A Travis County state district judge on Wednesday ruled that Texas’ “death star” law preempting local regulations is unconstitutional, dealing at least a temporary blow to state lawmakers who say it is necessary to provide a uniform environment for business.
Lawyers for Houston and other cities made a convincing case that the law is too vague, 459th Civil District Court Judge Judge Maya Guerra Gamble found after a nearly three-hour hearing in Austin.
She signed a judgment calling the law that was set to go into effect Friday “void and unenforceable.” The hearing in her court came as the statute was poised, potentially, to overrule vast swaths of local rules, including ordinances in Austin and Dallas that require outdoor construction workers to receive regular water breaks.
In Houston, officials said they fear the law could kill the city’s “pay-or-play” ordinance, which requires contractors to pay into a fund for low-income health care if they do not provide health insurance to employees.
The state immediately filed an appeal of the judge’s decision, according to a spokesperson for the Texas Attorney General’s Office. Lawyers with that office argued the state could not be sued because enforcement of the law is left to private parties.
Houston City Attorney Arturo Michel said he expects any legal action from citizens or trade associations would be put on hold by judges while Houston’s lawsuit plays out.
Houston Mayor Sylvester Turner issued a statement hailing the judge’s decision.
“While Houston realizes our battle with the state is not over, I will do all I can during my remaining term to ensure that Houstonians govern Houstonians. I hope my successor will do the same,” the mayor said.
One of the law’s sponsors, meanwhile, issued a dismissive statement on social media.
“The judgment today by a Democrat Travis County District Judge is not worth the paper it’s printed on,” state Rep. Dustin Burrows, R-Lubbock, said. “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.”
The court battle over the “death star” law, dubbed so by its critics because its scope is so broad, comes after years of turf battles between Democratic cities and Republican state lawmakers.
After years of playing Whac-A-Mole with local regulations on a variety of issues, from plastic bag bans to fracking, conservative legislators this year decided to wield a sledgehammer.
The law, sponsored by Burrows and Sen. Brandon Creighton, R-Conroe, does not tick off which local ordinances it blocks. Rather, it states that cities cannot make regulations overlapping with rules in the state codes for agriculture, business and commerce, finance, insurance, labor, local government, natural resources, occupations or property; unless otherwise authorized.
As the law traveled through the legislature, however, lobbyists for cities said they needed further clarity on which local regulations would be zapped. The law’s proponents said they were missing the point.
“We could sit there and try to be prescriptive and identify each and everything that we are preempting,” Burrows said at one hearing. “This bill is designed to be somewhat of a living document.”
Collyn Ann Peddie, a lawyer for the city of Houston, seized upon that comment in court as an example of the law’s alleged vagueness.
Nobody seems to be able to say which local regulations the law will overrule and which it will not, Peddie said. Instead, cities are left to guess as to whether their regulations violate the law. They will be forced to wait for lawsuits to flood courthouses to find which rules can stand, she said.
Under the law, private citizens or trade associations can file lawsuits challenging local ordinances. Cities would be on the hook for legal fees if they lose.
“They’ve created absolute chaos, I think, with cities in trying to figure out what (House Bill) 2127 means. And the chaos in large part is the point,” Peddie said.
Separately, Peddie said, the “death star” law runs afoul of the Texas Constitution, which grants broad powers to home-rule cities like Houston. Those powers can be limited, but only on a case-by-case basis with “unmistakable clarity” from the legislature, Peddie said.
Peddie likened the preemption law to the Texas statute that allows private parties to file lawsuits against people alleged to have facilitated abortions.
“They are written in a vague way. They are enforced by a mob, and the intention is to get cities, particularly big cities like Houston, just to give up in disgust,” Peddie said.
If the city of Houston is worried about enforcement by the mob, it had picked the wrong defendant in suing the state of Texas, argued a lawyer for the Texas Attorney General’s Office.
The city had not shown that it can trace any harms it has suffered to the state, Charles Eldred, chief of the attorney general’s legal strategy division, told the court. He said the judge should toss the lawsuit without considering its merits.
“There’s better ways to handle the issue in this case. In actual lawsuits against actual ordinances, with actual facts and actual evidence,” Eldred said.
Guerra Gamble rejected that argument by signing a motion for summary judgment offered by Houston. She also rejected arguments from another lawyer for the state, special counsel Susanna Dokupil, who said the Texas Legislature could curtail home-rule cities’ power with a sledgehammer rather than a stiletto.
“The actual history in Texas suggests that the legislature has always had primacy,” Dokupil said. “Home-rule cities have always been somewhat subject to the whims of the legislature, and whether this is good or bad policy is not determinative of the constitutionality.”