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2005 Texas Agriculture Code CHAPTER 12. POWERS AND DUTIES
AGRICULTURE CODE CHAPTER 12. POWERS AND DUTIES § 12.001. EXECUTION OF LAWS. The department shall execute all applicable laws relating to agriculture. Acts 1981, 67th Leg., p. 1017, ch. 388, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. May 7, 2001. § 12.0012. NOTICE OF QUARANTINE.Text of section as added by Acts 2003, 78th Leg., ch. 369, § 2 The department, on submission for publication, shall notify the Department of Public Safety's division of emergency management of each quarantine the department adopts. The department shall then cooperate with the 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. 369, § 2, eff. Sept. 1, 2003. For text of section as added by Acts 2003, 78th Leg., ch. 1107, § 1, see V.T.C.A., Agriculture Code § 12.0012, post. § 12.0012. NOTIFICATION.Text of section as added by Acts 2003, 78th Leg., ch. 1107, § 1 The department shall, upon submission for publication, notify the division of emergency management in the office of the governor of each quarantine it adopts. The department shall thereafter cooperate with the 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, § 1, eff. June 20, 2003. For text of section as added by Acts 2003, 78th Leg., ch. 369, § 2, see V.T.C.A., Agriculture Code § 12.0012, ante. § 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, § 1, eff. Sept. 1, 1981. Amended by Acts 2001, 77th Leg., ch. 208, § 1, eff. May 21, 2001; Acts 2003, 78th Leg., ch. 265, § 1, eff. June 18, 2003. § 12.003. AGRICULTURAL SOCIETIES. The department shall encourage the organization of agricultural societies. Acts 1981, 67th Leg., p. 1017, ch. 388, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. Sept. 1, 1981. Amended by Acts 2001, 77th Leg., ch. 52, § 2, eff. May 7, 2001. § 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. (c) The commissioner or the commissioner's designee shall 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, § 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, § 3, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, § 1.02, eff. Sept. 1, 1995. § 12.0135. CONFLICT PROVISIONS. (a) A person may not act as the general counsel to the department 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 department. (b) An officer, employee, or paid consultant of a statewide Texas trade association or an affiliate of a national trade association in the field of agriculture may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule. (c) A person who is the spouse of an officer, manager, or paid consultant of a statewide Texas trade association or an affiliate of a national trade association in the field of agriculture may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 17, of the position classification salary schedule. (d) For the purposes of this section, a trade association is a nonprofit, cooperative, and voluntarily joined association of business or professional competitors 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, § 4, eff. Sept. 1, 1989. § 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) Under the direction of the department, the State Purchasing and General Services Commission shall have printed not more than 10,000 copies of the annual report of the department. The department shall distribute the copies to farmers through the farmers' institutes or agricultural organizations or through other means as determined by the department. Acts 1981, 67th Leg., p. 1019, ch. 388, § 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, § 5, eff. Sept. 1, 1989. § 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, § 2.01, eff. Sept. 1, 1995. § 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, § 6, eff. Sept. 1, 1989. § 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, § 1, eff. Sept. 1, 1981. § 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, § 1, eff. Sept. 1, 1981. Amended by Acts 1995, 74th Leg., ch. 419, § 1.03, eff. Sept. 1, 1995. § 12.017. USE OF TERM "TEXAS AGRICULTURAL PRODUCT". (a) The department, by rule, shall regulate the use of the term "Texas Agricultural Product" and any symbol connected with that term in the selling, advertising, marketing, or other commercial handling of food or fiber products. (b) On request of the department, the attorney general shall sue in a court of competent jurisdiction to enjoin a violation or threatened violation of a rule adopted under this section. (c) A person commits an offense if the person violates a rule adopted by the department under this section. An offense under this section is a Class C misdemeanor. Acts 1981, 67th Leg., p. 1020, ch. 388, § 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, § 7, eff. Sept. 1, 1989. § 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. (c) The department may adopt rules necessary to administer a 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, § 8, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 5, § 9.01, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 650, § 2, eff. Aug. 30, 1993; Acts 2001, 77th Leg., ch. 208, § 2, eff. May 21, 2001; Acts 2003, 78th Leg., ch. 265, § 2, 3, eff. June 18, 2003. § 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. (c) Funds contributed by a board under an agreement under this section are not state funds. Added by Acts 2003, 78th Leg., 3rd C.S., ch. 3, § 25.01, eff. Jan. 11, 2004. § 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. (c) The department shall set by rule the fee for each type of laboratory analysis. Acts 1981, 67th Leg., p. 1020, ch. 388, § 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 239, § 56, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 230, § 9, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, § 2.02, eff. Sept. 1, 1995. § 12.020. ADMINISTRATIVE PENALTIES. (a) If a person violates a provision of this code described by Subsection (c) of this section or a rule or order adopted by the department under a provision of this code described by Subsection (c) of this section, 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.Text of subsec. (c) as amended by Acts 2001, 77th Leg., ch. 374, § 1 (c) The provisions of this code subject to this section and the applicable penalty amounts are as follows:Provision Amount of Penalty Chapter 41 $1,000 Chapters 13, 14, 18, 46, 61, 94, 95, 101, 102, 103, 121, 125, 132, and 134 not more than $500 Subchapter B, Chapter 71 Chapter 19 Chapter 76 not more than $2,000 Subchapters A and C, Chapter 71 Chapters 72, 73, and 74 not more than $5,000.Text of subsec. (c) as amended by Acts 2001, 77th Leg., ch. 1124, § 2 (c) The provisions of this code subject to this section and the applicable penalty amounts are as follows:Provision Maximum Penalty Chapters 13, 14A, 18, 46, 61, 94, 95, 101, 102, 103, 121, 125, 132, and 134 $500 Subchapter B, Chapter 71 Chapter 19 Chapter 76 $2,000 Subchapters A and C, Chapter 71 Chapters 72, 73, and 74 $5,000 Chapter 14 $10,000. (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; or (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; or (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, § 1, eff. Sept. 1, 1983. Amended by Acts 1989, 71st Leg., ch. 230, § 10, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, § 5.95(49), (52), (53), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 358, § 2, eff. June 8, 1995; Acts 1995, 74th Leg., ch. 419, § 3.02, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 425, § 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 186, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 374, § 1, eff. May 25, 2001; Acts 2001, 77th Leg., ch. 1124, § 2, eff. Sept. 1, 2001. § 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; (2) violated a rule adopted by the department under this 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, 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; or (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, § 1.04, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 52, § 3, eff. May 7, 2001. § 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, § 1.04, eff. Sept. 1, 1995. § 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, § 58, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 419, § 2.03, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 52, § 4, eff. May 7, 2001. § 12.022. AUTHORITY TO ACCEPT GIFTS. The department is authorized to accept gifts, grants, and donations and 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 gifts, grants, and donations received and disbursed, used, or maintained by the department during the preceding fiscal year. This report shall be included in the annual report required by Section 12.014 of this chapter. Added by Acts 1989, 71st Leg., ch. 230, § 11, eff. Sept. 1, 1989. § 12.023. EXPIRATION OF REGISTRATION OR LICENSES. The department by rule may adopt a system under which registrations or licenses required by the department expire on various dates during the year. For the year 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 renewal of the registration or license on the new expiration date, the total renewal fee is payable. Added by Acts 1985, 69th Leg., ch. 664, § 1, eff. Sept. 1, 1985. Renumbered from V.T.C.A., Agriculture Code § 12.021 by Acts 1987, 70th Leg., ch. 167, § 5.01(a)(1), eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 230, § 12, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, § 1.05, eff. Sept. 1, 1995. § 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. (c) If the person's license or registration has been expired for 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, § 13, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 419, § 2, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 650, § 3, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 1016, § 10, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 419, § 2.04, eff. Sept. 1, 1995. § 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, § 14, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 419, § 1.06, eff. Sept. 1, 1995. § 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. (c) The department shall keep an information file about each 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, § 15, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 419, § 1.07, eff. Sept. 1, 1995. § 12.0261. ADMINISTRATIVE PROCEDURE. The department is subject to Chapter 2001, Government Code. Added by Acts 1995, 74th Leg., ch. 419, § 1.08, eff. Sept. 1, 1995. § 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. (c) The department may employ personnel to carry out the program. Added by Acts 2001, 77th Leg., ch. 15, § 1, eff. Sept. 1, 2001. § 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, § 17, eff. Sept. 1, 1989. § 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. (c) The department shall file the policies established under this section with the State Purchasing and General Services Commission and the Texas Department of Commerce. The commission 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, § 18, eff. Sept. 1, 1989. § 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. (c) The department may enter into contractual agreements for 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, § 1, eff. Aug. 30, 1993. § 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. (c) Any provision of this code that provides that the department 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, § 3.01, eff. Sept. 1, 1995. § 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. (c) The department by rule shall implement a program for the 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, § 8.01, eff. Sept. 1, 1995. § 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, § 2.05, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 196, § 1, eff. Sept. 1, 2003. § 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, § 1.09, eff. Sept. 1, 1995. § 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, § 1.09, eff. Sept. 1, 1995. § 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, § 1.09, eff. Sept. 1, 1995. § 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. (c) In administering this section, the department may: (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 (C) individuals who represent the public interest. (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. Acts 1997, 75th Leg., ch. 1041, § 12, eff. Sept. 1, 1997. Renumbered from V.T.C.A., Government Code § 481.0067 by Acts 2001, 77th Leg., ch. 1437, § 1, eff. Sept. 1, 2001. § 12.039. TEXAS CERTIFIED RETIREMENT COMMUNITY PROGRAM.Text of section as added by Acts 2005, 79th Leg., ch. 214, § 1 (a) In this section, "program" means the Texas Certified Retirement Community Program. (b) The department shall establish and maintain a Texas Certified Retirement Community Program in which retirees and potential retirees are encouraged to make their homes in Texas communities that have met the criteria for certification by the department as a Texas certified retirement community. (c) The mission of the program is to: (1) promote Texas as a retirement destination to retirees and potential retirees both in and outside Texas; (2) assist Texas communities in their efforts to market themselves as desirable retirement locations and to develop communities that retirees would find attractive for a retirement lifestyle; (3) assist in the development of retirement communities and life-care communities for economic development purposes and as a means of providing a potential workforce and enriching Texas communities; and (4) encourage tourism to Texas in reference to an evaluation of this state as a desirable retirement location and for the visitation of those who have chosen to retire in this state. (d) To be eligible to be a Texas certified retirement community, a community shall: (1) through a board or panel that serves as the community's official program sponsor: (A) complete a retiree desirability assessment, as developed by the department, to include facts regarding crime statistics, tax information, recreational opportunities, housing availability, and other appropriate factors, including criteria listed in Subsection (e); and (B) work to gain the support of churches, clubs, businesses, media, and other entities, as necessary for the success of the program in the community; (2) identify emergency medical services and a hospital within a 75-mile radius of the community; and (3) submit to the department: (A) an application fee in an amount equal to the greater of: (i) $5,000; or (ii) $0.25 multiplied by the population of the community, as determined by the most recent census; (B) a marketing plan detailing the mission as applied to the community, the target market, the competition, an analysis of the community's strengths, weaknesses, opportunities and dangers, and the strategies the community will employ to attain the goals of the program; and (C) a long-term plan outlining the steps the community will undertake to maintain its desirability as a destination for retirees, including an outline of plans to correct any facility and service deficiencies identified in the retiree desirability assessment required by Subdivision (1)(A). (e) The department shall develop and use a scoring system to determine whether an applicant will qualify as a Texas certified retirement community. In addition to the requirements of Subsection (d), the department shall consider as part of the scoring system the applicant community in relation to the following criteria: (1) Texas' state and local tax structure; (2) housing opportunities and cost; (3) climate; (4) personal safety; (5) working opportunities; (6) health care services and other services along the continuum of care, including home-based and community-based services, housing for the elderly, assisted living, personal care, and nursing care facilities; (7) transportation; (8) continuing education; (9) leisure living; (10) recreation; (11) the performing arts; (12) festivals and events; (13) sports at all levels; and (14) other services and facilities that are necessary to enable persons to age in the community and in the least restrictive environment, as may be identified by the Department of Aging and Disability Services. (f) The department shall consult with the Office of Rural Community Affairs to establish parameters for certification of rural communities under this section. (g) If the department finds that a community successfully meets the requirements of a Texas certified retirement community, not later than the 90th day after the application is submitted, the department shall provide the following assistance to the community: (1) assistance in the training of local staff and volunteers; (2) ongoing oversight and guidance in marketing, plus updates on retirement trends; (3) inclusion in the state's national advertising and public relations campaigns and travel show promotions, including a prominent feature on the department's Internet website, to be coordinated with the Internet websites of other agencies, as appropriate; (4) eligibility for state financial assistance for brochures, support material, and advertising; and (5) an evaluation and progress assessment on maintaining and improving the community's desirability as a home for retirees. (h) A community's certification under this section expires on the fifth anniversary of the date the initial certification is issued. To be considered for recertification by the department, an applicant community must: (1) complete and submit a new application in accordance with the requirements of Subsection (d); and (2) submit data demonstrating the success or failure of the community's efforts to market and promote itself as a desirable location for retirees and potential retirees. (i) The Texas certified retirement community program account is an account in the general revenue fund. The account is composed of fees collected under Subsection (d). Money in the account may be appropriated to the department only for the purposes of this section, including the payment of administrative and personnel costs of the department associated with administering the program. (j) The department may contract with a local or regional nonprofit organization to provide a service described by Subsection (g) to a community in this state. (k) The department shall adopt rules to implement this section. Added by Acts 2005, 79th Leg., ch. 214, § 1, eff. Sept. 1, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 878, § 1, see § 12.039, post. § 12.039. CERTAIN WINE PRODUCED OR BOTTLED IN THIS STATE.Text of section as added by Acts 2005, 79th Leg., ch. 878, § 1 (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 (C) 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); or (2) state that funding was not available to complete the study required by this section. (c) If a statement is provided in accordance with Subsection (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 percentage established under this subsection must ensure that the use of that variety of grape or other fruit grown in this state is maximized while allowing for the acquisition of grapes or other fruit grown outside of this state in a quantity sufficient to meet the needs of wineries in this state. (e) The commissioner shall submit the commissioner's determination to the Texas Alcoholic Beverage Commission in writing and publish the commissioner's determination in the Texas Register and on the department's Internet website not later than December 31 of the study year. (f) A percentage requirement established under Subsection (d) applies to wine bottled under Section 16.011, Alcoholic Beverage Code, during the calendar year following the study year. (g) If a winery in this state finds that the determination made by the commissioner under Subsection (d) does not reduce the percentage requirement with respect to a particular variety of grape or other fruit to a level sufficient for the winery to meet the winery's planned production for the relevant year, the winery may submit documentation or other information to the commissioner substantiating that the winery has not been able to acquire those grapes or other fruit grown in this state in an amount sufficient to meet the winery's production needs. If the commissioner determines that there is not a sufficient quantity of that variety of grapes or other fruit grown in this state to meet the needs of that winery, the commissioner may reduce the percentage requirement for wine bottled during the remainder of the calendar year that contains that variety of fruit. (h) The commissioner may: (1) establish a voluntary registry for vineyards and other fruit growers in this state to assist in the determination of the availability of grapes and other fruit grown in this state and facilitate communication between the wineries and fruit growers in this state regarding the availability of and need for grapes and other fruit for wine making; and (2) assess a fee to cover the cost of administering the registry. (i) Information gathered through a registry established under Subsection (h) shall be posted on the department's Internet website and may be made available in any other format agreed on by the commissioner and a requestor who pays the appropriate fee for reproducing the record. (j) The vineyard and fruit growers registry fund is an account in the general revenue fund. Fees collected under Subsection (h) shall be deposited to the credit of that account. Money in the account may be appropriated only to the department and may be used only to cover administrative and personnel costs of the department associated with administering a registry established under Subsection (h). Added by Acts 2005, 79th Leg., ch. 878, § 1, eff. June 17, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 214, § 1, see § 12.039, ante.
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