AGRICULTURE CODE
CHAPTER 63. COMMERCIAL FERTILIZER
SUBCHAPTER A. GENERAL PROVISIONS
§ 63.001. DEFINITIONS. In this chapter:
(1) "Board" means the board of regents of The Texas A &
M University System.
(2) "Brand" means the term, design, trademark, or
other specific designation under which a commercial fertilizer is
distributed.
(3) "Bulk" means any lot of commercial fertilizer that
is not in a closed container at the time it passes to the possession
of the consumer and includes that fertilizer at any stage of
distribution.
(4) "Container" means a bag, box, carton, bottle,
object, barrel, package, apparatus, device, appliance, or other
item of any capacity into which a commercial fertilizer is packed,
poured, stored, or placed for handling, transporting, or
distributing.
(5) "Customer-formula fertilizer" means a mixture of
commercial fertilizers or fertilizer materials and other
agricultural products such as seed and pesticides, any part of
which is furnished by the person who processed, mixed, blended, or
prepared the mixture and which is formulated according to the
specific instructions of the purchaser.
(6) "Director" means the director of the Texas
Agricultural Experiment Station.
(7) "Distribute" means sell, offer for sale, expose
for sale, consign for sale, barter, exchange, transfer possession
or title, or otherwise supply.
(8) "Fertilizer material" means a solid or nonsolid
substance or compound that contains an essential plant nutrient
element in a form available to plants and is used primarily for its
essential plant nutrient element content in promoting or
stimulating growth of a plant or improving the quality of a crop or
for compounding a mixed fertilizer. The term does not include the
excreta of an animal, plant remains, or a mixture of those
substances, for which no claim of essential plant nutrients is
made.
(9) "Grade" means the percentages stated in whole
numbers of total nitrogen, available phosphoric acid (P2O5), and
soluble potash (K2O) guaranteed in a fertilizer.
(10) "Label" means a display of written, printed, or
graphic matter on or affixed to a container or on an invoice or
delivery slip.
(11) "Mixed fertilizer" means a solid or nonsolid
product that results from the combination, mixture, or simultaneous
application of two or more fertilizer materials by a manufacturer,
processor, mixer, or contractor. The term may include a specialty
fertilizer or manipulated manure, but does not include the excreta
of an animal, plant remains, or a mixture of those substances, for
which no claim of essential plant nutrients is made.
(12) "Manipulated manure" means a substance composed
of the excreta of an animal, plant remains, or a mixture of those
substances, for which a claim of essential plant nutrients is made.
(13) "Official sample" means a sample taken by the
service and designated as official by the service.
(14) "Registrant" means a person who registers a
commercial fertilizer under this chapter.
(15) "Service" means the Texas Feed and Fertilizer
Control Service.
(16) "Specialty fertilizer" means a fertilizer
distributed primarily for nonfarm use, including use on or in home
gardens, lawns, shrubbery, flowers, golf courses, municipal parks,
cemeteries, greenhouses, or nurseries. The term does not include
the excreta of an animal, plant remains, or a mixture of those
substances, for which no claim of essential plant nutrients is
made.
(17) "Ton" means a net weight of 2,000 pounds
avoirdupois or 1,000 kilograms metric.
(18) "Weight" means the net weight of a container of
commercial fertilizer expressed in either the avoirdupois or metric
system.
Acts 1981, 67th Leg., p. 1140, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
§ 63.002. COMMERCIAL FERTILIZER. (a) Except as
otherwise provided by this section, a substance is a commercial
fertilizer subject to this chapter if it is:
(1) a fertilizer material;
(2) a mixed fertilizer;
(3) a customer-formula fertilizer; or
(4) another substance, material, or element,
including a pesticide, that is intended for use or is used as an
ingredient or component of a mixture of materials that is used,
designed or represented for use, or claimed to have value, in
promoting plant growth.
(b) Unprocessed, unpackaged, or unmanipulated lime,
limestone, marl, or gypsum is not a commercial fertilizer subject
to this chapter.
(c) The excreta of an animal, plant remains, or mixtures of
those substances, are not commercial fertilizers subject to this
chapter if no claim of essential plant nutrients is made.
(d) A plant food element or additive other than nitrogen,
phosphorus, or potassium, determinable by an acceptable laboratory
method, may be incorporated into a commercial fertilizer and
guaranteed only if, and in the manner, authorized by rule of the
director. Any additional plant food element or additive is subject
to the inspection, analysis, and other provisions of this chapter.
Acts 1981, 67th Leg., p. 1141, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
§ 63.003. ADMINISTRATION. (a) The Texas Feed and
Fertilizer Control Service is under the direction of the director
of the Texas Agricultural Experiment Station, who is responsible
for exercising the powers and performing the duties assigned to the
service by this chapter.
(b) The service may employ personnel necessary to perform
its duties.
(c) The director may appoint a state chemist whose
responsibilities may include the making of chemical analyses and
tests required by this chapter.
Acts 1981, 67th Leg., p. 1142, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
§ 63.004. RULES; STANDARDS. Following a public
hearing, the service may adopt rules relating to the distribution
of commercial fertilizers that the service finds necessary to carry
into full effect the intent and meaning of this chapter including
rules defining and establishing standards for commercial
fertilizer. To the extent practicable, rules that define and
establish standards for commercial fertilizer shall be in harmony
with the official standards of the Association of American Plant
Food Control Officials.
Acts 1981, 67th Leg., p. 1142, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
§ 63.005. PUBLICATIONS. (a) At least annually, the
service shall publish:
(1) information concerning the sales of commercial
fertilizers, together with data on those sales that the service
considers advisable;
(2) the results of the analyses of official samples of
commercial fertilizers sold within the state as compared to the
guaranteed analyses of those fertilizers;
(3) a financial statement showing the receipt and
expenditure of funds under this chapter; and
(4) other information relating to fertilizer as the
service considers necessary or desirable to the public interest.
(b) The service shall prescribe the form of a publication
required under this section.
(c) The report on sales of commercial fertilizers shall
separately show information concerning the sales for the fall and
spring seasons.
(d) A publication under this section may not disclose the
scope of operations of any person.
Acts 1981, 67th Leg., p. 1142, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
§ 63.006. APPLICATION. (a) This chapter does not
apply to, restrict, or void the sale of a commercial fertilizer by
an importer, manufacturer, or manipulator to an importer,
manufacturer, or manipulator who mixes fertilizers for
distribution. This chapter does not prevent the free and
unrestricted shipment of a commercial fertilizer to a manufacturer
or manipulator who has registered the brand name as required by this
chapter.
(b) This chapter does not apply to the mixing, milling, or
processing of a material produced by a purchaser of commercial
fertilizer or acquired by the purchaser from a source other than the
person who mixed or processed the material.
Acts 1981, 67th Leg., p. 1142, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1837, ch. 349, art. 1, § 1,
eff. Sept. 1, 1983.
SUBCHAPTER B. GRADES
§ 63.021. GRADE STATEMENTS. Any statement of the grade
of a commercial fertilizer shall be stated in whole numbers in the
following order:
(1) total nitrogen;
(2) available phosphoric acid; and
(3) soluble potash.
Acts 1981, 67th Leg., p. 1143, ch. 388, § 1, eff. Sept. 1, 1981.
SUBCHAPTER C. PERMIT AND REGISTRATION
§ 63.031. PERMIT AND REGISTRATION REQUIRED. (a) A
person may not manufacture or distribute a commercial fertilizer in
this state without a valid current permit issued by the service, and
a person may not manufacture or distribute a commercial fertilizer
in this state, other than customer-formula fertilizer, unless the
person first registers the fertilizer with the service.
(b) An application for a permit or registration shall be
submitted on a form prescribed by the service.
(c) Registration is required for each distinct mixture,
formulation, or type of commercial fertilizer manufactured or
distributed in this state.
(d) A person is not required to register a commercial
fertilizer that has been registered by another person.
Acts 1981, 67th Leg., p. 1143, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1, § 2,
eff. Sept. 1, 1983.
§ 63.032. APPLICATION FOR REGISTRATION. (a) Each
application for registration of a commercial fertilizer shall
include the following information relating to the fertilizer:
(1) the name and principal address of the person
responsible for manufacture and distribution;
(2) the brand or the name under which the fertilizer is
to be distributed; and
(3) other information that the service may by rule
require.
(b) The service may prescribe and furnish forms for
registration of commercial fertilizers under this chapter. The
service shall provide a registrant with a copy of the approved
registration.
Acts 1981, 67th Leg., p. 1143, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1, § 2,
eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 498, § 1, eff. June
20, 2003.
§ 63.033. TERM OF PERMIT AND REGISTRATION. A permit or
registration issued under this chapter is permanent unless:
(1) the service revokes, suspends, annuls, or amends
the permit or registration;
(2) the permittee or registrant withdraws or cancels
the permit or registration; or
(3) the service requires a new permit or new
registration.
Acts 1981, 67th Leg., p. 1143, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1, § 2,
eff. Sept. 1, 1983.
§ 63.034. REFUSAL OR REVOCATION OF PERMIT. Following
notice and a hearing, the service may revoke, suspend, annul, or
amend an existing permit or may refuse to issue a permit if it finds
that the permittee or applicant has:
(1) been convicted of a crime for which a permit may be
revoked, suspended, annulled, amended, or refused under Chapter 53,
Occupations Code;
(2) refused or after notice failed to comply with this
chapter and rules adopted under this chapter; or
(3) used fraudulent or deceptive practices in
attempting evasion of this chapter or a rule adopted under this
chapter.
Acts 1981, 67th Leg., p. 1144, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1, § 2,
eff. Sept. 1, 1983; Acts 2001, 77th Leg., ch. 1420, § 14.721,
eff. Sept. 1, 2001.
§ 63.035. REFUSAL OR REVOCATION OF
REGISTRATION. Following notice and a hearing, the service may
revoke, suspend, annul, or amend an existing registration of or may
refuse a registration to a commercial fertilizer if the service
finds that:
(1) the commercial fertilizer:
(A) is not in compliance with this chapter or a
rule adopted under this chapter; or
(B) contains a pesticide as defined by Chapter 76
of this code that has not been registered in accordance with that
chapter; or
(2) the registrant or applicant has:
(A) been convicted of a crime for which
registration may be revoked, suspended, annulled, amended, or
refused under Chapter 53, Occupations Code;
(B) refused or after notice failed to comply with
this chapter and rules adopted under this chapter; or
(C) used fraudulent or deceptive practices in
attempted evasion of this chapter or a rule adopted under this
chapter.
Acts 1981, 67th Leg., p. 1144, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1842, ch. 349, art. 1, § 2,
eff. Sept. 1, 1983; Acts 2001, 77th Leg., ch. 1420, § 14.722,
eff. Sept. 1, 2001.
SUBCHAPTER D. LABELING
§ 63.051. LABELING OF COMMERCIAL
FERTILIZER. (a) Except as provided by Subsection (d) of this
section, each container of commercial fertilizer distributed in
this state, other than customer-formula fertilizer, must have a
label with the following information:
(1) the name and principal address of the person
responsible for manufacture and distribution;
(2) the brand, grade, and name under which the
fertilizer is to be distributed;
(3) the net weight of the fertilizer in the container;
(4) the guaranteed analysis of the plant nutrients in
the fertilizer, listing the minimum percentages of primary,
secondary, and micro plant nutrients, and other additives, in
accordance with rules of the service; and
(5) other information that the service may by rule
prescribe.
(b) The guaranteed analysis of any unacidulated mineral
phosphatic materials and basic slag shall guarantee both the total
and available phosphoric acid and the degree of fineness. The
guaranteed analysis of bone, tankage, and other organic phosphate
materials shall guarantee the total phosphoric acid. All materials
included in the guaranteed analysis are subject to inspection and
determination by laboratory procedures in accordance with rules of
the service.
(c) The manufacturer or other person distributing packaged
commercial fertilizer shall affix the label required by this
section to the container of fertilizer or cause it to be printed on
the side of the container in the manner prescribed by the service.
The label information must be grouped together and plainly printed
in English in the size or of type prescribed by the service.
(d) The manufacturer or other person distributing
commercial fertilizer in bulk or in a container that holds an amount
exceeding 110 pounds dry weight or 55 gallons liquid shall at the
time of delivery furnish the purchaser with a written or printed
statement showing the information required by this section.
Acts 1981, 67th Leg., p. 1144, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1846, ch. 349, art. 1, § 3,
eff. Sept. 1, 1983.
§ 63.052. MISLEADING LABEL. The label of a commercial
fertilizer may not be misleading in any particular.
Acts 1981, 67th Leg., p. 1144, ch. 388, § 1, eff. Sept. 1, 1981.
§ 63.053. LABELING OF CUSTOMER-FORMULA FERTILIZER. A
person distributing customer-formula fertilizer in this state
shall at the time of delivery furnish to the purchaser a label
showing:
(1) the name and address of the purchaser;
(2) the date of sale;
(3) the grade of the mixture;
(4) the guaranteed analysis of the plant nutrients and
other additives;
(5) the net weight of the fertilizer; and
(6) the name and address of the registrant.
Added by Acts 1983, 68th Leg., p. 1846, ch. 349, art. 1, § 3, eff.
Sept. 1, 1983.
§ 63.054. GENERAL LABEL RESTRICTIONS. Except as
authorized by this chapter or a rule of the service, the label of a
commercial fertilizer may not:
(1) advertise, name, promote, emphasize, or otherwise
direct attention to one or more components or ingredients in the
product unless the percentage and common name of the component or
ingredient is clearly and prominently declared; or
(2) contain the name of another manufacturer or person
or a product of another manufacturer or person.
Acts 1981, 67th Leg., p. 1144, ch. 388, § 1, eff. Sept. 1, 1980.
Renumbered from § 63.053 and amended by Acts 1983, 68th Leg., p.
1846, ch. 349, art. 1, § 3, eff. Sept. 1, 1983.
SUBCHAPTER E. FEES
§ 63.071. INSPECTION FEE. (a) For each state fiscal
year, the registrant of a commercial fertilizer shall pay to the
service an inspection fee as prescribed by this section.
(b) Except as otherwise provided by this section, the
inspection fee for a commercial fertilizer distributed in this
state is 30 cents per ton of fertilizer. With the approval of the
board, the director may reduce or increase the inspection fee in
increments of two cents per ton per fiscal year.
(c) A person distributing in this state a commercial
fertilizer product packaged in individual containers of five pounds
or less shall pay, for each distinct commercial fertilizer product
so distributed, a flat rate inspection fee of $50 for each fiscal
year or part of a fiscal year in which the distribution is made.
(d) A registrant paying an inspection fee under Subsection
(b) of this section shall pay in advance a minimum annual inspection
fee of $100 per fiscal year. All advance inspection fees collected
under this section shall be credited towards the first tonnage
inspection owed by the registrant accruing in that fiscal year.
(e) If more than one person is involved in the distribution
of a commercial fertilizer, the last person who distributes to a
dealer or consumer who is a nonregistrant shall pay the fee.
(f) A person is not required to pay an inspection fee on a
portion of a customer-formula fertilizer that is produced by the
purchaser or acquired by the purchaser from a source other than the
person who mixed, milled, or processed the mixture.
(g) The service may by rule provide that a person who
manufactures or distributes a commercial fertilizer solely for
investigational, experimental, or laboratory use by qualified
persons is not required to pay an inspection fee on the fertilizer
if the use is in the public interest.
(h) A person is not required to pay an inspection fee on
compost as defined by Section 361.421, Health and Safety Code.
Acts 1981, 67th Leg., p. 1145, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1, § 4,
eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 899, § 1.16, eff.
Aug. 30, 1993.
§ 63.072. TONNAGE REPORT AND INSPECTION FEE
PAYMENT. (a) The person responsible for paying a fertilizer
inspection fee shall file with the service a sworn report either
stating that no tonnage of commercial fertilizer was distributed
during the preceding reporting period or setting forth the tonnage
of all the commercial fertilizer that the person manufactured or
distributed in this state during the preceding reporting period.
The person shall file the report:
(1) quarterly if the total amount of inspection fees
in a year is $100 or more; or
(2) annually if the total amount of inspection fees in
a year is less than $100.
(b) Each tonnage report must be accompanied by payment of
the inspection fee due based on the tonnage reported for that
quarter or year, as applicable.
(c) A tonnage report and inspection fee payment is due:
(1) on or before the 31st day following the last day of
November, February, May, and August, for persons reporting
quarterly; and
(2) on or before the 31st day following the last day of
August, for persons reporting annually.
(d) The service may prescribe and furnish forms as necessary
under this section.
Acts 1981, 67th Leg., p. 1145, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1, § 4,
eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, § 1, eff.
Sept. 1, 2003.
§ 63.073. PENALTY FOR LATE FILING OR PAYMENT. (a) If a
person does not file a report or pay the inspection fee as required
by Section 63.072, the registrant shall pay a penalty equal to 15
percent of the inspection fee due or $50, whichever is greater.
(b) A penalty, together with the delinquent inspection fee,
is due before the 61st day following the last day of the quarter,
for quarterly reports, or of August, for annual reports. The
service shall cancel the registration of a registrant who fails to
pay the penalty and delinquent inspection fee within that time
period.
Acts 1981, 67th Leg., p. 1145, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1, § 4,
eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, § 2, eff.
Sept. 1, 2003.
§ 63.074. RECORDS; ADDITIONAL REPORTS;
AUDITS. (a) For the purpose of determining the accurate tonnage
of commercial fertilizers distributed in this state or identifying
or verifying tonnage reports, the service may require each
registrant to maintain records or file additional reports.
(b) The service is entitled to examine at reasonable times
the records maintained under this section.
(c) A registrant shall preserve and maintain in usable
condition all records required by this section and shall retain the
records for a period of at least two years. The service may require
a registrant to retain records for a period longer than two years if
the service determines it to be in the public interest.
(d) If a registrant is located outside this state, the
registrant shall maintain the records and information required by
this section in this state or pay all costs incurred in the auditing
of records at another location. The service shall promptly furnish
to the registrant an itemized statement of any costs incurred in an
out-of-state audit and the registrant shall pay the costs before
the 31st day following the date of the statement.
Acts 1981, 67th Leg., p. 1145, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1848, ch. 349, art. 1, § 4,
eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, § 3, eff.
Sept. 1, 2003.
§ 63.075. DISPOSITION AND USE OF FEES. (a) The service
shall deposit fees collected under this subchapter in the same
manner as other local institutional funds of The Texas A & M
University System. The fees shall be set apart as a special fund to
be known as the Texas fertilizer control fund.
(b) The Texas fertilizer control fund shall be used, with
the approval and consent of the board, for administering and
enforcing this chapter, including paying the cost of:
(1) salaries;
(2) equipment and facilities;
(3) registration;
(4) publication of bulletins and reports; and
(5) inspection, sampling, and analysis.
(c) Any fees collected under this subchapter that, in the
judgment of the board, are not needed for the proper and efficient
enforcement and administration of this chapter may, with approval
of the board, be used for research relative to the value of
commercial fertilizers.
Acts 1981, 67th Leg., p. 1146, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1850, ch. 349, art. 1, § 5,
eff. Sept. 1, 1983.
SUBCHAPTER F. INSPECTION, SAMPLING, AND ANALYSIS
§ 63.091. INSPECTION AND SAMPLING; ENTRY POWER. In
order to determine if commercial fertilizer is in compliance with
this chapter, the service is entitled to:
(1) enter during regular business hours and inspect
any place of business, mill, plant, building, or vehicle, and to
open any bin, vat, or parcel, that is used in the manufacture,
transportation, importation, sale, or storage of a commercial
fertilizer or is suspected of containing a commercial fertilizer;
and
(2) take samples from fertilizer found during that
inspection.
Acts 1981, 67th Leg., p. 1146, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1, § 6,
eff. Sept. 1, 1983.
§ 63.092. PROCEDURE FOR SAMPLING AND ANALYSIS. The
service by rule shall prescribe the procedures for sampling and
analysis of commercial fertilizers. The procedures must, to the
extent practicable, be in accordance with the official methods of
the Association of Official Analytical Chemists or other methods
that the service considers authentic by research and investigation.
Acts 1981, 67th Leg., p. 1146, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1, § 6,
eff. Sept. 1, 1983.
§ 63.093. IDENTIFICATION OF SAMPLE. (a) Each sample
taken shall be sealed with a label placed on the container of the
sample showing:
(1) the serial number of the sample;
(2) the date on which the sample was taken; and
(3) the signature of the person who took the sample.
(b) Each sample shall be sent to the service. In addition, a
report shall be sent to the service stating:
(1) the name or brand of commercial fertilizer
sampled;
(2) the serial number of the sample;
(3) the manufacturer or guarantor of the sample, if
known;
(4) the name of the person in possession of the lot
samples;
(5) the date and place of taking the sample; and
(6) the name of the person who took the sample.
(c) For the purpose of properly identifying a sample with
the lot sampled, the service is entitled to examine and copy any
invoice, transportation record, or other record pertaining to the
lot.
Acts 1981, 67th Leg., p. 1146, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1851, ch. 349, art. 1, § 7,
eff. Sept. 1, 1983.
§ 63.094. INDEPENDENT ANALYSIS OF SAMPLE. (a) If the
service finds through chemical analysis or other method that a
commercial fertilizer is in violation of a provision of this
chapter, the service shall notify the manufacturer or other person
who caused the fertilizer to be distributed. The notice must be in
writing and give full details of the findings of the service.
(b) After receiving a notice under Subsection (a) of this
section, the manufacturer or other person who caused the fertilizer
to be distributed may request that the service submit portions of
the sample analyzed to other chemists for independent analysis.
After receiving a request, the service shall submit two portions of
the sample analyzed to two qualified chemists selected by the
service. If requested, the service shall also submit one portion of
the sample to the person requesting independent analysis. A
request under this subsection must be filed with the service before
the 16th day following the day on which notice is given.
(c) Each of the chemists selected by the service under
Subsection (b) of this section shall analyze the portion of the
sample and certify findings to the service under oath. The findings
shall be prepared in duplicate and the service shall forward one
copy of each chemist's findings to the person who requested
independent analysis.
(d) The three chemical analyses obtained under this section
may be considered in determining whether a violation of this
chapter has occurred.
(e) Except as provided by this subsection, the person
requesting independent analysis under this section shall pay the
costs of the analysis. If as a result of the independent analysis
the service determines that a violation has not occurred, the
service shall pay the costs of the analysis.
Acts 1981, 67th Leg., p. 1147, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1852, ch. 349, art. 1, § 8,
eff. Sept. 1, 1983.
§ 63.095. TESTING OF SAMPLES ON REQUEST. In accordance
with the rules of the director, any person may submit a sample of a
commercial fertilizer to the director for analysis. The results of
the analysis shall be for informational purposes only, may not
identify the manufacturer, and may not be published.
Acts 1981, 67th Leg., p. 1147, ch. 388, § 1, eff. Sept. 1, 1981.
SUBCHAPTER G. ENFORCEMENT; REMEDIES
§ 63.121. STOP-SALE ORDER. (a) If the service has
reasonable cause to believe that a commercial fertilizer is being
distributed in violation of a provision of this chapter, the
service shall affix to the container of the fertilizer a written
notice containing:
(1) an order to stop the sale of the fertilizer; and
(2) a warning to all persons not to dispose of the
fertilizer in any manner until the service or a court gives
permission or until the stop-sale order expires.
(b) If the service finds that a commercial fertilizer is in
compliance with this chapter, the service shall immediately remove
the stop-sale order.
(c) A stop-sale order expires at the end of the 30th day
following the day on which it was affixed unless, prior to that
time, the service has instituted proceedings under Section 63.122
of this code to condemn the fertilizer.
Acts 1981, 67th Leg., p. 1147, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, § 9,
eff. Sept. 1, 1983; Acts 2003, 78th Leg., ch. 682, § 4, eff.
Sept. 1, 2003.
§ 63.122. CONDEMNATION OF FERTILIZER. (a) If, after
examination and analysis, the service finds that a commercial
fertilizer is in violation of a provision of this chapter, the
service shall petition the district or county court in whose
jurisdiction the fertilizer is located for an order for the
condemnation and confiscation of the fertilizer. If the court
determines that the fertilizer is in violation of this chapter, the
fertilizer shall be disposed of by sale or destruction in
accordance with the order of the court.
(b) If a condemned commercial fertilizer is sold under
Subsection (a) of this section, the proceeds of the sale, less court
costs and charges, shall be paid into the state treasury.
(c) If the court finds that a violation of this chapter may
be corrected by proper processing or labeling, the court may order
that the fertilizer be delivered to the registrant for processing
or labeling under the supervision of the service. Before entering
that order, the court shall:
(1) enter the decree;
(2) require that all costs, fees, and expenses be
paid; and
(3) require the registrant to post good and sufficient
bond conditioned on the proper labeling and processing of the
fertilizer.
(d) The registrant of the fertilizer shall pay all costs
incurred by the service in the supervision of labeling or
processing under Subsection (c) of this section. The court shall
return the bond to the registrant when the service notifies the
court that the commercial fertilizer is no longer in violation of
this chapter and that the registrant has paid the expenses of
supervision.
Acts 1981, 67th Leg., p. 1148, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, § 9,
eff. Sept. 1, 1983.
§ 63.123. WARNINGS. If the service determines that a
violation of this chapter is of a minor nature and that the public
interest will be served and protected by the issuance of a written
warning, the service may issue the warning instead of proceeding to
condemn the fertilizer, report the violation for prosecution, or
take other administrative action.
Acts 1981, 67th Leg., p. 1148, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, § 9,
eff. Sept. 1, 1983.
§ 63.124. INJUNCTION. (a) The service may sue in the
name of the director to enjoin a violation of this chapter.
(b) The service may request a prosecuting attorney or the
attorney general to sue to enjoin a violation or threatened
violation of this chapter.
Amended by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, § 9,
eff. Sept. 1, 1983.
§ 63.125. SUIT TO RECOVER FEES. The service may sue to
recover an inspection fee or penalty due under Subchapter E of this
chapter. Venue for a suit under this section is in Brazos County.
Acts 1981, 67th Leg., p. 1148, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 63.124 and amended by Acts 1983, 68th Leg., p.
1853, ch. 349, art. 1, § 9, eff. Sept. 1, 1983.
§ 63.126. PROSECUTIONS. Each district attorney,
criminal district attorney, or county attorney to whom the service
reports a violation of this chapter shall cause appropriate
proceedings to be instituted and prosecuted in the proper court
without delay in the manner provided by law.
Acts 1981, 67th Leg., p. 1148, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 63.125 and amended by Acts 1983, 68th Leg., p.
1853, ch. 349, art. 1, § 9, eff. Sept. 1, 1983.
§ 63.127. VENUE FOR CIVIL AND CRIMINAL ACTIONS. Except
as provided by Section 63.125 of this chapter, venue for a civil
action or criminal prosecution under this chapter is in the county
in which the commercial fertilizer is located at the time the
alleged violation is discovered by or made known to the service.
Added by Acts 1983, 68th Leg., p. 1853, ch. 349, art. 1, § 9, eff.
Sept. 1, 1983.
§ 63.128. APPEAL OF ADMINISTRATIVE ORDER OR
RULING. (a) A person at interest who is aggrieved by an order or
ruling of the service may appeal the order or ruling in the manner
provided for contested cases under Chapter 2001, Government Code.
(b) Appeal under this section is by trial de novo.
Acts 1981, 67th Leg., p. 1148, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 63.126 and amended by Acts 1983, 68th Leg., p.
1853, ch. 349, art. 1, § 9, eff. Sept. 1, 1983. Amended by Acts
1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
SUBCHAPTER H. PENALTIES
§ 63.141. GENERAL PENALTY. (a) A person commits an
offense if the person violates a provision of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously committed an
offense under this subchapter, in which event it is a Class B
misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, § 10,
eff. Sept. 1, 1983.
§ 63.142. DISTRIBUTION OF MISBRANDED
FERTILIZER. (a) A person commits an offense if the person
distributes, conspires to distribute, or causes another person to
distribute commercial fertilizer that:
(1) carries a false or misleading statement on,
attached to, or accompanying the container;
(2) makes a false or misleading statement concerning
its agricultural value on the container or in any advertising
matter accompanying or associated with it;
(3) is of a composition, quantity, or quality that is
below or is different from that which it is represented to be on its
label;
(4) has a container that is made, formed, or filled in
a manner that is misleading; or
(5) purports to be or is represented as a commercial
fertilizer for which a definition of identity and a standard have
been prescribed by rule, but does not conform to the definition or
standard.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has been previously convicted of
an offense under this subchapter, in which event it is a Class B
misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, § 10,
eff. Sept. 1, 1983.
§ 63.143. DISTRIBUTION OF ADULTERATED
FERTILIZER. (a) A person commits an offense if the person
distributes, conspires to distribute, or causes another person to
distribute a commercial fertilizer that:
(1) has been damaged in a manner that reduces its
value;
(2) has damage or an inferiority that has been
concealed;
(3) has added to it a substance that increases its bulk
or weight, reduces its quality or strength, or makes it appear
better or of greater value than it is;
(4) has had an ingredient omitted or extracted, in
whole or in part; or
(5) contains or bears a poisonous or deleterious
substance that may render it injurious to plants under ordinary
conditions of use.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted of
an offense under this subchapter, in which event it is a Class B
misdemeanor.
Acts 1981, 67th Leg., p. 1149, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, § 10,
eff. Sept. 1, 1983.
§ 63.144. DISTRIBUTION OF COMMERCIAL FERTILIZER WITHOUT
REGISTRATION, LABELING, OR PAYMENT OF INSPECTION FEE. (a) A
person commits an offense if the person distributes, conspires to
distribute, or causes another person to distribute commercial
fertilizer:
(1) that is required to be registered but is not
registered in accordance with Subchapter C of this chapter;
(2) that is not labeled in accordance with Subchapter
D of this chapter; or
(3) for which an inspection fee has not been paid in
accordance with Subchapter E of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted of
an offense under this subchapter, in which event it is a Class B
misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, art. 1, ch. 349, § 10,
eff. Sept. 1, 1983.
§ 63.145. REFUSAL OF INSPECTION OR SAMPLING. (a) A
person commits an offense if the person refuses, conspires to
refuse, or causes another person to refuse to permit entry,
inspection, sampling, or the examination and copying of invoices or
transportation records under Subchapter F of this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted of
an offense under this subchapter, in which event it is a Class B
misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, § 10,
eff. Sept. 1, 1983.
§ 63.146. REFUSAL TO PAY INSPECTION FEE OR SUBMIT
RECORDS. (a) A person commits an offense if the person refuses,
conspires to refuse, or causes another person to refuse to make
records available, furnish reports, permit the examination of
records, or pay an inspection fee in accordance with Subchapter E of
this chapter.
(b) An offense under this section is a Class C misdemeanor
unless it is shown that the person has previously been convicted of
an offense under this subchapter, in which event it is a Class B
misdemeanor.
Added by Acts 1983, 68th Leg., p. 1856, ch. 349, art. 1, § 10,
eff. Sept. 1, 1983.
