Judge declares new Texas law that would erode cities’ power to enact local rules unconstitutional
A state law backed by Gov. Greg Abbott and business lobbying groups to stop cities and counties from passing progressive policies is scheduled to take effect Friday. A Travis County judge declared it unconstitutional.
By Joshua Fechter, The Texas Tribune
Aug. 30, 2023
A sweeping new Texas law aimed at undermining the ability of the state’s bluer urban areas to enact progressive policies is unconstitutional, a Travis County judge ruled Wednesday.
State District Judge Maya Guerra Gamble made the ruling just days before the law — House Bill 2127, which opponents nicknamed the “Death Star” bill — is slated to take effect on Friday.
The Republican-backed law aims to stop local governments from enacting a wide range of progressive-leaning policies by barring cities and counties from passing local ordinances that go further than what’s allowed under broad areas of state law.
The law is still expected to go into effect, but Houston City Attorney Arturo Michel said Wednesday's ruling gives cities fodder to counter any lawsuit against local ordinances challenged under the umbrella of HB 2127.
The state has already appealed the ruling, a spokesperson for the Texas Attorney General's Office said.
Local officials balked at the law’s passage earlier this year, blasting it as a massive, vague and possibly unconstitutional power grab by the state that could prevent them from meeting local needs and needlessly disrupt how the state has operated for nearly a century. Houston, later joined by San Antonio and El Paso, sued the state last month alleging that the law conflicts with a portion of the state constitution that allows cities to enact their own laws.
During a court hearing Wednesday morning, lawyers for the state argued that such a law is within the state’s purview. But the judge sided with cities.
Houston Mayor Sylvester Turner celebrated the ruling.
“The Governor’s and Legislature’s ongoing war on such home-rule cities hurts the State and its economy, discourages new transplants from other states, and thwarts the will of Texas voters who endowed these cities in the Texas Constitution with full rights to self-government and local innovation,” Turner said in a statement. “This self-defeating war on cities needs to end.”
HB 2127 — carried during this year’s regular legislative session by state Rep. Dustin Burrows of Lubbock and state Sen. Brandon Creighton of Conroe, both Republicans — marked Texas Republicans’ most expansive attempt yet to weaken local governments in their yearslong campaign against the state’s major metropolitan areas, which account for most of the state’s economic growth and often are governed by Democrats.
“The judgment today by a Democrat Travis County District Judge is not worth the paper it’s printed on,” Burrows said after the ruling. “The Texas Supreme Court will ultimately rule this law to be completely valid. The ruling today has no legal effect or precedent, and should deter no Texan from availing themselves of their rights when HB2127 becomes law on September 1, 2023.”
Gov. Greg Abbott and business lobbying groups, chiefly the National Federation of Independent Business, had long sought such a law — complaining of a growing patchwork of local regulations they argue overwhelmingly burdens businesses.
“Texas small businesses are the backbone of our economy,” Abbott wrote on X, the social media platform previously known as Twitter, during Wednesday’s court hearing. “Burdensome regulations are an obstacle to their success.”
Annie Spilman, NFIB's Texas director, blasted Wednesday's ruling.
"The Texas Constitution makes perfectly clear that the Texas Legislature can preempt local ordinances," Spilman said in a statement. "Mere opposition to the scope of the law, does not make the law unconstitutional. ... Instead of filing frivolous lawsuits against the State and trying to regulate small businesses out of existence, local officials should focus on addressing the concerns of their constituents."
Just how many local ordinances will become illegal under the new state law remains unclear owing to how broad it is, city officials and progressive groups have said. But there are some concrete examples.
The law, for example, prevents cities from passing local ordinances that require employers to provide paid sick leave to their workers — as Austin, Dallas and San Antonio have attempted, though courts blocked those laws before they could take effect. It will also bar cities from enacting protections for tenants facing evictions — at a time when the number of eviction filings in Texas’ major cities exceeds pre-pandemic levels. And as Texas increasingly endures brutal summer heat waves, the law wipes out mandatory water breaks for construction workers passed by Austin and Dallas.
Wednesday’s ruling “allows critical, life-saving local policies to remain in place … reflecting the importance of local leaders being able to respond to their communities’ urgent needs,” a coalition of progressive and labor groups including the Texas AFL-CIO and Local Progress Texas said in a joint statement.
The law seems to be having the chilling effect that lawmakers intended. After it passed, San Antonio officials scaled back a proposed water break ordinance of their own.
“When you get right down to it, this law is anti-democratic,” San Antonio City Council Member Teri Castillo said. “It takes the power and freedom away from everyday Texans who deserve to have their voices heard. And it directly contradicts the values that I know Texans hold true.”
Even as local officials have increasingly pinpointed some of the ordinances that could become illegal, the true scope of the new law remains unknown. City leaders believe it will take several lawsuits to figure out which local ordinances can stay on the books.
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Correction, Aug. 30, 2023 at 7:34 p.m.:
A previous version of this story incorrectly said a Travis County judge blocked House Bill 2127, a state law that would limit local governments' ability to create new ordinances, from taking effect. While the judge declared the law unconstitutional Wednesday, she did not stop the law from taking effect.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/08/30/texas-death-star-bill-unconstitutional/.
