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Texas Boll Weevil Eradication Foundation4/30/1997
No. 96-0745 consolidated for oral argument with No. 96-0839
OPINION DELIVERED: April 30, 1997
On Direct Appeal from the 242nd Judicial District Court of Hale County, Texas
On Direct Appeal from the 138th Judicial District Court of Cameron County, Texas
Argued on November 20, 1996
Chief Justice Phillips delivered the opinion of the Court as to Parts I, II, IV, and V, in which Justice Owen joins. Justice Gonzalez and Justice Baker join in Parts I, IV, and V of the Court's opinion and in the judgment. Justice Hecht joins in Parts IV and V of the Court's opinion and in the judgment. Justice Cornyn, Justice Enoch, Justice Spector, and Justice Abbott join in Parts I, II, and IV of the Court's opinion.
Chief Justice Phillips delivered an opinion as to Part III, in which Justice Gonzalez, Justice Owen, and Justice Baker join.
Justice Gonzalez filed an opinion concurring in part and dissenting in part, and concurring in the judgment, in which Justice Baker joins and in Parts I, II, and III of which Justice Hecht joins.
Justice Hecht filed an opinion concurring in part and dissenting in part, and concurring in the judgment.
Justice Cornyn filed an opinion concurring in part and dissenting in part, and dissenting from the judgment, in which Justice Enoch, Justice Spector, and Justice Abbott join.
Subchapter 74D of the Texas Agriculture Code (the Act) provides for the creation and operation of an "Official Cotton Growers' Boll Weevil Eradication Foundation." Subject to referendum approval from the affected cotton growers, this Foundation is authorized to operate boll weevil eradication programs and assess the growers for the cost. Appellees in these consolidated direct appeals, who are cotton growers subject to the Foundation's jurisdiction, filed declaratory judgment actions challenging the Foundation's assessments on a variety of constitutional and statutory grounds. The trial court in each case invalidated the assessments and enjoined their collection.
We hold that the assessments levied by the Foundation constitute regulatory fees, rather than taxes, and thus are not taxes on an agricultural pursuit in violation of Article VIII, Section 1(c) of the Texas Constitution. We further hold that the Act, on its face and as applied to appellees, does not violate the right to equal protection under the United States or Texas Constitutions.
We do conclude, however, that the Legislature made an unconstitutionally broad delegation of authority to the Foundation, a private entity, thereby violating Article II, Section 1 of the Texas Constitution. For this reason, without reaching all the other constitutional and statutory arguments raised by appellees, we affirm the judgments of the trial courts.
I.
A.
There is no dispute among the parties to these appeals or the numerous amici curiae that the Anthonomus grandis Boheman, an insect commonly known as the boll weevil, presents a major economic threat to the Texas cotton industry. See Tex. Agric. Code Section(s) 74.001. This pest, which entered Texas from Mexico in 1892, causes an estimated $20 million in crop loss in Texas every year. See House Research Organization Bill Analysis of SB 30 at 5 (Feb. 24, 1993). To aid in the ongoing battle against the boll weevil, the Legislature in 1993 authorized the creation of the Official Cotton Growers' Boll Weevil Eradication Foundation. See Tex. Agric. Code Section(s) 74.101-74.127. Instead of directly creating the Foundation, however, the Legislature merely authorized the Commissioner of Agriculture to certify some nonprofit organization
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