CHAPTER 41. COMMODITY PRODUCERS BOARDS - Texas Statutes

AGRICULTURE CODE

TITLE 3. AGRICULTURAL RESEARCH AND PROMOTION

CHAPTER 41. COMMODITY PRODUCERS BOARDS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 41.001. POLICY. It is in the interest of the public

welfare of the State of Texas that the producers of any

agricultural commodity be permitted and encouraged to develop,

carry out, and participate in programs of research, disease and

insect control, predator control, education, and promotion

designed to encourage the production, marketing, and use of the

agricultural commodity. The purpose of this chapter is to

authorize and prescribe the necessary procedures by which the

producers of an agricultural commodity grown in this state may

finance those programs. The programs may be devised to alleviate

any circumstance or condition that serves to impede the

production, marketing, or use of any agricultural commodity.

Acts 1981, 67th Leg., p. 1081, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.002. DEFINITIONS. In this chapter:

(1) "Agricultural commodity" means an agricultural,

horticultural, viticultural, or vegetable product, bees and

honey, planting seed, rice, livestock or livestock product, or

poultry or poultry product, produced in this state, either in its

natural state or as processed by the producer. The term does not

include flax.

(2) "Board" means a commodity producers board.

(3) "Commissioner" means the commissioner of agriculture.

(4) "District" means a geographical area within the jurisdiction

of a board.

(5) "Processor" means a person within this state who:

(A) is a purchaser, warehouseman, processor, or other commercial

handler of an agricultural commodity;

(B) processes planting seeds; or

(C) is the mortgagee of an agricultural commodity if the

mortgage did not cover the commodity in its state as a growing

crop and if the mortgage was executed at a time when the

commodity was ready for marketing.

(6) "Producer" means a person engaged in the business of

producing or causing to be produced for commercial purposes an

agricultural commodity. The term includes the owner of a farm on

which the commodity is produced and the owner's tenant or

sharecropper.

(7) "Person" means an individual, firm, corporation,

association, or any other business unit.

(8) "Secretary-treasurer" means the secretary-treasurer of a

board.

Acts 1981, 67th Leg., p. 1082, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1983, 68th Leg., p. 3184, ch. 545, Sec. 1;

Acts 1987, 70th Leg., ch. 109, Sec. 1, eff. May 18, 1987; Acts

2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.02, eff. Jan. 11, 2004.

SUBCHAPTER B. CERTIFICATION OF ORGANIZATIONS TO CONDUCT

REFERENDUM AND ELECTION

Sec. 41.011. PETITION FOR CERTIFICATION. (a) Any nonprofit

organization authorized under the laws of this state representing

the producers of an agricultural commodity may petition the

commissioner for certification as the organization authorized to

conduct an assessment referendum and an election of a commodity

producers board.

(b) If the referendum and election are to be conducted in a

limited area of the state, the petition must describe the

boundaries of the area to be included.

(c) The petition must propose a board with an odd number of five

to 15 members.

Acts 1981, 67th Leg., p. 1082, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2003, 78th Leg., ch. 1170, Sec. 7.01, eff.

Sept. 1, 2003.

Sec. 41.012. CERTIFICATION BY COMMISSIONER. (a) Within 30 days

following the day on which a petition for certification is

received, the commissioner shall hold a public hearing to

consider the petition.

(b) If the commissioner determines that, on the basis of

testimony presented at the public hearing, the petitioning

organization is representative of the producers of the

agricultural commodity within the boundaries described in the

petition and that the petition conforms to the purposes and

provisions of this chapter, the commissioner shall certify that

the organization is representative of the producers of the

commodity within the described area and is authorized to conduct

the assessment referendum and board election.

Acts 1981, 67th Leg., p. 1083, ch. 388, Sec. 1, eff. Sept. 1,

1981.

SUBCHAPTER C. REFERENDA AND ELECTIONS

Sec. 41.021. CERTIFIED ORGANIZATION TO CONDUCT REFERENDUM AND

ELECTION. In accordance with this subchapter and the rules of

the commissioner, a certified organization may conduct a

referendum of the producers of an agricultural commodity on the

proposition of whether or not the producers shall levy an

assessment on themselves to finance programs of research, disease

and insect control, predator control, education, and promotion

designed to encourage the production, marketing, and use of the

commodity. At the same time, the certified organization may

conduct an election of members to a commodity producers board for

the commodity.

Acts 1981, 67th Leg., p. 1083, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.022. RULES OF COMMISSIONER. In order to ensure

efficient and honest elections and efficient canvassing and

reporting of returns, the commissioner shall adopt rules

regulating the form of the ballot, the conduct of the election,

and the canvass and reporting of returns.

Acts 1981, 67th Leg., p. 1083, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.023. NOTICE OF REFERENDUM AND ELECTION. (a) The

certified organization shall give public notice of:

(1) the date, hours, and polling places for voting in the

referendum and election;

(2) the estimated amount and basis of the assessment proposed to

be collected;

(3) whether a producer exemption is to be allowed in accordance

with Section 41.082; and

(4) a description of the manner in which the assessment is to be

collected and the proceeds administered and used.

(b) The notice under Subsection (a) of this section shall be

published in one or more newspapers published and distributed

within the boundaries described in the petition. The notice shall

be published for not less than once a week for three consecutive

weeks, beginning at least 60 days before the date of the

election. In addition, at least 60 days before the date of the

election the certified organization shall give direct written

notice to each county agent in any county within the boundaries

described in the petition.

Acts 1981, 67th Leg., p. 1083, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1983, 68th Leg., p. 3184, ch. 545, Sec. 2.

Sec. 41.024. BASIS OF REFERENDUM AND ELECTION; ELIGIBLE VOTERS.

(a) Subject to the approval of the commissioner, the certified

organization may conduct the referendum and election under this

chapter either on an area or statewide basis, as determined by

the organization in its petition for certification.

(b) A producer of the agricultural commodity is eligible to vote

in the referendum and election if:

(1) the producer's production occurs within the area described

in the organization's petition; and

(2) the producer would be required under the referendum to pay

the assessment.

Acts 1981, 67th Leg., p. 1083, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.025. CANDIDATES FOR BOARD; WRITE-IN VOTES. (a) Any

producer who is eligible to vote at the referendum and election

is eligible to be a member or a candidate for membership on the

commodity producers board.

(b) A potential candidate must file with the certified

organization an application to have his or her name printed on

the ballot. The application must be signed by the candidate and

by at least 10 producers who are eligible to vote at the

election. The application must be filed at least 30 days before

the date set for the election.

(c) A voter may vote for board members by writing in the name of

any eligible person whose name is not printed on the ballot.

Acts 1981, 67th Leg., p. 1084, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.026. PREPARATION AND DISTRIBUTION OF BALLOT. (a) The

certified organization shall prepare and distribute all necessary

ballots in advance of the referendum and election.

(b) The referendum provisions of the ballot shall specify a

maximum rate for the authorized assessment.

(c) The election provisions of the ballot may be printed only

with the names of candidates who have filed valid petitions under

Section 41.025 of this code, but the ballot shall provide a space

for write-in votes.

(d) The ballot shall provide a space for the voter to certify

the volume of the voter's production of the commodity within the

area described in the petition during the preceding year or other

relevant production period, as designated on the ballot.

Acts 1981, 67th Leg., p. 1084, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.027. EXPENSES OF ELECTION. The certified organization

is responsible for all expenses incurred in connection with the

referendum and election, but it may be reimbursed for actual and

necessary expenses out of funds deposited in the treasury of the

board if the assessment is levied and collected.

Acts 1981, 67th Leg., p. 1084, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.028. EXEMPTIONS FOR PRODUCERS. The original referendum

and subsequent biennial board elections may provide exemptions

for producers within the boundaries described in the petition if

the exemptions are included in full written form on the election

ballot and are approved by two-thirds or more of those voting in

the election.

Acts 1981, 67th Leg., p. 1084, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.029. VOID BALLOTS. (a) In any contest of an election,

a ballot is void if the voter overstated his or her volume of

production by more than 10 percent. Any other error in stating

volume of production is not grounds for invalidating the ballot.

(b) If a ballot is void or if any other error is made in stating

production volume, the returns shall be corrected and the results

adjusted accordingly.

Acts 1981, 67th Leg., p. 1084, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.030. FINDINGS OF COMMISSIONER. On receiving the report

of the returns of a referendum and election, the commissioner

shall determine:

(1) the number of votes cast for and against the referendum

proposition;

(2) the total volume of production of the commodity during the

relevant production period in the area described in the petition;

(3) the percentage of the total volume of production of the

commodity that was produced by those voting in favor of the

referendum proposition; and

(4) the appropriate number of candidates receiving the highest

number of votes for membership on the commodity producers board.

Acts 1981, 67th Leg., p. 1085, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.031. CERTIFICATION OF RESULTS. If the commissioner

finds that two-thirds or more of those voting in the election

voted in favor of the referendum proposition or that those voting

in favor of the proposition produced at least 50 percent of the

volume of production of the commodity during the relevant

production period, the commissioner shall publicly certify the

adoption of the referendum proposition and issue certificates of

election to those persons elected to the board. Otherwise, the

commissioner shall publicly certify that the referendum

proposition was defeated.

Acts 1981, 67th Leg., p. 1085, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.032. SUBSEQUENT BOARD ELECTIONS. A commodity producers

board shall conduct biennial elections for the purpose of

electing members to the board. The board shall give notice and

hold the election in accordance with the applicable provisions of

this subchapter relating to the initial election and, to the

extent necessary, in accordance with the rules of the

commissioner.

Acts 1981, 67th Leg., p. 1085, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.033. ELECTION OF BOARD FROM DISTRICTS. (a) In

accordance with the rules of the commissioner, a certified

organization or established board may provide for election of all

or any number of the members of the board from districts. Each

plan must be submitted to the commissioner for approval.

(b) In order to represent a district on the board, a person must

reside within that district. Only voters residing in a district

may vote for candidates for the position representing the

district.

(c) With the approval of the commissioner, a district

representation plan may be modified.

Acts 1981, 67th Leg., p. 1085, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.034. ELECTIONS TO ADD NEW TERRITORY. (a) Producers of

an agricultural commodity in an area not within the jurisdiction

of a board for that commodity may petition the commissioner to

authorize a referendum within an area specified in the petition

on the issue of whether or not the area is to be included within

the jurisdiction of that board. The petition must be submitted to

the commissioner at least 105 days before the date of the

election at which the referendum is to be conducted.

(b) If the commissioner determines that in the area described

there exists among the producers of the commodity an interest in

becoming subject to the jurisdiction of the board that is

substantial enough to justify a referendum, the commissioner may

transmit the petition to the board with an order authorizing the

board in its discretion to conduct the election at its own

expense. The petition and order must be transmitted to the board

at least 75 days before the date of the election.

(c) The referendum shall be held on the date of the biennial

election of board members. The board shall give public notice of:

(1) the date of the election;

(2) the amount and basis of the assessment collected by the

board;

(3) a description of the manner in which the assessment is

collected and the proceeds administered and used; and

(4) any other proposition the board proposes to include on the

ballot as authorized or required by this chapter.

(d) The notice under Subsection (c) of this section shall be

published in one or more newspapers published and distributed, or

generally circulated, within the boundaries described in the

petition. The notice shall be published at least once a week for

three consecutive weeks, beginning at least 60 days before the

date of the election. In addition, at least 60 days before the

date of the election the board shall give direct written notice

to each county agent in any county within the described

boundaries.

(e) A person is qualified to vote in the referendum if he or she

is or, for at least one production period during the three years

preceding the date of the referendum, has been a producer of the

commodity whose production occurs within the area described in

the petition.

(f) A producer who is qualified to vote in the referendum is

eligible to be a member of or a candidate for membership on the

board. If the board is elected from districts, a producer within

the described boundaries may be a candidate only for at-large

positions on the board, if any. In order to qualify as a

candidate, the producer must comply with Section 41.025 of this

code, except that the application shall be filed with the board

and may not be filed before the first publication of notice under

Subsection (d) of this section.

(g) In the area described in the petition, the ballot shall be

prepared and distributed and the election shall be conducted in

accordance with the rules of the commissioner under Section

41.022 of this code.

(h) Except as otherwise provided in this subsection, voters

qualified to vote in the referendum are entitled to vote for

candidates for membership on the board and for any other

proposition printed on the ballot for the regular election. If

board members are elected from districts, voters in the area

described in the petition may vote only for at-large positions,

if any.

(i) The ballots cast in the area described in the petition shall

be canvassed, and the returns reported, separately from the

ballots cast in other areas. On those returns, the board shall

perform the functions of the commissioner described in Section

41.030 of this code, except that the board shall certify whether

the referendum proposition carried or was defeated in the area

described in the petition. If the referendum proposition is

defeated, the ballots cast in the area described in the petition

may not be counted for any other purpose. If the proposition

carries, the returns shall be included in determining the

election of board members and the outcome of other propositions.

The area described in the petition becomes subject to the

jurisdiction of the board on the day following the date that the

result is certified.

Acts 1981, 67th Leg., p. 1085, ch. 388, Sec. 1, eff. Sept. 1,

1981.

SUBCHAPTER D. ORGANIZATION, POWERS, AND DUTIES OF BOARDS

Sec. 41.051. BOARD ESTABLISHED. If the commissioner certifies

adoption of a referendum proposition under Section 41.031 of this

code, the board is established and has the powers and duties

prescribed by this chapter.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.052. STATE AGENCY. (a) Each board is a state agency

for purposes of indemnification and is exempt from taxation in

the same manner and to the same extent as are other agencies of

the state.

(b) Each board is a governmental unit for purposes of Section

101.001, Civil Practice and Remedies Code, and is a governmental

body for purposes of Chapters 551 and 552, Government Code.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2001, 77th Leg., ch. 52, Sec. 7, eff. May

7, 2001.

Sec. 41.053. ORGANIZATIONAL MEETING; TERMS OF OFFICE. (a) On

receiving certificates of election from the commissioner, the

members of the commodity producers board shall meet and organize.

(b) Members of the initial board shall draw lots so that

one-third, or as near one-third as possible, of the members shall

hold office for two years, one-third, or as near one-third as

possible, for four years, and one-third, or as near one-third as

possible, for six years. Thereafter, members of the board serve

for terms of six years.

(c) Each member holds office until a successor is elected and

has qualified.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2003, 78th Leg., ch. 1170, Sec. 7.02, eff.

Sept. 1, 2003.

Sec. 41.054. OFFICERS; BOND. (a) The board shall elect from

its number a chairman, a secretary-treasurer, and other officers

that it considers necessary.

(b) The secretary-treasurer shall execute a corporate surety

bond in an amount required by the board. The bond shall be

conditioned on the secretary-treasurer faithfully accounting for

all money that comes into the custody of the officer. The bond

shall be filed with the commissioner.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.055. VACANCY. The board shall fill any vacancy on the

board by appointment for the unexpired term.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.056. MAJORITY VOTE REQUIREMENT. A majority vote of all

members present is necessary for an action of the board to be

valid.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.057. COMPENSATION. Members of the board serve without

compensation but are entitled to reimbursement for reasonable and

necessary expenses incurred in the discharge of their duties.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.058. POWERS AND DUTIES. (a) The board may employ

necessary personnel, fix the amount and manner of their

compensation, and incur other expenses that are necessary and

proper to enable the board to effectively carry out the purposes

of this chapter.

(b) The board may adopt rules consistent with the purposes of

this chapter.

(c) The board shall keep minutes of its meetings and other books

and records that clearly reflect all acts and transactions of the

board. The board shall open its records to examination by any

participating producer during regular business hours.

(d) The board shall set the rate of the assessment. The rate may

not exceed the maximum established in the election authorizing

the assessment or a subsequent election establishing a maximum

rate.

(e) The board may act separately or in cooperation with any

person in developing, carrying out, and participating in programs

of research, disease and insect control, predator control,

education, and promotion designed to encourage the production,

marketing, and use of the commodity on which the assessment is

levied.

Acts 1981, 67th Leg., p. 1087, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.059. BUDGET; ANNUAL REPORT; AUDITS. (a) The board

shall file with the commissioner a proposed budget and may expend

funds only after the commissioner has approved the budget. If

after thorough review the commissioner disapproves the proposed

budget, the commissioner shall return the proposed budget to the

submitting board not later than the 45th day after the date on

which the proposed budget is submitted with a statement of

reasons for disapproval.

(b) Accounts of the board are subject to audit by the state

auditor.

(c) Within 30 days following the end of each fiscal year of the

board, the board shall submit to the commissioner a report

itemizing all income and expenditures and describing all

activities of the board during the previous fiscal year.

Acts 1981, 67th Leg., p. 1088, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 35, eff.

Sept. 1, 1989.

Sec. 41.060. DEPOSITORY BANK; EXPENDITURE OF FUNDS. (a) The

secretary-treasurer shall deposit all money received by the board

under this chapter, including assessments, donations from

persons, and grants from governmental agencies, in a bank

selected by the board.

(b) Money received by the board may be expended for any purpose

under this chapter.

(c) Funds assessed and collected under this chapter may not be

expended for use directly or indirectly to promote or oppose the

election of any candidate for public office or to influence

legislation.

Acts 1981, 67th Leg., p. 1088, ch. 388, Sec. 1, eff. Sept. 1,

1981.

SUBCHAPTER E. ASSESSMENTS

Sec. 41.081. COLLECTION OF ASSESSMENT. (a) The processor at a

commodity process point determined by the board shall collect the

assessment. Except as provided by Subsection (b) of this section,

the processor at that point shall collect the assessment by

deducting the appropriate amount from the purchase price of the

commodity or from any funds advanced for that purpose.

(b) If the producer and processor are the same legal entity, or

if the producer retains ownership after processing, the processor

shall collect the assessment directly from the producer at the

time of processing.

(c) The secretary-treasurer of the board, by registered or

certified mail, shall notify each processor of the duty to

collect the assessment, the manner in which the assessment is to

be collected, and the date on or after which the processor is to

begin collecting the assessment.

(d) The amount of the assessment collected shall be clearly

shown on the sales invoice or other document evidencing the

transaction. The processor shall furnish a copy of the document

to the producer.

(e) Unless otherwise provided by the original referendum, no

later than the 10th day of each month the processor shall remit

the amount collected during the previous month to the

secretary-treasurer of the board.

Acts 1981, 67th Leg., p. 1088, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.082. PRODUCER EXEMPTION. (a) A producer may exempt his

or her product sales from assessment by filing a signed request

for exemption with the processor at the time of each sale unless

the notice of referendum to authorize the assessment or to add

new territory stated that such an exemption would not be allowed

or unless any board established prior to September 1, 1983,

adopts a rule denying such an exemption. The processor shall

include copies of the exemption request with the remittance of

collected assessments to the secretary-treasurer.

(b) The commissioner shall prescribe the form of the request for

exemption. The board shall furnish the prescribed form to each

processor within the board's jurisdiction.

Acts 1981, 67th Leg., p. 1088, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1983, 68th Leg., p. 3185, ch. 545, Sec. 3,

eff. Nov. 8, 1983.

Sec. 41.083. PRODUCER REFUNDS. (a) A producer who has paid an

assessment may obtain a refund of the amount paid by filing an

application for refund with the secretary-treasurer within 60

days after the date of payment. The application must be in

writing, on a form prescribed by the board for that purpose, and

accompanied by proof of payment of the assessment.

(b) The secretary-treasurer shall pay the refund to the producer

before the 11th day of the month following the month in which the

application for refund and proof of payment are received.

Acts 1981, 67th Leg., p. 1089, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.084. INCREASE OF ASSESSMENT. At any biennial board

election, the board may submit to the voters a proposition to

increase the maximum rate of assessment. The proposition is

approved and the new maximum rate is in effect if two-thirds or

more of those voting vote in favor of the proposition or if those

voting in favor of the proposition produced at least 50 percent

of the volume of production of the commodity during the relevant

production period.

Acts 1981, 67th Leg., p. 1089, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.085. DISCONTINUANCE OF ASSESSMENT. (a) If 10 percent

or more of the producers participating in the program present to

the secretary-treasurer a petition calling for a referendum of

the qualified voters on the proposition of discontinuing the

assessment, the board shall conduct a referendum for that

purpose.

(b) The board 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.

(c) The board shall conduct the referendum within 90 days of the

date of filing of the petition.

(d) Approval of the proposition is by majority vote of those

voting. If the proposition is approved, the assessment is

abolished.

Acts 1981, 67th Leg., p. 1089, ch. 388, Sec. 1, eff. Sept. 1,

1981.

SUBCHAPTER F. REMEDIES AND PENALTIES

Sec. 41.101. FAILURE TO REMIT ASSESSMENT. (a) The board may

investigate conditions that relate to the prompt remittance of

the assessment by any producer or processor. If the board has

probable cause to believe that a person has failed to collect an

assessment or failed to remit to the board an assessment as

required by this chapter, the board may:

(1) independently institute proceedings for recovery of the

amount due to the board or for injunctive or other appropriate

relief;

(2) request the attorney general, or the county or district

attorney having jurisdiction, or both, to institute proceedings

in the board's behalf; or

(3) forward to the department for action under Section 41.1011 a

complaint and any original evidence or other information

establishing probable cause.

(b) Suit under this section may be brought in Travis County or a

county in which the person who is alleged to have failed to

collect or remit an assessment conducts business related to the

commodity subject to the uncollected or unpaid assessment.

(c) The remedies provided by this section are cumulative of

other remedies provided by law.

Acts 1981, 67th Leg., p. 1089, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2001, 77th Leg., ch. 374, Sec. 2, eff. May

25, 2001.

Sec. 41.1011. ACTION BY DEPARTMENT. (a) On receipt of a

complaint from the board under Section 41.101(a)(3), the

department may investigate, audit, and inspect the records of the

person who is the subject of the complaint, provided that any

audit or inspection must take place during normal business hours.

(b) On determination by the department that a person has failed

to collect an assessment or failed to remit to the board an

assessment collected from a producer or processor, the department

may:

(1) request a hearing under Section 12.032 to determine the

amount of payment due to the board, including interest at an

annual rate of 10 percent, and issue an order that the person pay

the required amount to the board;

(2) impose an appropriate administrative penalty; and

(3) request the attorney general or a county or district

attorney having jurisdiction to bring an action for appropriate

civil or criminal penalties or injunctive relief.

(c) The attorney general may bring a civil action to enforce an

order of the department and collect any amounts owed under the

order, including costs and fees under Subsection (d).

(d) On prevailing in an action commenced by the department

through the attorney general or a county or district attorney

under this section, the department and the attorney general or

county or district attorney are each entitled to recover, in

addition to other relief available:

(1) investigation costs and fees;

(2) reasonable attorney's fees; and

(3) court costs.

(e) Suit under this section may be brought in Travis County or a

county in which the person who failed to collect or remit an

assessment conducts business related to the commodity subject to

the uncollected or unpaid assessment.

(f) An assessment and any interest collected under this section

shall be deposited in the account of the board that levied the

assessment.

(g) The remedies provided by this section are cumulative of

other remedies provided by law.

Added by Acts 2001, 77th Leg., ch. 374, Sec. 3, eff. May 25,

2001.

Sec. 41.102. SUSPENSION OR REVOCATION OF LICENSE. In addition

to other remedies provided by law, a violation of any provision

of Subchapters B-E of this chapter is grounds for suspension or

revocation of any license or permit issued by the commissioner.

The suspension or revocation shall be conducted in accordance

with the procedures provided by law for suspension or revocation

on the basis of other grounds.

Acts 1981, 67th Leg., p. 1090, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 41.103. GENERAL PENALTY. (a) A person commits an offense

if the person violates any provision of Subchapters B-E of this

chapter.

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

Acts 1981, 67th Leg., p. 1090, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 36, eff.

Sept. 1, 1989.

Sec. 41.104. USE OF FUNDS FOR POLITICAL ACTIVITY. (a) A member

of a board commits an offense if the member:

(1) wilfully spends or assists in spending money in violation of

Section 41.060(c) of this code; or

(2) without causing or attempting to cause his or her dissent to

be entered in the records or minutes of the board, participates

in a meeting or session of the board in which money is authorized

or directed to be expended in violation of Section 41.060(c) of

this code.

(b) An offense under this section is a misdemeanor punishable by

a fine of not less than $100 nor more than $1,000.

Acts 1981, 67th Leg., p. 1090, ch. 388, Sec. 1, eff. Sept. 1,

1981.

SUBCHAPTER G. SUSPENSION OF ACTIVITIES OF CERTAIN BOARDS

Sec. 41.125. INACTIVE STATUS. (a) The Texas Mohair Producers

Board and the Texas Pork Producers Board are inactive as provided

by Section 41.126 of this code until reactivated under Section

41.127 of this code. Neither board is abolished, and a referendum

election under Subchapter C of this chapter is not required to

reactivate either board.

(b) The Southern Rolling Plains Cotton Producers Board and the

Texas Soybean Producers Board are inactive as provided by Section

41.126 of this code until reactivated under Section 41.127 of

this code. Neither board is abolished, and a referendum election

under Subchapter C of this chapter is not required to reactivate

either board.

Added by Acts 1989, 71st Leg., ch. 94, Sec. 1, eff. May 15, 1989.

Amended by Acts 1993, 73rd Leg., ch. 93, Sec. 1, eff. Aug. 30,

1993; Acts 1997, 75th Leg., ch. 243, Sec. 1, eff. May 23, 1997.

Sec. 41.126. POWERS AND DUTIES. (a) A board listed in

Subsection (a) of Section 41.125 of this code may not exercise

any powers under this chapter after the end of the board's 1989

fiscal year other than preparing and submitting the fiscal year

1989 report required by Subsection (c) of Section 41.059 of this

code.

(b) The Southern Rolling Plains Cotton Producers Board may not

exercise any powers under this chapter after the end of the

board's 1993 fiscal year other than preparing and submitting the

fiscal year 1993 report required by Subsection (c) of Section

41.059 of this code.

(c) The Texas Soybean Producers Board may not exercise any

powers under this chapter after the end of the board's 1997

fiscal year other than preparing and submitting the fiscal year

1997 report required by Subsection (c) of Section 41.059 of this

code.

(d) After submitting the report required by Subsection (a), (b),

or (c) of this section, the board may not conduct biennial

elections under Section 41.032 of this code or submit the report

required by Subsection (c) of Section 41.059 of this code.

(e) The board may collect the assessment only during the fiscal

year for which a report is required by Subsection (a), (b), or

(c) of this section.

(f) The board shall disburse funds as provided in the budget of

the fiscal year for which a report is required by Subsection (a),

(b), or (c) of this section. Money of the board remaining on the

first day after that fiscal year shall remain in the board's

depository bank until the board is reactivated or the department

by rule provides for the disposition of the funds.

(g) Members of the board serving on the date the final report is

submitted continue to serve until their successors are elected

and qualify for office.

Added by Acts 1989, 71st Leg., ch. 94, Sec. 1, eff. May 15, 1989.

Amended by Acts 1993, 73rd Leg., ch. 93, Sec. 2, eff. Aug. 30,

1993; Acts 1997, 75th Leg., ch. 243, Sec. 2, eff. May 23, 1997.

Sec. 41.127. REACTIVATION. (a) The commissioner shall order

the reactivation of a board listed in Subsection (a) or (b) of

Section 41.125 of this code if:

(1) a majority of the members of the board petition the

commissioner to reactivate the board and the commissioner

determines that reactivation of the board is in the best interest

of the producers subject to assessment by the board; or

(2) for a board listed in Subsection (a) of Section 41.125 of

this code, a federal assessment is not assessed on mohair or

pork, as applicable.

(b) If a board is reactivated, the board will consist of:

(1) members of the board whose terms have not expired; and

(2) persons elected at an election held as provided by

Subsection (c) of this section.

(c) An election shall be held after reactivation to fill any

vacancies on the board. The election shall be held in the manner

provided for the biennial election of members by Section 41.032

of this code. Persons elected shall draw lots to determine the

length of each person's term.

Added by Acts 1989, 71st Leg., ch. 94, Sec. 1, eff. May 15, 1989.

Amended by Acts 1993, 73rd Leg., ch. 93, Sec. 3, eff. Aug. 30,

1993.

SUBCHAPTER H. TEXAS BEEF MARKETING, EDUCATION, RESEARCH, AND

PROMOTION

Sec. 41.151. DEFINITIONS. In this subchapter:

(1) "Beef products" means products produced in whole or in part

from beef. The term does not include milk or products made from

milk.

(2) "Council" means the Texas Beef Council.

(3) "Producer" means a person who owns or acquires ownership of

cattle, except that a person is not a producer if the person's

only share in the proceeds of a sale of cattle or beef is a sales

commission, handling fee, or other service fee.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.08, eff. September 1, 2009.

Sec. 41.152. DECLARATION OF POLICY. (a) The legislature

intends that the promotion, marketing, research, and educational

efforts regarding beef and beef products under this subchapter

use existing cattle industry infrastructure to the extent

possible.

(b) The council shall be the certified organization to plan,

implement, and operate research, education, promotion, and

marketing programs under this subchapter. The council is the

state beef council qualified to collect the proceeds of and

administer in this state the beef check off program established

by federal law.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.09, eff. September 1, 2009.

Sec. 41.153. ADMINISTRATIVE COSTS. The department may recover

costs for administration of this subchapter.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.154. ANNUAL REPORT. The council shall deliver to the

commissioner and the appropriate oversight committee in the

senate and house of representatives an annual report giving

details of its efforts to carry out the purposes of this

subchapter.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.155. CONFLICT WITH GENERAL COMMODITY LAW PROVISIONS. To

the extent that the provisions of this subchapter conflict with

other provisions of this chapter, the provisions of this

subchapter prevail.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.156. COUNCIL MEMBERS. (a) The council is composed of

20 members nominated by the council and appointed by the

commissioner as follows:

(1) three representatives of the Texas and Southwestern Cattle

Raisers Association;

(2) three representatives of the Texas Cattle Feeders

Association;

(3) three representatives of the Texas Farm Bureau;

(4) two representatives of the Independent Cattlemen's

Association of Texas;

(5) two representatives of the Texas purebred cattle industry;

(6) two representatives of the Texas dairy industry;

(7) one representative of the Livestock Marketing Association of

Texas;

(8) one representative of meat packer and exporter associations;

(9) one representative of Texas CattleWomen; and

(10) two at-large directors.

(b) A council member serves a one-year term or until his or her

successor is appointed. A council member may serve not more than

six consecutive one-year terms, except that a council member who

is elected to serve as an officer during the member's sixth

consecutive one-year term may serve as chairman or past chairman

for not more than two additional consecutive one-year terms.

(c) The commissioner, on recommendation of the council, shall

fill a vacancy on the council by appointment for the unexpired

term.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.10, eff. September 1, 2009.

Sec. 41.157. GENERAL POWERS OF COUNCIL. The council may take

action or exercise other authority as necessary to execute any

act authorized by this chapter or the Texas Non-Profit

Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil

Statutes).

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.11, eff. September 1, 2009.

Sec. 41.158. DONATIONS. The council may accept gifts,

donations, and grants of money, including appropriated funds,

from state government, federal government, local governments,

private corporations, or other persons, to be used for the

purposes of this subchapter.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.159. BORROWING. The council may borrow money on

approval of the commissioner.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.160. ASSESSMENTS; APPLICABILITY OF OTHER LAW. (a) The

commissioner, on the recommendation of the council, shall propose

the maximum assessment in a referendum under Section 41.162.

(b) If an assessment referendum is approved, the council shall

recommend to the commissioner an assessment amount not greater

than the maximum amount approved in the referendum. After the

assessment is approved by the commissioner, the council shall

collect the assessment.

(c) An assessment levied on producers shall be applied by the

council to efforts relating to the marketing, education,

research, and promotion of beef and beef products in Texas, the

United States, and international markets, including

administrative costs of conducting an assessment referendum.

(d) Assessments collected by the council are not state funds and

are not required to be deposited in the state treasury.

(e) Section 41.083 applies to an assessment collected by the

council under this subchapter. Section 41.082 does not apply to

an assessment collected under this subchapter. The commissioner,

on the council's recommendation, may exempt from the assessment

certain producers who are exempt under federal law.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.12, eff. September 1, 2009.

Sec. 41.161. FINANCIAL OVERSIGHT. (a) The commissioner shall

annually review and approve the council's operating budget for

the funds collected under this subchapter.

(b) The commissioner and the state auditor at any time may

inspect the financial records of the council.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.13, eff. September 1, 2009.

Sec. 41.162. CONDUCT OF REFERENDUM; BALLOTING. (a) On the

recommendation of the council, the commissioner shall conduct a

referendum authorized under this subchapter.

(b) Only a producer who has owned cattle in the last 12 months

before the date of the referendum is eligible to vote in the

referendum.

(c) An eligible producer may vote only once in a referendum.

(d) Each producer's vote is entitled to equal weight regardless

of the producer's volume of production.

(e) A referendum is approved if a simple majority of votes are

cast in favor of the referendum.

(f) Individual voter information, including an individual's vote

in a referendum conducted under this section, is confidential and

not subject to disclosure under Chapter 552, Government Code.

(g) The council shall pay all expenses incurred in conducting a

referendum with funds collected from the beef industry.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

506, Sec. 9.14, eff. September 1, 2009.

Sec. 41.163. RULES. The commissioner may adopt rules as

necessary to implement this subchapter, including rules relating

to:

(1) the auditing of the financial records of the council;

(2) fidelity bonds required for certain council employees;

(3) conflicts of interest;

(4) penalties; and

(5) a statewide referendum under Section 41.156.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.

Sec. 41.164. PENALTIES. (a) A person who violates this

subchapter or a rule adopted under this subchapter commits an

offense.

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

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.03, eff.

Jan. 11, 2004.