CHAPTER 12. POWERS AND DUTIES

Statutes > Texas Statutes > AGRICULTURE CODE > TITLE 2. DEPARTMENT OF AGRICULTURE > CHAPTER 12. POWERS AND DUTIES

AGRICULTURE CODE

TITLE 2. DEPARTMENT OF AGRICULTURE

Sec. 12.001. EXECUTION OF LAWS. The department shall execute

all applicable laws relating to agriculture.

Acts 1981, 67th Leg., p. 1017, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.0011. AUTHORITY TO ENTER INTO COOPERATIVE AGREEMENTS.

To carry out its duties under this code, the department may enter

into cooperative agreements with:

(1) private entities; and

(2) local, state, federal, and foreign governmental entities.

Added by Acts 2001, 77th Leg., ch. 52, Sec. 1, eff. May 7, 2001.

Sec. 12.0012. NOTIFICATION. The department shall, upon

submission for publication, notify the Texas Division of

Emergency Management of each quarantine it adopts. The

department shall thereafter cooperate with the Texas Division of

Emergency Management in implementing any necessary safeguards to

protect the state's agricultural resources from potential

economic, health, or ecological disaster that may result from the

quarantined pest or disease.

Added by Acts 2003, 78th Leg., ch. 1107, Sec. 1, eff. June 20,

2003.

Amended by:

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

1146, Sec. 2B.01, eff. September 1, 2009.

Sec. 12.002. DEVELOPMENT OF AGRICULTURE. The department shall

encourage the proper development and promotion of agriculture,

horticulture, and other industries that grow, process, or produce

products in this state.

Acts 1981, 67th Leg., p. 1017, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2001, 77th Leg., ch. 208, Sec. 1, eff. May

21, 2001; Acts 2003, 78th Leg., ch. 265, Sec. 1, eff. June 18,

2003.

Sec. 12.0025. NUTRITION PROGRAMS. The department shall

administer the following federal and state nutrition programs:

(1) the commodity supplemental food program under 7 U.S.C.

Section 612c;

(2) the food distribution program under 7 U.S.C. Section 612c;

(3) the emergency food assistance program under 7 U.S.C. Section

7501 et seq.;

(4) the school lunch program under 42 U.S.C. Section 1751 et

seq.;

(5) the summer food service program under 42 U.S.C. Section

1761;

(6) the child and adult care food program under 42 U.S.C.

Section 1766;

(7) the special milk program under 42 U.S.C. Section 1772; and

(8) the school breakfast program under 42 U.S.C. Section 1773.

Added by Acts 2007, 80th Leg., R.S., Ch.

963, Sec. 1, eff. June 15, 2007.

Sec. 12.0026. INTERAGENCY FARM-TO-SCHOOL COORDINATION TASK

FORCE. (a) To promote a healthy diet for schoolchildren and the

business of small to mid-sized local farms and ranches, the

interagency farm-to-school coordination task force shall develop

and implement a plan to facilitate the availability of locally

grown food products in public schools.

(b) The task force is composed of:

(1) a representative of:

(A) the department, appointed by the commissioner;

(B) the Texas Education Agency, appointed by the commissioner of

education; and

commissioner of state health services; and

(2) at least one representative of each of the following groups,

appointed by the commissioner:

(A) fruit and vegetable producer organizations;

(B) school food service organizations;

(D) child nutrition and advocacy organizations;

(E) parent organizations;

(F) educational institutions that conduct research in the areas

of agriculture and nutrition; and

(G) health nutrition educators who serve school districts.

official who appointed the member.

(d) The representative of the department serves as presiding

officer. The task force may elect other necessary officers from

its members.

(e) The task force shall meet at the call of the presiding

officer.

(f) The agency whose commissioner appoints a member is

responsible for the expenses of a member's service on the task

force. A member of the task force is not entitled to additional

compensation for serving on the task force.

(g) Each appropriate agency or group represented on the task

force shall provide the personnel and resources necessary to

implement a task force measure under this section.

(h) The task force shall:

(1) design new education resources, or review or update existing

resources, on nutrition and food education that may be used by

schools and school districts;

(2) expand food-focused experiential education programs;

(3) offer assistance in identifying funding sources and grants

that allow schools and school districts to recover the costs

associated with purchasing locally grown food products;

(4) develop a database of available locally grown food products

for use by school food service agencies that includes contact and

purchasing information for the products;

(5) identify, design, or make available training programs to

enable local farmers and ranchers to market their products to

schools and school districts, including programs related to:

(A) crop production;

(B) marketing of crops;

(D) food safety;

(E) business management;

(F) liability and risk management; and

(G) other topics deemed appropriate by the task force;

(6) advise schools and school districts on methods by which a

school or school district may improve its facilities to allow for

the use of minimally processed, fresh, and locally produced foods

in school meals;

(7) provide technical assistance to school food service agencies

to establish procedures, recipes, menu rotations, and other

internal processes that accommodate the use of locally grown

foods in public schools;

(8) offer advanced skills development training to school food

service employees regarding the proper methods of handling,

preparing, and serving locally grown foods; and

(9) conduct any other activity considered by the task force as

necessary to achieve its goals under this section.

(i) The task force may solicit and accept gifts, grants, and

donations from public and private entities to use for the

purposes of this section.

(j) The task force may use any existing program or procedure

that it determines to be useful in performing its duties under

this section.

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

1376, Sec. 1, eff. September 1, 2009.

Sec. 12.0027. NUTRITION OUTREACH PROGRAM. (a) The department

may develop an outreach program to promote better health and

nutrition programs and prevent obesity among children in this

state.

(b) The department may solicit and accept gifts, grants, and

donations from any public or private source for the purposes of

this section.

outreach program established under this section.

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

506, Sec. 9.03, eff. September 1, 2009.

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

728, Sec. 1, eff. June 19, 2009.

Sec. 12.003. AGRICULTURAL SOCIETIES. The department shall

encourage the organization of agricultural societies.

Acts 1981, 67th Leg., p. 1017, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.006. DEVELOPMENT OF DOMESTIC AND FOREIGN MARKETS. The

department shall investigate and report on the question of

broadening the market and increasing the demand for cotton goods

and all other agricultural or horticultural products in the

United States and foreign countries. The department shall compile

information beneficial to farmers, including information

pertaining to:

(1) the number of bales of cotton consumed by spinners in

foreign countries;

(2) the demand for cotton produced in Texas;

(3) the methods and course of sales to foreign countries,

showing the purchasers, brokers, and others who handle the cotton

after it leaves the producers; and

(4) countries with which trade could be increased, thereby

creating a better outlet for trade and the best method for

bringing consumer and purchaser together.

Acts 1981, 67th Leg., p. 1018, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.007. PLANT DISEASES AND PESTS. The department shall

investigate the diseases of crops grown in this state, including

grain, cotton, and fruit, to discover remedies. The department

shall also investigate the habits and propagation of insects that

are injurious to the crops of the state and the best methods for

their destruction. The department shall supervise the protection

of fruit trees, shrubs, and plants as provided by law.

Acts 1981, 67th Leg., p. 1018, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.010. CORRESPONDENCE WITH GOVERNMENT AGENCIES AND OTHERS.

The department shall correspond with the United States

Department of Agriculture, with the agriculture departments of

the other states and territories, and, at the option of the

department, with the agriculture departments of foreign countries

and representatives of the United States in those countries, for

the purpose of gathering information that will advance the

interests of agriculture in the state. For the same purpose, the

department may correspond with organizations and individuals

whose objective is the promotion of agriculture in any branch.

Acts 1981, 67th Leg., p. 1019, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.011. AGRICULTURAL RESOURCE STATISTICS. The department

shall collect and publish statistics and other information

relating to industries of this state and other states that the

department considers beneficial in developing the agricultural

resources of this state.

Acts 1981, 67th Leg., p. 1019, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 2001, 77th Leg., ch. 52, Sec. 2, eff. May

7, 2001.

Sec. 12.013. EMPLOYEES. (a) The department may employ

personnel as the duties of the department require. The

commissioner shall provide to the department's employees, as

often as necessary, information regarding their qualifications

for employment and their responsibilities under applicable laws

relating to standards of conduct for state employees.

(b) The commissioner or the commissioner's designee shall

develop a system of annual performance evaluations that are based

on documented employee performance. All merit pay for department

employees must be based on the system established under this

subsection.

develop an intraagency career ladder program that addresses

opportunities for mobility and advancement for employees within

the department. The program shall require intraagency postings of

all positions concurrently with any public posting.

(d) The commissioner or the commissioner's designee shall

prepare and maintain a written policy statement to assure

implementation of a program of equal employment opportunity under

which all personnel transactions are made without regard to race,

color, disability, sex, religion, age, or national origin. The

policy statement must include:

(1) personnel policies, including policies relating to

recruitment, evaluation, selection, appointment, training, and

promotion of personnel that comply with the requirements of

Chapter 21, Labor Code;

(2) a comprehensive analysis of the department work force that

meets federal and state guidelines;

(3) procedures by which a determination can be made about the

extent of underuse in the department work force of all persons

for whom federal or state guidelines encourage a more equitable

balance; and

(4) reasonable methods to appropriately address those areas of

underuse.

(e) A policy statement prepared under Subsection (d) of this

section must cover an annual period, be updated annually and

reviewed by the Texas Commission on Human Rights for compliance

with Subsection (d)(1) of this section, and be filed with the

governor's office.

(f) The governor's office shall deliver a biennial report to the

legislature based on the information received under Subsection

(e) of this section. The report may be made separately or as a

part of other biennial reports made to the legislature.

Acts 1981, 67th Leg., p. 1019, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 3, eff.

Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 1.02, eff.

Sept. 1, 1995.

Sec. 12.0135. CONFLICT PROVISIONS. (a) A person may not be a

department employee employed in a "bona fide executive,

administrative, or professional capacity," as that phrase is used

for purposes of establishing an exemption to the overtime

provisions of the federal Fair Labor Standards Act of 1938 (29

U.S.C. Section 201 et seq.), if:

(1) the person is an officer, employee, or paid consultant of a

Texas trade association in the field of agriculture; or

(2) the person's spouse is an officer, manager, or paid

consultant of a Texas trade association in the field of

agriculture.

(b) A person may not act as the general counsel to the

commissioner or the department if the person is required to

because of the person's activities for compensation on behalf of

a profession related to the operation of the department.

cooperative and voluntarily joined statewide 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.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 4, eff. Sept. 1,

1989.

Amended by:

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

506, Sec. 8.02, eff. September 1, 2009.

Sec. 12.014. ANNUAL REPORT. (a) The department shall file

annually with the governor and the presiding officer of each

house of the legislature a complete and detailed written report

accounting for all funds received and disbursed by the department

during the preceding fiscal year. The annual report must be in

the form and reported in the time provided by the General

Appropriations Act.

(b) Repealed by Acts 2007, 80th Leg., R.S., Ch. 937, Sec. 1.118,

eff. September 1, 2007.

Acts 1981, 67th Leg., p. 1019, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 5, eff.

Sept. 1, 1989.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

937, Sec. 1.118, eff. September 1, 2007.

Sec. 12.0144. FEE SCHEDULE. The department shall by rule adopt

a schedule for all fees set by the department under this code.

Except for those activities exempted in the General

Appropriations Act, the department shall set fees in an amount

which offsets, when feasible, the direct and indirect state costs

of administering its regulatory activities.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 2.01, eff. Sept. 1,

1995.

Sec. 12.0145. SUBMISSION OF PROPOSED FEE SCHEDULE. The

department shall include, as part of each request for legislative

appropriations submitted to the Legislative Budget Board, a

proposed fee schedule that would recover all direct costs of

administering each regulatory program of the department except a

regulatory program exempted by the department because increased

cost recovery would be contrary to the program's purpose.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 6, eff. Sept. 1,

1989.

Sec. 12.015. COOPERATION WITH TEXAS A & M UNIVERSITY AND

EXPERIMENT STATIONS. This chapter does not affect the scope or

character of the work of Texas A & M University or of the

agricultural experiment stations, and the department shall

cooperate with them in all matters relating to the agricultural

and horticultural interests of the state.

Acts 1981, 67th Leg., p. 1020, ch. 388, Sec. 1, eff. Sept. 1,

1981.

Sec. 12.016. RULES. The department may adopt rules as necessary

for the administration of its powers and duties under this code.

Acts 1981, 67th Leg., p. 1020, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 1.03, eff.

Sept. 1, 1995.

Sec. 12.0175. GROWN OR PRODUCED IN TEXAS PROGRAM. (a) The

department by rule may establish programs to promote and market

agricultural products and other products grown, processed, or

produced in the state.

(b) The department may charge a membership fee, as provided by

department rule, for each participant in a program.

program established under this section, including rules governing

the use of any registered logo of the department.

(d) The department may revoke or cancel a certificate of

registration or license issued under a program established under

this section if a participant fails to comply with a rule adopted

by the department.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 8, eff. Sept. 1,

1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 5, Sec.

9.01, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 650, Sec. 2,

eff. Aug. 30, 1993; Acts 2001, 77th Leg., ch. 208, Sec. 2, eff.

May 21, 2001; Acts 2003, 78th Leg., ch. 265, Sec. 2, 3, eff. June

18, 2003.

Sec. 12.0176. COOPERATION WITH CERTAIN COMMODITY PRODUCERS

BOARDS. (a) The department may, to the extent that resources

are available, enter into a cooperative agreement with a

commodity producers board to increase the effectiveness and

efficiency of the promotion of Texas agricultural products.

(b) A cooperative agreement may include:

(1) provisions relating to the programs instituted by the

department under this chapter and Chapter 46;

(2) provisions relating to board contributions for promotional

costs; and

(3) any other provisions the department and the board consider

appropriate.

section are not state funds.

Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 25.01, eff.

Jan. 11, 2004.

Sec. 12.0177. TEXAS NURSERY AND FLORAL ACCOUNT. Amounts

collected under Sections 71.043(b)(2) and 71.057(e)(2) shall be

deposited to the credit of the Texas nursery and floral account.

The Texas nursery and floral account is an account in the general

revenue fund. Money in the account may be used only by the

department for:

(1) making grants to promote and market the Texas nursery and

floral industries; and

(2) administering this section.

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

960, Sec. 1, eff. June 19, 2009.

Sec. 12.0178. TEXAS NURSERY AND FLORAL ADVISORY COUNCIL. (a)

The department shall establish and coordinate the Texas Nursery

and Floral Advisory Council. The council consists of seven

members appointed by the commissioner who have each been engaged

in the nursery, floral, or landscaping business for at least five

years.

(b) The council shall advise the department on the most

effective methods for promoting and marketing the Texas nursery

and floral industries.

for serving on the council and may not be reimbursed for travel

or other expenses incurred while conducting the business of the

council.

(d) The council is not subject to Chapter 2110, Government Code.

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

960, Sec. 1, eff. June 19, 2009.

Sec. 12.018. TESTING. (a) On request of any person, the

department may test an agricultural product for aflatoxins. The

department may set and charge a fee, as provided by department

rule, for each test.

(b) On request of any person, the department may perform

laboratory analyses on agricultural products, including testing

for pesticide residue, protein content, and milk butterfat

content.

laboratory analysis.

Acts 1981, 67th Leg., p. 1020, ch. 388, Sec. 1, eff. Sept. 1,

1981. Amended by Acts 1985, 69th Leg., ch. 239, Sec. 56, eff.

Sept. 1, 1985; Acts 1989, 71st Leg., ch. 230, Sec. 9, eff. Sept.

1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 2.02, eff. Sept. 1,

1995.

Sec. 12.020. ADMINISTRATIVE PENALTIES. (a) If a person

violates a provision of law described by Subsection (c) or a rule

or order adopted by the department under a provision of law

described by Subsection (c), the department may assess an

administrative penalty against the person as provided by this

section.

(b) The penalty for each violation may be in an amount not to

exceed the maximum provided by Subsection (c) of this section.

Each day a violation continues or occurs may be considered a

separate violation for purposes of penalty assessments.

applicable penalty amounts are as follows:

Provision

Amount of Penalty

Chapter 41

not more than $5,000

Chapters 13, 14A, 18, 46, 61, 94,

95, 101, 102, 103, 121, 125, 132,

and 134

not more than $5,000

Subchapter B, Chapter 71

Chapter 19

Chapter 76

not more than $5,000

Subchapters A and C, Chapter 71

Chapters 72, 73, and 74

not more than $5,000

Chapter 14

not more than $10,000

Chapter 1951, Occupations Code

not more than $5,000

Chapter 153, Natural Resources

Code

not more than $5,000.

(d) In determining the amount of the penalty, the department

shall consider:

(1) the seriousness of the violation, including but not limited

to the nature, circumstances, extent, and gravity of the

prohibited acts, and the hazard or potential hazard created to

the health or safety of the public;

(2) the damage to property or the environment caused by the

violation;

(3) the history of previous violations;

(4) the amount necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

(e) If, after investigation of a possible violation and the

facts surrounding that possible violation, the department

determines that a violation has occurred, the department may

issue a violation report stating the facts on which the

conclusion that a violation occurred is based, recommending that

an administrative penalty under this section be imposed on the

person charged, and recommending the amount of that proposed

penalty. The department shall base the recommended amount of the

proposed penalty on the seriousness of the violation determined

by consideration of the factors set forth in Subsection (d) of

this section.

(f) Not later than the 14th day after the date on which the

report is issued, the department shall give written notice of the

report to the person charged. The notice shall include a brief

summary of the charges, a statement of the amount of the penalty

recommended, and a statement of the right of the person charged

to a hearing on the occurrence of the violation or the amount of

the penalty, or both the occurrence of the violation and the

amount of the penalty.

(g) Not later than the 20th day after the date on which notice

is received, the person charged may accept the determination of

the department made under Subsection (e) of this section,

including the recommended penalty, or make a written request for

a hearing on the determination.

(h) If the person charged with the violation accepts the

determination of the department, the commissioner shall issue an

order approving the determination and ordering the payment of the

recommended penalty.

(i) If the person charged requests a hearing or fails to timely

respond to the notice, the department shall set a hearing and

give notice of the hearing. The hearing shall be conducted under

Section 12.032. The administrative law judge shall make findings

of fact and conclusions of law and promptly issue to the

commissioner a proposal for decision as to the occurrence of the

violation, including a recommendation as to the amount of the

proposed penalty if a penalty is warranted. Based on the findings

of fact, conclusions of law, and recommendations of the judge,

the commissioner by order may find a violation has occurred and

may assess a penalty or may find that no violation has occurred.

(j) The department shall give notice of the commissioner's order

to the person charged. The notice shall include:

(1) the findings of fact and conclusions of law separately

stated;

(2) the amount of the penalty ordered, if any;

(3) a statement of the right of the person charged to judicial

review of the commissioner's order, if any; and

(4) other information required by law.

(k) Within the 30-day period immediately following the day on

which the order becomes final under Section 2001.144, Government

Code, the person charged with the penalty shall:

(1) pay the penalty in full;

(2) pay the amount of the penalty and file a petition for

judicial review contesting the occurrence of the violation, the

amount of the penalty, or both the occurrence of the violation

and the amount of the penalty; or

(3) without paying the amount of the penalty, file a petition

for judicial review contesting the occurrence of the violation,

the amount of the penalty, or both the occurrence of the

violation and the amount of the penalty.

(l) Within the 30-day period, a person who acts under Subsection

(k)(3) of this section may:

(1) stay enforcement of the penalty by:

(A) paying the amount of the penalty to the court for placement

in an escrow account; or

(B) giving to the court a supersedeas bond that is approved by

the court for the amount of the penalty and that is effective

until all judicial review of the commissioner's order is final;

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person

stating that the person is financially unable to pay the amount

of the penalty and is financially unable to give the supersedeas

bond; and

(B) giving a copy of the affidavit to the department by

certified mail.

(m) The department on receipt of a copy of an affidavit under

Subsection (l)(2) of this section may file with the court, within

five days after the date the copy is received, a contest to the

affidavit. The court shall hold a hearing on the facts alleged in

the affidavit as soon as practicable and shall stay the

enforcement of the penalty on finding that the alleged facts are

true. The person who files an affidavit has the burden of proving

that the person is financially unable to pay the amount of the

penalty and to give a supersedeas bond.

(n) If the person does not pay the amount of the penalty and the

enforcement of the penalty is not stayed, the department may

refer the matter to the attorney general for collection of the

amount of the penalty.

(o) Judicial review of the order of the commissioner:

(1) is instituted by filing a petition as provided by Subchapter

G, Chapter 2001, Government Code; and

(2) is under the substantial evidence rule.

(p) If the court sustains the occurrence of the violation, the

court may uphold or reduce the amount of the penalty and order

the person to pay the full or reduced amount of the penalty. If

the court does not sustain the occurrence of the violation, the

court shall order that no penalty is owed.

(q) When the judgment of the court becomes final, the court

shall proceed under this subsection. If the person paid the

amount of the penalty and if that amount is reduced or is not

upheld by the court, the court shall order that the appropriate

amount plus accrued interest be remitted to the person. The rate

of the interest is the rate charged on loans to depository

institutions by the New York Federal Reserve Bank, and the

interest shall be paid for the period beginning on the date the

penalty was paid and ending on the date the penalty is remitted.

If the person gave a supersedeas bond and if the amount of the

penalty is not upheld by the court, the court shall order the

release of the bond. If the person gave a supersedeas bond and if

the amount of the penalty is reduced, the court shall order the

release of the bond after the person pays the amount.

(r) A penalty collected under this section shall be deposited in

the state treasury to the credit of the General Revenue Fund.

(s) All proceedings under this section are subject to Chapter

2001, Government Code, except as provided in Subsections (t) and

(u).

(t) Notwithstanding Section 2001.058, Government Code, the

commissioner may change a finding of fact or conclusion of law

made by the administrative law judge if the commissioner:

(1) determines that the administrative law judge:

(A) did not properly apply or interpret applicable law,

department rules or policies, or prior administrative decisions;

(B) issued a finding of fact that is not supported by a

preponderence of the evidence; or

(2) determines that a department policy or a prior

administrative decision on which the administrative law judge

relied is incorrect or should be changed.

(u) The commissioner shall state in writing the specific reason

and legal basis for a determination under Subsection (t).

Added by Acts 1983, 68th Leg., p. 5382, ch. 990, Sec. 1, eff.

Sept. 1, 1983. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 10,

eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),

(52), (53), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 358,

Sec. 2, eff. June 8, 1995; Acts 1995, 74th Leg., ch. 419, Sec.

3.02, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 425, Sec. 2,

eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 186, Sec. 1, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 374, Sec. 1, eff. May

25, 2001; Acts 2001, 77th Leg., ch. 1124, Sec. 2, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

963, Sec. 2, eff. June 15, 2007.

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

506, Sec. 6.01, eff. September 1, 2009.

Sec. 12.0201. LICENSE SANCTIONS. (a) In addition to other

sanctions provided by law, the department may revoke, modify,

suspend, or refuse to issue or renew a license, assess an

administrative penalty, place on probation a person whose license

has been suspended, or reprimand a license holder if the

department finds that the practitioner:

(1) violated a provision of this code or Chapter 1951,

Occupations Code;

(2) violated a rule adopted by the department under this code or

Chapter 1951, Occupations Code; or

(3) after appropriate notice, failed to comply with an order of

the department.

(b) In addition to any other actions permitted under this code

or Chapter 1951, Occupations Code, if a license suspension is

probated, the department may require the practitioner:

(1) to maintain additional information in the practitioner's

records;

(2) to report regularly to the department on matters that are

the basis of the probation;

(3) to limit practice to the areas prescribed by the department;

(4) to continue or review professional education until the

practitioner attains a degree of skill satisfactory to the

department in those areas that are the basis of the probation.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.04, eff. Sept. 1,

1995. Amended by Acts 2001, 77th Leg., ch. 52, Sec. 3, eff. May

7, 2001.

Amended by:

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

506, Sec. 7.01, eff. September 1, 2009.

Sec. 12.0202. ADMINISTRATIVE HEARINGS. If the department

proposes to suspend, revoke, or refuse to renew a person's

license, the person is entitled to a hearing conducted by the

State Office of Administrative Hearings. Proceedings for a

disciplinary action are governed by Chapter 2001, Government

Code. Rules of practice adopted by the department under Section

2001.004, Government Code, applicable to the proceedings for a

disciplinary action may not conflict with rules adopted by the

State Office of Administrative Hearings.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.04, eff. Sept. 1,

1995.

Sec. 12.0203. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE

RESOLUTION. (a) The commissioner shall develop and implement a

policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008,

Government Code, for the adoption of department rules; and

(2) appropriate alternative dispute resolution procedures under

Chapter 2009, Government Code, to assist in the resolution of

internal and external disputes under the department's

jurisdiction.

(b) The department's procedures relating to alternative dispute

resolution must conform, to the extent possible, to any model

guidelines issued by the State Office of Administrative Hearings

for the use of alternative dispute resolution by state agencies.

(1) coordinate the implementation of the policy adopted under

Subsection (a);

(2) serve as a resource for any training needed to implement the

procedures for negotiated rulemaking or alternative dispute

resolution; and

(3) collect data concerning the effectiveness of those

procedures, as implemented by the department.

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

506, Sec. 8.03, eff. September 1, 2009.

Sec. 12.021. FEE FOR PHYTOSANITATION INSPECTION; ISSUANCE OF

CERTIFICATE. The department shall collect an inspection fee, as

provided by department rule, for a phytosanitation inspection

required by foreign countries or other states for agricultural

products, processed products, or equipment exported from this

state. The department may issue a phytosanitary certificate on

completion of the inspection.

Added by Acts 1985, 69th Leg., ch. 239, Sec. 58, eff. Sept. 1,

1985. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 2.03, eff.

Sept. 1, 1995; Acts 2001, 77th Leg., ch. 52, Sec. 4, eff. May 7,

2001.

Sec. 12.022. AUTHORITY TO SOLICIT AND ACCEPT GIFTS, GRANTS, AND

DONATIONS. The department may solicit and accept gifts, grants,

and donations of money, services, or property from any person.

Money received by the department under this section may be

expended or distributed for any public purpose related to the

department's duties.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 11, eff. Sept. 1,

1989.

Amended by:

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

506, Sec. 9.02, eff. September 1, 2009.

Sec. 12.023. EXPIRATION OF REGISTRATION OR LICENSES. The

department by rule shall adopt a system under which registrations

or licenses required by the department, including licenses issued

under Chapter 1951, Occupations Code, expire on various dates

during the year. The department may increase or decrease the

term of an initial or renewal license or registration so that all

licenses held by a person or a group of license holders expire on

the same date. For the period in which the registration or

license expiration date is changed, registration or license fees

shall be prorated on a monthly basis so that each registrant or

licensee pays only that portion of the fee that is allocable to

the number of months during which the registration or license is

valid. On the next renewal of the registration or license, the

total renewal fee is payable.

Added by Acts 1985, 69th Leg., ch. 664, Sec. 1, eff. Sept. 1,

1985. Renumbered from Sec. 12.021 by Acts 1987, 70th Leg., ch.

167, Sec. 5.01(a)(1), eff. Sept. 1, 1987. Amended by Acts 1989,

71st Leg., ch. 230, Sec. 12, eff. Sept. 1, 1989; Acts 1995, 74th

Leg., ch. 419, Sec. 1.05, eff. Sept. 1, 1995.

Amended by:

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

506, Sec. 6.02, eff. September 1, 2009.

Sec. 12.024. LATE RENEWAL OF LICENSE OR REGISTRATION. (a) A

person who is otherwise eligible to renew a license or

registration may renew an unexpired license or registration by

paying the required renewal fee to the department before the

expiration date of the license or registration. A person whose

license or registration has expired may not engage in activities

that require a license or registration until the license or

registration has been renewed under the provisions of this

section.

(b) If the person's license or registration has been expired for

90 days or less, the person may renew the license or registration

by paying to the department 1-1/2 times the required renewal fee.

longer than 90 days but less than one year, the person may renew

the license or registration by paying to the department two times

the required renewal fee.

(d) If the person's license or registration has been expired for

one year or longer, the person may not renew the license or

registration. The person may obtain a new license or registration

by submitting to reexamination, if applicable, and complying with

the requirements and procedures for obtaining an original license

or registration.

(e) If the person was licensed or registered in this state,

moved to another state, and is currently licensed or registered

and has been in practice in the other state for the two years

preceding application, the person may renew an expired license or

registration without reexamination, if required. The person must

pay to the department a fee that is equal to two times the

required renewal fee for the license or registration.

(f) At least 30 days before the expiration of a person's license

or registration, the department shall send written notice of the

impending license or registration expiration to the person at the

license holder's or registrant's last known address according to

the records of the department.

(g) The department by rule shall set fees required by this

section.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 13, eff. Sept. 1,

1989. Amended by Acts 1993, 73rd Leg., ch. 419, Sec. 2, eff.

Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 650, Sec. 3, eff. Aug.

30, 1993; Acts 1993, 73rd Leg., ch. 1016, Sec. 10, eff. Sept. 1,

1993; Acts 1995, 74th Leg., ch. 419, Sec. 2.04, eff. Sept. 1,

1995.

Sec. 12.025. PROGRAM ACCESSIBILITY PLAN. The department shall

comply with federal and state laws related to program and

facility accessibility. The commissioner shall also prepare and

maintain a written plan that describes how a person who does not

speak English can be provided reasonable access to the

department's programs and services.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 14, eff. Sept. 1,

1989. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 1.06, eff.

Sept. 1, 1995.

Sec. 12.026. PUBLIC INTEREST INFORMATION; COMPLAINTS. (a) The

department shall prepare information of public interest

describing the functions of the department and the department's

procedures by which complaints are filed with and resolved by the

department. The department shall make the information available

to the public and appropriate state agencies.

(b) The department by rule shall establish methods by which

consumers and service recipients are notified of the name,

mailing address, and telephone number of the department for the

purpose of directing complaints to the department. The department

may provide for that notification:

(1) on each registration form, application, or written contract

for services of an individual or entity regulated by the

department;

(2) on a sign prominently displayed in the place of business of

each individual or entity regulated by the department; or

(3) in a bill for service provided by an individual or entity

regulated by the department.

complaint filed with the department. The information shall

include:

(1) the date the complaint is received;

(2) the name of the complainant;

(3) the subject matter of the complaint;

(4) a record of all persons contacted in relation to the

complaint;

(5) a summary of the results of the review or investigation of

the complaint; and

(6) for complaints for which the agency took no action, an

explanation of the reason the complaint was closed without

action.

(d) The department shall keep a file about each written

complaint filed with the department that the department has

authority to resolve. The department shall provide to the person

filing the complaint and the persons or entities complained about

the department's policies and procedures pertaining to complaint

investigation and resolution. The department, at least quarterly

and until final disposition of the complaint, shall notify the

person filing the complaint and the persons or entities

complained about of the status of the complaint unless the notice

would jeopardize an undercover investigation.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 15, eff. Sept. 1,

1989. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 1.07, eff.

Sept. 1, 1995.

Sec. 12.0261. ADMINISTRATIVE PROCEDURE. The department is

subject to Chapter 2001, Government Code.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.08, eff. Sept. 1,

1995.

Sec. 12.027. ECONOMIC DEVELOPMENT PROGRAM. (a) The department

shall maintain an economic development program for rural areas in

this state.

(b) In administering the program, the department shall:

(1) promote economic growth in rural areas;

(2) identify potential opportunities for business in rural areas

and assist rural communities in maximizing those opportunities;

(3) work with rural communities to identify economic development

needs and direct those communities to persons who can address and

assist in meeting those needs;

(4) encourage communication between organizations, industries,

and regions to improve economic and community development

services to rural areas;

(5) coordinate meetings with public and private entities to

distribute information beneficial to rural areas;

(6) enter into a memorandum of agreement to work cooperatively

with the Texas Department of Economic Development, the Texas

Agricultural Extension Service, and other entities the department

deems appropriate to further program objectives; and

(7) perform any other functions necessary to carry out the

program.

Added by Acts 2001, 77th Leg., ch. 15, Sec. 1, eff. Sept. 1,

2001.

Sec. 12.0271. RURAL ECONOMIC DEVELOPMENT AND INVESTMENT PROGRAM.

(a) From funds appropriated for that purpose, the commissioner

shall establish and administer a financial assistance program to

encourage private economic development in rural areas. Financial

assistance under the program may be provided only to:

(1) a county with a population of not more than 75,000;

(2) a municipality with a population of not more than 50,000; or

(3) an economic development corporation or community development

financial institution that primarily represents a county or

municipality described by this subsection.

(b) Financial assistance under Subsection (a) may be used only

for a project relating to:

(1) the acquisition or development of land, easements, or

rights-of-way;

(2) attracting new private enterprises to the county or

municipality, including:

(A) manufacturing facilities;

(B) freight storage facilities;

(D) other nonretail private enterprises;

(3) the construction, extension, or other improvement of:

(A) water or waste disposal facilities; or

(B) transportation infrastructure; or

(4) any other activity relating to private economic development

that the commissioner determines will encourage economic and

infrastructure development in a rural area.

commissioner may provide financial assistance to an eligible

county, municipality, community development financial

institution, or economic development corporation by:

(1) extending credit by direct loan, based on the credit of the

county, municipality, community development financial

institution, or economic development corporation;

(2) providing a credit enhancement;

(3) effectively lowering interest rates;

(4) financing a purchase or lease agreement in connection with

an economic or infrastructure development project; or

(5) providing methods of leveraging money from sources other

than this state that are related to the project for which the

assistance is provided.

(d) A county, municipality, community development financial

institution, or economic development corporation that receives

funds under Subsection (c) shall segregate the funds from other

funds under the control of the county, municipality, or economic

development corporation and use the funds only for a purpose

described by this section. Any funds disbursed through the

program must be repaid on terms determined by the department.

(e) The department shall adopt rules necessary to implement this

section.

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

506, Sec. 8.04, eff. September 1, 2009.

Sec. 12.028. COMPETITIVE BIDDING OR ADVERTISING. (a) The

department may not adopt rules restricting competitive bidding or

advertising by a person regulated by the department except to

prohibit false, misleading, or deceptive practices by the person.

(b) The department may not include in its rules to prohibit

false, misleading, or deceptive practices by a person regulated

by the department a rule that:

(1) restricts the use of any medium for advertising;

(2) restricts the person's personal appearance or use of the

person's voice in an advertisement;

(3) relates to the size or duration of an advertisement by the

person; or

(4) restricts the person's advertisement under a trade name.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 17, eff. Sept. 1,

1989.

Sec. 12.029. MINORITY AND FEMALE-OWNED BUSINESS CONTRACTS. (a)

The department shall establish by rule policies to encourage

minority and female-owned small businesses to bid for contract

and open market purchases of the department and to assist those

businesses in that bidding. The department shall review the

policies periodically to correct any deficiencies in the

policies.

(b) The department annually shall determine the number, types,

and value of contracts awarded to minority and female-owned small

businesses in the year preceding the determination and the ratio

of the number and the value of those contracts to the number and

the value of all contracts awarded by the department in that

year.

this section with the comptroller and with the Texas Department

of Commerce or its successor in function. The comptroller shall

conduct an analysis of the department's policies and the

policies' effectiveness and shall report the analysis to the

governor, lieutenant governor, and speaker of the house of

representatives not later than December 31 of each even-numbered

year.

(d) In this section, "minority and female-owned small business"

means a business enterprise:

(1) that is independently owned and operated, that was formed

for the purpose of making a profit, and that has fewer than 100

employees and less than $1 million in annual gross receipts; and

(2) that is controlled by one or more socially and economically

disadvantaged persons who own at least 51 percent of the business

enterprise and are socially disadvantaged because of their

identification as members of certain groups, including women,

black Americans, Mexican Americans and other Americans of

Hispanic origin, Asian Americans, and American Indians.

Added by Acts 1989, 71st Leg., ch. 230, Sec. 18, eff. Sept. 1,

1989.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

937, Sec. 1.79, eff. September 1, 2007.

Sec. 12.031. PUBLICATIONS AND PUBLICATION FEES. (a) The

department may provide or sell information, including books,

magazines, photographs, prints, and bulletins, to the public

concerning agriculture, horticulture, or related industries.

(b) The department may receive royalties on department-owned

materials that are sold or supplied to others by the department

for publication.

publication of information concerning agriculture, horticulture,

or related industries.

(d) Money received under this section shall be deposited in the

State Treasury to the credit of the fund from which expenses for

the publication were paid.

Added by Acts 1993, 73rd Leg., ch. 226, Sec. 1, eff. Aug. 30,

1993.

Sec. 12.032. COOPERATION WITH STATE OFFICE OF ADMINISTRATIVE

HEARINGS. (a) The commissioner and the chief administrative law

judge of the State Office of Administrative Hearings by rule

shall adopt a memorandum of understanding under which the State

Office of Administrative Hearings conducts hearings for the

department under this code. The memorandum of understanding shall

require the chief administrative law judge, the department, and

the commissioner to cooperate in connection with the hearings

under this code and may authorize the State Office of

Administrative Hearings to perform any administrative act,

including giving of notice, that is required to be performed by

the department or the commissioner under this code. The

memorandum of understanding shall also require that hearings

under this section be held at a location agreed upon by the State

Office of Administrative Hearings and the department.

(b) For a hearing conducted by the State Office of

Administrative Hearings under this code, the department and the

commissioner retain the authority to decide whether the

administrative law judge conducting the hearing for the State

Office of Administrative Hearings shall:

(1) enter the final decision in the case after completion of the

hearing; or

(2) propose a decision to the department or the commissioner for

final consideration.

or the commissioner take an action at a hearing means:

(1) that the department or the commissioner shall take the

action after the receipt of a proposal for decision from the

State Office of Administrative Hearings regarding the hearing

conducted by that office; or

(2) if so directed by the department or the commissioner, the

State Office of Administrative Hearings shall enter the final

decision in the case after completion of the hearing.

(d) The department shall prescribe rules of procedure for any

cases not heard by the State Office of Administrative Hearings.

(e) The department by interagency contract shall reimburse the

State Office of Administrative Hearings for the costs incurred in

conducting administrative hearings for the department. The

department may pay an hourly fee for the costs of conducting

these hearings or a fixed annual fee negotiated biennially by the

department and the State Office of Administrative Hearings to

coincide with the department's legislative appropriations

request.

(f) This section does not apply to hearings held under Chapter

103.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 3.01, eff. Sept. 1,

1995.

Sec. 12.033. MULTIPLE LICENSES. (a) In this section:

(1) "Component license" means a license issued by the department

that is consolidated under this section.

(2) "Grocer" means a person whose business consists primarily of

the retail sale of food for human consumption.

(b) A grocer who holds more than one type of license issued by

the department may obtain from the department a single

consolidated license. A consolidated license authorizes each of

the activities of the component licenses.

issuance of a consolidated license under this section. The rules

shall include provisions for:

(1) a fee schedule for the consolidated license that considers:

(A) the cost of operating each component license program; and

(B) the economic efficiency gained by the department through the

operation of a consolidated license program;

(2) the suspension or revocation of a consolidated license for a

violation of a rule or statute authorizing one of the component

licenses;

(3) the combination of all inspections required for the

component licenses into a single inspection; and

(4) any other provision the department determines is necessary

to implement this section.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 8.01, eff. Sept. 1,

1995.

Sec. 12.034. REFUND OR WAIVER OF FEES. The department by rule

may provide for:

(1) the full or partial refund of a fee collected by the

department;

(2) the waiver of a licensing, registration, or certification

fee collected by the department, including any related late fee;

and

(3) the waiver of an inspection fee.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 2.05, eff. Sept. 1,

1995. Amended by Acts 2003, 78th Leg., ch. 196, Sec. 1, eff.

Sept. 1, 2003.

Sec. 12.035. NOTICE TO EXAMINEE. Not later than the 30th day

after the date on which a licensing or registration examination

is administered under this code, the department shall notify each

examinee of the results of the examination. However, if an

examination is graded or reviewed by a national testing service,

the department shall notify examinees of the results of the

examination not later than the 14th day after the date on which

the department receives the results from the testing service. If

the notice of examination results graded or reviewed by a

national testing service will be delayed for longer than 90 days

after the examination date, the department shall notify the

examinee of the reason for the delay before the 90th day. The

department may require a testing service to notify examinees of

the results of an examination.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.09, eff. Sept. 1,

1995.

Sec. 12.036. LICENSING OUT-OF-STATE APPLICANTS. The department

may waive any prerequisite to obtaining a license or registration

for an applicant after reviewing the applicant's credentials and

determining that the applicant holds a valid license from another

state that has license or registration requirements substantially

equivalent to those of this state.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.09, eff. Sept. 1,

1995.

Sec. 12.037. CONTINUING EDUCATION. The department may

recognize, prepare, or administer continuing education programs

for its license holders.

Added by Acts 1995, 74th Leg., ch. 419, Sec. 1.09, eff. Sept. 1,

1995.

Sec. 12.038. OFFICE OF RURAL AFFAIRS. (a) The department shall

establish and maintain an Office of Rural Affairs. The office

shall be headed by a rural affairs director. To be eligible to

serve as the rural affairs director, a person must have

demonstrated a strong commitment to and involvement in economic

development activities in rural areas.

(b) The Office of Rural Affairs shall:

(1) develop a rural resource guide and provide the information

to rural areas through print and electronic media and through use

of the Texas Business and Community Economic Development

Clearinghouse;

(2) provide information to state agencies on the effects of

proposed policies or actions that affect rural areas;

(3) cosponsor meetings, to the extent practical, in cooperation

with public and private educational institutions to disseminate

information beneficial to rural areas;

(4) identify potential opportunities for businesses in rural

areas and assist these businesses to maximize those

opportunities;

(5) conduct an analysis of the available federal, state, and

local government and rural economic development business outreach

and data services in rural areas of this state by examining the

availability of:

(A) computerized economic development databases that provide

data for existing and prospective businesses and communities in

rural areas of this state; and

(B) business information outreach service offices or centers

that provide comprehensive technical assistance, research,

consulting services, training, and other services to businesses

in rural areas; and

(6) perform any other functions necessary to carry out the

purposes of this section.

(1) employ and set the compensation of personnel to carry out

the Office of Rural Affairs' functions under this section; and

(2) consult with:

(A) experts and authorities in the fields of rural development,

economic development, and community development;

(B) individuals with regulatory, legal, economic, or financial

expertise, including members of the academic community; and

(d) Each state agency must, on request, furnish the Office of

Rural Affairs with reports and other information necessary to

enable the Office of Rural Affairs to carry out the purposes of

this section.

(e) The Office of Rural Affairs may accept gifts, grants, and

donations from sources other than the state for the purpose of

performing specific projects, studies, or procedures or to

provide assistance to rural areas.

(f) Not later than October 15 of each even-numbered year, the

department shall submit to the governor and the legislature a

report containing specific information regarding each of the

functions performed by the Office of Rural Affairs, including

recommendations regarding issues that affect the rural areas of

the state.

Renumbered from Government Code Sec. 481.0067 by Acts 2001, 77th

Leg., ch. 1437, Sec. 1, eff. Sept. 1, 2001.

Sec. 12.039. CERTAIN WINE PRODUCED OR BOTTLED IN THIS STATE.

(a) The Texas Wine Marketing Research Institute or other

qualified entity shall, as funding is available, conduct an

annual study relating to the quantities and varieties of grapes

and other fruit grown in this state that are used for wine

making.

(b) Not later than October 15 of the study year, the Texas Wine

Marketing Research Institute or other qualified entity shall

submit a report to the commissioner. The report must:

(1) include:

(A) the quantities and varieties of grapes and other fruit grown

in this state that are available on September 30 of the study

year for use in wine making;

(B) the needs of wineries in this state for those grapes and

other fruit to meet the wineries' projected production estimates

for the following calendar year; and

fruit grown in this state for which a reduction in the percentage

by volume of Texas grapes used should be granted under Subsection

(d); or

(2) state that funding was not available to complete the study

required by this section.

(b)(2), the reporting entity shall include in the report:

(1) any information that has been routinely collected or

developed by the reporting entity and that might be useful in

determining the quantities and varieties of grapes and other

fruit grown in this state that are available for use in wine

making the following calendar year; and

(2) recommendations regarding the varieties of grapes and other

fruit grown in this state for which a reduction in the percentage

by volume of Texas grapes used should be granted under Subsection

(d).

(d) The commissioner shall review the report and, if the

commissioner determines that the quantity of a variety of grapes

or other fruit grown in this state is insufficient for the

wineries in this state to produce their projected production

estimates during the following calendar year, the commissioner

may reduce the percentage by volume of fermented juice of grapes

or other fruit grown in this state that wine containing that

particular variety of grape or other fruit must contain under

Section 16.011, Alcoholic Beverage Code. The per

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