### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00787- CV

Jose Luis Garz a, ind ividu ally and d/b /a My Three D aughters F arm s and Blan ca C. G arza, individ ually an d d/ b/a My Th ree Daughters F arm s, Appellan ts

v. Texas Boll Weevil Eradication Foundation , Inc., Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 07- 0089 42, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

&

NO. 03-11-00788- CV

Jose Luis S aenz, Appellant

v. Texas Boll Weevil Eradication Foundation , Inc., Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 07- 0088 91, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

&NO. 03-11-00789- CV

Arm ando Gonzalez, Appellant

v. Texas Boll Weevil Eradication Foundation , Inc., Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. , C-1 -CV- 07- 0089 24, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

&

NO. 03-11-00790- CV

Eusebi o Saenz, Jr., Appellant

v. Texas Boll Weevil Eradication Foundation , Inc., Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 07- 0088 92 , H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellants J ose L uis Gar za and Blanca C. Gar za, individually and d/b/ a My Three Daug hters Fa

rms, J ose L uise Saenz, Armando Gonzalez, and Eusebio Saenz, J r. (collec tively , t h e “F arme rs”) wer e eac h sued by the Texas Boll Weevil Eradic ation Founda tion, I n c. (t h e 2“F oun d at i on”). The Founda tion filed the suits seeking to collect assessments levied ag ainst the

Fa rmers for the y ear 2006. See Act of May 29, 19 9 7 , 75th L eg ., R.S., ch. 463, § 1.15, 1997 Tex. Gen. L aws 1769, 1776 (ame nded 2009) (cur rent version at Tex. Ag ric. Code Ann. § 74.113 (West Supp. 2011)) (providing that Founda tion is responsible for collection of assessments). I n response
to the parties’ competing motions for summary jud gm en t , the district court g rante d summary judgme nts in favor of the Founda tion and denied t h e Fa rmers’ motions. I n these consolidated
appea ls, the Fa

rmers contend that the summary judgme nts should be reve rsed beca use the summary judgme nt evidenc e establishes that in 2006 they wer e not “cotton g rowe rs,” as define d in section 74.102(5) of the ag riculture code, and there fore are not subject to the Founda tion’s 2006 assessment. S e e A c t o f M a

y 2 9 , 1 9 9 7 , 7 5 th L e g . , R. S. , c h

. 4 6 3 , § 1

. 0 3 , 1 9 9 7 T e x. G e n . L a w s 1 7 6 9 , 1 7 7 0 ( a

me n d e d 2009) (cur

rent version at Tex. Ag ric. Code Ann. § 74.102(5) (West Supp. 2011)) (def ining “cotton
g r o w e r ” )

. B e c a

u s e w e a g r e e th a

t u n d is p u te d s u

mm a r y - ju d g me n t e v id e n c e e s ta

b li s h e s th a

t th e F a r me r s

wer e not cotton g rowe rs in 2006 and are not subject to the 2006 assessment, in eac h cause we reve rse the trial court’s g rant of summary judgme nt and rende r summary judgme nt in favor of the Fa rmers.

BACK GR OUND Chapter 74 of the Texas Ag riculture Code desig n at es t he Founda tion, a nonprofit
corpor ation, as the entity char g ed with planning , car ry ing out, and opera ting prog rams to aid in the

era dication of the boll wee vil and the pink bollworm from cotton in Texas, under the supervision of th e T e xa s D e p a

r tm e n t o f A g

r ic u lt u r e . S e e T e x. A g r ic

. Co d e A nn . § 7 4

. 1 0 1 1 ( We s t 2 0 0 4 )

. Ch a p te r 7 4 also establishes the cre ation of six g eog raphic zones, called “er adica tion zones,” and deleg ates to the commissioner o f agric ulture the authority to desig nate additional era dication zones, subject to
3ref

ere ndum approva l by aff

ecte d cott o n g rowe rs in the proposed zone. Id

. at §§ 74.1041, .1042 (West 2004). Subject to further ref ere ndum approva l by the cotton g rowe rs in an era dication zone, the Foundation is authorized to collect assessments levi ed o n cotton g rowe rs i n that zone. Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.15, 1997 Tex. Gen. L aws 1769, 1776 (ame nded 2009). The Founda tion calc ulates and collects the assessments on an annual basis, which are used, in part,
to fund era dication prog rams. See 4 Tex Admin. Code §§ 3.502 (Tex. Dep’ t of Ag ric., Approva l of Assessment Ra t es and Collection Dates) (upon y ear ly rec ommendation of the Founda tion, the

comm issioner deter

mines the assessment rate and due date for eac h zone), 3.504 (2012) (Tex. Dep’ t of Ag ric., Pay

ment of Assessments, I ncentives for Early Pay ment; Penalties for L ate Pay ment; Website) (asse ssments are due in full by due date set by

commissioner ea ch y ear ); see also Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.15, 1997 Tex. Gen. L aws 1769, 1776 (ame nded 2009).

I n 2006, the Foundation levied assessments ag ainst the Fa rmers, who far

m in the
L ower Rio Gr ande Valley Eradic ation Z one. When the Fa rmers f ailed to pay

the assessments, the Fo u n d at i on filed four separ ate but substantively identical suits ag ainst the Fa rmers, seeking to

rec over the 2006 assessments. See Tex. Ag ric. Code Ann. § 74.115 (West 2004). The Founda tion then m oved for summary judgme nt in all four c auses. The Farme rs responded t o eac h motion for
summary judgme nt, objecting to the Foundation’s summary -judg ment evidenc e and c laiming that the Founda tion ha d failed to e stablish that the Fa rmers owe the 2006 assessments beca use (1) they

are not “cotton g rowe rs” as define d by section 74.102(5) of the ag riculture code; (2) the assessment is void beca

use the assessment rate for 2006 was rec ommended and adopted in violation of the Texas Open Meeting s Act, chapte r 551 of the g overnme nt code; and (3) chapte r 74 on its fac e violates the

4Fa

rmers’ rig ht to pro ce d u ra l d u e proce ss under the Texas and fede ral constitutions and the Open Courts p rovi sion of the Texas Constit ution. The Fa rmers also filed cross-motions for summary judgme nts, aff

irmatively raising these same issu es an d as s erting that they do not owe the 2006 assessments as a m at t er o f l aw. Upon considering the motions, in eac h cause the t rial court denied the Fa

rmers’ motion for summary judgme nt and g rante d the Founda tion’s motion for
summary judgme nt. 1 These appea ls followed. I n one issue, the Fa rmers challeng e the trial court’s denial of their summary -judg ment motions and the g rant of the Founda tion’s summary -judg ment motions. The Fa rmers arg ue that the trial court err ed beca use the undisputed evidenc e establishes that they are not “cotton g rowe rs,” a s defined by section 74.102(5) of the a g riculture c ode. 2

STANDARD OF REVIEW Summary judgme nt is proper if the movant establishes that there are no g enuine issues of materia l f

act and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c ). A defe ndant who conclusively neg ates at least one essential el em en t of a plaintiff’s

I n four separa te final judgme nts, the t rial court awa rd ed t he Foundation (1) assessments 1 and late fee s ag ainst Eusebio Saenz, J r. in the amount of $39,211.25, attorney ’s fee s and costs in the amount of $617, and post-judgme nt interest; (2) assessments and late fee s ag ainst J org e L uis Gar za and Bla nca Gar za in the amount of $42,387.49, attorney ’s fee s and costs in the amount of $692, and post-judgme nt interest; (3) assessments an d l at e fees ag ainst J org e L uis Saenz in the amount of $16,3 8 7

. 1 4 , attorney ’s fee s and costs in the amount of $684, and post-judgme nt interest; and (4) assessments and late fee s ag ainst Armando Gonzalez in the amount of $8,435.86, attorney ’s fee s and costs in the amount of $747, and post-judg ment interest. Orig inally , the Fa

rmers also appea led on the alterna tive g rounds raised in their response s 2 to the Found at i o n ’s m otions for summary judgme nt as well as their own motions for summary judgme nt. Howeve r, the Fa rmers subsequently withdrew the ir appe als on these alterna tive issues.

5c a

u s e o f a c ti o n is e n ti tl e d to s u mm a r y ju d g me n t o n th a

t c la im

. I H S Ce d a r s Tre a tm e n t Ct

r
. o f D e S o to , Tex., Inc. v. Mason , 143 S.W .3d 794, 798 (Tex. 2003). We revie w a trial court’s ruling s on summary judgme nts de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex 2005). When,

as in this case , both parties move for summary judgme nt on the same issues and the trial g rants one motion and denies the ot her, we wil l consider the summary -judg men t evidence presented by both sides, deter

mine all questions prese nted, and if we find that the trial court err ed, rende r the judgme nt the trial cour

t should have re ndere d. Id

. The Fa rmers’ argume nt on appea l is primarily based on construction of the Texas Ag ricult ural Code, specific ally the definition of “cotton g rowe r” under chapte r 74 of the code. Statutory construction is a leg al question that we revie w de novo. First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631 (Tex. 2008). When construing a statute, our primary objective is to asce rtain and g ive eff

ect to the leg islature’s intent, following first and fore most the plai n l anguag e of the
statute. Id. at 631-32; GMC v. Bray , 243 S.W .3d 678, 685 (Tex. App.—Austin 2007, no pet.). I n addition, we look to the entire act in deter mining the leg islature’s intent with respe ct to specific provisions

. Railroad Comm’n v. Texas Citi zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 628 (Tex. 2011). We rea d ever y word, phrase , and expression in a statute as if it wer e delibera tely chosen, and we presume that the exclusion of words from the statute is done purposef ully

. Gables Realty Ltd. P’ship v. Travis Cent. Apprais al Dist. , 81 S.W .3d 869, 873 (Tex. A pp.—Austin 2002, pet. denied)

. Where the stat u t o ry l an guag e at issue is ambig uous, its construction by an ag ency char g ed with its enfor ceme nt is ordinarily entitled to se rious consideration so long as the ag ency ’s construction is rea sonable. Texas Citizens , 336 S.W .3d at 625 (c iting Fiess v. State Farm Ll oyds ,

6202 S.W .3d 744, 747-48 (Tex. 2006)). Fur ther, in apply ing this defe renc e, we consider an ag ency ’s “for mal opinions adopted af

t er formal proce eding s, not isolated comments during a hear ing or opinions [ in a cour

t brief].” Id

.
DISCUSSIO N Only “cotton g rowe rs,” a s defined by section 74.102(5) , are subject t o assessments levied by the Founda tion. See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.15, 1997 Tex. Gen. L a w s 1 7 6 9 , 1 7 7 6 ( a

me n d e d 2 0 0 9 ) ( p r o v id in g th a t c o mm is s io n e r s h a ll p r o p o s e “ ma xim u m a s s e s s me n t
to be paid by cotto n gro we rs ” and that “founda tion may collect the assessment”) ; see also Tex. Ag ric. Code Ann. § 74.115 (providing that “a cotton g rowe r who fails to pay an assessment levied

u nder this subchapte r may be subject

. . . to a penalty set by the commissioner”). Whil e section 74.102(5) has been amende d sever al times since its enac tment, most rec ently in 2009, this case is g overne d by the version of section 74.102(5) in eff ect i n 2 0 0 6

. Under this version of section

3 74.102(5), “ cotton g rowe r” me ans: a person who grows cotton and rece ives income from the s ale of cotton. T h e term includes an individual who as owner , landlord, tenant, or share croppe r is entitled to share in the cotton g rown and available for marke ting from a far m or to share in the proce eds fr om the sale of the cotton from the f arm.

Section 74.102(5) now de fines “c otton gr ower ” as: 3

a person who g rows cotton intended to be commerc ial cotton. The term includes an individual who as owner , landlord, tenant, or share croppe r is entitled to share in the cotton g rown and available for marke ting from a far m or to share in the proce eds from the sale of the cotton from the far m or from an indemnity o r other pay ment rec eived f rom or re lated to the planting , g rowing , or fa ilure of the c otton. Tex. Agr ic. Code Ann. § 74.102(5) (West Supp. 2011). 7Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.03, 1997 Tex. Ge n. L aws 1769, 1770 (ame nded

2009). The mate rial fa cts in this case a re undisputed. All of the Fa rmers planted cotton in 2006; howeve r, as a result of drought, none of t he crops succe ed ed an d no cotton was sold on the marke t. I nstead, the Fa

rmers rece ived crop insurance proce eds for their failed crops. I n addition,

some of the Fa

rmers rec eived fede ral disaster relief paym en t s fo r 2 006. The Fa rmers arg ue that, under these fac ts and the unambig uous lang uag e of the statute, no n e o f them meet the statutory definition of “cotton g rowe r.” Specifica lly , they arg ue that in order to be cotton g rowe rs they must ( 1 ) g r o w c o tt o n a

n d ( 2 ) r e c e iv e in c o me f

r o m th e s a le o f th e c o tt o n . T h e r e f o r e , b e c a u s e th e u n d is p u te d evidenc e shows that none of the Fa rmers g rewcotton in 2006 or rec eived income from the sale of
cotton in 2006, the Fa

rmers contend that they cannot be considere d cotton g rowe rs for purposes of the 2006 assessment.

The Founda tion makes three arg uments in respon s e to the Fa rmers’ contention that they are not cotton gr ower s. First, the Founda tion arg ues that the F arme rs ar e cotton g rowe rs beca use section 74.102(5) includes “an individual who as owner , landlord, tenant, or share croppe r is entitled

. . . t o s h ar e in the proce eds from the sale of the cotton from the far m” and “it is undisputed that the Fa

rmers planted cot t o n i n 2006 and wer e entitled to share in the proce eds from the sale of that cotton.” See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.03, 1997 Tex. Gen. L aws 1769, 1770 (ame nded 2009). Second, the Founda tion arg ues that the Fa

rmers, with the exception of Eusebio Saenz, are cotton g rowe rs beca use the evidenc e shows that the Fa rmers planted
cotton and rec eived income on the sale of cotton befor e 2006. Third, the Founda tion contends that
8beca

use the Fa rmers planted cotton in 2006 and rec eived income by way of crop insurance proce eds and g overnme nt subsidies in 2006 to repla ce “income from the sale of cotton,” they are considere d cotton g rowe rs for pur

poses of the 2006 a ssessment.
Construction of section 74.102(5)

We f irst c onsider whether

the Fa rmers’ proposed construction of section 74.102(5) is reasona ble. The F arme rs’ a

rg ument with reg ard to the pr oper c onstruction of sec tion 74.102(5) is simple. I n arg uing that they are not cotton g rowe rs under the statute, the Fa rmers focus on the first
sentenc e of section 74.102(5), which define s “cotton g rowe r” as “a person who g rows cotton

an d rec eives income from the sale of cotton.” The Fa rmers arg ue that unless both prong s of t h i s definition are met, they

cannot be considere d cotton g rowe rs. T h e la n g u a g e in th e f

ir s t s e n te n c e o f s e c ti o n 7 4

. 1 0 2 ( 5 ) is see mi n g ly s tr a ig h tf o r w a r d and, in isolation, its plain meaning is read i ly appar ent—a person is a cotton g rowe r only if he or she (1) g rows cotton and ( 2) rec eives income from the sale of cotton. Ther e is no lang uag e in this portion of section 74.102(5) that would sug g est that the words chosen by the leg islature in this first
sentenc e mean any

thing other than their common, ordinary meaning

. See Texas Dept. of Transp. v. City of Sunset Valley , 146 S.W .3d 637, 642 (Tex. 2004) (“I n discerning [l eg islative] intent, we beg in with the ‘plain and c ommon meaning of the statute’ s words.’” ).

Howeve r, when interpre ting a statute we do not look to any one phrase , clause or

s e n te n c e in is o la

ti o n , b u t to th e s ta

tu te a s a w h o le

. Ci ty o

f S u n s e t V a ll e y , 1 4 6 S. W. 3 d a

t 6 4 2

. F u r th e r ,
w e mu s t a tt e mp t to h a

r mo n iz e th e s ta

tu te ’ s v a r io u s p r o v is io n s . M

a r c u s Ca b le A s s o c

s
. , L. P

. v
. Kr

o h n , 90 S.W .3d 697, 706 (Tex. 20 0 2 ). W i th these principles of statutory construction in mind, we
9consider the Founda tion’s first argum en t , u rgi ng us to consider the second sentenc e of section

74.102(5) and conclude th at a p er son may be considere d a cotton g rowe r even when there is no sale of c otton. The Founda tion arg ues that even if the Fa rmers did not “g row[] cotton and rec eive[] income from the sale of cotton,” the Fa rmers are never

theless cot t o n gro we rs under the second
sentenc e of section 74.102(5). See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.03, 1997 Tex. Gen. L aws 1769, 1770 (ame nded 2009). The second sentenc e of section 74.105(5) states that the term “cotton g rowe r . . . includes an individual who as owner , landlord, tenant, or share croppe r is e n ti tl e d

. . . to s h a

r e in th e p r o c e e d s f

r o m th e s a le o f th e c o tt o n f r o m th e f a r m. ” I d

. T h e F o u

n d a ti o n

a s s e r ts th a t th is la n g u a g e d e mo n s tr a

te s th e le g is la

tu r e ’ s in te n t n o t to li mi t th e d e f

in it io n to in d iv id

u a ls who g row and rec eive income from the sale of cotton. There fore , the Founda tion arg ues, the 4
Fa rmers are cotton g rowe rs beca use it is u n d isputed that they planted cotton in 2006 and wer e “entitled to share in the proce eds fr om the sale of tha t cotton.” Be cause the undisputed evidenc e is that the Fa rmers did not sell any cotton in 2006, we take t he Foundation’s arg ument to mean that a person is considere d a cotton g rowe r under the
statute if he or she, as a result of h i s o r h er connection to the land, would be entitled to share in
proce eds, if and when there are any , from the sale of the cotton from the far m, if and when there is
any . I n other words, the Foundation arg ues t hat an individual may be considered a cott on g rowe r

The first sentenc e of section 74.102(5) no longe r states that “cotton g rowe r” means “a 4 person who g rows cotton and r ece ives income fr om the sale of cotton.” I nstead, the first sentenc e of section 7 4

. 1 0 2 (5) curr ently provides that “cotton g rowe r” means “a person who g rows cotton intended to be c ommercia l cotton.” See Tex. Agr ic. Code Ann. § 74.102(5) (West Supp. 2011). 10if they might be entitled to rec eive procee ds in the future. For the foll owing rea sons, we disagr ee

that the leg islature intended to allow the Founda tion to levy assessments on individuals who would be “e ntitled” to proce eds in the theore tical sense sug g ested by the Founda

tion. First, we start with the proposition that when construing the second sent en ce of section 74.102(5) we must rea d it toge ther with the first sentenc e if possible. See Tex. Gov’t Code Ann. § 311.021(2) (West 2005) (it is presumed that entire statute is intended to be eff ective)

. Under the second sentenc e of section 74

. 1 0 2 ( 5 ), the definition of cotton g rowe r “includes” individuals who, by virtue of their connec tion with the land, are entitled to a share in the proce eds from the sale of the
cotton. See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.03, 1997 Tex. Gen. L aws 1769, 1770 (ame nded 2009). The word “includes” i s gen er al ly a term of enlar g ement, not of limit ation or exclusive enumer ation. Tex. Gov’t Code Ann. § 311.005(13) (West 2005). I n other words, the list following the word “includes” is not intended to be ex h au s t i v e. See id

. Moreove r, there is no indication that the leg islature intended to altog ether dispense with the specific require ments set forth in the first sentenc e of se ction 74.102(5) that there be cotton g rown and that there be income f rom the sale of cotton
. See City of W aco v. Lopez , 259 S.W .3d 147, 153 (Tex. 2008) (if g ener al provision conflicts with spec ial provision, provisions shall be construed if possible, so that eff ect is g iven to both). Rather, rea sonably construing the statutory definition as a whole, an individual is a “c otton
g rowe r” under the second sentenc e of section 74.102(5) only when there are proce eds from the actua l sale of c otton gr own.

Second, we note that our construction of the second sentenc e of section 74.105(5) is consistent with the rule that courts must not g ive the words used by the leg islature an “exag g era ted,

11forc ed, or constraine d meaning .” See Presidio Indep. Sch. Dist. v. Scott , 309 S.W .3d 927, 931 (Tex.

2010) (q u o t i n g C i t

y of Austin v. Southwestern Bell Tel. Co. , 92 S.W .3d 434, 442 (Tex. 2002)).
I n this case , the l egislature could have made clear that the definiti on of cotton g rowe r i ncludes an individual who would be entitled to a shar e o f the proce eds, if and when there are any , from the sale of the cotton from the f arm, if and when there is any . Howeve r, the leg islature did not do so, and we will not presume that the leg islature intended to inc lude these words when there is nothing in the lang uag e of t h e s tatute indicative of such intent. See Cameron v. Terrell & Garrett, Inc. , 618 S.W .2d 535, 540 (Tex. 1981) (“O nly when it is nece ssary to g ive eff ect to the clea

r leg islative intent can we insert additional words or require ments into a statutory provision.”); see Gables Realty Ltd. P’ship , 81 S.W .3d at 873 (noti n g t h at courts should “pre sume the words excluded from the
statute are done so purpose fully ”).

Construing the statute as a wh ole, in a manner that g ives eff ect to eac h sentenc e, clause , phrase , and word to the extent possible, we conclude that a person is a cotton g rowe r under section 74.102(5) if that person (1) g rows cotton and rec eives income from the sale of cotton, or (2) is indirectly entitled to share in cotton g rown and/or share in proce eds from the s ale of cotton, by virtue of his or her connec tion with the land. See City of Sunset Valley , 146 S.W .3d at 642 (“ I f the statutory lang uag e is unambig uous , we i n t er p ret it acc ording to its terms, g iving meaning to the lang uag e consistent with other provisions in the statute.”). Howeve r, under either part of this definition, the plain lang uag e of section 74.102(5) indicates that the leg islature intended for a person
to be considered a co tton g rowe r only when there is cotton g rown and actua l income from the sale of c otton. Bec ause the term “sa le” is not defined in c hapter 74, we simply

apply its plain and

12ordinary meaning

. See Tex. Gov’t Code Ann. § 311.011(a) (West 2005); see also State v. Shumake ,

199 S.W .3d 279, 284 (Tex. 2006) (“I f the statute is clea r and unambig uous, we must apply its words

acc ording to their ordinar y meaning .”). 5
I n this case , the undisputed summary -judg ment evidenc e is that all of the Fa rmers planted cotton in 2006; howeve r, as a result of droug ht, none of the crops succe eded and no cotton

was so l d

. T h ere fore , under the plain meaning of t he st atute, the Fa rmers did not rec eive “income from the sa le of c otton” in 2006 and thus were not cotton gr ower s under c hapter 74. 6 Whil e our analy si s wo u l d appear to end here , the Founda tion contends that the Fa rmers should never

theless be considere d cotton g rowe rs for purposes of the 2 006 assessment. The Founda tion arg ues that the Fa rmers did, in fac t, rec eive “income from the sale of cotton” beca use the Fa rmers (1) rec eived income from the sale of cotton in previous y ear s and (2) rec eived income from the sale of cotton in the form of insurance pay ments and g overnme nt subsidies in 2006. We now turn to these re maining a rg uments.

Incom e from the sale of cotton in p ast year s

The Founda tion arg

ues that the Fa

rmers, with the exception of Eusebio S ae n z , are cotton g rowe rs for pur

poses of the 2006 a ssessment beca use they have gr own cotton and re ceive d

A d ic ti o n a r y d e f in it io n o f “ s a le ” is “ tr a

n s f e r r in g th e a b s o lu te o r g e n e r a l o w

n e r s h ip o f p r o p e r

ty 5 from o n e p er s o n or corporate body to another for a price .” Webster’s Third New I nt’l Dictionary 2003 (2002). T o th e e xte n t th e F a

r me r s c o n te n d th a

t th e y d id n o t “ g r o w [] c o tt o n ” u n d e r s e c ti o n 7 4

. 1 0 2 ( 5 ) 6 beca use they planted a crop of cotton plants th at u l t i m at ely failed to produce cotton, we need not decide this iss ue. See Tex. R. App. P

. 47.1 (cour t of appe als must hand down opinions that are a s brief a s possible while addre ssing those issues ne cessa ry to final dispositi on of appe al). 13in c o me o n th e s a le o f c o tt o n in p r e v io u s y e a r s . T h e F o u

n d a ti o n e xp la in s th a

t th e la n g u a g e o f s e c ti o n 7 74.102(5) is not limit ed to a particula r y ear , and there fore a person is qualified as a “cotton g rowe r” if he or she has re ce i v ed i n co m e fr o m the sale of cotton at any time. See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, § 1.03, 1997 Tex. Gen. L aws 1769, 1770 (ame nded 2009). I n essenc e, the
F o u n d a ti o n a s s e r ts “ o n c e a c o tt o n g r o w e r , a lw a y s a c o tt o n g

r o w e r . ” Co n s tr

u in g th e s ta

tu te a s a w h o le ,
we disag ree with the Founda tion’s pr oposed construction. See Texas Citi zens , 336 S.W .3d at 628. Under chapte r 74, t he commissioner of ag riculture proposes, and elig ible cotton
g rowe rs in eac h era dication z one approve by ref ere ndum, (1) the maximum assessment to be paid by co t t o n g rowe rs having production in the era dication zone and (2) the time for which any
assessment will be made. Act of May 8, 1995, 74th L eg ., R.S., ch. 227, § 9, 1995 Tex. Ge n. L aws 1976, 1979 (ame nded 2009). The commissioner then sets on a zone-by -zone basis the assessment
rate and the date on which assessments are due and p ay able. Id

. The Founda tion calc ulates and levies the assessments on an annual basis. See id .; see also Tex. Admin. Code §§ 3.502, .504. The Founda tion is also responsible for collecting the assessment as well as prepa ring and mailing billing
statements to “ea ch cotton g rowe r subject to the assessment.” Act of May 8, 1995, 74th L eg ., R.S., ch. 227, § 9, 1995 Tex. Gen. L aws 1976, 1979 (ame nded 2009). When a cotton g rowe r fails to pay

an assessment when due, the Founda tion may acquir e a lien “on cotton produce d and harve sted that
y ear from the acr eag e that is subject t o the assessment that is due an d u n p ai d

. ” Tex. Ag ric. Code Ann. § 74.115. Ex amining the statute as a whole, we c onclude that the sta tute may be reasonably

The undisputed evidenc e shows that Eusebio Saenz ne ver even attempted to g row cotton 7 prior to 2006. 14construed as allowing the Founda tion to levy an assessment ag ainst a person who is a cotton g rowe r

during the assessment y ear . As a result, the Fa rmers are subject to the 2006 assessment only if they

wer e cotton g rowe rs in 2006.

Under the Founda tion’s proposed interpre tation, a person that has g rown cotton in the past but no longe r g rows cotton, and has no intention of ever doing so ag ain in the future, would

never theless be require d to pay assessments in perpe tuity

. Be cause t h i s i s an ab surd result, we conclude that this is an unrea sonable interpre tation of the statute which we cannot adopt. See City of
R o c k wa ll v
. H u g h e s , 2 4 6 S. W. 3 d 6 2 1 , 6 2 5

- 2 6 ( T e x. 2 0 0 8 ) ( n o ti n g th a t c o u r t c a nn o t a d o p t c o n s tr

u c ti o n that leads to absurd results). The fac t that the Fa rmers may have g rown cotton and rec eived income from the sale of cotton befor e 2006 is not rele vant to whether they are cotton g rowe rs for purposes of the 2006 a ssessment.

Incom e from crop insurance proce eds, governm ent subsi dies, and disaster paym ents

F in a ll y , w e tu

r n to th e F o u

n d a ti o n ’ s a r g u me n t th a t a ny o n e w h o r e c e iv e s c r o p in s u r a n c e pay ments, g overnme nt subsidies, or disaster pay ments in lieu of income is also a cotton g rowe r under section 7 4

. 102(5). Specifica lly , the Founda tion arg ues these pay ments are “income” that repla ce the income that the Fa

rmers would have rec eive d if they had sold their cotton in 2006. For the 8 following rea sons, we also find this arg ument unpersua sive.

Under the first sentenc e of 74.102(5), “income from t he sale of cotton” is require d in order for a person to be considere d a cotton g rowe r. Simi larly , under the second sen t en ce of

Section 74.102(5) now specific ally mentions “indemnity or other pay ment rec eived from 8 or rela ted to the planting, gro wi n g, o r fa ilure of the cotton.” Tex. Ag ric. Code Ann. § 74.102(5) (West Supp. 2011). 15section 74.102(5), the definition of cotton g rowe r may include a person who is entitled to “shar e in

proce eds from the s ale of the cotton from the far m.” Whil e ins uranc e and subsidy p aym en t s may repr esent “income” or “proc eeds,” we cannot ag ree that th e s e p a y me n ts r e p r e s ent income or proce eds “fr om the sale of cotton.” Whil e insurance and subsidy pay ments may be desig ned to repla ce income that would have been made on cotton sal es , if there had been any , the pay ments are not made in

e xc h a n g e f o r th e tr a n s f e r o f p r o p e r

ty

. T h e r e f o r e , th e p a y me n ts th e ms e lv e s a

r e n o t in c o me o r p r o c e e d s “fr om the sale of cotton.” Fur ther, under the plain lang uag e of the statute, there is no indication that the leg islature intended to include funds desig ned to replace lost income in the phrase “income from th e s a le o f c o tt o n ” o r “ p r o c e e d s f r o m th e s a le o f c o tt o n . ” S

e e TG S

- NO P E C G e o p h y s ic a l Co

. v
. Co m b s , 340 S.W .3d 432, 439 (Tex. 2011) (“We pr esume that the L eg islature choose s a st atute’s langua g e

w it h c a r e , in c lu d in g e a c h w o r d c h o s e n f o r a p u r p o s e , w h il e p u

r p o s e f u ll y o mi tt in g w o r d s n o t c h o s e n . ” )

. I n conclusion, under the unambig uous language of section 74.102(5) a person is a

co t ton g rowe r for purposes of the Founda tion’s 2006 assessment if he or she g rew cotton and

rec eived income from the sale of cotton in 2006. See Act of May 29, 1997, 75th L eg ., R.S., ch. 463, 9 § 1.03, 1997 Tex. Gen. L aws 1769, 1770 (ame nded 2009). I n addition, a person is a cotton g rowe r under section 74.102(5) if he or she is entitled to share in cotton that is g rown in 2006 (and available for marke ting from a far

m) or to share in the proce eds from cotton sold in 2006. Id

. I n this case , the undisputed summary -judg ment evidence shows that the Fa rmers did not sell any cotton in 2006,

Be cause we conclude that section 74.102(5) is unambig uous, we do not consider whether 9 any interpre tation of this provision by the Texas Depa rtment of Ag riculture is entitled to defe renc e from this court. See Railroad Comm’n v. Texas Citi zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 625 (Tex. 2011). 16direc tly or i ndirec tly

. Thus, in 2006 the Fa rmers did not re ceive “income f rom the sale of cotton”

a n d w e r e n o t “ e n ti tl e d to s h a r e in th e p r o c e e d s f

r o m th e s a le o f th e c o tt o n . ” A c c o r d in g ly , th e F a r me r s

wer e not cotton g rowe rs under section 74.102(5) of t he agr iculture code i n 2 006, and they are not subject to the 2006 assessment levied by t h e Fo u ndation. Consequently , the trial court err ed in
g ranting the Founda tion ’s m otions for summary judgme nt and deny ing the Fa rmers’ motions for
summary judgme nt.

CONCLUSION I n e a c h c a u s e , w e r e v e r s e th e tr ia l c o u r t’ s s u mm a r y ju d g me n t in f

a v o r o f th e F o u

n d a t i o n and re nder summar

y judgme nt in favor of

the Fa rmers.

__________________________________________ Diane M. H enson, Jus tice

Be fore J ustices Pury ear , Henson a nd Goodwin Reverse d and Rende red Filed: Jul y

25, 2012

17