Steve Veigel v. Texas Boll Weevil Eradication Foundation, Inc.

ACCEPTED
03-16-00353-CV
12517627
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/2/2016 1:31:33 PM
JEFFREY D. KYLE
CLERK
NO. 03-16-00353-CV

FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTICT OF TEXASAUSTIN, TEXAS
at AUSTIN 9/2/2016 1:31:33 PM
JEFFREY D. KYLE
Clerk

STEVE VEIGEL,
Appellant/Defendant

v.

TEXAS BOLL WEEVIL ERADICATION FOUNDATION, INC.
Appellee/Plaintiff

Appealed from the County Court at Law No. 1
of Travis County, Texas

APPELLANT’S BRIEF

APPELLANT

STEVE VEIGEL, PRO SE

105 Quince Street
Hereford, Texas 79045
(806) 231-1008
SVeig@aol.com

APPELLANT’S BRIEF page 1 of 57
 NO. 03-16-00353-CV

IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTICT OF TEXAS
at AUSTIN

STEVE VEIGEL,
Appellant/Defendant

v.

TEXAS BOLL WEEVIL ERADICATION FOUNDATION, INC.
Appellee/Plaintiff

Appeal from Orders and Summary Judgment of the Hon. Eric M. Sheppard
County Court at Law No. 1 for Travis County, Texas

IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
Steve Veigel, pro se
105 Quince Street
Hereford, Texas 79045
Tel. (806) 231-1009
e-mail SVeig@aol.com

APPELLEE:
Texas Boll Weevil Eradication Foundation, Inc.

APPELLEE’S COUNSEL:
Mr. Matt Dow e-mail: MDow@JW.com S.B.N. 06066500
Mr. Andrew J. McKeon e-mail: AMcKeon@JW.com S.B.N. 24092810
Jackson Walker L.L.P
100 Congress
Suite 1100
Austin, Texas 78701
Tel. (512) 236-2000

APPELLANT’S BRIEF page 2 of 57
 TABLE OF CONTENTS

Page
COVER PAGE .................................................................................................1
IDENTITY OF PARTIES AND COUNSEL ............................................................. 2
TABLE OF CONTENTS .................................................................................... 3
STATEMENT OF THE CASE ............................................................................. 7
NATURE OF THE CASE:............................................................................... 7
COURSE OF PROCEEDINGS: ........................................................................ 7
TRIAL COURT'S DISPOSITION OF THE CASE:................................................ 8
STATEMENT REGARDING ORAL ARGUMENT .................................................. 9
ISSUES PRESENTED........................................................................................ 9
STATEMENT OF FACTS..................................................................................10
SUMMARY OF THE ARGUMENT .....................................................................15
ARGUMENT ..................................................................................................18
ISSUE 1: APPELLEE IS NOT A POLITICAL SUBDIVISION EXEMPT
FROM APPLICABLE LIMITATIONS THAT BAR ITS CLAIMS ..........18
ISSUE 2: APPELLEE’S CLAIMS ARE BARRED BY LACHES AND ARE
OTHERWISE PRECLUDED BY RES JUDICATA AND/OR
COLLATERAL ESTOPPEL ...........................................................24
ISSUE 3: QUESTIONS OF CONTESTED MATERIAL FACTS PRECLUDE
SUMMARY JUDGMENT FOR APPELLEE ......................................26
CONCLUSION AND PRAYER FOR RELIEF ........................................................27
CERTIFICATE OF COMPLIANCE......................................................................28
_________________________ ...................................................................28
Steve Veigel, pro se ....................................................................................28
CERTIFICATE OF SERVICE .............................................................................28
APPENDIX ....................................................................................................29
ORDER DENYING DEFENDANT STEVE VEIGEL’S MOTION FOR
SUMMARY JUDGMENT ..............................................................29

APPELLANT’S BRIEF page 3 of 57
 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT .........30
TEX. AGRIC. CODE § 74.101.....................................................................31
TEX. AGRIC. CODE § 74.1011...................................................................33
TEX. AGRIC. CODE § 74.1021...................................................................34
TEX. AGRIC. CODE § 74.1041...................................................................36
TEX. AGRIC. CODE § 74.1042...................................................................38
TEX. AGRIC. CODE § 74.107.....................................................................39
TEX. AGRIC. CODE § 74.109.....................................................................41
TEX. AGRIC. CODE § 74.120.....................................................................43
TEX. AGRIC. CODE § 74.129.....................................................................45
TEX. CIV. PRAC. & REM. CODE § 16.004 ..................................................46
TEX. CIV. PRAC. & REM. CODE § 16.051 ..................................................47
TEX. CIV. PRAC. & REM. CODE § 16.061 ..................................................48
TEX. CONST. ART. III, § 52 ......................................................................49
TEX. CONST. ART. VIII, § 1 ......................................................................51
TEX. CONST. ART. XVI, § 59 ...................................................................54
TEX. CONST. ART. XVI, § 68 ...................................................................57

APPELLANT’S BRIEF page 4 of 57
 INDEX OF AUTHORITIES

Cases
El Paso Cnty. Juvenile Bd. v. Aguilar, 387 S.W.3d 795 (Tex. App. –
El Paso 2012, no pet.) ............................................................................23

Gonzales v. TBWEF, No. 03-02-00740-CV, 2003 WL 1882508 (Tex.
Civ. App. – Austin April 17, 2003, no pet.) ...........................................23

Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d. 529 (Tex.
1980) .....................................................................................................23

In re T.L.K., 90 S.W.3d 833 (Tex.App.-San Antonio 2002, no pet.)............18

Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621 (Tex. App. –
Dallas 2001, pet. denied)........................................................................23

Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952
S.W.2d 454 (Tex. 1997)...................................................................18, 23
Statutes
TEX. AGRIC. CODE § 74.101 ...................................................... 19, 20, 21, 23

TEX. AGRIC. CODE § 74.1011 ..........................................................20, 21, 23

TEX. AGRIC. CODE § 74.1021 ................................................................21, 23

TEX. AGRIC. CODE § 74.1041 ......................................................................23

TEX. AGRIC. CODE § 74.1042 ................................................................21, 23

TEX. AGRIC. CODE § 74.107 ........................................................................23

TEX. AGRIC. CODE § 74.109 ..................................................................21, 22

TEX. AGRIC. CODE § 74.120 ........................................................................23

TEX. AGRIC. CODE § 74.129 ..................................................................22, 23

TEX. AGRIC. CODE T. 5, SUBT. B, CH. 74, SUBCH. D (TEX. AGRIC.
CODE §§ 74.101 – 74.131) .....................................................................20

TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3).............................................15

APPELLANT’S BRIEF page 5 of 57
TEX. CIV. PRAC. & REM. CODE § 16.051 .....................................................15

TEX. CIV. PRAC. & REM. CODE § 16.061...............................................passim

TEX. CIV. PRAC. & REM. CODE Chapter 101 ................................................24

TEX. CIV. PRAC. & REM. CODE Chapter 104 ................................................24

Tex. Tax Code § 171.255.....................................................................passim
Constitutional Provisions
TEX. CONST. ART. III, § 52....................................................................19, 20

TEX. CONST. ART. VIII, § 1(C).....................................................................23

TEX. CONST. ART. XVI, § 59.................................................................19, 20

TEX. CONST. ART. XVI, § 68.................................................................18, 20
Other Authorities
https://www.txbollweevil.org/zones.html....................................................21

APPELLANT’S BRIEF page 6 of 57
 STATEMENT OF THE CASE

NATURE OF THE CASE:
On August 3, 2010, APPELLEE sued Bob Veigel and Steve Veigel

personally [1 CR at 5-59] pursuant to TEX. TAX CODE § 171.255 seeking to

collect APPELLEE’S prior default judgments entered on August 10, 2000 and

September 29, 2004 against Veigel Farms, Inc. then totaling $26,158.22, or

alternatively, personally for $14,726.06 then in total resulting from alleged

unpaid assessments and fees all related to Veigel Farms, Inc.’s 1999 and

2001 cotton crops respectively plus attorney fees, interest, and costs. [1 CR

at 8-10.]

APPELLANT filed verified special exceptions and subject thereto

APPELLANT’S answer, motion to dismiss, and/or summary judgment

asserting several defenses including that APPELLEE’S claim was barred by

limitations on its face. [1 CR at 63-71.]

COURSE OF PROCEEDINGS:
APPELLEE never obtained service of process of Bob Veigel and Bob

Veigel never made an appearance in the Case. [1 CR at 72, 77, 82-83, 224-

228.] As such, APPELLEE did not seek or obtain judgment against Bob

Veigel [1 CR at 220]. Bob Veigel is not a party to this appeal.

APPELLANT’S BRIEF page 7 of 57
 After granting [1 CR at 85] APPELLEE’S motion to reconsider [1 CR at

76-79] APPELLEE’S verified motion to retain [1 CR at 72-74], APPELLEE filed

a response [1 CR at 86-95] to APPELLANT’S motion for summary judgment

asserting for the first time that APPELLEE was a political subdivision exempt

from all limitations pursuant to TEX. CIV. PRAC. & REM. CODE § 16.061 and

also moved for summary judgment on February 26, 2016 [1 CR at 96-162].

TRIAL COURT'S DISPOSITION OF THE CASE:
After an off the record hearing on March 30, 2016, the Trial Court

denied APPELLANT’S motion for summary judgment [1 CR at 219] and

granted APPELLEE’S motion for tradition and no evidence summary

judgment awarding APPELLEE judgment against APPELLANT for $32,179.16

represented to be the present amount that Veigel Farms, Inc. owed APPELLEE

on the two prior judgments plus 5% interest and costs. [1 CR at 220.]

The Trial Court did not rule on APPELLEE’S request for attorney fees

[1 CR at 104, 108, 161-162] or APPELLEE’S objections [1 CR at 227] filed on

March 30, 2016 to Steve Veigel’s affidavit [1 CR at 175-179, 203-207].

APPELLANT timely filed his notice of appeal on May 23, 2016. [1 CR at 221]

APPELLANT’S BRIEF page 8 of 57
 STATEMENT REGARDING ORAL ARGUMENT

APPELLANT is not requesting oral argument at this time because oral

argument is not likely to significantly aid the Court in its decision as the

record and APPELLANT’S BRIEF and anticipated APPELLANT’S REPLY BRIEF

should adequately present the facts and legal augments.

ISSUES PRESENTED

ISSUE 1: APPELLEE IS NOT A POLITICAL SUBDIVISION EXEMPT FROM
APPLICABLE LIMITATIONS THAT BAR ITS CLAIMS
APPELLANT was entitled to summary judgment on limitations because

APPELLEE is not a political subdivision exempt from limitations under TEX.

CIV. PRAC. & REM. CODE § 16.061 otherwise applicable to bar APPELLEE’S

claims and summary judgment.

ISSUE 2: APPELLEE’S CLAIMS ARE BARRED BY LACHES AND ARE
OTHERWISE PRECLUDED BY RES JUDICATA AND/OR
COLLATERAL ESTOPPEL
APPELLANT was also entitled to summary judgment on his affirmative

defenses including laches, res judicata, and/or collateral estoppel.

ISSUE 3: QUESTIONS OF CONTESTED MATERIAL FACTS PRECLUDE
SUMMARY JUDGMENT FOR APPELLEE

APPELLANT’S BRIEF page 9 of 57
 STATEMENT OF FACTS

1. Veigel Farms, Inc. was formed in 1985 by Bob and Steve Veigel who

each own 50% of the company’s stock and serve as directors, as president

and secretary respectively, and as co-managers. [1 CR at 159 (p. 40; l. 1-

6)175.] From November 1994 until March 5, 2003 when it ceased and

liquidated all farming operations, Veigel Farms, Inc. leased and operated

U.S.D.A Farm Service Agency [“FSA”] farm serial number [“FSN”] 1872.

[1 CR at 159 (p. 41; l. 10-13), 175.]

2. However as reflected in public records that APPELLEE had online

access providing constructive knowledge, Veigel Farms, Inc.’s corporate

privileges were forfeited and suspended from August 27, 1996 – September

26, 2002; October 15, 2003 - January 31, 2006; October 11, 2006 – April 3,

2007; and January 30, 2009 – March 23, 2009 for failure to timely file

franchise and public information reports [“SUSPENDED PERIODS”]. [1 CR at

138-139.]

3. During the SUSPENDED PERIOD of August 27, 1996 – September 26,

2002 which APPELLEE had at least constructive knowledge, Veigel Farms,

Inc. grew cotton on FSN 1872 in 1999 and 2001 which APPELLEE only

assessed Veigel Farms, Inc. (and not Bob or Steve Veigel pursuant to Tex.

APPELLANT’S BRIEF page 10 of 57
Tax Code § 171.255) for $5,668.00 due on September 21, 1999 and for

$8,596.26 due on September 14, 2001 respectively. [1 CR at 115, 117.]

4. Veigel Farms, Inc. sold its harvested 1999 cotton crop to Plains

Cotton Cooperative Association [“PCCA”] for a total of $8,978.65 paid by

four PCCA dated March 2, 2002 payable to “Veigel Farms & TDA & AAC”

[1 CR at 215-216] where “TDA” represented the Texas Department of

Agriculture on behalf of APPELLEE and “AAC” represented Ag Acceptance

Corporation which held an lien inferior to APPELLEE’S statutory lien. [1 CR

at 204-205, 209.]

5. APPELLANT endorsed the checks for Veigel Farms, Inc. and sent them

to Melodie Taylor with AAC on March 13, 2000 [1 CR at 215] with faxed

instructions on March 28, 2000 [1 CR at 215] to negotiate TDA or

APPELLEE’S endorsement of the checks and pay the $6,127.60 owing on

1999 assessment [1 CR at 213] to APPELLEE. [1 CR at 204-205.]

6. Veigel Farms, Inc. similarly sold its harvested 2001 cotton crop to

PCCA which would have made payment by check(s) jointly payable to

Veigel Farms, Inc. and TDA or APPELLEE for an amount in excess of the

2001 assessment. As customary, APPELLEE would have had to receive such

checks from Veigel Farms, Inc. for APPELLEE’S endorsement, collection, and

satisfaction of the 2001 assessment; however such documentation also has

APPELLANT’S BRIEF page 11 of 57
been lost, misplaced, and/or destroyed over the passage of time. [1 CR at

203-206.]

7. During the SUSPENDED PERIOD of August 27, 1996 – September 26,

2002 which APPELLEE had at least constructive knowledge, APPELLEE filed

suit to collect the 1999 assessment only against Veigel Farms, Inc. (and not

Bob or Steve Veigel pursuant to Tex. Tax Code § 171.255) on May 8, 2000

and obtained a default judgment totaling $6,861.12 plus 10% post-judgment

interest and costs from August 10, 2000 [“JUDGMENT ON 1999

ASSESSMENT”]. [1 CR at 131-132.]

8. During the SUSPENDED PERIOD of October 15, 2003 - January 31,

2006 which APPELLEE had at least constructive knowledge, APPELLEE filed

suit to collect the 2001 assessment only against Veigel Farms, Inc. (and not

Bob or Steve Veigel pursuant to Tex. Tax Code § 171.255) on January 29,

2004 and obtained a default judgment totaling $9,098.26 plus 5% post-

judgment interest and costs from September 29, 2004 [“JUDGMENT ON 2001

ASSESSMENT”]. [1 CR at 134-135.]

9. Almost 11 years (3,969 days) after the 1999 assessment was due and

almost 9 years (3,245 days) after the 2001 assessment was due, APPELLEE

filed this suit against Bob “Viegel” (sic) and Steve Veigel personally on

August 3, 2010 relying on TEX. TAX CODE § 171.255 seeking to establish

APPELLANT’S BRIEF page 12 of 57
personal liability on the current amount claimed due on the prior judgments

against Veigel Farms Inc., or alternatively, the current amount claimed due

on the unpaid 1999 and 2001 assessments plus interest, attorney fees, and

costs. [1 CR at 5-11.]

10. APPELLEE caused citation to be issued to APPELLANT on August 5,

2010 who was served on August 7, 2010. [1 CR at 61]. APPELLANT timely

filed his verified special exceptions and subject thereto, his original answer

and motion to dismiss and/or motion for summary judgment [“APPELLANT’S

MFSJ”] on August 30, 2010. [1 CR at 63 – 71.]

11. There was no activity in the Case [1 CR at 2-3, 224] after

APPELLANT’S MFSJ was filed for over 5 years (1,913 days) until APPELLEE

filed its verified motion to retain [“MOTION TO RETAIN”] the Case on the

Docket on November 25, 2015. [1 CR at 72-74]. The MOTION TO RETAIN

merely stated “[s]ervice has been attempted on Bob Veigel without success.”

[1 CR at 72.] The MOTION TO RETAIN was denied by Judge Todd T. Wong

on December 7, 2015. [1 CR at 75.] The Case was dismissed on December

15, 2015. [1 CR at 80.]

12. APPELLEE filed a motion to reconsider [“MOTION TO RECONSIDER”]

the denial of the MOTION TO RETAIN on December 15, 2015 which again

merely stated without further explanation or justification of the delay that

APPELLANT’S BRIEF page 13 of 57
“[s]ervice has been attempted on Bob Veigel without success” and “[i]n fact,

Plaintiff is still attempting to effect proper service on Defendant Bob Veigel.

Given the early stages of this case, … Plaintiff requests that the Court

reconsider its Order Denying the Plaintiff’s Motion to Retain.” [1 CR at 77-

78.] However, APPELLEE appears to have lost the original citation to Bob

Veigel prior to attempted service and did not seek to have it reissued until

January 5, 2016 which also was not served or returned. [1 CR at 82-83, 224-

228.]

13. The MOTION TO RECONSIDER was granted by Judge Eric M. Sheppard

reinstating the Case on January 6, 2016. [1 CR at 81, 83-84.] Thereafter on

February 26, 2016, APPELLEE filed a response [1 CR at 86-95] to

APPELLANT’S MFSJ asserting for the first time that APPELLEE was a political

subdivision exempt from all limitations pursuant to TEX. CIV. PRAC. & REM.

CODE § 16.061 and filed APPELLEE’S motion for traditional and no evidence

summary judgment [“APPELLEE’S MFSJ”] [1 CR at 96-162]. APPELLANT

filed his reply [1 CR at 163-190] to APPELLANT’S MFSJ on March 23, 2016

and his response [1 CR at 191-218] to APPELLEE’S MFSJ on March 28, 2016.

14. After an off the record hearing was held on APPELLANT’S MFSJ and

APPELLEE’S MFSJ on March 30, 2016, presiding Trial Court Judge Eric M.

Sheppard denied APPELLANT’S MFSJ [1 CR at 219] and granted APPELLEE’S

APPELLANT’S BRIEF page 14 of 57
MFSJ on April 26, 2016 awarding APPELLEE judgment against APPELLANT

for $32,179.16 represented to be the present amount that Veigel Farms, Inc.

owed APPELLEE on the JUDGMENT ON 1999 ASSESSMENT and JUDGMENT ON

2001 ASSESSMENT plus 5% interest and costs. [1 CR at 220.]

15. The Trial Court did not rule on APPELLEE’S request for attorney fees

[1 CR at 104, 108, 161-162] or APPELLEE’S objections [1 CR at 227] filed on

March 30, 2016 to Steve Veigel’s affidavit [1 CR at 175-179, 203-207].

16. APPELLANT timely filed his notice of appeal on May 23, 2016. [1 CR

at 221.]

SUMMARY OF THE ARGUMENT

17. APPELLANT’S first issue is that the Trial Court erred as a matter of law

in reinstating the Case to the Docket after dismissing the Case for want of

prosecution and subsequently denying APPELLANT’S MFSJ and granting

APPELLEE’S MFSJ. APPELLEE concedes that its claims would be barred by

the applicable four year limitations pursuant to TEX. CIV. PRAC. & REM.

CODE §§ 16.004(a)(3) or 16.051 if it was not a political subdivision exempt

from such limitations pursuant to TEX. CIV. PRAC. & REM. CODE § 16.061.

Although APPELLEE is a qusi-government corporation, it is not a state

agency or political subdivision as defined by TEX. CIV. PRAC. & REM. CODE

APPELLANT’S BRIEF page 15 of 57
§ 16.061 and does not otherwise even meet established elements required of

political subdivisions.

18. APPELLANT’S second issue is that the Trial Court erred denying

APPELLANT’S MFSJ and granting APPELLEE’S MFSJ as a matter of law with

respect to APPELLANT’S defenses of laches, res judicata, and/or collateral

estoppel. Even if APPELLEE is not subject to limitations, it is still subject to

laches. During the approximate 15 years period of time since the 1999 and

2001 assessments were made and the subsequent five year delay in moving

to prosecute APPELLEE’S claims, evidentiary documents supportive of

APPELLANT’S defenses have been lost, misplaced, or destroyed and

witnesses with personal knowledge are unknown and unavailable and even

the memory and recollection of the APPELLANT has faded over such time.

19. APPELLEE’S reliance on Tex. Tax Code § 171.255 serves as a two way

street that also supports Appellant’s defenses of res judicata and/or

collateral estoppel. APPELLEE had at least constructive knowledge at the

time of the 1999 and 2001 assessments as well as at the times that the suits

and judgments were obtained against Veigel Farms, Inc. in the JUDGMENT

ON 1999 ASSESSMENT and the JUDGMENT ON 2011 ASSESSMENT, that Veigel

Farms, Inc. had lost its corporate privileges to conduct business and to sue or

be sued in Texas. Pursuant to Tex. Tax Code § 171.255, should have

APPELLANT’S BRIEF page 16 of 57
assessed and sued Bob and Steve Veigel individually instead of Veigel

Farms, Inc. and APPELLEE is now precluded from recovery in this Cases

under the doctrines of res judicata and/or collateral estoppel.

20. APPELLANT’S third issue is that the Trial Court erred in granting

Appellee’s MfSJ which is precluded by summary judgment evidence that

raised numerous genuine issues of contested material facts.

21. For example, APPELLANT’S summary judgment evidence conclusively

proved that at least on PCCA’s checks for the 1999 harvested crop in

amounts in excess of the 1999 assessment were paid jointly to Veigel Farms,

Inc, APPELLEE, and AAC. APPELLANT averred that he endorsed the 1999

PCCA on Veigel Farms, Inc.’s behalf and sent them to AAC with

instructions for AAC to obtain APPELLEE’S endorsement necessary to collect

the checks and pay the 1999 assessment to APPELLEE in full and release

APPELLEE’S superior statutory lien. Although, APPELLEE objected to Steve

Veigel’s summary judgment affidavit, the Trial Court did not grant such

objection and APPELLEE did not present any summary judgment that the

checks were not presented to APPELLEE for its endorsement and payment of

the 1999 assessment or agreement thereof with AAC or that the checks were

otherwise cashed by AAC with APPELLEE’S unauthorized or forged

endorsement.

APPELLANT’S BRIEF page 17 of 57
 ARGUMENT

ISSUE 1: APPELLEE IS NOT A POLITICAL SUBDIVISION EXEMPT FROM
APPLICABLE LIMITATIONS THAT BAR ITS CLAIMS
APPELLANT was entitled to summary judgment on limitations because

APPELLEE is not a political subdivision exempt from limitations under TEX.

CIV. PRAC. & REM. CODE § 16.061 otherwise applicable to bar APPELLEE’S

claims and summary judgment.

22. APPELLANT’S MFSJ [1 CR 66-71] sought summary judgment based on

four year limitations expiring at least by September 28, 2008 which, was

four years after the JUDGMENT ON 2001 ASSESSMENT was entered, almost six

years before APPELLEE filed this suit on August 3, 2010. APPELLANT’S

MFSJ argued that APPELLEE was not a state agency, but rather a private

entity formed pursuant to TEX. CONST. ART. XVI, § 68 which is not entitled

to the state’s exemption from limitations pursuant to TEX. CIV. PRAC. &

REM. CODE § 16.061 citing Texas Boll Weevil Eradication Foundation, Inc.

v. Lewellen, 952 S.W.2d 454, 470-71 (Tex. 1997) and In re T.L.K., 90

S.W.3d 833, 839-40 (Tex.App.-San Antonio 2002, no pet.)

23. APPELLEE responded to APPELLANT’S MFSJ arguing that since the

Lewellen decision, a new enabling statute passed in 1997 clarifying

APPELLEE’S authorization and status to conform to Constitutional concerns

announced in Lewellen, that APPELLEE was now a political subdivision

APPELLANT’S BRIEF page 18 of 57
entitled to exemption from limitations, and that this Case was brought for the

use and benefit of Texas citing only TEX. AGRIC. CODE § 74.101(a)(1). [1

CR at 86-90.]

24. APPELLANT replied to APPELLEE’S response arguing that APPELLEE

does not qualify as a “political subdivision” under TEX. CIV. PRAC. & REM.

CODE § 16.061 because it is not an entity created under Section 52, Article

III, or Section 59, Article XVI, Texas Constitution, was not authorized as a

political subdivision exempt from limitations, and did not otherwise even

meet the elements required of political subdivisions. [1 CR at 165-170.]

25. APPELLEE argued that TEX. CIV. PRAC. & REM. CODE § 16.061 does

not define a political subdivision, [1 CR at 87.] Although the TEX. CIV.

PRAC. & REM. CODE § 16.061 does not define a political subdivision, it does

specify and limit what types of political subdivisions qualify to be exempt

from limitations to include only “a county, an incorporated city or town, a

navigation district, a municipal utility district, a port authority, an entity

acting under Chapter 54, Transportation Code, a school district, or an entity

created under Section 52, Article III, or Section 59, Article XVI, Texas

Constitution” which APPELLEE is not. [1 CR 168-170.]

26. Although the 1997 enabling statute apparently removed the several

references noted by the Lewellen court that APPELLEE was created and

APPELLANT’S BRIEF page 19 of 57
authorized under the authority of Article XVI, Section 68 of the Texas

Constitution such as in TEX. AGRIC. CODE § 74.101(a)(3), the Legislature did

not terminate APPELLEE’S existence and create a successor under different

authority.

27. Instead, TEX. AGRIC. CODE § 74.101(a)(4) expressly provided that “an

urgent public necessity exists to validate and ratify the assessments,

agreements, and obligations of the Texas Boll Weevil Eradication

Foundation, Inc., made or incurred by the foundation” and TEX. AGRIC.

CODE § 74.1011(a) expressly provided that “[t]he Texas Boll Weevil

Eradication Foundation, Inc., a Texas nonprofit corporation chartered by

the secretary of state on September 14, 1993, shall be recognized by the

department as the entity … provided by this subchapter.”

28. The current version of TX AGRIC. CODE T. 5, SUBT. B, CH. 74, SUBCH.

D (TEX. AGRIC. CODE §§ 74.101 – 74.131) does not mention that APPELLEE

is a political subdivision created under the authority of Section 52, Article

III, or Section 59, Article XVI, Texas Constitution (as required of other

political subdivision entities by TEX. CIV. PRAC. & REM. CODE § 16.061) or

any other Constitution or statutory provision.

29. Instead of providing that the APPELLEE is a political subdivision

entitled to be exempt from limitations, the Legislature expressed desire to

APPELLANT’S BRIEF page 20 of 57
prevent or limit APPELLEE, as a private non-profit quasi-government

corporation, from being deemed a state agency given APPELLEE’S statewide

jurisdiction and supervision and control by statewide elected officials (rather

than the of limited jurisdiction and local governance required of political

subdivisions).

30. TEX. AGRIC. CODE § 74.101(a)(3) provides “there is a need for a

quasi-governmental entity acting under the supervision and control of the

commissioner…”.

31. TEX. AGRIC. CODE § 74.1011 provides:

(a) The Texas Boll Weevil Eradication Foundation, Inc., a
Texas nonprofit corporation chartered by the secretary of state
on September 14, 1993, shall be recognized by the department
as the entity to plan, carry out, and operate eradication and
diapause programs to eliminate the boll weevil and the pink
bollworm from cotton in the state under the supervision of
the department as provided by this subchapter. [emphasis
added]

APPELLEE’S statewide jurisdiction is divided into zones as set forth by TEX.

AGRIC. CODE §§ 74.1021, 74.1042 and depicted on APPELLEE’S website map

at https://www.txbollweevil.org/zones.html. [1 CR at 190, 218.]

32. TEX. AGRIC. CODE § 74.109 provides:

(d) The foundation and the board are state agencies for the
following purposes only:
(1) exemption from taxation including exemption from sales

APPELLANT’S BRIEF page 21 of 57
 and use taxes, vehicle registration fees, and taxes under
Chapter 152, Tax Code; and
(2) indemnification under Chapter 104, Civil Practice and
Remedies Code.
(e) Funds collected by the foundation are not state funds and
are not required to be deposited in the state treasury. The
foundation shall deposit all money collected under this
subchapter in a bank or other depository approved by the
commissioner.
(f) The foundation is a governmental unit under Section
101.001, Civil Practice and Remedies Code, and is entitled to
governmental immunity. A tort claim against the foundation
must be made under Chapter 101, Civil Practice and Remedies
Code. …
(h) All revenue collected under this subchapter shall be used
solely to finance programs approved by the commissioner as
consistent with this subchapter. [emphasis added]

33. TEX. AGRIC. CODE § 74.129 provides “[t]he legislature recognizes

that the foundation, acting under the supervision and control of the

commissioner, is carrying out an important governmental function and that

therefore the foundation, as a quasi-governmental entity, must be immune

from lawsuits and liability except to the extent provided in Chapter 101,

Civil Practice and Remedies Code, and as provided by this section.”

34. Provisions of TEX. AGRIC. CODE § 74.109(d) preclude APPELLEE’S

qualification as a state agency exempt from limitation present to TEX. CIV.

PRAC. & REM. CODE § 16.061. APPELLEE did not argue below that it was a

state agency.

APPELLANT’S BRIEF page 22 of 57
35. Instead. APPELLEE argued that it meet the judicial test of the elements

required of a political subdivision as set forth in Guaranty Petroleum Corp.

v. Armstrong, 609 S.W.2d. 529 (Tex. 1980); Stephens v. Dallas Area Rapid

Transit, 50 S.W.3d 621 (Tex. App. – Dallas 2001, pet. denied); El Paso

Cnty. Juvenile Bd. v. Aguilar, 387 S.W.3d 795, 796 (Tex. App. – El Paso

2012, no pet.); and Gonzales v. TBWEF, No. 03-02-00740-CV, 2003 WL

1882508, at *2 (Tex. Civ. App. – Austin April 17, 2003, no pet.). [1 CR at

87-90.]

36. However, APPELLEE does not satisfy any of the three elements

required to be deemed a political subdivision. APPELLEE’S jurisdiction is

statewide and not geographically limited. See TEX. AGRIC. CODE §§

74.1011, 74.1021, 74.1042, and https://www.txbollweevil.org/zones.html.

APPELLEE’S governing body to which the Commissioner of the Department

of Agriculture and the Governor make certain appointments acts “under the

supervision and control of the commissioner”. See TEX. AGRIC. CODE §§

74.101(a)(3) , 74.1011, 74.107, 74.1041(c) , 74.105(d). 74.120(d) , and

74.129. APPELLEE’S assessments are not taxes or fees which would be

prohibited occupation taxes on agricultural pursuits, under TEX. CONST. ART.

VIII, § 1(C). See Texas Boll Weevil Eradication Foundation v. Lewellen,

952 S.W.2d 454, 462 (Tex. 1997) and even if APPELLEE did, it would not be

APPELLANT’S BRIEF page 23 of 57
the type of political subdivision specified by TEX. CIV. PRAC. & REM. CODE

§ 16.061. [1 CR at 166-170].

37. Any four year statute of limitations applicable to APPELLEE’S claim

ran years before APPELLEE filed suit in this Case. APPELLEE is not exempt

from such limitations pursuant to TEX. CIV. PRAC. & REM. CODE § 16.061

because it is not a political subdivision and the Legislature has specified that

APPELLEE is only a state agency to the extent it is exempt from taxes,

indemnification under Civil Practice and Remedies Code Chapter 104, and

governmental immunity under Civil Practice and Remedies Code Chapter

101.

38. The Trial Court erred as a matter of law by granting APPELLEE’S

motion to reinstate the Case on the Docket and subsequently denying

APPELLANT’S MFSJ on the issue of limitations and granting APPELLEE’S

MFSJ on the basis that APPELLEE was exempt from limitations as a state

agency or political subdivision under TEX. CIV. PRAC. & REM. CODE §

16.061.

ISSUE 2: APPELLEE’S CLAIMS ARE BARRED BY LACHES AND ARE
OTHERWISE PRECLUDED BY RES JUDICATA AND/OR
COLLATERAL ESTOPPEL
APPELLANT was also entitled to summary judgment on his affirmative

defenses including laches, res judicata, and/or collateral estoppel.

APPELLANT’S BRIEF page 24 of 57
39. APPELLANT asserted the defense of laches. [1 CR at 65, 196]

APPELLEE’S MFSJ responded that APPELLANT had presented no summary

judgment evidence as to any unreasonable delay and resulting injury where

APPELLANT changed his position to his detriment in reliance on APPELLEE’S

delay. [1 CR at 106-107]. In response to APPELLEE’S MFSJ, Appellant

responded with summary judgment evidence that Appellee’s unreasonable

15 year delay cause him injury because he did not take more care to preserve

transactional documents and testimony necessary to provide evidence of

potential defenses. [1 CR at 196-197.]

40. If APPELLEE is somehow exempt from limitations because it is a

political subdivision, APPELLANT’S defense is still viable. Houston Lighting

& Power Co. v. City of Wharton (App. 1 Dist. 2003) 101 S.W.3d 633

(Because the operation of statutes of limitations as a bar to incorporated

cities’ claims is statutorily precluded, laches is an appropriate remedy when

a city unreasonably delays asserting its rights),

41. APPELLANT also asserted the defenses of res judicata and/or collateral

estoppel. [1 CR at 65, 68-69, ] APPELLEE’S response to APPELLANT’S MFSJ

argued that APPELLANT lacked necessary privity with Veigel Farms Inc. to

allow res judicata and that APPELLANT did not show that the facts in this suit

were previously litigated. [1 CR at 86-87, 90-94.] APPELLANT’S reply to

APPELLANT’S BRIEF page 25 of 57
APPELLANT’S MFSJ argued that pursuant to TEX. TAX CODE § 171.255

APPELLEE could and should have sued APPELLANT as a deemed partner

because APPELLEE had at least constructive knowledge that Veigel Farm’s

Inc. corporate privileges had been suspended. [1 CR at 170-172].

42. As a result of Veigel Farms, Inc.’s suspended corporate privileges at

the time that the assessments were made and when suits and judgments were

taken against Veigel Farm Inc., pursuant to TEX. TAX CODE § 171.255 Bob

and Steve Veigel were deemed to be operating as partners having control

and privity over Veigel Farms, Inc. as a matter of statute.

43. The Trial Court erred as a matter of law by denying APPELLANT’S

MFSJ on the issue of laches, res judicata, and/or collateral estoppel and

granting APPELLEE’S MFSJ .

ISSUE 3: QUESTIONS OF CONTESTED MATERIAL FACTS PRECLUDE
SUMMARY JUDGMENT FOR APPELLEE
44. APPELLANT argued that there were questions of contested material fact

raised by his summary judgment evidence related to his other defenses that

otherwise precluded summary judgment for APPELLEE. [1 CR at 197-199.]

APPELLANT respectfully request that he be allowed to further brief this issue,

if necessary, in APPELLANT’S Reply Brief without any waiver of this issue,

It is expected that APPELLEE may try to argue that such evidence was

APPELLANT’S BRIEF page 26 of 57
objected to;
to however,
however,APPELLEE
APPELLEE did
didnot
notobtain
obtainaaruling
ruling on
on such
such objection
objection

and the objection does not appear in the Clerk's Record.

CONCLUSION
CONCLUSION AND
ANDPRAYER
PRAYERFOR
FOR RELIEF
RELIEF

For these reasons stated herein above,
above, Appellant
Appellantprays
prays that
that the
the Court
Court that

determine that the Trial
Trial Court
Court erred
erredin
inreinstating
reinstatingthe
theCase
Case to
to the
the Docket
Docket and

subsequently
subsequently denying APPELLANT'S MFSJ
denyingAPPELLANT'S MFSJ and
and granting
grantingAPPELLEE'S
APPELLEE'S MFSJ
MFSJ

and reverse and
and rendered
renderedthat
thatAPPELLEE
APPELLEE should
shouldtake
takenothing
nothing and
and immediate

file releases
releases of
of record
record of
of its
its judgment
judgment in this Case and
and any other relief in law

or equity
equity that
thatAPPELLANT
APPELLANT may
maybe
be entitled,
entitled,

Respectfully submitted,

APPELLANT:
APPELLANT:

let ?;,,e_.-/
le LLe' (-'
`2Ve
TEVE
TEVEVEIGEL,
VEIGEL, PROW
PROAE

105 Quince Street
Hereford, Texas
Hereford, Texas 79045
(806) 231-1008
SVeig@aol.corn
SVeigao1.com

APPELLANT'S BRIEF
APPELLANT'S BiuiF page 27 of 57
 CERTIFICATEOF
CERTIFICATE OFCOMPLIANCE
COMPLIANCE

II certify
certifythatthat this document
this document wasonproduced
was produced on a computer using
a computer using

Microsoft Word
Microsoft Word 20032003 using
using 14 point 14
Newpoint
TimesNew
RomanTimes
font andRoman
containsfont and contains

3,785 words,
3,785 words, as as determined
determined by Microsoft
by Microsoft Word 2003Word 2003
word-count word-count function,
function,

excluding
excluding the sections
the sections of thelisted
of the document document listed
in Texas Rule in Texas Rule of Appellate
of Appellate

Procedure
Procedure 9.4(i)(9.4(i)(1).
1).

Ste eigel, pro se

CERTIFICATE
CERTIFICATE 00 SERVICE
SERVICE

IIhereby
hereby certify
certify that on this 31st
that on this 31st day
dayofof August
August 2016, a2016,
true andacorrect
true and correct

copyofof
copy thisthis document
document instrument
instrument was
was e mailed to e mailed to APPELLEE'S counsel
APPELLEE'S counsel as as

follows:
follows:

Mr. MattDow
Mr. Matt Dow at at MDow@J
MDow@J .com.com
Mr. Andrew
Mr. Andrew J. McKeon
J. McKeon at at AcKeon@JW.com
A cKeon@JW.com
JacksonWalker
Jackson Walker L.L.P
L.L.P
100 Congress
100 Congress Avenue,
Avenue, Suite 1100
Suite 1100
Austin, Texas
Austin, Texas 7870178701

Ste e
Ste gel
gel

APPELLANT'SBitw
APPELLANT'S BRIEF page
page2828 of 57
57
 -C
PLFt) C)P E1OP
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NUMBER11 OF
§§ NUMBER OF l' l -i '. '- '
vs.
VS.

§§
BOB VEIGEL AND
AND STEVE
STEVEVEIGEL
VEIGEL COUNTY, TEXAS
§ TRAVIS COUNTY, TEXAS
§
Defendants.
Defendants. 1
§

ORDER DENYING DEFENDANT STEVE VEIGEL'S
VEIGEL'S
MOTION FOR SUMMARY JUDGMENT
JUDGMENT

On
On the
the30 0' day
dayof
ofMarch
March2016,
2016,came before
came the the
before Court Defendant
Court Steve Steve
Defendant Veigel's
Veigel's

Motion for
Motion for Summary
SummaryJudgment
Judgment ("Motion").
("Motion"). TheThe Court,
Court, having
having considered
considered the Motion
the Motion and theand the

Responseand
Response and
thethe arguments
arguments ofparties,
of the the parties, findsthethat
finds that the Motion
Motion should
should be be denied.
denied.

It is therefore
thereforeORDERED
ORDERED that
that thethe Motion
Motion for for Summary
Summary Judgment
Judgment of Defendant
of Defendant Steve Steve

Veigel be
Veigel beand
andisishereby
hereby denied.
denied.

SIGNED this
SIGNED this çA( day of
day of yi , 2016.
2016.

4/talP
r:70-4r."-"siDi
SIDI
C M. STIEPPERD
SHEPPERD

15911145v.]
15811145v.1

APPELLANT'S
APPELLANT 'SBRIEF
BRIEF page 29 of 57
ORDER GRANTING
ORDER GRANTING PLAINTIFF'S
PLAINTIFF'SMOTION
MOTION FOR SUMMARY JUDGgrNL
FORSUMMARY JUJDYM T0 E op,
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CAUSE
CAUSENO.
NO.C-1-CV-10-007442
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TEXAS BOLL
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§ NUMBER 11OF
NUMBER OF
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BOB VEIGEL AND STEVE VEIGEL §
TRAVIS
§ TRAVIS COUNTY,TEXAS
COUNTY, TEXAS
§
§

ORDER GRANTINGPLAINTIFF'S
ORDER GRANTING PLAINTIFF'S MOTION
MOTION FOR
FOR
TRADITIONAL AND
TRADITIONAL AND NO
NOEVIDENCE
EVIDENCESUMMARY
SUMMARY JUDGMENT
JUDGMENT

On
Onthis
thisday came
day to beto
came heard Plaintiff Plaintiff
be heard Texas BollTexas
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Eradication
Weevil Foundation,
Eradication Foundation,

Inc.'s
Inc.'sMotion
Motionforfor
Summary Judgment.
Summary The Court,
Judgment. The after reviewing
Court, afterthe Motion, responses
reviewing the Motion, responses

and
andthe
thesummary judgment
summary evidence,
judgment is of the opinion
evidence, thatopinion
is of the the Motion should
that be granted.
the Motion should be granted.

IT
IT IS,
IS,THEREFORE,
THEREFORE,ORDERED, ADJUDGED
ORDERED, AND AND
ADJUDGED DECREED that all that
DECREED reliefall relief

requested
requested by Plaintiff TexasTexas
by Plaintiff Boll Weevil
BollEradication Foundation, Inc.
Weevil Eradication is granted andInc.
Foundation, that is granted and that

Plaintiff have
Plaintiff haveand
andrecover from
recover Steve
from Veigel,
Steve the sum
Veigel, theofsum
THIRTY TWO THOUSAND
of THIRTY ONE
TWO THOUSAND ONE

HUNDRED SEVENTY-NINE
HUNDRED SEVENTY-NINEANDAND
16/100 DOLLARS
16/100 ($32,179.16),
DOLLARS together together
($32,179.16), with post-with post-

judgment
judgmentinterest from from
interest today at the rate
today atofthe
fiverate
percent (5%) per
of five annum(5%)
percent until paid,
per plus
annum until paid, plus

costs
costsofof
court.
court.

SIGNED
SIGNEDthis
this day
dayofof firi ,2016.
, 2016.

JUIGE
JU GE PRESIDING
PRESIDING
ERIC M.M.SIiEPPERD
ERIC SIiEPPERD

16025090v.1
I625090v. I

APPELLANT'S
APPELLANF'S BRIEF page 30
page 30 pf 57
TEX. AGRIC. CODE § 74.101
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.101

§ 74.101. Findings and Declaration of Policy

Effective: September 1, 2005
Currentness

(a) It is hereby found and declared that:

(1) the insects Anthonomus grandis Boheman, known as the boll weevil, and Pectinophora gossypiella,
known as the pink bollworm, are public nuisances and a menace to the cotton industry, and their
eradication is a public necessity;

(2) because of the differences in soil conditions, growing seasons, farming techniques, and climate
conditions among several areas in the state where cotton is grown, the eradication and suppression of the
nuisance can best be accomplished by dividing the cotton-growing areas into separate zones so that
integrated pest management programs may be developed for each zone;

(3) there is a need for a quasi-governmental entity acting under the supervision and control of the
commissioner whose members are actual cotton growers who would be represented on the board of the
entity by directors elected by them to manage eradication and suppression programs and to furnish
expertise in the field of insect control and eradication, because such an entity would enhance the interest
and participation of cotton growers in the program;

(4) because of the progress made in eradication, investments made by cotton growers in certain areas, the
potential injustice to certain cotton growers who have made such investments, and the stage of
development of the cotton crops in the statutory eradication zones, an urgent public necessity exists to
validate and ratify the assessments, agreements, and obligations of the Texas Boll Weevil Eradication
Foundation, Inc., made or incurred by the foundation and related to certain statutory zones;

(5) cotton growers, in partnership with the state and federal governments, have made significant
investments toward the eradication of these pests in this state;

APPELLANT’S BRIEF page 31 of 57
 (6) it is essential to the well-being of the cotton industry and the agricultural economy of this state that
the investments of the cotton growers and the state and federal governments be protected; and

(7) the establishment of a maintenance program to be carried out by the foundation under the supervision
of the department is required to protect the investments in eradication.

(b) It is the intent of the legislature that the program of eradication and suppression be carried out with the
best available integrated pest management techniques.

(c) The department may recover costs for administration of this subchapter.

Credits

Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993. Amended by Acts 1995, 74th Leg., ch. 227, §
1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 463, § 1.01, eff. May 30, 1997; Acts 2005, 79th Leg., ch.
119, § 1, eff. Sept. 1, 2005.

APPELLANT’S BRIEF page 32 of 57
TEX. AGRIC. CODE § 74.1011
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.1011

§ 74.1011. Designation of Entity to Carry out Boll Weevil Eradication

Currentness

(a) The Texas Boll Weevil Eradication Foundation, Inc., a Texas nonprofit corporation chartered by the
secretary of state on September 14, 1993, shall be recognized by the department as the entity to plan, carry
out, and operate eradication and diapause programs to eliminate the boll weevil and the pink bollworm
from cotton in the state under the supervision of the department as provided by this subchapter.

(b) The commissioner may terminate the foundation’s designation as the entity recognized to carry out boll
weevil eradication by giving 45 days’ written notice to the foundation and by designating a successor
entity. If the commissioner designates a successor to the foundation, the successor has all the powers and
duties of the foundation under this subchapter. Any successor to the foundation shall assume and shall be
responsible for all obligations and liabilities relating to any notes, security agreements, assignments, loan
agreements, and any other contracts or other documents entered into by the foundation with or for the
benefit of any financial institution or its predecessor, successor, or assignee.

Credits

Added by Acts 1997, 75th Leg., ch. 463, § 1.02, eff. May 30, 1997.

APPELLANT’S BRIEF page 33 of 57
TEX. AGRIC. CODE § 74.1021
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.1021

§ 74.1021. Statutory Zones

Currentness

(a) The Northern High Plains Eradication Zone consists of Armstrong, Bailey, Briscoe, Castro, Deaf Smith,
Floyd, Hale, Lamb, Parmer, Randall, and Swisher counties, and other areas as proposed by the
commissioner by rule for inclusion in the zone and approved by referendum in the area to be added.

(b) The Rolling Plains Central Eradication Zone consists of Baylor, Callahan, Comanche, Eastland, Erath,
Fisher, Haskell, Jones, Knox, Mitchell, Nolan, Palo Pinto, Scurry, Shackelford, Stephens, Stonewall,
Throckmorton, and Young counties; all land in Archer County south of a line following Farm-to-Market
Road 422 commencing at the Baylor County line running east to the intersection of Farm-to-Market Road
210, continuing east to the intersection of State Highway 25, and continuing east to the Clay County line;
all land in Borden County east of a line seven miles west of the Scurry County line running south from the
Garza County line to the Howard County line; and all land in Taylor County east of U.S. Highway 83 from
a point commencing at the intersection of U.S. Highway 83 and the south Taylor County line, north to the
town of Bradshaw; thence north of Farm-to-Market Road 1086, as the farm-to-market road proceeds west
and north to the intersection of the Farm-to-Market Road 1086 and U.S. Highway 277, being all land lying
north of the farm-to-market road and west of U.S. Highway 277 from the intersection of Farm-to-Market
Road 1086 and U.S. Highway 277 to the point where U.S. Highway 277 intersects the south boundary line
of Taylor County; all land in Brown County east of a line following State Highway 279 to Brownwood and
continuing along U.S. Highway 377 south to the McCulloch County line; and other areas as proposed by
the commissioner by rule for inclusion in the zone and approved by referendum in the area to be added.

(c) The St. Lawrence Eradication Zone consists of that area of Midland County south of a line 15 miles
south of Interstate 20 running from the Ector County line east to the Glasscock County line; Glasscock,
Reagan, and Upton counties; and other areas as proposed by the commissioner by rule for inclusion in the
zone and approved by referendum in the area to be added.

(d) The South Texas Winter Garden Eradication Zone consists of Aransas, Atascosa, Austin, Bee, Bexar,
Brazoria, Calhoun, Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Goliad, Jackson, Jim Wells,
Karnes, Kinney, Kleberg, La Salle, Lavaca, Live Oak, Matagorda, McMullen, Medina, Nueces, Refugio,
San Patricio, Uvalde, Victoria, Wharton, Wilson, and Zavala counties, and other areas as proposed by the
commissioner by rule for inclusion in the zone and approved by referendum in the area to be added. Austin,
Brazoria, Colorado, Fort Bend, Jackson, Matagorda, and Wharton counties are included in the South Texas

APPELLANT’S BRIEF page 34 of 57
Winter Garden Eradication Zone only for purposes of the repayment of debt existing on April 30, 1997, and
those counties may not be included in the zone for any other purpose unless the commissioner by rule
proposes that an area be included in the zone and the proposal is approved by referendum in the area to be
added. The commissioner may apportion any debt existing on April 30, 1997, and designate the appropriate
assessment.

(e) The Southern High Plains-Caprock Eradication Zone consists of Andrews, Cochran, Crosby, Dawson,
Dickens, Ector, Gaines, Garza, Hockley, Howard, Kent, Lubbock, Lynn, Martin, Motley, Terry, and
Yoakum counties; all land in Borden County lying west of a line seven miles west of the Scurry County
line running south from the Garza County line to the Howard County line; that area of Midland County
north of a line 15 miles south of Interstate 20 running from the Ector County line east to the Glasscock
County line; and other areas as proposed by the commissioner by rule for inclusion in the zone and
approved by referendum in the area to be added.

(f) The Southern Rolling Plains Eradication Zone consists of Coke, Coleman, Concho, Irion, McCulloch,
Runnels, Schleicher, and Tom Green counties, all land in Taylor County lying west of U.S. Highway 83
from a point commencing at the intersection of U.S. Highway 83 and the south Taylor County line, north of
the town of Bradshaw; thence all the land lying south of Farm-to-Market Road 1086, as the farm-to-market
road proceeds west and north to its intersection with U.S. Highway 277, being all land lying south of the
farm-to-market road and east of U.S. Highway 277 from the intersection of Farm-to-Market Road 1086 and
U.S. Highway 277 to the point where U.S. Highway 277 intersects the south boundary line of Taylor
County, and other areas as proposed by the commissioner by rule for inclusion in the zone and approved by
referendum in the area to be added.

Credits

Added by Acts 1997, 75th Leg., ch. 463, § 1.04, eff. May 30, 1997.

APPELLANT’S BRIEF page 35 of 57
TEX. AGRIC. CODE § 74.1041
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.1041

§ 74.1041. Advisory Committees

Effective: May 18, 2001
Currentness

(a) The commissioner may appoint an advisory committee for an existing eradication zone or an area of the
state that is to be considered by the commissioner for designation as or inclusion in an eradication zone.
The committee shall gather advice, input, and guidance from cotton growers from the area represented by
the committee concerning the interest in and concerns about the implementation of this subchapter.

(b) Each advisory committee may consider and make recommendations to the commissioner and the
foundation concerning:

(1) the geographic boundaries for a proposed eradication zone;

(2) the amount of local interest in operating an eradication program;

(3) the basis and amount of an assessment necessary to support an eradication program;

(4) the need to restructure any pre-existing debt from prior eradication activities;

(5) ongoing implementation of an eradication program approved by growers in an eradication zone; and

(6) any other matter requested by the commissioner or the foundation.

APPELLANT’S BRIEF page 36 of 57
(c) Each advisory committee appointed under this section shall include a sufficient number of cotton
growers to ensure adequate representation across the eradication zone, including at least one cotton grower
from each county in the zone and other persons as determined by the commissioner.

(d) Advisory committees appointed under this section are immune from lawsuits and liability to the same
extent the foundation is immune from lawsuits and liability under Section 74.129.

(e) An advisory committee established under this section is subject to the requirements of Chapters 551 and
552, Government Code.

Credits

Added by Acts 1997, 75th Leg., ch. 463, § 1.05, eff. May 30, 1997. Amended by Acts 2001, 77th Leg., ch.
168, § 1, eff. May 18, 2001.

V. T. C. A., Agriculture Code § 74.1041, TX AGRIC § 74.1041
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 37 of 57
TEX. AGRIC. CODE § 74.1042
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.1042

§ 74.1042. Creation of Nonstatutory Eradication Zones

Currentness

(a) The commissioner may by rule designate an area of the state as a proposed eradication zone as long as
the area is not within a statutory zone under Section 74.1021 that has approved an eradication program by
referendum.

(b) The commissioner may hold a public hearing within the proposed eradication zone to discuss the
proposed geographic boundaries of the zone. The public hearing may include any other topics allowed
under this subchapter.

(c) After the adoption of a rule under Subsection (a), the commissioner shall conduct a referendum under
Section 74.105.

Credits

Added by Acts 1997, 75th Leg., ch. 463, § 1.05, eff. May 30, 1997.

V. T. C. A., Agriculture Code § 74.1042, TX AGRIC § 74.1042
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 38 of 57
TEX. AGRIC. CODE § 74.107
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.107

§ 74.107. Composition of Board

Currentness

(a) The board shall be composed of members elected from each statutory eradication zone established and
validated by referendum, members elected from each nonstatutory eradication zone established by
referendum, members appointed by the commissioner from other cotton-growing areas of the state, and
members appointed by the commissioner under Subsection (b). The commissioner shall appoint an initial
board composed of 15 members. Except as provided by Subsection (b), the term of each board position
may not exceed four years.

(b) In making appointments under this section, the commissioner shall appoint the following board
members, selected from a variety of cotton-growing regions of the state, for four-year terms:

(1) an agricultural lender;

(2) an independent entomologist who is an integrated pest management specialist;

(3) two representatives from industries allied with cotton production; and

(4) a representative from the pest control industry.

(c) The commissioner may change the number of board positions or the eradication zone representation on
the board to accommodate changes in the number of eradication zones. A change under this subsection may
not contravene another provision of this subchapter.

(d) A vacancy on the board shall be filled by appointment by the commissioner for the unexpired term.

APPELLANT’S BRIEF page 39 of 57
(e) On 30 days’ notice and opportunity for hearing, the commissioner may replace any unelected board
member of the foundation.

Credits

Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993. Amended by Acts 1995, 74th Leg., ch. 227, §
4, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 463, § 1.08, eff. May 30, 1997.

V. T. C. A., Agriculture Code § 74.107, TX AGRIC § 74.107
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 40 of 57
TEX. AGRIC. CODE § 74.109
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.109

§ 74.109. Board Duties

Currentness

(a) The board shall have an annual independent audit of the books, records of account, and minutes of
proceedings maintained by the foundation prepared by an independent certified public accountant or a firm
of independent certified public accountants. The audit shall include information for each zone in which an
eradication program has been conducted under this subchapter. The audit shall be filed with the board, the
commissioner, and the state auditor and shall be made available to the public by the foundation or the
commissioner. The state auditor may examine any work papers from the independent audit or may audit the
transactions of the foundation if the state auditor determines that an audit is necessary.

(b) Not later than the 45th day after the last day of the fiscal year, the board shall submit to the
commissioner a report itemizing all income and expenditures and describing all activities of the foundation
during the fiscal year.

(c) The foundation shall provide fidelity bonds in amounts determined by the board for employees or
agents who handle funds for the foundation.

(d) The foundation and the board are state agencies for the following purposes only:

(1) exemption from taxation including exemption from sales and use taxes, vehicle registration fees, and
taxes under Chapter 152, Tax Code; and

(2) indemnification under Chapter 104, Civil Practice and Remedies Code.

(e) Funds collected by the foundation are not state funds and are not required to be deposited in the state
treasury. The foundation shall deposit all money collected under this subchapter in a bank or other
depository approved by the commissioner.

APPELLANT’S BRIEF page 41 of 57
(f) The foundation is a governmental unit under Section 101.001, Civil Practice and Remedies Code, and is
entitled to governmental immunity. A tort claim against the foundation must be made under Chapter 101,
Civil Practice and Remedies Code.

(g) The board shall collect data on the type and quantity of pesticides used in accordance with this
subchapter. The data shall be filed with the commissioner.

(h) All revenue collected under this subchapter shall be used solely to finance programs approved by the
commissioner as consistent with this subchapter.

(i) The foundation is subject to the requirements of:

(1) the open meetings law, Chapter 551, Government Code; and

(2) the open records law, Chapter 552, Government Code.

(j) A board member may not vote on any matter in which the member has a direct pecuniary interest. A
board member is subject to the same restrictions as a local public official under Chapter 171, Local
Government Code.

Credits

Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993. Amended by Acts 1995, 74th Leg., ch. 227, §
6, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 463, §§ 1.10, 2.03, eff. May 30, 1997.

V. T. C. A., Agriculture Code § 74.109, TX AGRIC § 74.109
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 42 of 57
TEX. AGRIC. CODE § 74.120
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.120

§ 74.120. Authority to Adopt Rules

Currentness

(a) The commissioner shall adopt rules to protect individuals, livestock, wildlife, and honeybee colonies on
any premises in an eradication zone on which cotton plants are being grown that have been or are being
treated to eradicate the boll weevil or the pink bollworm.

(b) Rules adopted under this section shall establish the criteria by which the foundation develops its
procedures and methods of treatment, which shall:

(1) establish a methodology for determining when boll weevil or pink bollworm population levels have
reached economic significance;

(2) establish an effective treatment regimen that seeks to provide the least possible risk to workers, the
public, and the environment;

(3) minimize the effects of the use of pesticides on long-term control methods, including but not limited
to the effect a particular pesticide may have on biological controls;

(4) establish methods for monitoring boll weevils, pink bollworms, and secondary pests;

(5) establish methods for verifying pesticide use reduction; and

(6) consider the acute and chronic toxicity of particular pesticides and the quantity of particular
pesticides needed. Eradication zone treatment plans may take into account the potential for the use of
smaller quantities of more toxic substances to result in fewer health and environmental risks than larger

APPELLANT’S BRIEF page 43 of 57
 quantities of less toxic substances.

(c) The commissioner may adopt other reasonable rules necessary to carry out the purposes of this
subchapter and Subchapters A and B of this chapter. All rules issued under this subchapter must be adopted
and published in accordance with state requirements.

(d) An advisory committee may be established to assist the commissioner in the development of rules
adopted under this section. The advisory committee may be composed of:

(1) three cotton growers from different regions of the state, appointed by the commissioner;

(2) three entomologists with knowledge of the principles of integrated pest management, at least one of
whom has special knowledge of nonchemical or biological pest control, appointed by the commissioner;

(3) two individuals with experience representing the general interests of the environment, appointed by
the chair of the Texas Natural Resource Conservation Commission;

(4) an environmental engineer with expert knowledge of ground and surface water protection from
contamination, appointed by the chair of the Texas Natural Resource Conservation Commission;

(5) a toxicologist, appointed by the Commissioner of Health; and

(6) an individual with experience representing the general interests of consumers and an individual with
experience representing the general interests of agricultural workers, appointed by the governor.

Credits

Added by Acts 1993, 73rd Leg., ch. 8, § 1, eff. June 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, §
11.02, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 227, § 15, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch.
463, §§ 1.20, 2.09, eff. May 30, 1997.

V. T. C. A., Agriculture Code § 74.120, TX AGRIC § 74.120
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 44 of 57
TEX. AGRIC. CODE § 74.129
Vernon’s Texas Statutes and Codes Annotated
Agriculture Code (Refs & Annos)
Title 5. Production, Processing, and Sale of Horticultural Products
Subtitle B. Horticultural Diseases and Pests
Chapter 74. Cotton Diseases and Pests
Subchapter D. Official Cotton Growers’ Boll Weevil Eradication Foundation (Refs
& Annos)

V.T.C.A., Agriculture Code § 74.129

§ 74.129. Exemption From Lawsuits, Liability, Taxation, and Legal Process

Currentness

The legislature recognizes that the foundation, acting under the supervision and control of the
commissioner, is carrying out an important governmental function and that therefore the foundation, as a
quasi-governmental entity, must be immune from lawsuits and liability except to the extent provided in
Chapter 101, Civil Practice and Remedies Code, and as provided by this section. Therefore, no claims may
be brought or continued against the foundation except: (1) claims allowed by Chapter 101, Civil Practice
and Remedies Code; and (2) claims pending against the foundation on April 30, 1997, plus attorney’s fees
and costs of court. With the exception of finally adjudicated claims arising from Chapter 101, Civil Practice
and Remedies Code, and claims for assessments, attorney’s fees, and costs of court paid by named
plaintiffs in lawsuits pending on or before April 30, 1997, all payments, contributions, funds, and
assessments received or held by the foundation under this subchapter are exempt from garnishment,
attachment, execution, or other seizure and from state and local taxation, levies, sales, and any other
process and are unassignable. Nothing in this section shall affect or impair any existing or future
indebtedness or any existing or future security interest created under a note, security agreement,
assignment, or other loan agreement between the foundation and a lender or any judgment, to the extent
such judgment allows recovery against the foundation pursuant to a note, security agreement, loan
agreement, or other document.

Credits

Added by Acts 1997, 75th Leg., ch. 463, § 1.25, eff. May 30, 1997.

V. T. C. A., Agriculture Code § 74.129, TX AGRIC § 74.129
Current through the end of the 2015 Regular Session of the 84th Legislature

APPELLANT’S BRIEF page 45 of 57
TEX. CIV. PRAC. & REM. CODE § 16.004
CPRC §16.004. Four-year limitations period

(a) A person must bring suit on the following actions not later than four years after the
day the cause of action accrues:

(1) specific performance of a contract for the conveyance of real property;

(2) penalty or damages on the penal clause of a bond to convey real property;

(3) debt;

(4) fraud; or

(5) breach of fiduciary duty.

(b) A person must bring suit on the bond of an executor, administrator, or guardian not
later than four years after the day of the death, resignation, removal, or discharge of the
executor, administrator, or guardian.

(c) A person must bring suit against his partner for a settlement of partnership accounts,
and must bring an action on an open or stated account, or on a mutual and current account
concerning the trade of merchandise between merchants or their agents or factors, not
later than four years after the day that the cause of action accrues. For purposes of this
subsection, the cause of action accrues on the day that the dealings in which the parties
were interested together cease.

APPELLANT’S BRIEF page 46 of 57
TEX. CIV. PRAC. & REM. CODE § 16.051
Subchapter C. Residual Limitations Period
CPRC §16.051. Residual limitations period

Every action for which there is no express limitations period, except an action for the
recovery of real property, must be brought not later than four years after the day the cause
of action accrues.

History of CPRC §16.051: Acts 1985, 69th Leg., ch. 959, §1, eff. Sept. 1, 1985.

APPELLANT’S BRIEF page 47 of 57
TEX. CIV. PRAC. & REM. CODE § 16.061
Vernon’s Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle B. Trial Matters
Chapter 16. Limitations
Subchapter D. Miscellaneous Provisions

V.T.C.A., Civil Practice & Remedies Code § 16.061

§ 16.061. Rights Not Barred

Effective: September 1, 2001
Currentness

(a) A right of action of this state or a political subdivision of the state, including a county, an incorporated
city or town, a navigation district, a municipal utility district, a port authority, an entity acting under
Chapter 54, Transportation Code, a school district, or an entity created under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution, is not barred by any of the following sections: 16.001-16.004,
16.006, 16.007, 16.021-16.028, 16.030-16.032, 16.035-16.037, 16.051, 16.062, 16.063, 16.065-16.067,
16.070, 16.071, 31.006, or 71.021.

(b) In this section:

(1) “Navigation district” means a navigation district organized under Section 52, Article III, or Section
59, Article XVI, Texas Constitution.

(2) “Port authority” has the meaning assigned by Section 60.402, Water Code.

(3) “Municipal utility district” means a municipal utility district created under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 2, § 4.02, eff.
Aug. 28, 1989; Acts 1993, 73rd Leg., ch. 782, § 1, eff. Aug. 30, 1993; Acts 1997, 75th Leg., ch. 1070, § 47,
eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, § 8.204, eff. Sept. 1, 2001.

APPELLANT’S BRIEF page 48 of 57
TEX. CONST. ART. III, § 52

Sec. 52. COUNTIES, CITIES OR OTHER POLITICAL
CORPORATIONS OR SUBDIVISIONS; LENDING CREDIT; GRANTS;
BONDS. (a) Except as otherwise provided by this section, the Legislature
shall have no power to authorize any county, city, town or other political
corporation or subdivision of the State to lend its credit or to grant public
money or thing of value in aid of, or to any individual, association or
corporation whatsoever, or to become a stockholder in such corporation,
association or company. However, this section does not prohibit the use of
public funds or credit for the payment of premiums on nonassessable
property and casualty, life, health, or accident insurance policies and annuity
contracts issued by a mutual insurance company authorized to do business in
this State.

(b) Under Legislative provision, any county, political subdivision of
a county, number of adjoining counties, political subdivision of the State, or
defined district now or hereafter to be described and defined within the State
of Texas, and which may or may not include, towns, villages or municipal
corporations, upon a vote of two-thirds majority of the voting qualified
voters of such district or territory to be affected thereby, may issue bonds or
otherwise lend its credit in any amount not to exceed one-fourth of the
assessed valuation of the real property of such district or territory, except
that the total bonded indebtedness of any city or town shall never exceed the
limits imposed by other provisions of this Constitution, and levy and collect
taxes to pay the interest thereon and provide a sinking fund for the
redemption thereof, as the Legislature may authorize, and in such manner as
it may authorize the same, for the following purposes to wit:

(1) The improvement of rivers, creeks, and streams to prevent
overflows, and to permit of navigation thereof, or irrigation thereof, or in aid
of such purposes.

(2) The construction and maintenance of pools, lakes,
reservoirs, dams, canals and waterways for the purposes of irrigation,
drainage or navigation, or in aid thereof.

(3) The construction, maintenance and operation of
macadamized, graveled or paved roads and turnpikes, or in aid thereof.

APPELLANT’S BRIEF page 49 of 57
 (c) Notwithstanding the provisions of Subsection (b) of this Section,
bonds may be issued by any county in an amount not to exceed one-fourth of
the assessed valuation of the real property in the county, for the construction,
maintenance, and operation of macadamized, graveled, or paved roads and
turnpikes, or in aid thereof, upon a vote of a majority of the voting qualified
voters of the county, and without the necessity of further or amendatory
legislation. The county may levy and collect taxes to pay the interest on the
bonds as it becomes due and to provide a sinking fund for redemption of the
bonds.

(d) Any defined district created under this section that is authorized
to issue bonds or otherwise lend its credit for the purposes stated in
Subdivisions (1) and (2) of Subsection (b) of this section may engage in fire-
fighting activities and may issue bonds or otherwise lend its credit for fire-
fighting purposes as provided by law and this constitution.

(e) A county, city, town, or other political corporation or subdivision
of the state may invest its funds as authorized by law.

(Amended Nov. 8, 1904; Subsecs. (a) and (b) amended and (c) added Nov.
3, 1970; Subsec. (d) added Nov. 7, 1978; Subsec. (a) amended Nov. 4, 1986;
Subsec. (e) added Nov. 7, 1989; Subsecs. (a), (b), and (c) amended Nov. 2,
1999.) (TEMPORARY TRANSITION PROVISIONS for Sec. 52: See
Appendix, Note 1.)

APPELLANT’S BRIEF page 50 of 57
TEX. CONST. ART. VIII, § 1

THE TEXAS CONSTITUTION

ARTICLE 8. TAXATION AND REVENUE

Sec. 1. EQUALITY AND UNIFORMITY; TAX IN PROPORTION
TO VALUE; INCOME TAX; EXEMPTION OF CERTAIN TANGIBLE
PERSONAL PROPERTY FROM AD VALOREM TAXATION. (a)
Taxation shall be equal and uniform.

(b) All real property and tangible personal property in this State,
unless exempt as required or permitted by this Constitution, whether owned
by natural persons or corporations, other than municipal, shall be taxed in
proportion to its value, which shall be ascertained as may be provided by
law.

(c) The Legislature may provide for the taxation of intangible
property and may also impose occupation taxes, both upon natural persons
and upon corporations, other than municipal, doing any business in this
State. Subject to the restrictions of Section 24 of this article, it may also tax
incomes of both natural persons and corporations other than municipal.
Persons engaged in mechanical and agricultural pursuits shall never be
required to pay an occupation tax.

(d) The Legislature by general law shall exempt from ad valorem
taxation household goods not held or used for the production of income and
personal effects not held or used for the production of income. The
Legislature by general law may exempt from ad valorem taxation:

(1) all or part of the personal property homestead of a family
or single adult, "personal property homestead" meaning that personal
property exempt by law from forced sale for debt;

(2) subject to Subsections (e) and (g) of this section, all other
tangible personal property, except structures which are substantially affixed

APPELLANT’S BRIEF page 51 of 57
to real estate and are used or occupied as residential dwellings and except
property held or used for the production of income;

(3) subject to Subsection (e) of this section, a leased motor
vehicle that is not held primarily for the production of income by the lessee
and that otherwise qualifies under general law for exemption; and

(4) one motor vehicle, as defined by general law, owned by an
individual that is used in the course of the individual's occupation or
profession and is also used for personal activities of the owner that do not
involve the production of income.

(e) The governing body of a political subdivision may provide for
the taxation of all property exempt under a law adopted under Subdivision
(2) or (3) of Subsection (d) of this section and not exempt from ad valorem
taxation by any other law. The Legislature by general law may provide
limitations to the application of this subsection to the taxation of vehicles
exempted under the authority of Subdivision (3) of Subsection (d) of this
section.

(f) The occupation tax levied by any county, city or town for any
year on persons or corporations pursuing any profession or business, shall
not exceed one half of the tax levied by the State for the same period on such
profession or business.

(g) The Legislature may exempt from ad valorem taxation tangible
personal property that is held or used for the production of income and has a
taxable value of less than the minimum amount sufficient to recover the
costs of the administration of the taxes on the property, as determined by or
under the general law granting the exemption.

(h) The Legislature may exempt from ad valorem taxation a mineral
interest that has a taxable value of less than the minimum amount sufficient
to recover the costs of the administration of the taxes on the interest, as
determined by or under the general law granting the exemption.

(i) Notwithstanding Subsections (a) and (b) of this section, the
Legislature by general law may limit the maximum appraised value of a
residence homestead for ad valorem tax purposes in a tax year to the lesser
of the most recent market value of the residence homestead as determined by
the appraisal entity or 110 percent, or a greater percentage, of the appraised

APPELLANT’S BRIEF page 52 of 57
value of the residence homestead for the preceding tax year. A limitation on
appraised values authorized by this subsection:

(1) takes effect as to a residence homestead on the later of the
effective date of the law imposing the limitation or January 1 of the tax year
following the first tax year the owner qualifies the property for an exemption
under Section 1-b of this article; and

(2) expires on January 1 of the first tax year that neither the
owner of the property when the limitation took effect nor the owner's spouse
or surviving spouse qualifies for an exemption under Section 1-b of this
article.

(j) The Legislature by general law may provide for the taxation of
real property that is the residence homestead of the property owner solely on
the basis of the property's value as a residence homestead, regardless of
whether the residential use of the property by the owner is considered to be
the highest and best use of the property.

(Amended Nov. 7, 1978, and Nov. 3, 1987; Subsecs. (b) and (f) amended
Nov. 7, 1989; Subsec. (e) amended Aug. 10, 1991; Subsec. (c) amended
Nov. 2, 1993; Subsec. (d) amended and (g) and (h) added Nov. 7, 1995;
Subsec. (i) added Nov. 4, 1997; Subsecs. (d) and (e) amended Nov. 2, 1999;
Subsec. (d) amended and former (j) and (j-1) added Nov. 6, 2001; Subsec.
(d) amended, (i-1) added, and (j) repealed Sept. 13, 2003; Subsec. (j-1)
expired Jan. 1, 2004; Subsec. (i-1) expired Jan. 1, 2005; Subsecs. (d) and (i)
amended Nov. 6, 2007; current Subsec. (j) added Nov. 3, 2009.)

APPELLANT’S BRIEF page 53 of 57
TEX. CONST. ART. XVI, § 59

Sec. 59. CONSERVATION AND DEVELOPMENT OF
NATURAL RESOURCES AND PARKS AND RECREATIONAL
FACILITIES; CONSERVATION AND RECLAMATION DISTRICTS. (a)
The conservation and development of all of the natural resources of this
State, and development of parks and recreational facilities, including the
control, storing, preservation and distribution of its storm and flood waters,
the waters of its rivers and streams, for irrigation, power and all other useful
purposes, the reclamation and irrigation of its arid, semiarid and other lands
needing irrigation, the reclamation and drainage of its overflowed lands, and
other lands needing drainage, the conservation and development of its
forests, water and hydro-electric power, the navigation of its inland and
coastal waters, and the preservation and conservation of all such natural
resources of the State are each and all hereby declared public rights and
duties; and the Legislature shall pass all such laws as may be appropriate
thereto.

(b) There may be created within the State of Texas, or the State may
be divided into, such number of conservation and reclamation districts as
may be determined to be essential to the accomplishment of the purposes of
this amendment to the constitution, which districts shall be governmental
agencies and bodies politic and corporate with such powers of government
and with the authority to exercise such rights, privileges and functions
concerning the subject matter of this amendment as may be conferred by
law.

(c) The Legislature shall authorize all such indebtedness as may be
necessary to provide all improvements and the maintenance thereof requisite
to the achievement of the purposes of this amendment. All such
indebtedness may be evidenced by bonds of such conservation and
reclamation districts, to be issued under such regulations as may be
prescribed by law. The Legislature shall also authorize the levy and
collection within such districts of all such taxes, equitably distributed, as
may be necessary for the payment of the interest and the creation of a
sinking fund for the payment of such bonds and for the maintenance of such
districts and improvements. Such indebtedness shall be a lien upon the
property assessed for the payment thereof. The Legislature shall not
authorize the issuance of any bonds or provide for any indebtedness against

APPELLANT’S BRIEF page 54 of 57
any reclamation district unless such proposition shall first be submitted to
the qualified voters of such district and the proposition adopted.

(c-1) In addition and only as provided by this subsection, the
Legislature may authorize conservation and reclamation districts to develop
and finance with taxes those types and categories of parks and recreational
facilities that were not authorized by this section to be developed and
financed with taxes before September 13, 2003. For development of such
parks and recreational facilities, the Legislature may authorize indebtedness
payable from taxes as may be necessary to provide for improvements and
maintenance only for a conservation and reclamation district all or part of
which is located in Bexar County, Bastrop County, Waller County, Travis
County, Williamson County, Harris County, Galveston County, Brazoria
County, Fort Bend County, or Montgomery County, or for the Tarrant
Regional Water District, a water control and improvement district located in
whole or in part in Tarrant County. All the indebtedness may be evidenced
by bonds of the conservation and reclamation district, to be issued under
regulations as may be prescribed by law. The Legislature may also authorize
the levy and collection within such district of all taxes, equitably distributed,
as may be necessary for the payment of the interest and the creation of a
sinking fund for the payment of the bonds and for maintenance of and
improvements to such parks and recreational facilities. The indebtedness
shall be a lien on the property assessed for the payment of the bonds. The
Legislature may not authorize the issuance of bonds or provide for
indebtedness under this subsection against a conservation and reclamation
district unless a proposition is first submitted to the qualified voters of the
district and the proposition is adopted. This subsection expands the authority
of the Legislature with respect to certain conservation and reclamation
districts and is not a limitation on the authority of the Legislature with
respect to conservation and reclamation districts and parks and recreational
facilities pursuant to this section as that authority existed before September
13, 2003.

(d) No law creating a conservation and reclamation district shall be
passed unless notice of the intention to introduce such a bill setting forth the
general substance of the contemplated law shall have been published at least
thirty (30) days and not more than ninety (90) days prior to the introduction
thereof in a newspaper or newspapers having general circulation in the
county or counties in which said district or any part thereof is or will be
located and by delivering a copy of such notice and such bill to the Governor

APPELLANT’S BRIEF page 55 of 57
who shall submit such notice and bill to the Texas Water Commission, or its
successor, which shall file its recommendation as to such bill with the
Governor, Lieutenant Governor and Speaker of the House of
Representatives within thirty (30) days from date notice was received by the
Texas Water Commission. Such notice and copy of bill shall also be given
of the introduction of any bill amending a law creating or governing a
particular conservation and reclamation district if such bill (1) adds
additional land to the district, (2) alters the taxing authority of the district,
(3) alters the authority of the district with respect to the issuance of bonds,
or (4) alters the qualifications or terms of office of the members of the
governing body of the district.

(e) No law creating a conservation and reclamation district shall be
passed unless, at the time notice of the intention to introduce a bill is
published as provided in Subsection (d) of this section, a copy of the
proposed bill is delivered to the commissioners court of each county in
which said district or any part thereof is or will be located and to the
governing body of each incorporated city or town in whose jurisdiction said
district or any part thereof is or will be located. Each such commissioners
court and governing body may file its written consent or opposition to the
creation of the proposed district with the governor, lieutenant governor, and
speaker of the house of representatives. Each special law creating a
conservation and reclamation district shall comply with the provisions of the
general laws then in effect relating to consent by political subdivisions to the
creation of conservation and reclamation districts and to the inclusion of
land within the district.

(f) A conservation and reclamation district created under this section
to perform any or all of the purposes of this section may engage in fire-
fighting activities and may issue bonds or other indebtedness for fire-
fighting purposes as provided by law and this constitution.

(Added Aug. 21, 1917; Subsec. (d) added Nov. 3, 1964; Subsec. (e) added Nov. 6, 1973;
Subsec. (f) added Nov. 7, 1978; Subsec. (c) amended Nov. 2, 1999; Subsec. (a) amended
and (c-1) added Sept. 13, 2003.) (TEMPORARY TRANSITION PROVISIONS for Sec.
59: See Appendix, Note 1.)

APPELLANT’S BRIEF page 56 of 57
TEX. CONST. ART. XVI, § 68

Sec. 68. ASSOCIATIONS OF AGRICULTURAL PRODUCERS;
ASSESSMENTS ON PRODUCT SALES TO FINANCE PROGRAMS OF
MARKETING, PROMOTION, RESEARCH, AND EDUCATION. The
legislature may provide for the advancement of food and fiber in this state
by providing representative associations of agricultural producers with
authority to collect such refundable assessments on their product sales as
may be approved by referenda of producers. All revenue collected shall be
used solely to finance programs of marketing, promotion, research, and
education relating to that commodity.

(Added Nov. 8, 1983.)

APPELLANT’S BRIEF page 57 of 57