A broad Texas law depriving towns of autonomy passed the state Senate on Tuesday and is now on its way to the governor’s desk.
House Bill 2127 transfers large domains of municipal governing from the state’s largely Democratic-run cities to the Republican-controlled legislature, including payday lending laws, regulations on rest breaks for construction workers, and laws determining whether women can be discriminated against based on their hair.
According to the Austin American Statesman, Gov. Greg Abbott (R) has been a strong proponent of the law.
Progressives contend that the proposal, which one lawyer for Texas cities dubbed “the Death Star” for local government, signals a new chapter in conservative state legislatures’ campaign to limit the power of blue-leaning communities.
Opponents of the bill include civil society organizations such as the AFL-CIO and representatives from every large and minor city in Texas. They claim that the power transfer would limit cities’ ability to craft policies tailored to their specific circumstances.
“Where the state is silent, and it is silent on a lot of things local governments step into that breach, to act on behalf of our shared constituents,” state Sen. Sarah Eckhardt (D) told the Senate on Tuesday. “We should be doing our jobs rather than micromanaging theirs.”
However, the bill’s proponent in the Senate, state Sen. Brandon Creighton (R), stated that it was vital to safeguard “job creators” from “cities and counties acting as lawmakers outside of their jurisdiction.”
The measure’s proponents and the leading trade group that supported it, the National Federation of Independent Firms (NFIB), have contended that municipal regulation posed an existential threat to Texas firms.
“As prices rise, property taxes rise, and workers remain scarce, small business owners continue to struggle in this economic environment,” said Annie Spilman, NFIB state director, in a statement earlier this month. “Arduous local ordinances, no matter how well-intended, exacerbate these challenges.”
The NFIB’s solution: a single set of laws governing business across the state, which it claims will save money by avoiding the “patchwork” of local and county regulations that regulate Texas’ huge cities.
While the NFIB and the legislation are technically nonpartisan, Republican support for the bill has been overwhelming.
The law passed the state Senate 18-13 on an almost party-line vote after passing the House in April with only eight out of 65 Democrats voting in favor.
If passed, the legislation would have far-reaching implications, prohibiting — technically “preempting” — large swathes of state law.
Many existing rules, such as those in Austin and Dallas that protect construction workers from heat, will be rendered ineffective.
It would also prohibit new prohibitions on payday lending or puppy mills while existing city rules would be protected after a lengthy battle.
Other particular municipal laws that lack state or federal analogs, such as an Austin rule prohibiting discrimination based on hair texture or style, are likely to be struck down, according to urban advocates.
The law did not pass in the 2019 or 2021 sessions, in part because it was deemed too broad, according to Austin City Councilor Ryan Alter. However, Alter stated, “The bill has only gotten broader with each failed passage.”
Alter identified state preemption of the Property and Business and Commerce codes as two categories with unintended effects for cities.
“As a city, we do many things related to property, land use, and land issues, and we make many decisions that impact business and commerce,” Alter continued.
In addition, the bill preempts city and county ordinances relating to the Agriculture Code, Finance Code, Insurance Code, Labor Code, Natural Resources Code, and Occupations Code. Proponents of the measure are concerned about procedural issues.
Because the state legislature only meets every two years, each session is clogged with possible bills, most of which never see the light of day. For example, in 2022, the Legislature passed almost 38% of the over 10,000 measures presented.
The Legislature’s low meeting frequency and state-level concentration make it a body that opponents claim is unfit to manage the day-to-day affairs of communities.
According to Adrian Shelley, Texas director for public interest advocacy group Public Citizen, “cities and counties across Texas will have to rely on the state’s part-time Legislature, which meets for only 140 days every two years, to address various issues and problems of local concern,” according to the new law.
The NFIB’s Spilman contended that the bill was required to reign in out-of-control municipal governments.
The protracted fight for H.B. 2127 began in 2018, when Dallas, Austin, and San Antonio approved ordinances mandating companies to provide paid sick leave.
State and federal courts later struck down such statutes as violating state limits on raising the minimum wage above the national level.
However, according to Spilman in an April statement, the ordinances would have given city governments subpoena power to investigate suspected infractions concerning the NFIB.
“I just don’t understand why something like that would be in a city ordinance.” That is highly concerning for a small business owner who does not have compliance officers.”
#BREAKING: The bill takes large domains of municipal governing, including laws determining whether women can be discriminated on based on their hair, out of the hands of largely Democratic-run cities and shifts them to its GOP-controlled legislature. https://t.co/hTUqwB8zjy
— The Hill (@thehill) May 16, 2023
The measure was urgently needed, she emphasized at the time. “You go another two years without this protection. We just don’t know what cities might propose next.”
Meanwhile, opponents contend that the measure will provide obstacles to businesses since its scope is so vast that it is impossible to predict how far it will stretch.
In an April statement, Houston city attorney Collyn Peddie said, “If there is one thing businesses despise, it is uncertainty.”
“Because 2127 barely attempts to define the fields that it purports to preempt,” Peddie noted, “[self-governing] cities will not know what laws to enforce and, more importantly, businesses will not know what laws to obey.”
Another cause of concern for bill opponents is the manner of enforcement, which would be through lawsuits, as in the case of the state’s “bounty” abortion prohibition.
The law would allow “any person who has sustained an injury in fact, actual, or treated” to sue towns and counties for establishing ordinances in areas that are now formally under the state’s domain.
Victims of such claims would be awarded monetary damages and legal fees. When governments pass major ordinances, “people get clever in their lawsuits to challenge anything they don’t like,” Austin councilor Alter explained.
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“And, because the bill is so broad, there are a lot of opportunities for people to poke holes in any bills that the city passes.”
According to Spilman’s explanation to The Hill, the NFIB’s position is that the newly preempted powers are not being taken away from cities because they were never theirs.
The bill’s Republican sponsors agree. “It’s a stay in your lane’ bill,” Rep. Dustin Burrows (R) remarked at an NFIB event in February. “If you’re a city, perform your essential functions.” Do your basic functions as a county.”
Burrows has blasted the bill’s detractors as “taxpayer-funded lobbyists” who, in March, told the Texas Tribune were “out in full force trying to undermine this effort.” Burrows’ words followed a pattern seen in statehouse Republican rhetoric nationwide.
Eckhardt, a Bastrop state senator, stated that the bill “obliterates the local balancing of interests that creates the distinct local flavor from Lubbock to Houston, Laredo to Texarkana.” House Bill 2127, for example, “excuse the Texas legislature from leading,” she says.
“We are wasting our precious 140 days when we could be doing statewide health, education, justice, and prosperity policies by barging into bedrooms, locker rooms, boardrooms, examining rooms, and now city council meetings.”
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