AN ACT
1-1 relating to modifications of the official cotton growers' boll
1-2 weevil eradication program.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1
1-5 SECTION 1.01. Section 74.101, Agriculture Code, is amended
1-6 to read as follows:
1-7 Sec. 74.101. FINDINGS AND DECLARATION OF POLICY. (a) It is
1-8 hereby found and declared that:
1-9 (1) the insects Anthonomus grandis Boheman, known as
1-10 the boll weevil, and Pectinophora gossypiella, known as the pink
1-11 bollworm, are public nuisances and a menace to the cotton industry,
1-12 and their eradication is a public necessity [boll weevil entered
1-13 Texas from Mexico in 1892 and presents a major economic threat to
1-14 Texas' cotton crop];
1-15 (2) because of the differences in soil conditions,
1-16 growing seasons, farming techniques, and climate conditions among
1-17 several areas in the state where cotton is grown, the eradication
1-18 and suppression of the nuisance can best be accomplished by
1-19 dividing the cotton-growing areas into separate zones so that
1-20 integrated pest management programs may be developed for each zone
1-21 [there exists a need to develop, carry out, and participate in
1-22 programs of research such as disease and insect control; marketing
1-23 to show low risk of pests in interstate and intrastate movement of
2-1 cotton commodities; promotion of pest-free cotton commodities which
2-2 increase market demand; and education of cotton raisers, cotton
2-3 users, regulators, policymakers, and the general public on the
2-4 effect of pests on cotton, its utility, its marketing, its yield,
2-5 and its promotion]; [and]
2-6 (3) there is a need for a quasi-governmental entity
2-7 acting under the supervision and control of the commissioner whose
2-8 members are actual cotton growers who would be represented on the
2-9 board of the entity by directors elected by them to manage
2-10 eradication and suppression programs and to furnish expertise in
2-11 the field of insect control and eradication, because such an entity
2-12 would enhance the interest and participation of cotton growers in
2-13 the program; and
2-14 (4) because of the progress made in eradication,
2-15 investments made by cotton growers in certain areas, the potential
2-16 injustice to certain cotton growers who have made such investments,
2-17 and the stage of development of the cotton crops in the statutory
2-18 eradication zones, an urgent public necessity exists to validate
2-19 and ratify the assessments, agreements, and obligations of the
2-20 Texas Boll Weevil Eradication Foundation, Inc., made or incurred by
2-21 the foundation and related to certain statutory zones [it is the
2-22 intent of the legislature that the program be carried out with the
2-23 best available integrated pest management techniques].
2-24 (b) It is the intent of the legislature that the program of
2-25 eradication and suppression be carried out with the best available
3-1 integrated pest management techniques.
3-2 (c) The department may recover costs for administration of
3-3 this subchapter.
3-4 [(c) The creation and use of a boll weevil eradication
3-5 foundation as a vehicle to provide for assessments and governing
3-6 boards and to establish eradication zones in order to suppress and
3-7 eradicate boll weevils and other cotton pests are consistent with
3-8 the goals and uses of revenue established under Article XVI,
3-9 Section 68, of the Texas Constitution.]
3-10 SECTION 1.02. Subchapter D, Chapter 74, Agriculture Code, is
3-11 amended by adding Section 74.1011 to read as follows:
3-12 Sec. 74.1011. DESIGNATION OF ENTITY TO CARRY OUT BOLL WEEVIL
3-13 ERADICATION. (a) The Texas Boll Weevil Eradication Foundation,
3-14 Inc., a Texas nonprofit corporation chartered by the secretary of
3-15 state on September 14, 1993, shall be recognized by the department
3-16 as the entity to plan, carry out, and operate eradication and
3-17 diapause programs to eliminate the boll weevil and the pink
3-18 bollworm from cotton in the state under the supervision of the
3-19 department as provided by this subchapter.
3-20 (b) The commissioner may terminate the foundation's
3-21 designation as the entity recognized to carry out boll weevil
3-22 eradication by giving 45 days' written notice to the foundation and
3-23 by designating a successor entity. If the commissioner designates
3-24 a successor to the foundation, the successor has all the powers and
3-25 duties of the foundation under this subchapter. Any successor to
4-1 the foundation shall assume and shall be responsible for all
4-2 obligations and liabilities relating to any notes, security
4-3 agreements, assignments, loan agreements, and any other contracts
4-4 or other documents entered into by the foundation with or for the
4-5 benefit of any financial institution or its predecessor, successor,
4-6 or assignee.
4-7 SECTION 1.03. Section 74.102, Agriculture Code, is amended
4-8 to read as follows:
4-9 Sec. 74.102. DEFINITIONS. In this subchapter:
4-10 (1) "Board" means the board of directors of the Texas
4-11 Boll Weevil Eradication Foundation, Inc [official cotton growers'
4-12 boll weevil eradication foundation].
4-13 (2) "Boll weevil" has the meaning assigned by Section
4-14 74.002 [of this code].
4-15 (3) "Commissioner" means commissioner of agriculture.
4-16 (4) "Cotton" means:
4-17 (A) a cotton plant;
4-18 (B) a part of a cotton plant, including bolls,
4-19 stalks, flowers, roots, and leaves; or
4-20 (C) cotton products, including seed cotton,
4-21 cottonseed, and hulls.
4-22 (5) "Cotton grower" means a person [an individual] who
4-23 grows cotton and receives income [on or after June 1, 1992,] from
4-24 the sale of cotton. The term includes an individual who as owner,
4-25 landlord, tenant, or sharecropper is entitled to share in the
5-1 cotton grown and available for marketing from a farm or to share in
5-2 the proceeds from the sale of the cotton from the farm[, under 7
5-3 C.F.R. Part 1413].
5-4 (6) "Eradication" means elimination of boll weevils or
5-5 pink bollworms to the extent that the commissioner does not
5-6 consider further elimination of boll weevils or pink bollworms
5-7 necessary to prevent economic loss to cotton growers. Eradication
5-8 includes diapause activities.
5-9 (7) "Eradication zone" means a geographic area:
5-10 (A) established under Section 74.1021; or
5-11 (B) designated by the commissioner in accordance
5-12 with Section 74.105 in which cotton growers by referendum approve
5-13 their participation in a boll weevil or pink bollworm eradication
5-14 program.
5-15 (8) "Foundation" means the Texas Boll Weevil
5-16 Eradication Foundation, Inc., a Texas nonprofit corporation
5-17 [official cotton growers' boll weevil eradication foundation].
5-18 (9) ["High Plains Boll Weevil Suppression Program
5-19 Area" includes Bailey, Borden, Briscoe, Castro, Cochran, Crosby,
5-20 Dawson, Deaf Smith, Dickens, Floyd, Gaines, Garza, Hale, Hockley,
5-21 Howard, Lamb, Lubbock, Lynn, Martin, Midland, Motley, Parmer,
5-22 Swisher, Terry, and Yoakum counties. The High Plains Boll Weevil
5-23 Suppression Program Area may also include other counties or parts
5-24 of counties if areas are added to the High Plains Boll Weevil
5-25 Suppression Program Area as provided under this subchapter.]
6-1 [(10)] "Host" means a plant or plant product in which
6-2 the boll weevil or pink bollworm is capable of completing any
6-3 portion of its life cycle.
6-4 (10) [(11)] "Infested" means the presence of the boll
6-5 weevil or pink bollworm in any life stage or the existence of
6-6 generally accepted entomological evidence from which it may be
6-7 concluded with reasonable certainty that the boll weevil or pink
6-8 bollworm is present.
6-9 (11) [(12)] "Integrated pest management" is the
6-10 coordinated use of pest and environmental information with
6-11 available pest control methods, including pesticides, natural
6-12 predator controls, cultural farming practices, and climatic
6-13 conditions, to prevent unacceptable levels of pest damage by the
6-14 most economical means and with the least possible hazard to people,
6-15 property, and the environment.
6-16 (12) "Pink bollworm" has the meaning assigned by
6-17 Section 74.002.
6-18 (13) "Regulated article" means an article carrying or
6-19 capable of carrying the boll weevil or pink bollworm, including
6-20 cotton plants, seed cotton, gin trash, other hosts, or mechanical
6-21 cotton harvesters.
6-22 [(14) "St. Lawrence Cotton Growers Boll Weevil Control
6-23 Zone" may include, subject to change as provided under this
6-24 subchapter, all or part of Glasscock, Reagan, Upton, south Midland,
6-25 or other counties.]
7-1 [(15) The pink bollworm eradication zone includes
7-2 Reeves and Pecos counties.]
7-3 SECTION 1.04. Subchapter D, Chapter 74, Agriculture Code, is
7-4 amended by adding Section 74.1021 to read as follows:
7-5 Sec. 74.1021. STATUTORY ZONES. (a) The Northern High
7-6 Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,
7-7 Castro, Deaf Smith, Floyd, Hale, Lamb, Parmer, Randall, and Swisher
7-8 counties, and other areas as proposed by the commissioner by rule
7-9 for inclusion in the zone and approved by referendum in the area to
7-10 be added.
7-11 (b) The Rolling Plains Central Eradication Zone consists of
7-12 Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,
7-13 Jones, Knox, Mitchell, Nolan, Palo Pinto, Scurry, Shackelford,
7-14 Stephens, Stonewall, Throckmorton, and Young counties; all land in
7-15 Archer County south of a line following Farm-to-Market Road 422
7-16 commencing at the Baylor County line running east to the
7-17 intersection of Farm-to-Market Road 210, continuing east to the
7-18 intersection of State Highway 25, and continuing east to the Clay
7-19 County line; all land in Borden County east of a line seven miles
7-20 west of the Scurry County line running south from the Garza County
7-21 line to the Howard County line; and all land in Taylor County east
7-22 of U.S. Highway 83 from a point commencing at the intersection of
7-23 U.S. Highway 83 and the south Taylor County line, north to the town
7-24 of Bradshaw; thence north of Farm-to-Market Road 1086, as the
7-25 farm-to-market road proceeds west and north to the intersection of
8-1 the Farm-to-Market Road 1086 and U.S. Highway 277, being all land
8-2 lying north of the farm-to-market road and west of U.S. Highway 277
8-3 from the intersection of Farm-to-Market Road 1086 and U.S. Highway
8-4 277 to the point where U.S. Highway 277 intersects the south
8-5 boundary line of Taylor County; all land in Brown County east of a
8-6 line following State Highway 279 to Brownwood and continuing along
8-7 U.S. Highway 377 south to the McCulloch County line; and other
8-8 areas as proposed by the commissioner by rule for inclusion in the
8-9 zone and approved by referendum in the area to be added.
8-10 (c) The St. Lawrence Eradication Zone consists of that area
8-11 of Midland County south of a line 15 miles south of Interstate 20
8-12 running from the Ector County line east to the Glasscock County
8-13 line; Glasscock, Reagan, and Upton counties; and other areas as
8-14 proposed by the commissioner by rule for inclusion in the zone and
8-15 approved by referendum in the area to be added.
8-16 (d) The South Texas Winter Garden Eradication Zone consists
8-17 of Aransas, Atascosa, Austin, Bee, Bexar, Brazoria, Calhoun,
8-18 Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Goliad, Jackson,
8-19 Jim Wells, Karnes, Kinney, Kleberg, La Salle, Lavaca, Live Oak,
8-20 Matagorda, McMullen, Medina, Nueces, Refugio, San Patricio, Uvalde,
8-21 Victoria, Wharton, Wilson, and Zavala counties, and other areas as
8-22 proposed by the commissioner by rule for inclusion in the zone and
8-23 approved by referendum in the area to be added. Austin, Brazoria,
8-24 Colorado, Fort Bend, Jackson, Matagorda, and Wharton counties are
8-25 included in the South Texas Winter Garden Eradication Zone only for
9-1 purposes of the repayment of debt existing on April 30, 1997, and
9-2 those counties may not be included in the zone for any other
9-3 purpose unless the commissioner by rule proposes that an area be
9-4 included in the zone and the proposal is approved by referendum in
9-5 the area to be added. The commissioner may apportion any debt
9-6 existing on April 30, 1997, and designate the appropriate
9-7 assessment.
9-8 (e) The Southern High Plains-Caprock Eradication Zone
9-9 consists of Andrews, Cochran, Crosby, Dawson, Dickens, Ector,
9-10 Gaines, Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin,
9-11 Motley, Terry, and Yoakum counties; all land in Borden County lying
9-12 west of a line seven miles west of the Scurry County line running
9-13 south from the Garza County line to the Howard County line; that
9-14 area of Midland County north of a line 15 miles south of Interstate
9-15 20 running from the Ector County line east to the Glasscock County
9-16 line; and other areas as proposed by the commissioner by rule for
9-17 inclusion in the zone and approved by referendum in the area to be
9-18 added.
9-19 (f) The Southern Rolling Plains Eradication Zone consists of
9-20 Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher, and
9-21 Tom Green counties, all land in Taylor County lying west of U.S.
9-22 Highway 83 from a point commencing at the intersection of U.S.
9-23 Highway 83 and the south Taylor County line, north of the town of
9-24 Bradshaw; thence all the land lying south of Farm-to-Market Road
9-25 1086, as the farm-to-market road proceeds west and north to its
10-1 intersection with U.S. Highway 277, being all land lying south of
10-2 the farm-to-market road and east of U.S. Highway 277 from the
10-3 intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to
10-4 the point where U.S. Highway 277 intersects the south boundary line
10-5 of Taylor County, and other areas as proposed by the commissioner
10-6 by rule for inclusion in the zone and approved by referendum in the
10-7 area to be added.
10-8 SECTION 1.05. Subchapter D, Chapter 74, is amended by adding
10-9 Sections 74.1041 and 74.1042 to read as follows:
10-10 Sec. 74.1041. INTERIM ADVISORY GROUPS. (a) The
10-11 commissioner may designate an interim advisory group for each
10-12 geographic statutory zone or region of the state that is to be
10-13 considered by the commissioner for inclusion in an eradication
10-14 zone. The groups shall gather advice, input, and guidance from
10-15 cotton growers from each area of the state concerning the interest
10-16 in and concerns about the implementation of this subchapter.
10-17 (b) Each interim advisory group shall consider and make
10-18 recommendations to the commissioner concerning:
10-19 (1) the geographic boundaries for the proposed
10-20 eradication zone;
10-21 (2) the amount of local interest in operating an
10-22 eradication program;
10-23 (3) the basis and amount of an assessment necessary to
10-24 support an eradication program;
10-25 (4) the need to restructure any pre-existing debt from
11-1 prior eradication activities;
11-2 (5) crediting a cotton grower's 1996 assessment
11-3 payments to any future assessment; and
11-4 (6) any other matter requested by the commissioner.
11-5 (c) Each interim advisory group shall include at least one
11-6 cotton grower from each county in the zone and other persons as
11-7 determined by the commissioner.
11-8 Sec. 74.1042. CREATION OF NONSTATUTORY ERADICATION ZONES.
11-9 (a) The commissioner may by rule designate an area of the state as
11-10 a proposed eradication zone as long as the area is not within a
11-11 statutory zone under Section 74.1021 that has approved an
11-12 eradication program by referendum.
11-13 (b) The commissioner may hold a public hearing within the
11-14 proposed eradication zone to discuss the proposed geographic
11-15 boundaries of the zone. The public hearing may include any other
11-16 topics allowed under this subchapter.
11-17 (c) After the adoption of a rule under Subsection (a), the
11-18 commissioner shall conduct a referendum under Section 74.105.
11-19 SECTION 1.06. Subsections (a), (d), (e), and (f), Section
11-20 74.105, Agriculture Code, are amended to read as follows:
11-21 (a) The commissioner [organization certified under Section
11-22 74.104 of this code or the foundation] shall conduct a referendum
11-23 in each proposed eradication zone to determine whether cotton
11-24 growers desire to establish an [official boll weevil or pink
11-25 bollworm] eradication zone.
12-1 (d) If a referendum to establish an eradication zone fails,
12-2 the concurrent election of a board member [members] from the
12-3 proposed eradication zone under Section 74.106 [of this code] has
12-4 no effect, and the commissioner shall appoint a representative to
12-5 the board from the area.
12-6 (e) The [organization certified under Section 74.104 of this
12-7 code or the] foundation[, as appropriate,] may request the
12-8 commissioner to call additional referenda in a proposed eradication
12-9 zone in which a referendum has failed. An additional eradication
12-10 zone referendum and concurrent board election may be held no
12-11 earlier than one year [the 121st day] after the date of the last
12-12 referendum.
12-13 (f) After the passage of any referendum, the eligible voters
12-14 shall be allowed, by subsequent referenda [periodically as
12-15 specified in the initial referendum], to vote on whether to
12-16 continue their assessments. All of the requirements for an initial
12-17 referendum must be met in subsequent referenda.
12-18 SECTION 1.07. Section 74.106, Agriculture Code, is amended
12-19 by amending Subsections (a), (c), and (d) and adding Subsection (h)
12-20 to read as follows:
12-21 (a) The initial election for board members from a proposed
12-22 eradication zone shall be held concurrently with an eradication
12-23 zone referendum held under Section 74.105 [of this code]. Each
12-24 eradication zone shall be represented on the board and shall remain
12-25 represented on the board until eradication operations are concluded
13-1 and all debt of the eradication zone is paid.
13-2 (c) A cotton grower who is eligible to vote in a referendum
13-3 or election under this subchapter is eligible to be a candidate for
13-4 and member of the board if the person has at least seven years of
13-5 experience as a cotton grower and otherwise meets the
13-6 qualifications for the position.
13-7 (d) A cotton grower who wants to be a candidate for the
13-8 board must meet the qualifications for board membership and file an
13-9 application with the [secretary of the foundation or, before
13-10 certification of the organization under Section 74.104 of this
13-11 code, the] commissioner. The application must be:
13-12 (1) filed not later than the 30th day before the date
13-13 set for the board election;
13-14 (2) on a form approved by the commissioner; and
13-15 (3) signed by at least 10 cotton growers who are
13-16 eligible to vote in the board election.
13-17 (h) Each board member shall be sworn into office by a
13-18 representative of the commissioner by taking the oath of office
13-19 required for elected officers of the state.
13-20 SECTION 1.08. Section 74.107, Agriculture Code, is amended
13-21 to read as follows:
13-22 Sec. 74.107. COMPOSITION OF BOARD. (a) The board shall be
13-23 composed of members elected from each statutory eradication zone
13-24 established and validated by referendum, members elected from each
13-25 nonstatutory eradication zone established by referendum, members
14-1 appointed by the commissioner from other cotton-growing areas of
14-2 the state, and members appointed by the commissioner under
14-3 Subsection (b). The commissioner shall appoint an initial board
14-4 composed of 15 members. Except as provided by Subsection (b), the
14-5 term of each board position may not exceed four years [High Plains
14-6 Boll Weevil Suppression Program Area and the St. Lawrence Cotton
14-7 Growers Boll Weevil Control Zone are separate zones for the
14-8 purposes of boll weevil eradication; however, an area in the St.
14-9 Lawrence Cotton Growers Boll Weevil Control Zone may be assigned to
14-10 another zone as provided by this subchapter].
14-11 (b) In making appointments under this section, the
14-12 commissioner shall appoint the following board members, selected
14-13 from a variety of cotton-growing regions of the state, for
14-14 four-year terms:
14-15 (1) an agricultural lender;
14-16 (2) an independent entomologist who is an integrated
14-17 pest management specialist;
14-18 (3) two representatives from industries allied with
14-19 cotton production; and
14-20 (4) a representative from the pest control industry.
14-21 (c) The commissioner [board, with the commissioner's
14-22 approval,] may change the number of board positions or the
14-23 eradication zone representation on the board to accommodate changes
14-24 in the number of eradication zones. A change under this subsection
14-25 may not contravene another provision of this subchapter.
15-1 (d) A vacancy on the board shall be filled by appointment by
15-2 the commissioner for the unexpired term.
15-3 (e) On 30 days' notice and opportunity for hearing, the
15-4 commissioner may replace any unelected board member of the
15-5 foundation.
15-6 SECTION 1.09. Section 74.108, Agriculture Code, is amended
15-7 to read as follows:
15-8 Sec. 74.108. [BOARD] POWERS OF BOARD AND COMMISSIONER.
15-9 (a) The board may:
15-10 (1) [conduct board elections;]
15-11 [(2) conduct eradication zone referenda;]
15-12 [(3) conduct assessment referenda under Section 74.113
15-13 of this code;]
15-14 [(4)] conduct programs consistent with the declaration
15-15 of policy stated in Section 74.101 [of this code];
15-16 (2) [(5)] accept, as necessary to implement this
15-17 chapter, gifts and grants;
15-18 (3) [(6)] borrow money, with the approval of the
15-19 commissioner, as necessary to execute this chapter;
15-20 (4) [(7)] take other action and exercise other
15-21 authority as necessary to execute any act authorized by this
15-22 subchapter or the Texas Non-Profit Corporation Act (Article
15-23 1396-1.01 et seq., Vernon's Texas Civil Statutes); and
15-24 (5) [(8)] form an advisory committee composed of
15-25 individuals from this state, other states, or other countries and
16-1 change membership on the committee, as necessary. Any advisory
16-2 committee created under this subdivision for the purpose of
16-3 establishing treatment methods shall include among its members
16-4 persons with knowledge of the effects of different treatments on
16-5 the health of agricultural workers, the local population, and the
16-6 ecosystem, including but not limited to the effects of a particular
16-7 method of treatment on beneficial organisms and wildlife, the
16-8 potential for secondary infestations from nontarget pests, and the
16-9 potential for pest resistance to particular methods of treatment.
16-10 (b) On petition of 30 percent of the cotton growers eligible
16-11 to vote within the proposed area, the commissioner may, or at the
16-12 commissioner's discretion, the commissioner [The board] may, by
16-13 rule add an area to an eradication zone or transfer an area or
16-14 county from one statutory zone to another zone if:
16-15 (1) cotton production has begun or could begin
16-16 [begins] in the area;
16-17 (2) the area is adjacent to an eradication zone or is
16-18 in an area with biological characteristics similar to the
16-19 eradication zone; and
16-20 (3) the addition is approved in a referendum held in
16-21 the area.
16-22 (c) The board must adopt a procurement policy, subject to
16-23 approval by the commissioner, outlining the procedures to be used
16-24 in purchasing [may initiate the boll weevil eradication program in
16-25 an area added to an eradication zone and may assess cotton growers
17-1 in the area added to the eradication zone to ensure the integrity
17-2 and success of the eradication program. The board shall provide
17-3 notice of intent to initiate eradication and collect assessments
17-4 through informational meetings in the affected area not later than
17-5 60 days before the date recognized by the board as the average
17-6 planting date for the area].
17-7 [(d) The board may not reduce the area of the High Plains
17-8 Boll Weevil Suppression Program Area.]
17-9 SECTION 1.10. Section 74.109, Agriculture Code, is amended
17-10 by amending Subsections (a), (d), (e), (g), and (h) and adding
17-11 Subsections (i) and (j) to read as follows:
17-12 (a) The board shall have [make available for inspection at]
17-13 an annual independent audit of the [all] books, records of account,
17-14 and minutes of proceedings maintained by the foundation prepared by
17-15 an independent certified public accountant or a firm of independent
17-16 certified public accountants. The audit shall include information
17-17 for each zone in which an eradication program has been conducted
17-18 under this subchapter. The audit shall be filed with the board,
17-19 the commissioner, and the state auditor and shall be made available
17-20 to the public by the foundation or the commissioner. The state
17-21 auditor may examine any work papers from the independent audit or
17-22 may audit the transactions of the foundation if the state auditor
17-23 determines that an audit is necessary.
17-24 (d) The foundation and the board are state agencies for the
17-25 following purposes only:
18-1 (1) exemption from taxation including exemption from
18-2 sales and use taxes, vehicle registration fees, and taxes under
18-3 Chapter 152, Tax Code; and
18-4 (2) indemnification under Chapter 104, Civil Practice
18-5 and Remedies Code.
18-6 (e) Funds collected by the foundation are not state funds
18-7 and are not required to be deposited in the state treasury. The
18-8 foundation shall deposit all money collected under this subchapter
18-9 in a bank or other depository approved by the commissioner [board].
18-10 (g) The board shall collect data on the type and quantity of
18-11 pesticides used in accordance with this subchapter. The data shall
18-12 be filed with the commissioner.
18-13 (h) All revenue collected under this subchapter shall be
18-14 used solely to finance programs approved by the commissioner as
18-15 consistent with this subchapter [and applicable provisions of the
18-16 constitution].
18-17 (i) The foundation is subject to the requirements of:
18-18 (1) the open meetings law, Chapter 551, Government
18-19 Code; and
18-20 (2) the open records law, Chapter 552, Government
18-21 Code.
18-22 (j) A board member may not vote on any matter in which the
18-23 member has a direct pecuniary interest. A board member is subject
18-24 to the same restrictions as a local public official under Chapter
18-25 171, Local Government Code.
19-1 SECTION 1.11. Subchapter D, Chapter 74, Agriculture Code, is
19-2 amended by adding Section 74.1095 to read as follows:
19-3 Sec. 74.1095. ADMINISTRATIVE REVIEW. (a) The commissioner
19-4 by rule shall establish procedures for the informal review and
19-5 resolution of a claim arising out of certain acts taken by the
19-6 foundation under this subchapter. Rules established under this
19-7 section shall include a designation of the acts that are subject to
19-8 review under this subsection and the appropriate remedial action,
19-9 as authorized by this subchapter.
19-10 (b) A person dissatisfied with the department's informal
19-11 resolution of a claim under procedures adopted under Subsection (a)
19-12 may appeal the department's decision to the commissioner.
19-13 (c) A decision issued by the commissioner on a claim
19-14 appealed under Subsection (b) is the final administrative action of
19-15 the department and is subject to judicial review under Chapter
19-16 2001, Government Code.
19-17 (d) This section does not constitute a waiver of the state's
19-18 immunity from liability.
19-19 SECTION 1.12. Section 74.110, Agriculture Code, is amended
19-20 to read as follows:
19-21 Sec. 74.110. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
19-22 EMPLOYEES. (a) Except for instances of gross negligence,
19-23 individual criminal actions, or acts of dishonesty, [the
19-24 foundation,] the foundation's members, directors, officers, and
19-25 employees are not individually liable to a cotton grower or other
20-1 person for:
20-2 (1) errors in judgment;
20-3 (2) mistakes; or
20-4 (3) other acts or omissions.
20-5 (b) A foundation member, officer, or employee is not
20-6 individually liable for an act or omission of another foundation
20-7 member, officer, or employee.
20-8 SECTION 1.13. Subchapter D, Chapter 74, Agriculture Code, is
20-9 amended by adding Section 74.1101 to read as follows:
20-10 Sec. 74.1101. LIABILITY OF APPLICATORS. (a) In this
20-11 section, "applicator" means an individual or other person that is
20-12 not a member, director, officer, or employee of the foundation and
20-13 that contracts with the foundation to apply pesticides or other
20-14 chemicals using aircraft or other equipment to further or support
20-15 the eradication or diapause efforts undertaken under this
20-16 subchapter.
20-17 (b) An applicator is not jointly and severally liable for
20-18 any act or omission of the foundation under this subchapter
20-19 provided that the foundation maintains the liability coverage
20-20 required under Subsection (c).
20-21 (c) The foundation shall have liability coverage in effect
20-22 for any eradication or diapause efforts for which it uses
20-23 applicators. The coverage shall apply to acts and omissions of the
20-24 foundation and volunteers and be in the amount of at least $500,000
20-25 for each single occurrence of death, bodily injury, or property
21-1 damage.
21-2 (d) The commissioner may provide that the foundation include
21-3 an applicator as an additional named insured in any policy of
21-4 insurance required under Subsection (c).
21-5 (e) This section expires September 1, 1999.
21-6 SECTION 1.14. Subsections (f), (g), (h), and (i), Section
21-7 74.112, Agriculture Code, are amended to read as follows:
21-8 (f) If 30 [40] percent or more of the cotton growers
21-9 eligible to vote [producers] within a zone participating in the
21-10 program present to the commissioner [foundation] a petition calling
21-11 for a referendum of the qualified voters on the proposition of
21-12 discontinuing the program, the commissioner [board] shall conduct a
21-13 referendum for that purpose.
21-14 (g) The commissioner [board] shall give notice of the
21-15 referendum, the referendum shall be conducted, and the results
21-16 shall be declared in the manner provided by law for the original
21-17 referendum and election, with any necessary exceptions provided by
21-18 rule of the commissioner.
21-19 (h) The commissioner [board] shall conduct the referendum
21-20 within 90 days of the date of filing of the petition, except that
21-21 no such referendum may be held within two years of any other
21-22 referendum in the eradication zone pertaining to establishing or
21-23 discontinuing the eradication zone.
21-24 (i) Approval of the proposition is by the same vote as
21-25 required in a referendum under Section 74.114(g) [majority vote of
22-1 those voting]. If the proposition is approved, the eradication
22-2 program is abolished and the eradication zone ceases to exist on
22-3 payment of all debts of the eradication zone.
22-4 SECTION 1.15. Section 74.113, Agriculture Code, is amended
22-5 to read as follows:
22-6 Sec. 74.113. ASSESSMENT REFERENDA. (a) The commissioner
22-7 [foundation] shall propose [determine] the assessment needed in
22-8 each eradication zone to ensure the stability of the cotton
22-9 industry by eradicating the public nuisance caused by the boll
22-10 weevil and the pink bollworm [accomplish the following goal: to
22-11 finance programs of marketing, promotion, research, and education
22-12 calculated to increase the production and use of cotton].
22-13 (b) The commissioner [foundation] shall propose in a
22-14 referendum the:
22-15 (1) maximum assessment to be paid by cotton growers
22-16 having production in the eradication zone; and
22-17 (2) time for which the assessment will be made.
22-18 (c) With the commissioner's approval, the [The] foundation
22-19 may make an assessment in an eradication zone at a level less than
22-20 the assessment approved by the referendum.
22-21 (d) The commissioner [foundation] shall conduct an
22-22 assessment referendum under the procedures provided by Section
22-23 74.114 [of this code].
22-24 (e) If an assessment referendum is approved, the foundation
22-25 may collect the assessment.
23-1 (f) An assessment levied on cotton growers in an eradication
23-2 zone may be applied only to:
23-3 (1) eradication in that zone;
23-4 (2) the foundation's operating costs, including
23-5 payments on debt incurred for a foundation activity, except that
23-6 the funds of one zone may not be used to pay another zone's bank
23-7 loans or debts; and
23-8 (3) the conducting of other programs consistent with
23-9 the declaration of policy stated in Section 74.101 [of this code].
23-10 (g) The assessment shall be adequate and necessary to
23-11 achieve the goals of this subchapter. The amount of the assessment
23-12 shall be determined by criteria established by the commissioner,
23-13 including:
23-14 (1) the extent of infestation;
23-15 (2) the amount of acreage planted;
23-16 (3) historical efforts to eradicate;
23-17 (4) the growing season;
23-18 (5) epidemiology;
23-19 (6) historical weather conditions; and
23-20 (7) the costs and financing of the program.
23-21 (h) The commissioner shall give notice of and hold a public
23-22 hearing within the eradication zone regarding the proposed
23-23 assessment referendum. Before the referendum, the commissioner
23-24 shall review and approve:
23-25 (1) the amount of the assessment;
24-1 (2) the basis for the assessment;
24-2 (3) the time for payment of the assessment;
24-3 (4) the method of allocation of the assessment among
24-4 cotton growers;
24-5 (5) the restructuring and repayment schedule for any
24-6 pre-existing debt; and
24-7 (6) the amount of debt to be incurred in the
24-8 eradication zone.
24-9 (i) The commissioner shall on a zone-by-zone basis set the
24-10 date on which assessments are due and payable.
24-11 (j) Each year, the commissioner shall review and approve the
24-12 foundation's operating budget.
24-13 (k) The foundation shall prepare and mail billing statements
24-14 to each cotton grower subject to the assessment that state the
24-15 amount due and the due date. The assessments shall be remitted to
24-16 the foundation.
24-17 SECTION 1.16. Subsections (a), (c), (d), (f), (h), and (i),
24-18 Section 74.114, Agriculture Code, are amended to read as follows:
24-19 (a) The commissioner [foundation] shall conduct a referendum
24-20 or board election authorized under this subchapter [its
24-21 jurisdiction]. At the end of each four-year period in which an
24-22 eradication program has been operational in a zone, the
24-23 commissioner shall hold a referendum in the zone on the
24-24 continuation of the eradication program. The referendum shall be
24-25 held at the same time as the election of a board member from the
25-1 zone. Approval of the referendum on continuation is by a majority
25-2 of those voting in the referendum.
25-3 (c) The commissioner shall adopt rules for voting in [the
25-4 initial] board elections [election] and [initial] referenda to
25-5 establish or continue eradication zones. [The board shall adopt
25-6 rules for voting in other referenda and board elections.] Rules
25-7 adopted under this subsection must include provisions for
25-8 determining:
25-9 (1) who is a cotton grower eligible to vote in an
25-10 election or referendum;
25-11 (2) whether a board member is elected by a plurality
25-12 or a majority of the votes cast; and
25-13 (3) the area from which each board member is elected.
25-14 (d) A cotton grower having cotton production in a proposed
25-15 or established eradication zone is entitled to:
25-16 (1) vote in a referendum concerning the eradication
25-17 zone; and
25-18 (2) elect board members to represent the eradication
25-19 zone.
25-20 (f) Ballots in a referendum or board election shall be
25-21 mailed directly to a central location, to be [initially] determined
25-22 by the commissioner [and later determined by the board]. A cotton
25-23 grower eligible to vote in a referendum or board election who has
25-24 not received a ballot from the commissioner, foundation, or another
25-25 source shall be offered the option of requesting a ballot by mail
26-1 or obtaining a ballot at the office of the county agent of the
26-2 Texas Agricultural Extension Service or a government office
26-3 distributing ballots in a county in the proposed or established
26-4 zone in which the referendum or board election is conducted.
26-5 (h) If a referendum under this subchapter is not approved,
26-6 the [foundation may with the approval of the] commissioner may
26-7 conduct another referendum. A referendum under this subsection may
26-8 not be held before one year [the 121st day] after the date on which
26-9 the last referendum on the same issue was held.
26-10 (i) A public hearing regarding the proposed eradication
26-11 program, including information regarding regulations to be
26-12 promulgated by the [foundation and the] commissioner, may [shall]
26-13 be held by the commissioner [foundation] in each of several
26-14 locations within each boll weevil or pink bollworm eradication
26-15 zone. The area posted for each hearing shall include no more than
26-16 six contiguous counties that have cotton production at the time of
26-17 the hearing.
26-18 SECTION 1.17. Section 74.115, Agriculture Code, is amended
26-19 to read as follows:
26-20 Sec. 74.115. FAILURE TO PAY ASSESSMENTS. (a) A cotton
26-21 grower who fails to pay an assessment levied under this subchapter
26-22 when due may be subject, after reasonable notice and opportunity
26-23 for hearing, to a penalty set by the commissioner [board]. In
26-24 determining the amount of the penalty to be assessed, the
26-25 commissioner shall consider:
27-1 (1) the seriousness of the violation, including the
27-2 nature, circumstances, and extent of the violation;
27-3 (2) the history of previous violations;
27-4 (3) the amount necessary to deter future violations;
27-5 (4) the economic situation of the cotton grower; and
27-6 (5) any other matter that justice may require.
27-7 (b) [A cotton grower who fails to pay all assessments and
27-8 penalties before the 10th day after receiving notice of the
27-9 delinquency shall destroy any cotton growing on the grower's
27-10 acreage that is subject to the assessment. Cotton plants that are
27-11 not destroyed are a public nuisance, and, on recommendation of the
27-12 foundation, the department shall follow the procedures for
27-13 destruction of host plants provided by Subchapters A and B of this
27-14 chapter, including procedures for reimbursement by the grower of
27-15 costs required for destruction. The department may apply to a
27-16 district court with jurisdiction in the county in which the public
27-17 nuisance is located to have the nuisance condemned and destroyed.
27-18 Injunctive relief available to the department under this subchapter
27-19 is in addition to any other legal remedy available to the
27-20 department. The department is not required to file a bond in a
27-21 proceeding under this subsection.]
27-22 [(c)] In addition to any other remedies for the collection
27-23 of assessments and penalties, the department may place and perfect
27-24 an assessment [a] lien on cotton produced and harvested that year
27-25 from the acreage that is subject to the assessment that is due and
28-1 unpaid. A buyer of cotton takes free of the assessment lien if the
28-2 buyer has not received written or actual notice of the assessment
28-3 lien [from the department] or if the buyer has paid for the cotton
28-4 by a check on which the department is named as a joint payee. In
28-5 an action to enforce the assessment lien, the burden is on the
28-6 department to prove that the buyer of cotton received written or
28-7 actual notice of the assessment lien. A buyer of cotton other than
28-8 a person buying cotton from the cotton grower takes free of the
28-9 assessment lien.
28-10 SECTION 1.18. Section 74.116, Agriculture Code, is amended
28-11 to read as follows:
28-12 Sec. 74.116. EXEMPTION FROM ASSESSMENT PENALTIES. (a) The
28-13 commissioner by rule shall adopt criteria for exemption from
28-14 payment of assessment penalties under Section 74.115 of this code a
28-15 cotton grower for whom payment would impose an undue financial
28-16 burden.
28-17 (b) A cotton grower may not qualify for an exemption under
28-18 this section for a year in which the amount computed by subtracting
28-19 the assessments and penalties due under this subchapter from the
28-20 cotton grower's net income subject to federal income taxation in
28-21 the previous year is greater than $15,000.
28-22 (c) A cotton grower who applies for an exemption under this
28-23 section must use a form prescribed by the commissioner. A cotton
28-24 grower must file a separate application form for each year for
28-25 which the cotton grower claims an exemption.
29-1 (d) The [commissioner shall forward to the foundation a
29-2 completed exemption application form. The foundation shall
29-3 determine whether the applicant qualifies for an exemption and
29-4 shall notify the commissioner of its determination.]
29-5 [(e) On notification by the foundation that a cotton grower
29-6 qualifies for an exemption, the commissioner shall exempt the
29-7 cotton grower from payment of an assessment penalty under Section
29-8 74.115 of this code.]
29-9 [(f) On the foundation's recommendation, the] commissioner
29-10 may establish a payment plan for a cotton grower applying for an
29-11 exemption under this section.
29-12 (e) [(g)] The commissioner shall promptly notify an
29-13 applicant of the [foundation's] determination regarding the
29-14 applicant's request for an exemption.
29-15 (f) [(h)] If an exemption under this section is denied,
29-16 assessments and penalties for the year for which the application is
29-17 made are due on the later of:
29-18 (1) the date on which they would be due in the absence
29-19 of an application for exemption; or
29-20 (2) 30 days after the date the applicant receives
29-21 notice of the denial.
29-22 (g) In addition to the authority provided under Subsections
29-23 (a)-(f), the commissioner may reduce or waive assessment penalties
29-24 as appropriate and necessary.
29-25 SECTION 1.19. Section 74.117, Agriculture Code, is amended
30-1 to read as follows:
30-2 Sec. 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
30-3 INSPECTIONS. The department, the foundation, or a designated
30-4 representative of either entity may enter cotton fields or other
30-5 premises to carry out the purposes of this subchapter and
30-6 Subchapters A and B of this chapter, which include the treatment
30-7 and[,] monitoring[, and destruction] of growing cotton or other
30-8 host plants. The department, the foundation, or a designated
30-9 representative of either entity may inspect fields or premises in
30-10 this state for the purpose of determining whether the property is
30-11 infested with the boll weevil or the pink bollworm. An inspection
30-12 must be conducted during reasonable daylight hours. The department
30-13 shall give notice by publication of the planned schedule of dates
30-14 for entry by the department, the foundation, or a designated
30-15 representative of either entity, to the fields or premises to carry
30-16 out the purposes of this subchapter, including treatment,
30-17 monitoring, or inspection functions. The department shall publish
30-18 notice of the planned schedule to enter the fields or premises in a
30-19 newspaper of general circulation in the eradication zone not less
30-20 than once a week for two weeks immediately before the scheduled
30-21 dates of entry. In addition to the notice published by the
30-22 department, the foundation shall post notice of the planned
30-23 schedule to enter fields or premises to carry out the purposes of
30-24 this subchapter at the county courthouse of each county in the
30-25 eradication zone not less than 15 days before the planned dates of
31-1 entry.
31-2 SECTION 1.20. Subsections (b), (c), and (d), Section 74.120,
31-3 Agriculture Code, are amended to read as follows:
31-4 (b) Rules adopted under this section shall establish the
31-5 criteria by which the foundation develops its [rules,]
31-6 procedures[,] and methods of treatment, which shall [rules]:
31-7 (1) establish a methodology for determining when boll
31-8 weevil or pink bollworm population levels have reached economic
31-9 significance;
31-10 (2) establish an effective treatment regimen that
31-11 seeks to provide the least possible risk to workers, the public,
31-12 and the environment;
31-13 (3) minimize the effects of the use of pesticides on
31-14 long-term control methods, including but not limited to the effect
31-15 a particular pesticide may have on biological controls;
31-16 (4) establish methods for monitoring boll weevils,
31-17 pink bollworms, and secondary pests;
31-18 (5) establish methods for verifying pesticide use
31-19 reduction; and
31-20 (6) consider the acute and chronic toxicity of
31-21 particular pesticides and the quantity of particular pesticides
31-22 needed. Eradication zone treatment plans may take into account the
31-23 potential for the use of smaller quantities of more toxic
31-24 substances to result in fewer health and environmental risks than
31-25 larger quantities of less toxic substances.
32-1 (c) The commissioner [foundation and the department] may
32-2 adopt other reasonable rules necessary to carry out the purposes of
32-3 this subchapter and Subchapters A and B of this chapter. All
32-4 rules issued under this subchapter must be adopted and published in
32-5 accordance with state requirements. [Rules adopted by the
32-6 foundation under this section shall be consistent with rules
32-7 adopted by the commissioner under this subchapter.]
32-8 (d) An advisory committee may [shall] be established to
32-9 assist the commissioner in the development of rules adopted under
32-10 this section. The advisory committee may [shall] be composed of:
32-11 (1) three cotton growers [producers] from different
32-12 regions of the state, appointed by the commissioner;
32-13 (2) three entomologists with knowledge of the
32-14 principles of integrated pest management, at least one of whom has
32-15 special knowledge of nonchemical or biological pest control,
32-16 appointed by the commissioner;
32-17 (3) two individuals with experience representing the
32-18 general interests of the environment, appointed by the chair of the
32-19 Texas Natural Resource Conservation Commission;
32-20 (4) an environmental engineer with expert knowledge of
32-21 ground and surface water protection from contamination, appointed
32-22 by the chair of the Texas Natural Resource Conservation Commission;
32-23 (5) a toxicologist, appointed by the Commissioner of
32-24 Health; and
32-25 (6) an individual with experience representing the
33-1 general interests of consumers and an individual with experience
33-2 representing the general interests of agricultural workers,
33-3 appointed by the governor.
33-4 SECTION 1.21. Section 74.121, Agriculture Code, is amended
33-5 to read as follows:
33-6 Sec. 74.121. REPORTS. Each person in an active eradication
33-7 zone growing cotton in this state shall furnish to the foundation
33-8 on forms supplied by the foundation information that the foundation
33-9 requires concerning the size and location of all commercial cotton
33-10 fields and of noncommercial patches of cotton grown for ornamental
33-11 or other purposes. The foundation may provide an incentive for
33-12 early and timely reporting.
33-13 SECTION 1.22. Section 74.124, Agriculture Code, is amended
33-14 by amending Subsection (a) and adding Subsection (c) to read as
33-15 follows:
33-16 (a) The foundation may carry out programs to destroy and
33-17 eliminate the boll weevil and the pink bollworm in this state by
33-18 cooperating through written agreements, as approved by the
33-19 commissioner, with:
33-20 (1) an agency of the federal government;
33-21 (2) a state agency;
33-22 (3) an appropriate agency of a foreign country
33-23 contiguous to the affected area to the extent allowed by federal
33-24 law;
33-25 (4) a person who is engaged in growing, processing,
34-1 marketing, or handling cotton; or
34-2 (5) a group of persons in this state involved in
34-3 similar programs to carry out the purposes of this subchapter.
34-4 (c) Agreements under Subsections (a)(4)-(5) must be approved
34-5 in each referendum required under this subchapter other than a
34-6 referendum to discontinue an eradication program. The agreements
34-7 must be approved by the same margin as required in the retention
34-8 referendum.
34-9 SECTION 1.23. Section 74.125, Agriculture Code, is amended
34-10 to read as follows:
34-11 Sec. 74.125. ORGANIC COTTON GROWERS [PRODUCERS]. (a) The
34-12 [board, in cooperation with the] commissioner[,] shall develop
34-13 rules and procedures to:
34-14 (1) protect the eligibility of organic cotton growers
34-15 [producers] to be certified by the commissioner;
34-16 (2) ensure that organic and transitional certification
34-17 by the commissioner continue to meet national certification
34-18 standards in order for organic cotton to maintain international
34-19 marketability; and
34-20 (3) in all events maintain the effectiveness of the
34-21 boll weevil or pink bollworm eradication program administered under
34-22 this subchapter.
34-23 (b) The board may not treat or require treatment of organic
34-24 cotton fields with chemicals that are not approved for use on
34-25 certified organic cotton. Plow-up may be required as an
35-1 alternative to chemicals. Rules [In the rules] adopted under
35-2 Subsection (a)[, the board] may provide indemnity for the organic
35-3 cotton growers [producers] for reasonable losses that result from a
35-4 prohibition of production of organic cotton or from any requirement
35-5 of destruction of organic cotton. If time is reasonably available
35-6 for the production of an economically feasible alternative crop,
35-7 the board may require mitigation of losses with the production of
35-8 an alternative crop.
35-9 SECTION 1.24. Subsection (c), Section 74.126, Agriculture
35-10 Code, is amended to read as follows:
35-11 (c) If the commissioner [or the foundation] determines that
35-12 a violation of this subchapter or a rule adopted under this
35-13 subchapter has occurred, the commissioner [or the foundation] may
35-14 request that the attorney general or the county or district
35-15 attorney of the county in which the alleged violation occurred or
35-16 is occurring file suit for civil, injunctive, and/or other
35-17 appropriate relief.
35-18 SECTION 1.25. Subchapter D, Chapter 74, Agriculture Code, is
35-19 amended by adding Sections 74.128, 74.129, and 74.130 to read as
35-20 follows:
35-21 Sec. 74.128. ANNUAL REPORT. The board shall issue to the
35-22 commissioner and the appropriate oversight committee in the house
35-23 of representatives an annual report detailing its efforts to carry
35-24 out the purposes of this subchapter.
35-25 Sec. 74.129. EXEMPTION FROM LAWSUITS, LIABILITY, TAXATION,
36-1 AND LEGAL PROCESS. The legislature recognizes that the foundation,
36-2 acting under the supervision and control of the commissioner, is
36-3 carrying out an important governmental function and that therefore
36-4 the foundation, as a quasi-governmental entity, must be immune from
36-5 lawsuits and liability except to the extent provided in Chapter
36-6 101, Civil Practice and Remedies Code, and as provided by this
36-7 section. Therefore, no claims may be brought or continued against
36-8 the foundation except: (1) claims allowed by Chapter 101, Civil
36-9 Practice and Remedies Code; and (2) claims pending against the
36-10 foundation on April 30, 1997, plus attorney's fees and costs of
36-11 court. With the exception of finally adjudicated claims arising
36-12 from Chapter 101, Civil Practice and Remedies Code, and claims for
36-13 assessments, attorney's fees, and costs of court paid by named
36-14 plaintiffs in lawsuits pending on or before April 30, 1997, all
36-15 payments, contributions, funds, and assessments received or held by
36-16 the foundation under this subchapter are exempt from garnishment,
36-17 attachment, execution, or other seizure and from state and local
36-18 taxation, levies, sales, and any other process and are
36-19 unassignable. Nothing in this section shall affect or impair any
36-20 existing or future indebtedness or any existing or future security
36-21 interest created under a note, security agreement, assignment, or
36-22 other loan agreement between the foundation and a lender or any
36-23 judgment, to the extent such judgment allows recovery against the
36-24 foundation pursuant to a note, security agreement, loan agreement,
36-25 or other document.
37-1 Sec. 74.130. USE OF BIO-INTENSIVE CONTROLS. (a) The
37-2 commissioner shall develop and adopt rules to allow a cotton grower
37-3 in an eradication program to use biological, botanical, or other
37-4 non-synthetic pest control methods. In developing the rules, the
37-5 commissioner shall consider:
37-6 (1) scientific studies and field trials of the
37-7 effectiveness of a proposed alternative control method;
37-8 (2) the feasibility of using a proposed alternative
37-9 control technique within a particular region;
37-10 (3) the degree of monitoring necessary to establish
37-11 the success of the use of a proposed alternative control; and
37-12 (4) methods to prevent the use of substances that
37-13 would impede the use of alternative controls and the promotion of
37-14 beneficial insect populations.
37-15 (b) A cotton grower that chooses to use an alternative
37-16 method of control as provided in Subsection (a) shall notify the
37-17 board. The board and the cotton grower shall coordinate their
37-18 actions to prevent the use of substances that would impede the use
37-19 of alternative controls and the promotion of beneficial insect
37-20 populations.
37-21 (c) The cotton grower shall pay any additional cost of
37-22 bio-intensive control in addition to any assessment.
37-23 SECTION 1.26. (a) All agreements made and obligations
37-24 incurred by the Texas Boll Weevil Eradication Foundation, Inc.,
37-25 before the effective date of this Act are validated, ratified, and
38-1 confirmed. The foundation's members, directors, officers,
38-2 employees, and agents are not individually liable for, or in
38-3 connection with, any agreement or obligation validated under this
38-4 section.
38-5 (b) Except for instances of gross negligence, individual
38-6 criminal actions, or acts of dishonesty, the foundation's members,
38-7 directors, officers, and employees are not individually liable to a
38-8 cotton grower or other person for errors in judgment, mistakes, or
38-9 other acts or omissions made or occurring before the effective date
38-10 of this Act under the authority of Subchapter D, Chapter 74,
38-11 Agriculture Code, as originally enacted or subsequently amended.
38-12 (c) This section does not make any obligation validated,
38-13 ratified, or confirmed under this section a debt of this state.
38-14 SECTION 1.27. (a) To the extent assessments have not been
38-15 previously validated, ratified, and confirmed, assessments approved
38-16 on February 28, 1994, for the Southern Rolling Plains Boll Weevil
38-17 Eradication Zone, on December 1, 1994, and August 2, 1996, for the
38-18 Central Rolling Plains Boll Weevil Eradication Zone, and on
38-19 February 16, 1995, for the South Texas/Winter Garden Boll Weevil
38-20 Eradication Zone, and all agreements and obligations of the
38-21 foundation related to the statutory zones made or approved before
38-22 the effective date of this Act are validated, ratified, and
38-23 confirmed and shall continue under this subsection. In any
38-24 eradication zone existing prior to the effective date of this Act,
38-25 other than zones named in this subsection, assessments are
39-1 validated, ratified, and confirmed only as to amounts actually
39-2 collected by the Texas Boll Weevil Eradication Foundation, Inc.,
39-3 prior to the effective date of this Act. For purposes of this
39-4 subsection, any assessments in any such pre-existing zone which
39-5 have been deposited in the registry of a court of this state on or
39-6 before April 30, 1997, or paid by named plaintiffs in a pleading
39-7 filed on or before April 30, 1997, in lawsuits against the
39-8 foundation are not assessments actually collected by the
39-9 foundation.
39-10 (b) Not later than October 20, 1997, the commissioner of
39-11 agriculture shall hold a retention referendum and board election in
39-12 the South Texas Winter Garden Eradication Zone to determine the
39-13 continued necessity of an eradication program under Section 74.114,
39-14 Agriculture Code, as amended by this Act. The retention referendum
39-15 will be determined by a vote of the majority of the cotton growers
39-16 voting in the retention referendum. Only a diapause program may be
39-17 carried out until that time.
39-18 (c) Not later than one year after the effective date of this
39-19 Act, the commissioner of agriculture shall hold a retention
39-20 referendum and board election in the Southern Rolling Plains
39-21 Eradication Zone and the Rolling Plains Central Eradication Zone to
39-22 determine the continued necessity of an eradication program under
39-23 Section 74.114, Agriculture Code, as amended by this Act. The
39-24 retention referendum will be determined by a vote of the majority
39-25 of the cotton growers voting in the retention referendum.
40-1 (d) The commissioner of agriculture may, in each statutory
40-2 zone, solicit public comment through public hearings to determine
40-3 whether to divide any of the statutory zones as defined in Section
40-4 74.1021, Agriculture Code, as added by this Act. After considering
40-5 public opinion, the commissioner may by rule divide a statutory
40-6 zone and fairly apportion any debt to each portion of the divided
40-7 zone.
40-8 (e) The commissioner of agriculture shall conduct an
40-9 eradication referendum under Section 74.114, Agriculture Code, as
40-10 amended by this Act in the Southern High Plains-Caprock Eradication
40-11 Zone not later than August 1, 1997. The commissioner shall comply
40-12 with the notice requirements of Subchapter D, Chapter 74,
40-13 Agriculture Code, as amended by this Act, and other law, to the
40-14 extent reasonable to conduct the eradication referendum required
40-15 under this subsection. In the event the initial referendum
40-16 required by this subsection is unsuccessful, the commissioner may
40-17 also hold one referendum under Section 74.114, Agriculture Code, as
40-18 amended by this Act, in the Southern High Plains-Caprock
40-19 Eradication Zone during the 1998 calendar year, notwithstanding the
40-20 provisions of Subsection (e), Section 74.105, or Subsection (h),
40-21 Section 74.114, Agriculture Code.
40-22 (f) For purposes of Subsection (a), Section 74.114,
40-23 Agriculture Code, as amended by this Act, the four-year period in
40-24 which an eradication program has been operational begins on a date
40-25 after the effective date of this Act.
41-1 (g) Rules adopted before the effective date of this Act by
41-2 the commissioner of agriculture in accordance with Sections 74.114,
41-3 74.118, and 74.120, Agriculture Code, and published as Sections 3.1
41-4 through 3.6, 3.20 through 3.24, and 3.50 through 3.57, Chapter 3,
41-5 Title 4, Texas Administrative Code, are validated, ratified, and
41-6 confirmed on the effective date of this Act and shall continue in
41-7 effect to the extent the rules are consistent with this Act until
41-8 amended or repealed by the commissioner.
41-9 SECTION 1.28. The Texas Boll Weevil Eradication Foundation,
41-10 Inc., shall, not later than 30 days after the effective date of
41-11 this Act, take whatever steps are necessary to adjust the
41-12 composition of its board of directors to permit the commissioner of
41-13 agriculture to appoint board members in compliance with Section
41-14 74.107, Agriculture Code, as amended by this Act. If the
41-15 foundation does not comply with Section 74.107, Agriculture Code,
41-16 as amended by this Act, the commissioner may cancel the
41-17 designations and designate another nonprofit entity that meets the
41-18 qualifications of Section 74.107, Agriculture Code, as amended by
41-19 this Act. In the interim, the current directors and officers of
41-20 the foundation shall remain in office and carry out the
41-21 foundation's duties under Subchapter D, Chapter 74, Agriculture
41-22 Code, as amended by this Act.
41-23 SECTION 1.29. The commissioner of agriculture shall develop
41-24 and adopt rules regarding the use of bio-intensive controls as
41-25 required under Section 74.130, Agriculture Code, as added by this
42-1 Act, not later than September 1, 1998. An eradication program
42-2 continues as otherwise provided by Subchapter D, Chapter 74,
42-3 Agriculture Code, as amended by this Act, during the period before
42-4 initial rules are adopted under Section 74.130, Agriculture Code,
42-5 as added by this Act.
42-6 SECTION 1.30. Sections 74.103 and 74.104, Agriculture Code,
42-7 are repealed.
42-8 ARTICLE 2
42-9 SECTION 2.01. Subsections (b) and (c), Section 74.105,
42-10 Agriculture Code, are reenacted to read as follows:
42-11 (b) Eradication zone referenda shall be conducted under the
42-12 procedures provided by Section 74.114 of this code.
42-13 (c) A proposed eradication zone referendum ballot must
42-14 include or be accompanied by information about the proposed
42-15 eradication zone, including:
42-16 (1) a statement of the purpose of the boll weevil or
42-17 pink bollworm eradication program;
42-18 (2) the geographic area included in the proposed
42-19 eradication zone;
42-20 (3) a general summary of rules adopted by the
42-21 commissioner under Sections 74.114, 74.118, and 74.120 of this
42-22 code, including a description of:
42-23 (A) cotton grower responsibilities; and
42-24 (B) penalties for noncompliance with rules
42-25 adopted under this subchapter; and
43-1 (4) an address and toll-free telephone number that a
43-2 cotton grower may use to request more information about the
43-3 referendum or the boll weevil or pink bollworm eradication program.
43-4 SECTION 2.02. Subsections (b), (e), (f), and (g), Section
43-5 74.106, Agriculture Code, are reenacted to read as follows:
43-6 (b) A board election shall be conducted under the procedures
43-7 provided by this section and Section 74.114 of this code.
43-8 (e) On receipt of an application and verification that the
43-9 application meets the requirements of Subsection (d) of this
43-10 section, an applicant's name shall be placed on the ballot for the
43-11 board election.
43-12 (f) An eligible voter may vote for a cotton grower whose
43-13 name does not appear on the official ballot by writing that
43-14 person's name on the ballot.
43-15 (g) A board election must be preceded by at least 45 days
43-16 notice published in one or more newspapers published and
43-17 distributed in the proposed or established eradication zone. The
43-18 notice shall be published not less than once a week for three
43-19 consecutive weeks. Not later than the 45th day before the date of
43-20 the election, direct written notice of the election shall be given
43-21 to each county agent in the eradication zone.
43-22 SECTION 2.03. Subsections (b), (c), and (f), Section 74.109,
43-23 Agriculture Code, are reenacted to read as follows:
43-24 (b) Not later than the 45th day after the last day of the
43-25 fiscal year, the board shall submit to the commissioner a report
44-1 itemizing all income and expenditures and describing all activities
44-2 of the foundation during the fiscal year.
44-3 (c) The foundation shall provide fidelity bonds in amounts
44-4 determined by the board for employees or agents who handle funds
44-5 for the foundation.
44-6 (f) The foundation is a governmental unit under Section
44-7 101.001, Civil Practice and Remedies Code, and is entitled to
44-8 governmental immunity. A tort claim against the foundation must be
44-9 made under Chapter 101, Civil Practice and Remedies Code.
44-10 SECTION 2.04. Section 74.111, Agriculture Code, is reenacted
44-11 to read as follows:
44-12 Sec. 74.111. BOARD MEMBER COMPENSATION. Board members serve
44-13 without compensation but are entitled to reimbursement for
44-14 reasonable and necessary expenses incurred in the discharge of
44-15 their duties.
44-16 SECTION 2.05. Subsections (a) through (e), Section 74.112,
44-17 Agriculture Code, are reenacted to read as follows:
44-18 (a) On the determination by the foundation that the boll
44-19 weevil eradication program has been completed in all eradication
44-20 zones established under this subchapter for boll weevil control and
44-21 the pink bollworm eradication program has been completed in any
44-22 eradication zone established under this chapter for pink bollworm
44-23 control, the foundation shall provide notice of such completion to
44-24 the commissioner along with a request for discontinuance of the
44-25 eradication program and collection of the assessment. Any such
45-1 request shall include documentation supporting the eradication of
45-2 the boll weevil in all eradication zones established for boll
45-3 weevil eradication or pink bollworm in any eradication zone
45-4 established for pink bollworm eradication and a plan for
45-5 discontinuance of the program and assessment.
45-6 (b) The commissioner shall determine whether or not the
45-7 further elimination of the boll weevil or pink bollworm is
45-8 necessary in the eradication zones and approve or disapprove
45-9 discontinuance of the foundation and the plan for dissolution.
45-10 (c) On completion of dissolution, the foundation shall file
45-11 a final report with the commissioner, including a financial report,
45-12 and submit all remaining funds into the trust of the commissioner.
45-13 Final books of the foundation shall be filed with the commissioner
45-14 and are subject to audit by the department.
45-15 (d) The commissioner shall pay from the foundation's
45-16 remaining funds all of the foundation's outstanding obligations.
45-17 (e) Funds remaining after payment under Subsection (d) of
45-18 this section shall be returned to contributing cotton growers on a
45-19 pro rata basis.
45-20 SECTION 2.06. Subsections (b), (e), (g), and (j), Section
45-21 74.114, Agriculture Code, are reenacted to read as follows:
45-22 (b) The foundation shall bear all expenses incurred in
45-23 conducting a referendum or board election.
45-24 (e) An eligible cotton grower may vote only once in a
45-25 referendum or board election.
46-1 (g) A referendum is approved if:
46-2 (1) at least two-thirds of those voting vote in favor
46-3 of the referendum; or
46-4 (2) those voting in favor of the referendum farm more
46-5 than 50 percent, as determined by the commissioner, of the cotton
46-6 acreage in the relevant eradication zone.
46-7 (j) Individual voter information, including an individual's
46-8 vote in a referendum or board election conducted under this
46-9 section, is confidential and is not subject to disclosure under the
46-10 open records law, Chapter 552, Government Code.
46-11 SECTION 2.07. Section 74.118, Agriculture Code, is reenacted
46-12 to read as follows:
46-13 Sec. 74.118. AUTHORITY TO PROHIBIT PLANTING OF COTTON AND
46-14 REQUIRE PARTICIPATION IN ERADICATION PROGRAM. (a) The
46-15 commissioner may adopt reasonable rules regarding areas where
46-16 cotton may not be planted in an eradication zone if there is reason
46-17 to believe planting will jeopardize the success of the program or
46-18 present a hazard to public health or safety.
46-19 (b) The commissioner may adopt rules prohibiting the
46-20 planting of noncommercial cotton in eradication zones and requiring
46-21 that all growers of commercial cotton in an eradication zone
46-22 participate in a boll weevil or pink bollworm eradication program
46-23 that includes cost sharing as required by the rules.
46-24 (c) Notice of prohibitions and requirements shall be given
46-25 by publication for one day each week for three successive weeks in
47-1 a newspaper having general circulation in the affected area.
47-2 (d) The commissioner may adopt a reasonable schedule of
47-3 penalty fees to be assessed against growers in a designated
47-4 eradication zone who do not meet the requirements of the rules
47-5 issued by the commissioner relating to reporting of acreage and
47-6 participation in cost sharing. The penalty fees adopted may not
47-7 exceed $50 per acre.
47-8 (e) If a grower fails to meet the requirements of rules
47-9 adopted by the commissioner, the commissioner may order the
47-10 destruction of cotton not in compliance with the rules. Costs
47-11 incurred by the commissioner in the destruction of cotton may be
47-12 assessed against the grower.
47-13 SECTION 2.08. Section 74.119, Agriculture Code, is reenacted
47-14 to read as follows:
47-15 Sec. 74.119. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
47-16 COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The department
47-17 may destroy or treat volunteer or other noncommercial cotton and
47-18 establish procedures for the purchase and destruction of commercial
47-19 cotton in eradication zones if the department determines the action
47-20 is necessary to carry out the purposes of this subchapter. The
47-21 department is not liable to the owner or lessee for the destruction
47-22 of or injury to any cotton that was planted in an eradication zone
47-23 after publication of notice as provided by this subchapter. The
47-24 foundation is liable for the destruction of cotton if the cotton
47-25 was planted in an eradication zone before publication of the
48-1 notice.
48-2 SECTION 2.09. Subsection (a), Section 74.120, Agriculture
48-3 Code, is reenacted to read as follows:
48-4 (a) The commissioner shall adopt rules to protect
48-5 individuals, livestock, wildlife, and honeybee colonies on any
48-6 premises in an eradication zone on which cotton plants are being
48-7 grown that have been or are being treated to eradicate the boll
48-8 weevil or the pink bollworm.
48-9 SECTION 2.10. Section 74.122, Agriculture Code, is reenacted
48-10 to read as follows:
48-11 Sec. 74.122. QUARANTINE. The department may adopt rules
48-12 relating to quarantining areas of this state that are infested with
48-13 the boll weevil or the pink bollworm. The rules must address the
48-14 storage of regulated articles and the movement of regulated
48-15 articles into and out of a quarantined area. The department may
48-16 also adopt rules governing the movement of regulated articles from
48-17 other states into this state if the articles are known to be
48-18 infested with the boll weevil or the pink bollworm.
48-19 SECTION 2.11. Section 74.123, Agriculture Code, is reenacted
48-20 to read as follows:
48-21 Sec. 74.123. DOCUMENTING REGULATED ARTICLES. To implement
48-22 this subchapter, the department may issue or authorize issuance of:
48-23 (1) a certificate that indicates that a regulated
48-24 article is not infested with the boll weevil or the pink bollworm;
48-25 and
49-1 (2) a permit that provides for the movement of a
49-2 regulated article to a restricted designation for limited handling,
49-3 use, or processing.
49-4 SECTION 2.12. Subsection (b), Section 74.124, Agriculture
49-5 Code, is reenacted to read as follows:
49-6 (b) An agreement entered into under this section may provide
49-7 for cost sharing and for division of duties and responsibilities
49-8 under this subchapter and may include other provisions to carry out
49-9 the purposes of this subchapter.
49-10 SECTION 2.13. Subsections (a) and (b), Section 74.126,
49-11 Agriculture Code, are reenacted to read as follows:
49-12 (a) A person who violates this subchapter or a rule adopted
49-13 under this subchapter or who alters, forges, counterfeits, or uses
49-14 without authority a certificate, permit, or other document issued
49-15 under this subchapter or under a rule adopted under this subchapter
49-16 commits an offense.
49-17 (b) An offense under this section is a Class C misdemeanor.
49-18 SECTION 2.14. Section 74.127, Agriculture Code, is reenacted
49-19 to read as follows:
49-20 Sec. 74.127. SUNSET PROVISION. (a) The board is subject to
49-21 Chapter 325, Government Code (Texas Sunset Act). Unless continued
49-22 in existence as provided by that chapter, the board is abolished
49-23 and this subchapter expires September 1, 2004.
49-24 (b) The commissioner may order the dissolution of the
49-25 foundation at any time the commissioner determines that the
50-1 purposes of this subchapter have been fulfilled or that the
50-2 foundation is inoperative and abandoned. Dissolution shall be
50-3 conducted in accordance with Section 74.112 of this code.
50-4 (c) If the foundation is abolished or the program
50-5 discontinued for any reason, assessments approved, levied, or
50-6 otherwise collectible on the date of abolishment remain valid as
50-7 necessary to pay the financial obligations of the foundation.
50-8 ARTICLE 3
50-9 SECTION 3.01. The importance of this legislation and the
50-10 crowded condition of the calendars in both houses create an
50-11 emergency and an imperative public necessity that the
50-12 constitutional rule requiring bills to be read on three several
50-13 days in each house be suspended, and this rule is hereby suspended,
50-14 and that this Act take effect and be in force from and after its
50-15 passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1814 passed the Senate on
May 16, 1997, by the following vote: Yeas 30, Nays 0; and that the
Senate concurred in House amendments on May 29, 1997, by the
following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1814 passed the House, with
amendments, on May 27, 1997, by the following vote: Yeas 145,
Nays 0, one present not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor
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