Law:Title 5. Production, Processing, And Sale Of Horticultural Products (Texas)

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Subtitle D. Handling And Marketing Of Horticultural Products

Contents

Chapter 101. Handling And Marketing Of Perishable Commodities

Section  101.001.  Definitions.

In this chapter:

(1)  "Handle" means buy for resale, sell, offer to sell, process, broker, or ship for the purpose of selling.

(2)  "Packer" means a person who prepares or packs perishable commodities for barter, sale, exchange, or shipment.

(3)  "Perishable commodity" means fresh produce grown in Texas and generally considered a perishable vegetable or fruit.

(4)  "Person" means an individual, partnership, group of persons, corporation, or business unit.

(5)  "Producer" means a person who is engaged in the business of growing or producing any perishable commodity.

(6)  "Warehouseman" means a person who receives and stores perishable commodities for compensation.

Acts 1981, 67th Leg., p. 1251, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 2, eff. Sept. 1, 1999.



Section  101.002.  Perishable Commodities.

(a) This chapter applies to perishable commodities, whether or not packed in ice or held in cold storage, and does not apply to perishable commodities that have been manufactured into an article of food of a different kind or character.

(b)  For purposes of this section, the effects of the following operations do not change a perishable commodity into an article of food of a different kind or character: freezing; water or steam blanching; shelling; chopping; adding color; curing; cutting; dicing; drying for the removal of surface moisture; fumigating; gassing; heating for necessary control; ripening; coloring; removal of seeds, pits, stems, calyxes, husks, pods, rinds, skins, peels, or similar items; trimming; washing with or without chemicals; waxing; adding sugar or other sweetening agents; adding ascorbic acids or other agents used to retard oxidation; mixing with several kinds of sliced, chopped, or diced perishable commodities for packaging in any type of container; or any comparable method of preparation.

Acts 1981, 67th Leg., p. 1252, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1995, 74th Leg., ch. 269, Sec. 1, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 3, eff. Sept. 1, 1999.



Section  101.003.  License Required.

(a) Except as otherwise provided by this section, a person may not handle perishable commodities, as owner, agent, or otherwise, without a license or an identification card issued by the department.

(b)  This section does not apply to:

(1)  a retailer, unless the retailer:

(A)  has annual sales of perishable commodities that comprise 50 percent or more of the retailer's total sales; or

(B)  employs a buying agent who buys directly from a producer;

(2)  a producer who handles or deals exclusively in the producer's own products;

(3)  a person shipping less than six standard boxes of citrus fruit in any one separate shipment;

(4)  a person who ships a noncommercial shipment of perishable commodities; or

(5)  a person who purchases perishable commodities and pays for the perishable commodities in United States currency before or at the time of delivery or taking possession.

(c)  A person who purchases perishable commodities without a license, as owner, agent, or otherwise, does not violate this section if the person obtains a license not later than the 30th day after the date the person first purchases perishable commodities.

Acts 1981, 67th Leg., p. 1252, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 917, Sec. 1, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 4, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.10, eff. September 1, 2009.



Section 101.004.  License Or Registration Categories.

A person shall apply for a license if the person:

(1)  purchases perishable commodities on credit;

(2)  takes possession of perishable commodities for consignment or handling on behalf of the producer or owner of the perishable commodities; or

(3)  takes possession of perishable commodities for consignment or handling in a manner or under a contract that does not require or result in payment to the producer, seller, or consignor of the full amount of the purchase price in United States currency at the time of delivery or at the time that the perishable commodities pass from the producer, seller, or consignor to the person.

Acts 1981, 67th Leg., p. 1252, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 917, Sec. 2, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 3, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 5, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.11, eff. September 1, 2009.



Section  101.005.  Application For License.

(a) A person required under Section 101.003 of this code to be licensed or registered shall apply to the department on a form furnished by the department. The applicant shall provide the following information and certify that the information provided is true and correct:

(1)  the full name of the applicant and whether the applicant is an individual, partnership, corporation, exchange, or association;

(2)  the full name and address of the principal business office of the applicant;

(3)  the address of the applicant's principal business office in this state;

(4)  if the applicant is a foreign corporation, the state in which the corporation is chartered and the name and address of a registered agent in this state for service of legal process; and

(5)  the length of time that the applicant has been engaged in business in this state.

(b)  In addition to providing the information under Subsection (a) of this section, each applicant shall answer the following questions on the application:

(1)  "Have you previously been licensed by this state or the United States Department of Agriculture (USDA) to handle perishable commodities?"

(2)  "If you answered that you have been previously licensed, has any license issued to you by this state or the USDA ever been suspended or revoked?"

(3)  "If you have answered that a license issued to you by this state or by the USDA has been suspended or revoked, when, where, and for what reason was the license suspended or revoked?"

(c)  An applicant's failure to truthfully and accurately provide the information required by Subsections (a) and (b) is a violation for purposes of administrative penalty action and may result in denial of an application.

Acts 1981, 67th Leg., p. 1253, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 917, Sec. 2, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 4, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 6, eff. Sept. 1, 1999.



Section  101.006.  License Fee.

(a) Except as otherwise provided by this section, a person applying for a license shall include with the license application a refundable license fee, as provided by department rule.

(b)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.35(7), eff. September 1, 2009.

Acts 1981, 67th Leg., p. 1253, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 995, ch. 235, art. 1, Sec. 8, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4284, ch. 682, Sec. 6, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, Sec. 2, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 5, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 419, Sec. 2.43, eff. Sept. 1, 1995; Acts 1999, ch. 358, Sec. 7, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.35(7), eff. September 1, 2009.



Section  101.007.  Issuance Or Refusal Of License.

(a) Except as otherwise provided by this section, the department shall issue a license to an applicant who:

(1)  tenders an application;

(2)  pays the license fee, if required; and

(3)  pays the appropriate fee to the produce recovery fund under Chapter 103 of this code, if required.

(b)  If a previous license of the applicant has been or is suspended or has been revoked, the department may not issue or renew a license to the applicant until the department is furnished with satisfactory proof that the applicant is, on the date of application, qualified to receive the license for which the applicant applied as provided by department rule.

(c)  The department may refuse to issue or renew a license under this section if the department determines that a license previously issued to the applicant was revoked or suspended or that the applicant has engaged in conduct for which a license could have been revoked or suspended.  In determining whether to refuse to issue or renew a license under this section, the department may consider:

(1)  the facts and circumstances pertaining to a prior suspension or revocation;

(2)  the financial condition of the applicant as of the date of the application;

(3)  any judgment by a court of this state that is outstanding against the applicant and is due and owing to a licensee, grower, or producer of perishable commodities; and

(4)  any certified claim against the applicant by a licensee, grower, or producer of perishable commodities that is under consideration by the department.

(d)  Before refusing an application for a license under this section, a hearing shall be conducted under Section 12.032 on the license application, and the applicant may appeal the decision in the manner provided for contested cases under Chapter 2001, Government Code.

(e)  Repealed by Acts 1995, 74th Leg., ch. 419, Sec. 10.09(13), eff. Sept. 1, 1995.

Acts 1981, 67th Leg., p. 1253, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 739, Sec. 1, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 419, Sec. 3.20, 10.09(13), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.12, eff. September 1, 2009.



Section  101.008.  Term And Renewal Of License.

(a) A license expires one year from the date of issuance.

(b)  A license may be renewed by completion of a renewal application form and the payment of the license fee provided for issuance of the original license.

(c)  To renew a license after the license has expired, the applicant must pay a late fee, as provided by Section 12.024 of this code.

Acts 1981, 67th Leg., p. 1254, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 917, Sec. 3, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 419, Sec. 2.44, eff. Sept. 1, 1995.



Section 101.009.  Licensee List.

The department may publish as often as it considers necessary a list in pamphlet form or on the department's Internet website of all persons licensed under this chapter.

Acts 1981, 67th Leg., p. 1254, ch. 388, Sec. 1, eff. Sept. 1, 1981.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.13, eff. September 1, 2009.



Section  101.010.  Transporting Agent Or Buying Agent Identification Card.

(a) In accordance with the rules of the department, a license holder may apply to the department for a reasonable number of identification cards for:

(1)  transporting agents to act for the license holder in the transporting of perishable commodities; and

(2)  buying agents to act for the license holder in any act requiring licensing under Section 101.003 of this code.

(b)  The department shall collect a fee, as provided by department rule, for each card and shall issue transporting agent cards in a color different from buying agent cards.

(c)  An identification card must bear:

(1)  the name of the licensee;

(2)  the number of the licensee's license;

(3)  the name of the agent; and

(4)  a statement that the licensee, as principal, has authorized the agent named on the card to act for and on behalf of the licensee, either as buying agent or transporting agent, as applicable.

(d)  A buying agent or transporting agent shall carry the identification card on the agent's person at all times. On demand of the department or any person with whom the agent is transacting business, the agent shall display the identification card.

(e)  If the holder of an identification card ceases to be the agent of the licensee, the agent shall immediately return the card to the department for cancellation.

Acts 1981, 67th Leg., p. 1254, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 239, Sec. 67, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 917, Sec. 4, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 6, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 419, Sec. 2.45, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 9, eff. Sept. 1, 1999.



Section  101.011.  License Or Identification Card Not Assignable.

A license or identification card is not assignable.

Acts 1981, 67th Leg., p. 1255, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 10, eff. Sept. 1, 1999.



Section  101.012.  Revocation, Modification, Or Suspension Of License Or Identification Card.

(a) The department shall revoke, modify, or suspend a license or identification card, assess an administrative penalty, place on probation a person whose license or identification card has been suspended, or reprimand a licensee or the transporting or buying agent of a licensee for a violation of this chapter or a rule adopted by the department under this chapter.

(b)  If a suspension of a license or identification card is probated, the department may require the person to:

(1)  report regularly to the department on matters that are the basis of the probation;

(2)  limit practice to the areas prescribed by the department; or

(3)  continue or renew professional education until the person attains a degree of skill satisfactory to the department in those areas that are the basis of the probation.

(c)  If the department proposes to revoke, modify, or suspend a person's license or identification card, the person is entitled to a hearing conducted under Section 12.032. The decision is appealable in the same manner as provided for contested cases under Chapter 2001, Government Code.

Acts 1981, 67th Leg., p. 1255, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 112, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 419, Sec. 3.21, eff. Sept. 1, 1995.



Section  101.013.  Payment Of Purchase Price On Demand.

(a) If a licensee or a person required to be licensed causes a producer, seller, or owner, or an agent of a producer, seller, or owner, to part with control or possession of all or any part of the person's perishable commodities and agrees by contract of purchase to pay the purchase price on demand following delivery, the licensee or person required to be licensed shall make payment immediately on demand.

(b)  If a person makes demand for the purchase price in writing, the mailing of a registered letter that makes the demand and is addressed to the licensee or person required to be licensed at their business address is prima facie evidence that demand was made at the time the letter was mailed.

(c)  If the producer, seller, owner, or agent waives the right to payment of purchase price on demand, the contract for the handling, purchase, or sale of the perishable commodities must be in writing. The parties shall prepare the contract in duplicate and set out in the contract the full details of the transaction. If the contract does not specify the time and manner of settlement, the licensee shall pay the full amount called for by the contract directly to the producer, seller, owner, or agent before the 31st day following the day of delivery of the perishable commodities into the licensee's control.

Acts 1981, 67th Leg., p. 1255, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 11, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.14, eff. September 1, 2009.



Section 101.014.  Commission Or Service Charge In Contract.

If a licensee or a person required to be licensed handles perishable commodities by guaranteeing a producer or owner a minimum price and handles the perishable commodities on the account of the producer or owner, the licensee or person required to be licensed shall include in the contract with the producer or owner the maximum amount that the licensee or person required to be licensed will charge for commission, service, or both, in connection with the perishable commodities handled.

Acts 1981, 67th Leg., p. 1256, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 12, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.15, eff. September 1, 2009.



Section  101.015.  Settlement On Grade And Quality.

(a) Except as otherwise provided by this section, a licensee or a person required to be licensed shall settle with the producer or seller of perishable commodities on the basis of the grade and quality that is referred to in the contract under which the licensee or person required to be licensed obtained possession or control of the perishable commodities.

(b)  If the perishable commodities have been inspected by a state or federal inspector in this state and found to be of a different grade or quality than that referred to in the contract, the licensee or person required to be licensed shall settle with the producer or seller of the perishable commodities on the basis of the grade and quality determined by the inspector.

(c)  This section does not prevent parties, instead of an inspection, from agreeing in writing that the grade or quality of the perishable commodities were different from that referred to in the contract.

(d)  Failure of a licensee to settle with a producer or seller on grade and quality in the manner provided by this section is a ground for revocation of the licensee's license.

Acts 1981, 67th Leg., p. 1256, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 13, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.16, eff. September 1, 2009.



Section 101.0151.  Buying Or Selling By Weight.

A licensee or a person required to be licensed who buys or sells perishable commodities by weight shall weigh or have the perishable commodities weighed on scales that meet state requirements.

Added by Acts 1999, 76th Leg., ch. 358, Sec. 14, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.17, eff. September 1, 2009.



Section 101.016.  Records Of Purchase.

(a) A licensee or a person required to be licensed or a packer, processor, or warehouseman may not receive or handle perishable commodities without requiring the person from whom the perishable commodities are purchased or received to furnish a statement in writing showing:

(1)  the owner of the perishable commodities;

(2)  the grower of the perishable commodities;

(3)  the approximate location of the land on which the perishable commodities were grown;

(4)  the date the perishable commodities were gathered; and

(5)  by whose authority the perishable commodities were gathered.

(b)  The licensee or person required to be licensed, packer, processor, or warehouseman shall keep records of statements furnished under Subsection (a) in a permanent book or folder for a minimum of three years from the date of the transaction and shall make the records available for inspection by any interested party.

(c)  The licensee or person required to be licensed, packer, handler, or warehouseman shall:

(1)  prepare a receipt detailing the quantity of perishable commodities received from the producer or owner at the time of receipt of the commodities; and

(2)  on request, provide the receipt to the producer or owner.

(d)  The department periodically may investigate licensees, persons required to be licensed, or persons alleged to be selling or purchasing perishable commodities in violation of this chapter and, without notice, may require evidence of purchase of any perishable commodities in a person's possession or past possession.

Acts 1981, 67th Leg., p. 1256, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 15, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.18, eff. September 1, 2009.



Section 101.017.  Record Of Sale.

(a) Except for a retailer, a licensee or a person required to be licensed shall maintain for each sale a complete and accurate record showing:

(1)  the date of sale of the perishable commodities;

(2)  the person to whom the perishable commodities were sold;

(3)  the grade and selling price of the perishable commodities; and

(4)  an itemized statement of expenses of any kind or character incurred in the sale or handling of the perishable commodities, including the amount of the commission to the licensee or person required to be licensed.

(b)  On demand of the department or of an owner, seller, or agent of the owner or seller, the licensee or person required to be licensed shall furnish the information demanded before the 11th day following the date of demand.

(c)  A licensee or a person required to be licensed shall maintain the information required to be kept by this section for at least three years after the date of sale.

Acts 1981, 67th Leg., p. 1256, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1999, 76th Leg., ch. 358, Sec. 16, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.19, eff. September 1, 2009.



Section  101.018.  Department Enforcement.

(a) For the purpose of enforcing this chapter, the department shall, on its own initiative or on receipt of a verified complaint, investigate all alleged violations of this chapter.

(b)  For the purpose of conducting an investigation under this section, the department is entitled to free and unimpeded access at all times to all books, records, buildings, yards, warehouses, storage facilities, transportation facilities, and other facilities or places in which perishable commodities are kept, stored, handled, processed, or transported.

(c)  The department is entitled to examine any portion of the ledger, books, accounts, memoranda, documents, scales, measures, or other matters, objects, or persons relating to a violation under investigation.

(d)  Failure to provide access to records for purposes of examination, as required by Subsections (b) and (c), is a violation for purposes of assessment of administrative penalties.

(e)  Repealed by Acts 1989, 71st Leg., ch. 230, Sec. 131(4), eff. Sept. 1, 1989.

Acts 1981, 67th Leg., p. 1257, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 131(3), (4), eff. Sept. 1, 1989; Acts 1999, 76th Leg., ch. 358, Sec. 17, eff. Sept. 1, 1999.



Section  101.0185.  Civil Penalty; Injunction.

(a) A person who violates this chapter or a rule adopted under this chapter is liable to the state for a civil penalty not to exceed $500 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 chapter or a rule adopted under this chapter. 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.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 113, eff. Sept. 1, 1989.



Section  101.019.  Venue Of Civil Or Criminal Action.

The venue of a civil action or criminal prosecution instituted under this chapter is in the county in which the violation occurred, is occurring, or is threatened or in which the perishable commodities were received by the licensee, packer, or warehouseman.

Acts 1981, 67th Leg., p. 1257, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 114, eff. Sept. 1, 1989; Acts 1999, 76th Leg., ch. 358, Sec. 18, eff. Sept. 1, 1999.



Section  101.020.  Penalties.

(a) A person commits an offense if the person:

(1)  acts in violation of Section 101.003 by not obtaining a license or registration or after receiving notice of cancellation of a license or registration;

(2)  acts or assumes to act as a transporting agent or buying agent:

(A)  without first obtaining an identification card; or

(B)  after receiving notice of cancellation of an identification card;

(3)  as a transporting agent or buying agent, fails and refuses to turn over to the department an identification card in accordance with Section 101.010(e);

(4)  as a license holder or a person required to be licensed, fails to furnish information under Section 101.017 before the 11th day following the date of demand;

(5)  as a license holder or a person required to be licensed, fails to settle with a producer or seller on the grade and quality of perishable commodities in the manner provided by Section 101.015;

(6)   as a license holder or a person required to be licensed, transporting agent, or buying agent, violates a provision of this chapter;

(7)  as a license holder or a person required to be licensed, buys or sells perishable commodities by weight and does not have the perishable commodities weighed on scales that meet state requirements;

(8)  fails to prepare and maintain records required by Sections 101.016, 101.017, and 101.018; or

(9)  fails to provide records as required by Sections 101.016 and 101.018.

(b)  An offense under this section is a misdemeanor punishable by a fine of not more than $500.

(c)  A person commits a separate offense for each day the person acts in violation of Section 101.003 of this code without first obtaining a license or violates Subsection (a)(2) or (a)(3) of this section.

Acts 1981, 67th Leg., p. 1257, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 917, Sec. 5, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, Sec. 7, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, Sec. 19, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506, Sec. 5.20, eff. September 1, 2009.



Section  101.021.  Conflict With Antitrust Laws.

This chapter does not affect the application of Chapter 15, Business & Commerce Code. If any provision of this chapter is held to conflict with that chapter, the entire chapter is void.

Acts 1981, 67th Leg., p. 1258, ch. 388, Sec. 1, eff. Sept. 1, 1981.

Chapter 102. Handling And Marketing Of Citrus Fruit

Subchapter B. Transportation Of Citrus Fruit

Section  102.101.  Identification Signs.

(a) A motor vehicle, including a truck or tractor, that hauls citrus fruit in bulk or in open containers for commercial purposes on the highways of this state must be identified by signs showing:

(1)  the name of the person who owns the vehicle; or

(2)  the name of the person who leases or operates the vehicle.

(b)  If a person licensed under Subchapter A of this chapter is the owner or operator of the vehicle, each identification sign must also show "Licensed Citrus Fruit Dealer" under the name of the person.

(c)  The lettering on each identification sign must be at least three inches in height.

(d)  An identification sign must appear on both sides of the vehicle or on both the front and the rear and must be affixed permanently or in another manner in which it may not easily be removed. If both a tractor and a trailer or two units are used in hauling the citrus fruit, both the tractor and the trailer or both units must be labeled with identification signs in the manner required by this subsection.

Acts 1981, 67th Leg., p. 1266, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.102.  Certificate.

A person who operates a motor vehicle, including a truck or tractor, or a motor vehicle and a trailer for hauling citrus fruit in bulk or in open containers for commercial purposes on the highways of this state shall, when operating the vehicle, have on his or her person a certificate or other document showing:

(1)  the approximate amount of citrus fruit being hauled;

(2)  the name of the owner of the citrus fruit; and

(3)  the origin of the citrus fruit.

Acts 1981, 67th Leg., p. 1266, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.103.  Exception.

This subchapter does not apply to citrus fruit being hauled from the farm or grove to market or the place of first processing by the producer of the citrus fruit operating the producer's vehicle or by an employee of the producer operating a vehicle owned by the producer.

Acts 1981, 67th Leg., p. 1266, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.104.  Penalty.

(a) A person commits an offense if the person:

(1)  operates a motor vehicle or a motor vehicle and trailer not identified in accordance with Section 102.101 of this code; or

(2)  operates a motor vehicle or motor vehicle and trailer without a certificate or document required by Section 102.102 of this code.

(b)  An offense under this section is a Class B misdemeanor.

Acts 1981, 67th Leg., p. 1266, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 118, eff. Sept. 1, 1989.



Section  102.1045.  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 not to exceed $500 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, Sec. 119, eff. Sept. 1, 1989.



Subchapter C. Citrus Marketing Agreements And Licenses

Section  102.151.  Policy.

The unreasonable waste and inefficient use of the citrus resources, caused by the marketing within this state of greater quantities of fresh citrus fruit than are reasonably necessary to supply the demands of the market, are not in the public interest. The difficulty inherent in an attempt of individuals to correlate within a reasonable degree the citrus production to current demand creates chaotic economic conditions in the citrus areas of the state of such severity as to imperil the ability of citrus producers to contribute in appropriate amounts to the support of ordinary governmental and educational functions, thus tending to increase the tax burden of other taxpayers for the same purposes, and renders it impossible for producers to be reasonably assured of an adequate standard of living for themselves and their families. In the interest of the public welfare and general prosperity of the state, the unreasonable waste and inefficient use of citrus resources involved in the marketing of citrus fruit in this state should be eliminated, while at the same time preserving to citrus producers in the area covered by this subchapter an equality of opportunity.

Acts 1981, 67th Leg., p. 1267, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.152.  Definitions.

In this subchapter:

(1)  "Citrus fruit" means grapefruit, oranges, and tangerines.

(2)  "Handler" means a person who packs or ships citrus fruit or causes citrus fruit to be packed or shipped in intrastate commerce.

(3)  "Intrastate commerce" means all commerce other than that which is in interstate commerce or foreign commerce or which directly burdens, obstructs, or affects interstate or foreign commerce.

(4)  "Person" means an individual, corporation, or association.

(5)  "Producer" means a person who is engaged in the production of citrus fruit in this state for commercial purposes or who is a substantial stockholder in a corporation engaged in the production of citrus fruit in this state for commercial purposes.

(6)  "Ship" means convey or cause to be conveyed in intrastate commerce by rail, boat, truck, or other means, not including parcel post or express, whether as owner, agent, or otherwise.

(7)  "Shipment" means the loading into a car or other conveyance for transportation in intrastate commerce.

(8)  "Variety" means the following classifications or groups of citrus fruit:

(A)  oranges:

(i)  early season oranges; and

(ii)  valencias, including Lou Gim Gongs;

(B)  grapefruit:

(i)  Marsh and other seedless grapefruits, except pinks;

(ii)  Duncan and other seeded grapefruits, except pinks;

(iii)  seeded pinks; and

(iv)  seedless pinks; and

(C)  tangerines and temple oranges grouped as one variety.

Acts 1981, 67th Leg., p. 1267, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.153. 

 LIMITED APPLICATION OF

Subchapter

. This subchapter applies only to areas of three citrus fruit producing counties whose boundaries are contiguous and whose aggregate population according to the last preceding federal census is not less than 165,043. This subchapter does not apply to citrus fruit grown in other areas of this state.

Acts 1981, 67th Leg., p. 1268, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.154.  Marketing Agreements And Licenses.

In accordance with this subchapter, the department may execute marketing agreements and issue licenses to persons engaged in intrastate commerce transactions in the marketing, processing, packing, shipping, handling, or distributing of citrus fruit.

Acts 1981, 67th Leg., p. 1268, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.155.  Hearing.

(a) On its own motion or on application of a producer or handler of citrus fruit, the department may conduct a hearing on the execution of a marketing agreement or on the issuance of a license if the department has reason to believe that the marketing agreement or license will tend to effectuate the policy of this subchapter.

(b)  The department shall conduct a hearing under this section in the area subject to this subchapter and shall within a reasonable time make the evidence and exhibits offered at the hearing available at a central point to any interested party. The department shall produce a transcript of the hearing and make it available to any interested party.

Acts 1981, 67th Leg., p. 1268, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.156.  Findings.

(a) Following a hearing, the department may execute a marketing agreement or issue a license only if it finds that:

(1)  the supply of a citrus fruit available for marketing exceeds or is likely to exceed the demand for the fruit at prices that will provide a reasonable return to representative producers of that fruit;

(2)  the return to producers of the citrus fruit will tend to be increased through the operation of the marketing plan;

(3)  the marketing plan may be operated without permitting unreasonable profits to producers of the citrus fruit and without unreasonably enhancing prices of the citrus fruit to consumers; and

(4)  the marketing plan will tend to advance public welfare and conserve the agricultural wealth of the state by preventing threatened economic or agricultural waste and will tend to prevent chaotic marketing of the citrus fruit.

(b)  The findings of the department, and the administration of any marketing agreement or license, shall be based on relevant considerations, including:

(1)  the quantity of the several grades, varieties, and qualities of the citrus fruit under consideration and available for distribution to consumers in the marketing season during which the program is to be effective;

(2)  the quantity of the several grades, varieties, and qualities of the citrus fruit required by consumers during the marketing season during which the program is to be effective;

(3)  the cost of production of the citrus fruit;

(4)  the general purchasing power of consumers of the citrus fruits;

(5)  the general level of prices of commodities that farmers buy; and

(6)  the general level of prices of other commodities that compete with or are used as substitutes for the citrus fruit.

Acts 1981, 67th Leg., p. 1268, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.157.  Terms Of Agreement Or License.

(a) Any marketing agreement executed or license issued may:

(1)  limit or provide a method for limiting the total quantity of any grade, variety, size, or quality of citrus fruit that may be produced during one or more specified periods and marketed in or transported to a market in intrastate commerce;

(2)  allot or provide a method for allotting the amount of citrus fruit or any grade, variety, size, or quality of citrus fruit that each handler may market in intrastate commerce;

(3)  determine or provide a method for determining the existence and extent of a surplus of a citrus fruit or of any grade, variety, size, or quality of a citrus fruit, provide for the control and disposition of that surplus in a manner that does not burden or obstruct interstate or foreign commerce, and equalize the burden of a surplus elimination or control among the producers and handlers of the citrus fruit;

(4)  provide for administrative committees under Section 102.158 of this code; and

(5)  provide other terms or conditions incidental to and consistent with this section.

(b)  If the marketing agreement or license allots or provides a method for allotting the amount of a citrus fruit that a handler may handle, the marketing agreement or license must:

(1)  be under a uniform rule based on one or both of the following:

(A)  the amount of the citrus fruit or grade, variety, size, or quality of the citrus fruit that each handler has available for current shipment; and

(B)  the amount shipped by each handler in a prior representative period, as determined by the department; and

(2)  equitably apportion among all the handlers the total quantity of the citrus fruit or any grade, variety, size, or quality of the citrus fruit to be marketed in or transported to markets in intrastate commerce.

(c)  A marketing agreement or license may include one or more of the terms and conditions under Subsection (a) of this section, but may not include others.

Acts 1981, 67th Leg., p. 1269, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.158.  Administrative Committee.

(a) A marketing agreement or license may authorize the department to select and define the powers and duties of one or more administrative committees to administer the program.

(b)  The department may authorize an administrative committee to:

(1)  administer the license in accordance with its terms and provisions;

(2)  adopt rules to effectuate the terms and provisions of the license;

(3)  receive, investigate, and report to the department complaints of violations of the license;

(4)  recommend to the department amendments to the license; and

(5)  collect assessments in accordance with Section 102.159 of this code.

(c)  The department may require an administrative committee to file reports of the activities and proceedings of the committee.

Acts 1981, 67th Leg., p. 1269, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.159.  Assessment.

(a) If an administrative committee is authorized to collect an assessment, for each marketing season or year in which the marketing agreement or license is effective the committee shall collect from each handler an assessment representing the handler's pro rata share of the estimated expenses incurred by the department in conducting hearings and incurred by the administrative committee in administering the agreement or license during the marketing season or year. The department shall estimate those expenses after each administrative committee submits to the department a proposed budget.

(b)  An assessment levied under this section is a personal debt of each person assessed and is immediately due and payable to the administrative committee charged with collection. With the approval of the department, an administrative committee may sue in its own name in a court of competent jurisdiction for the collection of an assessment.

(c)  In accordance with the rules of the department, each administrative committee charged with the collection of assessments shall collect, report, and pay monthly to the department the amount of the assessments that the department determines will be necessary to defray the department's cost of administering the marketing agreement or license during the subsequent month.

(d)  The department shall submit to each administrative committee charged with collecting assessments quarterly statements reporting the receipts and expenditures during the quarter in connection with the administration of the appropriate marketing agreement or license.

(e)  An administrative committee may expend assessments for the purposes set forth in the marketing agreement or license under which the assessment is collected. The committee shall keep a full and complete record of those expenditures and the department is entitled to access to that record at any time.

(f)  An administrative committee shall retain custody of assessments that are not paid to the department or expended under Subsection (e) of this section. At the close of the marketing season or year for which an assessment is collected, the committee shall return to each handler a pro rata share of assessments that are not paid to the department or expended by the committee.

Acts 1981, 67th Leg., p. 1270, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.160.  Approval By Producers And Handlers.

(a) A license may not be issued until:

(1)  assented to in writing by:

(A)  51 percent of the total number of handlers of the citrus fruit; or

(B)  the handlers of at least 51 percent of the total volume of the citrus fruit covered by the license; and

(2)  the department determines that the issuance of the license is approved by:

(A)  66-2/3 percent of the producers who, during a representative period determined by the department, have been engaged in the production of the citrus fruit in commercial quantities in the area covered by the license; or

(B)  the producers who, during the representative period, produced for market at least 66-2/3 percent of the volume of the citrus fruit produced for market in the area covered by the license.

(b)  In determining the representative period under Subsection (a)(2) of this section, the department may select the crop season prior to the holding of a hearing on the issuance of the license or any other period that the department determines to be representative.

(c)  In determining the approval of producers under Subsection (a)(2) of this section, the department shall determine the approval or disapproval of the producers in respect to the issuance of any license or order or any term or condition of a license or order. The department shall consider the approval or disapproval of any cooperative association of producers that is engaged in marketing the citrus fruit for producers or is rendering service to or advancing the interest of those producers as the approval or disapproval of the producers who are members of, stockholders in, or under contract with the association. Approval by an association may be executed in the name of the association and is not required to set forth the names of the producers represented by the association.

Acts 1981, 67th Leg., p. 1270, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.161.  Uniform Licenses.

If a license is issued under this subchapter, the department shall issue an identical license to each handler, processor, or distributor of the same class.

Acts 1981, 67th Leg., p. 1271, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.162.  Fees.

Each person applying for a marketing agreement or license shall submit to the department a filing fee, as provided by department rule, and a deposit in an amount that the department considers sufficient and necessary to defray the expenses of preparing and making effective the marketing agreement or license.

Acts 1981, 67th Leg., p. 1271, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 2.49, eff. Sept. 1, 1995.



Section  102.163.  Amendment Of Marketing Agreement Or License.

(a) If the department has reason to believe that an amendment of a marketing agreement or license is necessary or desirable to achieve the policy of this subchapter, the department shall conduct a hearing on the proposed amendment in the manner provided for the original hearing on execution of the agreement or issuance of the license.

(b)  Notice of a hearing under this section must refer to the marketing agreement to be amended by name and date of execution and must refer to the license to be amended by name and date of adoption.

(c)  The department may adopt an amendment under this section if it finds that the proposed amendment:

(1)  will not prevent the marketing agreement or license from meeting the requirements of Section 102.156 of this code; and

(2)  will tend to facilitate the administration of the marketing agreement or license or will enable the marketing agreement or license to better meet the requirements of Section 102.156 of this code.

(d)  A marketing agreement or license is not affected by a negative department finding under Subsection (c) of this section.

(e)  In considering an amendment under this section, the department shall consider the evidence presented at the original hearing or a hearing on a previously proposed amendment.

(f)  An amendment under this section is not effective until approved by the handlers and producers in the manner provided by Section 102.160 of this code.

Acts 1981, 67th Leg., p. 1271, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.164.  Suspension Or Termination Of Marketing Agreement Or License.

(a) The department shall suspend for a specified period or terminate the operation of a marketing agreement, a license, or a provision of a marketing agreement or license if the department finds:

(1)  following investigation, that the agreement, license, or provision obstructs or does not tend to effectuate the policy of this subchapter; or

(2)  that termination of the agreement, license, or provision is favored by a majority of the producers who, during a representative period determined by the department:

(A)  have been engaged in the production of the citrus fruit in the area covered by the agreement or license; and

(B)  produced more than 66-2/3 percent of the volume of the citrus fruit that was produced for market within the area of the state covered by this subchapter or was produced within the area of this state covered by this subchapter for market elsewhere.

(b)  Termination of a marketing agreement, a license, or a provision of a marketing agreement or license is effective only if announced on or before the end of the current marketing period specified in the agreement or license.

Acts 1981, 67th Leg., p. 1272, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.165.  Suspension Or Revocation Of Individual License.

After notice and opportunity for a hearing, the department may suspend or revoke the license of any person who violates a provision of the license.

Acts 1981, 67th Leg., p. 1272, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.166.  Records.

(a) Each person subject to a marketing agreement or license shall:

(1)  maintain records reflecting the person's operation under the agreement or license;

(2)  permit the department to inspect those records; and

(3)  furnish to the department information requested by the department relating to the person's operations under the agreement or license.

(b)  Except as otherwise provided by this subsection, information obtained under this section is confidential and may not be disclosed to any person. The information may be disclosed to a person with a similar right to obtain the information or to an attorney employed by an administrative committee to give legal advice on the information. In addition, the information may be disclosed in response to a court order.

Acts 1981, 67th Leg., p. 1272, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.167.  Powers And Duties Of The Department.

(a) The department may adopt rules and issue orders as necessary or desirable to carry out this subchapter.

(b)  The department may hold hearings, take testimony, administer oaths, subpoena witnesses, and issue subpoenas for the production of relevant books, records, or documents. A person may not be excused from attending and testifying or from producing documentary evidence before the department in obedience to a subpoena on the ground that the testimony or evidence required may tend to incriminate the person or subject the person to a penalty or forfeiture. An individual may not be prosecuted or subjected to any penalty or forfeiture because of any transaction, matter, or thing concerning which the person is required to testify or produce evidence before the department in obedience to a subpoena. An individual so testifying is not exempt from prosecution and punishment for perjury committed in that testimony.

(c)  The department may permit an administrative committee to use the various employees or officers of the department in carrying out this subchapter or a marketing agreement or license under this subchapter.

(d)  The department may confer and cooperate with the authority of another state or the United States in order to secure uniformity in the administration of federal and state marketing agreements, standards, licenses, orders, or rules. The department may conduct hearings jointly with the United States Department of Agriculture.

(e)  Not later than the 30th day before the first day of each regular session of the legislature, the department shall submit to the governor a full report of transactions under this subchapter during the preceding biennium. The report must include a complete statement of receipts and expenditures under this subchapter during the biennium.

(f)  At the end of each month, the department shall report to the comptroller of public accounts, and the comptroller shall deposit in the state treasury, all money received under this subchapter.

Acts 1981, 67th Leg., p. 1272, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.168.  Enforcement By Civil Suit.

(a) The state or, with the approval of the department, an administrative committee may sue a person who:

(1)  wilfully exceeds any quota, allotment, or salable percentage fixed for the person under a license issued or rule adopted by the department;

(2)  makes a shipment without first obtaining a required allotment or quota or qualifying to ship the person's salable percentage; or

(3)  knowingly participates or aids in activities under Subdivision (1) or (2) of this subsection.

(b)  If successful in a suit under Subsection (a) of this section, the state or administrative committee is entitled to recover an amount equal to three times the current market value of the citrus fruit excess or the citrus fruit shipment, as applicable. Funds recovered in a suit under this section shall be used in the administration of the license involved in the suit.

Acts 1981, 67th Leg., p. 1273, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.169.  Injunction.

The attorney general or a district or county attorney on the attorney's own initiative may, or in response to a complaint shall, investigate violations of this subchapter. If the attorney believes that a violation has occurred, the attorney may sue in the name of the state for an injunction against a person who:

(1)  is violating a provision of a marketing agreement, a license, or an order or rule of the department to which the person is subject; or

(2)  engages in transactions mentioned in and regulated by a license during suspension or after revocation of the person's license.

Acts 1981, 67th Leg., p. 1273, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.170.  Attorney's Fees; Venue; Cumulative Remedies.

(a) In an action brought under Section 102.168 or 102.169 of this code, the judgment, if in favor of the plaintiff, shall provide that the defendant pay to the plaintiff a reasonable attorney's fee and all costs of suit. An action under those sections may be brought in the county where the defendant resides or where the act, omission, or part of the act or omission occurred.

(b)  The remedies and penalties of this subchapter are cumulative and action or prosecution under a section of this subchapter does not prohibit action or prosecution under another section of this subchapter or any other civil or criminal law.

Acts 1981, 67th Leg., p. 1274, ch. 388, Sec. 1, eff. Sept. 1, 1981.



Section  102.171.  Penalty.

(a) A person commits an offense if the person:

(1)  violates a provision of a marketing agreement or license to which the person is subject; or

(2)  engages in a transaction mentioned in and regulated by a license to which the person is subject during the suspension or after the revocation of the person's license.

(b)  An offense under this section is a Class B misdemeanor.

(c)  A person commits a separate offense for each day during which the person acts under Subsection (a) of this section.

Acts 1981, 67th Leg., p. 1274, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 120, eff. Sept. 1, 1989.



Section  102.172.  Conflict With Antitrust Law.

If any provision of this subchapter conflicts with a provision of the civil or criminal antitrust law of this state, the antitrust law prevails.

Acts 1981, 67th Leg., p. 1274, ch. 388, Sec. 1, eff. Sept. 1, 1981.


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