DATELINE TEXAS No Small Change: Boll Weevils Mean Big Bucks for Austin Lawyers BY BOB ELDER Ed Small was a high school football star; but he never matched the prowess of his father; a University of Texas All-Southwest-Conference team member in the 1930s Fortunately the Smalls share more than football: father and son and their law firm, Small Craig & Werkenthin of Austin, are longtime lawyers for various facets of the states agribusiness interests. And of late no client has been more profitable than a curious state entity called the Texas Boll Weevil Eradication Foundation Inc There is nothing untoward about a law firm making money from its client, of course. But the relationship between Small’s law firm and the Foundation has certainly put a new wrinkle in Texas’ century-old struggle between King Cotton and the boll weevil. While the Small, Craig law firm has racked up $400,906 in fees from the Boll Weevil Foundation in a little more than two years, the Foundation itself hasn’t been nearly as successful. As its name forthrightly states, the Foundation’s mission is to wipe the boll weevil from all 5.7 million acres of Texas cottona tall order, considering that the cotton-destroying insect came across the Mexican border in 1892 and has managed to survive ever since. It’s serious business. Cotton is Texas’ No. 1 row crop, and the state typically supplies between one-quarter and one-third of the nation’s production. To protect the state’s cotton industry, in 1993 the Legislature set up the Foundation and endowed it with powers fitting an agricultural war. The Foundation’s aptly named “police powers” includeshades of General Shermanthe right to destroy the crops of farmers who don’t pay their fees for anti-weevil spraying. Yet many farmers in the Lower Rio Grande Valley argue the Foundation’s careless first round of spraying in 1995 almost wiped them out instead of the boll weevil. While the Foundation’s spotty record to date has been bad news for most cotton farmers, it has been good business for Small, Craig. The firm used its longtime ties to agribusiness interests to get the job of representing the Foundation on every front: drafting legislation, lobbying, and defend ing the litigation that followed the drafting and the lobbying. Besides the legal fees, racked up from October 1994 until the end of 1996, Ed Small reported up to another $20,000 in lobbying fees in 1994 and 1995. The big money extends beyond legal fees. The Foundation’s executive director, Frank Myers, earns $124,088 a year, $25,000 more than the governor. The Foundation has the right to bypass the state attorney general and hire private lawyers at any pricethe six Small, Craig lawyers who handle Foundation work have an average hourly billing rate of $206. Small bills $250 per hour. “They are a hybrid,” Rudd Owen says of the Foundation. Owen is a Plainview lawyer who represents Hale County farmers who want out of the Foundation’s program. “They have governmental powers, but not the checks and balances usually associated with the standard state agency or governmental agency.” But a revolt is brewing. Farmers in the Lower Valley last year voted to end eradication efforts after the first season of Foundation spraying resulted in a disastrous cropsome 80 percent of the region’s cotton crop was lost. U.S. Department of Agriculture scientists in Weslaco said pesticide spraying led to an infestation of beet armyworms by killing off “beneficial insects” that are the armyworms’ predators. The Boll Weevil Act divides the state into nine eradication zones; the Foundation starts eradication efforts if a majority of the region’s farmers approve it. On the flip side, eradication programs are stopped if 40 percent of the farmers vote to discontinue it. The Valley debacle led directly to a bigger problem: a constitutional challenge by other farmers upset with the program. Their suit, argued before the Texas Supreme Court November 20 and awaiting a decision, says that the Foundation’s mandatory assessment of fees on all cotton growers is an occupational tax on farmers, a tax that is prohibited by the state Constitution. The case is an appeal from 242nd District Judge Marvin Marshall’s ruling that the Foundation is levying unconstitutional fees. In losing the court at the district-court level, the Foundation is on the hook for even more attorneys’ fees. The court awarded $155,000 in fees to lawyers for the rebel farmers, as well as another $20,000 in refunded spraying assessments. Those fees await the outcome of the Supreme Court case. Meanwhile, a separate group of South Texas and High Plains farmers-2,833 in allhave alleged that the Foundation improperly disregarded its petition calling for a vote on the eradication program in their regions. Arthur Val Perkins, a Houston lawyer representing the 6 THE TEXAS OBSERVER MARCH 14, 1997 11, 416.