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When Texas lawmakers drafted a bill to block cities and counties from creating regulations on a wide variety of issues, from worker safety to evictions, critics described it as a “death star” aimed at the blue dots in a red state.
Now, Gov. Greg Abbott has launched the death star into space – and local governments are trying to figure out what it means for them.
In Houston, officials say ordinances regulating everything from tow truck companies to outdoor music festivals could be in jeopardy.
Harris County’s top legal officer says a new measure requiring county contractors to offer worker safety training could be threatened.
Once the law takes effect Sept. 1, however, it could be months or years before its full force is known. That is because the law was written so vaguely, city and county officials say, and because it will rely on private lawsuits for enforcement.
“Generally, it’s kind of hard to tell because of how broad the law is. It just goes in and preempts entire fields,” Harris County Attorney Christian Menefee said. “The way that you find out if a regulation or an ordinance is in violation of the statutes is, somebody is going to sue you for it.”
A legislative flash point
For years, liberal-leaning cities in Texas have been playing a game of cat-and-mouse with lawmakers and the state Supreme Court, trying to advance stronger local regulations in the face of laissez-faire state policies. Austin passed paid sick leave, Denton banned fracking, and Laredo banned plastic shopping bags.
Those cities’ efforts were foiled each time by Texas lawmakers and court rulings. In this year’s legislative session, conservative lawmakers decided to get out ahead of the next big-city idea.
Rep. Dustin Burrows, R-Lubbock, introduced a sweeping bill designed to prohibit local regulation in eight areas of state code: agriculture, business and commerce, finance, insurance, labor, natural resources, occupations and property.
Speaking on the Senate floor, state Sen. Brandon Creighton, R-Conroe, who represents parts of Houston and Harris County, said the legislation was needed to prevent “a patchwork of different ordinances across this state that are an impossible compliance nightmare for businesses. It’s anti-business. It’s anti-growth. It’s anti-job-creation. And it’s anti-Texas.”
Critics said the law would block municipalities from implementing a host of common-sense measures that have gotten bogged down in the Legislature. One issue that came to symbolize the fight involved ordinances requiring water breaks for construction workers in Austin and Dallas. Houston, which has not passed a water-break ordinance, will be blocked from trying to do so now that Abbott has signed the bill into law.
Houston rules in jeopardy
One of the biggest objections cities raised to the preemption law before it passed was that it was written so broadly that it was hard to know how to interpret it.
That also has made it difficult for Houston to conduct a full accounting of the law’s impact, said Bill Kelly, the city’s director of governmental relations.
Some rules, however, already seem to be in doubt. One that stands out to Kelly involves city regulations meant to ferret out rogue tow truck drivers. Houston’s stricter standards have enabled the city to catch drivers whose criminal records included convictions for multiple DWIs, robbery and rape, officials say. Under the new law, the city’s ability to oversee its 270 tow companies and 120 private lots now is in doubt, Kelly said. It is an example Kelly tried to highlight for lawmakers, to no avail.
“Unless you’re riding a bike full time, you can very easily have an interaction with a tow truck driver in the city of Houston. Whether you’re top of the heap or bottom of the hill,” Kelly said.
Another potential problem involves local regulations for boarding homes that provide group housing for the elderly or people with disabilities, but do not qualify as nursing homes.
“We have seen some horrible abuses. We have seen, like, 20 people in a three-bedroom apartment. And they’re basically just taking their money,” Kelly said.
In response to abysmal conditions and a deadly blaze, Houston passed regulations in 2013 and 2018 that required operators to obtain permits and submit to fire code inspections.
ASSET, a nonprofit organization representing Texas business groups, has pushed back against some of the issues raised by Houston. In a “fact-check,” ASSET said local governments would retain the power, included in other codes and provisions, to regulate tow-truck drivers, boarding homes and outdoor music festivals.
There are other areas of the law where there seems to be less debate.
Houston will be allowed to keep its regulations for payday lenders in place. Thanks to the law, however, it will not be allowed to update those regulations as lenders roll out new financial schemes, Kelly said.
Kelly said the city also may be blocked from providing funds to legal aid groups for eviction defense, because of a provision in the new law that prohibits cities from helping renters avoid displacement.
In Harris County, Menefee said a regulation requiring county contractors to offer worker safety training, a measure hailed by labor groups when it passed in January, could be in trouble.
Lawsuits all around
Harris County will try to find the legal “wiggle room” to keep its policies in place when it can, Menefee said, but the law will dramatically increase the risk of a lawsuit that comes with every piece of legislation.
That is because under House Bill 2127, anyone can sue a local government if they have “sustained an injury in fact, actual or threatened.”
In a recent memo to its members, the Texas Municipal League warned the threat of such lawsuits could loom over local governments for a long time to come.
“Moving forward, one primary unresolved question looms large: what fields of regulation does the state occupy? Quite simply, we do not know. This is a legal question that the courts must decide on a case-by-case basis. The full scope of HB 2127 will likely be unknown for years,” the organization wrote.
There also is a chance that the law could spark legal challenges in the other direction. Houston and the Texas Municipal League have argued the law stands in conflict with the powers the state Constitution grants home-rule cities.
Kelly declined to say whether Houston is considering a legal challenge.
Menefee said he expected cities, rather than counties, to lead the charge, since the former’s powers are broader under state law.
“As of right now, everybody is evaluating their options,” Menefee said. “To the extent we have legal arguments to challenge that, we’re definitely going to give them a hard look.”
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