; and
(2) establish a program of mutual cooperation that
will foster the development of trade, mutual assistance, and
business relations between Texas and Israel.
SECTION 3.03. Section 45.002, Agriculture Code, is amended
to read as follows:
Sec. 45.002. DEFINITION [DEFINITIONS]. In this chapter,[:
[(1)] "applied [Applied] research" means the process
of assembling knowledge gained by careful and diligent search and
studious inquiry and examination and using that knowledge to solve
practical, real-world problems.
[(2) "Board" means the Texas-Israel Exchange Fund
Board.
[(3) "Fund" means the Texas-Israel Exchange Fund.]
SECTION 3.04. Section 45.005, Agriculture Code, is amended
to read as follows:
Sec. 45.005. GENERAL FUNCTIONS, POWERS, AND DUTIES.
(a) The department may establish a binational program to support
joint agricultural research and development with Israel. The scope
of agricultural research and development which the program [fund]
may promote and support encompasses all scientific activities
related to agriculture, including production, processing,
marketing, and agricultural services, with emphasis on the support
of applied research to improve water, labor, and energy utilization
in agriculture.
(b) The program [fund] shall support applied research in
areas of potential mutual interest, including:
(1) water conservation;
(2) water management and use;
(3) soil management and conservation;
(4) innovative sources of energy for agricultural
production;
(5) environmental aspects of agricultural technology;
(6) intensive crop production; and
(7) agricultural engineering and processing.
(c) The program [fund] may undertake agricultural research
and development projects of mutual benefit that are located in
Texas, Israel, or any other location considered advisable by the
department or suggested by the advisory committee [boards].
(d) The department [fund] may make research or development
grants or loans to public or private entities who intend to carry
out the stated objectives of the program [fund].
(e) The program [fund] shall encourage or support the
exchange of agricultural producers, scientists, teachers,
students, or other types of agricultural experts between the two
cooperating areas of Texas and Israel.
(f) The program [fund] shall encourage and support [a
program of] mutual cooperation that will foster the development of
trade, mutual assistance, and business relations between Texas and
Israel.
SECTION 3.05. Subsections (b) and (d), Section 45.007,
Agriculture Code, are amended to read as follows:
(b) The department [board] may accept gifts and grants from
the federal government, state government, and private sources, as
well as legislative appropriations to carry out the purposes of
this chapter. The use of gifts and grants other than legislative
appropriation is subject only to limitations contained in the gift
or grant.
(d) The department [board] shall make an annual accounting
of all money received, awarded, and expended during the year under
this chapter to the legislative committees responsible for
agricultural issues.
SECTION 3.06. Chapter 45, Agriculture Code, is amended by
adding Section 45.009 to read as follows:
Sec. 45.009. TEXAS-ISREAL EXCHANGE ADVISORY COMMITTEE. The
department may establish a binational agricultural research
advisory committee to provide guidance and direction on activities
conducted under this chapter and the expenditure of money
appropriated for the purposes of this chapter.
SECTION 3.07. (a) The Texas-Israel Exchange Fund Board and
the Texas-Israel Exchange Fund are abolished.
(b) The following provisions of the Agriculture Code are
repealed:
(1) Section 45.003;
(2) Section 45.004;
(3) Section 45.006;
(4) Subsections (a) and (c), Section 45.007; and
(5) Section 45.008.
ARTICLE 4. STRUCTURE OF CERTAIN BOARDS AND ADVISORY COMMITTEES
SECTION 4.01. Chapter 50B, Agriculture Code, is amended by
adding Section 50B.0015 to read as follows:
Sec. 50B.0015. DEFINITION. In this chapter, "committee"
means the wine industry development and marketing advisory
committee.
SECTION 4.02. Section 50B.002, Agriculture Code, is amended
to read as follows:
Sec. 50B.002. WINE INDUSTRY DEVELOPMENT AND MARKETING[;]
ADVISORY COMMITTEE. (a) The commissioner shall [may] appoint a
wine industry development and marketing advisory committee to:
(1) develop a long-term vision and marketable identity
for the wine industry in the state that take into consideration
future industry development, funding, research, educational
programming, risk management, and marketing; and
(2) assist the commissioner in establishing and
implementing the Texas Wine Marketing Assistance Program under
Chapter 110, Alcoholic Beverage Code.
(b) The committee consists of members appointed by the
commissioner who represent a diverse cross-section of the wine
industry, including representatives of:
(1) grape growers;
(2) wineries;
(3) wholesalers;
(4) package stores;
(5) retailers;
(6) researchers;
(7) consumers;
(8) the department; and
(9) the Texas Alcoholic Beverage Commission.
(c) The members of the committee serve without
compensation.
(d) A member of the committee serves at the pleasure of the
commissioner for a term of two years. The commissioner may
reappoint a member to the committee.
(e) The commissioner shall select a presiding officer from
among the members and adopt rules governing the operation of the
committee.
(f) The committee shall meet as necessary to provide
guidance to the commissioner.
SECTION 4.03. Subsections (a) and (d), Section 62.002,
Agriculture Code, are amended to read as follows:
(a) The State Seed and Plant Board is an agency of the state.
The board is composed of [six members appointed by the governor with
the advice and consent of the senate. Membership must include]:
(1) one individual, appointed by the president of
Texas A&M University, from the Soils and Crop Sciences Department,
Texas Agricultural Experiment Station, Texas A&M [A & M]
University;
(2) one individual, appointed by the president of
Texas Tech University, from the Department of Plant and Soil
Sciences, Texas Tech University;
(3) one individual, appointed by the commissioner,
licensed as a Texas Foundation, Registered, or Certified seed or
plant producer who is not employed by a public institution;
(4) one individual, appointed by the commissioner, who
sells Texas Foundation, Registered, or Certified seed or plants;
(5) one individual, appointed by the commissioner,
actively engaged in farming but not a producer or seller of Texas
Foundation, Registered, or Certified seed or plants; and
(6) the head of the seed division of the department.
(d) The commissioner [governor] shall designate a member of
the board as the chairman to serve in that capacity at the pleasure
of the commissioner [governor]. The board annually shall elect a
vice-chairman and secretary. The board shall meet at times and
places determined by the chairman.
SECTION 4.04. Subsection (a), Section 62.0027, Agriculture
Code, is amended to read as follows:
(a) Before a member of the board may assume the member's
duties [and before the member may be confirmed by the senate], the
member must complete at least one course of the training program
established under this section.
SECTION 4.05. Subsections (a) and (f), Section 103.003,
Agriculture Code, are amended to read as follows:
(a) The Produce Recovery Fund Board is composed of five
members appointed by the commissioner [governor with the advice and
consent of the senate]. Two members must be producers, one must be
a license holder licensed under Chapter 101, and two must be members
of the general public.
(f) The commissioner [governor] shall designate a member of
the board as the chairman of the board to serve in that capacity at
the pleasure of the commissioner [governor].
SECTION 4.06. Subsection (a), Section 103.019, Agriculture
Code, is amended to read as follows:
(a) Before a member of the board may assume the member's
duties [and before the member may be confirmed by the senate], the
member must complete at least one course of the training program
established under this section.
SECTION 4.07. Subsection (b), Section 110.002, Alcoholic
Beverage Code, is amended to read as follows:
(b) The commissioner, in consultation with the advisory
committee established under Section 50B.002, Agriculture Code
[110.003], shall adopt rules as necessary to implement the program.
SECTION 4.08. The following statutes are repealed:
(1) Subsection (c), Section 62.0023, Agriculture
Code;
(2) Subsection (b), Section 103.003 and Subsection
(c), Section 103.017, Agriculture Code; and
(3) Section 110.003, Alcoholic Beverage Code.
SECTION 4.09. On the effective date of this Act, the Texas
Wine Marketing Assistance Program advisory committee and the wine
industry development advisory committee are abolished. The
commissioner of agriculture may appoint a person who previously
served on either of those committees to the wine industry
development and marketing advisory committee established under
Section 50B.002, Agriculture Code, as amended by this Act.
SECTION 4.10. The changes in law made by this Act by the
amendment of Sections 62.002 and 103.003, Agriculture Code, do not
affect the entitlement of a member serving on the State Seed and
Plant Board or Produce Recovery Fund Board immediately before the
effective date of this Act to continue to serve as a board member
for the remainder of the member's term. The changes in law apply
only to a member appointed on or after the effective date of this
Act.
ARTICLE 5. CERTAIN AGRICULTURAL REGULATORY PROGRAMS
SECTION 5.01. Section 13.251, Agriculture Code, is amended
to read as follows:
Sec. 13.251. DEFINITION. In this subchapter, "public
weigher" means a business certified under this subchapter [person
who is elected or appointed] to issue an official certificate
declaring the accurate weight or measure of a commodity that the
business [person] is requested to weigh.
SECTION 5.02. Section 13.255, Agriculture Code, is amended
to read as follows:
Sec. 13.255. CERTIFICATE. (a) A public weigher[, whether
elected or appointed, or deputy public weigher] may not officially
weigh a commodity unless the weigher has obtained from the
department a certificate of authority.
(b) A [state public weigher must submit a nonrefundable fee,
as provided by department rule, with the application for a
certificate of authority. A county public weigher or a deputy]
public weigher must submit a fee, as provided by department rule,
with the application for a certificate of authority.
SECTION 5.03. Section 13.2555, Agriculture Code, is amended
to read as follows:
Sec. 13.2555. REVOCATION, MODIFICATION, OR SUSPENSION OF
CERTIFICATE. (a) The department shall revoke, modify, or suspend
the certificate of authority of a [an appointed public weigher or a
deputy of an appointed county] public weigher, assess an
administrative penalty, place on probation the public weigher
[person] whose certificate has been suspended, or reprimand a [an
appointed public weigher or a deputy of an appointed county] public
weigher for a violation of this subchapter or a rule adopted by the
department under this subchapter.
(b) If a certificate suspension is probated, the department
may require the public weigher [person] to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or renew professional education until the
public weigher [person] attains a degree of skill satisfactory to
the department in those areas that are the basis of the probation.
(c) If the department proposes to revoke, modify, or suspend
a public weigher's [person's] certificate, the public weigher
[person] is entitled to a hearing conducted under Section 12.032.
The decision of the department is appealable in the same manner as
provided for contested cases under Chapter 2001, Government Code.
SECTION 5.04. Section 13.256, Agriculture Code, is amended
to read as follows:
Sec. 13.256. BOND. [(a)] Each [county public weigher,
whether elected or appointed, and each deputy] public weigher shall
execute [for the full term of office] a bond in accordance with
rules adopted [that is in the amount of $2,500, approved] by the
department[, and made payable to the county judge of the county for
which the weigher is elected or appointed]. The bond must be
conditioned on the accurate weight or measure of a commodity being
reflected on the certificate issued by the public weigher [or
deputy], on the protection of a commodity that the public weigher
[or deputy] is requested to weigh or measure, and on compliance with
all laws and rules governing public weighers. [The bond shall be
filed with the county clerk's office in the county for which the
public weigher or deputy is appointed or elected.] The bond is not
void on first recovery. A person injured by the public weigher may
sue on the bond.
[(b) Each state public weigher shall execute a bond similar
to the bond required under Subsection (a) of this section, except
that the bond is for $10,000, made payable to the State of Texas,
and filed with the department.]
SECTION 5.05. Subsection (a), Section 13.257, Agriculture
Code, is amended to read as follows:
(a) On each certificate of weight or measure that a public
weigher [or deputy public weigher] issues, the public weigher [or
deputy public weigher] shall include the:
(1) time and date that the weight or measurement was
taken;
(2) signature and license number of the public weigher
[or deputy public weigher]; and
(3) seal of the department.
SECTION 5.06. Subsection (a), Section 13.259, Agriculture
Code, is amended to read as follows:
(a) A public weigher [or deputy public weigher] who
intentionally or knowingly issues a certificate of weight or
measure giving a false weight or measure for a commodity weighed or
measured commits an offense.
SECTION 5.07. Section 13.261, Agriculture Code, is amended
to read as follows:
Sec. 13.261. [POWER OF DEPARTMENT;] RULES. The department
shall [may] adopt rules governing the bond requirements and
[procedures to be followed in administering the] fees imposed under
this subchapter.
SECTION 5.08. Section 52.038, Agriculture Code, is amended
to read as follows:
Sec. 52.038. EXISTING CORPORATIONS AND ASSOCIATIONS.
[(a)] Any corporation or association organized under prior law
before March 1, 1921, may elect, by a majority vote of its members
or stockholders, to adopt this chapter and become subject to it by:
(1) adopting the restrictions provided by this
chapter; and
(2) executing, in duplicate on forms supplied by the
secretary of state, an instrument, signed and acknowledged by its
directors, stating that the entity, by a majority vote of its
members or stockholders, has decided to accept the benefits of and
be bound by this chapter[; and
[(3) filing articles of incorporation in accordance
with the requirements of Section 52.035 of this code except that the
entity's directors shall sign the articles].
[(b) The filing fee for the articles filed under Subsection
(a) of this section is equal to the filing fee for an amendment to
the articles of incorporation as provided by Section 52.151 of this
code.]
SECTION 5.09. Section 52.151, Agriculture Code, is amended
to read as follows:
Sec. 52.151. TAX EXEMPTIONS [FEES]. [(a) The fee for
filing articles of incorporation under this chapter is $10.
[(b) The fee for filing an amendment to the articles of
incorporation under this chapter is $2.50.
[(c) Each marketing association shall pay to the department
an annual license fee, as provided by department rule.] A marketing
association is exempt from all [other] franchise or license taxes,
except that a marketing association is exempt from the franchise
tax imposed by Chapter 171, Tax Code, only if exempted by that
chapter.
SECTION 5.10. Section 101.003, Agriculture Code, is amended
by amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) This section does not apply to:
(1) a retailer, unless the retailer:
(A) has annual sales of perishable commodities
that comprise 50 percent or more of the retailer's total sales; or
(B) employs a buying agent who buys directly from
a producer;
(2) a producer who handles or deals exclusively in the
producer's own products;
(3) a person shipping less than six standard boxes of
citrus fruit in any one separate shipment; [or]
(4) a person who ships a noncommercial shipment of
perishable commodities; or
(5) a person who purchases perishable commodities and
pays for the perishable commodities in United States currency
before or at the time of delivery or taking possession.
(c) A person who purchases perishable commodities without a
license, as owner, agent, or otherwise, does not violate this
section if the person obtains a license not later than the 30th day
after the date the person first purchases perishable commodities.
SECTION 5.11. Section 101.004, Agriculture Code, is amended
to read as follows:
Sec. 101.004. LICENSE OR REGISTRATION CATEGORIES. [(a)] A
person shall apply for a license if the person:
(1) purchases perishable commodities on credit;
(2) takes possession of perishable commodities for
consignment or handling on behalf of the producer or owner of the
perishable commodities; or
(3) takes possession of perishable commodities for
consignment or handling in a manner or under a contract that does
not require or result in payment to the producer, seller, or
consignor of the full amount of the purchase price in United States
currency at the time of delivery or at the time that the perishable
commodities pass from the producer, seller, or consignor to the
person.
[(b) A person shall register as a cash dealer if the person
purchases perishable commodities and pays for the perishable
commodities in United States currency before or at the time of
delivery or taking possession.]
SECTION 5.12. Subsections (b) and (c), Section 101.007,
Agriculture Code, are amended to read as follows:
(b) If [an applicant for a license indicates on the
application that] a previous license of the applicant has been or is
suspended or has been revoked, the department may not issue or renew
a license to the applicant until the department is furnished with
satisfactory proof that the applicant is, on the date of
application, qualified to receive the license for which the
applicant applied as provided by department rule.
(c) The department may refuse to issue or renew a license
under this section if the department determines that a license
previously issued to the applicant was revoked or suspended or that
the applicant has engaged in conduct for which a license could have
been revoked or suspended. In determining whether to refuse to
issue or renew a license under this section, the department may
consider:
(1) the facts and circumstances pertaining to a prior
suspension or revocation;
(2) the financial condition of the applicant as of the
date of the application;
(3) any judgment by a court of this state that is
outstanding against the applicant and is due and owing to a
licensee, grower, or producer of perishable commodities; and
(4) any certified claim against the applicant by a
licensee, grower, or producer of perishable commodities that is
under consideration by the department.
SECTION 5.13. Section 101.009, Agriculture Code, is amended
to read as follows:
Sec. 101.009. LICENSEE LIST. The department may publish as
often as it considers necessary a list in pamphlet form or on the
department's Internet website of all persons licensed under this
chapter.
SECTION 5.14. Subsections (a) and (b), Section 101.013,
Agriculture Code, are amended to read as follows:
(a) If a licensee or a person required to be licensed causes
a producer, seller, or owner, or an agent of a producer, seller, or
owner, to part with control or possession of all or any part of the
person's perishable commodities and agrees by contract of purchase
to pay the purchase price on demand following delivery, the
licensee or person required to be licensed shall make payment
immediately on demand.
(b) If a person makes demand for the purchase price in
writing, the mailing of a registered letter that makes the demand
and is addressed to the licensee or person required to be licensed
at their [the licensee's] business address is prima facie evidence
that demand was made at the time the letter was mailed.
SECTION 5.15. Section 101.014, Agriculture Code, is amended
to read as follows:
Sec. 101.014. COMMISSION OR SERVICE CHARGE IN CONTRACT. If
a licensee or a person required to be licensed handles perishable
commodities by guaranteeing a producer or owner a minimum price and
handles the perishable commodities on the account of the producer
or owner, the licensee or person required to be licensed shall
include in the contract with the producer or owner the maximum
amount that the licensee or person required to be licensed will
charge for commission, service, or both, in connection with the
perishable commodities handled.
SECTION 5.16. Subsections (a) and (b), Section 101.015,
Agriculture Code, are amended to read as follows:
(a) Except as otherwise provided by this section, a licensee
or a person required to be licensed shall settle with the producer
or seller of perishable commodities on the basis of the grade and
quality that is referred to in the contract under which the licensee
or person required to be licensed obtained possession or control of
the perishable commodities.
(b) If the perishable commodities have been inspected by a
state or federal inspector in this state and found to be of a
different grade or quality than that referred to in the contract,
the licensee or person required to be licensed shall settle with the
producer or seller of the perishable commodities on the basis of the
grade and quality determined by the inspector.
SECTION 5.17. Section 101.0151, Agriculture Code, is
amended to read as follows:
Sec. 101.0151. BUYING OR SELLING BY WEIGHT. A licensee or a
person required to be licensed who buys or sells perishable
commodities by weight shall weigh or have the perishable
commodities weighed on scales that meet state requirements.
SECTION 5.18. Section 101.016, Agriculture Code, is amended
to read as follows:
Sec. 101.016. RECORDS OF PURCHASE. (a) A licensee or a
person required to be licensed or a packer, processor, or
warehouseman may not receive or handle perishable commodities
without requiring the person from whom the perishable commodities
are purchased or received to furnish a statement in writing
showing:
(1) the owner of the perishable commodities;
(2) the grower of the perishable commodities;
(3) the approximate location of the land on which the
perishable commodities were grown;
(4) the date the perishable commodities were gathered;
and
(5) by whose authority the perishable commodities were
gathered.
(b) The licensee or person required to be licensed, packer,
processor, or warehouseman shall keep records of statements
furnished under Subsection (a) in a permanent book or folder for a
minimum of three years from the date of the transaction and shall
make the records available for inspection by any interested party.
(c) The licensee or person required to be licensed, packer,
handler, or warehouseman shall:
(1) prepare a receipt detailing the quantity of
perishable commodities received from the producer or owner at the
time of receipt of the commodities; and
(2) on request, provide the receipt to the producer or
owner.
(d) The department periodically may investigate licensees,
persons required to be licensed, or persons alleged to be selling or
purchasing perishable commodities in violation of this chapter and,
without notice, may require evidence of purchase of any perishable
commodities in a person's possession or past possession.
SECTION 5.19. Section 101.017, Agriculture Code, is amended
to read as follows:
Sec. 101.017. RECORD OF SALE. (a) Except for a retailer, a
licensee or a person required to be licensed shall maintain for each
sale a complete and accurate record showing:
(1) the date of sale of the perishable commodities;
(2) the person to whom the perishable commodities were
sold;
(3) the grade and selling price of the perishable
commodities; and
(4) an itemized statement of expenses of any kind or
character incurred in the sale or handling of the perishable
commodities, including the amount of the commission to the licensee
or person required to be licensed.
(b) On demand of the department or of an owner, seller, or
agent of the owner or seller, the licensee or person required to be
licensed shall furnish the information demanded before the 11th day
following the date of demand.
(c) A licensee or a person required to be licensed shall
maintain the information required to be kept by this section for at
least three years after the date of sale.
SECTION 5.20. Subsection (a), Section 101.020, Agriculture
Code, is amended to read as follows:
(a) A person commits an offense if the person:
(1) acts in violation of Section 101.003 by not
obtaining a license or registration or after receiving notice of
cancellation of a license or registration;
(2) acts or assumes to act as a transporting agent or
buying agent:
(A) without first obtaining an identification
card; or
(B) after receiving notice of cancellation of an
identification card;
(3) as a transporting agent or buying agent, fails and
refuses to turn over to the department an identification card in
accordance with Section 101.010(e);
(4) as a license holder or a person required to be
licensed, fails to furnish information under Section 101.017 before
the 11th day following the date of demand;
(5) as a license holder or a person required to be
licensed, fails to settle with a producer or seller on the grade and
quality of perishable commodities in the manner provided by Section
101.015;
(6) [as a cash dealer, pays for perishable commodities
by a means other than United States currency;
[(7)] as a license holder or a person required to be
licensed, transporting agent, or buying agent, violates a provision
of this chapter;
(7) [(8) acts or assumes to act as a cash dealer
without first registering as a cash dealer;
[(9)] as a license holder or a person required to be
licensed, buys or sells perishable commodities by weight and does
not have the perishable commodities weighed on scales that meet
state requirements;
(8) [(10)] fails to prepare and maintain records
required by Sections 101.016, 101.017, and 101.018; or
(9) [(11)] fails to provide records as required by
Sections 101.016 and 101.018.
SECTION 5.21. Subsection (a), Section 103.002, Agriculture
Code, is amended to read as follows:
(a) The produce recovery fund is a special trust fund with
the comptroller administered by the department, without
appropriation, for the payment of claims against license holders,
[and] retailers, and persons required to be licensed under Chapter
101.
SECTION 5.22. Section 103.005, Agriculture Code, is amended
to read as follows:
Sec. 103.005. INITIATION OF CLAIM. (a) A person who deals
with a license holder or a person required to be licensed under
Chapter 101 in the purchasing, handling, selling, and accounting
for sales of perishable commodities and who is aggrieved by an
action of the license holder or person required to be licensed as a
result of a violation of terms or conditions of a contract made by
the license holder or person required to be licensed for the sale of
Texas-grown produce may initiate a claim against the fund by filing
with the department:
(1) a sworn complaint against the license holder or
person required to be licensed; and
(2) a filing fee, as provided by department rule.
(b) A complaint and the fee under Subsection (a) [of this
section] must be filed on or before the second [first] anniversary
of the date that payment was due [of the violation], or recovery
from the fund is barred.
SECTION 5.23. Section 103.0055, Agriculture Code, is
amended to read as follows:
Sec. 103.0055. BANKRUPTCY OF MERCHANT OR RETAILER. For
purposes of this chapter, the amount due an aggrieved party by a
license holder or a person required to be licensed is not affected
by a final judgment of a bankruptcy court that releases the license
holder or person required to be licensed from the legal duty to
satisfy the claim.
SECTION 5.24. Subsection (a), Section 103.006, Agriculture
Code, is amended to read as follows:
(a) After a claim is initiated, the department shall
investigate the complaint and determine the amount due the
aggrieved party. If the amount determined by the department is
disputed by the license holder, a person required to be licensed, or
the aggrieved party, the board shall conduct a hearing on the claim
and determine the amount due the aggrieved party.
SECTION 5.25. Subsection (a), Section 103.007, Agriculture
Code, is amended to read as follows:
(a) If the amount determined by the department's
investigation to be due the aggrieved party is not disputed by the
license holder, a person required to be licensed, or the aggrieved
party, the department shall pay the claim within the limits
prescribed by this chapter.
SECTION 5.26. Subsections (a), (b), (d), and (f), Section
103.008, Agriculture Code, are amended to read as follows:
(a) In making payments from the fund the department may
[can] pay the aggrieved party the full value of their validated
claim, subject to Subsections (b) and (d) [all of the first $2,000
of any claim and no more than 70 percent of the claim above $2,000].
(b) The total payment of all claims arising from the same
contract with a license holder or a person required to be licensed
may not exceed $50,000 [$35,000].
(d) Payment of a claim filed against a person who is not
licensed in violation of Chapter 101 shall be limited to 80 percent
of the recovery prescribed under this section [The department may
not pay a claim against:
[(1) a person who was not licensed on the date the
contract on which the claim is based was entered into; or
[(2) a cash dealer registered under Chapter 101].
(f) If a license holder or a person required to be licensed
owes money to the produce recovery fund at the time the license
holder or person required to be licensed makes a claim against the
fund, the department shall offset the amount owed to the fund from
the amount dispensed.
SECTION 5.27. Section 103.009, Agriculture Code, is amended
by amending Subsections (a), (c), and (d) and adding Subsection (e)
to read as follows:
(a) If the department pays a claim against a license holder
or a person required to be licensed, the license holder or person
required to be licensed shall:
(1) reimburse the fund immediately or agree in writing
to reimburse the fund on a schedule to be determined by rule of the
department; and
(2) immediately pay the aggrieved party any amount due
that party or agree in writing to pay the aggrieved party on a
schedule to be determined by rule of the department.
(c) If the license holder or person required to be licensed
does not reimburse the fund or pay the aggrieved party, or does not
agree to do so, in accordance with this section, the department
shall issue an order canceling the license and may not issue a new
license to or renew the license of that person for four years from
the date of cancellation. If the license holder or person required
to be licensed is a corporation, an officer or director of the
corporation or a person owning more than 25 percent of the stock in
the corporation may not be licensed under Chapter 101 during the
four-year period in which the corporation is ineligible for
licensing.
(d) Subsections (a) and (b) do [This section does] not apply
to a license holder or a person required to be licensed who is
released by a final judgment of a bankruptcy court from the legal
duty to satisfy the claim paid by the department.
(e) The amount to be reimbursed under this section shall be
one and one-half times the amount of the claim paid if the person
required to reimburse the department was not licensed on the date on
which the transaction forming the base of the claim occurred.
SECTION 5.28. Section 103.010, Agriculture Code, is amended
to read as follows:
Sec. 103.010. SUBROGATION OF RIGHTS. If the department
pays a claim against a license holder or a person required to be
licensed, the department is subrogated to all rights of the
aggrieved party against the license holder or person required to be
licensed to the extent of the amount paid to the aggrieved party.
SECTION 5.29. Subsection (b), Section 103.011, Agriculture
Code, is amended to read as follows:
(b) A person registered as a [cash dealer or a] marketing
association organized under Chapter 52 that handles citrus fruit
only for its members is exempt from payment of the fee under this
section.
SECTION 5.30. Subsections (a) and (b), Section 103.013,
Agriculture Code, are amended to read as follows:
(a) A person commits an offense if the person acts or
assumes to act as a license holder under Chapter 101 without first
paying the annual fee required by Section 103.11 [this chapter].
(b) An offense under this section is a Class B misdemeanor
[punishable by a fine of not more than $500].
SECTION 5.31. Subsection (a), Section 121.005, Agriculture
Code, is amended to read as follows:
(a) Each rose plant or shipment of rose plants shall be
labeled with[:
[(1)] the proper grade[; and
[(2) the number of the certificate of authority of the
person selling or offering for sale the plant or shipment].
SECTION 5.32. Subsection (f), Section 52.092, Election
Code, is amended to read as follows:
(f) Precinct offices shall be listed in the following order:
(1) county commissioner;
(2) justice of the peace;
(3) constable[;
[(4) public weigher].
SECTION 5.33. Subsection (a), Section 172.024, Election
Code, is amended to read as follows:
(a) The filing fee for a candidate for nomination in the
general primary election is as follows:
(1) United States senator $5,000
(2) office elected statewide, except United States
senator 3,750
(3) United States representative 3,125
(4) state senator 1,250
(5) state representative 750
(6) member, State Board of Education 300
(7) chief justice or justice, court of appeals, other
than a justice specified by Subdivision (8) 1,875
(8) chief justice or justice of a court of appeals that
serves a court of appeals district in which a county with a
population of more than 750,000 is wholly or partly
situated 2,500
(9) district judge or judge specified by Section
52.092(d) for which this schedule does not otherwise prescribe a
fee 1,500
(10) district or criminal district judge of a court in
a judicial district wholly contained in a county with a population
of more than 850,000 2,500
(11) judge, statutory county court, other than a judge
specified by Subdivision (12) 1,500
(12) judge of a statutory county court in a county with
a population of more than 850,000 2,500
(13) district attorney, criminal district attorney,
or county attorney performing the duties of a district
attorney 1,250
(14) county commissioner, district clerk, county
clerk, sheriff, county tax assessor-collector, county treasurer,
or judge, constitutional county court:
(A) county with a population of 200,000
or more 1,250
(B) county with a population of under
200,000 750
(15) justice of the peace or constable:
(A) county with a population of 200,000
or more 1,000
(B) county with a population of under
200,000 375
(16) county surveyor or[,] inspector of hides and
animals[, or public weigher] 75
(17) office of the county government for which this
schedule does not otherwise prescribe a fee 750
SECTION 5.34. Subsection (b), Section 62.160, Labor Code,
is amended to read as follows:
(b) Sections 62.051-62.054 [and Subchapter C] do not apply
to an agricultural employer with respect to an employee engaged in
the production of livestock.
SECTION 5.35. The following statutes are repealed:
(1) Section 13.252, Agriculture Code;
(2) Section 13.253, Agriculture Code;
(3) Section 13.2535, Agriculture Code;
(4) Section 13.254, Agriculture Code;
(5) Subsection (b), Section 52.035, Agriculture Code;
(6) Section 52.152, Agriculture Code;
(7) Subsection (b), Section 101.006, Agriculture
Code;
(8) Subsection (c), Section 103.008, Agriculture
Code;
(9) Section 121.004, Agriculture Code;
(10) Subdivision (1), Section 62.002, Labor Code; and
(11) Subchapter C, Chapter 62, Labor Code.
SECTION 5.36. (a) The changes in law made by this Act to
Subchapter E, Chapter 13, Agriculture Code, do not affect the
entitlement of a public weigher or deputy public weigher elected or
appointed before the effective date of this Act to serve as a public
weigher or deputy public weigher for the remainder of the public
weigher's or deputy public weigher's term. A public weigher or
deputy public weigher elected or appointed before the effective
date of this Act is governed by the law in effect immediately before
the effective date of this Act, and the former law is continued in
effect for that purpose.
(b) The changes in law made by this Act to Section 103.008,
Agriculture Code, apply only to a claim for payment filed on or
after the effective date of this Act. A claim filed before that
date is governed by the law in effect on the date the claim was
filed, and the former law is continued in effect for that purpose.
ARTICLE 6. GENERAL LICENSING PROVISIONS
SECTION 6.01. Subsections (a) and (c), Section 12.020,
Agriculture Code, are amended to read as follows:
(a) If a person violates a provision of law [this code]
described by Subsection (c) [of this section] or a rule or order
adopted by the department under a provision of law [this code]
described by Subsection (c) [of this section], the department may
assess an administrative penalty against the person as provided by
this section.
(c) The provisions of law [this code] subject to this
section and the applicable penalty amounts are as follows:
Provision Amount of Penalty Provision Amount of Penalty
Provision Amount of Penalty
Chapter 41 not more than $5,000 [$1,000] Chapter 41 not more than $5,000 [$1,000]
Chapter 41 not more than $5,000 [$1,000]
Chapters 13, 14A, 18, 46, 61, 94, Chapters 13, 14A, 18, 46, 61, 94,
Chapters 13, 14A, 18, 46, 61, 94,
95, 101, 102, 103, 121, 125, 132, 95, 101, 102, 103, 121, 125, 132,
95, 101, 102, 103, 121, 125, 132,
and 134 not more than $5,000 [$500] and 134 not more than $5,000 [$500]
and 134 not more than $5,000 [$500]
Subchapter B, Chapter 71 Subchapter B, Chapter 71
Subchapter B, Chapter 71
Chapter 19 Chapter 19
Chapter 19
Chapter 76 not more than $5,000 [$2,000] Chapter 76 not more than $5,000 [$2,000]
Chapter 76 not more than $5,000 [$2,000]
Subchapters A and C, Chapter 71 Subchapters A and C, Chapter 71
Subchapters A and C, Chapter 71
Chapters 72, 73, and 74 not more than $5,000 Chapters 72, 73, and 74 not more than $5,000
Chapters 72, 73, and 74 not more than $5,000
Chapter 14 not more than $10,000 Chapter 14 not more than $10,000
Chapter 14 not more than $10,000
Chapter 1951, Occupations Code not more than $5,000 Chapter 1951, Occupations Code not more than $5,000
Chapter 1951, Occupations Code not more than $5,000
Chapter 153, Natural Resources Chapter 153, Natural Resources
Chapter 153, Natural Resources
Code not more than $5,000. Code not more than $5,000.
Code not more than $5,000.
SECTION 6.02. Section 12.023, Agriculture Code, is amended
to read as follows:
Sec. 12.023. EXPIRATION OF REGISTRATION OR LICENSES. The
department by rule shall [may] adopt a system under which
registrations or licenses required by the department, including
licenses issued under Chapter 1951, Occupations Code, expire on
various dates during the year. The department may increase or
decrease the term of an initial or renewal license or registration
so that all licenses held by a person or a group of license holders
expire on the same date. For the period [year] in which the
registration or license expiration date is changed, registration or
license fees shall be prorated on a monthly basis so that each
registrant or licensee pays only that portion of the fee that is
allocable to the number of months during which the registration or
license is valid. On the next renewal of the registration or
license [on the new expiration date], the total renewal fee is
payable.
SECTION 6.03. Title 2, Agriculture Code, is amended by
adding Chapter 12A to read as follows:
CHAPTER 12A. GENERAL LICENSING PROVISIONS
SUBCHAPTER A. POWERS AND DUTIES OF DEPARTMENT RELATED TO LICENSING
Sec. 12A.001. APPLICABILITY OF PROVISIONS. The general
licensing, regulatory, and enforcement provisions of Chapter 12 and
this chapter apply to licensing and regulatory programs
administered by the department under any law.
Sec. 12A.002. CEASE AND DESIST ORDER. (a) If it appears to
the commissioner that a person who is not licensed by the department
is violating a statute or rule that requires the person to hold a
license issued by the department or a statute or rule relating to an
activity regulated by the department, the commissioner after notice
and opportunity for a hearing may issue a cease and desist order
prohibiting the person from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty.
Sec. 12A.003. RISK-BASED INSPECTIONS. For each person
licensed or regulated by the department that the department may
inspect:
(1) the department may conduct additional inspections
based on a schedule of risk-based inspections using the following
criteria:
(A) the type and nature of the person;
(B) whether there has been a prior violation by
the person;
(C) the inspection history of the person;
(D) any history of complaints involving the
person; and
(E) any other risk-based factor identified by the
department; and
(2) the department may waive any inspection
requirement under law if an emergency arises or to accommodate
complaint investigation or risk-based inspection schedules.
[Sections 12A.004-12A.050 reserved for expansion]
SUBCHAPTER B. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 12A.051. INFORMATION REGARDING COMPLAINTS AND
ENFORCEMENT PROCESS. (a) The department shall:
(1) inform applicants, license holders, and the public
on the department's Internet website, in department brochures, and
on any other available information resource about the department's
enforcement process, including each step in the complaint
investigation and resolution process, from initial filing through
final appeal, and the opportunity to request an informal settlement
conference; and
(2) inform license holders that a license holder may
obtain information about a complaint made against the license
holder and may obtain on request a copy of the complaint file.
(b) Except as provided by Subsection (d), the department
shall provide to a license holder against whom a complaint has been
filed:
(1) the allegations made against the license holder in
the complaint; and
(2) on the license holder's request, any information
obtained by the department in its investigation of the complaint.
(c) The department shall provide the information required
under Subsection (b) in a timely manner to allow the license holder
time to respond to the complaint.
(d) The department is not required to provide the following
information to a license holder:
(1) the name of a confidential informant whose
testimony will not be used in any hearing as evidence against the
license holder;
(2) attorney-client communications;
(3) attorney work product; or
(4) any other information that is confidential or not
subject to disclosure under law, rule of evidence, or rule of civil
procedure.
Sec. 12A.052. COMPLAINT AND VIOLATION ANALYSIS. The
department shall analyze complaints filed with and violations
discovered by the department to identify any trends or issues
related to certain violations, including:
(1) the reason for each complaint or violation;
(2) how each complaint or violation was resolved; and
(3) the subject matter of each complaint or violation
that was not within the jurisdiction of the department and how the
department responded to the complaint or violation.
[Sections 12A.053-12A.100 reserved for expansion]
SUBCHAPTER C. ISSUANCE AND RENEWAL OF LICENSES
Sec. 12A.101. REPLACEMENT LICENSE; FEE. The department
shall issue to a license holder whose license has been lost or
destroyed or whose name has been changed a replacement license if
the license holder submits to the department:
(1) an appropriate application; and
(2) a fee in an amount established by department rule.
[Sections 12A.102-12A.150 reserved for expansion]
SUBCHAPTER D. EXAMINATIONS
Sec. 12A.151. EXAMINATION PROCEDURES. For each licensing
examination administered by the department, the department shall:
(1) adopt policies and guidelines detailing the
procedures for the testing process, including test admission and
internal test administration procedures; and
(2) post on the department's Internet website the
policies that reference the testing procedures.
Sec. 12A.152. EVALUATION OF EXAMINATION QUESTIONS. For
each licensing examination administered by the department, the
department shall periodically evaluate the effectiveness of
examination questions in objectively assessing an applicant's
knowledge.
[Sections 12A.153-12A.200 reserved for expansion]
SUBCHAPTER E. PENALTIES AND ENFORCEMENT PROCEDURES
Sec. 12A.201. INFORMAL PROCEEDINGS. (a) The department by
rule shall adopt procedures governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with
Section 2001.054, Government Code.
(b) The department shall offer the opportunity to conduct an
informal settlement conference by telephone.
(c) The department shall:
(1) provide a license holder sufficient opportunity to
indicate whether the terms of a proposed order are acceptable to the
license holder;
(2) indicate in the notice of violation that the
license holder has the opportunity described by Subdivision (1);
and
(3) allow a license holder who does not agree with a
proposed order to request an informal settlement conference.
SECTION 6.04. The heading to Section 76.113, Agriculture
Code, is amended to read as follows:
Sec. 76.113. TERM [EXPIRATION] AND RENEWAL OF LICENSES.
SECTION 6.05. Subsection (a), Section 76.113, Agriculture
Code, is amended to read as follows:
(a) Each pesticide [commercial applicator or noncommercial]
applicator license issued under this chapter, other than a private
applicator license, expires at the end of the license period
established by department rule [on the first anniversary of the
date on which it was issued or renewed].
SECTION 6.06. Section 76.151, Agriculture Code, is amended
by amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The [For the purpose of inspection, examination, or
sampling, the] department, at any time and without notice during
regular business hours, may:
(1) [is entitled to] enter and inspect a [at
reasonable hours any] building or place owned, controlled, or
operated by a person engaged in any activity regulated under this
chapter or Chapter 1951, Occupations Code; and
(2) inspect and review any record maintained by a
person engaged in any activity regulated under this chapter or
Chapter 1951, Occupations Code [registrant or dealer if from
probable cause it appears that the building or place contains a
pesticide].
(a-1) The department may enter and inspect a building or
place or inspect and review any record under Subsection (a) as
necessary to:
(1) ensure compliance with this chapter or Chapter
1951, Occupations Code; or
(2) investigate a complaint made to the department.
SECTION 6.07. Subsection (a), Section 76.1555, Agriculture
Code, is amended to read as follows:
(a) If a person violates a provision of this chapter or
Chapter 1951, Occupations Code, or a rule or order adopted by the
department under this chapter or Chapter 1951, Occupations Code,
the department may assess an administrative penalty against the
person as provided by Section 12.020, except that the penalty for
each violation may [shall] not exceed $5,000 [$4,000 for all
violations related to a single incident]. Each day a violation
continues or occurs may be considered a separate violation for
purposes of penalty assessment.
SECTION 6.08. Section 132.024, Agriculture Code, is amended
to read as follows:
Sec. 132.024. LICENSE TERM [EXPIRATION]. A license issued
or renewed under this chapter is valid for one year [expires on the
first anniversary of the date of issuance or renewal].
SECTION 6.09. The changes in law made by this article to
Subsection (c), Section 12.020 and Subsection (a), Section 76.1555,
Agriculture Code, apply only to a violation committed on or after
the effective date of this Act. A violation committed before the
effective date of this Act is governed by the law in effect on the
date the violation occurred, and the former law is continued in
effect for that purpose.
ARTICLE 7. STRUCTURAL PEST CONTROL
SECTION 7.01. Section 12.0201, Agriculture Code, is amended
to read as follows:
Sec. 12.0201. LICENSE SANCTIONS. (a) In addition to other
sanctions provided by law, the department may revoke, modify,
suspend, or refuse to issue or renew a license, assess an
administrative penalty, place on probation a person whose license
has been suspended, or reprimand a license holder if the department
finds that the practitioner:
(1) violated a provision of this code or Chapter 1951,
Occupations Code;
(2) violated a rule adopted by the department under
this code or Chapter 1951, Occupations Code; or
(3) after appropriate notice, failed to comply with an
order of the department.
(b) In addition to any other actions permitted under this
code or Chapter 1951, Occupations Code, if a license suspension is
probated, the department may require the practitioner:
(1) to maintain additional information in the
practitioner's records;
(2) to report regularly to the department on matters
that are the basis of the probation;
(3) to limit practice to the areas prescribed by the
department; or
(4) to continue or review professional education until
the practitioner attains a degree of skill satisfactory to the
department in those areas that are the basis of the probation.
SECTION 7.02. Subchapter A, Chapter 1951, Occupations Code,
is amended by adding Section 1951.007 to read as follows:
Sec. 1951.007. APPLICABILITY OF AGRICULTURE CODE LICENSING
PROVISIONS. A provision of the Agriculture Code that applies
generally to licensing or regulatory programs administered by the
department, including a provision that refers generally to
licensing or regulatory programs under the Agriculture Code,
applies to this chapter.
SECTION 7.03. Subsection (a), Section 1951.053,
Occupations Code, is amended to read as follows:
(a) Except as provided by Sections 1951.212 and
1951.457(c), this chapter does not apply to:
(1) a person who performs pest control work on growing
plants, trees, shrubs, grass, or other horticultural plants if the
person[:
[(A) holds a florist or nursery registration
certificate from the department under Section 71.043, Agriculture
Code, other than a registration certificate that permits the sale,
lease, or distribution of nursery products or floral items only at a
temporary market; and
[(B)] holds a commercial or noncommercial
applicator license from the department and issued under Chapter 76,
Agriculture Code, that covers the pest control work; or
(2) a person who performs pest control work on growing
plants, trees, shrubs, grass, or other horticultural plants or
rights-of-way if the person:
(A) is employed by a political subdivision or a
cemetery;
(B) is engaged in pest control work or vegetation
management for the political subdivision or cemetery;
(C) holds a commercial or noncommercial
applicator license from the department and issued under Chapter 76,
Agriculture Code, that covers pest control work or is under the
direct supervision of a person who holds a commercial or
noncommercial applicator license from the department and issued
under Chapter 76, Agriculture Code, that covers pest control work;
and
(D) complies with annual continuing education
required by the department.
SECTION 7.04. Subsection (a), Section 1951.207,
Occupations Code, is amended to read as follows:
(a) The department by rule shall adopt a policy that[:
[(1)] requires a business holding a structural pest
control business license to be inspected by a field inspector at
least once:
(1) [(A)] in the business's first year of operation;
and
(2) [(B)] every four years after the first year of
operation[;
[(2) provides for additional inspections based on a
schedule of risk-based inspections using the following criteria:
[(A) the type and nature of the business;
[(B) whether there has been a prior violation by
the business;
[(C) the inspection history of the business;
[(D) any history of complaints involving the
business; and
[(E) any other factor determined by the
department by rule; and
[(3) provides that the department may waive the
inspection requirement on a case-by-case basis if an emergency
arises or to accommodate complaint investigation schedules].
SECTION 7.05. Subsection (f), Section 1951.254,
Occupations Code, as amended by Chapters 885 (H.B. 2278) and 890
(H.B. 2458), Acts of the 80th Legislature, Regular Session, 2007,
is reenacted to read as follows:
(f) The information sheet must include:
(1) the names and telephone numbers of the department
and the Department of State Health Services;
(2) the telephone number of any pesticide hotline
established by a state or federal agency or by a state university;
(3) a statement of a consumer's rights under Chapter
601, Business & Commerce Code, to cancel a home solicitation
transaction; and
(4) information concerning the availability of any
pretreatment inspection service that may be provided by the
department under Section 1951.210.
SECTION 7.06. Subsection (a), Section 1951.306,
Occupations Code, is amended to read as follows:
(a) The department may waive any license requirement under
this chapter for an applicant who holds a license issued by another
state that has license requirements substantially equivalent to
those of this state. The department may enter into reciprocal
licensing agreements with other states that have license
requirements substantially equivalent to those of this state.
SECTION 7.07. The following provisions of the Occupations
Code are repealed:
(1) Section 1951.202;
(2) Section 1951.310;
(3) Section 1951.311;
(4) Subsections (c) and (d), Section 1951.501;
(5) Subchapter L, Chapter 1951;
(6) Section 1951.604; and
(7) Section 1951.605.
SECTION 7.08. The changes in law made by this Act by the
repeal of Subsections (c) and (d), Section 1951.501, Occupations
Code, apply only to a violation of Chapter 1951, Occupations Code,
committed on or after the effective date of this Act. A violation
committed before the effective date of this Act is governed by the
law in effect on the date the violation occurred, and the former law
is continued in effect for that purpose. A violation committed on
or after the effective date of this Act is governed by Section
12.0201, Agriculture Code, as amended by this Act, and other
applicable law.
SECTION 7.09. The change in law made by this Act by the
repeal of Section 1951.310, Occupations Code, applies only to the
renewal of a license under Chapter 1951, Occupations Code, that
expires on or after the effective date of this Act. The renewal of a
license that expires before the effective date of this Act is
governed by the law in effect on the date the license expired, and
the former law is continued in effect for that purpose. An
application submitted on or after the effective date of this Act is
governed by Section 12.024, Agriculture Code, and other applicable
law.
SECTION 7.10. The change in law made by this Act by the
repeal of Section 1951.311, Occupations Code, applies only to an
application for a replacement license issued under Chapter 1951,
Occupations Code, submitted on or after the effective date of this
Act. An application submitted before the effective date of this Act
is governed by the law in effect on the date the application was
submitted, and the former law is continued in effect for that
purpose. An application submitted on or after the effective date of
this Act is governed by Section 12A.101, Agriculture Code, as added
by this Act, and other applicable law.
SECTION 7.11. The change in law made by this Act by the
repeal of Subchapter L, Chapter 1951, Occupations Code, applies
only to a violation committed on or after the effective date of this
Act. A violation committed before that date is governed by the law
in effect on the date the violation occurred, and the former law is
continued in effect for that purpose. A violation committed on or
after the effective date of this Act is governed by Section 12.020,
Agriculture Code, as amended by this Act, and other applicable law.
ARTICLE 8. SUNSET DATE AND ACROSS-THE-BOARD RECOMMENDATIONS
SECTION 8.01. Section 11.003, Agriculture Code, is amended
to read as follows:
Sec. 11.003. SUNSET PROVISION. The Department of
Agriculture is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the department is abolished September 1, 2021 [2009].
SECTION 8.02. Section 12.0135, Agriculture Code, is amended
to read as follows:
Sec. 12.0135. CONFLICT PROVISIONS. (a) A person may not be
a department employee employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of
agriculture; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of
agriculture.
(b) A person may not act as the general counsel to the
commissioner or the department if the person is required to
register as a lobbyist under Chapter 305, Government Code, because
of the person's activities for compensation on behalf of a
profession related to the operation of the department.
(c) In [(b) An officer, employee, or paid consultant of a
statewide Texas trade association or an affiliate of a national
trade association in the field of agriculture may not be an employee
of the department who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group 17, of the position classification salary schedule.
[(c) A person who is the spouse of an officer, manager, or
paid consultant of a statewide Texas trade association or an
affiliate of a national trade association in the field of
agriculture may not be an employee of the department who is exempt
from the state's position classification plan or is compensated at
or above the amount prescribed by the General Appropriations Act
for step 1, salary group 17, of the position classification salary
schedule.
[(d) For the purposes of] this section, "Texas [a] trade
association" means [is] a [nonprofit,] cooperative [,] and
voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or professional problems and in promoting their common
interest.
SECTION 8.03. Chapter 12, Agriculture Code, is amended by
adding Section 12.0203 to read as follows:
Sec. 12.0203. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The commissioner shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of department rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the department's
jurisdiction.
(b) The department's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commissioner shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the department.
SECTION 8.04. Chapter 12, Agriculture Code, is amended by
adding Section 12.047 to read as follows:
Sec. 12.047. USE OF TECHNOLOGY. The commissioner shall
implement a policy requiring the department to use appropriate
technological solutions to improve the department's ability to
perform its functions. The policy must ensure that the public is
able to interact with the department on the Internet.
ARTICLE 9. ADDITIONAL PROVISIONS
SECTION 9.01. Section 12.022, Agriculture Code, is amended
to read as follows:
Sec. 12.022. AUTHORITY TO SOLICIT AND ACCEPT GIFTS, GRANTS,
AND DONATIONS. The department may solicit and [is authorized to]
accept gifts, grants, and donations of money, services, or property
from any person. Money received by the department under this
section may be expended or distributed for any public purpose
related to the department's duties [and shall file annually with
the governor and the presiding officer of each house of the
legislature a complete and detailed written report accounting for
all gifts, grants, and donations received and disbursed, used, or
maintained by the department during the preceding fiscal year.
This report shall be included in the annual report required by
Section 12.014 of this chapter].
SECTION 9.02. Chapter 12, Agriculture Code, is amended by
adding Section 12.046 to read as follows:
Sec. 12.046. TEXAS RURAL INVESTMENT FUND. (a) In this
section:
(1) "Fund" means the Texas Rural Investment Fund.
(2) "Rural community" means a municipality with a
population of less than 50,000 or a county with a population of less
than 200,000.
(b) The fund is a dedicated account in the general revenue
fund and consists of:
(1) appropriations of money to the fund by the
legislature;
(2) gifts, grants, including federal grants, and other
donations received for the fund; and
(3) interest earned on the investment of money in the
fund.
(c) The fund may be used by the department only to:
(1) pay for grants or loans to public or private
entities for projects in rural communities that have strong local
support, provide positive return on the state's investment, and
stimulate one or more of the following:
(A) local entrepreneurship;
(B) job creation or retention;
(C) new capital investment;
(D) strategic economic development planning;
(E) individual economic and community
development leadership training;
(F) housing development; or
(G) innovative workforce education; and
(2) administer the grant and loan program under this
section.
(d) In awarding a grant or loan of money from the fund for a
project, the department shall consider:
(1) the project's effect on job creation and wages;
(2) the financial strength of the applicant;
(3) the applicant's business history;
(4) an analysis of the relevant business sector;
(5) whether there is public or private sector
financial support for the project; and
(6) whether there is local support for the project.
(e) The fund is exempt from the application of Sections
403.095 and 404.071, Government Code.
(f) The department may accept grants, gifts, or donations
from any source that are made for the purposes of this section.
Money received under this subsection shall be deposited in the
fund.
(g) The department shall adopt rules to administer this
section.
SECTION 9.03. Subsection (a), Section 19.012, Agriculture
Code, is amended to read as follows:
(a) A person commits an offense if the person:
(1) sells or offers to sell citrus budwood or a citrus
nursery tree falsely claiming that it is certified or that it comes
from a designated foundation grove; [or]
(2) uses citrus budwood that is not certified, or does
not come from a designated foundation grove, for commercial
purposes that require certification under department rule; or
(3) fails to comply with an order of the department
issued under this chapter.
SECTION 9.04. Section 19.014, Agriculture Code, is amended
to read as follows:
Sec. 19.014. ADMINISTRATIVE PENALTIES. The department may
assess an administrative penalty under Chapter 12 for a violation
of this chapter if the department finds that a person:
(1) sells or offers to sell citrus budwood or a citrus
nursery tree falsely claiming that it is certified or that it comes
from a designated foundation grove under this chapter;
(2) uses citrus budwood in violation of rules adopted
under this chapter; [or]
(3) uses citrus budwood that is not certified, or does
not come from a designated foundation grove, for commercial
purposes that require certification under department rule; or
(4) fails to comply with an order of the department
issued under this chapter.
SECTION 9.05. Section 41.151, Agriculture Code, is amended
to read as follows:
Sec. 41.151. DEFINITIONS. In this subchapter:
(1) "Beef products" means products produced in whole
or in part from beef. The term does not include milk or products
made from milk.
(2) ["Board" means the board of directors of the Texas
Beef Council.
[(3)] "Council" means the Texas Beef Council.
(3) [(4)] "Producer" means a person who owns or
acquires ownership of cattle, except that a person is not a producer
if the person's only share in the proceeds of a sale of cattle or
beef is a sales commission, handling fee, or other service fee.
SECTION 9.06. Subsection (b), Section 41.152, Agriculture
Code, is amended to read as follows:
(b) The council shall be the certified organization
[recognized as the entity] to plan, implement, and operate
research, education, promotion, and marketing programs under this
subchapter. The council is the state beef council qualified to
collect the proceeds of and administer in this state the beef check
off program established by federal law.
SECTION 9.07. Section 41.156, Agriculture Code, is amended
to read as follows:
Sec. 41.156. COUNCIL [BOARD] MEMBERS. (a) The council
[board] is composed of 20 [21] members appointed by the
commissioner as follows:
(1) three representatives of the Texas and
Southwestern Cattle Raisers Association;
(2) three representatives of the Texas Cattle Feeders
Association;
(3) three representatives of the Texas Farm Bureau;
(4) two representatives of the Independent Cattlemen's
Association of Texas;
(5) two representatives of the Texas purebred cattle
industry;
(6) two representatives of the Texas dairy industry;
(7) one representative [two representatives] of the
Livestock Marketing Association of Texas;
(8) one representative of meat packer and exporter
associations;
(9) one representative of Texas CattleWomen; and
(10) two at-large directors.
(b) A council [board] member serves a one-year term or until
his or her successor is appointed. A council member may serve not
more than six consecutive one-year terms. Members of the council
may nominate persons for appointment to vacancies created by
expiring or expired terms.
(c) The commissioner, on recommendation of the council,
shall fill a vacancy on the council [board] by appointment for the
unexpired term.
SECTION 9.08. Section 41.157, Agriculture Code, is amended
to read as follows:
Sec. 41.157. GENERAL POWERS OF COUNCIL. The council may
take action or exercise other authority as necessary to execute any
act authorized by this chapter [subchapter] or the Texas Non-Profit
Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
Statutes).
SECTION 9.09. Subsections (b), (c), and (e), Section
41.160, Agriculture Code, are amended to read as follows:
(b) If an assessment referendum is approved, the council
shall recommend to the commissioner an assessment amount not
greater than the maximum amount approved in the referendum. After
the assessment is approved by the commissioner, the council shall
collect the assessment.
(c) An assessment levied on producers shall [may] be applied
by the council to efforts relating to the marketing, education,
research, and promotion of beef and beef products in Texas, the
United States, and international markets, including administrative
costs of conducting an assessment referendum.
(e) Section 41.083 applies to an assessment collected by the
council under this subchapter. Section 41.082 does not apply to an
assessment collected under this subchapter. The commissioner, on
the council's recommendation, may exempt from the assessment
certain producers who are exempt under federal law.
SECTION 9.10. Subsection (a), Section 41.161, Agriculture
Code, is amended to read as follows:
(a) The commissioner shall annually review and approve the
council's operating budget for the funds collected under this
subchapter.
SECTION 9.11. Subsection (g), Section 41.162, Agriculture
Code, is amended to read as follows:
(g) The council shall pay all expenses incurred in
conducting a referendum with funds collected from the beef
industry.
SECTION 9.12. Subsection (d), Section 71.004, Agriculture
Code, is amended to read as follows:
(d) An emergency quarantine shall be established in
accordance with the provisions related to emergency rulemaking in
Chapter 2001, Government Code [expires 30 days following the date
on which it was established unless reestablished following notice
and hearing as provided by this subchapter].
SECTION 9.13. Subsection (b), Section 72.002, Agriculture
Code, is amended to read as follows:
(b) The department may adopt rules[, to be proclaimed by the
governor,] as necessary for the administration of this chapter.
SECTION 9.14. Subsections (a) and (b), Section 72.011,
Agriculture Code, are amended to read as follows:
(a) When advised of the existence of Mexican fruit fly
within a county or part of a county in this state, the department
shall certify that fact and [to the governor, and the governor
shall] proclaim the county or part of a county quarantined under
this chapter.
(b) If the department determines that the exigencies of the
situation require a modified quarantine, the department may
designate a modified quarantined area [to be certified to the
governor for proclamation].
SECTION 9.15. Section 72.012, Agriculture Code, is amended
to read as follows:
Sec. 72.012. PERSONS AND PREMISES SUBJECT. The premises of
each individual, whether an owner, lessee, renter, tenant, or
occupant, within the area named in the quarantine [proclamation]
are subject to the quarantine, even though not specifically named.
SECTION 9.16. Subsection (a), Section 72.015, Agriculture
Code, is amended to read as follows:
(a) A person may not haul, truck, or otherwise move citrus
fruit from any premises or area that is under quarantine for Mexican
fruit fly infestation by this chapter or [,] by order of the
department[, or by proclamation of the governor] in violation of
the quarantine without a written permit or certificate issued by
the department or an inspector of the Plant Protection and
Quarantine Programs, Animal and Plant Health Inspection Service,
United States Department of Agriculture.
SECTION 9.17. Subsection (a), Section 76.004, Agriculture
Code, is amended to read as follows:
(a) The [Except as provided by Subchapter G, after notice,
the department shall conduct at least five regional hearings
throughout the state before the adoption of any rule for carrying
out the provisions of this chapter. Thereafter, the] department
may adopt rules for carrying out the provisions of this chapter,
including rules providing for:
(1) the collection, examination, and reporting of
records, devices, and samples of pesticides;
(2) the safe handling, transportation, storage,
display, distribution, or disposal of pesticides and pesticide
containers;
(3) labeling requirements for pesticides and devices
required to be registered under this chapter; and
(4) compliance with federal pesticide rules and
regulations.
SECTION 9.18. The following provisions are repealed:
(1) Section 12.017, Agriculture Code;
(2) Section 72.003, Agriculture Code;
(3) Subsection (c), Section 72.011, Agriculture Code;
and
(4) Section 76.005, Agriculture Code.
SECTION 9.19. (a) The change in law made by this Act to
Section 19.012, Agriculture Code, applies only to an offense
committed on or after the effective date of this Act. An offense
committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this
subsection, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
(b) The change in law made by this Act to Section 19.014,
Agriculture Code, applies only to conduct that occurred on or after
the effective date of this Act. Conduct that occurred before the
effective date of this Act is governed by the law in effect when the
conduct occurred, and the former law is continued in effect for that
purpose.
(c) The change in law made by this Act to Section 41.156,
Agriculture Code, does not affect the entitlement of a member of the
board of directors of the Texas Beef Council to serve for the
remainder of the member's term. A board member appointed before the
effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
(d) The change in law made by this Act to Section 41.160,
Agriculture Code, applies only to an assessment approved on or
after the effective date of this Act. An assessment approved before
the effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
(e) The change in law made by this Act to Section 41.162,
Agriculture Code, applies only to an assessment referendum
conducted on or after the effective date of this Act. An assessment
referendum conducted before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and the former law is continued in effect for that
purpose.
(f) The changes in law made by this Act by the amendment of
Section 76.004, Agriculture Code, and the repeal of Section 76.005,
Agriculture Code, apply only to a public hearing held on or after
the effective date of this Act. A public hearing held before the
effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
ARTICLE 10. EFFECTIVE DATE
SECTION 10.01. This Act takes effect September 1, 2009.
* * * * *
Provision Amount of Penalty
Chapter 41 not more than $5,000 [$1,000]
Chapters 13, 14A, 18, 46, 61, 94,
95, 101, 102, 103, 121, 125, 132,
and 134 not more than $5,000 [$500]
Subchapter B, Chapter 71
Chapter 19
Chapter 76 not more than $5,000 [$2,000]
Subchapters A and C, Chapter 71
Chapters 72, 73, and 74 not more than $5,000
Chapter 14 not more than $10,000
Chapter 1951, Occupations Code not more than $5,000
Chapter 153, Natural Resources
Code not more than $5,000.