Texas Judge Declares Bill Limiting Authority of Cities, Counties Unconstitutional

The Texas State Capitol is seen on the first day of the 87th Legislature's third special session in Austin, Texas, on Sept. 20, 2021. Tamir Kalifa/Getty Images

Texas legislation that would take some authority away from cities and counties imposing their own laws if they exceed state law was deemed unconstitutional by a Travis County judge on Aug. 30.

House Bill 2127, known as the “Texas Regulatory Consistency Act“ is sponsored by state Sen. Brandon Creighton and state Rep. Dustin Burrows, both Republicans.

It passed the Senate in an 18–13 vote mostly along party lines after previously passing the House in April and is backed by Gov. Greg Abbott.

The legislation was set to go into effect on Sept. 1.

However, state District Judge Maya Guerra Gamble declared the legislation unconstitutional after the cities of Houston, San Antonio, and El Paso challenged the law in court filings (pdf), arguing the bill was too vague for cities to enforce it and too broad.

Opponents also argued the legislation violated the state constitution, which grants “the full power of self-government” to cities.

In her ruling (pdf) Wednesday, Judge Gamble agreed with city officials, writing that House Bill 2127, in its entirety, is “unconstitutional — facially, and as applied to Houston as a constitutional home rule city.”

According to an analysis of House Bill 2127, the legislation was introduced because “the state has historically been the exclusive regulator of many aspects of commerce and trade in this state” but in recent years, “several local jurisdictions have sought to establish their own regulations of commerce that are different than the state’s regulations.”

These local regulations have “led to a patchwork of regulations that apply inconsistently across this state” the legislation states.

The Republican-led measure would limit the ability of local governments to make rules or regulations in nine areas of state law: agriculture, business and commerce, finance, insurance, labor, local government, natural resources, occupations, and property, without first gaining approval from the Texas Legislature.

Texas Senate State Affairs Committee hears a bill by Republican Sen. Lois Kolkhorst at the state Capitol in Austin, Texas, on March 2, 2023. Courtesy of the Texas Senate

‘Overreaching Regulations Conflict With State Law’

Additionally, it would grant Texans the power to file a lawsuit against any municipality or county if they are “adversely affected” by orders, regulations, or rules rolled out by them in violation of the legislation, although they would have three months’ notice to correct the issue before legal action can be taken.

Advocates of the bill claimed it would help small businesses deal with “inconsistent and overreaching regulations that conflict with state law,” but opponents feared it amounted to government overreach and would roll back local protections for workers when it comes to issues like wages and break times.

Following Wednesday’s ruling, Mr. Burrows said the judgment “is not worth the paper it’s printed on.”

“The Texas Supreme Court will ultimately rule this law to be completely valid,” the lawmaker 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, 2023.”

“As an aside, given what happened today in the Travis County District Court, I now better understand why the business community was clamoring for the creation of specialized business courts to ensure our state’s laws are fairly upheld and our justice system is preserved,” Mr. Burrows added.

Elsewhere, Annie Spilman, the Texas director at the National Federation of Independent Business, which also supported the bill, condemned the judge’s ruling.

“We strongly disagree with the Court’s abrupt decision in this case and remain confident the courts will uphold the constitutionality of the Texas Regulatory Consistency Act. This Friday, on the effective date, Texans should avail themselves of their rights under this new law,” Ms. Spilman said in a statement.

‘Power Grab by the Legislature’

“The Texas Constitution makes perfectly clear that the Texas Legislature can preempt local ordinances. Mere opposition to the scope of the law, does not make the law unconstitutional,” she continued. “Moreover, under the law, cities retain their authority to address local concerns, there is no financial incentive to file a lawsuit, and if a court finds that an ordinance runs afoul with the law, the ordinance is simply enjoined.”

“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,” Ms. Spilman added.

However, city officials who challenged the bill, including Houston Mayor Sylvester Turner, welcomed the ruling.

“I am thrilled that Houston, our legal department, and sister cities were able to obtain this victory for Texas cities,” Mr. Turner said in a statement. “HB 2127 was a power grab by the Legislature and an unwarranted and unconstitutional intrusion into local power granted to Houston and other home-rule cities by the Texas Constitution.”

“HB 2127 was intended to mire large cities like Houston in endless litigation at taxpayer expense as cities and businesses struggle to discern what HB 2127 meant. As a former legislator, I am appalled by this assault on federalism and Texas cities,” he said.

“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. This self-defeating war on cities needs to end, the mayor concluded.

San Antonio Mayor Ron Nirenberg also called the judgment a “win for democracy.”

“The ruling is a critical step toward ensuring Texas cities and their respective residents maintain their ability to govern themselves,” Mr. Nirenberg said.

It is not yet clear if the Texas attorney general’s office will appeal the ruling.