Texas 2011 - 82nd Regular

Texas Senate Bill SB248 Compare Versions

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1	1	By: Estes S.B. No. 248
2	2	(Landtroop)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of public grain warehouse operators.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 14.012, Agriculture Code, is amended to
10	10	read as follows:
11	11	Sec. 14.012. BUSINESS INFORMATION. (a) Except as provided
12	12	by Subsection (b), financial information of a warehouse operator
13	13	provided to the department [The following information, prepared by
14	14	the department in the course of its regulatory authority under this
15	15	chapter or required to be submitted to the department in accordance
16	16	with the department's administration of this chapter,] is
17	17	confidential and not subject to public disclosure[:
18	18	[(1) inspection or investigation reports containing
19	19	information regarding grain inventory; and
20	20	[(2) financial information provided to the department
21	21	to establish net worth for purposes of licensing].
22	22	(b) Notwithstanding Subsection (a), [inspection reports
23	23	containing information regarding grain inventory of a warehouse
24	24	operator or] financial information of a warehouse operator provided
25	25	to the department [to establish net worth] may be disclosed:
26	26	(1) [entered into evidence] without sealing [and made
27	27	public] in[:
28	28	[(A)] an administrative proceeding commenced by
29	29	the department against the [a] warehouse operator;
30	30	(2) to a local or state law enforcement officer,
31	31	[(B) a civil or criminal proceeding commenced by] a county
32	32	attorney, a district attorney, or the attorney general, acting
33	33	either independently or on behalf of the department, investigating
34	34	the [against a] warehouse operator; [or]
35	35	(3) in [(C)] a civil proceeding commenced by the
36	36	warehouse operator against the department;
37	37	(4) in response to a subpoena from a party in a civil
38	38	proceeding commenced against the warehouse operator;
39	39	(5) [(2) provided] to the issuer of the [a] warehouse
40	40	operator's bond or letter of credit [for the purpose of
41	41	establishing a claim on the warehouse operator's bond or letter of
42	42	credit];
43	43	(6) [(3) disclosed] to the public after:
44	44	(A) revocation of the [a] warehouse operator's
45	45	license;
46	46	(B) a voluntary closeout of all of the license
47	47	holder's facilities in this state;
48	48	(C) a petition for bankruptcy has been filed; or
49	49	(D) a receiver [is appointed] for the warehouse
50	50	operator's assets has been appointed; or
51	51	(7) [(4) disclosed] to any federal agency or any
52	52	agency of another state conducting a compliance inspection or
53	53	criminal or civil investigation involving the handling, storing,
54	54	shipping, selling, purchasing, or receipt of grain.
55	55	(c) In this section, "financial information" means:
56	56	(1) a financial statement or other document provided
57	57	by the warehouse operator to the department to evaluate net worth
58	58	requirements under Section 14.031(e);
59	59	(2) a financial audit provided by the warehouse
60	60	operator to the department; and
61	61	(3) if the warehouse operator is subject to an ongoing
62	62	investigation by the department:
63	63	(A) the price of grain paid by the warehouse
64	64	operator to a depositor or other seller of grain delivered to or
65	65	stored or handled by the warehouse operator;
66	66	(B) the price of grain paid by or to the warehouse
67	67	operator by a depositor or other purchaser of grain delivered to or
68	68	stored or handled by the warehouse operator; and
69	69	(C) the terms of payment for a price described by
70	70	Paragraph (A) or (B).
71	71	(d) Notwithstanding any other provisions of this section:
72	72	(1) a party to a contract or other agreement with a
73	73	warehouse operator may obtain a nonredacted copy of the contract or
74	74	agreement; and
75	75	(2) a person who authored or contributed to the
76	76	creation of financial information may be provided access to the
77	77	financial information for the purpose of confirming the
78	78	authenticity, truthfulness, or accuracy of the information.
79	79	SECTION 2. Subsections (d) and (e), Section 14.031,
80	80	Agriculture Code, are amended to read as follows:
81	81	(d) The bond must be in an amount of not less than $35,000
82	82	[$20,000] and be based on 10 [six] cents per bushel of storage
83	83	capacity, not to exceed a maximum of $500,000.
84	84	(e) If the actual net worth of an applicant equals less than
85	85	the greater of either 25 cents per bushel of storage capacity or
86	86	$200,000, the applicant shall file a deficiency bond in an amount
87	87	equal to the difference between the actual net worth and the greater
88	88	of either $200,000 or the [an] amount determined by multiplying 25
89	89	cents times each bushel of storage capacity in the applicant's
90	90	warehouse. A deficiency bond is in addition to the bond required of
91	91	an applicant by this section.
92	92	SECTION 3. Subsection (a), Section 14.066, Agriculture
93	93	Code, is amended to read as follows:
94	94	(a) A department action or order affecting a warehouse
95	95	operator under this chapter[, other than by rulemaking, assessment
96	96	of an administrative penalty, or imposition of a license sanction,
97	97	including a suspension under Section 14.083(c),] is appealable in
98	98	accordance with this section unless the action involves agency
99	99	rulemaking, the assessment of an administrative penalty,
100	100	imposition of a license sanction, or any other action for which a
101	101	specific administrative or judicial remedy is available under this
102	102	chapter, Chapter 12 of this code, or Chapter 2001, Government Code.
103	103	SECTION 4. Subsections (a) and (f), Section 14.082,
104	104	Agriculture Code, are amended to read as follows:
105	105	(a) If the department determines that a warehouse operator
106	106	does not possess sufficient grain to cover outstanding receipts and
107	107	outstanding scale weight tickets issued or assumed by the warehouse
108	108	operator, or if a warehouse operator refuses or is unable to submit
109	109	records or property for lawful inspection or the department is
110	110	unable to conduct an inspection of the warehouse due to the
111	111	condition of the warehouse or grain stored in the warehouse, the
112	112	department may seal the warehouse to prevent delivery or receipt of
113	113	grain except as authorized by the department, suspend the license
114	114	of the warehouse operator, and give notice to the warehouse
115	115	operator requiring the warehouse operator to submit records or
116	116	property for lawful inspection, to correct any condition
117	117	interfering with the department's inspection of the warehouse or
118	118	grain, or to cover a shortage of a particular type of grain by:
119	119	(1) storing to the credit of or delivering to each
120	120	depositor affected by the shortage grain of the same type and
121	121	quality that is stored at any of the warehouse operator's licensed
122	122	warehouses in this state and that has been designated as
123	123	company-owned grain by the warehouse operator;
124	124	(2) purchasing and storing to the credit of or
125	125	delivering to each depositor affected by the shortage grain of the
126	126	same type and quality;
127	127	(3) selling company-owned grain of a different type
128	128	and paying to each depositor affected by the shortage, on a pro rata
129	129	basis, the market value of the depositor's grain as determined on
130	130	the day the shortage was discovered by the department; or
131	131	(4) using any combination of the remedies described by
132	132	Subdivisions (1)-(3) or another fair and reasonable method for
133	133	meeting the shortage approved by the department.
134	134	(f) A license suspension issued under this section remains
135	135	in effect until lifted by the department through written notice to
136	136	the warehouse operator or as provided by Section 14.066 [At any time
137	137	before the 11th day following the day on which the department takes
138	138	possession of grain under this section, the warehouse operator may
139	139	serve notice on the department to appear in the district court of
140	140	the county in which the public grain warehouse is located to show
141	141	cause why possession should not be restored to the warehouse
142	142	operator. The court shall fix the time of the hearing not less than
143	143	5 nor more than 15 days from the date of service of the notice].
144	144	SECTION 5. Section 14.083, Agriculture Code, is amended by
145	145	amending Subsection (c) and adding Subsection (f) to read as
146	146	follows:
147	147	(c) In addition to or in lieu of a license suspension
148	148	authorized by another provision of this chapter, if [If] the
149	149	department considers it necessary, the department may suspend a
150	150	license and prohibit the movement of grain into or out of a
151	151	warehouse for up to 30 days without a hearing [for one or more
152	152	periods not to cumulatively exceed 30 days in one licensing
153	153	period]. For good cause, a suspension under this subsection may be
154	154	extended for additional periods of up to 30 days each, not to exceed
155	155	a total of 90 days of suspension in a licensing period.
156	156	(f) A license suspension under Subsection (c) remains in
157	157	effect until lifted by the department through written notice to the
158	158	warehouse operator or as provided by Section 14.066 or until it
159	159	expires by operation of law in accordance with the department's
160	160	notice of suspension or the limitations provided by Subsection (c).
161	161	SECTION 6. Subsection (a), Section 14.087, Agriculture
162	162	Code, is amended to read as follows:
163	163	(a) On prevailing in an action commenced by the department
164	164	through the attorney general under this chapter [or in a hearing
165	165	commenced by the warehouse operator under Section 14.082(f)], the
166	166	department and the attorney general are each entitled to recover:
167	167	(1) investigation costs and fees;
168	168	(2) reasonable attorney's fees;
169	169	(3) court costs; and
170	170	(4) other costs relating to the action, including the
171	171	cost of depositions and other forms of discovery and copying
172	172	charges.
173	173	SECTION 7. This Act takes effect September 1, 2011.