Delegations to Private Entities: the Application of the Boll Weevil Eight Factor Test

DELEGATIONS TO PRIVATE ENTITIES: THE APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST

I. INTRODUCTION ...... 275 A. United States Supreme Court and the Nondelegation Doctrine ...... 275 B. Nondelegation Jurisprudencein Texas Priorto Boll Weevil ...... 277 C. Boll W eevil Decision ...... 278 II. NONDELEGATION CASES SINCE TEXAS BOLL WEEVIL ...... 283 A. ArbitrationClause Cases ...... 283 1. Proctor v. Andrews ...... 283 2. W ilson v. Andrews ...... 288 B. FM Properties Operating Co. v. City of Austin ...... 289 C. Ex ParteElliot ...... 294 III. CONCLUSION ...... 297

I. INTRODUCTION

The Constitution of the United States vests all legislative powers in Congress.' Similarly, the Texas Constitution vests legislative power in the "Legislature of the State of Texas."' However, given the complexity of society, no legislature possesses the time, resources, or expertise to draft laws regulating every aspect of society.3 Congress has delegated its powers on numerous occasions to allow the government to function. The United States Supreme Court has stated that the delegation of power is both necessary and proper.'

A. UnitedStates Supreme Courtand the NondelegationDoctrine

The nondelegation doctrine prohibits Congress from delegating its legislative powers to any other institutions.6 The history of the nondelegation doctrine in the United States Supreme Court can generally be divided into three categories: (1) cases prior to the New Deal; (2) New Deal cases; and (3) post New Deal cases.7 Prior to the New Deal, the Supreme Court was

1. U.S.CONST. art. I, § 1. 2. TEx. CONST. art. 1i, § 1. 3. Field v. Clark, 143 U.S. 649, 693-94 (1892). 4. RICHARD J. PIERCE, JR. ET AL., ADMINISTRATIVE LAW AND PROCESS § 3.4 (3d. ed. 1999). 5. Field, 143 U.S. at 693-94. 6. Id. 7. Id. 276 TEYAS TECH JOURiNAL OF TEXASADMINISTRATIVE LAW [Vol. 2:275 reluctant to apply a strict interpretation of the nondelegation doctrine.' Different tests were employed by the Court to determine the constitutionality of the delegation.9 In the first nondelegation case to come before the Court, the legislation involved was approved because the authority delegated to the executive was limited to taking a specific, prescribed action mandated by Congress when a named contingency occurred." The "named contingency" test was abandoned in the first case where its use would not have permitted the delegation." In Butterfield v. Stanahan, the Court announced it would allow delegations if the legislature set sufficient standards to clearly limit the scope of the agency's authority to regulate.'I The change of tests alone was not sufficient to save the delegation in Butterfield.4 The Court also interpreted the legislative history and determined that the authority of the executive to set rules was sufficiently limited." Prior to the New Deal, the Court employed a pragmatic approach that only required Congress to establish a sufficiently "intelligible principle" to which a delegate should conform.' The Court also saved vague delegations by finding a more definitive meaning for words in the legislative history of the statutes.' The Court's reluctance to strictly apply the nondelegation doctrine ended in the New Deal." In Panama Refining Co. v. Ryan, 9 the Court struck down a provision of the National Industrial Recovery Act (NIRA) because Congress failed to give the President an intelligible principle or guiding standard to follow when enforcing the statute.2" The Court held other provisions of the NIRA unconstitutional in A.L.A. Schecter Poultry Corp. v. United States.2' The Court held that Congress could not delegate legislative power to the President to exercise unfettered discretion to make whatever laws he thinks are needed.' During the New Deal, the Court also invalidated a statute that delegated rule-making power to a private group of coal miners and producers.?

8. Id. 9. Id. 10. The Cargo ofthe Brig Auromra BumnSide v. United States, II U.S. (7 Cranch) 380 (i813). 11. PIERCE, jupra note 4, § 3.4.1. 12. 192 U.S. 470 (1904). 13. Id. at 497. 14. Id. at496-97. 15. Id. 16. PIERCE, supra note 4, 3.4. 1. 17. Id. 18. Id. § 3.4.2. 19. 293 U.S. 388 (1935). 20. Id. at 431-33. 21. 295 U.S. 495 (1935). 22. id. at 537-38. 23. Carter v. Carter Coal Co., 298 U.S. 238 (1936). 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 277

Since the New Deal cases, the Supreme Court has approved all of the legislation it has reviewed under the nondelegation doctrine.24 The Court's willingness to favorably interpret legislative delegations has created a body of case law that can be used to approve broad and vague delegations." Justice Thurgood Marshall stated that the nondelegation doctrine "has been virtually abandoned by the Court for all practical purposes."26 Recently, some members of the Supreme Court have suggested their willingness to strictly enforce the nondelegation doctrine, however, the majority of the Court has rejected the idea of reinvigorating the doctrine."

B. NondelegationJurisprudence in Texas Priorto Boll Weevil

Texas courts have a history of invalidating legislative delegations more frequently than courts of other states or the federal courts. 28 Prior to Boll Weevil,2 the most significant delegation case was HousingAuthority of Dallas v. Higginbotham." The case dealt with the Housing Authorities Law, which gave the Housing Authority of Dallas the power to exercise eminent domain.3 In Higginbotham, the Texas Supreme Court first determined the legislature had provided sufficient standards to guide the Housing Authority in its functioning. 2 The court then enumerated six categories of acceptable legislative delegation: (1) cases where the legislature delegated authority because it could not practically or efficiently exercise such powers; (2) cases where the legislature delegated to an administrative body the power to make rules or to effectuate completed laws; (3) cases where the legislature delegated to an administrative body the power to ascertain conditions upon which an existing law may operate; (4) cases where the legislature delegated power to enforce policies and standards laid down in statutes to municipalities or entities; (5) cases where the legislature delegated power to fix rates within prescribed limits; and (6) cases where the legislature delegated the power of eminent domain.33

24. PIERCE, supra note 4, § 3.4.3. 25. Id. 26. Federal Power Comm'n v. New England Power Co., 415 U.S. 345,352-53 (1974) (Marshall, J., dissenting). 27. PIERCE, supra note 4, § 3.4.4. 28. Gary J.Greco, Standards or Sqfeguards: A Survey of the Delegation Doctrine in the States, 8 ADMIN. L.J. AM. U. 567, 580-88 (1994). 29. Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997). 30. 143 S.W.2d 79 (Tex. 1940). 31. Id. at 81. 32. Id. at 87. 33. Id. 278 TEXAS TECH JOURIVAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275

After Higginbotham, it appeared a delegation would be constitutional if it fit into one of the six categories. 4 The court later clarified that the most important factor in a delegation case was whether the legislature laid down sufficient standards to guide the delegate in its functioning." Following Higginbotham,most delegation challenges centered around either the broad- ness or vagueness of terms in the delegation. 6 In more recent cases, the Texas Supreme Court has given the legislature more room to make delegations." In RailroadCommission v. Lone Star Gas Co., the court stated the legislature did not have to include every detail in promulgating its standards in delegations." Requiring the legislature to include every detail would defeat the purpose of delegating legislative authority. 9 The court also stated that a legislative delegation was constitutional as long as the legislature establishes "reasonable standards to guide the entity to which the powers are delegated."4' Prior to Boll Weevil,4 the Texas Supreme Court had decided only one case dealing with a private delegation, which did not result in the announcing of a clear legal standard. 42 In Greene v. Robinson, the court upheld a statute that allowed private persons to lease state owned oil and gas reserves located beneath their land and dedicate the money to the Permanent School Fund.43 The court upheld the statute because the legislature had laid out all of the rules for the oil leases." In another private delegation case, the Austin Court of Appeals held legislative delegations to private entities were constitutional as long as "the legislative purpose is discernible and there is protection against the arbitrary exercise of power.""5

C. Boll Weevil Decision

Cotton is the number one row crop in Texas.4" In the last five years Texas has supplied on average over a quarter of all of the cotton produced in

34. Id. at 87. The court ruled the statute constitutional because it fit into the sixth category. 35. Jordan v. State Bd. of Ins., 334 S.W.2d 278, 280-81 (Tex. 1960). 36. See Id.; Texas Antiquities Comm. v. Dallas County Community College Dist., 554 S.W.2d 924 (Tex. 1977). 37. See Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992); Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995). 38. Railroad Comm 'n, 844 S.W.2d at 689. 39. Id. 40. Id. 41. Boll Weevil, 952 S.W.2d at 454. 42. Greene v. Robinson, 8 S.W.2d 655, 656-67 (Tex. 1928). 43. Id. at 656. 44. Id. at 656-57. 45. Office of Pub. Ins. Counsel v. Texas Auto. Ins. Plan, 860 S.W.2d 231,237 (rex. App.-Austin 1993, writ denied). 46. Robert Elder, Jr., Disturbing the Peace; Boll Weevils and Big Bucks, TEX. LAWYER, Feb. 24, 1997, at 2. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 279

the United States.'7 The insect commonly know as the boll weevil entered Texas from Mexico in 1892 and causes an estimated $20 million in crop loss in Texas each year.48 In 1993, the legislature authorized the creation of the Official Cotton Growers' Boll Weevil Eradication Foundation (Foundation) to aid in the ongoing battle against the destructive pest.'9 The legislature did not directly create the Foundation, but rather authorized the Commissioner of Agriculture to certify some nonprofit organization representing cotton growers to create the Foundation. Through local referenda, the Foundation established geographical eradication zones for the purpose of eliminating the boll weevil from cotton crops.5' Cotton growers in two of the eradication zones were unsatisfied with the results of the program and sued the Foundation.52 The growers' suit contended that the Foundation violated the Separation of Powers clause of the Texas Constitution. 3 One district court granted summary judgment for the growers while the other temporarily enjoined the Foundation from collecting the assessments." Both cases were consolidated on direct appeal to the Texas Supreme Court." Relying on concurring and dissenting opinions from United States Supreme Court cases and scholarly criticism, the Texas Supreme Court reasoned that judicial deference to delegations of legislative authority may be declining." Private delegations were distinguishable from public delegations."7 The Court concluded private delegates may have a pecuniary interest and are not elected by the public and, therefore, need to be subjected to a more stringent analysis. 8 Looking to the United States Supreme Court and to other jurisdictions, the court found that there was no standard with which it could rely on for its analysis. 9 The Court concluded that it must develop its own criteria to determine the constitutionality of a private delegation."

47. King Cotton Well Brothers USDA Crop Report, available at http://www.cotton.netUSCrop. hun (last visited Nov. 2, 2000). 48. HOUSE RESEARCH ORO., BILL ANALYSIS, Tex. S.B. 30 (1993). 49. TEx. AGRIC. CODE ANN. §§ 74.101-74.127 (Vernon 1995 & Supp. 2000). 50. Act of June 1, 1993, 73rd Leg., R.S., ch. 8, § 1, 1993 Tex. Gen. Laws 29,30, repealedby, Act of May 30, 1997, 75th Leg., R.S., ch. 463, § 1.30, 1997 Tex. Gen. Laws 1769, 1783. 51. Boll Weevil, 952 S.W.2d at 459. 52. Id. at 460. 53. Id. The plaintiffs also argued the assessments were an occupation tax on an agricultural pursuit, that the assessments violated their right to equal protection under the United States and Texas Constitutions, that the penalty provisions violated their right to due process under the United States Constitution and the right to open courts under the Texas Constitution, and the Foundation did not comply with the Texas Open Meetings Act. 54. Id. 55. Id. 56. Id. at 468. 57. Id. at 469. 58. Id. 59. Id. at 470. 60. Id. 280 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275

First it was necessary to determine whether or not the Foundation was a private entity."' The Court found that while the Foundation possessed many qualities of a governmental entity, it also possessed many characteristics of a private entity.'2 Ultimately it was determined that the Foundation was a private entity."3 The Court held "[c]ourts have universally treated a delegation as private where 'interested groups have been given authoritative powers of determination, usually in conjunction with a public administrative agency.' "4 The Court next determined what standard to apply in determining the constitutionality of a private delegation.6 Faced with a noticeable lack of precedent the court ventured into a new area of jurisprudence.' The Court formulated the following eight factor balancing test:

"1. Are the private delegate's actions subject to meaningful review by a state agency or other branch of state government? 2. Are the persons affected by the private delegate's actions adequately represented in the decisionmaking process? 3. Is the private delegate's power limited to making rules, or does the delegate also apply the law to particular individuals? 4. Does the private delegate have a pecuniary or other personal interest that may conflict with his or her public function? 5. Is the private delegate empowered to define criminal acts or impose criminal sanctions? 6. Is the delegation narrow in duration, extent, and subject matter? 7. Does the private delegate possess special qualifications or training for the task delegated to it? 8. Has the Legislature provided sufficient standards to guide the private delegate in its work?"' 7

The court was quick to emphasize the eight factor balancing test only applied to delegations to private entities. 8 Delegations to agencies or other governmental departments would continue to be governed by the standards set forth in Higginbothamand its progeny.' Applying the eight factor test the court concluded the delegation made by the legislature to the Texas Boll Weevil

61. Id. at 469. 62. Id. at 470. 63. Id. at 471. 64. Id. at 470-71 (quoting Louis L. Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201, 234 (1937)). 65. Id. at 471. 66. Id. 67. Id. at 472. 68. Id. 69. Id. 20011 APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 281

Eradication Foundation was in violation of the Texas Constitution's Separation of Powers Clause." Four of the eight factors weighed against the delegation."' In applying the first factor, the court found that while the Foundation is subject to some oversight by the Commissioner of Agriculture ("Commissioner"), that oversight did not extend to reviewing "critical decisions."" The court cited a lack of power of the Commissioner to review the "amount of assessments adopted by the growers, the total amount of funds expended on eradication, the amount of debt incurred by the Foundation, or the repayment terms for such debts." 3 The majority also found a lack of meaningful review due to the lack of authority of the Commissioner to revoke or dissolve the Foundation once it had been created as an independent entity. 4 The first factor weighed against the delegation." The third factor weighed against the delegation. 6 The Foundation's authority was more broad than just rule making." The Foundation applied the programs it devised to all growers in the approved eradication zones, collected assessments from individual growers, and entered growers' property to carry out the eradication program.'m The fourth factor also weighed against the delegation.' The board members of the Foundation were cotton growers who have a direct pecuniary interest in the programs implemented by the Foundation. 0 The eight and final factor weighed against the delegation.8" The court found that the legislature had provided very few standards to guide the Foundation. 2 While the Act provided procedures for zone referenda and specified the powers and duties of the board, it provided no guidance as to how the assessments were to be set or the amount of debt the Foundation may incur.Ys Only the second factor militated in favor of the delegation."s The cotton growers in each zone were allowed to vote whether or not to participate in the eradication program and, thereby, subject themselves to the jurisdiction of the

70. Id. at 475. 71. Id. at 473-75. 72. Id. at 473. 73. Id. 74. Id. 75. Id. 76. Id. at 474. 77. Id. 78. Id. 79. Id. 80. Id. 81. Id. at 475. 82. Id. 83. Id. 84. Id. at 473. 282 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol.2:275

Foundation, and were allowed to approve or reject any proposed assessment.85 In addressing the seventh factor, the court found it weighed against delegation on its face." The Act was designed to allow those with firsthand experience in the cotton industry to lead the eradication effort, but failed to provide any assurance that those elected will actually have special qualifications regarding the eradication of boll weevils.8 7 However, while the court found the Act failed to meet the seventh factor, it excused the failure due to the satisfaction of the second factor."8 The court admitted that it would be difficult for a private delegation both to guarantee satisfactory representation of those affected by the delegation and to vest decision making authority in a group that possesses special qualifications or training regarding the delegated task. 9 The court did not weigh the fifth factor in consideration of whether or not the Act as a whole was an unconstitutional delegation. 9" The Foundation clearly had the authority to impose criminal sanctions, which suggested to the court an improper private delegation.9' However, the principle of severability would allow the court to invalidate this power, while upholding the rest of the Act.92 The Act contains no severability clause, but the Texas Government Code provides that unless otherwise expressly prohibited, a court may invalidate one provision of a statute or its application if the invalidity does not affect the rest of the statute.93 In the present case, the Act could be implemented without the penalty provisions. 4 Thus, even though the penalty provisions appear to represent an unconstitutional delegation, this fact was not weighed in determining the validity of the Foundation's core function under the Act.'" The court also found the sixth factor to be inconclusive under the circumstances of the case.' While the statute has a specific, narrow purpose, it does not limit the cost or duration of the program. 7 The court stated that the nondelegation doctrine should be used sparingly, only where there is "delegation running riot."9 The invalidity of

85. Id. at 474. 86. Id. 87. Id. 88. Id. at 475. 89. Id.at 474. 90. Id. 91. Id. The Foundation has the authority to impose monetary penalties for late payment of assessments, direct the Department of Agriculture to destroy delinquent growers' crops, and is empowered to adopt rules, a violation of which was a criminal offense. See TEx. AGRic. CODE ANN.§§ 74.120(c), 74.126(a). 92. Boll Weevil, 952 S.W.2d at 474. 93. TEx. GOV'T CODE ANN. § 312.013(a) (Vernon 1988). 94. Boll Weevil, 952 S.W.2d at 474. 95. Id. 96. Id. 97. Id. 98. Id. at 475 (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring)). 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 283

the delegation in this case did not hinge on one provision of the Act that could be saved by being narrowly interpreted; but, rather the Act as a whole was an overly broad delegation of legislative authority to a private entity.9 Due to the finding that the Act violated half of the factors, the court felt this was an extraordinary case that required invoking the nondelegation doctrine. 0 In response to the Boll Weevil decision, the Texas Legislature significantly amended the Act to address the findings of the court.10' First, the Legislature sought to remove the Act from the eight factor test by labeling the Foundation as a "quasi-governmental entity" acting under the supervision and control of the Commissioner of Agriculture."° The Legislature addressed the fourth factor by amending the Act so board members will not be allowed to vote on any matter in which the member has a direct pecuniary interest. 0 3 The Act was also amended to provide for administrative review of all disputes arising out of certain acts taken by the Foundation, which addressed the first factor.'" The Commissioner of Agriculture was also given more power over the actions of the Foundation.'°5

II. NONDELEGATION CASES SINCE TEXAS BOLL WEEVIL

A. Arbitration Clause Cases

1. Proctor v. Andrews' 06

Under section 143.057 of the Texas Local Government Code, when a police officer or fire fighter is suspended, passed over for a promotion, or recommended for a demotion by the head of his or her department, the fire fighter or police officer may appeal the decision. 7 The appeal may be made to either the City's Civil Service Commissioner'08 or to a "neutral" and "qualified" hearing examiner selected from a list of seven candidates provided

99. Boll Weevil, 952 S.W.2d at 475. 100. Id. 101. Act of May 30, 1997,75th Leg., R.S., ch. 463, 1997 Tex. Gen. Laws 1769. 102. Act of May 30, 1997, 75th Leg., R.S., ch. 463, § 1.01(a)(3), 1997 Tex. Gen. Laws 1769 (to be codified at TEx. AOiuc. CODE ANN. § 74.101(a)(3)). 103. Act of May 30, 1997,75th Leg., R.S., ch. 463, § 1.100), 1997 Tex. Gen. Laws 1769, 1775 (to be codified at TEx. AO uC. CODE ANN. § 74.1090)). 104. ActofMay 30, 1997,75th Leg., R.S., ch. 463, § 1.11, 1997 Tex. Gen. Laws 1769, 1775 (to be codified as TEx. AGluc. CODE ANN. § 74.1095). 105. Act of May 30, 1997,75th Leg., R.S., ch. 463, § 1.15, 1997 Tex. Gen. Laws 1769, 1776-77 (to be codified at TEx. AGRIC. CODE ANN. § 74.113). (giving Commissioner power to propose assessments, rather than Foundation); Act of May 30, 1997, 75th Leg., R.S., ch. 463, § 1.06, 1997 Tex. Gen. Laws 1769, 1773 (to be codified at TFx. AGRIC. CODE ANN. § 74.105). (requiring Commissioner to conduct elections to establish a zone and to elect the Board). 106. Proctor v. Andrews, 972 S.W.2d 729 (rex. 1998). 107. TEx. Loc. GOV'T CODE ANN. § 143.057(a) (Vernon 1999). 108. Id. § 143.010. 284 TEXAS TECH JOURNAL OF TEXASADMINISTRATIVE LAW [Vol.2:275 by the American Arbitration Association (AAA) or the Federal Mediation and Conciliation Service (FMCS)."' When an appeal is made to a hearing examiner, the list of candidates is submitted to the fire fighter or police officer and their department head."' If the fire fighter or police officer and their department head cannot agree on one of the candidates within five working days of receiving the list, they alternatively strike the names from the list of the candidates."' The last remaining name will serve as the hearing examiner, The decision of the hearing examiner is "final and binding on all 3 parties."" 1 In Andrews v. Proctor,the chief of the City of Lubbock Police Force (City) suspended several officers for separate alleged violations of the City's Local Civil Service Rules."' Each officer elected to appeal his suspension to an independent third party hearing examiner."' After receiving two of the officers' requests for an independent hearing examiner, the City requested a list of candidates from AAA, but refused to comply with the striking provision. I6 Following another officer's request for an independent hearing, the City refused to even request a list of candidates from either the AAA or FMCS. 17 In refusing to comply with the statute, the City asserted section 143.057 of the Local Government Code was unconstitutional." The officers and the City each brought declaratory actions.' '9 The officers sought a declaratory judgment finding section 143.057 constitutional and a writ of mandamus compelling the City to comply with the arbitration provisions of the statute.'2 The City sought a declaratory judgment finding section 143.057 unconstitutional.' Both sides filed motions for summary judgment.'2 The trial court granted the officers' motion and denied the City's motion.'" The order declared section 143.057 to be constitutional and issued a writ of mandamus directing the city to comply with

109. Id.§ 143.057(d). 110. Id. I!!. Id. 112. Id. 113. TEX. LOC. GOV'T CODE ANN. § 143.057(c) (Vernon 2000). 114. Andrews v. Proctor, 950 S.W.2d 750,751 (rex. App.-Amarillo), rev'd, 972 S.W.2d 729 (Tex. 1998). 115. Id. 116. Id. at 751-52. 117. Id. at 752. 118. Id. 119. Id. 120. Id. 121. Id. 122. Id. 123. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 285 the provisions of the statute.'1 The City appealed the judgment of the district court. 125 One point of error in the City's appeal was that section 143.057 was an unconstitutional delegation of legislative authority on a private entity "without providing guidelines for that entity to follow in choosing qualified and neutral hearing examiners."" The Seventh Court of Appeals heard and decided this case prior to the publication of Boll Weevil. This being the case, the court relied on the standards established prior to the Boll Weevil decision in determining the constitutionality of the delegation. 2 7 The court concluded 2 s that the term "qualified" as used in the statute was impermissibly vague.' The statute empowered the AAA and FMCS to decide what the qualifications of a hearing examiner would be without any standards from the legislature to guide them in setting the qualifications.'" The court reversed the judgment of the trial court and rendered judgment that section 143.057 was "unconstitutional as an invalid delegation of legislative authority."'3 The Texas Supreme Court granted the officers' and the Attorney General's petitions for review of the Seventh Court of Appeals judgment.'' The analysis of the case started by noting that both sides treated the AAA and FMCS as private entities, when in actuality the FMCS is an independent federal agency.' The court decided to review both delegations under the Boll Weevil eight factor test applicable to private entities.' The court of appeals focused its analysis only on the last factor of the test; however, the court determined a delegation challenge requires a more comprehensive review. 114 Prior to determining the constitutionality of the statute, the court made an important finding.'" The court determined that the City did not assert the

124. Id. 125. Id. 126. Id. The other points of error asserted by the City were that the statute was unconstitutional because it deprived the City of due process and equal protection of the law under the United States Constitution and equal protection and due course of law under the Texas Constitution. The court concluded the City had no standing to challenge the statute on these points oferror. The court did not address the City's point of error asserting the statute violated the City's 'home rule" powers. 127. Id. at 753. 128. Id. 129. Id. at 754. 130. Id. at 755. 131. Proctor,972 S.W.2d at 732. 132. Id. at 734. 133. Id. The court decided that only if the delegation to the FMCS fails under the standards applicable to a private entity, would the court decide whether a more deferential standard should be applied to a delegation made to a federal agency. 134. Id. The court of appeals did not specifically address the factors developed in Boll Weevil, but rested its decision on delegation standards developed prior to the test developed in Boll Weevil. 135. Id. at 735. 286 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol.2:275 legislature impermissibly delegated authority to hear appeals to a private decisionmaker.'3 6 The issue asserted by the City was that the legislature failed to provide adequate guidelines to the AAA and FMCS to follow in choosing "qualified" and "neutral" hearing examiners.'37 While the former delegation, a broader delegation of authority, was discussed in amici briefs submitted to the court and was suggested at oral argument, it was not a part of the City's case in either the Texas Supreme Court or in the lower courts.' Therefore, the court only 'reviewed the delegation of authority to determine which hearing examiners are qualified and neutral.'39 In applying the eight factor test, the court found seven of the factors 14 weighed in favor of the delegation. 0 The only factor to weigh against the delegation was the first factor.'"' The court found that the list of seven arbitrators submitted by the AAA or FMCS was not subject to any meaningful review. 42 The statute does not provide any way for a governmental body to review a claim that the hearing examiners are not qualified or neutral."4 The lack of review is tempered as the statute allows the parties to strike candidates from the list who they deem to be biased or unqualified. 14 In the end, this right is limited because one of the candidates will be selected as the hearing examiner, whether one or both of the parties is not satisfied with the candi- 5 date. 14 The second factor weighed in favor of the delegation.'4 6 The parties are free to agree on an independent hearing examiner without having to resort to the AAA or FMCS for a list of candidates. 1 7 If the parties fail to agree on a hearing examiner, the City must request a list of candidates from either the AAA or FMCS. 4 ' If the parties fail to agree on a candidate on the list, they alternately eliminate names from the list with the last name serving as the hearing examiner 49 The court found the procedure, taken as a whole, provided adequate participation of the affected parties.5 0 The third factor weighed in favor of the delegation.'' The delegation made to the AAA and FMCS is limited to nominating individuals to serve as

136. Id. 137. Id. 138. Id. The cities of Marshall, Amarillo, and Garland submitted amici briefs. 139. Id. 140. Id. at 735-38. 141. Id. at 735. 142. Id. 143. Id. at 735-36. 144. Id.at 736. 145. Id. 146. Id. 147. Id. 148. Id. 149. Id. 150. Id. 151. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 287 hearing examiners and does not involve making rules or applying the law to individuals.' The fifth factor weighed in favor of the delegation." 3 Neither the AAA nor FMCS has the power to impose criminal sanctions or to define criminal acts." The sixth factor was also found to weigh in favor of the delegation."5 The AAA's and FMCS' only role is to provide a list of candidates to serve as hearing examiners."16 "The delegation is narrow in duration, extent, and subject matter.""' The fourth factor weighed in favor of the delegation." The AAA and FMCS both have expertise in the area of arbitration and are highly respected entities.'59 The City urged that the entities would be biased towards the fire fighters and police officers because the fire fighters and police officers are the ones who have the ability to opt for an appeal heard before an independent hearing examiner." ° However, the City has the ability to counter the fire fighter's or police officer's "ability to unilaterally opt for an independent hearing examiner" through its input in the choice of the hearing examiner.' 6' The court found neither of the entities have a private interest at stake and, thus, there is no conflict of interest. 62 The AAA and FMCS are entities who specialize in arbitration.'6 The two organizations have an expertise in selecting and training qualified arbitrators to serve in particular cases.'" The court found that twenty-eight jurisdictions have statutes allowing for the selection of arbitrators from lists provided by the AAA or FMCS. 16 Therefore, the seventh factor weighed in favor of the delegation as the two entities possess special qualifications and training for the task delegated to it.'" Finally, the court disagreed with the court of appeals and found the eighth factor weighed in favor of the delegation. 67 The standard provided by the statute is that the names on the list are to be those of uqualified neutral arbitrators."63 While the Legislature did not set specific requirements to

152. Id. The court noted the third factor would disfavor the broader delegation of authority to hear appeals to a private decisionmaker. 153. Id. 154. Id. at 736-37. 155. Id. at 737. 156. Id. 157. Id. 158. Id. at 736. 159. Id. 160. Id. 161. Id. 162. Id. 163. Id. at 737. 164. Id. 165. Id. 166. Id. 167. Id. 168. TEx. LOC. GOV'T CODE ANN. § 143.057(d) (Vernon 2000). 288 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275 direct the AAA or FMCS as to what constitutes a "qualified neutral arbitrator," the standards are not necessary if the terms themselves provide sufficient guidance to the delegates in exercising the authority delegated to them by the Legislature."' The terms "qualified" and "neutral" provide'sufficient guidance to the AAA and FMCS in selecting arbitrators.'7" Applying the Boll Weevil test, the court concluded that section 143.057(d) was not an overly broad 7 delegation of legislative authority.' '

2. Wilson v. Andrews'"

While Proctor was still pending, the City brought an action for declaratory judgment under the same circumstances involving section 143.057.173 The City filed a motion for summary judgment to which the Attorney General filed a response and a cross-motion for summary judgment that was subsequently adopted by the officer.'7' The trial court denied the City's motion and upheld the constitutionality of the statute.' 7 The City appealed the decision of the trial court.'7" The court of appeals, once again, found section 143.057 to be "an unconstitutional delegation of legislative authority" to a private entity.'" Specifically, the statute failed "to provide any guidelines to the AAA or FMCS in determining whether examiners are 'qualified' and 'neutral.' "I' The court adhered to it's holding in Proctorand did not reexamine the issue.'" The City also asserted that because it is a home rule city,'" it possesses full powers of self-government not inconsistent with the laws and Constitution of Texas.'' The City contended, absent a constitutional amendment, a home rule city cannot surrender or be compelled to surrender its governmental functions.In The City asserted the authority to direct, control, and discipline its police officers was one such function.' 3

169. Proctor,972 S.W.2d at 737 (citing Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740-41 (Tex. 1995)). 170. Id. 171. Id. at 738. 172. Wilson v. Andrews, 10 S.W.3d 663 (Tex. 1999). 173. Id. 174. Andrews v. Wilson, 959 S.W.2d 686,683 (rex. App.-Amarillo), rev 'd, 10 S.W.3d 663 (rex. 1999). 175. Id. 176. Id. 177. Id. at 690. 178. Id. 179. Id. 180. TEX. CONST. art.XI, § 11. 181. Andrews, 959 S.W.2d at 690. 182. Id. 183. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHTFACTOR TEST 289

The court determined that since section 143.057 delegated the City's governmental power to a private entity, it would apply the Boll Weevil test to determine whether the delegation was appropriate.'" The examiner's actions were not subject to meaningful review, so the first factor weighed against the delegation.'" The third factor weighed against the delegation as the examiner would obviously have to apply the law to particular individuals.'" In addition, the court found the examiner could impose quasi-criminal sanctions, weighing against the fifth factor.'" Finally, the court found the statute did not set forth any special qualifications for the examiners or establish any standards to guide the examiners, weighing against the last two factors.' Therefore, the court of appeals held the statute to be an improper delegation of the City's governmental power to a private entity.'89 All parties filed petitions for review, which were granted by the Texas Supreme Court.' " The court reiterated its decision from Proctorand held section 143.057 to be a constitutional delegation of legislative authority. 9' The court stated the City failed to argue that section 143.057 was an unconstitutional delegation of authority to hear appeals to a private decisionmaker. 2 In effect, the City failed to present its argument in a way that would distinguish it from the delegation issues addressed in Proctor.'" The court moved on to the claim that section 143.057 violated the City's home rule authority under the Texas Constitution."' The court found the City's argument in this case to be identical to its argument in Proctor and, again, rejected the argument."' The judgment of the court of appeals was reversed and the judgment of the trial court was reinstated. '9

B. FM Properties Operating Co. v. City of Austin "'

The legislature enacted section 26.179 of the Texas Water Code in 1995.'" The statute allows landowners of contiguous tracts of land of at least 500 acres within certain municipalities' extraterritorial jurisdictions to

184. Id. at 691. 185. Id. 186. Id. 187. Id. 188. Id. 189. Id. at 692. 190. Wilson, 10 S.W.3d at 666. 191. Id. at 670. 192. Id. 193. Id. 194. Id. at 671. 195. Id. 196. Id. 197. FM Propeities Operating Co. v. City of Austin, 22 S.W.3d 868 (rex. 2000). 195. Act of June 16, 1995, 74th Leg., R.S., ch. 975, 1995 Tex. Gen. Laws 4863 (amended 1999) (current version at TEx WATER CODE ANN. § 26.179 (Vernon 2000)). 290 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275 designate their property as water quality protection zones.'" The purpose of the statute was to facilitate development of the land within the zones and protect the quality of the water within the zone, while relieving large landowners and developers from "regulatory chaos."2 ' ° The statute exempts the landowners from a variety of regulations, including water quality regulations, and allows the landowners to create and implement a water quality plan for the zone."' Landowners must submit a water quality control plan to the Texas Natural Resource Conservation Commission (TNRCC) for approval. 2e Once a zone is designated, a municipality may not enforce any "ordinances, land use ordinances, rules, or requirements, including but not limited to, the abatement of nuisances, pollution control and abatement programs or regulations, water quality ordinances, subdivision requirements, other than technical review and inspections for utilities connecting to a municipally owned water or wastewater system, or any environmental regulations" in that zone that are inconsistent with or impair the ability to implement the land use and water quality control plan as filed. 03 After section 26.179 was enacted, several landowners designated zones in the City of Austin's extraterritorial jurisdiction." The City of Austin (Austin) filed suit seeking a declaration that section 26.179 is unconstitutional against several of the landowners who had designated zones. 5 One basis for Austin's suit was that section 26.179 violates the Texas Constitution because it unconstitutionally delegates legislative power to private landowners. 2e The landowners counterclaimed for declaration that section 26.179 is constitutional.' The State of Texas intervened to defend the constitutionality of the 2 2 statute. 1 Both sides filed cross-motions for summary judgment. " The trial court declared section 26.179 unconstitutional, without specifying the grounds

199. Id. 200. FM Propertiles,22 S.W.3d at 870. 201. Act of June 16, 1995, 74th Leg., R.S., ch. 975, 1995 Tex. Gen. Laws 4863 (amended 1999) (current version at TEX WATER CODE ANN. § 26.179 (Vernon 2000)). 202. TEx. WATER CODE ANN. § 26.179(h) (Vernon 2000); Act of June 16, 1995, 74th Leg., R.S., ch. 975, § t(e),1995 Tex. Gen. Laws 4863,4864 (amended 1999) (current version at TEx WATER CODE ANN. § 26.179 (Vernon 2000)). Landowners owning 500 to 1,000 acres must secure pre-approval of their water quality control zones from the TNRCC, while landowners owning more than 1,000 acres can designate a zone and implement a plan without pre-approval. 203. Act of June 16, 1995, 74th Leg., R.S., ch. 975, § I(i), 1995 Tex. Gen. Laws 4863, 4865 (amended 1999) (current version at TEX WATER CODE ANN. § 26.179(j) (Vernon 2000)). 204. FM Properties,22 S.W.3d at 872. Zones were not designated in any other municipality's extraterritorial jurisdiction. 205. Id. 206. Id. The City also alleged that section 26.179 was an unconstitutional special and local law targeting Austin, unconstitutionally infringes on municipal home rule powers, retroactively impairs the City's vested property rights, and allows private landowners to suspend laws. 207. Id. 208. Id. 209. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 291 for its judgment and permanently enjoined the landowners from designating new zones or adding to existing zones."' The landowners brought a direct appeal to the Texas Supreme Court.2 The Texas Supreme Court examined section 26.179 to determine if it delegated legislative authority to private landowners. 2 2 The court found section 26.179 delegates power to private landowners in certain areas to regulate water quality on their property and in waterways located on their property.2"1 The statute also allows landowners to choose between two objectives in formulating their water quality control plans.2 " The landowners were also given the power to exempt themselves from the enforcement of municipal regulations.2" The court stated water quality regulation is a legislative power.2 6 The Texas Constitution states the conservation, preservation, and development of the State's natural resources are public rights and duties and the legislature is charged with passing laws to protect these rights.2 7 The Legislature has given the landowners general water quality objectives, but has empowered the landowners to fill in the details as to how these objectives will be met.28 The powers delegated to the landowners regarding water quality are legislative powers.219 The power of the landowners to exempt themselves from municipal regulations is also a 22 legislative power. 1 "Therefore, section 26.179 delegates legislative power to private landowners because it gives them legislative duties and powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality." Since the statute delegated legislative power to private landowners, the court applied the eight factor test developed in Boll Weevil to determine its constitutionality.tm The first factor weighed heavily against the delegation for several reasons. 223 The TNRCC has only limited review over a landowner's water quality protection plan under section 26.179.224 In addition, neither the TNRCC nor any other governmental body has the power to review the

210. Id. 211. Id. 212. Id. at 874. 213. Id. at 875. 214. Id. Landowners could choose to maintain background levels of water quality in waterways or to capture and retain the first 1.5 inches of rainfall from developed areas. TEX. WATER CODE ANN. § 26.179(a) (Vernon 2000). 215. FMfPropertles, 22 S.W.3d at 875. 216. Id. 217. TEx. CONST. art. XVI, § 59. 218. FMProperties,22 S.W.3d at 876. 219. Id. 220. Id. 221. Id. at 876-77. 222. Id. at 880. 223. Id. 224. Id. 292 TEXAS TECH JOURNAL OF TEXASADMINISTRATIVE LAW [Vol. 2:275 decisions by landowners regarding what municipal regulations will be enforceable on their property.. Further, the court found that while the landowners remained subject to preexisting state and federal water quality regulations, the statute curbed the TNRCC's review and enforcement powers over the requirements of the statute and the landowner's discretion in meeting those requirements.' Also, if background water levels are not maintained, the TNRCC has no power to force the landowner to modify the water quality control plan to correct the problem. m The landowner is only required to modify the plan for future development phases in the zone and only to the extent reasonably feasible and practical. 221 Finally, the court found that the TNRCC has very limited power over the decision to designate a zone.? While the landowners' powers are subject to some TNRCC review, the review is not as meaningful as the first factor requires.230 The court also decided that section 26.179 does not afford adequate representation to those affected by the landowner's actions and, therefore, found the second factor weighed against the delegation." The landowner's water quality plans could adversely affect downstream water users, neighbors, and the public generally." 2 The TNRCC is prohibited from holding a public hearing on a water quality plan submitted under section 26.179,13 which is contrary to the TNRCC's general power to hold public hearings on the administration of chapter 26 of the Water Code and the TNRCC's duty to hold public hearings on its water quality standards?234 The statute allows landowners to appeal any TNRCC denial of a water quality plan, but does not confer on any party that might be adversely affected the right to appeal the TNRCC's approval of a water quality plan or zone designation." Further, the landowners alone decide which municipal regulations cannot be enforced in their water quality zones, but the statute does not provide any right of review to protect individuals or the municipality affected by the landowners' decisions.26 The landowners obviously have a pecuniary interest that may conflict with their public function."' The landowners have the power to regulate

225. Id. 226. Id. at 8S1. 227. Id. at 882. 228. TEx. WATER CODE ANN. § 26.179(b)(I) (Vernon 2000). 229. FMProperties, 22 S.W.3d at 883. 230. Id. 231. Id. at884. 232. Id. 233. Act of June 16, 1995, 74th Leg., R.S., ch. 975, § I(g), 1995 Tex. Gen. Laws 4863, 4864 (amended 1999) (current version at Tix WATER CODE ANN. § 26.179(g) (Vernon 2000)). 234. FMProperties, 22 S.W.3d at 884. 235. Id. at 884-85. 236. Id. at 885. 237. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 293 water quality and to exempt themselves from municipal regulations, both of which affect the public interest."' Thus, the landowners do have a public function.239 The landowner's pecuniary interest in maximizing profits and minimizing expenses may conflict with this public function.' Therefore, the fourth factor weighed heavily against the delegation.' The sixth factor weighed against the delegation.2 2 The court found that while the subject matter of the delegation was fairly narrow, the extent and duration of the delegation was broad. 3 The landowners had the power to create, implement, and enforce their own water quality plans, exempt their property from municipal regulations, and had broad discretion in complying with the statute's water quality objectives.' The combination of these factors led to the court's determination that the delegation was broad.245 The statute provides that the water quality plan is a covenant running with the land.246 Further, the power to regulate water quality on the land and exempt the property from municipal regulations exists until the land is annexed by a city; but, the statute prohibits annexation until twenty years after the zone is designated or until ninety percent of the zones facilities are complete, whichever occurs first.2 47 The court found the delegation to the landowners was not narrow in duration for the aforementioned reasons and found the sixth factor weighed against the delegation.2 " The third factor weighed in favor of the delegation, because the landowners did not have the power to apply the law to third parties other than their successors.24 9 The statute did not allow the landowners to define criminal acts or impose criminal sanctions; therefore, the court found that the fifth factor supported the delegation.2 -" The seventh factor weighed neither for nor against the delegation as the court found solid points in favor of and against the delegation.?' The statute required the landowners to have an engineer review and certify their water quality plans, which weighed in favor of the delegation. 2 However, the statute does not require the landowners to

238. Id. 239. Id. 240. Id. 241. Id. 242. Id. at 886. 243. Id. 244. Id. 245. Id. 246. Act of June 16, 1995, 74th Leg., R.S., ch. 975, § I(h), 1995 Tex. Gen. Laws 4863, 4865 (amended 1999) (current version at TEx WATER CODE ANN. § 26.179(i) (Vernon 2000)). 247. Act of June 16, 1995, 74th Leg., R.S., ch. 975, § 1(i), 1995 Tex. Gen. Laws 4863, 4865 (amended 1999) (current version at TEx WATER CODE ANN. § 26.1790) (Vernon 2000)). 248. FMProperties,22 S.W.3d at 886. 249. Id. at 885. 250. Id. at 885-86. 251. Id. at 887. 252. Act of June 16, 1995, 74th Leg., R.S., ch, 975, § I(g), 1995 Tex. Gen. Laws 4863, 4864 294 TEXAS TECH JOURAAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275 possess any special qualifications or training when deciding what municipal regulations may be enforced on the landowners' property, which weighed against the delegation. 3 The eighth factor weighed neither for nor against the delegation for similar reasons as the seventh factor." 4 The statute provided fairly detailed standards to guide the landowners in developing their initial water quality plans and required that they meet all existing state and federal water quality standards.2" However, the statute provided little guidance on what to do if background water levels are not maintained or how to decide which municipal regulations may be enforced on their property.' 6 The Boll Weevil factors as a whole weighed against the constitutionality of the delegation to the landowners.2"7 Therefore, the court held that section 26.179 of the Texas Water Code was an unconstitutional delegation of legislative power to private landowners.258

C. Ex Parte Elliot 59

In Boll Weevil, the Texas Supreme Court created two different standards to apply in nondelegation cases."W The eight factor test formulated in Boll Weevil would be applied to legislative delegations to private entities, while the factors set forth in Higginbotham1 and its progeny would be applied to legislative delegations to an agency or other governmental department.2 2 The case of Ex Parte Elliot presented a delegation question that did not fit neatly into either category recognized in Boll Weevil.263 Elliot was indicted for two violations of the Texas Health and Safety Code.2' Elliot was charged with transportation of hazardous waste to an unpermitted location and with illegal storage of hazardous waste2 5 under the Texas Health and Safety Code.2" Elliot filed petitions for writs of habeas corpus with the district court, claiming that the statutes which he was charged with violating were unconstitutional delegations of legislative authority to a

(amended 1999) (current version at TEx. WATER CODE ANN. § 26.179(h) (Vernon 2000)). 253. FM Properties,22 S.W.3d at 887. 254. Id. 255. Id. 256. Id. at 887-88. 257. Id. at 888. 258. Id. The court did not consider the additional grounds made in the cross motions for summary judgment made at the trial court. 259. 973 S.W.2d 737 (Tex. App.-Austin 1998, pet. ref'd). 260. Boll Weevil, 952 S.W.2d at 472-73. 261. Higginbotham, 143 S.W.2d at 79. 262. Id. 263. Elliot, 973 S.W.2d at 740. 264. Id. at 738. 265. TEx. HEALTH & SAFETY CODE ANN. § 361.221 (a)(1), (2) (Vernon 1992) repealedby Act of 1997, 75th Leg., ch. 1072. 266. Elliot, 973 S.W.2d at 738. 2001] APPLICATION OF THE BOLL WEEVIL EIGHT FACTOR TEST 295 federal agency.267 The district court entered an order denying the relief requested, holding the statute constitutional.2' On appeal, Elliot contended that both sections of the statute are unconstitutional delegations of legislative authority.269 Elliot argued that the statute violated the Separation of Powers clause of the Texas Constitution by improperly delegating governmental authority to a federal agency administrator.7 ' Elliot asserted that the term "hazardous waste" is an essential term of the prohibited conduct under sections 361.221(a)(1) and (2).2" I The statute defines hazardous waste as "solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.)."2n Elliot challenged the Texas Legislature's delegation of authority to the Environmental Protection Agency to define hazardous waste, arguing that the delegation constitutes a surrender of its legislative power to the federal government. 273 The appellant further argued that while an overly-broad delegation may be saved if restricted through statutory standards or guidelines limiting the agency's discretion, the statute in question in this case does not include any restrictions on the authority of the EPA.274 The court first had to determine what standard to apply in determining whether the delegation was constitutional.275 The delegation did not fall neatly into the two categories recognized in Boll Weevil.276 In this case, the statute did not delegate authority to a state agency or a private, interested party, but to a federal agency.277 The court found no Texas case addressing the application of the nondelegation doctrine to a federal agency." The court then determined that a federal agency is a governmental agency, and therefore, a public entity.2' The court looked at the language of Boll Weevil, where the Texas Supreme Court had stated that usual delegations are to an agency or other department of government.' From the reasoning in the Boll Weevil decision, the court concluded that the standards applicable to a public

267. Id. 268. Id. 269. Id. 270. Id. Elliot based his argument on TEx. CONST. art. II, § 1. 271. Id. at 738-39. 272. TEx. HEALTH & SAFETY CODE ANN. § 36 1.003(12) (Vernon Supp. 2000). 273. Elliot, 973 S.W.2d at 739. 274. Id. 275. Id. at 740. 276. Id. 277. Id. at 740-41. 278. Id. at 741. 279. Id. 280. Id.; see also Boll Weevil, 952 S.W.2d at 472. 296 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:275 delegation to a state agency should also be applicable to a public delegation to a federal agency.2" ' The court looked to the six classifications of valid delegations developed in Higginbotham.' In this case the question was whether the legislature had delegated to the EPA the power to amend Texas law each time it amends or changes the definition of hazardous waste.283 The application of the factors set forth in Higginbothamresulted in the court asking the question: "Has the legislature retained its legislative power to decide what constitutes hazardous waste? "2U The court acknowledged that section 361.003(12) could be interpreted to read that the legislature has delegated to the EPA the power to define hazardous waste and that the definition may change from time to time at the will -of the EPA and without the guidance or intervention of the legislature.W This construction would place in doubt the constitutionality of this statutory provision.28 The court added, that in addition to the standards set forth in Higginbotham, the Texas Supreme Court recognizes the general rule of incorporation by reference.' Statutes which refer to other statutes and make them applicable are referred to as "reference statutes" and are a valid mode of legislation.' "The general rule is that when a statute is adopted by a specific descriptive reference, the adoption takes the statute as it exists at that time, and the subsequent amendment thereof would not be within the terms of the adopting act." Thus, if section 361.003(12) does no more than incorporate the federal law as it was at the time of its passage, it may survive constitutional scrutiny.29 The court stated the "Texas Court of Criminal Appeals recognizes a duty to construe a statute subject to varying interpretations in a manner that assumes the legislature's intent to enact a constitutional statute."2"' Given this duty, the court concluded that the reference to the federal act in the statute adopts by reference the act's regulations promulgated thereunder were in effect on the date when the Texas statute was enacted.2' The court decided the words "as amended" in the statute refer to the federal act as amended at the time of the enactment of the Texas Statute.293 Therefore, the statute was not

281. Elliot, 973 S.W.2d at 741. 282. Id. 283. Id. 284. Id. 285. Id. 286. Id. 287. Id. 288. Id. 289. Id. (citing Trimmer v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927)). 290. Id. at 741-42. 291. Id. at 742 (citing Faulk v. State, 608 S.W.2d 625, 630 (Tex. Crim. App. 1980)). 292. Id. 293. Id. 2001] APPLICATION OF THE BOLL WEEVIL EIGHTFACTOR TEST 297 an unconstitutional delegation of constitutional authority to a federal agency administrator. 2" The Legislature did not need to include any procedural guidelines or standards to limit the agency's future rulemaking power because the rulemaking authority of the agency is limited to those rules already in force at the time the legislature enacted the statute. 5

III. CONCLUSION

After the Boll Weevil decision was published, concerns arose regarding the constitutionality of all private delegations.' The court has stated that the nondelegation doctrine should be used sparingly.' However, the court has also made it clear that all private delegations of legislative power will be subjected to the eight factor test when challenged in court.2" The Supreme Court of Texas has only heard three cases, dealing with only two issues, in which it has applied the eight factor test since Boll Weevil was decided. Thus far, the court has only held one delegation unconstitutional since the Boll Weevil decision.2" The fears expressed after Boll Weevil was announced were probably overstated. First, most delegations are made to a public agency or body, limiting the applicability of the test.)° Second, the court has stated that private delegations are "frequently necessary and desirable."301 Specifically, the court has cited the immense benefit the public has received from the delegation of authority to private organizations to promulgate professional and industrial standards.m Finally, the legislature has been given a clear standard from which it can draft constitutional delegations to private entities in the future or to amend current delegations that might appear to be of questionable constitutionality. The legislature was quick to react to the decision in Boll Weevil and amended the statute accordingly to continue the program.

by Robert A. Ewert

294. Id. 295. Id. 296. Brian M. Jorgensen, Delegations in Danger: The Supreme Court Reinvigorates the Nondelegation Doctrine by Holding that the OffIcial Cotton Growers' Boll Weevil Eradication Foundation Violated the Separation of Powers Clause in the Texas Constitution: Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex 1997), 29 TEx. TECH L. REV. 213, 247-48 (1998). 297. Boll Weevil, 952 S.W.2d at 475. 298. Id. at 472. 299. FM Properties, 22 S.W.3d at 888. 300. Boll Weevil, 952 S.W.2d at 472. 301. 1d. at 469. 302. Id.