Texas Boll Weevil Eradication Found., Inc. v. Lewellen

In Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 466-67 (Tex. 1997), the statute at issue provided for the creation of a private foundation that, subject to referendum approval from affected cotton growers, operated boll weevil eradication programs and assessed cotton growers for the programs' costs. See Boll Weevil, 952 S.W.2d at 456-57. The foundation could impose penalties upon growers for the late payment of assessments and could enter private property without the owner's permission for any purpose under the statute, including the monitoring, treatment and destruction of crops. See Boll Weevil, 952 S.W.2d at 457-58. In Boll Weevil, this factor weighed against the delegation because of the foundation's power to directly apply the law to third parties. See Boll Weevil, 952 S.W.2d at 474. The foundation had the power to impose penalties for late payment and to enter private property for any purpose under the statute, including the treatment, monitoring, and destruction of crops. See Boll Weevil, 952 S.W.2d at 458. In Boll Weevil, the foundation created by the statute was "little more than a posse" authorized to make decisions concerning other people's property without any supervision by a governmental agency. Boll Weevil, 952 S.W.2d at 486, 484-86 (Hecht, J., concurring in part and dissenting in part). The foundation represented the interests of growers who elected the board members, and the foundation was authorized to conduct referenda. The board then devised eradication guidelines and applied them to others' property. It could impose assessments and enter others' property to carry out its eradication programs, and could even require a cotton grower to destroy his crop. All of these powers were exercised without any meaningful review by a governmental agency. See id.