AGRICULTURE CODE
CHAPTER 74. COTTON DISEASES AND PESTS
SUBCHAPTER A. COTTON PEST CONTROL
§ 74.001. PUBLIC NUISANCE. The legislature finds that
cotton pests are a menace to the cotton industry, and that control
of those pests is a public necessity. Any portion of the state that
is susceptible to infestation by cotton pests must be protected
from this public nuisance and threat to the continued stability of
the cotton industry.
Acts 1981, 67th Leg., p. 1173, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987; Acts 1995, 74th Leg., ch. 957, § 1, eff. June 16, 1995.
§ 74.002. DEFINITIONS. In this subchapter:
(1) "Cotton" includes the cotton plant, cotton in the
boll, cotton stalk, and all cotton products, including seed cotton,
cottonseed, and cotton hulls, but not including cotton oil or
cotton meal.
(2) "Cotton pest" includes the boll weevil and the
pink bollworm.
(3) "Host plant" means a plant susceptible to
infestation by the boll weevil, pink bollworm, or any other cotton
pest.
(4) "Boll weevil" means the insect Anthonomus grandis
Boheman, in any stage of development, including the egg, larval,
pupal, and adult stages.
(5) "Okra" includes okra stalks.
(6) "Pest management zone" means a geographical zone
established by the department under this chapter for purposes of
cotton pest control and prevention.
(7) "Pink bollworm" means the insect Pectinophora
gossypiella, Saunders, in any stage of development, including the
egg, larval, pupal, and adult stages.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987; Acts 1995, 74th Leg., ch. 957, § 2, eff. June 16, 1995.
§ 74.003. ESTABLISHMENT OF PEST MANAGEMENT
ZONES. (a) Any producer organization authorized under the laws
of this state or recognized under department rules and representing
cotton producers may petition the commissioner for certification to
establish a pest management zone. A pest management zone may
include all or part of one or more counties.
(b) Within 15 days following the day on which a petition for
certification is received, the commissioner shall determine
whether or not to grant certification.
(c) If the commissioner determines that, on the basis of
information submitted, the petitioning organization is
representative of cotton producers within the boundaries described
in the petition and that the petition conforms to the purposes and
provisions of this subchapter, the commissioner shall certify that
the organization is representative of the producers of the
commodity within the described area and is authorized to establish
a pest management zone.
(d) An administrative committee shall govern each pest
management zone. The committee consists of a representative of the
department and of cotton producers who represent the counties in
the zone and who are appointed by the commissioner. Each county in
the zone must be represented by a producer on the committee. The
committee shall:
(1) make recommendations to the department regarding
control of cotton pests in the zone, including recommendations on
regulations needed to control and prevent cotton pest infestation;
(2) make recommendations on any legislative changes
that are needed; and
(3) give advice and counsel to the department
regarding effective enforcement of this subchapter within the zone.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987; Acts 1995, 74th Leg., ch. 957, § 3, eff. June 16, 1995.
§ 74.004. DESTRUCTION OF HOST PLANTS. (a) On petition
of the administrative committee of a pest management zone, the
department may establish regulated areas, dates, and appropriate
methods of destruction of stalks, other parts, and products of host
plants for cotton pests, including requirements for destruction of
foliage, fruiting structures, and root systems of host plants after
the harvest deadline.
(b) If on inspection of a field after the harvest deadline,
the department determines that host plants or any parts or products
of host plants have not been destroyed within the time specified by
regulation of the department, the department may declare the field
to be a public nuisance.
(c) On the declaration of a field as a public nuisance, the
department may take any action necessary to complete destruction of
host plants or host plant products or parts to prevent the spread of
cotton pests from the infested area and shall:
(1) immediately give written notice to any farm owner
and to the operator in charge of the field that the field is in
violation of this section, instructing the owner and operator to
destroy host plants or host plant products or parts within seven
days after the date written notice is issued;
(2) post for a period of three consecutive days a copy
of the notice on or in the immediate vicinity of the field in
violation, if either the owner or operator of the field cannot be
located after a reasonably diligent effort by the department; and
(3) have the host plants or host plant products or
parts destroyed, if no response is received by the department from
either the owner or operator within four days after the date of
posting of the notice at the field or if the department considers a
response inadequate.
(d) If adverse weather conditions or other good cause
exists, the commissioner may, on written request by a farm owner or
operator, grant an extension of the date of implementation of
appropriate host plant or host plant product or part destruction.
(e) If it becomes necessary for the department to contract
with someone to destroy host plants or host plant products or parts,
the farm owner or operator shall reimburse the department for 1-1/2
times the actual costs required for destruction.
(f) If neither the farm owner nor operator reimburses the
department as provided by Subsection (e) of this section within 30
days after the date of the completion of department action and
issuance by the department of a bill requesting payment, the
department may place a lien against the property on which a
violation of a department regulation under this section has
occurred.
(g) The department may perfect the lien by filing the lien,
a sworn statement of the indebtedness, and a description of the
property subject to the lien with the county clerk of the county in
which the property is located. The lien must be filed within a
30-day period following the expiration of the 30-day period
described in Subsection (f) of this section. Within 180 days after
the date of filing the lien, the department may file suit in a court
of competent jurisdiction for collection of the account and
foreclosure of the lien. Neither the department nor any person to
whom the account is assigned may be required to post a cost bond in
the suit. The court shall enter judgment for the debt with interest
and costs of suit and foreclosing the lien on premises as the court
determines necessary for the defraying of expenses, court costs,
and the fees owed.
(h) All reimbursements and additional costs collected under
this section shall be deposited in the State Treasury in a special
fund to be appropriated to the department to carry out this
subchapter.
(i) Reimbursement under Subsection (e) of this section does
not prevent the department from seeking criminal or civil sanctions
under this subchapter.
(j) In this section, "harvest deadline" means a deadline set
by the department for harvesting a certain crop or, in the absence
of a department deadline, the 31st day after the date by which the
crop is customarily harvested in the region, as determined by the
department.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 230, § 71, eff. Sept. 1, 1989;
Acts 1993, 73rd Leg., ch. 847, § 1, eff. Aug. 30, 1993; Acts
1995, 74th Leg., ch. 957, § 4, eff. June 16, 1995.
§ 74.0041. REGULATION OF PLANTING DATES. On petition of
the administrative committee of a pest management zone, the
department may establish uniform planting dates for host plants.
Added by Acts 1993, 73rd Leg., ch. 847, § 2, eff. Aug. 30, 1993.
§ 74.005. ENTRY POWER; INSPECTIONS. For the purpose of
enforcing this chapter, the department is entitled to:
(1) enter any field of host plants or any premises in
which a host plant or its product is stored or held;
(2) examine any product, container, or substance
susceptible to cotton pest infestation; and
(3) examine the records of a purchaser, handler, or
common carrier of host plant products.
Added by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 957, § 5, eff. June 16,
1995.
§ 74.006. RULES. The department may adopt rules as are
necessary for the efficient enforcement and administration of this
subchapter.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987.
§ 74.007. OFFENSES; PENALTY. (a) A person commits an
offense if the person:
(1) violates a proclamation or a rule or restriction
adopted under this subchapter;
(2) brings into this state any equipment or material
contaminated with cotton pests; or
(3) fails to comply with a rule adopted for the control
and direction of host plant growing.
(b) An offense under this section is a Class B misdemeanor.
Amended by Acts 1987, 70th Leg., ch. 691, § 1, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 230, § 72, eff. Sept. 1, 1989;
Acts 1995, 74th Leg., ch. 957, § 6, eff. June 16, 1995.
§ 74.008. CIVIL PENALTY; INJUNCTION. (a) A person who
violates this subchapter or a rule adopted under this subchapter is
liable to the state for a civil penalty of not less than $250 nor
more than $10,000 for each violation. Each day a violation
continues may be considered a separate violation for purposes of a
civil penalty assessment.
(b) On request of the department, the attorney general or
the county attorney or district attorney of the county in which the
violation is alleged to have occurred shall file suit to collect the
penalty.
(c) A civil penalty collected under this section shall be
deposited in the state treasury to the credit of the General Revenue
Fund. All civil penalties recovered in suits first instituted by a
local government or governments under this section shall be equally
divided between the State of Texas and the local government or
governments with 50 percent of the recovery to be paid to the
General Revenue Fund and the other 50 percent equally to the local
government or governments first instituting the suit.
(d) The department is entitled to appropriate injunctive
relief to prevent or abate a violation of this subchapter or a rule
adopted under this subchapter. On request of the department, the
attorney general or the county or district attorney of the county in
which the alleged violation is threatened or is occurring shall
file suit for the injunctive relief. Venue is in the county in
which the alleged violation is threatened or is occurring.
Added by Acts 1989, 71st Leg., ch. 230, § 73, eff. Sept. 1, 1989.
§ 74.009. COTTON PEST CONTROL AND ERADICATION
POLICY. The state shall employ all constitutional methods to
control and eradicate cotton pests that scientific research
demonstrates to be successful, including:
(1) inspection of host plants in the field or host
plant products where stored;
(2) quarantine and fumigation of equipment, host
plants, and host plant products found to be contaminated;
(3) supervision of the growing of host plants in areas
known to be contaminated;
(4) destruction of infested fields of host plants or
of infested host plant products;
(5) prevention of planting of host plants in areas
where infestation has been found; and
(6) prevention of movement of equipment contaminated
or reasonably suspected to be contaminated with cotton pests.
Acts 1981, 67th Leg., p. 1175, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 74.052 and amended by Acts 1995, 74th Leg., ch.
957, § 7, eff. June 16, 1995.
§ 74.010. REGULATION OF COTTON PESTS;
QUARANTINES. (a) If, under prior law, the department proclaimed
a quarantine against infested territory, no person may import into
Texas from the quarantined territory a substance susceptible to
cotton pest infestation.
(b) The department shall maintain a rigid inspection of
substances susceptible to cotton pest contamination that are being
carried from quarantined territory into, through, or within this
state.
Acts 1981, 67th Leg., p. 1175, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1993, 73rd Leg., ch. 847, § 3, eff. Aug. 30,
1993. Renumbered from § 74.054 and amended by Acts 1995, 74th
Leg., ch. 957, § 7, eff. June 16, 1995.
§ 74.011. REGULATION OF GINNING. A ginner may not gin
cotton from a regulated zone under this subchapter unless the
ginner disinfects the seed in accordance with rules of the
department.
Acts 1981, 67th Leg., p. 1175, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 74.055 by Acts 1995, 74th Leg., ch. 957, §
7, eff. June 16, 1995.
§ 74.012. INSPECTORS. The department may employ and
prescribe the qualifications and duties of inspectors and other
employees necessary to the administration of this subchapter.
Acts 1981, 67th Leg., p. 1176, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 74.059 and amended by Acts 1995, 74th Leg., ch.
957, § 7, eff. June 16, 1995.
§ 74.013. COOPERATION WITH FEDERAL PROGRAMS. The
department shall cooperate with the United States Department of
Agriculture in any measure authorized by, and undertaken in
accordance with, federal law for preventing the introduction or
establishment of cotton pests in this state.
Acts 1981, 67th Leg., p. 1176, ch. 388, § 1, eff. Sept. 1, 1981.
Renumbered from § 74.060 and amended by Acts 1995, 74th Leg., ch.
957, § 7, eff. June 16, 1995.
SUBCHAPTER D. OFFICIAL COTTON GROWERS BOLL WEEVIL ERADICATION
FOUNDATION
§ 74.101. FINDINGS AND DECLARATION OF POLICY. (a) It
is hereby found and declared that:
(1) the insects Anthonomus grandis Boheman, known as
the boll weevil, and Pectinophora gossypiella, known as the pink
bollworm, are public nuisances and a menace to the cotton industry,
and their eradication is a public necessity;
(2) because of the differences in soil conditions,
growing seasons, farming techniques, and climate conditions among
several areas in the state where cotton is grown, the eradication
and suppression of the nuisance can best be accomplished by
dividing the cotton-growing areas into separate zones so that
integrated pest management programs may be developed for each zone;
(3) there is a need for a quasi-governmental entity
acting under the supervision and control of the commissioner whose
members are actual cotton growers who would be represented on the
board of the entity by directors elected by them to manage
eradication and suppression programs and to furnish expertise in
the field of insect control and eradication, because such an entity
would enhance the interest and participation of cotton growers in
the program; and
(4) because of the progress made in eradication,
investments made by cotton growers in certain areas, the potential
injustice to certain cotton growers who have made such investments,
and the stage of development of the cotton crops in the statutory
eradication zones, an urgent public necessity exists to validate
and ratify the assessments, agreements, and obligations of the
Texas Boll Weevil Eradication Foundation, Inc., made or incurred by
the foundation and related to certain statutory zones.
(b) It is the intent of the legislature that the program of
eradication and suppression be carried out with the best available
integrated pest management techniques.
(c) The department may recover costs for administration of
this subchapter.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.01, eff. May 30, 1997.
§ 74.1011. DESIGNATION OF ENTITY TO CARRY OUT BOLL
WEEVIL ERADICATION. (a) The Texas Boll Weevil Eradication
Foundation, Inc., a Texas nonprofit corporation chartered by the
secretary of state on September 14, 1993, shall be recognized by the
department as the entity to plan, carry out, and operate
eradication and diapause programs to eliminate the boll weevil and
the pink bollworm from cotton in the state under the supervision of
the department as provided by this subchapter.
(b) The commissioner may terminate the foundation's
designation as the entity recognized to carry out boll weevil
eradication by giving 45 days' written notice to the foundation and
by designating a successor entity. If the commissioner designates
a successor to the foundation, the successor has all the powers and
duties of the foundation under this subchapter. Any successor to
the foundation shall assume and shall be responsible for all
obligations and liabilities relating to any notes, security
agreements, assignments, loan agreements, and any other contracts
or other documents entered into by the foundation with or for the
benefit of any financial institution or its predecessor, successor,
or assignee.
Added by Acts 1997, 75th Leg., ch. 463, § 1.02, eff. May 30,
1997.
§ 74.102. DEFINITIONS. In this subchapter:
(1) "Board" means the board of directors of the Texas
Boll Weevil Eradication Foundation, Inc.
(2) "Boll weevil" has the meaning assigned by Section
74.002.
(3) "Commissioner" means commissioner of agriculture.
(4) "Cotton" means:
(A) a cotton plant;
(B) a part of a cotton plant, including bolls,
stalks, flowers, roots, and leaves; or
(C) cotton products, including seed cotton,
cottonseed, and hulls.
(5) "Cotton grower" means a person who grows cotton
and receives income from the sale of cotton. The term includes an
individual who as owner, landlord, tenant, or sharecropper is
entitled to share in the cotton grown and available for marketing
from a farm or to share in the proceeds from the sale of the cotton
from the farm.
(6) "Eradication" means elimination of boll weevils or
pink bollworms to the extent that the commissioner does not
consider further elimination of boll weevils or pink bollworms
necessary to prevent economic loss to cotton growers. Eradication
includes diapause activities.
(7) "Eradication zone" means a geographic area:
(A) established under Section 74.1021; or
(B) designated by the commissioner in accordance
with Section 74.105 in which cotton growers by referendum approve
their participation in a boll weevil or pink bollworm eradication
program.
(8) "Foundation" means the Texas Boll Weevil
Eradication Foundation, Inc., a Texas nonprofit corporation.
(9)"Host" means a plant or plant product in which the
boll weevil or pink bollworm is capable of completing any portion of
its life cycle.
(10) "Infested" means the presence of the boll weevil
or pink bollworm in any life stage or the existence of generally
accepted entomological evidence from which it may be concluded with
reasonable certainty that the boll weevil or pink bollworm is
present.
(11) "Integrated pest management" is the coordinated
use of pest and environmental information with available pest
control methods, including pesticides, natural predator controls,
cultural farming practices, and climatic conditions, to prevent
unacceptable levels of pest damage by the most economical means and
with the least possible hazard to people, property, and the
environment.
(12) "Pink bollworm" has the meaning assigned by
Section 74.002.
(13) "Regulated article" means an article carrying or
capable of carrying the boll weevil or pink bollworm, including
cotton plants, seed cotton, gin trash, other hosts, or mechanical
cotton harvesters.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 2, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.03, eff. May 30, 1997.
§ 74.1021. STATUTORY ZONES. (a) The Northern High
Plains Eradication Zone consists of Armstrong, Bailey, Briscoe,
Castro, Deaf Smith, Floyd, Hale, Lamb, Parmer, Randall, and Swisher
counties, and other areas as proposed by the commissioner by rule
for inclusion in the zone and approved by referendum in the area to
be added.
(b) The Rolling Plains Central Eradication Zone consists of
Baylor, Callahan, Comanche, Eastland, Erath, Fisher, Haskell,
Jones, Knox, Mitchell, Nolan, Palo Pinto, Scurry, Shackelford,
Stephens, Stonewall, Throckmorton, and Young counties; all land in
Archer County south of a line following Farm-to-Market Road 422
commencing at the Baylor County line running east to the
intersection of Farm-to-Market Road 210, continuing east to the
intersection of State Highway 25, and continuing east to the Clay
County line; all land in Borden County east of a line seven miles
west of the Scurry County line running south from the Garza County
line to the Howard County line; and all land in Taylor County east
of U.S. Highway 83 from a point commencing at the intersection of
U.S. Highway 83 and the south Taylor County line, north to the town
of Bradshaw; thence north of Farm-to-Market Road 1086, as the
farm-to-market road proceeds west and north to the intersection of
the Farm-to-Market Road 1086 and U.S. Highway 277, being all land
lying north of the farm-to-market road and west of U.S. Highway 277
from the intersection of Farm-to-Market Road 1086 and U.S. Highway
277 to the point where U.S. Highway 277 intersects the south
boundary line of Taylor County; all land in Brown County east of a
line following State Highway 279 to Brownwood and continuing along
U.S. Highway 377 south to the McCulloch County line; and other
areas as proposed by the commissioner by rule for inclusion in the
zone and approved by referendum in the area to be added.
(c) The St. Lawrence Eradication Zone consists of that area
of Midland County south of a line 15 miles south of Interstate 20
running from the Ector County line east to the Glasscock County
line; Glasscock, Reagan, and Upton counties; and other areas as
proposed by the commissioner by rule for inclusion in the zone and
approved by referendum in the area to be added.
(d) The South Texas Winter Garden Eradication Zone consists
of Aransas, Atascosa, Austin, Bee, Bexar, Brazoria, Calhoun,
Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Goliad, Jackson,
Jim Wells, Karnes, Kinney, Kleberg, La Salle, Lavaca, Live Oak,
Matagorda, McMullen, Medina, Nueces, Refugio, San Patricio,
Uvalde, Victoria, Wharton, Wilson, and Zavala counties, and other
areas as proposed by the commissioner by rule for inclusion in the
zone and approved by referendum in the area to be added. Austin,
Brazoria, Colorado, Fort Bend, Jackson, Matagorda, and Wharton
counties are included in the South Texas Winter Garden Eradication
Zone only for purposes of the repayment of debt existing on April
30, 1997, and those counties may not be included in the zone for any
other purpose unless the commissioner by rule proposes that an area
be included in the zone and the proposal is approved by referendum
in the area to be added. The commissioner may apportion any debt
existing on April 30, 1997, and designate the appropriate
assessment.
(e) The Southern High Plains-Caprock Eradication Zone
consists of Andrews, Cochran, Crosby, Dawson, Dickens, Ector,
Gaines, Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin,
Motley, Terry, and Yoakum counties; all land in Borden County lying
west of a line seven miles west of the Scurry County line running
south from the Garza County line to the Howard County line; that
area of Midland County north of a line 15 miles south of Interstate
20 running from the Ector County line east to the Glasscock County
line; and other areas as proposed by the commissioner by rule for
inclusion in the zone and approved by referendum in the area to be
added.
(f) The Southern Rolling Plains Eradication Zone consists
of Coke, Coleman, Concho, Irion, McCulloch, Runnels, Schleicher,
and Tom Green counties, all land in Taylor County lying west of U.S.
Highway 83 from a point commencing at the intersection of U.S.
Highway 83 and the south Taylor County line, north of the town of
Bradshaw; thence all the land lying south of Farm-to-Market Road
1086, as the farm-to-market road proceeds west and north to its
intersection with U.S. Highway 277, being all land lying south of
the farm-to-market road and east of U.S. Highway 277 from the
intersection of Farm-to-Market Road 1086 and U.S. Highway 277 to
the point where U.S. Highway 277 intersects the south boundary line
of Taylor County, and other areas as proposed by the commissioner by
rule for inclusion in the zone and approved by referendum in the
area to be added.
Added by Acts 1997, 75th Leg., ch. 463, § 1.04, eff. May 30,
1997.
§ 74.1041. ADVISORY COMMITTEES. (a) The commissioner
may appoint an advisory committee for an existing eradication zone
or an area of the state that is to be considered by the commissioner
for designation as or inclusion in an eradication zone. The
committee shall gather advice, input, and guidance from cotton
growers from the area represented by the committee concerning the
interest in and concerns about the implementation of this
subchapter.
(b) Each advisory committee may consider and make
recommendations to the commissioner and the foundation concerning:
(1) the geographic boundaries for a proposed
eradication zone;
(2) the amount of local interest in operating an
eradication program;
(3) the basis and amount of an assessment necessary to
support an eradication program;
(4) the need to restructure any pre-existing debt from
prior eradication activities;
(5) ongoing implementation of an eradication program
approved by growers in an eradication zone; and
(6) any other matter requested by the commissioner or
the foundation.
(c) Each advisory committee appointed under this section
shall include a sufficient number of cotton growers to ensure
adequate representation across the eradication zone, including at
least one cotton grower from each county in the zone and other
persons as determined by the commissioner.
(d) Advisory committees appointed under this section are
immune from lawsuits and liability to the same extent the
foundation is immune from lawsuits and liability under Section
74.129.
(e) An advisory committee established under this section is
subject to the requirements of Chapters 551 and 552, Government
Code.
Added by Acts 1997, 75th Leg., ch. 463, § 1.05, eff. May 30,
1997. Amended by Acts 2001, 77th Leg., ch. 168, § 1, eff. May 18,
2001.
§ 74.1042. CREATION OF NONSTATUTORY ERADICATION
ZONES. (a) The commissioner may by rule designate an area of the
state as a proposed eradication zone as long as the area is not
within a statutory zone under Section 74.1021 that has approved an
eradication program by referendum.
(b) The commissioner may hold a public hearing within the
proposed eradication zone to discuss the proposed geographic
boundaries of the zone. The public hearing may include any other
topics allowed under this subchapter.
(c) After the adoption of a rule under Subsection (a), the
commissioner shall conduct a referendum under Section 74.105.
Added by Acts 1997, 75th Leg., ch. 463, § 1.05, eff. May 30,
1997.
§ 74.105. ERADICATION ZONE REFERENDA. (a) The
commissioner shall conduct a referendum in each proposed
eradication zone to determine whether cotton growers desire to
establish an eradication zone.
(b) Eradication zone referenda shall be conducted under the
procedures provided by Section 74.114 of this code.
(c) A proposed eradication zone referendum ballot must
include or be accompanied by information about the proposed
eradication zone, including:
(1) a statement of the purpose of the boll weevil or
pink bollworm eradication program;
(2) the geographic area included in the proposed
eradication zone;
(3) a general summary of rules adopted by the
commissioner under Sections 74.114, 74.118, and 74.120 of this
code, including a description of:
(A) cotton grower responsibilities; and
(B) penalties for noncompliance with rules
adopted under this subchapter; and
(4) an address and toll-free telephone number that a
cotton grower may use to request more information about the
referendum or the boll weevil or pink bollworm eradication program.
(d) If a referendum to establish an eradication zone fails,
the concurrent election of a board member from the proposed
eradication zone under Section 74.106 has no effect, and the
commissioner shall appoint a representative to the board from the
area.
(e) The foundation may request the commissioner to call
additional referenda in a proposed eradication zone in which a
referendum has failed. An additional eradication zone referendum
and concurrent board election may be held no earlier than one year
after the date of the last referendum.
(f) After the passage of any referendum, the eligible voters
shall be allowed, by subsequent referenda, to vote on whether to
continue their assessments. All of the requirements for an initial
referendum must be met in subsequent referenda.
Amended by Acts 1995, 74th Leg., ch. 227, § 3, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.06, 2.01, eff. May 30,
1997.
§ 74.106. BOARD ELECTIONS. (a) The initial election
for board members from a proposed eradication zone shall be held
concurrently with an eradication zone referendum held under Section
74.105. Each eradication zone shall be represented on the board and
shall remain represented on the board until eradication operations
are concluded and all debt of the eradication zone is paid.
(b) A board election shall be conducted under the procedures
provided by this section and Section 74.114 of this code.
(c) A cotton grower who is eligible to vote in a referendum
or election under this subchapter is eligible to be a candidate for
and member of the board if the person has at least seven years of
experience as a cotton grower and otherwise meets the
qualifications for the position.
(d) A cotton grower who wants to be a candidate for the board
must meet the qualifications for board membership and file an
application with the commissioner. The application must be:
(1) filed not later than the 30th day before the date
set for the board election;
(2) on a form approved by the commissioner; and
(3) signed by at least 10 cotton growers who are
eligible to vote in the board election.
(e) On receipt of an application and verification that the
application meets the requirements of Subsection (d) of this
section, an applicant's name shall be placed on the ballot for the
board election.
(f) An eligible voter may vote for a cotton grower whose
name does not appear on the official ballot by writing that person's
name on the ballot.
(g) A board election must be preceded by at least 45 days
notice published in one or more newspapers published and
distributed in the proposed or established eradication zone. The
notice shall be published not less than once a week for three
consecutive weeks. Not later than the 45th day before the date of
the election, direct written notice of the election shall be given
to each county agent in the eradication zone.
(h) Each board member shall be sworn into office by a
representative of the commissioner by taking the oath of office
required for elected officers of the state.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 463, § 1.07, 2.02, eff. May
30, 1997.
§ 74.107. COMPOSITION OF BOARD. (a) The board shall be
composed of members elected from each statutory eradication zone
established and validated by referendum, members elected from each
nonstatutory eradication zone established by referendum, members
appointed by the commissioner from other cotton-growing areas of
the state, and members appointed by the commissioner under
Subsection (b). The commissioner shall appoint an initial board
composed of 15 members. Except as provided by Subsection (b), the
term of each board position may not exceed four years.
(b) In making appointments under this section, the
commissioner shall appoint the following board members, selected
from a variety of cotton-growing regions of the state, for
four-year terms:
(1) an agricultural lender;
(2) an independent entomologist who is an integrated
pest management specialist;
(3) two representatives from industries allied with
cotton production; and
(4) a representative from the pest control industry.
(c) The commissioner may change the number of board
positions or the eradication zone representation on the board to
accommodate changes in the number of eradication zones. A change
under this subsection may not contravene another provision of this
subchapter.
(d) A vacancy on the board shall be filled by appointment by
the commissioner for the unexpired term.
(e) On 30 days' notice and opportunity for hearing, the
commissioner may replace any unelected board member of the
foundation.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 4, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.08, eff. May 30, 1997.
§ 74.108. POWERS OF BOARD AND COMMISSIONER. (a) The
board may:
(1) conduct programs consistent with the declaration
of policy stated in Section 74.101;
(2) accept, as necessary to implement this chapter,
gifts and grants;
(3) borrow money, with the approval of the
commissioner, as necessary to execute this chapter;
(4) take other action and exercise other authority as
necessary to execute any act authorized by this subchapter or the
Texas Non-Profit Corporation Act (Article 1396-1.01 et seq.,
Vernon's Texas Civil Statutes); and
(5) form an advisory committee composed of individuals
from this state, other states, or other countries and change
membership on the committee, as necessary. Any advisory committee
created under this subdivision for the purpose of establishing
treatment methods shall include among its members persons with
knowledge of the effects of different treatments on the health of
agricultural workers, the local population, and the ecosystem,
including but not limited to the effects of a particular method of
treatment on beneficial organisms and wildlife, the potential for
secondary infestations from nontarget pests, and the potential for
pest resistance to particular methods of treatment.
(b) On petition of 30 percent of the cotton growers eligible
to vote within the proposed area, the commissioner may, or at the
commissioner's discretion, the commissioner may, by rule add an
area to an eradication zone or transfer an area or county from one
statutory zone to another zone if:
(1) cotton production has begun or could begin in the
area;
(2) the area is adjacent to an eradication zone or is
in an area with biological characteristics similar to the
eradication zone; and
(3) the addition is approved in a referendum held in
the area.
(c) The board must adopt a procurement policy, subject to
approval by the commissioner, outlining the procedures to be used
in purchasing.
(d) The commissioner at any time may inspect the books and
other financial records of the foundation.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 5, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.09, eff. May 30, 1997;
Acts 1999, 76th Leg., ch. 286, § 1, eff. May 29, 1999.
§ 74.109. BOARD DUTIES. (a) The board shall have an
annual independent audit of the books, records of account, and
minutes of proceedings maintained by the foundation prepared by an
independent certified public accountant or a firm of independent
certified public accountants. The audit shall include information
for each zone in which an eradication program has been conducted
under this subchapter. The audit shall be filed with the board, the
commissioner, and the state auditor and shall be made available to
the public by the foundation or the commissioner. The state auditor
may examine any work papers from the independent audit or may audit
the transactions of the foundation if the state auditor determines
that an audit is necessary.
(b) Not later than the 45th day after the last day of the
fiscal year, the board shall submit to the commissioner a report
itemizing all income and expenditures and describing all activities
of the foundation during the fiscal year.
(c) The foundation shall provide fidelity bonds in amounts
determined by the board for employees or agents who handle funds for
the foundation.
(d) The foundation and the board are state agencies for the
following purposes only:
(1) exemption from taxation including exemption from
sales and use taxes, vehicle registration fees, and taxes under
Chapter 152, Tax Code; and
(2) indemnification under Chapter 104, Civil Practice
and Remedies Code.
(e) Funds collected by the foundation are not state funds
and are not required to be deposited in the state treasury. The
foundation shall deposit all money collected under this subchapter
in a bank or other depository approved by the commissioner.
(f) The foundation is a governmental unit under Section
101.001, Civil Practice and Remedies Code, and is entitled to
governmental immunity. A tort claim against the foundation must be
made under Chapter 101, Civil Practice and Remedies Code.
(g) The board shall collect data on the type and quantity of
pesticides used in accordance with this subchapter. The data shall
be filed with the commissioner.
(h) All revenue collected under this subchapter shall be
used solely to finance programs approved by the commissioner as
consistent with this subchapter.
(i) The foundation is subject to the requirements of:
(1) the open meetings law, Chapter 551, Government
Code; and
(2) the open records law, Chapter 552, Government
Code.
(j) A board member may not vote on any matter in which the
member has a direct pecuniary interest. A board member is subject
to the same restrictions as a local public official under Chapter
171, Local Government Code.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 6, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.10, 2.03, eff. May 30,
1997.
§ 74.1095. ADMINISTRATIVE REVIEW. (a) The
commissioner by rule shall establish procedures for the informal
review and resolution of a claim arising out of certain acts taken
by the foundation under this subchapter. Rules established under
this section shall include a designation of the acts that are
subject to review under this subsection and the appropriate
remedial action, as authorized by this subchapter.
(b) A person dissatisfied with the department's informal
resolution of a claim under procedures adopted under Subsection (a)
may appeal the department's decision to the commissioner.
(c) A decision issued by the commissioner on a claim
appealed under Subsection (b) is the final administrative action of
the department and is subject to judicial review under Chapter
2001, Government Code.
(d) This section does not constitute a waiver of the state's
immunity from liability.
Added by Acts 1997, 75th Leg., ch. 463, § 1.11, eff. May 30,
1997.
§ 74.110. LIABILITY OF FOUNDATION MEMBERS, OFFICERS, AND
EMPLOYEES. (a) Except for instances of gross negligence,
individual criminal actions, or acts of dishonesty, the
foundation's members, directors, officers, and employees are not
individually liable to a cotton grower or other person for:
(1) errors in judgment;
(2) mistakes; or
(3) other acts or omissions.
(b) A foundation member, officer, or employee is not
individually liable for an act or omission of another foundation
member, officer, or employee.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 7, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.12, eff. May 30, 1997.
§ 74.1101. LIABILITY OF APPLICATORS. (a) In this
section, "applicator" means an individual or other person that is
not a member, director, officer, or employee of the foundation and
that contracts with the foundation to apply pesticides or other
chemicals using aircraft or other equipment to further or support
the eradication or diapause efforts undertaken under this
subchapter.
(b) An applicator is not jointly and severally liable for
any act or omission of the foundation under this subchapter.
(c) The foundation shall have liability coverage in effect
for any eradication or diapause efforts for which it uses
applicators. The coverage shall apply to acts and omissions of the
foundation and volunteers and be in the amount of at least $500,000
for each single occurrence of death, bodily injury, or property
damage.
Added by Acts 1997, 75th Leg., ch. 463, § 1.13, eff. May 30,
1997. Amended by Acts 1999, 76th Leg., ch. 286, § 2, eff. May 29,
1999.
§ 74.1102. CONTRACTING. (a) For a purchase of goods
and services under this chapter, the foundation may purchase goods
and services that provide the best value for the foundation.
(b) In determining the best value for the foundation, the
purchase price and whether the goods or services meet
specifications are the most important considerations. However, the
foundation may consider other relevant factors, including:
(1) the quality and reliability of the goods and
services;
(2) the delivery terms;
(3) indicators of probable vendor performance under
the contract, including:
(A) past vendor performance;
(B) the vendor's financial resources and ability
to perform;
(C) the vendor's experience or demonstrated
capability and responsibility; and
(D) the vendor's ability to provide reliable
maintenance agreements and support;
(4) the cost of any employee training associated with
a purchase; and
(5) other factors relevant to determining the best
value for the foundation in the context of a particular purchase.
Added by Acts 1999, 76th Leg., ch. 286, § 3, eff. May 29, 1999.
§ 74.111. BOARD MEMBER COMPENSATION. Board members
serve without compensation but are entitled to reimbursement for
reasonable and necessary expenses incurred in the discharge of
their duties.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 463, § 2.04, eff. May 30,
1997.
§ 74.112. DISCONTINUATION OF PROGRAM AND FOUNDATION AND
DISPOSITION OF FUNDS ON DISCONTINUANCE. (a) On the determination
by the foundation that the boll weevil eradication program has been
completed in all eradication zones established under this
subchapter for boll weevil control and the pink bollworm
eradication program has been completed in any eradication zone
established under this chapter for pink bollworm control, the
foundation shall provide notice of such completion to the
commissioner along with a request for discontinuance of the
eradication program and collection of the assessment. Any such
request shall include documentation supporting the eradication of
the boll weevil in all eradication zones established for boll
weevil eradication or pink bollworm in any eradication zone
established for pink bollworm eradication and a plan for
discontinuance of the program and assessment.
(b) The commissioner shall determine whether or not the
further elimination of the boll weevil or pink bollworm is
necessary in the eradication zones and approve or disapprove
discontinuance of the foundation and the plan for dissolution.
(c) On completion of dissolution, the foundation shall file
a final report with the commissioner, including a financial report,
and submit all remaining funds into the trust of the commissioner.
Final books of the foundation shall be filed with the commissioner
and are subject to audit by the department.
(d) The commissioner shall pay from the foundation's
remaining funds all of the foundation's outstanding obligations.
(e) Funds remaining after payment under Subsection (d) of
this section shall be returned to contributing cotton growers on a
pro rata basis.
(f) If 30 percent or more of the cotton growers eligible to
vote within a zone participating in the program present to the
commissioner a petition calling for a referendum of the qualified
voters on the proposition of discontinuing the program, the
commissioner shall conduct a referendum for that purpose.
(g) The commissioner shall give notice of the referendum,
the referendum shall be conducted, and the results shall be
declared in the manner provided by law for the original referendum
and election, with any necessary exceptions provided by rule of the
commissioner.
(h) The commissioner shall conduct the referendum within 90
days of the date of filing of the petition, except that no such
referendum may be held within two years of any other referendum in
the eradication zone pertaining to establishing or discontinuing
the eradication zone.
(i) Approval of the proposition is by the same vote as
required in a referendum under Section 74.114(g). If the
proposition is approved, the eradication program is abolished and
the eradication zone ceases to exist on payment of all debts of the
eradication zone.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 8, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.14, 2.05, eff. May 30,
1997.
§ 74.113. ASSESSMENT REFERENDA. (a) The commissioner
shall propose the assessment needed in each eradication zone to
ensure the stability of the cotton industry by eradicating the
public nuisance caused by the boll weevil and the pink bollworm.
(b) The commissioner shall propose in a referendum the:
(1) maximum assessment to be paid by cotton growers
having production in the eradication zone; and
(2) time for which the assessment will be made.
(c) With the commissioner's approval, the foundation may
make an assessment in an eradication zone at a level less than the
assessment approved by the referendum.
(d) The commissioner shall conduct an assessment referendum
under the procedures provided by Section 74.114.
(e) If an assessment referendum is approved, the foundation
may collect the assessment.
(f) An assessment levied on cotton growers in an eradication
zone may be applied only to:
(1) eradication in that zone;
(2) the foundation's operating costs, including
payments on debt incurred for a foundation activity, except that
the funds of one zone may not be used to pay another zone's bank
loans or debts; and
(3) the conducting of other programs consistent with
the declaration of policy stated in Section 74.101.
(g) The assessment shall be adequate and necessary to
achieve the goals of this subchapter. The amount of the assessment
shall be determined by criteria established by the commissioner,
including:
(1) the extent of infestation;
(2) the amount of acreage planted;
(3) historical efforts to eradicate;
(4) the growing season;
(5) epidemiology;
(6) historical weather conditions; and
(7) the costs and financing of the program.
(h) The commissioner shall give notice of and hold a public
hearing within the eradication zone regarding the proposed
assessment referendum. Before the referendum, the commissioner
shall review and approve:
(1) the amount of the assessment;
(2) the basis for the assessment;
(3) the time for payment of the assessment;
(4) the method of allocation of the assessment among
cotton growers;
(5) the restructuring and repayment schedule for any
pre-existing debt; and
(6) the amount of debt to be incurred in the
eradication zone.
(i) The commissioner shall on a zone-by-zone basis set the
date on which assessments are due and payable.
(j) Each year, the commissioner shall review and approve the
foundation's operating budget.
(k) The foundation shall prepare and mail billing
statements to each cotton grower subject to the assessment that
state the amount due and the due date. The assessments shall be
remitted to the foundation.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 9, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.15, eff. May 30, 1997.
§ 74.114. CONDUCT OF BOARD ELECTIONS AND REFERENDA;
BALLOTING. (a) The commissioner shall conduct a referendum or
board election authorized under this subchapter. At the end of each
four-year period in which an eradication program has been
operational in a zone, the commissioner shall hold a referendum in
the zone on the continuation of the eradication program. The
referendum shall be held at the same time as the election of a board
member from the zone. Approval of the referendum on continuation is
by a majority of those voting in the referendum.
(b) The foundation shall bear all expenses incurred in
conducting a referendum or board election.
(c) The commissioner shall adopt rules for voting in board
elections and referenda to establish or continue eradication zones.
Rules adopted under this subsection must include provisions for
determining:
(1) who is a cotton grower eligible to vote in an
election or referendum;
(2) whether a board member is elected by a plurality or
a majority of the votes cast; and
(3) the area from which each board member is elected.
(d) A cotton grower having cotton production in a proposed
or established eradication zone is entitled to:
(1) vote in a referendum concerning the eradication
zone; and
(2) elect board members to represent the eradication
zone.
(e) An eligible cotton grower may vote only once in a
referendum or board election.
(f) Ballots in a referendum or board election shall be
mailed directly to a central location, to be determined by the
commissioner. A cotton grower eligible to vote in a referendum or
board election who has not received a ballot from the commissioner,
foundation, or another source shall be offered the option of
requesting a ballot by mail or obtaining a ballot at the office of
the county agent of the Texas Agricultural Extension Service or a
government office distributing ballots in a county in the proposed
or established zone in which the referendum or board election is
conducted.
(g) A referendum is approved if:
(1) at least two-thirds of those voting vote in favor
of the referendum; or
(2) those voting in favor of the referendum farm more
than 50 percent, as determined by the commissioner, of the cotton
acreage in the relevant eradication zone.
(h) If a referendum under this subchapter is not approved,
the commissioner may conduct another referendum. A referendum
under this subsection may not be held before one year after the date
on which the last referendum on the same issue was held.
(i) A public hearing regarding the proposed eradication
program, including information regarding regulations to be
promulgated by the commissioner, may be held by the commissioner in
each of several locations within each boll weevil or pink bollworm
eradication zone. The area posted for each hearing shall include no
more than six contiguous counties that have cotton production at
the time of the hearing.
(j) Individual voter information, including an individual's
vote in a referendum or board election conducted under this
section, is confidential and is not subject to disclosure under the
open records law, Chapter 552, Government Code.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 227, § 10, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 463, § 1.16, 2.06, eff. May 30, 1997.
§ 74.115. PAYMENT OF ASSESSMENTS; ASSESSMENT
LIENS. (a) A cotton grower who fails to pay an assessment levied
under this subchapter when due may be subject, after reasonable
notice and opportunity for hearing, to a penalty set by the
commissioner. In determining the amount of the penalty to be
assessed, the commissioner shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, and extent of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) the economic situation of the cotton grower; and
(5) any other matter that justice may require.
(b) The foundation may develop a compliance certificate
program to manage the payment and collection of an assessment
levied under this subchapter. Under the program the foundation,
subject to department rules, may issue a compliance certificate for
cotton for which an assessment has been paid.
(c) In addition to any other remedies for the collection of
assessments and penalties, the commissioner may adopt rules
relating to the compliance certificate program for eradication
assessments. The rules may include:
(1) provisions establishing and relating to the
obligations of growers, ginners, and buyers in due course of cotton
produced in active eradication zones to ensure that assessments are
paid within a prescribed time period;
(2) provisions allowing incentives in the form of
discounted assessments for growers who pay assessments within a
prescribed time period;
(3) provisions establishing penalties and interest
against growers who pay assessments after a prescribed time period;
and
(4) other provisions the commissioner may determine
are proper.
(d) In addition to any other remedies for the collection of
assessments and penalties, an assessment lien in favor of the
foundation attaches and is perfected 60 days after the date the
foundation mails notice of the assessment on cotton produced and
harvested that year from the acreage that is subject to the
assessment that is due and unpaid. An assessment lien is not an
agricultural lien for the purposes of Chapter 9, Business &
Commerce Code, and is not subject to the provisions of that chapter.
An assessment lien is subject to and preempted by the Food Security
Act of 1985 (7 U.S.C. Section 1631 et seq.) and shall be treated
under that Act in the same manner as a security interest created by
the seller. A buyer of cotton takes free of the assessment lien if
the buyer:
(1) receives a compliance certificate issued by the
foundation when the buyer purchases the cotton that certifies that
the assessment has been paid to the foundation;
(2) pays for the cotton by a check on which the
department is named as a joint payee;
(3) does not receive notice of the assessment lien as
required by the Food Security Act of 1985 (7 U.S.C. Section 1631 et
seq.); or
(4) buys the cotton from a person other than the
producer of the cotton.
(e) The foundation may assign, with the approval of the
commissioner, assessments or liens in favor of the foundation as
collateral for a loan to the foundation only if the proceeds of the
loan are designated for use in the eradication zone from which the
assessments or liens originated.
(f) If the department has cause to believe that a violation
of this section or rules promulgated under this section has
occurred, the department may investigate and, during normal
business hours, audit and inspect the records of the person who is
the subject of the investigation.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 11, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.17, eff. May 30, 1997;
Acts 1999, 76th Leg., ch. 286, § 4, eff. May 29, 1999; Acts 2001,
77th Leg., ch. 168, § 2, eff. May 18, 2001.
§ 74.116. EXEMPTION FROM ASSESSMENT
PENALTIES. (a) The commissioner by rule shall adopt criteria for
exemption from payment of assessment penalties under Section 74.115
of this code a cotton grower for whom payment would impose an undue
financial burden.
(b) A cotton grower may not qualify for an exemption under
this section for a year in which the amount computed by subtracting
the assessments and penalties due under this subchapter from the
cotton grower's net income subject to federal income taxation in
the previous year is greater than $15,000.
(c) A cotton grower who applies for an exemption under this
section must use a form prescribed by the commissioner. A cotton
grower must file a separate application form for each year for which
the cotton grower claims an exemption.
(d) The commissioner may establish a payment plan for a
cotton grower applying for an exemption under this section.
(e) The commissioner shall promptly notify an applicant of
the determination regarding the applicant's request for an
exemption.
(f) If an exemption under this section is denied,
assessments and penalties for the year for which the application is
made are due on the later of:
(1) the date on which they would be due in the absence
of an application for exemption; or
(2) 30 days after the date the applicant receives
notice of the denial.
(g) In addition to the authority provided under Subsections
(a)-(f), the commissioner may reduce or waive assessment penalties
as appropriate and necessary.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 12, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.18, eff. May 30, 1997.
§ 74.117. ENTRY OF PREMISES; ERADICATION ACTIVITIES;
INSPECTIONS. The department, the foundation, or a designated
representative of either entity may enter cotton fields or other
premises to carry out the purposes of this subchapter and
Subchapters A and B of this chapter, which include the treatment and
monitoring of growing cotton or other host plants. The department,
the foundation, or a designated representative of either entity may
inspect fields or premises in this state for the purpose of
determining whether the property is infested with the boll weevil
or the pink bollworm. An inspection must be conducted during
reasonable daylight hours. The department shall give notice by
publication of the planned schedule of dates for entry by the
department, the foundation, or a designated representative of
either entity, to the fields or premises to carry out the purposes
of this subchapter, including treatment, monitoring, or inspection
functions. The department shall publish notice of the planned
schedule to enter the fields or premises in a newspaper of general
circulation in the eradication zone not less than once a week for
two weeks immediately before the scheduled dates of entry. In
addition to the notice published by the department, the foundation
shall post notice of the planned schedule to enter fields or
premises to carry out the purposes of this subchapter at the county
courthouse of each county in the eradication zone not less than 15
days before the planned dates of entry.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 13, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.19, eff. May 30, 1997.
§ 74.118. AUTHORITY TO PROHIBIT PLANTING OF COTTON AND
REQUIRE PARTICIPATION IN ERADICATION PROGRAM. (a) The
commissioner may adopt reasonable rules regarding areas where
cotton may not be planted in an eradication zone if there is reason
to believe planting will jeopardize the success of the program or
present a hazard to public health or safety.
(b) The commissioner may adopt rules prohibiting the
planting of noncommercial cotton in eradication zones and requiring
that all growers of commercial cotton in an eradication zone
participate in a boll weevil or pink bollworm eradication program
that includes cost sharing as required by the rules.
(c) Notice of prohibitions and requirements shall be given
by publication for one day each week for three successive weeks in a
newspaper having general circulation in the affected area.
(d) The commissioner may adopt a reasonable schedule of
penalty fees to be assessed against growers in a designated
eradication zone who do not meet the requirements of the rules
issued by the commissioner relating to reporting of acreage and
participation in cost sharing. The penalty fees adopted may not
exceed $50 per acre.
(e) If a grower fails to meet the requirements of rules
adopted by the commissioner, the commissioner may order the
destruction of cotton not in compliance with the rules. Costs
incurred by the commissioner in the destruction of cotton may be
assessed against the grower.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 14, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 2.07, eff. May 30, 1997.
§ 74.119. AUTHORITY FOR DESTRUCTION OR TREATMENT OF
COTTON IN ERADICATION ZONES; COMPENSATION PAYABLE. The
department may destroy or treat volunteer or other noncommercial
cotton and establish procedures for the purchase and destruction of
commercial cotton in eradication zones if the department determines
the action is necessary to carry out the purposes of this
subchapter. The department is not liable to the owner or lessee for
the destruction of or injury to any cotton that was planted in an
eradication zone after publication of notice as provided by this
subchapter. The foundation is liable for the destruction of cotton
if the cotton was planted in an eradication zone before publication
of the notice.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 463, § 2.08, eff. May 30,
1997.
§ 74.120. AUTHORITY TO ADOPT RULES. (a) The
commissioner shall adopt rules to protect individuals, livestock,
wildlife, and honeybee colonies on any premises in an eradication
zone on which cotton plants are being grown that have been or are
being treated to eradicate the boll weevil or the pink bollworm.
(b) Rules adopted under this section shall establish the
criteria by which the foundation develops its procedures and
methods of treatment, which shall:
(1) establish a methodology for determining when boll
weevil or pink bollworm population levels have reached economic
significance;
(2) establish an effective treatment regimen that
seeks to provide the least possible risk to workers, the public, and
the environment;
(3) minimize the effects of the use of pesticides on
long-term control methods, including but not limited to the effect
a particular pesticide may have on biological controls;
(4) establish methods for monitoring boll weevils,
pink bollworms, and secondary pests;
(5) establish methods for verifying pesticide use
reduction; and
(6) consider the acute and chronic toxicity of
particular pesticides and the quantity of particular pesticides
needed. Eradication zone treatment plans may take into account the
potential for the use of smaller quantities of more toxic
substances to result in fewer health and environmental risks than
larger quantities of less toxic substances.
(c) The commissioner may adopt other reasonable rules
necessary to carry out the purposes of this subchapter and
Subchapters A and B of this chapter. All rules issued under this
subchapter must be adopted and published in accordance with state
requirements.
(d) An advisory committee may be established to assist the
commissioner in the development of rules adopted under this
section. The advisory committee may be composed of:
(1) three cotton growers from different regions of the
state, appointed by the commissioner;
(2) three entomologists with knowledge of the
principles of integrated pest management, at least one of whom has
special knowledge of nonchemical or biological pest control,
appointed by the commissioner;
(3) two individuals with experience representing the
general interests of the environment, appointed by the chair of the
Texas Natural Resource Conservation Commission;
(4) an environmental engineer with expert knowledge of
ground and surface water protection from contamination, appointed
by the chair of the Texas Natural Resource Conservation Commission;
(5) a toxicologist, appointed by the Commissioner of
Health; and
(6) an individual with experience representing the
general interests of consumers and an individual with experience
representing the general interests of agricultural workers,
appointed by the governor.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, § 11.02, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 227, § 15, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 463, § 1.20, 2.09, eff. May 30, 1997.
§ 74.121. REPORTS. Each person in an active eradication
zone growing cotton in this state shall furnish to the foundation on
forms supplied by the foundation information that the foundation
requires concerning the size and location of all commercial cotton
fields and of noncommercial patches of cotton grown for ornamental
or other purposes. The foundation may provide an incentive for
early and timely reporting.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 463, § 1.21, eff. May 30,
1997.
§ 74.122. QUARANTINE. The department may adopt rules
relating to quarantining areas of this state that are infested with
the boll weevil or the pink bollworm. The rules must address the
storage of regulated articles and the movement of regulated
articles into and out of a quarantined area. The department may
also adopt rules governing the movement of regulated articles from
other states into this state if the articles are known to be
infested with the boll weevil or the pink bollworm.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 16, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 2.10, eff. May 30, 1997.
§ 74.123. DOCUMENTING REGULATED ARTICLES. To implement
this subchapter, the department may issue or authorize issuance of:
(1) a certificate that indicates that a regulated
article is not infested with the boll weevil or the pink bollworm;
and
(2) a permit that provides for the movement of a
regulated article to a restricted designation for limited handling,
use, or processing.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 17, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 2.11, eff. May 30, 1997.
§ 74.124. COOPERATIVE PROGRAMS AUTHORIZED. (a) The
foundation may carry out programs to destroy and eliminate the boll
weevil and the pink bollworm in this state by cooperating through
written agreements, as approved by the commissioner, with:
(1) an agency of the federal government;
(2) a state agency;
(3) an appropriate agency of a foreign country
contiguous to the affected area to the extent allowed by federal
law;
(4) a person who is engaged in growing, processing,
marketing, or handling cotton;
(5) a group of persons in this state involved in
similar programs to carry out the purposes of this subchapter; or
(6) an appropriate state agency of another state
contiguous to the affected area, to the extent allowed by federal
law, the law of the contiguous state, and the law of this state.
(b) An agreement entered into under this section may provide
for cost sharing and for division of duties and responsibilities
under this subchapter and may include other provisions to carry out
the purposes of this subchapter.
(c) Agreements under Subsections (a)(4)-(5) must be
approved in each referendum required under this subchapter other
than a referendum to discontinue an eradication program. The
agreements must be approved by the same margin as required in the
retention referendum.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 18, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.22, 2.12, eff. May 30,
1997; Acts 2001, 77th Leg., ch. 168, § 3, eff. May 18, 2001.
§ 74.125. ORGANIC COTTON GROWERS. (a) The
commissioner shall develop rules and procedures to:
(1) protect the eligibility of organic cotton growers
to be certified by the commissioner;
(2) ensure that organic and transitional
certification by the commissioner continue to meet national
certification standards in order for organic cotton to maintain
international marketability; and
(3) in all events maintain the effectiveness of the
boll weevil or pink bollworm eradication program administered under
this subchapter.
(b) The board may not treat or require treatment of organic
cotton fields with chemicals that are not approved for use on
certified organic cotton. Plow-up may be required as an
alternative to chemicals. Rules adopted under Subsection (a) may
provide indemnity for the organic cotton growers for reasonable
losses that result from a prohibition of production of organic
cotton or from any requirement of destruction of organic cotton. If
time is reasonably available for the production of an economically
feasible alternative crop, the board may require mitigation of
losses with the production of an alternative crop.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 19, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.23, eff. May 30, 1997.
§ 74.126. PENALTIES. (a) A person who violates this
subchapter or a rule adopted under this subchapter or who alters,
forges, counterfeits, or uses without authority a certificate,
permit, or other document issued under this subchapter or under a
rule adopted under this subchapter commits an offense.
(b) An offense under this section is a Class C misdemeanor.
(c) If the commissioner determines that a violation of this
subchapter or a rule adopted under this subchapter has occurred,
the commissioner may request that the attorney general or the
county or district attorney of the county in which the alleged
violation occurred or is occurring file suit for civil, injunctive,
and/or other appropriate relief.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 20, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 1.24, 2.13, eff. May 30,
1997.
§ 74.127. SUNSET PROVISION. (a) The board of
directors of the official cotton growers' boll weevil eradication
foundation is subject to Chapter 325, Government Code (Texas Sunset
Act). Unless continued in existence as provided by that chapter,
the board is abolished and this subchapter expires September 1,
2007.
(b) The commissioner may order the dissolution of the
foundation at any time the commissioner determines that the
purposes of this subchapter have been fulfilled or that the
foundation is inoperative and abandoned. Dissolution shall be
conducted in accordance with Section 74.112 of this code.
(c) If the foundation is abolished or the program
discontinued for any reason, assessments approved, levied, or
otherwise collectible on the date of abolishment remain valid as
necessary to pay the financial obligations of the foundation.
Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 227, § 21, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 463, § 2.14, eff. May 30, 1997;
Acts 1997, 75th Leg., ch. 1169, § 2.01, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 1449, § 3.02, eff. Sept. 1, 1999.
§ 74.128. ANNUAL REPORT. The board shall issue to the
commissioner and the appropriate oversight committee in the house
of representatives an annual report detailing its efforts to carry
out the purposes of this subchapter.
Added by Acts 1997, 75th Leg., ch. 463, § 1.25, eff. May 30,
1997.
§ 74.129. EXEMPTION FROM LAWSUITS, LIABILITY, TAXATION,
AND LEGAL PROCESS. The legislature recognizes that the
foundation, acting under the supervision and control of the
commissioner, is carrying out an important governmental function
and that therefore the foundation, as a quasi-governmental entity,
must be immune from lawsuits and liability except to the extent
provided in Chapter 101, Civil Practice and Remedies Code, and as
provided by this section. Therefore, no claims may be brought or
continued against the foundation except: (1) claims allowed by
Chapter 101, Civil Practice and Remedies Code; and (2) claims
pending against the foundation on April 30, 1997, plus attorney's
fees and costs of court. With the exception of finally adjudicated
claims arising from Chapter 101, Civil Practice and Remedies Code,
and claims for assessments, attorney's fees, and costs of court
paid by named plaintiffs in lawsuits pending on or before April 30,
1997, all payments, contributions, funds, and assessments received
or held by the foundation under this subchapter are exempt from
garnishment, attachment, execution, or other seizure and from state
and local taxation, levies, sales, and any other process and are
unassignable. Nothing in this section shall affect or impair any
existing or future indebtedness or any existing or future security
interest created under a note, security agreement, assignment, or
other loan agreement between the foundation and a lender or any
judgment, to the extent such judgment allows recovery against the
foundation pursuant to a note, security agreement, loan agreement,
or other document.
Added by Acts 1997, 75th Leg., ch. 463, § 1.25, eff. May 30,
1997.
§ 74.130. USE OF BIO-INTENSIVE CONTROLS. The
commissioner shall develop and adopt rules to allow a cotton grower
in an eradication program to use biological, botanical, or other
non-synthetic pest control methods. In developing the rules, the
commissioner shall consider:
(1) scientific studies and field trials of the
effectiveness of a proposed alternative control method;
(2) the feasibility of using a proposed alternative
control technique within a particular region;
(3) the degree of monitoring necessary to establish
the success of the use of a proposed alternative control; and
(4) methods to prevent the use of substances that
would impede the use of alternative controls and the promotion of
beneficial insect populations.
(b) A cotton grower that chooses to use an alternative
method of control as provided in Subsection (a) shall notify the
board. The board and the cotton grower shall coordinate their
actions to prevent the use of substances that would impede the use
of alternative controls and the promotion of beneficial insect
populations.
(c) The cotton grower shall pay any additional cost of
bio-intensive control in addition to any assessment.
Added by Acts 1997, 75th Leg., ch. 463, § 1.25, eff. May 30,
1997.
§ 74.131. VENUE. (a) Venue for an action arising out
of this subchapter in which the foundation is a party is in Travis
County.
(b) This section does not expand the liability of the
foundation beyond the liability provided under Section 74.129.
Added by Acts 1999, 76th Leg., ch. 286, § 5, eff. May 29, 1999.
SUBCHAPTER E. COST-SHARING FOR BOLL WEEVIL ERADICATION
§ 74.151. DEFINITIONS. In this subchapter:
(1) "Boll weevil" and "pink bollworm" have the
meanings assigned by Section 74.002.
(2) "Commissioner" has the meaning assigned by Section
74.102.
Added by Acts 1999, 76th Leg., ch. 127, § 1, eff. May 20, 1999.
§ 74.152. CREATION OF COST-SHARING PROGRAM. As part of
the program to eradicate the boll weevil and the pink bollworm under
this chapter, a cost-sharing program is created to be administered
under this chapter and rules adopted by the commissioner.
Added by Acts 1999, 76th Leg., ch. 127, § 1, eff. May 20, 1999.
§ 74.153. COST-SHARING PROGRAM REQUIREMENTS. (a) The
commissioner may contract to obtain boll weevil eradication
services for the state with the entity named under Section 74.1011.
(b) The department may spend money under the cost-sharing
program only in a zone in which:
(1) a boll weevil eradication project under this
chapter is active; or
(2) boll weevil eradication has been declared complete
by the United States Department of Agriculture or its designee.
Added by Acts 1999, 76th Leg., ch. 127, § 1, eff. May 20, 1999.
