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The death star has yet to fire.
More than two months after sweeping legislation designed to curb the power of cities and counties in Texas went into effect, a much-anticipated wave of litigation has yet to follow.
Critics had warned of a legal onslaught against local rules, such as Austin’s mandatory water breaks for construction workers. The law, which went into effect Sept. 1, was designed to pre-empt local regulations in eight broad categories by allowing private lawsuits against them.
Yet none of the 15 big cities and counties that responded to inquiries from the Houston Landing has received one of the formal warnings required before a lawsuit.
That may be because the city of Houston sued first, winning a district court ruling that the statute is unconstitutional. Even though the law remains in effect as Texas Attorney General Ken Paxton appeals, would-be plaintiffs appear to be holding off.
Houston City Attorney Arturo Michel was one of several observers to express surprise at the lack of litigation. He believes it may be a financial calculation.
“Why expend resources until you have certainty that the law is going to be upheld?” Michel said.
Off to slow start
The so-called “death star” law, so dubbed by critics because it is potentially so powerful and seemingly unstoppable, was one of the most hotly debated measures in the Texas Legislature this year.
For years, conservative state legislators played a cat-and-mouse game with more liberal cities. As local governments passed regulations banning plastic bags or giving workers paid sick leave, the state would respond with laws striking them down.
At the urging of business groups, Republican state legislators attempted a more comprehensive approach this year. Instead of picking apart local regulations one-by-one, they banned cities and counties from making rules that overlapped with state regulations in the areas of agriculture, business and commerce, finance, insurance, labor, local government, natural resources, occupations or property.
Supporters said the law would provide certainty for business. Critics said the law was so vague about which regulations were in conflict with state law that local officials had no idea how to comply.
The law lays out a two-step process for challenging local regulation. First, plaintiffs must send what’s known as a “notice of claim” to the targeted city or county, potentially giving them time to ditch the offending rule on their own. After three months have passed, the plaintiffs can file suit.
Even the first step may have gone unused so far, however. The Houston Landing reached out to Texas’s 10 most populous cities and 10 most populous counties. All 15 counties and cities that replied said they had not received notices thus far.
The list includes the cities of Houston, Austin, Dallas, Fort Worth, Arlington, Corpus Christi, Plano, El Paso and Lubbock.
Harris, Dallas, Bexar, Collin, Hidalgo and El Paso counties also said they have not received notices.
“That seems to be consistent. We check time to time with other cities,” Michel said. “We are unaware of any notices or lawsuits.”
Harris County Attorney Christian Menefee said his office’s analysis of draft legislation is “the exact same” as before the new law went into effect. In Texas, counties are considered arms of the state and have limited powers compared to big cities.
“We’ll see how it shakes out, but for now we haven’t seen anything,” he said.
There has been at least one lawsuit that references the law. In Dallas, opponents of short-term rental regulations cited the state law, among other statutes, in their lawsuit against the city. Yet their own lawsuit acknowledged that they had not filed a formal notice first.
A city councilmember in Austin, meanwhile, raised eyebrows when his attorney brought up the law before it went into effect in response to the councilmember’s violation of local ethics code, which is more stringent than state law.
Houston fires first
Before the “death star” law’s passage, lobbyists for the city of Houston warned loudly that it could put the city’s regulations of tow-truck drivers or outdoor music festivals in danger.
In the wake of the law’s passage, but before it went into effect, Houston decided to take the initiative. On July 3 it sued the state, arguing that the law violated the state Constitution’s delegation of powers to home-rule cities like Houston.
Two days before the law was set to take effect, 459th Civil District Court Judge Judge Maya Guerra Gamble sided with the city. She signed a judgment declaring the law “void and unenforceable.”
Despite that ruling, all sides agree that the law remains in effect. Paxton’s office immediately filed an appeal, which under state law means that Guerra Gamble’s judgment has been suspended.
State Rep. Dustin Burrows, the law’s sponsor, thumbed his nose at the city after the judge’s decision.
“The judgment today by a Democrat Travis County District Judge is not worth the paper it’s printed on,” Burrows said in a statement. “The ruling today has no legal effect or precedent, and should deter no Texan from availing themselves of their rights when HB 2127 becomes law on September 1, 2023.”
Waiting for a judgment
So far, there is no indication that anyone has taken Burrows up on his offer, at least according to the cities and counties that responded to requests for comment.
Months could pass before an appeals court rules on Houston’s lawsuit. Michel said a final resolution from the state Supreme Court may not come until 2025.
Even though the law has taken effect, cities and counties can still ask judges to put any lawsuits on hold while Houston’s case plays out.
“I think the uncertainty of what’s happening right now during the pendency of appeal may be what’s causing some to wait,” said Rod Bordelon, a distinguished senior fellow at the Texas Public Policy Foundation who testified in favor of the law.
Bordelon has not seen signs of a chilling effect where cities and counties hold off on passing legislation in the first place – perhaps because so many of them maintain that the new law is unconstitutional.
“I hope it chills any efforts to adopt any ordinances that would be in direct contravention of the state law that was recently passed,” Bordelon said. “That’s intended. The whole intent is that the business of the state should be regulated by the state and not any of the municipalities scattered around the state.”
Whatever the state Supreme Court ultimately decides could have ramifications elsewhere, according to Nestor Davidson, a professor at Fordham University who studies state preemption laws.
Texas is essentially trying to create a new model for its relationship with cities that is more akin to the 19th century, when they had to ask the legislature for permission to make new laws, Davidson said.
If Paxton’s office wins its appeal, more “death star” bills might arise elsewhere in the country, he said.
“What you often see is if a model becomes entrenched in one state, there really is a process of diffusion and other states begin to pick up on it,” Davidson said.
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