AGRICULTURE CODE
SUBTITLE D. HANDLING AND MARKETING OF HORTICULTURAL PRODUCTS
CHAPTER 101. HANDLING AND MARKETING OF PERISHABLE COMMODITIES
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 2, eff. Sept. 1,
1999.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1995, 74th Leg., ch. 269, § 1, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 358, § 3, eff. Sept. 1, 1999.
§ 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; or
(4) a person who ships a noncommercial shipment of
perishable commodities.
Acts 1981, 67th Leg., p. 1252, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 1, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 2, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 4, eff. Sept. 1, 1999.
§ 101.004. LICENSE OR REGISTRATION CATEGORIES. (a) 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.
(b) A person shall register as a cash dealer if the person
purchases perishable commodities and pays for the perishable
commodities in United States currency before or at the time of
delivery or taking possession.
Acts 1981, 67th Leg., p. 1252, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 2, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 3, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 5, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 2, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 4, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 6, eff. Sept. 1, 1999.
§ 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) The department shall charge a registration fee for a
cash dealer as provided by department rule.
Acts 1981, 67th Leg., p. 1253, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 995, ch. 235, art. 1, § 8,
eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4284, ch. 682, § 6,
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, § 2, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, § 5, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 419, § 2.43, eff. Sept. 1, 1995;
Acts 1999, ch. 358, § 7, eff. Sept. 1, 1999.
§ 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 an applicant for a license indicates on the
application that a previous license of the applicant has been or is
suspended or has been revoked, the department may not issue 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.
(c) The department may refuse to issue 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 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, §
10.09(13), eff. Sept. 1, 1995.
Acts 1981, 67th Leg., p. 1253, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 739, § 1, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 419, § 3.20, 10.09(13), eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 358, § 8, eff. Sept. 1,
1999.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 3, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 419, § 2.44, eff. Sept. 1, 1995.
§ 101.009. LICENSEE LIST. The department may publish as
often as it considers necessary a list in pamphlet form of all
persons licensed under this chapter.
Acts 1981, 67th Leg., p. 1254, ch. 388, § 1, eff. Sept. 1, 1981.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 239, § 67, eff. Sept. 1,
1985; Acts 1985, 69th Leg., ch. 917, § 4, eff. Sept. 1, 1985;
Acts 1995, 74th Leg., ch. 269, § 6, eff. Sept. 1, 1995; Acts
1995, 74th Leg., ch. 419, § 2.45, eff. Sept. 1, 1995; Acts 1999,
76th Leg., ch. 358, § 9, eff. Sept. 1, 1999.
§ 101.011. LICENSE OR IDENTIFICATION CARD NOT
ASSIGNABLE. A license or identification card is not assignable.
Acts 1981, 67th Leg., p. 1255, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 10, eff. Sept. 1,
1999.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1989, 71st Leg., ch. 230, § 112, eff. Sept. 1,
1989; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 419, § 3.21, eff. Sept. 1, 1995.
§ 101.013. PAYMENT OF PURCHASE PRICE ON DEMAND. (a) If
a licensee 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 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 at the licensee's 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 11, eff. Sept. 1,
1999.
§ 101.014. COMMISSION OR SERVICE CHARGE IN CONTRACT. If
a licensee 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
shall include in the contract with the producer or owner the maximum
amount that the licensee will charge for commission, service, or
both, in connection with the perishable commodities handled.
Acts 1981, 67th Leg., p. 1256, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 12, eff. Sept. 1,
1999.
§ 101.015. SETTLEMENT ON GRADE AND
QUALITY. (a) Except as otherwise provided by this section, a
licensee 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 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 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 13, eff. Sept. 1,
1999.
§ 101.0151. BUYING OR SELLING BY WEIGHT. A licensee 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, § 14, eff. Sept. 1, 1999.
§ 101.016. RECORDS OF PURCHASE. (a) A licensee 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, 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, 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
or persons alleged to be selling perishable commodities in
violation of this chapter and, without notice, may require evidence
of purchase of any perishable commodities in a person's possession.
Acts 1981, 67th Leg., p. 1256, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 15, eff. Sept. 1,
1999.
§ 101.017. RECORD OF SALE. (a) Except for a retailer,
a licensee 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.
(b) On demand of the department or of an owner, seller, or
agent of the owner or seller, the licensee shall furnish the
information demanded before the 11th day following the date of
demand.
(c) A licensee 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1999, 76th Leg., ch. 358, § 16, eff. Sept. 1,
1999.
§ 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, § 131(4),
eff. Sept. 1, 1989.
Acts 1981, 67th Leg., p. 1257, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1989, 71st Leg., ch. 230, § 131(3), (4), eff.
Sept. 1, 1989; Acts 1999, 76th Leg., ch. 358, § 17, eff. Sept. 1,
1999.
§ 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, § 113, eff. Sept. 1,
1989.
§ 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1989, 71st Leg., ch. 230, § 114, eff. Sept. 1,
1989; Acts 1999, 76th Leg., ch. 358, § 18, eff. Sept. 1, 1999.
§ 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, fails to furnish information
under Section 101.017 before the 11th day following the date of
demand;
(5) as a license holder, 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 cash dealer, pays for perishable commodities
by a means other than United States currency;
(7) as a license holder, transporting agent, or buying
agent, violates a provision of this chapter;
(8) acts or assumes to act as a cash dealer without
first registering as a cash dealer;
(9) as a license holder, buys or sells perishable
commodities by weight and does not have the perishable commodities
weighed on scales that meet state requirements;
(10) fails to prepare and maintain records required by
Sections 101.016, 101.017, and 101.018; or
(11) 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, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 5, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 7, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 19, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1981.
