Texas 2011 - 82nd Regular

Texas House Bill HB1324 Compare Versions

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1	1	By: Landtroop, et al. H.B. No. 1324
2	2	Substitute the following for H.B. No. 1324:
3	3	By: Hughes C.S.H.B. No. 1324
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to the regulation of public grain warehouse operators.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 14.012, Agriculture Code, is amended to
11	11	read as follows:
12	12	Sec. 14.012. BUSINESS INFORMATION. (a) Except as provided
13	13	by Subsection (b), financial information of a warehouse operator
14	14	provided to the department [The following information, prepared by
15	15	the department in the course of its regulatory authority under this
16	16	chapter or required to be submitted to the department in accordance
17	17	with the department's administration of this chapter,] is
18	18	confidential and not subject to public disclosure[:
19	19	[(1) inspection or investigation reports containing
20	20	information regarding grain inventory; and
21	21	[(2) financial information provided to the department
22	22	to establish net worth for purposes of licensing].
23	23	(b) Notwithstanding Subsection (a), [inspection reports
24	24	containing information regarding grain inventory of a warehouse
25	25	operator or] financial information of a warehouse operator provided
26	26	to the department [to establish net worth] may be disclosed:
27	27	(1) [entered into evidence] without sealing [and made
28	28	public] in[:
29	29	[(A)] an administrative proceeding commenced by
30	30	the department against the [a] warehouse operator;
31	31	(2) to a local or state law enforcement officer,
32	32	[(B) a civil or criminal proceeding commenced by] a county
33	33	attorney, a district attorney, or the attorney general, acting
34	34	either independently or on behalf of the department, investigating
35	35	the [against a] warehouse operator; [or]
36	36	(3) in [(C)] a civil proceeding commenced by the
37	37	warehouse operator against the department;
38	38	(4) in response to a subpoena from a party in a civil
39	39	proceeding commenced against the warehouse operator;
40	40	(5) [(2) provided] to the issuer of the [a] warehouse
41	41	operator's bond or letter of credit [for the purpose of
42	42	establishing a claim on the warehouse operator's bond or letter of
43	43	credit];
44	44	(6) [(3) disclosed] to the public after:
45	45	(A) revocation of the [a] warehouse operator's
46	46	license;
47	47	(B) a voluntary closeout of all of the license
48	48	holder's facilities in this state;
49	49	(C) a petition for bankruptcy has been filed; or
50	50	(D) a receiver [is appointed] for the warehouse
51	51	operator's assets has been appointed; or
52	52	(7) [(4) disclosed] to any federal agency or any
53	53	agency of another state conducting a compliance inspection or
54	54	criminal or civil investigation involving the handling, storing,
55	55	shipping, selling, purchasing, or receipt of grain.
56	56	(c) In this section, "financial information" means:
57	57	(1) a financial statement or other document provided
58	58	by the warehouse operator to the department to evaluate net worth
59	59	requirements under Section 14.031(e);
60	60	(2) a financial audit provided by the warehouse
61	61	operator to the department; and
62	62	(3) if the warehouse operator is subject to an ongoing
63	63	investigation by the department:
64	64	(A) the price of grain paid by the warehouse
65	65	operator to a depositor or other seller of grain delivered to or
66	66	stored or handled by the warehouse operator;
67	67	(B) the price of grain paid by or to the warehouse
68	68	operator by a depositor or other purchaser of grain delivered to or
69	69	stored or handled by the warehouse operator; and
70	70	(C) the terms of payment for a price described by
71	71	Paragraph (A) or (B).
72	72	(d) Notwithstanding any other provisions of this section:
73	73	(1) a party to a contract or other agreement with a
74	74	warehouse operator may obtain a nonredacted copy of the contract or
75	75	agreement; and
76	76	(2) a person who authored or contributed to the
77	77	creation of financial information may be provided access to the
78	78	financial information for the purpose of confirming the
79	79	authenticity, truthfulness, or accuracy of the information.
80	80	SECTION 2. Subsections (d) and (e), Section 14.031,
81	81	Agriculture Code, are amended to read as follows:
82	82	(d) The bond must be in an amount of not less than $35,000
83	83	[$20,000] and be based on 10 [six] cents per bushel of storage
84	84	capacity, not to exceed a maximum of $500,000.
85	85	(e) If the actual net worth of an applicant equals less than
86	86	the greater of either 25 cents per bushel of storage capacity or
87	87	$200,000, the applicant shall file a deficiency bond in an amount
88	88	equal to the difference between the actual net worth and the greater
89	89	of either $200,000 or the [an] amount determined by multiplying 25
90	90	cents times each bushel of storage capacity in the applicant's
91	91	warehouse. A deficiency bond is in addition to the bond required of
92	92	an applicant by this section.
93	93	SECTION 3. Subsection (a), Section 14.066, Agriculture
94	94	Code, is amended to read as follows:
95	95	(a) A department action or order affecting a warehouse
96	96	operator under this chapter[, other than by rulemaking, assessment
97	97	of an administrative penalty, or imposition of a license sanction,
98	98	including a suspension under Section 14.083(c),] is appealable in
99	99	accordance with this section unless the action involves agency
100	100	rulemaking, the assessment of an administrative penalty,
101	101	imposition of a license sanction, or any other action for which a
102	102	specific administrative or judicial remedy is available under this
103	103	chapter, Chapter 12 of this code, or Chapter 2001, Government Code.
104	104	SECTION 4. Subsections (a) and (f), Section 14.082,
105	105	Agriculture Code, are amended to read as follows:
106	106	(a) If the department determines that a warehouse operator
107	107	does not possess sufficient grain to cover outstanding receipts and
108	108	outstanding scale weight tickets issued or assumed by the warehouse
109	109	operator, or if a warehouse operator refuses or is unable to submit
110	110	records or property for lawful inspection or the department is
111	111	unable to conduct an inspection of the warehouse due to the
112	112	condition of the warehouse or grain stored in the warehouse, the
113	113	department may seal the warehouse to prevent delivery or receipt of
114	114	grain except as authorized by the department, suspend the license
115	115	of the warehouse operator, and give notice to the warehouse
116	116	operator requiring the warehouse operator to submit records or
117	117	property for lawful inspection, to correct any condition
118	118	interfering with the department's inspection of the warehouse or
119	119	grain, or to cover a shortage of a particular type of grain by:
120	120	(1) storing to the credit of or delivering to each
121	121	depositor affected by the shortage grain of the same type and
122	122	quality that is stored at any of the warehouse operator's licensed
123	123	warehouses in this state and that has been designated as
124	124	company-owned grain by the warehouse operator;
125	125	(2) purchasing and storing to the credit of or
126	126	delivering to each depositor affected by the shortage grain of the
127	127	same type and quality;
128	128	(3) selling company-owned grain of a different type
129	129	and paying to each depositor affected by the shortage, on a pro rata
130	130	basis, the market value of the depositor's grain as determined on
131	131	the day the shortage was discovered by the department; or
132	132	(4) using any combination of the remedies described by
133	133	Subdivisions (1)-(3) or another fair and reasonable method for
134	134	meeting the shortage approved by the department.
135	135	(f) A license suspension issued under this section remains
136	136	in effect until lifted by the department through written notice to
137	137	the warehouse operator or as provided by Section 14.066 [At any time
138	138	before the 11th day following the day on which the department takes
139	139	possession of grain under this section, the warehouse operator may
140	140	serve notice on the department to appear in the district court of
141	141	the county in which the public grain warehouse is located to show
142	142	cause why possession should not be restored to the warehouse
143	143	operator. The court shall fix the time of the hearing not less than
144	144	5 nor more than 15 days from the date of service of the notice].
145	145	SECTION 5. Section 14.083, Agriculture Code, is amended by
146	146	amending Subsection (c) and adding Subsection (f) to read as
147	147	follows:
148	148	(c) In addition to or in lieu of a license suspension
149	149	authorized by another provision of this chapter, if [If] the
150	150	department considers it necessary, the department may suspend a
151	151	license and prohibit the movement of grain into or out of a
152	152	warehouse for up to 30 days without a hearing [for one or more
153	153	periods not to cumulatively exceed 30 days in one licensing
154	154	period]. For good cause, a suspension under this subsection may be
155	155	extended for additional periods of up to 30 days each, not to exceed
156	156	a total of 90 days of suspension in a licensing period.
157	157	(f) A license suspension under Subsection (c) remains in
158	158	effect until lifted by the department through written notice to the
159	159	warehouse operator or as provided by Section 14.066 or until it
160	160	expires by operation of law in accordance with the department's
161	161	notice of suspension or the limitations provided by Subsection (c).
162	162	SECTION 6. Subsection (a), Section 14.087, Agriculture
163	163	Code, is amended to read as follows:
164	164	(a) On prevailing in an action commenced by the department
165	165	through the attorney general under this chapter [or in a hearing
166	166	commenced by the warehouse operator under Section 14.082(f)], the
167	167	department and the attorney general are each entitled to recover:
168	168	(1) investigation costs and fees;
169	169	(2) reasonable attorney's fees;
170	170	(3) court costs; and
171	171	(4) other costs relating to the action, including the
172	172	cost of depositions and other forms of discovery and copying
173	173	charges.
174	174	SECTION 7. This Act takes effect September 1, 2011.