952 S.W.2d 454 (1997)

TEXAS BOLL WEEVIL ERADICATION FOUNDATION, INC., Appellant,
v.
Eddie LEWELLEN, Jack F. Witten, Elliott Hayes, Scott Allison, Chris Lewellen, Randy Falkenberg, Ricky Biggs, Charles Burrus, Kevin Igo, and Mark K. Gunter, Appellees.
TEXAS BOLL WEEVIL ERADICATION FOUNDATION, INC., Appellant,
v.
Jack ABBOTT d/b/a Arroyo Farms, et al., Appellees.

Nos. 96-0745, 96-0839.

Supreme Court of Texas.

Argued November 20, 1996. Decided April 30, 1997. Opinion Denying Rehearing October 9, 1997.

*456 Ed Small, Matt Dow, Ana Kirk Thornton, Austin, for Appellant.

Rudd F. Owen, Paul Lyle, Anna Evans, Plainview, Shannon H. Ratliff, William H. Bingham, Marc O. Knisely, Patricia D. Pope, Austin, for Appellees in No. 96-0745.

Randolph K. Whittington, Harlingen, Neil E. Norquest, Chris A. Brisack, McAllen, Rudd F. Owen, Plainview, Shannon H. Ratliff, William H. Bingham, Marc O. Knisely, Particia D. Pope, Deborah A. Vervil, Austin, for Appellees in No. 96-0839.

PHILLIPS, Chief Justice, delivered the opinion of the Court as to Parts I, II, IV, and V, in which OWEN, Justice, joins. GONZALEZ and BAKER, Justices, join in Parts I, IV, and V of the Court's opinion and in the judgment. HECHT, Justice, joins in Parts IV and V of the Court's opinion and in the judgment. CORNYN, ENOCH, SPECTOR and ABBOTT, Justices, join in Parts I, II, and IV of the Court's opinion.

Subchapter 74D of the Texas Agriculture Code (the Act) provides for the creation and *457 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 § 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 §§ 74.101-74.127.^[1] Instead of directly creating the Foundation, however, the Legislature merely authorized the Commissioner of Agriculture to certify some nonprofit organization representing cotton growers to create the Foundation and propose geographic eradication zones. See TEX. AGRIC. CODE § 74.103(a). The Act authorizes the creating organization or the Foundation to conduct referenda in each proposed eradication zone ("zone referenda") to determine whether those cotton growers desire to establish an official boll weevil eradication zone. See id. § 74.105. Contemporaneous with the zone referendum, the growers are also to elect a member to represent them on the Foundation's board. See id. § 74.106. If the growers vote not to establish a zone, their board selection is without effect. Id. § 74.105(d).

Under the Act, once the initial zone has been created and the first board member elected, the growers of that zone must approve the assessment to fund the eradication at a subsequent referendum. Thereafter, the board is authorized to determine the assessment needed for each additional participating zone, which must be approved by the growers at a referendum. See id. § 74.113; 4 TEX. ADMIN. CODE § 3.3(c). The Foundation may collect the assessment only if the assessment referendum passes. See TEX. AGRIC. CODE § 74.113(e). Approval of a zone and of the assessment each requires a vote of either two-thirds of the cotton growers in the zone or of those who farm more than one-half of the cotton acreage in the zone. See id. §§ 74.113(d), 74.114(g). The election of board members, on the other hand, requires only a plurality vote. See id. § 74.114(c)(2); 4 TEX. ADMIN. CODE § 3.6(c).

The Foundation exercises broad governmental powers. Besides being authorized to conduct elections in proposed eradication zones, Tex. Agric. Code § 74.108(a)(1), (2), the board may add an area to a zone under certain circumstances if approved by a referendum of cotton growers in the area. Id. *458 § 74.108(b). The board determines what eradication programs to conduct. Id. § 74.108(a)(4). The Foundation may impose penalties for late payment of assessments. Id. § 74.115(a). A cotton grower who fails to pay an assessment within ten days of its due date must destroy his cotton crop. Id. § 74.115(b). If the grower fails to do so, his crop is automatically declared a public nuisance. Id. On the Foundation's recommendation, and after notice, the Department of Agriculture must destroy it, even if not infested with boll weevils, at the owner's cost. Id. In addition, a cotton grower who violates the statute (including, presumably, by failing to pay an assessment or failing to destroy his own crop if payment is more than ten days late) is guilty of a Class C misdemeanor. Id. § 74.126(b). Cotton which a delinquent grower has already produced and harvested is subject to a lien. Id. § 74.115(c). Representatives of the Foundation may enter private property which is subject to eradication without the owner's permission for any purpose under the Act, including "the treatment, monitoring, and destruction of growing cotton or other host plants." Id. § 74.117. Finally, the Commissioner and the Foundation may adopt rules necessary to carry out the purposes of the Act. Id. § 74.120(c).

While growers in a zone must approve their assessments, they do not approve the type of eradication program or the amount of debt incurred by the Foundation to finance it. These matters are left to the Foundation's discretion. If the eradication program is discontinued for any reason, the Foundation may continue collecting assessments "as necessary to pay the financial obligations of the foundation." Id. § 74.127(c).

Under the Act, some power is retained by the Commissioner of Agriculture. For example, the Foundation can change the number of board positions or the eradication zone representation on the board only with the Commissioner's approval. Id. § 74.107(b). The Commissioner must also make rules to protect life and property from pesticides and other aspects of eradication programs. Id. § 74.120. See 4 TEX. ADMIN. CODE §§ 3.20-3.24. The Commissioner may prohibit planting cotton in zones when it would jeopardize the success of an eradication program. Id. § 74.118. See 4 TEX. ADMIN. CODE §§ 3.50-3.57. The Commissioner may exempt a cotton grower from payment of the Foundation's assessment penalties if payment would leave the grower with less than $15,000 taxable income. Id. § 74.116. See 4 TEX. ADMIN. CODE §§ 3.70-3.81. The Foundation may expend revenue only on "programs approved by the commissioner as consistent with this subchapter and applicable provisions of the constitution." TEX. AGRIC. CODE § 74.109(h). Finally, the Commissioner must determine when elimination of boll weevils is no longer necessary to prevent economic loss to cotton growers. Id. §§ 74.102(6), 74.112.

After a referendum has passed, the cotton growers in the zone must be allowed to conduct referenda "periodically" under the terms prescribed in the initial referendum to determine whether to continue their assessments, id. § 74.105(f), although the Act says nothing about how often these referenda must occur. In addition, the Foundation must conduct a referendum on whether to discontinue the program on the petition of at least forty percent of the cotton growers in the zone. Id. § 74.112(f)-(i). As noted, however, the Foundation may continue to collect assessments previously approved to pay its financial obligations. Id. § 74.127(c).

B

Because the Texas Constitution prohibits occupation taxes on agricultural pursuits, see TEX. CONST. art. VIII, § 1(c), lawmakers focused on the constitutionality of the Act when considering its passage. See SENATE DEBATE ON SB 30 (Feb. 3, 1993) (tape 1); HOUSE RESEARCH ORGANIZATION BILL ANALYSIS of SB 30 at 9 (Feb. 24, 1993); SENATE NATURAL RESOURCES COMMITTEE PUBLIC HEARING ON SB 30 (Jan. 25, 1993); SENATE SUBCOMMITTEE ON AGRICULTURE HEARING ON SB 30 (Jan. 27, 1993). In an apparent attempt to preempt any constitutional problems, the Legislature included several references to Article XVI, Section 68 of the Texas Constitution. That section, which creates a limited exception to the ban on agricultural occupation taxes, provides:

*459 The legislature may provide for the advancement of food and fiber in this state by providing representative associations of agricultural producers with authority to collect such refundable assessments on their product sales as may be approved by referenda of producers. All revenue collected shall be used solely to finance programs of marketing, promotion, research, and education relating to that commodity.

TEX. CONST. art. XVI, § 68 (emphasis added).^[2] The parties do not dispute that the primary purpose of the Act is pest eradication, which is not one of the purposes expressly listed in Section 68. The Legislature nonetheless declared in the statute:

The creation and use of a boll weevil eradication foundation as a vehicle to provide for assessments and governing boards and to establish eradication zones in order to suppress and eradicate boll weevils and other cotton pests are consistent with the goals and uses of revenue established under Article XVI, Section 68, of the Texas Constitution.

TEX. AGRIC. CODE § 74.101(c). In its "Findings and Declaration of Policy," the Legislature further declared that

there exists a need to develop, carry out, and participate in programs of research such as disease and insect control; marketing to show low risk of pests in interstate and intrastate movement of cotton commodities; promotion of pest-free cotton commodities which increase market demand; and education of cotton raisers, cotton users, regulators, policymakers, and the general public on the effect of pests on cotton, its utility, its marketing, its yield, and its promotion....

TEX. AGRIC. CODE § 74.101(a)(2) (emphasis added). Also, the statute requires the Foundation to recommend assessments in an amount sufficient to "finance programs of marketing, promotion, research, and education calculated to increase the production and use of cotton." TEX. AGRIC. CODE § 74.113(a) (emphasis added). Although, as discussed in part II below, the Foundation does not now rely on Article XVI, Section 68 to support the eradication programs, it appears that the Legislature attempted to mold the language of the Act to fit within that constitutional provision.

C

In May 1993, Texas Cotton Producers, Inc., a nonprofit organization representing cotton growers, petitioned the Commissioner for authority to create the Foundation. In its petition, Texas Cotton Producers proposed nine eradication zones around the state and provided that the Foundation board would consist of a corresponding nine members. Texas Cotton Producers further provided that "[o]n creation of the proposed official cotton growers' boll weevil eradication foundation by TCP the initial board will be appointed by the board of TCP pending conduct of the board election."

While the nine-member board is consistent with the requirements of section 74.103(b)(2), which permits a six, nine, twelve, or fifteen person board, the statute never authorizes the creating organization to appoint the initial Foundation board. Despite this flaw, the Commissioner certified Texas Cotton Producers to create the Foundation. In September 1993, Texas Cotton Producers incorporated the Foundation as a Texas nonprofit corporation, appointing nine members to the board who purportedly represented each of the nine proposed eradication districts. The Foundation has since conducted six zone referenda, and in each instance the growers elected as their board representative the person previously appointed by Texas Cotton Producers to represent that proposed zone. In the meantime, the remaining appointed members apparently voted on all Foundation matters, including the setting of assessments and expenditure of funds.

In April 1995, the Foundation conducted a referendum in the proposed High Plains Eradication Zone, which comprises all or *460 parts of thirty West Texas counties. The cotton growers approved creation of the zone, and also approved the following maximum assessments:

A maximum of $1.25 per planted cotton acre in Armstrong, Bailey, Castro, Cochran, Deaf Smith, Lamb, Parmer, Randall and Swisher Counties, and

A maximum of $1.25 per planted cotton acre and $0.0075 per pound of CFSA [Consolidated Farm Service Agency] established yield per planted cotton acre in Briscoe, Crosby, Floyd, Hale, Hockley, Lubbock, Lynn, Terry and Yoakum counties, and

A maximum of $1.25 per planted cotton acre and $0.0125 per pound of CFSA established yield per planted cotton acre in Andrews, Borden, Dickens, Ector, Gaines, Garza, Howard, Kent, Martin, Midland and Motley Counties.

The following September, ten cotton growers from the High Plains Zone sued the Foundation in district court in Hale County, challenging the validity of the referendum and assessments. The plaintiffs contended that the assessments were an occupation tax on an agricultural pursuit, that the assessments further violated their right to equal protection under the United States and Texas Constitutions, that the penalty provisions of the act violated the right to due process under the United States Constitution and the right to open courts under the Texas Constitution, and that the Legislature improperly delegated authority to the Foundation in violation of the Texas Constitution's separation of powers mandate. The plaintiffs also alleged that, even if the statute is constitutional, the Foundation violated the statute by improperly defining the High Plains Zone, by proposing a nonuniform assessment, and by not providing for subsequent referenda on the referendum ballot. Plaintiffs finally alleged that the Foundation did not comply with the Open Meetings Act.

After discovery, the trial court granted summary judgment for the plaintiffs, without stating specific grounds. The court's final judgment awarded plaintiffs the assessments they had paid, together with their attorneys' fees, and permanently enjoined the Foundation from levying further assessments against the plaintiffs. The Foundation appealed directly to this Court, and we accepted jurisdiction. See TEX. GOV'T CODE § 22.001(c); TEX.R.APP.P. 140.

D

In April 1994, the Foundation conducted a referendum in the proposed Lower Rio Grande Valley Eradication Zone, which comprises nine South Texas counties. The cotton growers approved creation of the zone, and the following October they approved an assessment of $18 per acre on irrigated land and $12 per acre on unirrigated land. One year later, however, the growers petitioned for another referendum to cancel the program. See TEX. AGRIC. CODE § 74.112(f). This referendum passed in January 1996, thus terminating the eradication program in the Lower Rio Grande Valley Zone. The Foundation, however, continued billing growers for the assessments, solely to retire the $9 million debt already incurred for eradication.

In July 1996, thirty-one Lower Rio Grande Valley cotton growers sued the Foundation to enjoin collection of the assessments.^[3] The plaintiffs contended that the assessments were occupation taxes on an agricultural pursuit, violating both procedural and substantive due process under the United States Constitution and procedural and substantive due course of law under the Texas Constitution, and that the statute vested unreasonable and excessive power in the Foundation. After an evidentiary hearing, the trial court rendered a temporary injunction enjoining collection of the assessments, which the Foundation also appealed directly to this Court. We accepted jurisdiction and consolidated the two appeals.

II

The growers^[4] argue that the Act, on its *461 face and as applied to them,^[5] violates Article VIII, Section 1(c) of the Texas Constitution, which provides that "[p]ersons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax." The growers contend that the assessments do not fall under the exception in Article XVI, Section 68 because, among other reasons, the assessments are not refundable as required by that provision.

Because the Foundation concedes that the assessments are not refundable, it does not attempt to support them under Article XVI, Section 68.^[6] Instead, the Foundation argues that the assessments are regulatory fees imposed under the State's police power, rather than occupation taxes.

As noted, the Legislature referenced Article XVI, Section 68 several times in the Act. However, we reject the growers' argument that an assessment not comporting with Article XVI, Section 68 is automatically void. That the Legislature may have relied primarily on that constitutional provision does not preclude us from considering whether it is valid on another basis. See Cain v. City of Tyler, 261 S.W. 1018, 1021 (Tex. Com. App.1924, judgm't adopted); Bullock v. Texas Skating Ass'n, 583 S.W.2d 888, 893 (Tex. Civ.App.—Austin 1979, writ ref'd n.r.e.). The Legislature has broad discretion to legislate under its police power, and we must uphold such legislation as long as it is justified by a rational legislative purpose and does not violate a specific constitutional provision. See State v. Project Principle, Inc., 724 S.W.2d 387, 391 (Tex.1987). Fees that are imposed against persons in an industry, when only in an amount reasonably necessary to fund the State's regulation of that industry, are not occupation taxes. See, e.g., City of Fort Worth v. Gulf Refining Co., 125 Tex. 512, 83 S.W.2d 610, 617-618 (1935). Thus, if the assessments are merely regulatory fees, as the Foundation contends, they are not prohibited by Article VIII, Section 1(c), and the applicability of the restriction in Article XVI, Section 68 is immaterial.

We have articulated a "primary purpose" test for determining whether an assessment is an occupation tax or a regulatory fee:

The principle of distinction generally recognized is that when, from a consideration of the statute as a whole, the primary purpose of the fees provided therein is the raising of revenue, then such fees are in fact occupation taxes, and this regardless of the name by which they are designated. On the other hand, if its primary purpose appears to be that of regulation, then the fees levied are license fees and not taxes.

H. Rouw Co. v. Texas Citrus Comm'n, 151 Tex. 182, 247 S.W.2d 231, 234 (1952). See also Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 899 (1937). Because money is fungible, this determination is not controlled by whether the assessments go into a special fund or into the State's general revenue. See Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488, 496-497 (1903).

Of course, almost all fees or assessments are intended to raise revenue. The critical issue is whether the assessment is intended to raise revenue in excess of that reasonably needed for regulation. See City of Fort Worth, 83 S.W.2d at 618; Producers Ass'n of San Antonio v. City of San Antonio, 326 S.W.2d 222, 224 (Tex.Civ.App.—San Antonio 1959, writ ref'd n.r.e.). For example, in Producers Association, the court held that an inspection fee imposed against milk producers was a regulatory fee, not an occupation tax. 326 S.W.2d at 324. The undisputed evidence reflected that the annual cost of inspecting dairies was $38,000, while the inspection *462 fee generated only about $30,000 annually. Id. On the other hand, the court in City of Houston v. Harris County Outdoor Advertising Ass'n, 879 S.W.2d 322 (Tex. App.—Houston [14th Dist.] 1994, writ denied), cert. denied, ___ U.S. ___, 116 S.Ct. 85, 133 L.Ed.2d 42 (1995), held that permit fees levied against billboard owners constituted an occupation tax.^[7] The evidence, in the form of a detailed accounting study, reflected that the fees generated revenues equaling from four to ten times the cost of regulation, and thus were intended primarily to raise revenue. 879 S.W.2d at 329.

Here, the growers do not argue that the Foundation's assessments exceed the amount needed for eradication. Rather, they argue that eradication of the boll weevil does not constitute "regulation of the cotton industry" for purposes of applying the primary purpose test. We disagree.

Texas is and has long been the nation's leading cotton producer. See UNITED STATES DEP'T OF AGRICULTURE, NATIONAL AGRICULTURAL STATISTICAL SERVICE (1994); TEXAS ALMANC 1996-1997, 600 (The Dallas Morning News 1995). In 1994, the value of the Texas crop exceeded $1.6 billion, accounting for about one-fourth of the nation's total cotton production. Texas Almanac 1996-1997 at 600. The House Research Organization concluded when considering the Act that, despite annual expenditures of $23 million for boll weevil control, the pest still causes over $20 million per year in crop losses. See HOUSE RESEARCH ORGANIZATION BILL ANALYSIS OF SB 30 at 5 (Feb. 24, 1993). None of the parties or amici disputes the Legislature's characterization of the boll weevil as a "public nuisance." Tex. Agric. Code § 74.001.

The abatement of nuisances is within the regulatory power of the State. See Pope v. City of Houston, 559 S.W.2d 905, 907-908 (Tex.Civ.App.—Waco 1977, writ ref'd n.r.e.). In Williams v. State, 146 Tex.Crim. 430, 176 S.W.2d 177 (App.1943), the Court of Criminal Appeals, in reviewing the validity of planting restrictions aimed at controlling the pink bollworm, noted the extreme economic importance of cotton to this State's economy. See 176 S.W.2d at 182. The Court accordingly concluded that

[t]he preservation and protection of [the cotton] industry from destruction or serious injury was a subject properly within the police power of the Legislature of this State.

Id. See also Kilpatrick v. Compensation Claim Bd., 259 S.W. 164, 167 (Tex.Civ.App.— El Paso 1924, no writ) (holding that Pink Bollworm Act was a necessary exercise of the State's police power).

We hold that eradication of the boll weevil is a proper subject for regulation by the State pursuant to its police power. Because the Foundation's assessments are levied in an amount needed to fund the eradication programs, and are used for that purpose, we hold that they are regulatory fees, not occupation taxes.

Our decisions in H. Rouw Co. v. Texas Citrus Commission, 151 Tex. 182, 247 S.W.2d 231 (1952), and Conlen Grain and Mercantile, Inc. v. Texas Grain Sorghum Producers Board, 519 S.W.2d 620 (Tex.1975), are not to the contrary. In Rouw, the Court concluded that assessments levied against citrus growers were taxes, rather than regulatory fees. The assessments were to be used for

education and research for the purpose of increasing knowledge with respect to Texas citrus fruits and by-products, and protecting Texas citrus fruits from pests and diseases and of finding new uses for Texas citrus fruits and by-products and of improving the quality and yield of such fruit and by-products.

247 S.W.2d at 232. Although some of these uses (i.e., protection from pests and diseases) may be comparable to eradication, the Court in Rouw did not specifically focus on whether pest control alone might constitute appropriate police power regulation. Indeed, the Court drew no distinction among the various programs allowed under the statute, presumably because there was no evidence as to how *463 the assessments were being allocated among them. Instead, the Court viewed the statute as having two overriding purposes: 1) advertising and enlarging the markets for Texas citrus fruit; and 2) funding research beneficial to the citrus industry. See 247 S.W.2d at 234. Considering these purposes, the Court concluded that the statute was intended primarily to raise revenue rather than to regulate the citrus industry. Id.

In Conlen, the Court invalidated assessments levied against grain sorghum producers, concluding that they were agricultural occupation taxes. The Grain Sorghum Board was required to use the assessments for

developing, carrying out, and participating in programs of research, disease and insect control, predator control, education, and promotion, designed to encourage the production, marketing, and use of [grain sorghum].

519 S.W.2d at 621-22. As in Rouw, the Court did not specifically consider whether "disease and insect control" standing alone might be considered a regulatory function. Instead, the Court viewed the statute as primarily intended to promote the grain sorghum industry, analogizing it to the statute invalidated in Rouw. Id. at 623-24. Accordingly, neither Rouw nor Conlen stand for the proposition that assessments levied solely to eradicate a public nuisance constitute occupation taxes.

The growers point out that the Act is not confined to eradication. Rather, the Foundation is also authorized to use the funds for "other programs consistent with the declaration of policy stated in Section 74.101 of this code." TEX. AGRIC. CODE § 74.113(f)(3). Section 74.101 appears to contemplate promotion and marketing programs like the ones at issue in Conlen and Rouw. We need not decide today, however, whether the Foundation's implementation of marketing or promotional programs would violate the Texas Constitution.^[8] The undisputed evidence reflects that, except for a small percentage for overhead, all assessments are spent on eradication. We may not hold the statute facially invalid simply because it may be unconstitutionally applied under hypothetical facts which have not yet arisen. See Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995).

The growers also argue that the Act cannot be considered regulatory because the assessments are levied uniformly against all cotton producers in a zone, regardless of whether that producer's crop is actually infested with boll weevils. We disagree. Several cotton growers' associations assert in amicus briefs that, because the boll weevil may migrate from field to field, a successful eradication program must be coordinated on a regional basis without regard to individual infestation. This proposition, which the growers do not dispute, is reflected in the legislative scheme.

We note that the Lower Rio Grande Valley case is factually distinguishable in that the assessments there are being used to retire a bank loan, rather than to fund ongoing eradication. However, this does not negate the regulatory character of the assessments. There is no dispute that the money which the Foundation borrowed for the Lower Rio Grande Valley Zone was used for eradication. That funds for the program were advanced by a lending institution, rather than paid for directly from the assessments, does not change the essential purpose of the assessments.

For the foregoing reasons, we hold that the assessments levied in the High Plains Zone and in the Lower Rio Grande Valley Zone are regulatory fees, rather than occupation taxes. The Act thus does not violate Article VIII, Section 1(c) of the Texas Constitution, either facially or as applied to the growers.

III

The growers also argue that the Act, on its face and as applied to them, violates their right to procedural due process under the United States Constitution and their right to *464 open courts under the Texas Constitution because it does not adequately allow them to challenge the Foundation's assessments.

The Fourteenth Amendment to the United States Constitution prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law...." U.S. Const., amend. XIV, § 1. This due process guarantee requires states to provide a meaningful postdeprivation remedy, and in some instances a predeprivation remedy, to a person challenging the validity of a fee or assessment. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 10-14 at 720-21 (2d ed. 1988). The Texas Constitution guarantees that "[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." TEX. CONST. art. I, § 13. This guarantee ensures citizens access to courts "unimpeded by unreasonable financial barriers." Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993). Thus, the Legislature may not require a taxpayer to prepay a tax before challenging its validity. Id. at 449-450.

The Act provides that "[a] cotton grower who fails to pay an assessment levied under this subchapter when due may be subject, after reasonable notice, to a penalty set by the board." TEX. AGRIC. CODE § 74.115(a). "A cotton grower who fails to pay all assessments and penalties before the 10th day after receiving notice of the delinquency shall destroy any cotton growing on the grower's acreage that is subject to the assessment." Id. § 74.115(b). Cotton plants that are not destroyed are declared to be a "public nuisance," and the Department of Agriculture may apply to a district court to have them destroyed. Id. Moreover, the statute appears to require the Department, on the Foundation's recommendation and after seven days' notice, to enter a grower's premises and destroy the crop even without a court order. See id. §§ 74.004(c), 74.115(b). Although the Commissioner's regulations provide a procedure for challenging a penalty, see 4 TEX. ADMIN. CODE § 3.57, neither the Act nor the regulations provide a method for a grower to challenge the underlying assessments or the destruction of his or her crop. The statute also allows the Department to perfect a lien on a delinquent grower's harvested cotton. See id. § 74.115(c).

While the growers raise a serious question as to whether the Act violates their constitutional rights to open courts and procedural due process, I do not attempt to resolve this issue because the Court holds the Act unconstitutional on other grounds.

IV

The growers also complain that the Act, on its face and as applied to them, violates their right to equal protection under Article I, Section 3 of the Texas Constitution and the Fourteenth Amendment to the United States Constitution. Under the Act, producers in a participating zone may be assessed even though they have no actual boll weevil infestation, while producers in another zone with infestation may pay no assessment because that zone elected not to participate. Also, the producers in different zones may pay different levels of assessments.

The Legislature has broad discretion in enacting social or economic legislation that does not classify on suspect categories, such as race, or impinge on fundamental rights. Under both federal and state equal protection analysis, such legislation is valid as long as it is rationally related to a legitimate state interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254-3255, 87 L.Ed.2d 313 (1985); Richards v. League of United Latin American Citizens, 868 S.W.2d 306, 310-311 (Tex. 1993). No party contends that more heightened scrutiny is appropriate.

The Act satisfies these requirements. As discussed previously, the Legislature could have reasonably concluded that eradication, to be effective, should be conducted uniformly over a broad area without regard to individual infestation. Also, the referendum system which the Legislature adopted is not irrational, as it allows those persons most familiar with the boll weevil problem in each area—the cotton producers—to decide whether to participate in the eradication program. The equal protection clause is not, without more, violated merely *465 because a law treats different geographic regions or political subdivisions differently, or because it allows political subdivisions the discretion to adopt or reject a statutory scheme. See Richards, 868 S.W.2d at 311-312. We thus hold that the Act, on its face and as applied to the growers, does not violate their right to equal protection.

Next, the growers assert that the categories drawn by the Legislature violate substantive due process under the Fourteenth Amendment to the United States Constitution. As they do not offer a substantive due process analysis that differs from, or affords greater relief than, their equal protection argument, we also reject this claim.^[9]

Moreover, the growers contend that, because of the statute's classifications, it is a local or special law in violation of Article III, Section 56 of the Texas Constitution. A local law is limited to a specific geographic region of the State, while a special law is limited to a particular class of persons distinguished by some characteristic other than geography. See Maple Run at Austin Munic. Utility Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex.1996). Legislation does not violate Article III, Section 56, however, as long as there is a reasonable basis for its classifications. Id. As explained above, the Act satisfies this test.

V

Finally, we turn to the growers' argument that the Legislature violated Article II, Section 1 of the Texas Constitution, requiring the separation of powers between the legislative, executive, and judicial branches, by improperly delegating governmental authority to the Foundation. In particular, the growers contend that the Foundation is a private entity whose directors are neither constrained before they act by meaningful standards nor made accountable after they act by administrative, judicial, or popular review. In response, the Foundation contends that both the Legislature's guidelines and the Commissioner of Agriculture's supervisory authority are constitutionally adequate.

A

"The delegation of legislative power is an old concern...." Peter H. Aranson et al., A Theory of Legislative Delegation, 68 Cornell L.Rev. 1, 4 (1982). A century before American independence, John Locke articulated the theoretical imperative for preserving legislative power in the legislative branch:

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.... And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorized to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.

JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 380-381 (2d Treatise) (Cambridge University Press 1960). The prohibition on unwarranted delegation of lawmaking power is "rooted in the principle of separation of powers that underlies our tripartite system of Government." Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989). The United States Constitution expressly vests legislative power in the Congress, see U.S. CONST. art. I, § 1, and the Texas Constitution similarly vests legislative power in our Legislature. See TEX. CONST. art. II, § 1; art. III, § 1. Thus, "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is vested." A.L.A. Schechter Poultry Corp. v. United States, 295 *466 U.S. 495, 529, 55 S.Ct. 837, 843, 79 L.Ed. 1570 (1935). Likewise, in our State "[t]he power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal." Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 941 (1935).

Yet, like many truisms, these blanket pronouncements should not be read too literally. Even in a simple society, a legislative body would be hard put to contend with every detail involved in carrying out its laws; in a complex society it is absolutely impossible to do so. Hence, legislative delegation of power to enforce and apply law is both necessary and proper. E.g., Field v. Clark, 143 U.S. 649, 693-694,