*1 TEXAS BOLL WEEVIL ERADICATION INC.,
FOUNDATION, Appellant,
v. LEWELLEN, Witten,
Eddie Jack F. El Hayes, Allison,
liott Scott Chris Lewel
len, Randy Falkenberg, Ricky Biggs, Burrus, Igo,
Charles Kevin and Mark K.
Gunter, Appellees.
TEXAS BOLL WEEVIL ERADICATION
FOUNDATION, INC., Appellant, Arroyo Farms,
Jack ABBOTT d/b/a al., Appellees.
et 96-0745,
Nos. 96-0839.
Supreme Texas.
Argued 1996. Nov. April
Decided
Opinion Denying Rehearing 9, 1997.
Oct. *3 Dow, Thornton, Small,
Ed Ana Kirk Matt Austin, Appellant. for Evans, Owen, Lyle, Paul Anna Rudd F. Plainview, Ratliff, H. H. William Shannon Pope, Bingham, Knisely, Patricia D. Marc O. Austin, in No. 96-0745. Appellees for Neil Randolph Whittington, Harlingen, K. McAllen, Brisack, Norquest, E. A. Chris Owen, Plainview, H. Rat- Rudd F. Shannon liff, Knisely, Bingham, William H. Marc O. Vervil, Austin, Pope, Partida D. Deborah A. Appellees 96-0839. in No. PHILLIPS, Justice, Chief delivered IV, I, II, opinion and of the Court to Parts V, OWEN, Justice, joins. in which BAKER, Justices, join GONZALEZ and I, IV, opinion Parts and V Court’s Justice, HECHT, judgment. joins opinion and in Parts of the Court’s IV and V ENOCH, CORNYN, judgment. ABBOTT, Justices, join in SPECTOR and I, II, opinion. Parts IV the Court’s Subchapter Agriculture of the Texas 74D (the Act) provides Code for the creation Boll Cotton Growers’ Weevil operation an “Official Cotton Growers’ Boll Official Agric. Subject to Eradication Foundation. See Weevil Eradication Foundation.” directly §§ 74.101-74.127.1 Instead approval from the affected cot- referendum Code Foundation, however, Legis- creating the growers, this is authorized to ton merely lature the Commissioner authorized operate programs weevil boll eradication Agriculture certify nonprofit orga- some Appellees the cost. assess the representing cotton to cre- appeals, nization these consolidated who are direct propose geographic ate the Foundation growers subject to the Foundation’s Agric. declaratory zones. See jurisdiction, judgment eradication filed ac- 74.103(a). creating The Act authorizes the challenging tions the Foundation’s assess- variety organization or the Foundation conduct ments on a of constitutional and stat- *4 grounds. proposed in each eradication zone utory trial in each referenda The court case (“zone referenda”) to whether enjoined determine invalidated the assessments and an growers those to establish cotton desire their collection. weevil eradication zone. See id. official boll the We hold that assessments levied the § the Contemporaneous with zone 74.105. fees, regulatory rather Foundation constitute referendum, to a growers the ai’e also elect taxes, not on than and thus are taxes an represent to them on the Founda- member pursuit agricultural violation of Article growers § If the tion’s board. See id. 74.106. 1(c) VIII, Section of the Texas Constitution. zone, vote to a their establish board Act, We hold that the on its face further 74.105(d). § selection is without effect. Id. applied appellees, to violate the as does not Act, right equal protection the initial has under the Under the once zone United States or Texas been created and the first board member Constitutions. elected, growers ap- the of that zone must conclude, however, do Legis- We that the prove the assessment to fund the eradication unconstitutionally lature an broad made del- Thereafter, subsequent at a referendum. Foundation, egation of a the is authorized the board to determine II, private entity, thereby violating Article' partic- for each additional assessment needed the Section 1 of Texas Constitution. For zone, approved by which must be the ipating reason, reaching without all the other 74.113; § growers at a id. referendum. See arguments statutory constitutional 3.3(e). § The Founda- Admin. Tex. Code by appellees, judgments raised we affirm the only collect if the may the assessment of the trial courts. passes. See Tex. assessment referendum Agric. 74.113(e). § Approval of a zone Code I a requires of each vote of the assessment in the either two-thirds of cotton A zone or of those who farm more than one-half dispute among parties There is no acreage zone. id. the cotton See appeals these or the amici curiae numerous 74.113(d), 74.114(g). §§ The election Boheman, grandis that the Anthonomus an members, hand, requires board on other weevil, commonly insect known the boll 74.114(c)(2); only § plurality a See id. vote. major presents a economic threat to Tex- 3.6(c). § 4 Tex. Admin. Code Agric. industry. as cotton See Tex. Code pest, govern- § 74.001. This Texas The Foundation exercises broad entered powers. being an from Mexico causes estimated mental Besides authorized $20 crop year. proposed eradication every million in loss in Texas See conduct elections Organization Analy- Agric. (2), zones, 74.108(a)(1), § House Bill Tex. Code Researoh (Feb. may 1993). To an area to a zone under sis of SB 30 at aid board add weevil, approved by if certain circumstances refer- ongoing against battle boll cotton in the area. Id. Legislature in 1993 authorized the creation of endum of 8, 1995, May pest. cotton extended the Founda- another Act 1. In R.S., § Leg., jurisdiction ch. 1995 Tex. Gen. tion's include eradication 74th bollworm, pink "pectinophora gossypiella,” or Laws 1976. 74.108(b). § The board what program. determines the success an eradication Id. programs § eradication §§ conduct. Id. 74.118. See 4 Tex. Admin. Code 3.50- 74.108(a)(4). may impose Foundation exempt 3.57. The Commissioner cot- penalties payment for late of assessments. grower payment ton of the Founda- 74.115(a). §Id. A grower cotton fails to who penalties payment if tion’s assessment would pay an within days assessment ten its due $15,000 grower than leave with less tax- destroy crop. date must his cotton Id. able income. Id. See 4 74.116. Ad- 74.115(b). so, grower If the do fails to his §§ 3.70-3.81. min. Code crop automatically is public declared a nui- expend “programs ap- revenue sance. Id. On the Foundation’s recommen- proved by the commissioner as consistent dation, notice, Department and after subchapter applicable with this provi- it, Agriculture destroy must if even not in- Agric. sions constitution.” weevils, fested with boll cost. the owner’s 74.109(h). Finally, the Commissioner must addition, Id. grower violates who determine when of boll elimination weevils is (including, presumably, failing statute longer necessary prevent no economic loss pay failing destroy his assessment 74.102(6), growers. §§ to cotton Id. 74.112. crop payment days own if ten more than passed, After referendum has the cotton late) guilty a Class C misdemeanor. *5 growers in the zone must be allowed to con- 74.126(b). § delinquent Cotton which a “periodically” duct referenda under the grower already produced has harvested prescribed terms the initial referendum to 74.115(c). subject § is Repre- to a lien. Id. determine whether to their continue assess- pri- sentatives the may of Foundation enter ments, 74.105(f), although §id. says the Act property vate which is to eradication about nothing how often these referenda permission any pur- without the owner’s for addition, In the must occur. Foundation Act, treatment, pose including under the “the must conduct a on whether referendum to monitoring, growing of cot- destruction petition program discontinue the on the of at plants.” § ton or host Fi- other Id. 74.117. forty percent least of the cotton nally, the Commissioner and the Foundation 74.112(f)—(i). noted, §Id. As the zone. how- may adopt carry necessary rules to out the ever, may the Foundation continue collect 74.120(c). purposes § of the Act. Id. previously approved pay assessments its While approve a zone must 74.127(c). obligations. § financial Id. assessments, they their approve do not the type program of amount eradication or the of by
debt incurred Foundation finance B it. These matters are left Founda- prohibits Because the Texas Constitution If program tion’s discretion. eradication pursuits, occupation agricultural taxes on see reason, is for discontinued the Founda- Const, 1(c), VIII, § art. lawmakers fo- collecting continue “as assessments constitutionality on the cused Act necessary obligations pay the financial considering passage. when its See Senate 74.127(c). Id. foundation.”. (Feb. 1993) 1); (tape on SB 30 Debate Analy- Act, by Under the some is retained Reseaech Bill House ORGANIZATION (Feb. 24, 1993); Agriculture. Commissioner For exam- 30 at 9 SB sis of Senate ple, the can number change Foundation Natural Resouroes Publio Committee Hearing (Jan. 25, 1993); positions board the eradication zone on SB 30 Senate Hearing Agriculture representation on the board with the on on Subcommittee (Jan. 74.107(b). 1993). approval. apparent Commissioner’s Id. SB at- In prob- tempt preempt any The Commissioner must also make rules to constitutional lems, protect property pesticides Legislature life and several refer- included XVI, aspects of programs. other eradication to Article Section 68 the Texas ences section, §§ which 74.120. 3.20- That creates a Constitution. Tex. Admin. plant- exception agricultural may prohibit 3.24. on The Commissioner limited to the ban taxes, ing jeopardize occupation provides: in zones cotton when it would added). 74.113(a) Although, as (emphasis legislature may provide the ad- The below, part Foundation II discussed and fiber in this state vancement food XVI, rely now on Article Section does not providing representative by associations ap- support programs, eradication producers authority to agricultural with attempted to mold that the pears collect such refundable assessments that language of Act to fit within product approved be their sales provision. constitutional All col- producers. revenue referenda solely pro- lected shall used finance C research, marketing, promotion, grams Producers, May Texas Cotton In relating commodity. and education to that Inc., representing nonprofit organization Const, XVI, § (emphasis add- art. growers, petitioned the cotton Commissioner ed).2 dispute parties do authority to create Foundation. purpose pest Act eradi- primary pro- petition, Texas Cotton Producers cation, purposes not one of the state nine zones around the posed eradication Legisla- expressly listed in Section provided board ture nonetheless declared statute: mem- corresponding consist of a nine would of a boll The creation and use weevil eradi- Producers further bers. Texas Cotton provide cation foundation as a vehicle to proposed creation of the “[o]n vided governing for assessments and boards growers’ boll weevil eradication official to establish eradication zones in order initial will be foundation TCP the board suppress and eradicate boll weevils and pending of TCP con- appointed the board pests other cotton with the consistent of the board election.” duct goals and revenue un- uses of established is consistent the nine-member board While XVI, Article the Texas der Section 74.103(b)(2), requirements of section *6 Constitution. six, nine, twelve, permits or fifteen which Ageic. 74.101(c). In its “Find- Tex Code board, authorizes person the statute never Policy,” Legisla- ings and Declaration the ini- creating appoint the organization the that ture further declared flaw, Despite the this tial Foundation board. out, carry develop, there exists a need to Pro- certified Texas Cotton Commissioner participate programs and in of research Sep- In to create the Foundation. ducers control; insect such as and mar- disease incor- Producers tember Texas Cotton keting pests in inter- show low risk nonprofit as a porated the Foundation Texas cotton state and intrastate movement of appointing nine corporation, members commodities; promotion pest-free cot- purportedly represented each who board which market de- ton commodities increase The proposed nine eradication districts. mand; raisers, and education cotton re- has six zone Foundation since conducted users, regulators, policymakers, ferenda, and growers cotton and in instance the each public general pests per- on the effect of on representative their as board elected cotton, yield, utility, marketing, its its previously appointed Texas Cotton son promotion.... proposed and its zone. represent Producers meantime, appointed remaining In AgeiC. 74.101(a)(2) (emphasis Tex Code apparently on voted all Foundation members added). Also, requires Foun- the statute matters, setting including the of assessments in an assessments dation recommend expenditure of funds. and programs to “finance amount sufficient research, promotion, April Foundation conducted marketing, and edu- In proposed High in Plains production to increase the referendum cation calculated Ageic. Zone, comprises all Eradication which use of cotton.” and Code pro- marketing response and provision adopted producers in to fund research was 1983 in 2. This Mercantile, assessments, Texas Inc. v. grams. to Conlen Grain The held Bd., Sorghum refundable, S.W.2d 620 prohibited Producers though Grain constituted a even Conten, (1975). In we reviewed the constitution agricultural pursuit. occupation tax on an against sorghum ality grain of assessments levied parts thirty judgment plaintiffs West Texas counties. The awarded the assessments growers approved they cotton creation of the paid, attorneys’ together had their zone, approved following fees, and also maxi- permanently enjoined the Founda- mum assessments: levying further assessments per against
A planted plaintiffs. ap- maximum of The cotton Foundation $1.25 Castro, Court, in Armstrong, Bailey, pealed acre directly accept- Coch- and we ran, Smith, Lamb, Parmer, jurisdiction. Deaf Randall ed See Tex. Gov’t Code Tex.R.App. Counties, 22.001(c); and Swisher P. 140. per planted
A maximum of cotton $1.25 acre per pound of CFSA $0.0075 [Con- D Agency] solidated Farm Service estab- April Foundation conducted yield per lished planted cotton acre proposed referendum in the Rio Lower Briscoe, Floyd, Hale, Crosby, Hockley, Zone, Valley Grande Eradication com- Lubbock, Lynn, Terry and Yoakum coun- prises nine South Texas counties. The cot- ties, and zone, growers approved ton creation of the per planted A maximum of cotton $1.25 following they approved and the October an per pound acre and $0.0125 CFSA es- per irrigated assessment of acre on land $18 yield per planted tablished cotton acre in per unirrigated on acre land. One $12 Andrews, Borden, Dickens, Ector, Gaines, later, however, year petitioned Garza, Howard, Kent, Martin, Midland and another referendum cancel the Motley Counties. Agrio. 74.112(f). gram. See following September, grow- ten cotton passed This in January referendum High from the ers Plains Zone sued the thus terminating program the eradication County, district court Hale Valley the Lower Rio Grande Zone. challenging validity the referendum however, Foundation, grow- billing continued plaintiffs and assessments. The contended assessments, solely ers for the to retire the occupation that the an assessments were tax already million $9 debt incurred for eradi- agricultural pursuit, the assess- cation. right equal ments further their violated In July thirty-one Lower Rio Grande protection under the States United and Tex- Valley sued the Foundation Constitutions, penalty provisions that the *7 enjoin collection of the assessments.3 The the act right process violated to due the plaintiffs that the contended assessments the under United States Constitution and the occupation agricultural pur- were taxes on an right open courts the Texas under Consti- suit, procedural violating both and substan- tution, Legislature improperly and that the process tive due under the United States delegated authority to the Foundation in vio- procedural Constitution and and substantive separation lation Texas Constitution’s due course of law under the Texas Constitu- powers plaintiffs The mandate. also al- tion, and statute that the vested unreason- that, leged even if the statute is constitution- able in and excessive the Foundation. al, by the Foundation the violated statute evidentiary hearing, After an the trial court High Zone, improperly defining by Plains the temporary injunction enjoining rendered a assessment, proposing a nonuniform assessments, collection of the the which subsequent providing not for referenda on appealed Foundation this directly also finally the referendum Plaintiffs al- ballot. jurisdiction accepted Court. We and consoli- that leged comply the Foundation did not appeals. dated the two Open the Meetings Act. discovery, After trial granted court II summary judgment plaintiffs, for the without stating specific Act, grounds. growers4 argue The court’s The that final Eighty-five growers subsequently High 4. additional "Growers” refers Plains and Lower plaintiffs, Valley Rio Grande joined plaintiffs. unless otherwise the suit as indicated.
461 them,5 Thus, merely regula- applied if the are and as Article assessments face violates contends, fees, they 1(c) Constitution, VIII, tory as the Foundation of the Texas Section VTII, prohibited by Article Section in not provides “[p]ersons are engaged that 1(c), applicability restriction pursuits agricultural shall mechanical and XVI, is Article Section 68 immaterial. required pay occupation tax.” never be The contend assessments pur a “primary have articulated We exception fall in Article do not under the determining an as whether pose” test XVI, because, rea- among Section 68 other occupation regulatory tax or is an sessment sons, as the assessments are not refundable fee: required provision. generally rec- principle The of distinction Because the Foundation concedes that when, from consideration ognized is that refundable, assessments are not it does whole, primary as a statute XVI, attempt support them under Article provided is the purpose of the fees therein Instead, argues 68.6 Section revenue, raising of then such are fees regulatory im- that the assessments are fees taxes, occupation regardless fact police posed power, under rather the State’s they designated. the name which are occupation than taxes. hand, primary purpose other if its theOn regulation, appears to be that of then noted, Legislature As refer license fees not taxes. fees levied are XVI, Article 68 times enced Section several Comm’n, v. 151 H. Rouw Co. Texas Citrus However, reject growers’ in the Act. we (1952). 231, 182, 247 234 See S.W.2d argument comporting that an assessment not 433, Cooper, v. also Hurt 130 Tex. XVI, automatically is with Article Section 68 (1937). 896, money is Because Legislature That the void. have relied is fungible, this determination not controlled primarily provision on that constitutional go special by whether assessments into preclude considering does not us from wheth general or into the revenue. See fimd State’s it is valid on basis. v. er another See Cain Galveston, 1, City 97 Tex. Brown 1018, 1021(Tex. City Tyler, 261 S.W. Com. (1903). 488, 496-497 S.W. judgm’t App.1924, adopted); v. Tex Bullock (Tex. Ass’n, Skating course, as 583 S.W.2d all assess Of almost fees or n.r.e.). Civ.App.—Austin writ ref'd to raise ments intended revenue. legis has broad discretion to critical issue whether assessment police power, late under its must of that and we intended raise revenue excess City uphold legislation long justi reasonably regulation. such as it is needed Worth, 618; by a Producers legislative purpose fied rational Fort 83 S.W.2d Antonio, pro City specific does not violate a constitutional San Antonio v. San Ass’n of Inc., Project Principle, (Tex.Civ.App.—San An vision. See State v. 326 S.W.2d n.r.e.). (Tex.1987). example, For Fees tonio writ ref'd *8 Association, imposed against industry, the court held that persons are in an Producers pro only reasonably inspection imposed against milk when an amount neces fee fee, occupa sary regulation regulatory to fund of that was a not an the State’s ducers See, occupation e.g., undisput industry, are not taxes. tion tax. 326 S.W.2d 324. The Co., City Refining Fort v. 125 evidence reflected that the annual cost Worth ed Gulf (1935). $38,000, 512, 610, in- while the inspecting 83 617-618 dairies was Tex. S.W.2d Texas, curiae, challenge, challenging party Credit 6. One amicus Farm Bank 5. Under facial statute, terms, refundable, always argues contends operates unconstitutionally. are and that the assessments XVI, 68, See Texas Workers' qualify Article be- thus under Section Garcia, Compensation v. Comm'n 893 producers eradication cause discontinue the 504, (Tex.1995). applied” 518 Under an "as recover, pro program and referendum challenge, challenging party contends basis, any suiplus funds. See rata Agric. constitutional, statute, op although generally 74.112(e). Because we conclude that Code unconstitutionally be as to or her erates him fees, regulatory we do not constitute assessments challenging party’s particular cir cause of argument. address at 518 n. 16. cumstances. Id. 462
spection
generated
$30,000
fee
portance
about
of cotton to this
economy.
State’s
annually.
hand,
Id. On the other
the court See
weevil still causes over $20 increasing knowledge respect to Tex- per year million in crop losses. See House as citrus by-products, fruits and Organization Analysis of SB Research Bill tecting pests Texas citrus fruits from (Feb. 1993). 30 at 5 parties None of the finding diseases and of new uses for Texas disputes Legislature’s amici character by-products citrus fruits and and of im- ization of “public the boll weevil as a nui proving quality yield of such fruit Agrio. sance.” 74.001. by-products. The abatement of nuisances is within Although S.W.2d at 232. some of these regulatory power (i.e., diseases) Pope protection pests State. See uses Houston, City eradication, comparable 907-908 the Court n.r.e.). (Tex.Civ.App.—Waco writ specifically ref'd Rouw did focus on whether *9 State, In v. Williams pest might Tex.Crim. control appropri- alone constitute (App.1943), S.W.2d 177 police power Indeed, the Court of Criminal regulation. ate the Appeals, in reviewing validity planting the among Court drew no distinction the various restrictions at controlling pink statute, aimed the programs presum- the allowed under bollworm, ably noted the extreme economic im- because no there was evidence as to how VIII, county, city 1(f). may levy occupa- 7. A or town not Because the State had not taxed owners, exceeding tion tax one-half City prohibited of the tax levied billboard levying any occupation the was occupation. the State on that against See Tex art. tax them. Const, simply being among facially invalid be the assessments were hold the statute allocated Instead, unconstitutionally applied statute them. the Court viewed the cause it be 1) purposes: yet having overriding two adver- which not hypothetical as facts have under tising enlarging and for Texas Compensation markets arisen. See Texas Workers’ 2) fruit; (Tex. funding Garcia, and citrus research benefi- 893 S.W.2d Comm’n 1995). industry. cial to the citrus See 247 at purposes, Considering these the Court growers argue the Act The also that pri- that concluded the statute was intended regulatory be because cannot considered marily regu- to raise rather revenue than to all uniformly against are assessments levied industry. late the citrus zone, producers regardless in a Conlen, the Court assess- invalidated in producer’s crop actually whether that against sorghum grain produc- ments levied disagree. with boll We Sev fested weevils. ers, concluding they agricultural were growers’ associations assert eral cotton occupation taxes. Board Sorghum The Grain that, briefs because the boll weevil amicus required to
was use the assessments for field, may migrate from field to a successful out, developing, carrying and participating program be on must coordinated eradication research, programs insect disease and regard regional basis without to individual control, control, education, predator proposition, which the infestation. This promotion, designed encourage the not in the growers dispute, do reflected duction, marketing, [grain sorg- use legislative scheme. hum]. Valley Rio We note the Lower Grande Rouw, 621-22. As in factually distinguishable case is in that specifically did not consider whether being retire a assessments there are used to standing “disease and insect control” alone loan, ongoing rather to fund eradi- bank than might regulatory function. considered However, negate the cation. this does not Instead, as Court viewed the statute regulatory character of assessments. primarily promote grain intended dispute money There is no that the sorghum industry, analogizing it to the stat- Rio for the Lower Foundation borrowed ute invalidated in Rouw. Id. at Ac- 623-24. Valley was used for Grande Zone eradication. cordingly, neither nor stand Rouw Conlen program for That funds were advanced proposition for the that assessments levied institution, lending paid rather for by a than solely public eradicate nuisance consti- assessments, directly not from the does occupation tute taxes. change purpose of the assess- essential point out that the Act is ments. Rather, not confined to eradication. reasons, foregoing For the hold we Foundation is also authorized to use High Plains the assessments levied programs funds for “other consistent with Valley Lower Rio Zone and Grande policy the declaration of Section stated fees, regulatory occupa- rather Zone are than Agmc. 74.101 of this code.” Act thus not violate tion taxes. The does 74.113(f)(3). appears 74.101 Section 1(c) VIII, Section of the Texas Con- Article contemplate promotion marketing pro stitution, facially applied as either or grams like the at issue in ones Conlen growers. however, today, Rouw. We need not decide implementation whether Foundation’s Ill promotional marketing programs would Act, argue undis also that the violate the Texas Constitution.8 The that, them, their applied violates puted except evidence reflects face and overhead, procedural process under the percentage right small all assess due right to spent ments on eradication. We United States Constitution their XVI, programs ply Article Section 68. 8. The Foundation concedes that other *10 "arguably” than eradication would have to com- open courts under the Texas Constitution The also Department statute allows the to because it adequately does not perfect allow them to delinquent a lien on a grower’s har- challenge 74.115(c). the Foundation’s assessments. § vested cotton. See id.
The Fourteenth Amendment to the While the question United raise serious prohibits States Constitution states from as to whether “de the Act violates their constitu- life, priv[ing] any person liberty, prop rights or tional open procedural to courts and erty, process process, without due attempt due I do not U.S. to resolve this law.” XIV, § amend. process Const., This due issue because the Court holds the Act uncon- guarantee requires provide states grounds. to a mean stitutional on other ingful postdeprivation remedy, and in some predeprivation instances a remedy, per to a IV challenging son validity of a fee or as Act, complain The also that the on TRibe, sessment. See LauRence H. Ameri them, its applied face and as violates their Law 10-14 at 720-21 right can Constitutional I, equal protection under Article (2d 1988). ed. The Texas guar Constitution Section 3 of the Texas Constitution and the
antees that
open,
“[a]ll courts shall be
and Fourteenth Amendment to the United States
every person
him,
injury
for an
done
his
Act, producers
Constitution. Under the
in a
lands, goods, person
reputation,
or
shall have
participating
may
zone
be assessed even
remedy by due course of law.” Tex. Const.
though they have no actual boll weevil infes-
I, §
art.
guarantee
18. This
ensures citizens
tation,
producers
while
in another zone with
“unimpeded
access to courts
by unreasonable
infestation
pay no assessment because
financial barriers.” Texas Ass’n
Bus. v.
Also,
participate.
that zone elected not to
Bd.,
Texas Air Control
852 S.W.2d
producers
may pay
in different zones
(Tex.1993). Thus,
Legislature may
different levels of assessments.
require
taxpayer
prepay
a tax before
Legislature
has broad discretion
challenging
validity.
Id. at 449-450.
enacting
legislation
social or economic
provides
The Act
grower
“[a] cotton
classify
suspect categories,
does not
on
such
pay
who
fails
assessment levied under
race,
impinge
rights.
on fundamental
subchapter
subject,
when due
equal protec
Under both federal and state
notice,
after
penalty
reasonable
to a
set
analysis,
legislation
long
such
valid as
Agric.
74.115(a).
board.” rationally
legitimate
as it is
to a
related
state
grower
“A
pay
who
fails
all assess-
City
interest. See
Cleburne v. Cleburne
penalties
ments and
day
before the 10th
after
Center,
432, 440,
Living
U.S.
S.Ct.
receiving
delinquency
notice of the
shall de-
3249, 3254-3255,
(1985);
465 A geographic treats because a law different differently, political regions or subdivisions legislative power delegation of “The political or because it allows subdivisions concern_” Aranson et Peter H. is an old statutory adopt reject a discretion to or Delegation, Theory Legislative A al., Richards, at 311- 868 S.W.2d scheme. See (1982). century A be- L.Rev. CORNELL Act, on its face 312. We thus hold that the ar- independence, John Locke fore American applied growers, does not vio and as imperative pre- ticulated the theoretical right equal protection. late their legislative in the serving legislative power Next, catego- growers assert that the branch: sub- by Legislature violate ries drawn Legislative cannot transfer process under the Fourteenth stantive due Making Laws to other Power of Constitu- Amendment to the United States Pow- being delegated a For it but hands. they due tion. As do not offer substantive it, have People, they, who er from the from, process analysis that or affords differs And pass it over to others.... cannot than, equal protection greater relief their said, people have We will submit when the reject argument, we also this claim.9 by rules, by Laws made govern’d and Moreover, growers contend Forms, Men, Body in such no such and classifications, that, of the statute’s because say Men shall make Laws else can other special or law in violation of Article local them; people be bound nor can the III, A of the Texas Section 56 Constitution. are Enacted any Laws but such as geographic specific local law is limited to a Chosen, those, Autho- they have whom State, region special while a law is power make Laws for them. The rized to particular persons limited to class distin from the Legislative being derived guished by some characteristic other than voluntary People by positive Grant geography. Maple Run at Austin Mun other, Institution, no than what the can be Utility Monaghan, ic. Dist. v. conveyed, being positive Grant (Tex.1996). Legislation does Laws, Legisla- to make and not to make III, 56, however, as violate Article Section tors, power to Legislative can have no long as there is a reasonable basis for its laws, making Authority of transfer their above, explained classifications. As place it in other hands. Act satisfies this test. Locke, TREatise of Govern John Second Treatise) (2d (Cambridge V Uni ment 380-381 1960). un versity prohibition on Press Finally, growers’ argument we turn to the lawmaking power warranted II, Legislature that the violated Article Sec- separation pow principle “rooted Constitution, requiring tion 1 Texas tripartite system of our ers that underlies separation powers legisla- between the States, Mistretta United Government.” branches, tive, executive, judicial by im- 361, 371, 109 S.Ct. 488 U.S. authority properly delegating governmental (1989). Con The United States L.Ed.2d particular, grow- to the In Foundation. legislative power expressly vests stitution private ers contend that the Foundation is a I, 1,§ art. Congress, see U.S. Const. con- entity directors are neither whose legisla similarly Texas vests Constitution they by meaningful strained before act stan- Legislature. See tive in our they accountable after act dards nor made Ill, Thus, II, 1; art. art. administrative, judicial, popular review. Const. or to “Congress permitted is not to abdicate response, the Foundation contends that legislative others the essential transfer Legislature’s guidelines and the both the A.LA. with which it is vested.” Agriculture’s supervisory functions Commissioner States, Poultry Corp. v. United authority constitutionally adequate. Schechter growers' dele- Foundation. The Valley growers also Rio Grande 9. The Lower argument in Part V of this gation is discussed argue federal sub- that the violated overly opinion. process by delegating broad stantive due *12 466 529, (in 495, 837, 843,
U.S.
55 S.Ct.
79 L.Ed.
nonpartisan
both multifarious and
the
(1935). Likewise,
sense)
1570
in our State “[t]he
highly political ...
it is small won-
power
pass
Legisla-
laws
rests
der that
have
quali-
we
almost never felt
ture,
power
delegated
and that
cannot be
second-guess Congress
fied to
regarding
some commission or other tribunal.” Brown
permissible degree
policy judgments
of
Co.,
296,
v.
Refining
Humble Oil &
126 Tex.
executing
ap-
that can be left to those
(1935).
935,
941
plying the law.
Yet,
truisms,
many
like
these blanket
Mistretta,
415-416,
cert.
625,
Arizona v. Cali
(Rehnquist,
dissenting);
347
74
U.S.
S.Ct.
98
Co.,
(1954);
Trapp
fornia,
Shell Oil
546, 624-627,
L.Ed. 1084
373 U.S.
83 S.Ct.
(1946);
Texas
145 Tex.
198
424
(1963)
S.W.2d
1510-1512, 10
(Harlan, J.,
L.Ed.2d 542
McCraw,
Armory
National Guard
Bd. v.
132
Moreover,
dissenting
part).
“[m]any
dis
(1939);
Brown v.
126
627
S.W.2d
tinguished
judges
scholars
[have
be
Co.,
Refining
Humble
&
Oil
so
come]
concerned about the enormous dis
(1935); Housing
Auth. v.
S.W.2d
cretionary power
agencies
they
[have]
Higginbotham, 135 Tex.
B
Supreme
States
While the United
proper legisla-
as the issue of
As difficult
involving
de
many statutes
some
be,
upheld
has
the considerations
delegation
tive
see,
City
private delegation,
e.g.,
gree of
complex
are even more
when the
City Enterprises, 426 U.S.
Eastlake v. Forest
department
agency
or
is made not to another
(1976);
668,
2358,
U.S. S.Ct. 84 L.Ed. elec- Inc., Royal Co-op., either, United States v. Rock 307 suffrage strictly tions as the limited 533, 993, (1939); § U.S. 59 S.Ct. 83 L.Ed. eligible growers. Id. 3.1. Wallace, 379, Currin v. U.S. S.Ct. Similarly, statutory provisions as to (1939), L.Ed. state courts have fre governmental powers suggest public both See, quently provisions. invalidated such private exempts attributes. The Act Dick, e.g., 256 Kan. 887 P.2d Sedlak Foundation from taxation and affords state (1995) (striking 1134-35 down statute indemnification its board members. See allowing committee of union and business Agric. 74.109(d). § The Founda representatives Compen Workers’ select members, officers, employ tion’s board members); City sation Board Chamber immunity except gross ees have official Lien, Inc., lain v. R.E. 521 N.W.2d conduct, negligence, dishonesty. criminal (S.D.1994) (striking requir 132-133 down statute See id. 74.110. The Foundation must ing city incorporate American Institute of adopt publish rules in accordance part Architects’ standard form as of munici 74.120(c), requirements, with state see id. contracts); pal Stewart v. Utah Public Serv. be dissolved the Commissioner 1994) Comm’n, (Utah 885 P.2d 775-776 fulfilled, purpose when its has been see id. (striking allowing public utility statute down (or board) 74.127, and it at least its regulation plan adopted by to veto rate Pub Chapter Texas Govern Commission). Unfortunately, lic Service Code, ment Act. Id. The the Texas Sunset scholars have concluded that these cases do specifically denominates yet, together, not when taken evince a coher “governmental pur unit” for Foundation a
ent constitutional standard. When Professor poses immunity from suit under the Tort Davis issued second edition of his trea 74.109(f). Finally, Act. Claims tise, example, he his abandoned earlier dispute it is a Foundation does analyze private effort to the state law on *16 “governmental body” subject to the Texas delegations principles “because identifiable Open Meetings Act. See Tex. Gov’t Code (2d 3.12, emerge.” § do not at 196 ed. Davis 551.001(3). § 1978). Lawrence, supra also See begin analysis We thus our full recogni however, many purposes, For the Founda- that, if delegation at issue is to a AgRIC. agency. tion is not a state See private entity, we must craft our own criteria 74.109(d). Thus, § the funds the Code judge constitutionality. to expressly “not Foundation collects are state required deposited in funds and are not to be C 74.109(e). treasury.” the state We first address whether Act also not the Foundation to does public private entity purposes is a or for requirements, purchasing state or audit nondelegation ever doctrine. Before be required to take its board members are not ing subject authority, any grower to its will provision Finally, there is no oaths of office. participate in already right have had the to appeal from Foundation administrative deciding one or more whether to referenda decisions, imposed for except penalties as to zone, board, ratify the who to elect to the 4 Tex. Ad- nonpayment of See assessments. grow what amount is be assessed 3.57. min. Code acreage. pure er’s These referenda are not affairs, sum, ly private being according easy not find it conducted we do Agric. law, 74.105, public §§ categorize to state the Foundation as either a see 74.106, 74.113, private difficulty that- regula agency, under rather extensive or exist by many contemporary Ameri promulgated tions the Commissioner of with bodies. Cf. Ins., Dep’t §§ v. Texas Agriculture. 4 Tex. Admin. Code 3.1- can Home Assurance example, ap (Tex.App.—Austin n. 8 3.6. For the Commissioner (Texas denied) ballots, 3.4(a), Compen proves id. verifies the writ Workers’ results, 3.5(b), despite agency a state id. and issues certificates of sation Insurance Fund attributes). However, prevailing private courts election to the board candidates. various private dele- upon confer pri Does the statute universally delegation treated a as have only make rules but gates power not groups giv have been vate where “interested determination, particular law to individuals? powers apply en authoritative usually conjunction public with a adminis private delegates sub- Are the actions of Jaffe, agency.” supra at trative review, public judicial ject to no further or eases cited therein at 234-253. See also only upon attenuated stan- or to review (“Difficulties Lawrence, supra at 648 n. 4 the substantial evidence dards such as distinguishing public private between ac rule? rarely have arisen in the cases and need tors delegates by pro- private chosen Are us.”). long That the decisionmak- not detain consent, nomi- involving public cess elected, their decisions affect ers confirmation elected officials? nation or they represent, they exercise those private delegates sworn oaths Are the poliee power, government or that con office? power by strains their advance restriction or pecuniary private delegates have Do the see, all, subsequent review as we shall in the determinations to be interests assessing validity relevant made? private delegation; they keep but do im- power to define criminal acts or Is being private in Be considered nature. pose penal delegated? sanctions delegates Act cause the authoritative powers delegation Is the one of threaten- private parties, interested we conclude violence, ing monopoly the state’s or one private entity purposes it is a scope threatening the of a breadth and applying nondelegation doctrine. powers legisla- ultimate corrective ture? D if one of delegation, Is the administrative Now must we determine what standard resources, powers financial one in which apply private in determining whether powers delegates and their are defined appropriate. was Because of the objective according to a limited number of posed delegations additional risks such standards, ac- or is it rather one which proper separation pow- governmental powers to government cords the broad ers, a number of factors should be considered pick among prospective dele- and choose by reviewing Among suggest- court. those gates? by Professor *17 ed Jaffe are these: Liebmann, supra at 717-18. * Must the consent of an administrative recently, Lawrence Even more Professor point officer be in secured some proposed a similar list of “mechanisms that process? possibility might be used to minimize the * delegates Is the action of the reasonable? private delegate’s private interest will that a * Lawrence, decisionmaking.” su- overwhelm persons by Do all the to an be affected pra at 686. If these considerations in participate action its determination? questions, they would transformed into * statutory articulated Could a standard be as follows: roughly be improve lay or which “would the result * private delegates largely disin- Are the judicial the basis for control?” terested, like most arbitrators and some * procedures to Are democratic available consultants, they or do have scientific provide “unorganized groups—who may their private interest in the results of majority—with opportuni- even be a an decisions? ty” prevent oppression by orga- * private delegates Are the interests of the group? nized interest largely parallel to those of an alternate Jaffe, supra at See 247-53. actor, prevailing wage in rate public as laws, they diverge? or do Jaffe, attorney George Forty years after * delegations incorporate suggested weighing private Do the Liebmann these factors structure, as viewpoints into their regarding private delegation: all (Tex.App.—Austin National Electrical writ with the S.W.2d denied). Association, Light See also Central Power and National Fire Protection (Tex. Sharp, Co. S.W.2d “electrical con- whose members include 1996), curiam, manufacturers, App.—Austin per writ tractors, denied inspectors, utili- — - (Tex.1997). WL laboratories, ties, testing regulatory language, paraphrased This which is agencies, organizations, orga- insurance explanation part Professor Davis’ of one of a labor, groups”? nized and consumer * proposed five-part public for a test new dele private delegations Do the include all (2d standard, 3.15, gation at 208 ed. Davis structure, groups affected in their as did 1978), incorrect, is not but seems too conclu- early century twentieth fire loss sal- sory give in striking much assistance corps century vage or the nineteenth important proper balance between but com mining camp procedures? frontier claim Therefore, peting principles. interests and * May private the determinations of dele- prefer inquiries we to condense the various gates appealed by be or reviewed posed by eight scholars courts to these state? factors: * by Is one who is the actions of a harmed private delegate’s 1. Are the actions sub- private delegate fiscally entitled sue ject meaningful review a state responsible person entity, or laws agency gov- or other branch of state making private employers liable for the ernment? off-duty policemen they employ? acts of persons private 2. Are the affected * Are sufficient “to the state’s standards repre- delegate’s adequately actions guide delegate per- work and his process? decisionmaking sented haps permit judicial ac- review his private delegate’s power 3. limited Is tions”? rules, making delegate or does * private delegates Do the afford those apply particular the law to individ- also affected their decisions the same uals? types process guarantees as a state private delegate pecu- 4. Does the have a provide? actor would niary personal or other interest * private delegates possess special Do the public conflict with his or her qualifications training or for the tasks function? delegated to them? private delegate empowered 5. Is the Lawrence, supra at 686-94. impose criminal acts or criminal define generally From his fruitless examination sanctions? courts, private delegation eases state Pro- duration, Is the narrow generaliza- fessor Davis concludes: “The one extent, matter? worthy repetition be is this private delegate possess spe- 7. Does the likely simple one: Much more sus- training for the qualifications cial conferring tained than statutes delegated task to it? *18 upon private parties choice are statutes provided Legislature 8. Has the sufficient operation depends upon private action whose private delegate guide to the standards purposes which is which are taken inde- in its work? 3.12, § at pendent of the statute.” Davis emphasize at outset these We the (2d ed.1978). apply only private delegations, to standards by Legisla only articu not to the usual the The test that has been department of assessing agency ture to an or another by lated a Texas court the validi government. reviewing public delega ty private delegation of a is this: “The dele tion, by we to those factors set forth gation authority private entities adhere City Housing Authority legislative purpose if is discernible this Court lawful the arbitrary Higginbotham, 135 Tex. protection against the Dallas and there is (1940), Fur progeny. and its power.” Public Ins. exercise of Office Plan, thermore, analysis nothing in our should be v. Texas Auto. Ins. Counsel fees, 74.118, § he has suggesting provisions penalty of the Act see id. read what §§ 4 Tex. Admin. Code 3.50- pass would or would not muster were this a also done. See Likewise, public delegation. express we no 3.57. opinion any toas whether of the other statu- not, however, The could Commissioner tory dissenting jus- enactments cited reviewing criti- adopt any procedure for such pass
tices would or
would
constitutional
cal decisions as the amount
assessments
Thus,
way
opinion,
muster.
in no
our
does
adopted by
growers,
the total amount
fear,
dissenting justices
“ultimately
as the
eradication,
expended
the amount of
funds
on
threaten the heretofore
role of
established
Foundation,
or the re-
debt incurred
quasi-governmental
entities under Texas
payment terms for such debts. Nor has
law.”
tion incur. in the Foun- HECHT, Justice, joins. III of which dation had free rein to incur over million $9 HECHT, Justice, opinion filed an in in Valley debt the Lower Rio Grande Zone concurring part dissenting part, in in and and repaid by to be through there concurring judgment. assessments, years though several even those voted within 21 months to Justice, CORNYN, opinion an filed program. discontinue their eradication concurring part dissenting part, in in dissenting judgment, in recognize judicial We ENOCH, ABBOTT, Justices, SPECTOR and judgment branch should defer to the join. people’s representatives elected whenever possible, no suggest we means that a GONZALEZ, Justice, joined by BAKER, private delegation satisfy eight must all Justice, I, II, and in Parts and III recognize these factors. We also that courts HECHT, Justice, concurring part in should, possible, when delegations read nar dissenting part, concurring in rowly Thus, uphold validity. their in judgment. Edgewood, accepted we the State’s restricted engaged ag- Persons mechanical and reading giving of a statute the Commissioner pursuits shall never be re- ricultural rulemaking authority, of Education to hold quired pay occupation an tax. that, limited, authority conveyed no was Const, 1(c). VIII, art. violation of nondelegation doctrine. See II, exception join I With the of Part 740-41. also Kent v. opinion. Court’s The Court concludes that Dulles, U.S. 78 S.Ct. L.Ed.2d subchapter Agriculture 74D of the Texas (1958). Here, however, invalidity (the Weevil Founda- Boll Eradication delegation hinge does not one Act) above-quoted does not violate the provision might narrowly of the Act that provision by imposing occupation an tax on rather, interpreted; rep the Act as a whole agricultural pursuits. propriety of this overly legisla resents broad depends conclusion on whether the assess- private entity, violating tive to a truly regulato- ments the Act authorizes are majority eight factors we have set ry fees or are instead taxes. Rather than Therefore, forth.12 Act cannot stand. serving regulatory purpose, a clear the as- fit this of “tax-
sessments Court’s definition es,” nondelegation charges imposed by doctrine should be used which is “burdens is, sparingly, legislative when there Justice Cardozo’s of the State to raise disagree constitutionality. 12. We thus with the dissent’s conclusion presumption we have not accorded the Act a *21 476 regulatory fee. the assessments a The Court
money public purposes.” for Friedman York, any effectively charge holds that assessed American New 137 Tex. Sur. Co. of (1941); spent proper police purpose is a County see and for 151 S.W.2d 577 fee, contrary Shepperd, 156 Tex. 291 not a tax. This result Harris v. (1956). Moreover, S.W.2d 723 under Rouw and Conten. Guided these deci- sions, this in H. Rouw Co. v. can reach no reasonable conclusion Court’s decisions one Commission, prohibited 151 Tex. 247 Texas Citrus other than the assessments are (1952), occupation agricultural pursuits. and Grain & Mer taxes S.W.2d Conlen cantile, Sorghum Pro Inc. v. Texas Grain Rouw, we considered whether assess- Board, (Tex.1975), ducers S.W.2d the Texas ments levied fund Citrus Com- taxes, prohibited occupation assessments are programs regulatory were a mission and regulatory not fees. occupation fee or an tax. The Texas Citrus levy was authorized to assess- Commission I grown in upon ments all citrus fruit Texas. If the Boll Weevil Eradication Founda- proceeds were then earmarked for occupation tax on tion’s assessments are an purpose and research for the education growers, assessments violate the knowledge respect to increasing Tex- Const, art. Texas Constitution. See by-products, as citrus fruits and and 1(e). VIII, Having recognized the difficul- from, tecting pests Texas citrus fruits ty distinguishing regulatory between mea- finding diseases and of new uses for however, measures, we have sures and tax by-products and of Texas citrus fruits and specific articulated more test: yield improving quality of such [W]hen, from a consideration of statute by-products. fruit and whole, primary purpose of the fees as a revenue, provided raising therein added). Rouw, (emphasis at 232 S.W.2d occupation then fees are in fact tax- such purposes of noted that While we hand, primary other if its es.... On the laudable, that the as- were we held statute purpose appears regulation, to be that of occupation tax because sessments were an then the fees levied are ... not taxes. primary purpose was not to the statute’s Rouw, Although at 234. industry police regulate the citrus under acknowledges attempts apply Court revenue “in excess of the power, but raise standard, it nevertheless holds that the regulation for of the indus- amount needed imposed by the Foundation are assessments try.” Id. at 234. taxes, occupation regulatory but are fees Conten, Similarly, in we considered wheth designed program the costs of a meet levied the Texas Grain er assessments pursuant
undertaken to the State’s Board constituted an oc Sorghum Producers health, protect public safety, and wel- expend cupation tax. The Board was disagree. fare. 952 463. I S.W.2d purposes “developing, assessments for the that, concludes because “eradi- out, participating programs carrying proper is a cation of the boll weevil control, research, pre disease and insect pursuant to its regulation the State education, control, promotion, de dator assess- police power” and “the Foundation’s production, market signed encourage needed to ments are levied in an amount Conlen, commodity.” ing, and use are used programs, and fund the eradication added). De (emphasis at 621-622 regu- purpose,” the assessments are producers could obtain a spite the fact that Unquestion- latory fees. 952 S.W.2d at held, paid, assessment we still refund ably, conducting a boll weevil eradication Rouw, relying on our decision Legislature’s police program is within the Id. at occupation taxes. assessments were assessments power, and Foundation 623-24. efforts. entirely on eradication spent almost the Boll Weevil purpose police- for a The stated expenditure But of assessments Act is necessarily render Eradication power purpose does not *22 out, Furthermore, develop, carry participate analysis, in in its the Court programs of research such as disease and reg a critical distinction between a overlooks control; marketing insect to show low risk ulatory occupation regula A fee and an tax. pests of in interstate and intrastate move- tory fee also must bear a reasonable relation commodities; promotion ment of cotton of ship legitimate regulatory to the statute’s pest-free cotton which in- commodities Co., object. City Fort Worth v. of Gulf Ref. demand; crease market and education (1935); 125 Tex. 618 see S.W.2d raisers, users, regulators, cotton cotton City County Houston Harris Outdoor policymakers, general public and the on (Tex. Ass’n, Adver. 326-327 cotton, pests utility, the effect of its its denied), App.—Houston [14th Dist.] writ marketing, yield, promotion.... and its — denied, U.S. -, rt. 116 S.Ct. ce 74.101(a)(2) AgRIC. (emphasis (1995). Code Although L.Ed.2d one of added). Rouw and Conlen stand for the purposes legislation stated is state proposition that in- assessments made to eradication, view, my wide boll weevil in production crease particular and use of a reasonably assessments are not related here, crop, type as is the case are not the purpose. this “regulation” legitimately supports reg- that regulatory The assessments are not fees in ulatory purpose fee. If this is a exer- valid any they true police sense because are not manda- power, cise of the then Rouw and tory. referenda, Passage zone-specific Conlen hold that imposed assessments can be not infestation, police-power purpose dedicated to valid boll triggers weevil the assess- and still not regulatory be fees. Under the programs. ments and eradication The Foun- reasoning decisions, of these in the issue dation has held referenda five of the case is Legislature’s not whether the purpose originally proposed, nine zones and eradi- was a valid police power, exercise of its but suppression programs currently cation or are whether the assessment in furtherance of in only active three zones. the 254 Of coun- purpose that regulatory was a tax or a fee. Texas, only participat- ties in about 86 have Moreover, the assessments are to be made in ed, participating, presently are now or are an amount programs sufficient to “finance participate scheduled to in an eradication or promotion, research, marketing, and edu- suppression program. remaining cation production calculated to increase the counties, cotton are not 74.113(a). and use of cotton.” Id. No any provisions, including the Act’s assess- meaningful distinction exists between this ments, required participate and are not statutory language statutory and the lan- program, regardless presence of the guage describing purposes of the assess- boll weevils or the extent of infestation. ments we held unconstitutional Rouw and simply Statewide boll weevil eradication can- Conlen. accomplished not be unless all areas of infes- Conlen, In both Rouw and the statutes tation are program. included The fact expenditures allowed pest for insect con- the occurrence of eradication efforts held, trol. This Court without examining the hinges upon growers, a vote rather way spent, the assessments were infestation, finding than on a of boll weevil occupation assessments were taxes. It was argument regulato- belies the that this Act is necessary for us to review the allocation ry in nature. expenditures proposed because all the truly A regulatory designed measure uses, including any expenditures for insect operate eradicate the boll weevil in all would control, pest designed were to increase areas of the State infested with boll weevils. production respective crops. and use of the Legislature proclaimed the boll weevil Expenditures production to increase presents be a statewide nuisance crop simply type “regula- use not the industry economic threat to the cotton legitimately supports tion” that regulatory 74.001, AgRIC. otherwise, §§ By entire State. holding fee. without an ade- 74.101(a). quate convincing explanation, Although also proclaimed errs. eradication of the boll weevil to reasons, 74.001, that the Act For these I conclude necessity, it derailed public id. purpose. I regulatory have a there- does not objective by delegating to local the declared assessments violate determine, fore would hold that the on bases right 1(c) VHI, of the Texas Consti- article section eradication, wholly to the need for unrelated tution. they participate in the whether would permit growers opt
gram. The decision to II rational against for or eradication bears no *23 agree, urged by an amicus purpose, I also do not relationship regulatory Act’s to the curiae, are validated that the assessments purpose. By in and fact contradicts XVI, 68 of the Texas Constitu- article section police-power “necessary” delegating this XVI, provides: Article section 68 tion. making participation in the measure and may provide for the ad- approval, Leg- legislature contingent on voter gram in state vancement of food and fiber effectively nullified the Act’s stated islature representative associations of by providing objective. producers authority to agricultural with regulation the Act The burden of under refundable assessments on collect such crops growers whose many falls on cotton product approved sales as their many not fall on are not infested and does producers. All by referenda of revenue crops are infested. growers cotton whose solely be used to finance collected shall approved by referen- the assessment is Once promotion, programs marketing, re- dum, timely acreage file growers who fail search, relating to com- and education are sub- reports pay their assessments and modity. penalty collection ject array to a wide added). XVI, § (emphasis Tex. Const. art. AgRic. 74.115. measures. See Conlen, to finance assessments used Under just monetary include not These measures research, marketing, promotion, and edu sanctions, Agriculture in fact allow the but occupation taxes. The programs are cation crops and to file liens on cotton Commission XVI, create purpose article section 68 to destroy crops based on plow up cotton prohibition exception to the constitutional See id. Cot- Foundation recommendations. agricultural pur against occupation taxes on planted in an established ton that has been prod assessments on suits when refundable assessments zone and for which eradication marketing, pro are used to finance uct sales paid public labeled a nui- have not been motion, research, programs. and education in subject penalties, even to the Act’s sance However, language the clear of this under infestation. the total absence of boll weevil only if are valid provision, such assessments hand, grower the other See id. On prod- and are based on they are refundable weevils, with boll but cotton that is infested assessments are The Foundation’s uct sales. in no referendum in an area located fact, In the Foundation hás admit- neither. participate in passed, required is not has a refund of grower that a cannot obtain ted program and is an eradication any paid. has While assessments he Act’s enforcement mechanisms. the Foundation has remaining after funds inequitable in to this bur- Perhaps response grow- be returned been dissolved will den, in zones have established basis, this does not make pro on a rata ers the Foun- to cancel petitioned for referenda grower refundable. the assessments programs. Growers dation’s eradication rata share pro his receive a refund on cannot Valley Eradication Grande the Lower Rio Foundation ex- that the of the assessments Zone, in their efforts example, succeeded guarantee there is no pended, and program upon after remaining cancel their eradication funds will have Foundation time, crop fact, to a disastrous present efforts led at the Foundation’s dissolution. The Act is unconstitu- million dollars debt. in that zone in 1995. is several Furthermore, not based tional, however, it has failed to not because the assessments sales, the acre- are based on product it but purpose, but because its stated achieve Accordingly, grower. planted by the age any meaningful sense. “regulate” in does not XVI, Plainly put, article section 68 does not validate the eration of all these factors. assessments under the Act. Texas Boll Weevil Eradication Foundation is posse: pri- little more than a volunteers and
Ill appointed, vate entities neither elected nor privately organized supported by I concur in the judgment. Court’s Howev- er, reasons, majority group, the above-stated I would hold of some small backed law that the guidelines supervision, assessments levied the Founda- but without wield- occupation ing great power people’s prop- tion are unconstitutional taxes on over lives and agricultural pursuits. erty answering virtually but to no one. The only private, nonprofit corpo- Foundation is HECHT, Justice, concurring part ration, mostly by run individuals who have dissenting part, concurring appointed by never been elected or an elect- judgment. official, empow- ed but the has ered to conduct elections of cotton The Texas Boll Weevil Eradication Foun- *24 State, throughout in various areas the legislative power dation wields more determine whether and how to a conduct boll any privately less restraint than other char- program, weevil eradication to assess cotton nonprofit Texas, or, corporation tered in pay farmers millions of for dollars the tell, history far as I can of Texas. program, deposit those assessments its private Twelve other states have foundations purchasing own account not to state help weevils; eradicate boll none has—or auditing requirements, private to enter appears Legislature need—the property destroy healthy crops for fail- has ceded the Texas Boll Weevil Eradication assessments, pay ure to to borrow unlimited by Foundation. The Foundation is no means repay amounts and commit cotton farmers to typical agency; administrative is not approval, spend their debts without and to atypical even an agency; administrative it is money any supervision. without state complete anomaly gov- the structure of Legislature has broad discretion to dele- ernment. administrators, gate authority to but for rea- Thus, agree I with the Court explains, goes sons the Court too far. Official Cotton Growers’ Boll Weevil Eradi- AgRic. Act, cation Foundation procedural I also think that the Act denies Code 74.101-127, §§ delegates legislative power process by authorizing due the Foundation to II, the Foundation in violation of Article point destroy- enforce assessments to the Constitution, Section 1 of crops the Texas I ing opportunity protest but with no for or think this conclusion is much than hearing clearer before enforcement no realistic Court does. The certainly right Court’s decision wrongful charges to recover afterward. does not “threaten issue, the heretofore Although established the Court does not reach this quasi-governmental role of by entities under it is troubled it. Ante at 464. law”,
Texas sky-is-falling as the rhetoric of Finally, given for the reasons in Justice Cornyn’s opinion forebodes. Post at Justice opinion, agree I that assessments Gonzalez’s Holding extraordinary delegation occupation under the Act are an tax on cot- power to the Foundation unconstitutional is VIII, growers in ton violation of Article Sec- no more a threat to other administrative 1(c) of the Texas Constitution. agencies than it layer. is to the ozone reasons, join For all these I in the Court’s The vice in the delegation to the Founda- judgment holding the Act unconstitutional. simply tion does not lie in the fact that the that, private entity is a as I I conclude, privately managed. it is Nor is the simply pre- vice reading standards The Court’s Act makes the Legislature guide scribed closer than it If issue should be. broad, extremely everyone Foundation are or that the Act as one reads the involved largely public supervi- implementing Foundation is free of it has—Texas Cotton Produc- ers, Inc., directors, sion. The Court’s decision rests on a consid- the Foundation board (3)conduct establish referenda the De- Agriculture, the Commissioner zones. general coun- eradication Agriculture and its partment of sel, Legislature—the un- arguably (b) must petition A under this section power is clear. delegation of constitutional include: determine, Legislature as I can As far (1) description of each geographic delegation of au- has never made a similar zone, including a proposed eradication necessary to do so thority, and it was not proposed eradication zone separate this situation. Suppression High Plains Boll Weevil Lawrence Program Area and St. A Control Boll Weevil Cotton Growers passed by Act was Zone; 1993, 25, February signed was the Gover- (2) plan representation an initial 10,1993, March became effective June nor on zone on a proposed eradication for each 1993, 1, in 1995. Act of and was amended 12, 6, 9, consisting or 15 mem- board R.S., 25, 1993, Leg., ch. February 73rd bers; and by Act as amended 1993 Tex. Gen. Laws (3) required information other R.S., Leg., eh. 1995 Tex. May 74th the commissioner. AgRIC. and codified at Laws Gen. (c) day the 60th after the §§ Act declared that later than 74.101-.127. The Not commissioner receives Texas from Mexico on which the “the boll weevil entered date *25 certification, the commissioner major threat for presents petition and a economic AgRIC. public hearing to consider crop”, shall hold a to Texas’ cotton Code 74.101(a)(1), petition. a need to pending § that “there exists out, pro- participate develop, carry and (d) is held under Sub- hearing After a such as disease and insect grams of research (c) commissioner section the section of this 74.101(a)(2), control”, “it § and that id. implement organization to select one program be legislature of the that the intent certify that subchapter and shall this integrated available carried out with the best organization: selected techniques”, id. pest management (1) that com- petition a has submitted 74.101(a)(3), “the are defined as § subchapter; plies this with pest environmental coordinated use of and (2) in- represent adequately can pest meth- control information with available terests of cotton pest prevent unacceptable levels ods to by the zones described posed eradication and by most economical means damage organization’s petition; and people, possible hazard to the least (3) eradi- to conduct is authorized environment”, id. property, initial board zone referenda and cation 74.102(12). § 74.105 Sections elections under and use Act called for creation “[t]he this code. 74.106 of foundation as a eradication of a boll weevil the Commis- requires § Act 74.103. The Id. gov- provide assessments and vehicle “as organization certify the selected sioner to eradication erning and to establish boards offi- create an organization authorized boll suppress and eradicate zones in order to Id. foundation.” eradication 74.101(c). cial boll weevil Specifically, § weevils”. Id. 74.104(a). § provides: Act (a)A authorized nonprofit organization type of what specify The Act does represents that of this state under the laws May be. On entity is to the foundation may petition the commis- passed the that Legislature while as for certification agriculture] [of sioner the Act and before in session Act was still to: organization authorized Producers, effective, Texas Cotton became foundation; (1) whose Inc., corporation create a nonprofit a Texas forum for a purpose is “to allow
(2) primary election of the the initial conduct of mutu- activities problems and discussion of board; and 74.106(a), Industry”, § al interest to the Texas Cotton a referendum to “[i]f Code fails, petitioned the Commissioner for certification establish an zone the con- eradication create foundation. Texas Cotton Pro- current election of board members from the effect”, proposed proposed ducers zone ... no create the Texas Boll eradication has 74.105(d). Thus, Foundation, Inc., § Weevil Eradication id. established zones a Texas nonprofit 7, 1993, corporation. July plan can have elected board members. A On proposed representing Commissioner certified zones on the Founda- Texas Cotton Pro- necessarily tion ducers to create the board must call for non- foundation. The Com- missioner must therefore have eleeted directors. believed creating nonprofit corpo- the foundation as a every is not clear that It even established comply ration would with the Act. The represented by zone must be an elected incorporation Foundation’s articles of were says only board member. The Act 14,1993. September filed Legis- 1995 the represented zone shall be “[e]ach on the lature amended the Act to authorize the 74.106(a). Id. requires board.” The Act Foundation’s board of directors to “take oth- the zone referendum ballot to state “whether er action and exercise other by plurality a board member is elected or a necessary to by execute act authorized majority votes cast”. Id. subchapter or the Texas Non-Profit (The 74.114(c)(2). Commissioner has de- 74.108(a)(7). Corporation Act”. termined that board members are elected knew, Legislature course, that the Foun- plurality east. 4 Tex. Admin. votes nonprofit dation was a corporation, 3.6(c).) If a zone is established specifically giving the Foundation board au- by plural- referendum but no one is elected thority Corpora- under the Texas Non-Profit ity majority, the Act is silent on how the Act, appears approved to have representative zone’s board is to be chosen. Thus, entity. reasonably it seems clear that (The promulgated Commissioner has not intended the foundation situation, rule to cover such a the Foun- nonprofit corporation. be a all.) promulgated dation has no rules at *26 nonprofit corporation
Unless a is to be The Court’s conclusion that the Founda- (if governed by members), its members it has tion must governed by “at all times” be directors, governed by must be a board of appears elected board members to be based and the initial directors must be named in its on several references to “initial elections”. incorporation. 74.103(a)(2) articles of Section organiza- states that an Tex.Rev.Civ. Stat. (members), Ann. arts. 1396-2.08 1396-2.14 tion representing petition cotton can (directors), (articles). 1396-3.02 The Court the Commissioner to create a foundation and reads contemplate the Act to that the foun- “conduct the initial election of the board” added). 74.103(d)(3) dation governed by must “at all times” be (emphasis Section directors, board of each of whom has been certify states that the Commissioner must elected. Ante at 474. organization But the Act nowhere selected to create the foun- states that all directors being of the foundation dation “authorized to conduct eradi- contrary, must be elected. To the the Act cation zone referenda and initial board elec- added). 74.104(a) strongly suggests (emphasis the foundation be tions” Section governed by non-eleeted organization directors. Section states that the selected 74.103(b)(2), above, quoted requires “may that an Commissioner to create the foundation organization petitioning the Commissioner conduct the initial eradication zone referen- added). for certification to (emphasis create the foundation must da and board elections” 74.106(a) present plan representation “an initial for for Section states that initial “[t]he proposed each proposed eradication zone on a board from election board members 6, 9, 12, (em- consisting of or 15 concurrently members” eradication zone shall be held added). (em- phasis Proposed zones cannot have with an eradication zone referendum” added). elected board members phasis because board elec- The Act never refers to the directors, concurrently must “be held with an initial board or the initial but AgRIC. referendum”, eradication zone appears to initial elections. The Tex. petition Its to create a foundation. initial elections that fication infer from references to proposed nine zones. Two were elected, eradication must all be but the initial directors High Plains required the Act: zones logic compelled by and is the inference is not Area, Suppression Program con- Boll Weevil express language in the stat- contrary to the sisting of 25 counties between Amarillo and present petitioning organization ute that the statute, plus specified three addi- Midland -proposed eradi- plan representation counties, the St. Lawrence Cotton tional cation zones. Zone, consist- Boll Weevil Control Growers Moreover, the Act is reading Court’s four counties south and east Mid- ing of contrary rules. The to the Commissioner’s land, specified by statute. also shall Act states that commissioner “[t]he 74.103(b)(1), 74.107(a), 74.102(9), (14), §§ initial board adopt voting rules for 74.108(d). The other seven zones were: initial referenda to establish election and North, 12 counties near the Rolling Plains AgRic. zones.” eradication Tex. Code Oklahoma; Rolling southeast corner 3.3(c) 74.114(c). rule The Commissioner’s Central, Abilene 15 counties between Plains may conduct an states that foundation “[t]he South, Falls; Rolling Plains nine and Wichita referendum or referenda either assessment Angelo; Central Texas around San counties conjunction initial board elections with the River, Blacklands, Bottoms, and Red River zone referendum or referen- and eradication of Austin to Texar- 39 counties from south initial subsequent or at a time da Garden, kana; Up- Coastal Bend Winter or referenda.” elections and referendum Coast, Antonio 26 counties San per Gulf 3.3(c). In an assessment Admin. Code Christi; Corpus to south and Victoria referendum, propose the the foundation must Valley, eight most Rio Lower Grande paid by be “maximum assessment to State; and Trans- southern counties in growers having production eradication Paso, from El Paso El 13 counties Pecos and the “time for which the assessment zone” and Parts of River. just of the Pecos east 74.113(b). Agkic. will be made.” in two zones. included three counties were proposal, foundation must To make this all, proposed Producers Texas Cotton course, first, of the assessment “determine into divided counties be 151 of Texas’ 254 zone” to accom- needed in each eradication zones, that each zone be nine eradication 74.113(a). If an assess- plish goals. Id. by one board represented the foundation’s concurrently held ment referendum not include zones did proposed director. election with the zone referendum board grown. cotton is all counties which 3.3(e) zone, expressly in the same as rule presented petition, Texas Cotton Growers’ needed for the permits, then the assessment *27 Legislature while Commissioner by a foundation zone must be determined session, still passed the Act was proposed zone has no on which the board proposed posed that creation “[o]n Also, the first assessment member. elected eradication growers’ boll weevil official cotton could be conducted referendum in zone board will be by the initial foundation TCP no elected by on which there were a board con- pending by of TCP appointed the board members, having yet been no zone there petition election.” duct of board by procedure established referendum. The zones to proposed for the nine called contemplates rules thus the Commissioner’s Thus, each. represented one director or even all board with some foundation understanding of the Growers’ Texas Cotton The Court cites rule non-elected members. from representation required Act was that the rule to reconcile 3.3 but makes no effort zones, and established proposed as well as reading of the Act. with its own on the members permitted non-elected that it Act is also certification reading of the The Commissioner’s The Court’s board. founda- to create the every person other Growers contrary to that of Texas Cotton petition indicates implementation. proposed in the entity its tion as involved with view writing Texas Cotton Growers’ agreed active in he Producers was Texas Cotton opera- Act only organi- implementation It passing the Act. was the foundation. for certi- tion of petition zation to the Commissioner proposed, As Texas Cotton Growers first zone referendum and board election. nine named initial directors of the Founda- This is consistent with the Commissioner’s proposed tion—one for each eradication 3.3(c) rule but inconsistent with the Court’s incorporation: zone—in the articles of later, reading of the Act. Two on months April cotton in the Lower Rio High Wayne Plains Huffaker Valley approved participation zone Grande St. Lawrence Clifford Hoelscher the program and elected Chris Allen to the board, approve but did not Rolling Plains North Robert Belew assessment. Not until a second referendum Rolling Woody Plains Central Anderson 15, 1994, on October did Lower Rio Grande Valley growers approve an assessment Rolling Gully Plains Kenneth South 1, 1994, for their zone. On December Cen- Central Texas Pustejovsky Dan Rolling growers approved tral zone cotton Craig Winter Garden Shook their zone and assessment and elected Woody Anderson as their board member. Lower Rio Valley Grande Chris Allen Cotton in the Winter Garden and Trans-Pecos Jim Ed Miller High February Plains zones suit on followed created, 16,1995, 15,1995, At April respectively, the time Foundation was none of proposed ap- Huffaker, eradication zones Craig had been Wayne elected Shook and proved by a grow- referendum of local cotton respectively, Foundation board. The ers, and none of the board members had Lawrence, approved last zone was St. Nevertheless, been elected. the Foundation 22, 1995, August and Clifford Hoelscher was immediately board began to alter the area in members, elected to the board. Three board various with approval zones of the Commis- Allen, Pustejovsky, Chris Dan and Jim Ed sioner, referenda, plan assessments, set and Miller, replaced by Boling, were John Wil- programs. devise eradication This demon- Beckhusen, Bickley, respec- burn and Bob strates not Texas Cotton Producers’ and tively. The record does not reflect how the approval Commissioner’s of the nonelect- chosen, replacements were but it does not board, ed Foundation reading but the board’s appear they were elected from their of its own under the Act. zones. operated The Foundation for more than When the 74th convened five months before the first zone was estab- January majority of the Foundation’s lished referendum and the first board appointed by board were still members Tex- During member elected. this time the board as Cotton Growers and not appointed elected. When members Texas Cotton Produc- ended, ers met to conduct the session four members of Foundation’s business plan for the first Legal referendum. Legis- board still had not been elected. The Department Agriculture counsel lature amended the Act in a number of re- met with the board advise them concern- 3, 1995, spects. May R.S., Leg., Act of 74th ing legal responsibilities. Counsel never ch. 1995 Tex. Among Gen. Laws 1976. *28 raised concern about the non-elected mem- things, Legislature: other the revised the board, bers on the indicating thus counsel’s grower”, definition of “cotton id. see approval of the constitution of the board. 74.102(5); § authorized the foundation board accept gifts grants, money, to and borrow 28, 1994, February On cotton in any and execute act allowed the Texas proposed the Rolling Southern Plains zone Corporation Act, Non-Profit id. see approved participation in program the and an 74.108(a)(5)-(7); authorized the board to add assessment, Gully and elected Kenneth as a to the area in an eradication zone under Thus, Foundation board member. the first circumstances, 74.108(b); § certain see id. proposed by assessment referendum was the High board on which there was no authorized board to add to the elected member zone, 74.102(9), concurrently § and was conducted with the Plains see id. not to but 850, it, 74.108(d), 1944, § change (Tex.Civ.App.—Austin id. to reduce see and S.W.2d ref'd) (“It zone, § 74.102(14); Lawrence presumed the St. see id. writ must be that the gave governmental immunity, act, the foundation Legislature, passed when it the was fa 74.109(f), § see the foundation id. added the in such miliar with manner busi exempted to and its directors those [the act] ness was conduct liability except negligence, acts gross all ed.”) conduct, dishonesty, criminal see id. course, possible, It is of that the Court is 74.110(a); specified that assessments could Commissioner, Department, correct and the debts, pay to the see be used foundation’s id. Foundation, apparently at least the 74.113(f)(2); and added that the foun- “[i]f wrong Legislature, all about whether program dation is abolished or the discontin- non-elected can serve on the members Foun- reason, any approved, ued for assessments the dation board. But when Court’s con- levied, or otherwise collectible on the date of contradicts strong struction Act also necessary pay remain abolishment valid as suggestions opera- in Act itself and all obligations foundation”, the the financial the 74.127(c). inception, tions under the its see id. Act since the position virtually Court’s untenable. is, signifi point Legislature the made possible it is the Act to require While to read cant, By Act. changes substantive the members, that only elected construc- board failing require to amend the Act to plausible is less or than reasonable the elected, foundation board members all be opposite one. Legislature ought presumed to be Commissioner’s, acquiesced have De partment’s, and Foundation’s unanimous and B Act, adopted consistent construction of the join opinion concerning I in the Court’s contemporaneously passage of with the its delegation because even under construc- everyone enactment, urging statute Act, delegation I agree tion of the that the allowing elect the board function without power to the is unconstitutional. Foundation Direlco, ed board members. Inc. v. operate If the Act allows Foundation (Tex. Bullock, 360, 711 S.W.2d 363-364 board, awith non-elected n.r.e.), App.—Austin writ ref'd cited power to the is even less defensi- approval in Robinson v. Central Texas The Court ble than the Court believes. de- Center, 170 n. MHMR S.W.2d respective powers tails the Founda- (Tex.1989); Dept. see also Reed v. State tion, Commissioner, Department. and the Licensing Regulation, & 820 S.W.2d any supervision by an elected official Without writ). In (Tex.App.—Austin no governmental the Foundation can agency, or event, presumed must be example, power. For while wield enormous in which have been aware the manner the Foundation “conduct a referendum must actually operating Foundation was proposed in each zone deter- eradication determined, in amending the statute in have mine whether desire estab- respects, that no nec other amendment was pink lish an official boll bollworm weevil change composition of essary to AgRIC. zone”, eradication Foundation board. See Central Power & 74.105(a), imposes no deadlines statute Sharp, Light 488-489 Co. — four duty. years more than denied, 1996), (Tex.App.—Austin writ existence, it has curiam) the Foundation has been S.W.2d - (Tex.1997) (disap (per six zone conducted referenda part appeals’
proving another of the court thus has proposed zones. The Foundation opinion); Massachusetts Indem. & Ins. Life whether, Ins., right the unilateral to determine Co. v. Texas State Bd. *29 least, years, poll to 1985, a course of cotton 104, over (Tex.App.—Austin writ ref'd a zone should growers to determine whether n.r.e.); Compensa see also Texas Workers’ The has the unilater- City City, exist. Foundation also Bridge v. tion Comm’n right al to the maximum assess- (Tex.App.—Austin no determine put The writ); Sheppard, 181 ment to be to a referendum. voters Western Co. cf. amount; they only cannot raise or lower this can The Act “determines” one circumstance: only against vote for or it. “on Id. recommendation the foundation”. only places Act limit the the Founda- solely While assessments must “be used to destroy crops tion’s that it cannot programs approved by finance the commis- Otherwise, do so if it does not feel it should. sioner as consistent with” the Act and the complete the Foundation has discretion. Constitution, 74.109(h), § id. the Foundation great leeway creation, in determining has the details Since the Foundation’s these programs. pro- powers those The nature of have resided non-elected directors. grams they and the manner in which governed For 19 months the Foundation was profoundly grow- by majority conducted can affect cotton a board a of which not had been ers, experience rather, as the Rio designated by Lower elected but had been zone, Valley below, Producers, Grande which I During describe Texas Cotton Inc. Moreover, period indicates. arranged Foundation has the the Foundation million $62 right credit; absolute to determine how much of the actually line of it has borrowed over program cost of a to borrow Many and how much million. of the eradication $25 pay for with grams implemented by collected revenue. The Foun- were the non-elected spend dation can example, borrow and the maximum Rolling board. For the Southern total assessment in the first few months of program Plains zone’s eradication was de- program obligate growers cotton by vised and assessment set a board on repay the period ap- elected, debt over the total which no member had been and the proved in the program referendum. If the program was out carried board con- appears unsuccessful, growers to be have no eight trolled non-elected members stopping effective means of proposed February before the total zones. As of assessment has been committed. zone had borrowed over million and $7.5 spent over million. $11.5 powers
The Foundation’s to enforce collec- tion of truly assessments are draconian. The implemented non-elected board also private property enter program es- eradication the Lower River sentially at will per- and without the Valley approved owner’s Grande zone in 1995. The mission at time during daylight hours. assessment raised about million the first $2.5 § Id. penalties 74.117. It year set for pay program, late for the but the Founda- 74.115(a). payments. Id. spent million, The Court ob- tion borrowed and se- $11.5 growers serves that protest are entitled cured all assessments the Foundation imposition penalties of such Depart- zone, could collect from the leaving a $9 ment, very ante at but aas technical repaid million deficit to be from assessments matter, (The the Court is in error. years. The Commis- collected over next seven 3.57(a) sioner’s rule person states that approved up “[a] referendum assessments against department 420,- whom the eight years.) has assessed a expected Instead of the penalty may protest ... such year, action with the 000-bale growers harvest 50,000 bales, commissioner”. 4 produced only about for an Admin. Code 3.57(a). expressly But the Act authorizes estimated loss million. $150 board, Department, Lee, Worms, not penal- Opening set Steven H. a Can of Agric. Morning 74.115(a). 11,1996, ties. Fur- Dallas Jan. at ID. News, thermore, requires the Act Depart- Growers program blamed eradication destroy crops ment—it has no discretion—to using pesticides destroyed recommendation, on the Foundation’s even if prey boll weevil but also insects that on the they are not armyworm, thereby infested with boll weevils. allowing beet a devastat- 74.115(b). ing armyworm The assertion in Justice invasion. Id. Cotton Cor- nyn’s opinion that “the immediately petitioned statute itself ... and for a referendum to not the Board ... determines circum- program. leave the eradication The referen- grower’s stances crop may passed January under which dum 1996. The board member, destroyed nonpayment Boling, assessments” made the zone’s ex John is, believe, very I misleading. voting Post at 498. privileges officio without or access to *30 supervisory information, statutory requirements and though non- even
Foundation
Commissioner, TAIPA is little
nonapproved zones
role
members
elected
implementer for
to and
more than
adviser
members. The
to serve as full
continued
Valley the Commissioner.
crop in the Rio Grande
1996 cotton
rain,
zone,
was more
on less land with less
Cornyn’s
opinion suggests that
Justice
Cotton,
In Tall
prior crop.
than twice the
power to the Texas Boll
Morning
Aug.
at
News,
Dallas
is no
Eradication Foundation
differ-
Weevil
Despite their
from the
16D.
withdrawal
licensing on
from statutes that condition
ent
in
zone must con-
gram,
schools. Post
graduation from accredited
up to seven more
pay
tinue
assessments
give
argument is that such statutes
494. The
in-
discharge
Foundation’s debt
years to
licensing.
accrediting
power over
associations
curred for that zone.
have
any power accrediting associations
But
schools,
licensing
not at
at the
power delegated is directed
potential
Texas,
association mem-
derives from
both dem-
and its actual exercise
Foundation
bers,
Legislature. The
from the Texas
unconstitutionality of the Act.
onstrate the
simply
such associations
operation
limited
by the Act is little
The foundation authorized
compared with the Foundation’s
and its
cannot be
posse.
The Foundation
more than
liability
powers.
for all their
immune from
broad
agents are
con-
except gross negligence, criminal
acts
any entity in Texas’
I am not aware
74.110(a),
duct,
§
and the
dishonesty, id.
resembling the Texas Boll
history remotely
immunity,
id.
sovereign
has
Foundation. The need
Weevil Eradication
74.109(f).
test to
Applying
§
Court’s
power
delegation of
unprecedented
for an
Act,
opposed to the
as
construction
apparent. Twelve oth
is not
the Foundation
reading, the
more deferential
Court’s much
eradication laws.
have boll weevil
er states
result is even clearer.
449;
§§ 2-19-
Ala. Const. amend.
Ala.Code
(Supp.1996); Ark.Code
120 to 2-19-135
Ann.
C
(Michie 1996); Fla
§§ 2-16-601 to 2-16-617
(West Supp.1997);
§§
possess-
593.101-.117
private agency in Texas
No other
Stat. Ann.
(1990 &
§§
to 2-7-158
entity
2-7-150
power.
unrestricted
es such
Ann.
Ga.Code
§§ 1601-1617
Supp.1996); La.Rev.Stat.
Automobile
remotely similar is the Texas
Ann.
(West
§§
69-
Association,
Supp.1997); Miss.Code
by Arti-
Plan
created
Ann.
Insurance
(Supp.1996); Mo.
TAI-
37-1 to 69-37-37
Insurance Code.
Ann.
21.81 of the Texas
Stat.
cle
N.M. Stat.
(Supp.1997);
§§ 263.500-.537
corporation whose mem-
nonprofit
PA is
(Michie Supp.
§§
to 76-6A-16
insurers. Ann.
76-6A-1
automobile
are all authorized
bers
2(a).
1996);
§§
to 106-
106-65.67
21.81,
§
Its 15-
N.C.
art.
Gen.Stat.
Ins.Code
2, §§ 3-
(1996);
tit.
body
eight
65.91
governing
consists
member
Ann.
Okla. Stat.
(West
insurers,
Supp.1997); S.C.Code
50.1
3-50.20
by the member
elected
members
(Law Co
§§
to 46-10-130
46-10-10
the Office
public members nominated
five
Ann.
op.1987
Supp.1996);
&
and selected
Ann.
of Public Insurance Counsel
Tenn.Code
(1993 Supp.1996).
&
Insurance,
§§
to 43-6-431
local
43-6-401
and two
Commissioner
pass a stat
2(b).
the first to
TAIPA,
Carolina was
§
like North
recording agents.
passed its
ute,
Carolina
South
Eradication Founda-
Texas Boll Weevil
Alabama, Geor
year.
following
largely
statute the
tion,
private entity with a
is thus a
their
Florida,
passed
and Tennessee
gia,
body.
the Founda-
governing
Unlike
private
1989,respec
1984,1985,1987, and
however,
very lim-
statutes
tion,
TAIPA’s
passed their
Louisiana
tively. Arkansas and
assigned
only propose plan
It can
ited.
1992, respectively. Tex
in 1991 and
statutes
for his
to the Commissioner
risk insurance
1993, along with two
it,
statute
3(c),
passed
id.
approval, id.
and administer
states, Mississippi and Oklahoma.
3(a).
require-
other
imposes
certain
The statute
New
(d)-(f).
in 1995.
3(b),
passed its statute
The Missouri
plan,
id.
ments on
statute, in
pass
the last state
rates Mexico was
to set
retains
Commissioner
statutory
Thus,
eight other
Texas had
plan. Id.
5. Given the detailed
under the
*31
own,
guide
II,
adopting
schemes to
in
its
and Court that the Act violates Article
Section
agree
two states have had the benefit of
1 of the
I
Texas’
Texas Constitution.
also
experience.
explanation why
with the Court’s
the use of
Act,
I
referenda does
save the
but offer a
Each of the
except
other twelve states
few additional reasons.
employs
private
Louisiana
organization
a
representing
Co.,
238,
to assist with
In Carter v.
Coal
Carter
298 U.S.
coordinating programs
(1936),
and funds. Ala.Code
56 S.Ct.
D
clearly
diversity
record
indicates that this
I
Because
conclude that
the Texas Boll
conflicting
of view arises from their
Weevil
antagonistic
Eradication Foundation is as the
even
interests. The differ-
intended,
private nonprofit
producing
cor-
ence
regulat-
between
coal and
poration privately
is,
course,
managed,
ing
production
fundamen-
broad,
delegated
private activity;
Foundation has been
unre-
tal. The former is a
legislative power,
agree
necessarily
governmental
stricted
I
latter is
func-
since,
tion,
2363-2364,
(1976).
very
things,
nature of
S.Ct.
L.Ed.2d
person
provi
upheld
city
one
not be intrusted with the There
charter
*32
another,
power
regulate
proposed
changes
to
the
requiring
business of
sion
land use
especially
competitor.
by
people voting
and
of a
And
be ratified
55% of the
at
a
a
city-wide
A
attempts
statute which
to confer such
referendum.
referendum
a
power
cannot,
un
legislative body’s
constituency
undertakes an intolerable and
entire
said,
personal
delega
constitutional
interference with
the Court
a
“be characterized as
672,
liberty
power.”
private
delega
and
tion of
Id. at
at
property. The
96 S.Ct.
2361.
arbitrary,
clearly
bodies,
clearly
establishing legislative
people
tion is so
so
“In
and
the
rights safeguarded by
of
power
a denial
the due
can reserve to themselves
to deal di
Amendment,
process
rectly
might
with matters which
clause
Fifth
otherwise be
unnecessary
assigned
legislature.”
it is
do more than
the
Id. This was
delega
refer to
of this
fore
far
“the
decisions
court which
different from
standardless
power
the
of
question.
group
property
close
A L A Schechter
to a limited
of
States,
Poultry Corp.
by
v.
owners
the
in Eubank
United
U.S.
condemned
Court
495,
537,
837,
678,
page
846,
Roberge”.
page
at
55 S.Ct.
at
and
Id. at
at
96 S.Ct.
2364.
1570,
947;
79 L.Ed.
97 A.L.R.
Eubank v.
Roberge
preclude
Eubank
not
and
do
a
Richmond,
137, 143,
76,
226 U.S.
33 S.Ct.
legislative body
conditioning regulation
from
L.R.A.(N.S.)
77,
156,
1123;
57 L.Ed.
Wallace,
on local
In
v.
approval.
Currin
Washington ex rel. Seattle Title Trust Co.
379,
1,
306 U.S.
59 S.Ct.
The Court
both
referendum does not
cited
these eases
governmental power
proval
City
City
improper delegation
Eastlake
Forest
Inc.,
668, 677-678,
constituency
or if
Enterprises,
426 U.S.
96 if it is
the entire
appears to
simply
application
legis-
The reason for this scheme
condition of the
latively
regulation.
except
A referen-
eradicated
determined
that boll weevils cannot be
area;
delegation
dum does involve a
when
eliminate
large
one farmer
over
field,
group
they may
the voters of a
themselves determine
but
sim-
the insects
his
be,
regulation
what the law or
is to
as well as
field.
ply
neighbor’s
move to his
Once
efforts,
applied
whether it is to be
them.
Such
first farmer ceases his
insects
approved by
However,
has never been
the may
farmers
return.
who are
Supreme Court.
economically
barely surviving
weigh
must
*33
deciding
risk of infestation in
whether
to
in
The flaw with
the Boll Weevil
referenda
spend
pesticides
for
limited resources
Act is similar to that
in Carter: the
identified
efforts.
Act allows those in a
other
The
places
affecting
growers
Act
decisions
cotton
stronger
to force
in
position
financial
those
a
in
public
govern-
not
the hands of the
or its
position
to eradication
weaker
to contribute
ment,
grow-
but in
a few
the hands of
cotton
programs
they
when
otherwise would not do
A
ers.
under the Act
referendum
carries
so; conversely,
growers
a
it also allows
in
approved by
when
of
voting
two-thirds
those
position
prevent all
weaker
concerted
byor
than half
farming
those
more
the cot-
eradication efforts.
Agric.
acreage
ton
in
the zone.
§ 74.114(g).
approved
Assessments were
in
Thus,
agree
I
with the Court
that
the
by
five of the six established zones
the fol- delegation
power
the Foundation is
lowing
eligible
percentages of
voters: 33% in
The
of referenda does
unconstitutional.
use
Plains;
the High
Rolling
29%
Plains
not save it.
Central;
Garden;
in
27% Winter
68% in the
South;
Rolling Plains
in
and 27% the Lower
II
Thus,
Valley.
Rio Grande
in all but one
The Court does not reach the federal
grow-
instance one-third or
less
cotton
process
open
state
cedural due
courts
ers in a
imposed
zone
on all
assessments
the
challenges to the Act. While resolution of
other
cotton
in the zone. Carter
necessary
issues
these
are not
the result
“legislative delegation
condemned as
in its
cases,
these
I
a
believe word should be
most
majori-
obnoxious form”
of a
the
guide
said about them to
ty in one industry to
control
affairs of an
event it chooses to
other boll weevil
enact
us,
unwilling minority. Under the Act before
legislation.
eradication
minority
a
cotton
can control the
hearing
The Act does not allow for a
be
majority.
affairs of an unwilling
Foundation,
Commissioner,
fore the
or
problem
simply
The
is not
that referenda
assessment,
Department
protest an
may carry
very
on the
a
group
vote of
small
permit judicial
nor
Act
an
does the
review of
growers.
many
cotton
outcomes of
opinion
assessment. As
CornyN’s
JUSTICE
by
elections
minority
a
determined
out,
law the lack
a
points
under Texas
voters.
If the issue were whom to choose as
statutory right
judicial review of an
ad
representative
people,
or
whether to
judi
ministrative
not mean that
decision does
accept regulation proposed by
people’s
person
A
cial review is never allowed.
has a
Currin,
representatives, as in
the fact that a
judicial
right to
review of an administrative
people
small number of
voted
the election
person’s
constitu
decision
violates the
significance.
not
would
be of constitutional
adversely
rights or
affects his vested
tional
But when the electorate consists not of all property rights,
right
if no
to review
even
citizens
an area but
members of
Liquor
statute. Stone Texas
conferred
industry,
very
one
the referendum
(Tex.
Bd., 417
385-386
Control
S.W.2d
unfair.
1967); Brazosport
& Loan
Sav.
Ass’n v.
Ass’n,
example,
contemplates
For
that American Sav. & Loan
161 Tex.
the Act
(1961); City
when a zone is
and an
S.W.2d
750-751
established
assess-
342
Hancock,
150 Tex.
approved, every
grower in the Amarillo v.
ment
cotton
(1951).
assessment,
Clearly, enforcing a
pay
zone must
whether his
monetary
grower
against
cotton is infested
boll weevils or not.
assessment
with
adversely
that
property
replevin
his
affects his vested
Fuentes held
statutes that
hearing
Thus,
property
allow
before a
property rights.
seizure
do
grower
process require-
not meet constitutional due
judicial
would be entitled to
review of
ments. The Boll Weevil Act allows the
despite
any provision
assessment
the lack of
Foundation,
private corporation privately
in the Act.
Act is not invalid
because
destroy
crops,
managed,
growing
even if
review;
provide
judicial
does
review
weevils,
hearing
boll
no
not infested
simply required.
other than the notice of
no notice
not,
right
judicial
This
review does
how-
original
grower
assessment. A cotton
has no
ever, satisfy
procedural
process
due
federal
opportunity
argue
he received
anoth-
Corp.
requirements.
In McKesson
v. Divi-
mistake,
grower’s
er
assessment
Tobacco,
Beverages
sion Alcoholic
in calculating
there
was an error
assess-
18, 37,
2238, 2250-2251,
110 ment,
U.S.
S.Ct.
acreage
is not as
or that
(1990),
assessment,
Supreme
held
L.Ed.2d
shown in the
or that another
postdeprivation process
person
the exaction
is liable for
assessment because of
*34
crop
ownership
property.
or
It
is
requirements
of taxes satisfies constitutional
course,
possible,
grower
for
to
a cotton
sue
only
taxpayer
if the
opportu-
is afforded “an
judicial
for
the Foundation un-
review before
nity
validity
to contest the
the tax and a
dertakes
action to enforce
assess-
remedy’ designed
‘clear and certain
to render
ments,
possible in
just as it was
Fuentes for
opportunity meaningful
preventing
the
replevin
prevent
the
to sue
defendant
to
any permanent
deprivation
prop-
unlawful
is
process
it occurred.
due
not
before
But
40,
erty.”
if
Id. at
said
sation Comm’n
(Tex.1995)
every
anticipate
added);
unforeseen
(emphasis
clude
detail
see also
purpose
...
circumstances
would defeat
Barshop
County Underground
v. Medina
legislative authority.” Rail
delegating
Dist.,
Water Conservation
S.W.2d
Co.,
(1996).
road
v. Lone Star Gas
Comm’n
That
has not been met
burden
(Tex.1992).
here.
My
objection to the Court’s
fundamental
Third,
to conclude that
the Court strains
approach
nondelegation
that while the
doc
Boll
Eradication Founda-
the Texas
Weevil
undergone
stages
has
at least five
trine
entity.1 Characterizing
“private”
tion is a
development
jurisprudence,
in our national
“private” agency
the Foundation as a
is the
Greco,
Safeguards,
see
Standards or
Ad
decision—only by
lynchpin
Court’s
(categorizing
as “the
min. L.J. at 569
these
using
approach can the Court feel itself
this
Early Stage,
Stage, the
the Public Interest
justified
“this is an extraor-
declaring
Stage,
Standards
the ‘Loose’ Stan
‘Strict’
case,”
in a effort to
dinary
952 S.W.2d at
Safeguards
Stage, and the Procedural
dards
unknown ramifica-
limit both the known and
repre
Stage”),
approach instead
the Court’s
opinion.
tions of its
stage
development.
of arrested
sents
skepticism
par
this
extraordinary
Court’s
ramifications of the
It
is the unknown
ticular
emanates from two Su
ought to be of the most
Court’s new test that
eases,
preme
dating back to the
new test
concern to the Court. The Court’s
Stage during the
Court’s “Strict” Standards
apply
delegations ranging
will no doubt
which,
century,
half
both of
al
first
private prisons.3 In
from “school choice”2 to
overruled,
expressly
though never
have been
fact,
delegations are used exten-
“private”
31;
to their
facts.
Id. at 572 n.
limited
rou-
sively
government,
have been
Texas
3:8
courts,
Davis,
Law Treatise
Texas
AdministRative
tinely upheld
this and other
(2d. ed.1978).
surprisingly,
Not
this strict
oversight by
given proper
standards
by only a
nondelegation approach is followed
delegations
authority,
these
delegating
Greco,
minority of
states. See
Standards
For in-
no constitutional concerns.
raise
*36
at 578. It is on
Safeguards,
or
8 Admin. L.J.
stance,
whether
the Court does
consider
public
flimsy
foundation that the Court’s
might affect the continu-
or how this new test
policy arguments are erected.
Act,
Relinquishment
ing viability of the
oil
revenue from state-owned
which dedicates
Second,
acknowledges
though the Court
the Permanent School
gas reserves to
and
for review of a facial
the correct standard
Fund,
constitutionality of which this
statute,
constitutionality
challenge
of a
challenge
against
delegation
a
upheld
correctly apply that standard.
it does not
Robison,
516,
here,
117 Tex.
in Greene
that
challenge,
a facial
like
made
Under
(1928)
655,
persons to
(allowing private
656
challenging party
prove
must
that
terms,
gas owned
the state
statute,
“always operates un-
sell or lease oil and
by its
2. See
1. The
Schools—A
ciation v.
in the
tion,
tion to the Foundation
thority
on the Foundation Board
the Foundation
"governmental
74.110,
74.109(f).
§ 74.120.
see id.
the state
Context
Legislature designated
Colona,
Wilkinsburg
exempted
compliance
Statutory
It
treasury),
must exercise
also conferred official
74.109(d),
unit.”
Wilkinsburg
the Foundation
and Constitutional
School
Privatization of
with state
id.,
afforded indemnifica-
District, members,
Board(presumably
the Foundation
Education Asso-
rulemaking
specified
requirements.
Agric
from taxa-
immunity
Analysis
see id.
Dickin-
Public
that
au-
3.See
vate Prisons:
nondelegation
power
Management: Comparison
whether
unconstitutional
L. Rev.
son The Constitutional
tion,
gation
mance with state
Twenty-first
Confinement
1992 Wis. L.Rev.
Fed.
60 Blakely
to assess the
public
1027,
Century,
Probation
Can
A
doctrine).
education
459,
delegation);
1048
Bumphus,
playing minimal role
Implications
They
21 New
505-07
parents and students of
quality
(1996) (arguing that dele-
Work?
(1996); Dipiano,
Eng.
private
Private
(1992)
Panopticon in the
of school
(1995).
Enabling Legisla-
Egle,
J. School
entities is
(questioning
Correctional
Crim.
Comment:
violates
Choice,
perfor-
&Civ.
Pri-
an
“nec-
“upon
power
terms
as such
carriers
of eminent domain when
such
and conditions
maintenance,
construction,
subject only
essary
or
[private person]
deem best”
for the
statute).
prices
pipeline”);
to minimum
set in
carrier
operation
Simi
of the common
larly,
Compensation
(granting
in Texas
art. 1417
tele-
Workers’
Tex.Rev.Civ.
Stat.
(Tex.
Garcia,
graph corporations
power
Comm’n v.
Housing Higginbotham, 135 Tex. Auth. (1940). 158, 143 79, 87 S.W.2d III. particu testing the reasonableness of a noted, I previously As have we have re delegation, required varying lar we have de peatedly Legislature may held that the dele grees specificity depending in standards gate authority agencies carry legis out conferred, on the nature of the purposes long lative so as it establishes “ recipient power, and the mat guide entity ‘reasonable standards to See, e.g., Edgewood, ter. 917 at 740 S.W.2d powers delegated.’” Edge
which the
(upholding delegation to
Commissioner
wood,
(quoting
Thus, delegation punishable by to the Foundation fits meanor a fine not to exceed Agric. $600, 74.126; description types of at least four of allow- see Tex. Code 12.23), delegation Higginbotham. able outlined asserts that Penal Code First, Legislature practically authority “strongly suggests improp- cannot efficiently many powers private exercise delegation.” disagree. dele- er I Foundation, gated to the determining prospect invalidating such as on this jeopardizes the level of assessments needed achieve basis innumerable other statutes Second, goals. subjects covering statute’s the statute dele- a multitude of in which the gates to the Foundation and has Commissioner directed that violation See, implement agency e.g., to make criminal rules rules offense. Agric. (certification Third, §§ statute. the Foundation and Commis- 18.008 Code given organic produce), (labeling sioner are facts and sale of find 61.018 (herbicides), seed), (florists), upon Subchapter ascertain conditions 71.058 75.022 roses), may operate, determining (grading (aquacul- 74D such as when 121.010 134.023 §§ crops present licensing); a field is infested and what ture 37.102 Tex Eduo.Code Safety (school Fourth, safety), program. threat the statute Tex. Health & *41 authority regarding rules 145.013(tanning fa to establish (quarantines), §§ 81.085 361.2215, 361.221, may prohibited “if planting 361.2225 of cotton be licensing), cilities when (solid (transportation planting jeop- will disposal), waste 361.563 reason to believe there is (sale waste), unpack- program present 438.005 of medical the success of the ardize (flammable food), aged liquids), 753.011 safety,” public health or and to Tex. a hazard to (conservation §§ 91.002 such of cotton when rules Nat. Res.Code order destruction (waste gas), regulation of oil and 131.305 Only § id. 74.118. are violated. See mines), discharges from uranium surface Foundation, Commissioner, is and not the §§ 12.607 Tex PARKS & Wildlife Code destroy and treat vol- authority to given the animals), (private 43.077 (possession of wild and to deter- noncommercial cotton unteer or § hunting); bird 548.604 Tex. Trans. Code of commercial cotton mine when destruction (vehicle inspection); Water Code purposes carry out the “necessary is to (water permits), quality §§ 26.2121 60.078 Notably, § 74.119. [Subchapter Id. 74D].” regulations). These (navigation district initial zone ref- requires that the the statute authority promulgate pun grants of to rules penalties summary of erendum include a expansive are no more than ishable fíne adopted rules under noneompliance for an necessary to allow the enforcement of 74.105(c)(3). grow- § Id. statute. ease, agency’s why rules. this would ers, therefore, a zone down referen- vote Legislature delegate authority to administer to be penalties too they dum if consider yet program a boll weevil eradication Notwithstanding the “David v. Goli- severe. to withhold the Foundation by Chief ath” characterization Justioe Phil- course, growers no enforce its rules? Of lips grower, each and Justice Hecht, complain they prosecuted that have for been small, eligible is large or how no matter how And, violating the rules of the Foundation. 74.102, §§ election. See id. vote I not down the statute although would strike 74.114; In other 3.1. 4 Tex. Admin. Code basis, recognizes that on this even the Court these words, Under grower, one one vote. proper would be to strike course of action circumstances, large-grower danger of particular penalty provisions, and down the minimal. is domination in an election the rest of the statute. See sever them from is a there argues that While the Court Hosp., 801 Rose v. Doctors S.W.2d require- significant between difference Florence, (Tex.1990); 131 Tex. Sharber v. promulgate ment the Commissioner (1938); 115 S.W.2d Western authority of rules some instances State, 62 Tex. Tel. Co. v. Union rules in oth- promulgate the Commissioner (1884). so, If is then the fifth factor this noted, we instances, already I have er as unnecessary. simply the Court’s test is necessary it is not long have held that quasi-govem- is to a That the detailed agency to establish administrative entity opposed “pure” to a admin- mental as duty statutory carrying its out rules before when, agency is as istrative irrelevant sufficiently defi- provides a when the statute ease, promulgate entity required is Jordan, at 334 S.W.2d See nite standard. conferring the statute rules consistent with & Loan Sav. (citing Southwestern 280-81 pro- with rules and consistent 917). Falkner, Ass’n v. mulgated the Commissioner. accounta- politically is himself Commissioner Agrio. given The Board is 74.120. promulgating ble, certainly capable of penalties, after reason- authority to set with the statute rules consistent additional notice, pay grower’s failure able for a so, in- in those necessary. Even he deems 74.115(a). But it is the assessments. allows, but does the statute stances which Board, itself, not the deter- statute promulgate require the Commissioner grow- under which mines the circumstances rules, sufficiently defi- provides the statute destroyed nonpayment crop er’s muster. pass constitutional nite standards specific procedures and the of assessments conclusion errs in its The Court also destroying the be followed before that must procedures adequate 74.115(b). Subchapter 74D lacks Only the Com- crop. See id. ac- Foundation, to contest missioner, given for the and not the — Rather, Light Sharp, tions. the cotton Power & Co. (trial -(Tex.1997) curiam) ample opportunity challenge (per
vided with
court had
jurisdiction
challenge
Foundation and Commissioner decisions and
over constitutional
*42
necessary.
to seek redress
the courts when
despite party’s failure to raise issue
statute
repeatedly
The
requires
statute itself
that
constitutionality
Plainly,
agency).
of
before
provided
notice be
to those
to its
judicial
meaningful administrative and
review
Agrio.
See,
jurisdiction.
e.g., Tex.
growers.
is available to the
Code
74.106, 74.115, 74.116, 74.118, 74.119,
§§
Finally,
erroneously
the Court
relies on
subjects any
74.120. The statute also
rule-
violations of the statute to demonstrate the
making by the Commissioner and the Foun-
safeguards, reasoning
lack of
statute’s
general requirements
dation to the
of Texas
prevent
happ
since the statute
not
did
what
governing
procedure.
law
administrative
See
ened,4
safeguards
That
are insufficient.
Agric.
§ 74.120(c);
see also
Tex.
Code
Tex.
the Commissioner or the Foundation could
(Administrative
§
seq.
2001.
et
Gov’t Code
74D, however,
Subchapter
violate
not
does
Act).
judicial
Procedure
This
re-
includes
unconstitutional, especial
render the statute
alleged
view of such rules if it is
that a rule
ly
challenge. Ultimately,
under a facial
application
or its threatened
interferes with
reasoning
purpose
Court’s
of
“defeatfs]
impairs,
or
or threatens to
or
interfere with
delegating legislative authority” by “[r]equir-
impair,
legal right
privilege.
See ing
legislature
every
to include
detail and
addition,
§
any
In
2001.038.
Gov’t Code
anticipate unforeseen circumstances.” Rail
person against
Department
whom the
of
Co.,
road Comm’n v. Lone Star
844
Gas
Agriculture
penalty
has assessed a
is entitled
(Tex.1992)
679,
(citing
S.W.2d
689
Corzelius
appeal,
to an
including
hearing
in accor-
Harrell,
509,
961,
v.
143 Tex.
186
964
S.W.2d
dance with the Texas Administrative Proce-
(1945));
Calvert,
Bullock v.
cf.
§
dure Act. See 4 Tex. Admin. Code
3.57.
(Tex.1972)
367,
(grant
372
required
appoint
Foundation is also
Secretary
party
State
finance
elections
appeals
an assessment
adopt
committee to
money
implied,
with state
not
could
be
de
policies
procedures
grower appeals
spite recognized principle
“every specif
the amount of assessments.
4 Tex. Ad-
See
ic, permissible
public
act of a
officer
need
196.1(i).
§
Supplementing
these
min.
statute,”
expressed
be
in a
because it would
safeguards, however,
administrative
Texas
separation
powers).
be a violation of
long
law
recognized
has
that even in the
express
right
judicial
absence of
review
V.
actions,
agency
right
implied
such a
complainant
noted,
when
alleges
previously
the statute
As
the United States Su
has
unconstitutionally applied.
preme
been
See
Court has used the
doc
Lubbock,
38,
City
Davis v.
160 Tex.
only
326 trine to strike down a statute
three
699,
(1959);
S.W.2d
714-715
history:
Board
Ins.
times in our nation’s
Carter v. Car
Ass’n,
574,
Co.,
238,
855,
Comm’rs v. Title Ins.
153 Tex.
ter Coal
298
56
U.S.
S.Ct.
80
95,
(1954);
(1936),5
Poultry
97-98
see also Central L.Ed. 1160
A.L.A. Schechter
referenda),
example,
might
For
the Commissioner’s certification
constitute violations of the stat-
plan containing provisions
appointed
of a
ute.
members,
rather
than elected board
see 74.103(d)(1)
(requiring the Com-
Agric. Code
nondelegation
5. Whether Carter Coal is a
case at
certify
organization's peti-
missioner to
that the
Mistretta,
Supreme
all is debatable.
comply
require-
tion for certification
with the
Poultry
recognized Schechter
and Panama Refin
74D);
subchapeter
(requiring
ments of
74.106
ing
as the
two statutes it had ever stricken
elected),
Mistretta,
that Board members be
and the Foun-
improper delegation.
down for
debt, apparently
373,
dation’s incurrence of
without
U.S. at
1014-1015;
Legislature
at
As the
U.S.
S.Ct.
has
relief,
declaratory
growers’ right
limit the
at 386-387. Nor is the
timely
obtaining
access
they
of assess
have a means of
to establish the level
Moreover,
pre-
as mentioned
improper delega
an
to the courts.
ments to the Foundation
viously,
Legislature
if the
has not ex-
provided
has
even
tion because
judicial
pressly provided right
review
oversight by
sufficient
the Commissioner of
actions,
reasonably
right
such a
would be
Agriculture
provided
and has
remaining
implied under
these circumstances. See
comprehensive guidance for the
Davis,
714-715;
Foundation,
Board
Ins.
discretionary authority of
326 S.W.2d at
Comm’rs, 272
at 97-98.
particularly given
expertise
of the Foun
An
dation Board members. See Sunshine
is a
Obviously, the threat
destruction
Coal,
397-400,
at
thracite
310 U.S.
S.Ct.
for the Foundation.
powerful collection tool
914-916,
Royal Co-op.,
at 574-
Rock
307 U.S.
so,
penalty and collection measures
Even
con
ON REHEARING growers approved under the statute’s former id. 1.27. The new statute version. See PHILLIPS, Justice, Chief delivered “validate^], assess- ratifie[s] confirm[s]” opinion rehearing, previously approved in ments the Southern GONZALEZ, HECHT, CORNYN, Zone, Rolling Rolling Plains the Central SPECTOR, OWEN, ABBOTT, BAKER and Zone, Plains and the South Texas/Winter Justices, join. (zones Garden Zone not involved in these original We did not consider our lawsuits). High The statute ratifies the opinion invalidating whether our decision Valley Plains and Lower Rio Grande assess- apply retroactively, requiring Act should thus actually ments for amounts collected assessments, past refund 30, 1997, prior May including but not only prospectively, allowing the Founda paid registry assessments into the gener to retain those assessments. The paid by plaintiff court or a named one al apply rule is that this Court’s decisions Thus, appropriate these actions. See id. Schindler, retroactively. See Sanchez v. any challenge forum for to the current law is (Tex.1983). However, S.W.2d we court, rehearing in the trial not on motion for have the depart gen discretion to from this here. eral rule where circumstances dictate that we See, apply should prospectively. decision e.g., Indep. Branch Carrollton-Farmers Sch. Appellant’s rehearing motions for are over- Dist., Edgewood Indep.
Dist. v. Sch. ruled. (Tex.1992) (applying 518-21 *46 three-pronged test from Chevron Oil Co. v. ENOCH, J., noted his dissent. Huson, 97, 106-07, 404 U.S. 92 S.Ct.
355-56, (1971), L.Ed.2d to determine invalidating sys decision school finance apply prospectively).
tem should Foundation, joined by amicus curiae Texas, Farm Bank argues Credit on re- HOSPITAL, ST. LUKE’S EPISCOPAL hearing that we should exercise that discre- Petitioner, limit our judgment here and spective application. particular, In argues Foundation that our decision estab- AGBOR, Kingsley Comfort and analyzing pri- lished a new framework for Respondents. delegations
vate which the Foundation could No. 96-0085. anticipated spending not have when it was Supreme Court of Texas. money the Bank when extended Requiring credit to the Foundation. Argued 1996. Oct. assessments, they say, refund Decided June 1997. impose hardship would financial undue Rehearing Overruled Oct. unjustly the Foundation and the Bank and growers. enrich the on motion
We decline consider issue rehearing. response judgment to our