AGRICULTURE CODE
CHAPTER 103. PRODUCE RECOVERY FUND
§ 103.001. DEFINITIONS. In this chapter:
(1) "Board" means the Produce Recovery Fund Board.
(2) "Fund" means the produce recovery fund.
Acts 1981, 67th Leg., p. 1274, ch. 388, § 1, eff. Sept. 1, 1981.
§ 103.002. FUND. (a) The produce recovery fund is a
special trust fund with the comptroller administered by the
department, without appropriation, for the payment of claims
against license holders and retailers licensed under Chapter 101.
(b) Fees collected under Section 101.008 or 103.011 and 50
percent of the fines collected under Section 101.020 or 103.013
shall be deposited in the fund.
(c) The clerk of the county court or county court-at-law and
the custodian of the county treasury funds shall keep separate
records of all fines collected under Section 101.020 or 103.013. On
the first day of each January, April, July, and October, the
custodian of the funds in the county treasury shall remit 50 percent
of the fines collected under those sections to the comptroller of
public accounts and the comptroller shall deposit that amount in
the fund.
(d) No more than 10 percent of the fund may be expended
during any one year for administration of the claims process.
(e) Interest or other income from investment of the fund
shall be deposited to the credit of the fund.
Acts 1981, 67th Leg., p. 1275, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 986, ch. 235, art. 1, § 2(b),
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, § 11, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1423, § 2.11, eff.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 358, § 20, eff. Sept. 1,
1999.
§ 103.003. BOARD. (a) The Produce Recovery Fund Board
is composed of five members appointed by the governor with the
advice and consent of the senate. Two members must be producers,
one must be a license holder licensed under Chapter 101, and two
must be members of the general public.
(b) Each member of the board must reside in a different
state senatorial district.
(c) Members of the board serve for staggered terms of six
years with the term of office expiring on January 31 of odd-numbered
years.
(d) Members of the board are entitled to per diem and
reimbursement for actual expenses incurred while carrying out their
duties.
(e) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointees.
(f) The governor shall designate a member of the board as
the chairman of the board to serve in that capacity at the pleasure
of the governor.
(g) The board is subject to Chapter 551, Government Code,
and Chapter 2001, Government Code.
Acts 1981, 67th Leg., p. 1275, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 987, ch. 235, art. 1, § 2(c),
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, § 12, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 419, § 1.21, eff. Sept.
1, 1995; Acts 1999, 76th Leg., ch. 358, § 21, eff. Sept. 1, 1999;
Acts 2003, 78th Leg., ch. 1170, § 35.01, eff. Sept. 1, 2003.
§ 103.004. DUTIES OF THE BOARD. (a) The board shall:
(1) advise the department on all matters relating to
the fund, including the fund's budget and the revenues necessary to
accomplish the purposes of the fund;
(2) advise the department in the adoption of rules
relating to the payment of claims from the fund and to the
administration of the fund; and
(3) conduct adjudicative hearings on disputed claims
presented for payment from the fund.
(b) The board shall develop and implement policies that
provide the public with a reasonable opportunity to appear before
the board and to speak on any issue under the jurisdiction of the
board.
(c) The board shall develop and implement policies that
clearly separate the policymaking responsibilities of the board and
the management responsibilities of the commissioner and the staff
of the department.
Acts 1981, 67th Leg., p. 1275, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1995, 74th Leg., ch. 419, § 1.22, eff. Sept. 1,
1995.
§ 103.005. INITIATION OF CLAIM. (a) A person who deals
with a license holder under Chapter 101 in the purchasing,
handling, selling, and accounting for sales of perishable
commodities and who is aggrieved by an action of the license holder
as a result of a violation of terms or conditions of a contract made
by the license holder for the sale of Texas-grown produce may
initiate a claim against the fund by filing with the department:
(1) a sworn complaint against the license holder; and
(2) a filing fee, as provided by department rule.
(b) A complaint and the fee under Subsection (a) of this
section must be filed on or before the first anniversary of the date
of the violation, or recovery from the fund is barred.
Acts 1981, 67th Leg., p. 1275, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 13, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 15, eff. Sept. 1, 1995;
Acts 1995, 74th Leg., ch. 419, § 2.50, eff. Sept. 1, 1995; Acts
1999, 76th Leg., ch. 358, § 22, eff. Sept. 1, 1999; Acts 2003,
78th Leg., ch. 196, § 5, eff. Sept. 1, 2003.
§ 103.0055. BANKRUPTCY OF MERCHANT OR RETAILER. For
purposes of this chapter, the amount due an aggrieved party by a
license holder is not affected by a final judgment of a bankruptcy
court that releases the license holder from the legal duty to
satisfy the claim.
Added by Acts 1989, 71st Leg., ch. 230, § 121, eff. Sept. 1,
1989. Amended by Acts 1995, 74th Leg., ch. 269, § 16, eff. Sept.
1, 1995.
§ 103.006. INVESTIGATION; HEARING ON
CLAIM. (a) After a claim is initiated, the department shall
investigate the complaint and determine the amount due the
aggrieved party. If the amount determined by the department is
disputed by the license holder or the aggrieved party, the board
shall conduct a hearing on the claim and determine the amount due
the aggrieved party.
(b) A quorum of the board must be present in order to conduct
a hearing. The board shall conduct the hearing and a party not
satisfied with the decision of the board may appeal in the manner
provided for contested cases under Chapter 2001, Government Code.
(c) A hearing on a claim may be conducted at any department
district office.
Acts 1981, 67th Leg., p. 1276, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 987, ch. 235, art. 1, § 2(d),
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, § 14, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995; Acts 1995, 74th Leg., ch. 269, § 17, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 419, § 3.24, eff. Sept. 1, 1995.
§ 103.007. PAYMENT OF CLAIM. (a) If the amount
determined by the department's investigation to be due the
aggrieved party is not disputed by the license holder or the
aggrieved party, the department shall pay the claim within the
limits prescribed by this chapter.
(b) If a hearing is held on a disputed amount, the
department shall pay to the aggrieved party the amount determined
by the board, within the limits prescribed by this chapter.
Acts 1981, 67th Leg., p. 1276, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 15, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 18, eff. Sept. 1, 1995.
§ 103.008. LIMITS ON CLAIM PAYMENTS. (a) In making
payments from the fund the department can pay the aggrieved party
all of the first $2,000 of any claim and no more than 70 percent of
the claim above $2,000.
(b) The total payment of all claims arising from the same
contract with a license holder may not exceed $35,000.
(c) The total payment of claims against a single license
holder may not exceed $85,000 in any one calendar year.
(d) The department may not pay a claim against:
(1) a person who was not licensed on the date the
contract on which the claim is based was entered into; or
(2) a cash dealer registered under Chapter 101.
(e) Payments from the fund during a fiscal year may not
exceed two times the average amount of money deposited into the fund
during the previous three fiscal years, except that surplus funds
remaining at the end of each fiscal year are available for the
payment of claims during any succeeding year. In no case shall
payment of claims cause the balance of the fund to fall below
$100,000.
(f) If a license holder owes money to the produce recovery
fund at the time the license holder makes a claim against the fund,
the department shall offset the amount owed to the fund from the
amount dispensed.
Acts 1981, 67th Leg., p. 1276, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 15, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 19, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 23, eff. Sept. 1, 1999.
§ 103.009. REIMBURSEMENT OF FUND AND PAYMENT TO
COMPLAINING PARTY BY LICENSEE. (a) If the department pays a claim
against a license holder, the license holder shall:
(1) reimburse the fund immediately or agree in writing
to reimburse the fund on a schedule to be determined by rule of the
department; and
(2) immediately pay the aggrieved party any amount due
that party or agree in writing to pay the aggrieved party on a
schedule to be determined by rule of the department.
(b) Payments made to the fund or to the aggrieved party
under this section shall include interest at the rate of eight
percent a year.
(c) If the license holder does not reimburse the fund or pay
the aggrieved party, or does not agree to do so, in accordance with
this section, the department shall issue an order canceling the
license and may not issue a new license to that person for four
years from the date of cancellation. If the license holder is a
corporation, an officer or director of the corporation or a person
owning more than 25 percent of the stock in the corporation may not
be licensed under Chapter 101 during the four-year period in which
the corporation is ineligible for licensing.
(d) This section does not apply to a license holder who is
released by a final judgment of a bankruptcy court from the legal
duty to satisfy the claim paid by the department.
Acts 1981, 67th Leg., p. 1276, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 15, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 230, § 122, eff. Sept. 1, 1989;
Acts 1995, 74th Leg., ch. 269, § 20, eff. Sept. 1, 1995; Acts
1999, 76th Leg., ch. 358, § 24, eff. Sept. 1, 1999.
§ 103.010. SUBROGATION OF RIGHTS. If the department
pays a claim against a license holder, the department is subrogated
to all rights of the aggrieved party against the license holder to
the extent of the amount paid to the aggrieved party.
Acts 1981, 67th Leg., p. 1277, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1985, 69th Leg., ch. 917, § 15, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 269, § 21, eff. Sept. 1, 1995.
§ 103.011 FEE. (a) Except as otherwise provided by
this section, a license holder licensed under Chapter 101 shall pay
an annual fee to the fund as provided by department rule.
(b) A person registered as a cash dealer or a marketing
association organized under Chapter 52 that handles citrus fruit
only for its members is exempt from payment of the fee under this
section.
(c) The fee required by Subsection (a) is in addition to any
licensing fee paid and is due at the time of making the license
application. The department may not issue a license to a person who
fails to pay the fee.
Acts 1981, 67th Leg., p. 1277, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1995, 74th Leg., ch. 269, § 22, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 419, § 2.51, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 358, § 25, eff. Sept. 1, 1999.
§ 103.012. RULES. With the advice of the board, the
department shall adopt rules, consistent with this chapter, for the
payment of claims from the fund.
Acts 1981, 67th Leg., p. 1277, ch. 388, § 1, eff. Sept. 1, 1981.
§ 103.013. PENALTY FOR FAILURE TO PAY FEE. (a) A
person commits an offense if the person acts or assumes to act as a
license holder under Chapter 101 without first paying the fee
required by this chapter.
(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 this section.
Acts 1981, 67th Leg., p. 1277, ch. 388, § 1, eff. Sept. 1, 1981.
Amended by Acts 1983, 68th Leg., p. 987, ch. 235, art. 1, § 2(e),
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 917, § 16, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 269, § 23, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 358, § 26, eff. Sept. 1, 1999.
§ 103.014. PENALTY FOR FALSE CLAIMS. (a) A person
commits an offense if, with intent to obtain a benefit for himself
or to harm another, he:
(1) institutes a claim under this chapter in which he
knows he has no interest; or
(2) institutes any suit or claim under this chapter
that he knows is false.
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 1983, 68th Leg., p. 987, ch. 235, art. 1, § 2(f),
eff. Sept. 1, 1983.
§ 103.015. 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. Venue is in the county in
which the alleged violation is threatened or is occurring.
Added by Acts 1989, 71st Leg., ch. 230, § 123, eff. Sept. 1,
1989.
§ 103.016. BOARD CONFLICT OF INTEREST. (a) An
officer, employee, or paid consultant of a Texas trade association
in the field of agriculture may not be a member of the board.
(b) A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of
agriculture may not be a member of the board.
(c) For the purposes of this section, a Texas trade
association is a nonprofit, cooperative, and voluntarily joined
association of business or professional competitors in this state
designed to assist its members and its industry or profession in
dealing with mutual business or professional problems and in
promoting their common interest.
(d) A person may not serve as a member of the board or act as
the general counsel to the board if the person is required to
register as a lobbyist under Chapter 305, Government Code, because
of the person's activities for compensation on behalf of a
profession related to the operation of the board.
Added by Acts 1995, 74th Leg., ch. 419, § 1.23, eff. Sept. 1,
1995.
§ 103.017. REMOVAL OF BOARD MEMBER. (a) It is a ground
for removal from the board if a member:
(1) does not have at the time of appointment the
qualifications required by Section 103.003;
(2) does not maintain during service on the board the
qualifications required by Section 103.003;
(3) violates a prohibition established by Section
103.016;
(4) cannot because of illness or disability discharge
the member's duties for a substantial part of the term for which the
member is appointed; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year unless the absence is excused by majority
vote of the board.
(b) The validity of an action of the board is not affected by
the fact that it is taken when a ground for removal of a board member
exists.
(c) If the commissioner has knowledge that a potential
ground for removal exists, the commissioner shall notify the
chairman of the board of the potential ground. The chairman shall
then notify the governor and the attorney general that a potential
ground for removal exists. If the potential ground for removal
involves the chairman, the commissioner shall notify the next
highest officer of the board who shall notify the governor and the
attorney general that a potential ground for removal exists.
Added by Acts 1995, 74th Leg., ch. 419, § 1.23, eff. Sept. 1,
1995.
§ 103.018. QUALIFICATIONS AND STANDARDS OF
CONDUCT. The commissioner or the commissioner's designee shall
provide to members of the board, as often as necessary, information
regarding their qualification for office under this chapter and
their responsibilities under applicable laws relating to standards
of conduct for state officers or employees.
Added by Acts 1995, 74th Leg., ch. 419, § 1.23, eff. Sept. 1,
1995.
§ 103.019. BOARD MEMBER TRAINING. (a) Before a member
of the board may assume the member's duties and before the member
may be confirmed by the senate, the member must complete at least
one course of the training program established under this section.
(b) A training program established under this section shall
provide information to the member regarding:
(1) this chapter;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the produce recovery fund;
(6) the requirements of:
(A) Chapter 551, Government Code;
(B) Chapter 552, Government Code; and
(C) Chapter 2001, Government Code;
(7) the requirements of the conflict of interest laws
and other laws relating to public officials; and
(8) any applicable ethics policies adopted by the
department or the Texas Ethics Commission.
Added by Acts 1995, 74th Leg., ch. 419, § 1.23, eff. Sept. 1,
1995.
