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Texas Agriculture Code - Section 74.115. Payment Of Assessments; Assessment Liens

Legal Research Home > Texas Lawyer > Agriculture Code > Texas Agriculture Code - Section 74.115. Payment Of Assessments; Assessment Liens

§ 74.115. PAYMENT OF ASSESSMENTS;  ASSESSMENT LIENS.  (a) 
A cotton grower who fails to pay an assessment levied under this 
subchapter when due may be subject, after reasonable notice and 
opportunity for hearing, to a penalty set by the commissioner.  In 
determining the amount of the penalty to be assessed, the 
commissioner shall consider:
		(1)  the seriousness of the violation, including the 
nature, circumstances, and extent of the violation;
		(2)  the history of previous violations;                                      
		(3)  the amount necessary to deter future violations;                         
		(4)  the economic situation of the cotton grower;  and                        
		(5)  any other matter that justice may require.                               
	(b)  The foundation may develop a compliance certificate 
program to manage the payment and collection of an assessment 
levied under this subchapter.  Under the program the foundation, 
subject to department rules, may issue a compliance certificate for 
cotton for which an assessment has been paid.
	(c)  In addition to any other remedies for the collection of 
assessments and penalties, the commissioner may adopt rules 
relating to the compliance certificate program for eradication 
assessments.  The rules may include:
		(1)  provisions establishing and relating to the 
obligations of growers, ginners, and buyers in due course of cotton 
produced in active eradication zones to ensure that assessments are 
paid within a prescribed time period;
		(2)  provisions allowing incentives in the form of 
discounted assessments for growers who pay assessments within a 
prescribed time period;
		(3)  provisions establishing penalties and interest 
against growers who pay assessments after a prescribed time period;  
and
		(4)  other provisions the commissioner may determine 
are proper.            
	(d)  In addition to any other remedies for the collection of 
assessments and penalties, an assessment lien in favor of the 
foundation attaches and is perfected 60 days after the date the 
foundation mails notice of the assessment on cotton produced and 
harvested that year from the acreage that is subject to the 
assessment that is due and unpaid.  An assessment lien is not an 
agricultural lien for the purposes of Chapter 9, Business &
Commerce Code, and is not subject to the provisions of that chapter.  
An assessment lien is subject to and preempted by the Food Security 
Act of 1985 (7 U.S.C. Section 1631 et seq.) and shall be treated 
under that Act in the same manner as a security interest created by 
the seller.  A buyer of cotton takes free of the assessment lien if 
the buyer:
		(1)  receives a compliance certificate issued by the 
foundation when the buyer purchases the cotton that certifies that 
the assessment has been paid to the foundation;
		(2)  pays for the cotton by a check on which the 
department is named as a joint payee;
		(3)  does not receive notice of the assessment lien as 
required by the Food Security Act of 1985 (7 U.S.C. Section 1631 et 
seq.);  or
		(4)  buys the cotton from a person other than the 
producer of the cotton.   
	(e)  The foundation may assign, with the approval of the 
commissioner, assessments or liens in favor of the foundation as 
collateral for a loan to the foundation only if the proceeds of the 
loan are designated for use in the eradication zone from which the 
assessments or liens originated.
	(f)  If the department has cause to believe that a violation 
of this section or rules promulgated under this section has 
occurred, the department may investigate and, during normal 
business hours, audit and inspect the records of the person who is 
the subject of the investigation.

Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993.  
Amended by Acts 1995, 74th Leg., ch. 227, § 11, eff. Sept. 1, 
1995;  Acts 1997, 75th Leg., ch. 463, § 1.17, eff. May 30, 1997;  
Acts 1999, 76th Leg., ch. 286, § 4, eff. May 29, 1999;  Acts 2001, 
77th Leg., ch. 168, § 2, eff. May 18, 2001.

Last modified: August 10, 2007