concurring in part and dissenting in part, and concurring in the judgment.
The Texas Boll Weevil Eradication Foundation wields more legislative power with less restraint than any other privately chartered nonprofit corporation in Texas, or, as far as I can tell, in the history of Texas. Twelve other states have private foundations to help eradicate boll weevils; none has—or appears to need—the power the Legislature has ceded the Texas Boll Weevil Eradication Foundation. The Foundation is by no means a typical administrative agency; it is not even an atypical administrative agency; it is a complete anomaly in the structure of government.
Thus, I agree with the Court that the Official Cotton Growers’ Boll Weevil Eradication Foundation Act, Tex. AgRic. Code §§ 74.101-127, delegates legislative power to the Foundation in violation of Article II, Section 1 of the Texas Constitution, but I think this conclusion is much clearer than the Court does. The Court’s decision certainly does not “threaten the heretofore established role of quasi-governmental entities under Texas law”, as the sky-is-falling rhetoric of Justice Cornyn’s opinion forebodes. Post at 491. Holding the extraordinary delegation of power to the Foundation unconstitutional is no more a threat to other administrative agencies than it is to the ozone layer.
The vice in the delegation to the Foundation does not lie simply in the fact that the Foundation is a private entity or that, as I conclude, it is privately managed. Nor is the vice simply that the only standards prescribed by the Legislature to guide the Foundation are extremely broad, or that the Foundation is largely free of public supervision. The Court’s decision rests on a consideration of all these factors. Plainly put, the Texas Boll Weevil Eradication Foundation is little more than a posse: volunteers and private entities neither elected nor appointed, privately organized and supported by the majority of some small group, backed by law but without guidelines or supervision, wielding great power over people’s lives and property but answering virtually to no one. The Foundation is only a private, nonprofit corporation, run mostly by individuals who have never been elected or appointed by an elected official, but the Legislature has empowered it to conduct elections of cotton growers in various areas throughout the State, to determine whether and how to conduct a boll weevil eradication program, to assess cotton farmers millions of dollars to pay for the program, to deposit those assessments in its own account not subject to state purchasing and auditing requirements, to enter private property and destroy healthy crops for failure to pay assessments, to borrow unlimited amounts and commit cotton farmers to repay its debts without their approval, and to spend the money without any state supervision. The Legislature has broad discretion to delegate authority to administrators, but for reasons the Court explains, this goes too far.
I also think that the Act denies procedural due process by authorizing the Foundation to enforce assessments to the point of destroying crops with no opportunity for protest or hearing before enforcement and no realistic right to recover wrongful charges afterward. Although the Court does not reach this issue, it is troubled by it. Ante at 464.
Finally, for the reasons given in Justice Gonzalez’s opinion, I agree that assessments under the Act are an occupation tax on cotton growers in violation of Article VIII, Section 1(c) of the Texas Constitution.
For all these reasons, I join in the Court’s judgment holding the Act unconstitutional.
I
The Court’s reading of the Act makes the delegation issue closer than it should be. If one reads the Act as everyone involved in implementing it has—Texas Cotton Producers, Inc., the Foundation board of directors, *480the Commissioner of Agriculture, the Department of Agriculture and its general counsel, and arguably the Legislature—the unconstitutional delegation of power is clear. As far as I can determine, the Legislature has never made a similar delegation of authority, and it was not necessary to do so in this situation.
A
The Act was passed by the Legislature on February 25, 1993, was signed by the Governor on March 10,1993, became effective June 1, 1993, and was amended in 1995. Act of February 25, 1993, 73rd Leg., R.S., ch. 8, 1993 Tex. Gen. Laws 29, as amended by Act of May 3, 74th Leg., R.S., eh. 227, 1995 Tex. Gen. Laws 1976, and codified at Tex. AgRIC. Code §§ 74.101-.127. The Act declared that “the boll weevil entered Texas from Mexico in 1892 and presents a major economic threat to Texas’ cotton crop”, Tex. AgRIC. Code § 74.101(a)(1), that “there exists a need to develop, carry out, and participate in programs of research such as disease and insect control”, id. § 74.101(a)(2), and that “it is the intent of the legislature that the program be carried out with the best available integrated pest management techniques”, id. § 74.101(a)(3), which are defined as “the coordinated use of pest and environmental information with available pest control methods to prevent unacceptable levels of pest damage by the most economical means and with the least possible hazard to people, property, and the environment”, id. § 74.102(12).
The Act called for “[t]he 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”. Id. § 74.101(c). Specifically, the Act provides:
(a)A nonprofit organization authorized under the laws of this state that represents cotton growers may petition the commissioner [of agriculture] for certification as the organization authorized to:
(1) create a foundation;
(2) conduct the initial election of the board; and
(3)conduct referenda to establish eradication zones.
(b) A petition under this section must include:
(1) a geographic description of each proposed eradication zone, including a separate proposed eradication zone for the High Plains Boll Weevil Suppression Program Area and the St. Lawrence Cotton Growers Boll Weevil Control Zone;
(2) an initial plan for representation for each proposed eradication zone on a board consisting of 6, 9, 12, or 15 members; and
(3) any other information required by the commissioner.
(c) Not later than the 60th day after the date on which the commissioner receives a petition for certification, the commissioner shall hold a public hearing to consider the pending petition.
(d) After a hearing is held under Subsection (c) of this section the commissioner may select one organization to implement this subchapter and shall certify that the selected organization:
(1) has submitted a petition that complies with this subchapter;
(2) can adequately represent the interests of cotton growers in the proposed eradication zones described by the organization’s petition; and
(3) is authorized to conduct eradication zone referenda and initial board elections under Sections 74.105 and 74.106 of this code.
Id. § 74.103. The Act requires the Commissioner to certify the selected organization “as the organization authorized to create an official boll weevil eradication foundation.” Id. § 74.104(a).
The Act does not specify what type of entity the foundation is to be. On May 14, 1993, while the Legislature that passed the Act was still in session and before the Act became effective, Texas Cotton Producers, Inc., a Texas nonprofit corporation whose primary purpose is “to allow a forum for discussion of problems and activities of mutu*481al interest to the Texas Cotton Industry”, petitioned the Commissioner for certification to create the foundation. Texas Cotton Producers proposed to create the Texas Boll Weevil Eradication Foundation, Inc., a Texas nonprofit corporation. On July 7, 1993, the Commissioner certified Texas Cotton Producers to create the foundation. The Commissioner must therefore have believed that creating the foundation as a nonprofit corporation would comply with the Act. The Foundation’s articles of incorporation were filed September 14,1993. In 1995 the Legislature amended the Act to authorize the Foundation’s board of directors to “take other action and exercise other authority as necessary to execute any act authorized by this subchapter or the Texas Non-Profit Corporation Act”. Id. § 74.108(a)(7). The Legislature knew, of course, that the Foundation was a nonprofit corporation, and by specifically giving the Foundation board authority under the Texas Non-Profit Corporation Act, it appears to have approved of the entity. Thus, it seems reasonably clear that the Legislature intended that the foundation be a nonprofit corporation.
Unless a nonprofit corporation is to be governed by its members (if it has members), it must be governed by a board of directors, and the initial directors must be named in its articles of incorporation. Tex.Rev.Civ. Stat. Ann. arts. 1396-2.08 (members), 1396-2.14 (directors), 1396-3.02 (articles). The Court reads the Act to contemplate that the foundation must “at all times” be governed by a board of directors, each of whom has been elected. Ante at 474. But the Act nowhere states that all directors of the foundation must be elected. To the contrary, the Act strongly suggests that the foundation may be governed by non-eleeted directors. Section 74.103(b)(2), quoted above, requires that an organization petitioning the Commissioner for certification to create the foundation must present “an initial plan for representation for each proposed eradication zone on a board consisting of 6, 9, 12, or 15 members” (emphasis added). Proposed zones cannot have elected board members because a board election must “be held concurrently with an eradication zone referendum”, Tex. AgRIC. Code § 74.106(a), and “[i]f a referendum to establish an eradication zone fails, the concurrent election of board members from the proposed eradication zone ... has no effect”, id. § 74.105(d). Thus, only established zones can have elected board members. A plan for representing proposed zones on the Foundation board must necessarily call for non-eleeted directors.
It is not even clear that every established zone must be represented by an elected board member. The Act says only that “[e]ach zone shall be represented on the board.” Id. § 74.106(a). The Act requires the zone referendum ballot to state “whether a board member is elected by a plurality or a majority of the votes cast”. Id. § 74.114(c)(2). (The Commissioner has determined that board members are elected by a plurality of the votes east. 4 Tex. Admin. Code § 3.6(c).) If a zone is established by referendum but no one is elected by a plurality or majority, the Act is silent on how the zone’s board representative is to be chosen. (The Commissioner has not promulgated a rule to cover such a situation, and the Foundation has promulgated no rules at all.)
The Court’s conclusion that the Foundation must “at all times” be governed by elected board members appears to be based on several references to “initial elections”. Section 74.103(a)(2) states that an organization representing cotton growers can petition the Commissioner to create a foundation and “conduct the initial election of the board” (emphasis added). Section 74.103(d)(3) states that the Commissioner must certify the organization selected to create the foundation as being “authorized to conduct eradication zone referenda and initial board elections” (emphasis added). Section 74.104(a) states that the organization selected by the Commissioner to create the foundation “may conduct the initial eradication zone referen-da and board elections” (emphasis added). Section 74.106(a) states that “[t]he initial election for board members from a proposed eradication zone shall be held concurrently with an eradication zone referendum” (emphasis added). The Act never refers to the initial board or the initial directors, but only to initial elections. The Court appears to *482infer from references to initial elections that the initial directors must all be elected, but the inference is not compelled by logic and is contrary to the express language in the statute that the petitioning organization present a plan for representation of -proposed eradication zones.
Moreover, the Court’s reading of the Act is contrary to the Commissioner’s rules. The Act states that “[t]he commissioner shall adopt rules for voting in the initial board election and initial referenda to establish eradication zones.” Tex. AgRic. Code § 74.114(c). The Commissioner’s rule 3.3(c) states that “[t]he foundation may conduct an assessment referendum or referenda either in conjunction with the initial board elections and eradication zone referendum or referen-da or at a time subsequent to the initial elections and referendum or referenda.” 4 Tex. Admin. Code § 3.3(c). In an assessment referendum, the foundation must propose the “maximum assessment to be paid by cotton growers having production in the eradication zone” and the “time for which the assessment will be made.” Tex. Agkic. Code § 74.113(b). To make this proposal, the foundation must first, of course, “determine the assessment needed in each eradication zone” to accomplish its goals. Id. § 74.113(a). If an assessment referendum may be held concurrently with the zone referendum and board election in the same zone, as rule 3.3(e) expressly permits, then the assessment needed for the zone must be determined by a foundation board on which the proposed zone has no elected member. Also, the first assessment referendum in any zone could be conducted by a board on which there were no elected members, there having yet been no zone referendum. The procedure established by the Commissioner’s rules thus contemplates a foundation board with some or even all non-elected members. The Court cites rule 3.3 but makes no effort to reconcile the rule with its own reading of the Act.
The Court’s reading of the Act is also contrary to that of every other person or entity involved with its implementation. Texas Cotton Producers was active in writing and passing the Act. It was the only organization to petition the Commissioner for certification to create a foundation. Its petition proposed nine eradication zones. Two were zones required by the Act: the High Plains Boll Weevil Suppression Program Area, consisting of 25 counties between Amarillo and Midland specified by statute, plus three additional counties, and the St. Lawrence Cotton Growers Boll Weevil Control Zone, consisting of four counties south and east of Midland, also specified by statute. Id. §§ 74.102(9), (14), 74.103(b)(1), 74.107(a), 74.108(d). The other seven zones were: Rolling Plains North, 12 counties near the southeast corner of Oklahoma; Rolling Plains Central, 15 counties between Abilene and Wichita Falls; Rolling Plains South, nine counties around San Angelo; Central Texas River Bottoms, Blacklands, and Red River, 39 counties from south of Austin to Texar-kana; Winter Garden, Coastal Bend and Upper Gulf Coast, 26 counties from San Antonio and Victoria to south of Corpus Christi; Lower Rio Grande Valley, the eight most southern counties in the State; and Trans-Pecos and El Paso, 13 counties from El Paso to just east of the Pecos River. Parts of three counties were included in two zones. In all, Texas Cotton Producers proposed that 151 of Texas’ 254 counties be divided into nine eradication zones, and that each zone be represented on the foundation’s board by one director. The proposed zones did not include all counties in which cotton is grown.
Texas Cotton Growers’ petition, presented to the Commissioner while the Legislature that passed the Act was still in session, proposed 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.” The petition called for the nine proposed zones to be represented by one director each. Thus, Texas Cotton Growers’ understanding of the Act was that it required representation from proposed as well as established zones, and that it permitted non-elected members on the board. The Commissioner’s certification of Texas Cotton Growers to create the foundation as proposed in the petition indicates that he agreed with Texas Cotton Growers’ view of the implementation of the Act and operation of the foundation.
*483As proposed, Texas Cotton Growers named nine initial directors of the Foundation—one for each proposed eradication zone—in the articles of incorporation:
High Plains Wayne Huffaker
St. Lawrence Clifford Hoelscher
Rolling Plains North Robert Belew
Rolling Plains Central Woody Anderson
Rolling Plains South Kenneth Gully
Central Texas Dan Pustejovsky
Winter Garden Craig Shook
Lower Rio Grande Valley Chris Allen
Trans-Pecos Jim Ed Miller
At the time Foundation was created, none of the proposed eradication zones had been approved by a referendum of local cotton growers, and none of the board members had been elected. Nevertheless, the Foundation board immediately began to alter the area in various zones with approval of the Commissioner, plan referenda, set assessments, and devise eradication programs. This demonstrates not only Texas Cotton Producers’ and the Commissioner’s approval of the nonelect-ed Foundation board, but the board’s reading of its own authority under the Act.
The Foundation operated for more than five months before the first zone was established by referendum and the first board member elected. During this time the board members appointed by Texas Cotton Producers met to conduct the Foundation’s business and plan for the first referendum. Legal counsel from the Department of Agriculture met with the board to advise them concerning its legal responsibilities. Counsel never raised a concern about the non-elected members on the board, thus indicating counsel’s approval of the constitution of the board.
On February 28, 1994, cotton growers in the proposed Southern Rolling Plains zone approved participation in the program and an assessment, and elected Kenneth Gully as a Foundation board member. Thus, the first assessment referendum was proposed by a board on which there was no elected member and was conducted concurrently with the first zone referendum and board election. This is consistent with the Commissioner’s rule 3.3(c) but inconsistent with the Court’s reading of the Act. Two months later, on April 30, cotton growers in the Lower Rio Grande Valley zone approved participation in the program and elected Chris Allen to the Foundation board, but did not approve an assessment. Not until a second referendum on October 15, 1994, did Lower Rio Grande Valley cotton growers approve an assessment for their zone. On December 1, 1994, Central Rolling zone cotton growers approved their zone and assessment and elected Woody Anderson as their board member. Cotton growers in the Winter Garden and High Plains zones followed suit on February 16,1995, and April 15,1995, respectively, and elected Craig Shook and Wayne Huffaker, respectively, to the Foundation board. The last zone approved was St. Lawrence, on August 22, 1995, and Clifford Hoelscher was elected to the board. Three board members, Chris Allen, Dan Pustejovsky, and Jim Ed Miller, were replaced by John Boling, Wilburn Beckhusen, and Bob Bickley, respectively. The record does not reflect how the replacements were chosen, but it does not appear that they were elected from their zones.
When the 74th Legislature convened in January 1995, a majority of the Foundation’s board were still members appointed by Texas Cotton Growers and not elected. When the session ended, four members of the board still had not been elected. The Legislature amended the Act in a number of respects. Act of May 3, 1995, 74th Leg., R.S., ch. 227, 1995 Tex. Gen. Laws 1976. Among other things, the Legislature: revised the definition of “cotton grower”, see id. § 74.102(5); authorized the foundation board to accept gifts and grants, borrow money, and execute any act allowed by the Texas Non-Profit Corporation Act, see id. 74.108(a)(5)-(7); authorized the board to add to the area in an eradication zone under certain circumstances, see id. § 74.108(b); authorized the board to add to the High Plains zone, see id. § 74.102(9), but not to *484reduce it, see id. § 74.108(d), and to change the St. Lawrence zone, see id. § 74.102(14); gave the foundation governmental immunity, see id. § 74.109(f), and added the foundation and its directors to those exempted from liability for all acts except gross negligence, criminal conduct, and dishonesty, see id. § 74.110(a); specified that assessments could be used to pay the foundation’s debts, see id. § 74.113(f)(2); and added that “[i]f the foundation is abolished or the program discontinued for any reason, assessments approved, levied, or otherwise collectible on the date of abolishment remain valid as necessary to pay the financial obligations of the foundation”, see id. § 74.127(c).
The point is, the Legislature made significant, substantive changes in the Act. By failing to amend the Act to require that foundation board members all be elected, the Legislature ought to be presumed to have acquiesced in the Commissioner’s, Department’s, and Foundation’s unanimous and consistent construction of the Act, adopted contemporaneously with the passage of the statute by everyone urging its enactment, allowing the board to function without elected board members. See Direlco, Inc. v. Bullock, 711 S.W.2d 360, 363-364 (Tex.App.—Austin 1986, writ ref'd n.r.e.), cited with approval in Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 n. 4 (Tex.1989); see also Reed v. State Dept. of Licensing & Regulation, 820 S.W.2d 1, 4 (Tex.App.—Austin 1991, no writ). In any event, the Legislature must be presumed to have been aware of the manner in which the Foundation was actually operating and to have determined, in amending the statute in other respects, that no amendment was necessary to change the composition of the Foundation board. See Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 488-489 (Tex.App.—Austin 1996), writ denied, — S.W.2d - (Tex.1997) (per curiam) (disapproving another part of the court of appeals’ opinion); Massachusetts Indem. & Life Ins. Co. v. Texas State Bd. of Ins., 685 S.W.2d 104, 109 (Tex.App.—Austin 1985, writ ref'd n.r.e.); see also Texas Workers’ Compensation Comm’n v. City of Bridge City, 900 S.W.2d 411, 416 (Tex.App.—Austin 1995, no writ); cf. Western Co. v. Sheppard, 181 S.W.2d 850, 856 (Tex.Civ.App.—Austin 1944, writ ref'd) (“It must be presumed that the Legislature, when it passed the act, was familiar with the manner in which such business [the subject of the act] was conducted.”)
It is possible, of course, that the Court is correct and the Commissioner, Department, and Foundation, and at least apparently the Legislature, are all wrong about whether non-elected members can serve on the Foundation board. But when the Court’s construction of the Act also contradicts strong suggestions in the Act itself and all operations under the Act since its inception, the Court’s position is virtually untenable. While it is possible to read the Act to require only elected board members, that construction is less reasonable or plausible than the opposite one.
B
I join in the Court’s opinion concerning delegation because even under its construction of the Act, I agree that the delegation of power to the Foundation is unconstitutional. If the Act allows the Foundation to operate with a non-elected board, the delegation of power to the Foundation is even less defensible than the Court believes. The Court details the respective powers of the Foundation, the Commissioner, and the Department. Without any supervision by an elected official or governmental agency, the Foundation can wield enormous power. For example, while the Foundation must “conduct a referendum in each proposed eradication zone to determine whether cotton growers desire to establish an official boll weevil or pink bollworm eradication zone”, Tex. AgRIC. Code § 74.105(a), the statute imposes no deadlines on this duty. In the more than four years the Foundation has been in existence, it has conducted zone referenda in only six of the proposed zones. The Foundation thus has the unilateral right to determine whether, over a course of years, at least, to poll cotton growers to determine whether a zone should exist. The Foundation also has the unilateral right to determine the maximum assessment to be put to a referendum. The voters *485cannot raise or lower this amount; they can only vote for or against it.
While assessments must “be used solely to finance programs approved by the commissioner as consistent with” the Act and the Constitution, id. § 74.109(h), the Foundation has great leeway in determining the details of those programs. The nature of the programs and the manner in which they are conducted can profoundly affect cotton growers, as the experience in the Lower Rio Grande Valley zone, which I describe below, indicates. Moreover, the Foundation has the absolute right to determine how much of the cost of a program to borrow and how much to pay for with collected revenue. The Foundation can borrow and spend the maximum total assessment in the first few months of the program and obligate cotton growers to repay the debt over the total period approved in the referendum. If the program appears to be unsuccessful, growers have no effective means of stopping it before the total assessment has been committed.
The Foundation’s powers to enforce collection of assessments are truly draconian. The Foundation may enter private property essentially at will and without the owner’s permission at any time during daylight hours. Id. § 74.117. It may set penalties for late payments. Id. § 74.115(a). The Court observes that growers are entitled to protest imposition of such penalties to the Department, ante at 499, but as a very technical matter, the Court is in error. The Commissioner’s rule 3.57(a) states that “[a] person against whom the department has assessed a penalty ... may protest such action with the commissioner”. 4 Tex. Admin. Code § 3.57(a). But the Act expressly authorizes the board, not the Department, to set penalties. Tex. Agric. Code § 74.115(a). Furthermore, the Act requires the Department—it has no discretion—to destroy crops on the Foundation’s recommendation, even if they are not infested with boll weevils. Id. § 74.115(b). The assertion in Justice Cor-nyn’s opinion that “the statute itself ... and not the Board ... determines the circumstances under which a grower’s crop may be destroyed for nonpayment of assessments” is, I believe, very misleading. Post at 498. The Act “determines” only one circumstance: “on recommendation of the foundation”. Id. The only limit the Act places on the Foundation’s power to destroy crops is that it cannot do so if it does not feel it should. Otherwise, the Foundation has complete discretion.
Since the Foundation’s creation, these powers have resided in non-elected directors. For 19 months the Foundation was governed by a board a majority of which had not been elected but rather, had been designated by Texas Cotton Producers, Inc. During this period the Foundation arranged a $62 million line of credit; it has actually borrowed over $25 million. Many of the eradication programs were implemented by the non-elected board. For example, the Southern Rolling Plains zone’s eradication program was devised and its assessment set by a board on which no member had been elected, and the program was carried out by a board controlled by eight non-elected members from proposed zones. As of February 1996, the zone had borrowed over $7.5 million and spent over $11.5 million.
The non-elected board also implemented the eradication program in the Lower River Grande Valley zone in 1995. The approved assessment raised about $2.5 million the first year to pay for the program, but the Foundation borrowed and spent $11.5 million, secured by all assessments the Foundation could collect from the zone, leaving a $9 million deficit to be repaid from assessments collected over the next seven years. (The referendum approved assessments up to eight years.) Instead of the expected 420,-000-bale harvest that year, cotton growers produced only about 50,000 bales, for an estimated loss to growers of $150 million. Steven H. Lee, Opening a Can of Worms, Dallas Morning News, Jan. 11,1996, at ID. Growers blamed the eradication program for using pesticides that destroyed not only the boll weevil but also insects that prey on the beet armyworm, thereby allowing a devastating armyworm invasion. Id. Cotton growers immediately petitioned for a referendum to leave the eradication program. The referendum passed January 31, 1996. The board made the zone’s member, John Boling, ex officio without voting privileges or access to *486Foundation information, even though non-elected members from nonapproved zones continued to serve as full members. The 1996 cotton crop in the Rio Grande Valley zone, on less land with less rain, was more than twice the prior crop. In Tall Cotton, Dallas Morning News, Aug. 27, 1996, at 16D. Despite their withdrawal from the program, cotton growers in the zone must continue to pay assessments up to seven more years to discharge the Foundation’s debt incurred for that zone.
The potential power delegated to the Foundation and its actual exercise both demonstrate the unconstitutionality of the Act. The foundation authorized by the Act is little more than a posse. The Foundation and its agents are immune from liability for all their acts except gross negligence, criminal conduct, and dishonesty, id. § 74.110(a), and the Foundation has sovereign immunity, id. § 74.109(f). Applying the Court’s test to this construction of the Act, as opposed to the Court’s much more deferential reading, the result is even clearer.
C
No other private agency in Texas possesses such unrestricted power. The only entity remotely similar is the Texas Automobile Insurance Plan Association, created by Article 21.81 of the Texas Insurance Code. TAI-PA is a nonprofit corporation whose members are all authorized automobile insurers. Tex. Ins.Code art. 21.81, § 2(a). Its 15-member governing body consists of eight members elected by the member insurers, five public members nominated by the Office of Public Insurance Counsel and selected by the Commissioner of Insurance, and two local recording agents. Id. § 2(b). TAIPA, like the Texas Boll Weevil Eradication Foundation, is thus a private entity with a largely private governing body. Unlike the Foundation, however, TAIPA’s authority is very limited. It can only propose a plan for assigned risk insurance to the Commissioner for his approval, id. § 3(c), and administer it, id. § 3(a). The statute imposes certain requirements on the plan, id. § 3(b), (d)-(f). The Commissioner retains the power to set rates under the plan. Id. § 5. Given the detailed statutory requirements and the supervisory role of the Commissioner, TAIPA is little more than an adviser to and implementer for the Commissioner.
Justice Cornyn’s opinion suggests that the delegation of power to the Texas Boll Weevil Eradication Foundation is no different from statutes that condition licensing on graduation from accredited schools. Post at 494. The argument is that such statutes give accrediting associations power over licensing. But any power accrediting associations have is directed at the schools, not at licensing in Texas, and derives from association members, not from the Texas Legislature. The limited operation of such associations simply cannot be compared with the Foundation’s broad powers.
I am not aware of any entity in Texas’ history remotely resembling the Texas Boll Weevil Eradication Foundation. The need for an unprecedented delegation of power to the Foundation is not apparent. Twelve other states have boll weevil eradication laws. Ala. Const. amend. 449; Ala.Code §§ 2-19-120 to 2-19-135 (Supp.1996); Ark.Code Ann. §§ 2-16-601 to 2-16-617 (Michie 1996); Fla Stat. Ann. §§ 593.101-.117 (West Supp.1997); Ga.Code Ann. §§ 2-7-150 to 2-7-158 (1990 & Supp.1996); La.Rev.Stat. Ann. §§ 1601-1617 (West Supp.1997); Miss.Code Ann. §§ 69-37-1 to 69-37-37 (Supp.1996); Mo. Ann. Stat. §§ 263.500-.537 (Supp.1997); N.M. Stat. Ann. §§ 76-6A-1 to 76-6A-16 (Michie Supp. 1996); N.C. Gen.Stat. §§ 106-65.67 to 106-65.91 (1996); Okla. Stat. Ann. tit. 2, §§ 3-50.1 to 3-50.20 (West Supp.1997); S.C.Code Ann. §§ 46-10-10 to 46-10-130 (Law Coop.1987 & Supp.1996); Tenn.Code Ann. §§ 43-6-401 to 43-6-431 (1993 & Supp.1996). North Carolina was the first to pass a statute, in 1975, and South Carolina passed its statute the following year. Alabama, Georgia, Florida, and Tennessee passed their statutes in 1984,1985,1987, and 1989, respectively. Arkansas and Louisiana passed their statutes in 1991 and 1992, respectively. Texas passed its statute in 1993, along with two other states, Mississippi and Oklahoma. Missouri passed its statute in 1995. New Mexico was the last state to pass a statute, in 1996. Thus, Texas had eight other statutory *487schemes to guide in adopting its own, and two states have had the benefit of Texas’ experience.
Each of the other twelve states except Louisiana employs a private organization representing cotton growers to assist with coordinating programs and funds. Ala.Code § 2-19-130; ARK.Code Ann. § 2-16-612; Fla. Stat. Ann. §§ 593.111-.112; Ga.Code Ann. § 2-7-155; Miss.Code Ann. § 69-37-13; Mo. Ann. Stat. § 263.523; N.M. Stat. Ann. § 76-6A-5, -3C; N.C. Gen.Stat. § 106-65.86; Okla. Stat. Ann. tit. 2, § 3-50.5; S.C.Code Ann. § 46-10-85; Tenn.Code Ann. § 43-6-421. In every state but Oklahoma, the organization’s role is merely advisory to a public agency or official; the responsibility for all significant decisions rests directly upon the public agency or official. Even Oklahoma’s Boll Weevil Eradication Organization is not as private and does not have the power of the Texas Boll Weevil Eradication Foundation. Among other things, the board of the Oklahoma Organization is always either appointed by the governor or elected by growers, Okla. Stat. Ann. tit. 2, §§ 3-50.5,3-50.7; only the state department of agriculture has the power to set and collect late charges, id. § 3-50.11(A); and only the department has the power to destroy crops for noncompliance with the statute, id. § 3-50.18. The Organization’s authority is limited in other respects as well.
The Texas statute does not appear to be patterned closely on any other state statute, and no other state’s statute is patterned on Texas’. No other state has determined that a viable boll weevil eradication program depends upon so expansive a delegation of power to a private entity as Texas gives its Boll Weevil Foundation. The Foundation is thus uniquely situated, both in Texas government, and among similar organizations in other states.
D
Because I conclude that the Texas Boll Weevil Eradication Foundation is as the Legislature intended, a private nonprofit corporation privately managed, and that the Foundation has been delegated broad, unrestricted legislative power, I agree with the Court that the Act violates Article II, Section 1 of the Texas Constitution. I also agree with the Court’s explanation why the use of referenda does not save the Act, but I offer a few additional reasons.
In Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), the United State Supreme Court considered various challenges to the Bithuminous Coal Conservation Act passed by Congress in 1935, which contained the following provision:
Whenever the maximum daily and weekly hours of labor are agreed upon in any contract or contracts negotiated between the producers of more than two-thirds the annual national tonnage production for the preceding calendar year and the representatives of more than one-half the mine workers employed, such maximum hours of labor shall be accepted by all the code members.
Carter, 298 U.S. at 283-284, 56 S.Ct. at 860. The effect of the statute, as the Court explained, was “to subject the dissentient minority, either of producers or miners or both, to the will of the stated majority”. Id. at 310-311, 56 S.Ct. at 872. The Court had little difficulty invalidating the provision:
The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. The record shows that the conditions of competition differ among the various localities. In some, coal dealers compete among themselves. In other localities, they also compete with the mechanical production of electrical energy and of natural gas. Some coal producers favor the code; others oppose it; and the record clearly indicates that this diversity of view arises from their conflicting and even antagonistic interests. The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental func*488tion, since, in the very nature of things, one person may not be intrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question. A L A Schechter Poultry Corp. v. United States, 295 U.S. 495, at page 537, 55 S.Ct. 837, at page 846, 79 L.Ed. 1570, 97 A.L.R. 947; Eubank v. Richmond, 226 U.S. 137, 143, 33 S.Ct. 76, 77, 57 L.Ed. 156, 42 L.R.A.(N.S.) 1123; Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121, 122, 49 S.Ct. 50, 51-52, 52, 73 L.Ed. 210, 86 A.L.R. 654.
Id. at 311, 56 S.Ct. at 873.
The Court has used a similar analysis to strike down other legislation. In Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912), the Court invalidated a city ordinance that allowed the owners of two-thirds of the property abutting a street to establish building setback lines; The evil the Court attacked was the delegated power of some property owners “to virtually control and dispose of the proper rights of others” without any “standard by which the power thus given is to be exercised”. Id. at 143-144, 33 S.Ct. at 77. In Washington v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928), the Court struck down an ordinance which required the approval of owners of two-thirds of the property within 400 feet of a proposed home for the aged poor before the facility could be constructed. Again, the Court objected that the ordinance was “uncontrolled by any standard or rule prescribed by legislative action”. Id. at 121-122, 49 S.Ct. at 52. Property owners, the Court observed, were “not bound by any official duty, but [were] free to withhold consent for selfish reasons or arbitrarily”. Id.
The Court cited both these eases with approval in City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 677-678, 96 S.Ct. 2358, 2363-2364, 49 L.Ed.2d 132 (1976). There the Court upheld a city charter provision requiring proposed land use changes to be ratified by 55% of the people voting at a city-wide referendum. A referendum to a legislative body’s entire constituency cannot, the Court said, “be characterized as a delegation of power.” Id. at 672, 96 S.Ct. at 2361. “In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature.” Id. This was far different from “the standardless delegation of power to a limited group of property owners condemned by the Court in Eubank and Roberge”. Id. at 678, 96 S.Ct. at 2364.
Eubank and Roberge do not preclude a legislative body from conditioning regulation on local approval. In Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939), Congress by statute authorized the Secretary of Agriculture to set standards for the type, grade, size, condition, and other characteristics of tobacco sold at auction. In any market designated by the Secretary and approved by two-thirds of the growers, no tobacco could be sold unless it had been inspected and certified by the Secretary’s representative. The Court upheld the statute, distinguishing it from the legislation in Carter and Roberge. In those cases, the referendum was to set applicable standards; in Currin, the referendum was only to accept regulation standards determined by the Congress and the Secretary. The Court explained:
This is not a ease where a group of producers may make the law and force it upon a minority or where a prohibition of an inoffensive and legitimate use of property is imposed not only by the legislature but by other property owners. Here it is Congress that exercises its legislative authority in making the regulation and in prescribing the conditions of its application. The required favorable vote upon the referendum is one of those conditions.
Id. at 15-16, 59 S.Ct. at 387 (citations omitted).
Thus, a referendum does not involve an improper delegation of governmental power if it is to the entire constituency or if it is *489simply a condition of the application of legislatively determined regulation. A referendum does involve a delegation of power when the voters of a group themselves determine what the law or regulation is to be, as well as whether it is to be applied to them. Such a delegation has never been approved by the Supreme Court.
The flaw with referenda in the Boll Weevil Act is similar to that identified in Carter: the Act places decisions affecting cotton growers not in the hands of the public or its government, but in the hands of a few cotton growers. A referendum under the Act carries when approved by two-thirds of those voting or by those farming more than half the cotton acreage in the zone. Tex. Agric. Code § 74.114(g). Assessments were approved in five of the six established zones by the following percentages of eligible voters: 33% in the High Plains; 29% in the Rolling Plains Central; 27% in Winter Garden; 68% in the Rolling Plains South; and 27% in the Lower Rio Grande Valley. Thus, in all but one instance one-third or less of the cotton growers in a zone imposed assessments on all the other cotton growers in the zone. Carter condemned as “legislative delegation in its most obnoxious form” the power of a majority in one industry to control the affairs of an unwilling minority. Under the Act before us, a minority of cotton growers can control the affairs of an unwilling majority.
The problem is not simply that referenda may carry on the vote of a very small group of cotton growers. The outcomes of many elections are determined by a minority of voters. If the issue were whom to choose as a representative of the people, or whether to accept regulation proposed by the people’s representatives, as in Currin, the fact that a small number of people voted in the election would not be of constitutional significance. But when the electorate consists not of all the citizens in an area but of the members of one industry, the referendum may be very unfair.
For example, the Act contemplates that when a zone is established and an assessment approved, every cotton grower in the zone must pay the assessment, whether his cotton is infested with boll weevils or not. The reason for this scheme appears to be that boll weevils cannot be eradicated except over a large area; one farmer may eliminate the insects from his field, but they may simply move to his neighbor’s field. Once the first farmer ceases his efforts, the insects may return. However, farmers who are barely surviving economically must weigh the risk of infestation in deciding whether to spend limited resources for pesticides and other efforts. The Act allows those in a stronger financial position to force those in a weaker position to contribute to eradication programs when they otherwise would not do so; conversely, it also allows growers in a weaker position to prevent all concerted eradication efforts.
Thus, I agree with the Court that the delegation of power to the Foundation is unconstitutional. The use of referenda does not save it.
II
The Court does not reach the federal procedural due process and state open courts challenges to the Act. While resolution of these issues are not necessary to the result in these cases, I believe a word should be said about them to guide the Legislature in the event it chooses to enact other boll weevil eradication legislation.
The Act does not allow for a hearing before the Foundation, the Commissioner, or the Department to protest an assessment, nor does the Act permit judicial review of an assessment. As JUSTICE CornyN’s opinion points out, under Texas law the lack of a statutory right to judicial review of an administrative decision does not mean that judicial review is never allowed. A person has a right to judicial review of an administrative decision which violates the person’s constitutional rights or adversely affects his vested property rights, even if no right to review is conferred by statute. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-386 (Tex.1967); Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747, 750-751 (1961); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951). Clearly, enforcing a monetary assessment against a grower and *490his property adversely affects his vested property rights. Thus, a cotton grower would be entitled to judicial review of an assessment despite the lack of any provision in the Act. The Act is not invalid because it does not provide for judicial review; review is simply required.
This right to judicial review does not, however, satisfy federal procedural due process requirements. In McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 37, 110 S.Ct. 2238, 2250-2251, 110 L.Ed.2d 17 (1990), the Supreme Court held that postdeprivation process for the exaction of taxes satisfies constitutional requirements only if the taxpayer is afforded “an opportunity to contest the validity of the tax and a ‘clear and certain remedy’ designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.” Id. at 40, 110 S.Ct. at 2252. Even if assessments under the Act were taxes—as I believe, but the Court does not—a cotton grower is not assured a “clear and certain remedy” in an action for judicial review. He cannot be assured recovery of wrongfully charged assessments or damages for wrongful collection efforts, including destruction or seizure of his crops, because the Foundation may not have funds available. In the Lower Rio Grande Valley zone, for example, the Foundation is $9 million in debt. Judicial review after collection efforts have been undertaken may afford no relief whatever.
Moreover, given that the Court holds that the assessments are not taxes but regulatory fees, the rule in McKesson does not apply. Postdeprivation procedures satisfy due process requirements for taxes because “[a]llow-ing taxpayers to litigate their tax liabilities prior to payment might threaten a government’s financial security, both by creating unpredictable interim revenue shortfalls against which the State cannot easily prepare, and by making the ultimate collection of validly imposed taxes more difficult.” Id. at 36, 110 S.Ct. at 2250. This rationale does not apply to collection of regulatory fees. Instead, the general rule of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), applies.
Fuentes held that replevin statutes that allow seizure of property before a hearing do not meet constitutional due process requirements. The Boll Weevil Act allows the Foundation, a private corporation privately managed, to destroy growing crops, even if not infested by boll weevils, with no hearing and no notice other than the notice of the original assessment. A cotton grower has no opportunity to argue that he received another grower’s assessment by mistake, or that there was an error in calculating the assessment, or that the subject acreage is not as shown in the assessment, or that another person is liable for the assessment because of ownership of the crop or property. It is possible, of course, for a cotton grower to sue for judicial review before the Foundation undertakes any action to enforce its assessments, just as it was possible in Fuentes for the defendant to sue to prevent replevin before it occurred. But due process is not satisfied by the possibility that an owner may sue before he is deprived of his property. It is possible, under the Act, for a cotton grower to find Foundation-ordered plows in his field with no prior opportunity to stop them. “[N]o later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred.” Id. at 82, 92 S.Ct. at 1995.
When the actor seeking property, such as collection of an assessment, is governmental, the requirement of a predeprivation hearing is not absolute. In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court held that the requirements of due process depended on a weighing of three factors: the private interest affected, the risk of error in the procedures used and the probable value of additional safeguards, and the government’s interest in pre-hearing seizure, including the burden additional requirements would impose. See United States v. James Daniel Good Real Property, 510 U.S. 43, 52, 54, 114 S.Ct. 492, 500, 501, 126 L.Ed.2d 490 (1993) (applying the Mathews factors to an action for civil forfeiture of real property). Applying these factors in the present case demonstrates that the Act is invalid. The private interests affected—cotton growers’ interest in their *491funds, crops, and property-—are significant. Although the risk of error may not be great—the Foundation need only multiply the assessment by a grower’s acreage, or in some cases, production—additional safeguards, such as the right to protest and hearing offered taxpayers, would eliminate errors. The State has no legitimate interest in seizing cotton growers’ crops or destroying them before growers have had an opportunity to protest and be heard. The State affords taxpayers such rights; there is no reason why cotton growers should not have them as well.
Ill
As I have said, I also agree with Justice Gonzalez’ opinion that assessments under the Act are a tax on the occupation of agriculture in violation of Article VIII, Section 1(c) of the Texas Constitution.
For all these reasons, I join in the Court’s judgment holding the Act unconstitutional.