The Texas Death Star Bill
Texas HB 2127: depending on whom you ask, it’s known as either the Regulatory Consistency Act, or the Texas Death Star Bill. Proponents would argue that it makes regulations more uniform across the state and benefits small businesses. Those who oppose the bill would say that it decimates local control by cities and counties alike. Among the stated purposes of the bill is to provide consistency and predictability for job creators by preempting local regulation of matters already regulated by the State. In doing so, however, the legislature has created immense uncertainty for local governments as to what types of rules they can adopt or even enforce.
The bill specifically states that it does not “prohibit a municipality or county from building or maintaining a road, imposing a tax, or carrying out any authority expressly authorized by statute.“ Beyond those specific enumerations, it’s difficult to discern what authority remains for local governments.
In effect, the bill preempts cities and counties from adopting or enforcing an ordinance or rule that regulates conduct “in a field of regulation that is occupied by a provision of…” the Agriculture Code, Business & Commerce Code, Finance Code, Insurance Code, Labor Code, Natural Resources Code, Occupations Code, or Property Code. Essentially, if the legislature has addressed a subject through any one of those codes, additional local regulation is preempted. Each time a local government passes a new rule or even enforces an existing ordinance or rule, they will be forced to run a check against each and every one of those state codes and determine if the legislature has already entered that “field of regulation.” HB 2127 offers no further explanation or definition for field of regulation. Given the uncertainty, the conservative approach would be: if state law touches on a subject in any way, cities and counties should steer clear. If a city thinks they have the authority and they’re wrong, they can be sued.
In its current form, the bill waives governmental immunity for cities and counties for purposes of enforcing the Act. Individuals can recover court costs and attorney fees against a local government and enjoin any violations of the act.
Another interesting aspect of the bill is an amendment to the local government code. In Texas, general-law cities have always had to look to state law for authority. Home-rule cities, however, were empowered by the Texas constitution to enact local laws so long as they were not “inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.” Tex. Const. Art. XI Sec. 5. HB 2127 amends the local government code to restrict a municipality’s general police powers to adopting an ordinance or rule “only if the ordinance or rule is consistent with the laws of this state.” This begs the question: is there a difference between “not inconsistent with state law”; and affirmatively requiring something to be consistent with state law? Was the legislature merely reciting what the Texas Constitution already required, or did they intend to further limit the authority of local governments?
According to the House Research Organization report, the bill necessarily covers a wide range of regulatory areas. It goes on to state that “[t]he bill is intended to be a living document interpreted based on case law, not to provide prescriptive specificity for every possible regulatory issue.” For cities and counties, that’s a real problem. There won’t be any case law interpreting the bill until local governments start getting sued and courts issue opinions. In the meantime, cities and counties are left with the task of combing through their ordinances and regulations, and trying to decide which are enforceable, and which are now a lawsuit waiting to happen.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
