PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 14. [PERISHABLE COMMODITIES] HANDLING AND MARKETING OF PERISHABLE COMMODITIES [PROGRAM]
The Texas Department of Agriculture (Department) proposes amendments to Texas Administrative Code, Title 4, Chapter 14 (Perishable Commodities Handling and Marketing Program), Subchapter A (General Provisions), §14.1 (Definitions), §14.3 (Fees), and §14.4 (Cancellation of License); Subchapter B (Produce Recovery Fund Claims), §14.10 (Claims Against the Fund), §14.11 (Determination on Claims by the Department), §14.12 (Filing of Notice of Protest; Appeal to the Board), §14.13 (Payment of Claims from the Fund), and §14.14 (Reimbursement to the Fund); and Subchapter C (Produce Recovery Fund Board), §14.20 (Purpose and Scope), §14.21 (Duties of the Board and the Department), §14.22 (Meetings), §14.23 (Conduct of Hearings of the Produce Recovery Fund Board), §14.24 (The Board's Final Determination), and §14.25 (Motion for Rehearing).
The Department identified the need for the proposed amendments during its rule review conducted pursuant to Texas Government Code, §2001.039, the adoption of which can be found in the Review of Agency Rules section of this issue.
In accordance with Texas Agriculture Code (Code), §103.004 and §103.012, the Produce Recovery Fund Board (Board) is required to advise the Department in its rulemaking capacity under Chapter 103 of the Texas Agriculture Code (Code). Chapter 103 governs the Board and payments from the Produce Recovery Fund pursuant to claims against license holders and persons requiring to be licensed as handlers of perishable commodities under Chapter 101 of the Code.
The Department presented the proposed amendments to the Board at its open meeting on November 15, 2023. The Board discussed and approved the proposed amendments by a unanimous vote.
The proposed amendments replace the current title of this chapter with "Handling and Marketing of Perishable Commodities" for consistency with the name of the Department's related program and the title of Chapter 101 of the Code.
The proposed amendments to §14.1 include a definition for the "Administrative Procedure Act" to account for its frequency in this chapter, remove a definition for "agent" due to its infrequency in this chapter, update a reference in the definition for the "Open Meetings Act," add language to the definition for "claim" to specify against whom claims can be filed, and add a citation to the Code to the definition of "perishable commodity" to denote the statutory source of its definition.
The proposed amendments to §14.3 add language specifying those agents who require identification cards.
The proposed amendments to §14.4 specify a reference to the Department's general rules of procedure outlines in Chapter 1, Subchapter A of this title and change a reference to Chapter 2001 of the Texas Government Code to account for its proposed definition in §14.1.
The proposed amendments to §14.10 remove subsection (e) to become new subsection (d) §14.10 as its provisions fit more appropriately with those of §14.14, remove an outdated provision addressing claims prior to September 1, 2009, remove unnecessary language precluding the filing of out-of-state claims, and add a reference to §14.3 to specify claim-filing fees.
The proposed amendments to §14.11 change references to this chapter from "title" to "chapter," as the latter term is generally used throughout Title 4, update a reference to Chapter 1, Subchapter A of this title, change "recommendation" to "proposal for decision" as the former is used throughout this chapter and Chapter 1, Subchapter A of this title, make "Deputy Commissioner" lower-case as "Commissioner" is made lower-case throughout this chapter, and replace general references to "agency" with "department."
The proposed amendments to §14.12 charge the term "person" to "party" as the former is used within the context of a hearing and in Chapter 103 of the Code, make "proposal for decision" lower-case to be the same as its occurrences in the Department's rules of procedure in Chapter 1, Subchapter A of this title and Chapter 2001 of the Texas Government Code (the Administrative Procedure Act), and replace general references to "agency" with "department."
The proposed amendments to §14.13 remove an outdated subsection outlining payments for claims prior to September 1, 2009; remove an obsolete subsection limiting total payments on claims against a single entity to $85,000 as its statutory analogue, former Subsection 103.008(c) of the Code, was removed in 2009; and remove a reference to its restrictions on claim payments and replace it with the applicable statutory authority in Chapter 103 of the Code.
The proposed amendments to §14.14 add subsection (e) of §14.10 as new subsection (d) as its provisions fit more appropriately with those of §14.14 and replace the term "working days" with "business days" as the former is the more prevalent term.
The proposed amendments to §14.20 update a reference to Chapter 1, Subchapter A of this title.
The proposed amendments to §14.22 remove unnecessary language addressing requirements of the Open Meetings Act and remove an incorrect provision on notice of Board meetings being published in the Texas Register.
The proposed amendments to §14.23 update Department contact information for prehearing motions and exhibit requests, specify that requests to the Department for hearing-related information must be written, and replace the term "working days" with "business days" as the former is the more prevalent term.
The proposed amendments to §14.25 require motions for rehearing to be sent to opposing parties and Board rulings on these motions to be made in accordance with Section 2001.146 of the Texas Government Code and update Department contact information.
In addition, "Board," "Fund," and "Chairman" are made lower-case throughout these rules to align with their occurrences in Chapter 103 of the Code. Likewise, "licensee" and "complaining party" are changed to "license holder" and "aggrieved party" throughout these rules because the latter terms are use in Chapter 103.
Also, editorial changes are made throughout these rules to correct grammar, remove superfluous or outdated language, and improve the rules' readability.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Mr. Philip Wright, the Administrator for Regulatory Affairs, has determined that for each year of the first five years the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering them.
PUBLIC BENEFITS AND PROBABLE ECONOMIC COSTS: Mr. Wright has determined that for each year of the first five years the proposed amendments are in effect, the public benefit will be increased consumer protection due to updates to and improved readability of the chapter. Mr. Wright has also determined there are no anticipated economic costs to persons required to comply with the proposed amendments.
LOCAL EMPLOYMENT IMPACT STATEMENT: Mr. Wright has determined that the proposed amendments will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Texas Government Code, §2001.022.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed amendments, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002 is not required.
GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Texas Government Code, §2001.0221, the Department provides the following Government Growth Impact Statement for the proposed amendments. For each year of the first five years the proposed amendments will be in effect:
(1) they will not create or eliminate a government program;
(2) their implementation will not require the creation or elimination of existing employee positions;
(3) their implementation will not require an increase or decrease in future legislative appropriations to the Department;
(4) there will be no increase or decrease in fees paid to the Department;
(5) they will not create a new regulation;
(6) they will not expand, limit, or repeal an existing regulation;
(7) there will be no increase or decrease in the number of individuals subject to the rules; and
(8) there will be no positive or adverse effect on the state's economy.
Comments on this proposal may be submitted by mail to John "Chris" Gee, Lead Assistant General Counsel, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to chris.gee@texasagriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.
SUBCHAPTER A. GENERAL PROVISIONS
The amendments are proposed under the Department's authority in Section 12.016 of the Texas Agriculture Code (Code), which authorizes the Department to adopt rule to administer its powers and duties under the Code; such powers and duties include Code, Section 101.006, the requirement that the Department to set fees for licensure to handle perishable commodities by rule; Code, Section 101.010, which requires the Department to set fees for identification cards for agents of license holders who either transport or buy perishable commodities; Code, Section 103.005, which also requires the Department to set fees for filing claims against the Produce Recovery Fund (Fund); Code, Section 103.009, which further requires the Department to issue orders canceling licenses and to deny issuing new licenses or renewing licenses for license holders or those required to be licensed to handle perishable commodities who, following payments from the Fund against them, neither pays nor agrees to pay either the Fund or the aggrieved party; Code, Section 103.011, which requires the Department to set an annual fee for those licensed under Code, Chapter 101; and Code, Section 103.012, which requires the Department, with the advice of the Board, to adopt rules related to payment of claims from the Fund.
The code affected by the proposed amendments is Texas Agriculture Code, Chapters 101 and 103.
§14.1.Definitions.
In addition to the definitions set out in Texas Agriculture
Code (Code), Chapters 101[,] and 103, and
Chapter 1, Subchapter A of this title (relating to [the]
General Rules of Practice), the following words and terms, when used
in this chapter, shall have the following meanings, unless the context
clearly indicates otherwise.
(1) Administrative Procedure Act--The Texas Government
Code, Chapter 2001 [Agent--An employee authorized to act
for and on behalf of a licensee as a buying agent and/or a transporting
agent].
(2) (No change.)
(3) Citrus fruit [Fruit]--Any
fruit belonging to the genus Citrus, Poncitrus, Microcitrus, Eremocitrus, or Fortunella, including, grapefruit, oranges, lemons, limes,
and tangerines.
(4) Claim--A sworn complaint accompanied by the prescribed fee alleging a loss or damages occurred as a result of a violation of the terms or conditions of a contract involving the sale of perishable commodities grown in Texas by a license holder or person required to be licensed.
(5) License holder [Licensee]--A
person who holds a license issued under the [Texas Agriculture]
Code, Chapter 101.
(6) Open Meetings Act--The [Texas Open
Meetings Act,] Texas Government Code, Chapter 551.
(7) Perishable commodity [Commodity]--As defined in the Code, §101.001, fresh [Fresh]
produce grown in Texas and generally considered a perishable vegetable
or fruit.
§14.2.Citrus Proof of Ownership.
A license holder [licensee] or a packer,
processor, warehouseman or transporter may not receive or handle citrus
fruit without requiring the person from whom the citrus fruit is purchased
or received to furnish proof of ownership on a form approved by the
department; except for citrus fruit being transported from the farm
or grove to market or the place of first processing by the producer
of the citrus fruit operating the producer's vehicle or by an employee
of the producer operating a vehicle owned by the producer.
§14.3.Fees.
(a) License and [/registration/]
identification card fees.
(1) (No change.)
(2) The fee for each identification card for transporting and buying agents is $30.
(b) - (d) (No change.)
§14.4.Cancellation of License.
If an award and payment is made from the fund [Fund
] and the license holder [licensee], or
person required to be licensed, fails to reimburse and/or fails to
agree in writing to reimburse the fund [Fund]
and/or the aggrieved [complaining] party [to
the case in accordance with the provisions of this chapter, the department
shall initiate proceedings], after 90 days, the department
shall initiate proceedings [of failure to reimburse and/or
failure to agree in writing to reimburse the Produce Recovery Fund,]
to cancel the license holder's [licensee's]
license in accordance with the Texas Agriculture Code (Code),
§103.009. Such proceedings shall be conducted in accordance with
the [Texas Agriculture] Code, §12.032, the Administrative
Procedure Act, [Texas Government Code, Chapter 2001], and
the department's General Rules of Practice and Procedure found
at Chapter 1, Subchapter A of this title (relating to General Practice
and Procedure) [rules of procedure].
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 6, 2024.
TRD-202402021
Susan Maldonado
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: June 16, 2024
For further information, please call: (512) 463-6591
The amendments are proposed under the Department's authority in Code, Section 12.016, which authorizes the Department to adopt rule to administer its powers and duties under the Code. The amendments are proposed under Code, Section 103.009, which requires the Department to set schedules for reimbursements to the Fund and payments to aggrieved parties following Department payments from the Fund and Code, Section 103.012, which requires the Department, with the advice of the Board, to adopt rules related to payment of claims from the Fund.
The code affected by the proposed amendments is Texas Agriculture Code, Chapters 101 and 103.
§14.10.Claims Against the Fund.
(a) What claims can be filed. Only claims against a license
holder [licensee] or a person required to be licensed
for loss or damages due to a violation of the terms or conditions
of a contract for the sale of perishable commodities grown in Texas
may be filed. [The following claims may not be accepted:]
[(1) Claims for perishable commodities
grown out-of-state.]
(b) [(2)] Claims filed under
the Perishable Agriculture Commodities Act [(PACA)] that
are accepted as formal complaints and adjudicated by the United States
Department of Agriculture, or claims for which an aggrieved party [a complainant] has filed suit in a court of competent jurisdiction shall not be accepted.
[(b) Who may file. A person who suffers
a loss or damages due to the violation of the terms or conditions
of a contract by a licensee or a person required to be licensed may
file a claim against the Fund.]
(c) How to file. A claim shall be filed with the department
on a prescribed complaint form and shall be accompanied by the [prescribed
] fee required by §14.3 of this chapter (relating
to Fees). The date of postmark, if mailed, or the date the complaint
and fee are received by the department, if hand- delivered, shall
be the date the claim is deemed filed.
(d) Statute of Limitations. A claim shall be barred
if it is filed later than [one year from the date the violation
of the terms or conditions of a contract occurred. This limitation
applies to claims that are based on violations that occurred prior
to September 1, 2009. Claims based on violations that occurred on
or after September 1, 2009 shall be barred if it is filed later than]
two years from the date the payment was due.
[(e) Respondent's Option to Pay. If
a recommendation for payment from the Fund is made by a department
hearing officer or a payment is awarded in a final department or Board
determination, the respondent may pay the amount found to be due directly
to complainant rather than have that payment made by the Fund. If
direct payment is made, parties shall notify the department in writing.]
§14.11.Determination on Claims by the Department.
(a) Once a claim is filed in accordance with §14.10
of this chapter [title] (relating to Claims
Against the Fund), the department shall investigate the claim and
may conduct a hearing to determine the amount due the aggrieved party.
All hearings shall be conducted by a department hearing officer in
accordance with the provisions of the Administrative Procedure Act
and [the department's General Rules of Practice and Procedure
found at] Chapter 1, Subchapter A of this title (relating to
General Rules of Practice [and Procedure]).
(b) (No change.)
(c) Parties may protest the proposal for decision [recommendation] made by the department hearing officer by filing
a Notice of Protest in accordance with §14.12 of this chapter [title] (relating to Filing of Notice of Protest; Appeal to the
Board). If no protest is filed, the case will be forwarded to the deputy
commissioner [Deputy Commissioner] for a final [agency] determination.
(d) Parties may also protest the department's [agency's] final determination by filing a Notice of Protest
in accordance with §14.12 of this chapter [title
(relating to Filing of Notice of Protest; Appeal to the Board)].
(e) (No change.)
§14.12.Filing of Notice of Protest; Appeal to the Board.
(a) A party [person] who disputes
the recommendation of the department's hearing officer or the department's
final determination on a claim shall file a Notice of Protest with
the [department. The notice shall be sent to the attention of
the] Hearings Clerk, General Counsel Division, Texas Department
of Agriculture, P.O. Box 12847, Austin, Texas 78711. A copy of the
Notice of Protest shall be sent to the opposing party and/or a designated representative.
(b) A Notice of Protest shall be in writing, state
the [reason or] reasons for the protest, and request a
hearing before the board [Board].
(c) A Notice of Protest must be received by the department
within 15 days from the date of the receipt of the hearing officer's proposal for decision [Proposal for Decision] on
the claim, or if an appeal from the final department [agency
] determination, within 20 days from the date the final department
[agency] determination was mailed. A Notice
of Protest [The department shall accept notices of protest]
filed by fax shall be accepted if it [facsimile transmission,
as long as the facsimile] is received no later than 5:00 [5] p.m. on the due date. [Oral notices of protest shall not be accepted.]
(d) If a Notice of Protest is received on a claim,
the claim shall be referred to the board [Board]
for hearing.
§14.13.Payment of Claims from the Fund.
[(a) The following payments of claims shall apply for a claim based on a violation occurring prior to September 1, 2009.]
[(1) Claims of $2000 or less may be paid in full.]
[(2) Claims of more than $2000 may be paid in the following manner:]
[(A) If the claim was filed on or after September 1, 1999, but prior to September 1, 2009, the first $2000 plus no more than 70% of the amount in excess of $2,000, may be paid.]
[(B) If the claim was filed prior to September 1, 1999, the first $1,000 plus no more than 60% of the amount in excess of $1000, may be paid.]
[(3) Claims arising from Same Contract. Total payment for claims arising from the same contract shall not exceed $35,000.]
[(4) Claims Against a Single Licensee. Total payment for claims against a single licensee shall not exceed $85,000 in any one calendar year. Claims shall be paid in the order that a final determination is made by the department or the Board. In cases when a claim cannot be paid in full due to the restrictions of this paragraph, the claimant shall be given the option of accepting immediate payment of a lesser amount or accepting full payment from the Fund during the next calendar year.]
[(b)] Payment [The following
payments] of claims from the fund shall be subject
to the following: [apply for a claim based on a violation
occurring on or after September 1, 2009.]
(1) (No change.)
(2) [Claims Arising from Same Contract.]
Total payment for claims arising from the same contract shall not
exceed $50,000.
[(3) Claims Against a Single Licensee
or a person required to be licensed. Total payment for claims against
a single licensee or a person required to be licensed shall not exceed
$85,000 in any one calendar year.]
(3) [(4)] Claims against a person
who is not licensed. Payment for claims against a person who is not
licensed at the time the claim was filed shall not exceed 80% of the
total recovery [claim].
(4) [(5)] Claims shall be paid
in accordance with the order that a final determination is made by
the department or the board [Board]. In cases
when a claim cannot be paid in full due to the restrictions of the
Texas Agriculture Code, §103.008(e) [this subsection],
the aggrieved party [claimant] shall be given
the option of accepting immediate payment of a lesser amount or accepting
full payment from the fund [Fund] during the
next calendar year.
§14.14.Reimbursement to the Fund.
(a) If the department pays a claim [against a
licensee, or a person required to be licensed,] from the fund
[Fund]:
(1) Upon issuance of a final determination from the
department or the board [Board], the license
holder [licensee] shall reimburse the total amount
paid by the fund [Fund] or agree in writing
to reimburse the fund [Fund] the total amount
paid by the fund [Fund]. If a person is not
licensed on the date the transaction forming the basis of the claim
occurred but is required to be licensed, the person shall pay the
fund one and one-half times the amount of the claim paid by the fund
[Fund], upon issuance of a final determination from
the department or the board [Board]. Payment
to the fund [Fund] is due in full within 30
days of the date of the final [agency] determination. If
the license holder [licensee], or a person required
to be licensed, cannot pay the full amount owed to the fund
[Fund] at that time, the department may allow the license holder [licensee], or a person required to
be licensed, to pay the fund pursuant to [amount owed
to the Fund on an amortization schedule set out in] paragraph
(3) of this subsection plus an annual interest rate of 8.0%.
(2) After fully reimbursing the fund [Fund
] for payments made to the aggrieved party [claimant
], the license holder [licensee], or a
person required to be licensed, shall immediately pay or agree to
pay the claimant any remaining amount due that party (balance not
received from the fund [Fund]). If the license
holder [licensee], or a person required to be licensed,
cannot pay the full amount to the aggrieved party [claimant
] at that time, the department may allow the license holder [licensee], or a person required to be licensed, to pay the amount
owed to the aggrieved party pursuant to [claimant
on an amortization schedule as set out in] paragraph (3) of
this subsection plus an annual interest rate of 8.0%, after the fund
[Fund] is fully reimbursed.
(3) Payment [Amortization] Schedule
[for Reimbursement to the Produce Recovery Fund and Claimant].
Claims of:
(A) - (D) (No change.)
(b) Monthly installments to the fund [Fund
] are due on the last business [working]
day of the month and payable to TDA, P.O. Box 12847, Austin, Texas
78711. The department may make exceptions on payment schedules for
good cause shown.
(c) If a license holder [licensee],
or a person required to be licensed, owes money to the fund [Fund] at the time the license holder [licensee],
or a person required to be licensed, makes a claim against the fund [Fund], the department shall offset the amount owed to the fund
[Fund] from the amount determined to be payable
from the fund [Fund].
(d) Respondent's Option to Pay. The respondent may pay the amount found to be directly to the aggrieved party rather than have the payment made by the fund. If direct payment is made, the parties shall notify the department in writing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 6, 2024.
TRD-202402064
Susan Maldonado
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: June 16, 2024
For further information, please call: (512) 463-6591
The amendments are proposed under the Department's authority in Code, Section 12.016, which authorizes the Department to adopt rule to administer its powers and duties under the Code. The amendments are proposed under Section 103.012 of the Texas Agriculture Code, which requires the Department, with the advice of the Board, to adopt rules related to payment of claims from the Fund.
The code affected by the proposed amendments is Texas Agriculture Code, Chapters 101 and 103.
§14.20.Purpose and Scope.
The purpose of this subchapter [these sections]
is to provide [operating] procedures for the board [Produce Recovery Fund Board (the Board), and to provide procedures
for the conduct and determination of Board decisions], so that
hearings and other proceedings before the Board may be conducted in
a uniform and efficient manner. Unless otherwise provided, these rules
are designed to supplement procedures established in Chapter 1,
Subchapter A of this title (relating to General Rules of Practice
[and Procedure]), and the Administrative Procedure Act
and should be read together with those procedures.
§14.21.Duties of the Board and the Department.
(a) The board [Board] shall:
(1) advise the department on all matters relating to
the fund [Fund], including the fund's [Fund's] budget and revenues necessary to accomplish the purposes
of the fund [Fund];
(2) advise the department on the adoption of rules
relating to the payment of claims from the fund [Fund]
and to the administration of the fund [Fund]; and
(3) conduct hearings on claims on which a Notice of Protest has been filed with the department.
(b) The department shall:
(1) administer the fund [Fund],
including the collection of fees from license holders [licensees
], or persons [a person] required to be
licensed, which are to be deposited into the fund [Fund]
in accordance with the Texas Agriculture Code (Code), Chapter 103;
(2) receive and process claims;
(3) conduct hearings on claims, when [where
] appropriate, and issue determinations [an
agency determination] on claims;
(4) refer claims to the board when a Notice of
Protest is filed [Board, where appropriate];
(5) [where an award from the Fund is made,]
process payment of claims in accordance with the Code, Chapter
103, when an award from the fund is made;
(6) [where appropriate,] seek reimbursement
of payments made from the fund when appropriate [Fund]; and
(7) provide administrative support to the board [Board], including posting notices of board [Board]
meetings, making arrangements for board [Board]
meetings, and preparing and mailing [of] notices of hearing
and other correspondence to parties on cases heard by the board [Board].
§14.22.Meetings.
(a) Location, conduct and time of meetings. The board
[Board] shall meet in Austin, or other places designated
by the board [Board], on dates to be determined
by the department with the advice of the board [Board],
for the purpose of conducting hearings on matters appealed to the board
[Board] and/or for the purpose of conducting business
authorized by the Texas Agriculture Code, Chapter 103. Meetings will
be conducted in accordance with the Open Meetings Act.
(b) Notice of meetings. Notice [A written
notice] of the agenda, date, time and place of each [business]
meeting [of the Board] and/or hearing of [conducted
by] the board [Board,] shall be provided
[published in the Texas Register] in accordance
with the Open Meetings Act. [In cases of emergency or urgent
public necessity, notice shall be given as authorized by the Open
Meetings Act.]
(c) Chairman to preside. The chairman of the board [Board] shall preside over all meetings of the board [Board] and shall perform all duties delegated to the chairman [him or her] under this subchapter [these rules].
In the chairman's absence, the vice-chairman shall preside over all
meetings of the board [Board], and shall perform
all duties of the chairman under this subchapter [these
rules]. The vice-chairman shall be selected by a majority of board
[Board] members present at the time of selection.
(d) Public comment period. As part of its [business]
meetings, the board [Board] shall [include
a public comment period to] allow members of the public to [appear
and provide] comment on matters within the jurisdiction of the board [Board]. This item will be included in the
agenda of [published in the Texas Register for]
the [business] meeting.
§14.23.Conduct of Hearings of the Produce Recovery Fund Board.
(a) Representation. Parties to proceedings before the board [Board] shall have a right to appear and may
be represented by counsel, or any other designated person, and shall
have a right to have witnesses appear to testify on their behalf.
(b) Review of Department Record and Presentation By Parties.
(1) The board [In hearing cases in
which a Notice of Protest has been filed, the Board] shall conduct
hearings to review cases for which a Notice of Protest
has been filed and base its determination on the record of the
hearing held before the department and any subsequent matters filed
by parties to the case which are admitted into the record by the board
[Board], including any exhibits accepted into the
record at the hearing before the board [Board].
(2) The board [Board] may take
additional testimony [of parties or other witnesses] and
admit into the record any documentary evidence that it deems necessary
to clarify the record of the hearing before the department and/or
aid the board [Board] in making its determination
on the case.
(3) At the board's [Board's]
discretion, any party may present oral testimony or argument [to
the Board] by filing a written request with the board
[Board a written request to do so] at least five business
[working] days prior to the hearing [day on
which the Board is to consider the case]. The board [Board] may waive the five-day [five working
day] requirement for good cause shown.
(c) Ruling on Objections, Motions; Filing of Motions.
(1) The board [Board] shall have
the authority to rule on motions, on the admissibility of evidence,
on objections, and on amendments to pleadings.
(2) A pre-hearing [Any] motion
[relating to a pending proceeding] shall[, unless
made during a hearing,] be written, set forth under oath the
relief or order sought and the specific reasons and grounds therefor,
and be directed to the board [Board]. Any motion[, including a motion for continuance] shall be filed with the
Hearings Clerk, General Counsel Division, Texas Department of Agriculture,
P.O. Box 12847, Austin, Texas 78711, and distributed to all interested
parties, under a certificate of service, not less than seven business
[working] days prior to the hearing [designated
] date [that the matter is set to be heard by the Board].
The board [Board] may waive the seven-day [seven day] requirement for good cause shown. A reply to such
motion may be filed by any other party to the proceeding. A pre-hearing
motion [Pre-hearing motions] shall be ruled on by
the chairman [Chairman] at the earliest time
practicable, and a final determination [determinations
] on any such motion [motions] shall be
signed by the chairman [Chairman] on behalf
of the board [Board].
(3) When necessary, in the judgment of the chairman [Chairman] and/or the board [Board], or
upon request of a party, a hearing may be set to consider any motion.
A request for hearing on a motion, or a request for hearing on a final
determination issued in response to a motion shall be filed with the board [Board] no later than three business [working] days after receipt of the final determination by the
requesting party.
(d) Exhibits.
(1) All exhibits admitted into the record of the hearing
before the department and the [tape] recording of the hearing
shall be tendered for admission into the record of the hearing before
the board [Board]. All such exhibits shall be
available to the [for inspection by] parties
prior to the beginning of the hearing, and [are available prior
to the hearing date] to any interested person or party prior
to the hearing date upon filing of a written request to the Hearings
Clerk [Deputy General Counsel, General Counsel Division,
Texas Department of Agriculture].
(2) A [Each] party shall deliver
to the other party any additional documents intended to be offered
at the hearing at least three business [working]
days prior to the hearing date[, any documents in addition to
those included in the record of the hearing before the department
which the party intends to offer at the hearing before the Board].
(e) Recording the Hearing and Preparation of Transcript.
(1) All hearings before the board [Board]
shall be [tape] recorded and [. All tape
recordings of hearings before the Board shall be] maintained
by the General Counsel Division, Texas Department of Agriculture.
(2) Upon written request[,] and
payment of any associated [the appropriate]
cost [by any party], the department shall prepare a copy
of the [tape] recording of a hearing for any party [conducted by the Board].
(3) Upon written request and payment of any associated
cost [of any party], the department shall prepare,
or order the preparation of, a transcript of a hearing for any
party [conducted by the Board. The Board may assess the
cost of the transcript to one or more parties].
(4) In the event a final decision of the board [Board] is appealed to the district court, the board [Board] may require the appealing party to pay all or part of
the cost of preparation of the original or a certified copy of the
record of the [Board] proceeding that is required to be
transmitted to the reviewing court, as is specified by the board
[Board].
§14.24.The Board's Final Determination.
(a) All final determinations of the board [Board] shall be in writing and shall set forth findings of fact
and conclusions of law as required by the Administrative Procedure Act.
(b) Unless otherwise prohibited by statute or by this
chapter, all final board [Board] determinations
may be signed by the chairman [Chairman], on
behalf of the board [Board]. In the event that
the final decision of the board [Board] is not
unanimous, the final determination may indicate that the vote was
not unanimous, and may indicate those members dissenting.
(c) Except for good cause, the [The]
Board's final determination shall be issued within 60 days of the
closing of the record of the case[, unless for good cause, the
Board members hearing the case are not able to reconvene to deliberate
on a case within the 60 day period after the closing of the record].
§14.25.Motion for Rehearing.
A motion for rehearing shall be governed by the Administrative
Procedure Act, §§2001.145-2001.146. Communications regarding
any such motion shall be directed to the board [Board],
and filed with the Hearings Clerk, General Counsel Division, Texas
Department of Agriculture, P.O. Box 12847, Austin, Texas 78711.
A copy of the motion for rehearing shall [should also]
be sent to the opposing party and/or designated representative. Board
rulings on motions for rehearing shall [may]
be made [by telephone, mail, or other suitable means of communication
] in accordance with the Administrative Procedure Act, §2001.146.
A final determination granting or denying a motion for rehearing may
be signed by the chairman [Chairman] on behalf
of the board [Board].
§14.26.Appeals.
All appeals from final board [Board]
determinations shall be governed by the Administrative Procedure Act,
Subchapter G[, or other pertinent statute].
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 6, 2024.
TRD-202402065
Susan Maldonado
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: June 16, 2024
For further information, please call: (512) 463-6591