88th LegislatureStatewide NewsLegislative Primacy at Center of Proposals Filed by Texas House Chairman

A two-bill pair by state Rep. Dustin Burrows (R-Lubbock), chairman of the House Calendars Committee, aims to claw back some of that lost ground in Texas — the latest chapter in this political trench warfare.

The first, House Bill (HB) 2127, is dubbed the Texas Regulatory Consistency Act. Sen. Brandon Creighton (R-Conroe) has authored the Senate version. The legislation lays out an array of preemptive provisions over local governments.

“[I]n recent years, several local jurisdictions have sought to establish their own regulations of commerce that are different than the state ’s regulations [that] have led to a patchwork of regulations across this state that provide inconsistency,” the bill reads.

The following provisions “preclude municipalities or counties” from creating any regulation “unless explicitly authorized by statute” — a way of reasserting state sovereignty as predominant over local authority.

Under the proposal, any local ordinance passed that contradicts that which is laid out in state law — specifically within the Agriculture, Finance, Insurance, Labor, Natural Resources, or Occupations Codes — would be void and unenforceable.

The law also waives all forms of governmental immunity from suit as it pertains to those brought under this potential law; an individual or entity could sue if a political subdivision violates these provisions, and may do so in any county in the state.

Burrows told The Texan the bill is a broad-sweeping, shotgun-style response to a bevy of policies passed by localities, specifically the blue population centers. In years past, the Legislature opted for more narrowly-tailored responses.

During the previous Legislature, two versions of a state preemption over cities’ ability to adopt employment regulations stalled out in the Texas House — one during the regular session and one during a subsequent special. Those bills were a direct response to ordinances passed in Austin and Houston that mandated certain practices for businesses that contracted with the city or sought zoning and other regulatory approval from the locality.

Last session, former state Rep. Joe Deshotel (D-Beaumont) passed HB 17 that prohibited localities from denying the use of certain sources of electricity generation — a response to some cities in California banning the use of natural gas for electricity or heat.

Nearly a decade ago, the City of Denton banned fracking within its limits and the Legislature responded with a preemption bill in 2015.

Until now, the Legislature had generally operated in precise, targeted fashion against specific regulations it deemed onerous by cities. But it’s Burrows’ intention to head it all off at the pass.

“Every single session, we see more and more need to try to deal with an instance of a city abusing its home rule status and decided to regulate something that historically it’s never regulated in the past,” he said. “That is a threat to our conservative governance, and the Legislature is left trying to play ‘Whack-a-Mole.’ So I wanted to file something broader and more robust.”

In Burrows’ and many other Republicans’ view, cities — especially the proverbial blueberries in the tomato soup — have moved off the reservation, away from handling basic responsibilities of government like paving streets and providing services.

“We’ve crossed the Rubicon,” he added.

Of course, the local officials contend they are caretaking of their core responsibilities, as Dallas officials have contended while the city considers a ban of gas-powered lawn equipment as part of its “Environment and Sustainability Plan.” The move has drawn several responses from the Texas Legislature in the form of draft bills.

But as with many aspects of politics today, the two sides operate with substantially different worldviews.

“Here’s what drives me crazy: they want to paint us as the aggressor,” Burrows said. “No, no, they’re the aggressors — and now it’s on steroids.”

In a statement provided to The Texan, Creighton said, “Activist cities continue to pass job-killing ordinances on our small businesses — mandating costly policies, burdensome red tape and an unpredictable patchwork of regulation.”

“For Texas to continue to be the economic engine of the nation, our businesses, large and small, depend on certainty, rather than an unpredictable patchwork of business-killing policies. This legislation affirms that certain decisions should be made at the state level.”

The preemption bill even has the blessing of the state’s top Republican; Gov. Greg Abbott backed the proposal at a National Federation of Independent Business event this month.

State versus local is a fight as old as the Republic itself; it permeates nearly every issue the Texas Legislature takes up each session, with some of its membership more amenable to the sovereignty of the state government and others touting “local control” above all else.

It’s again taking a prominent position within the Legislature this session as many different local preemption-type bills have already been filed; as Burrows exclaimed, “This is a preemption session.”

Burrows’ other bill deals not with local governments, but with the judiciary.

There is a long-running dispute within conservative legal circles between textualism, strict constructionism, and intent-based originalism.

All three share devotion to interpreting laws in accordance to the words written on the page — by contrast, “living constitutionalism” or judicial pragmatism, the predominant orientation on the legal left, provides for far more judicial discretion and supremacy.

But those three strains of the conservative legal philosophy differ in their endpoints. For textualists and originalists, differing levels of context in addition to the written words of the law determine its commandment. For strict constructionists, a law’s meaning begins and ends with the words written down.

This highfalutin philosophical hand-wringing is not irrelevant, as it impacts the rulings of real judges in real cases considering real disputes between real individuals and entities.

Burrows describes his proposal as “a strict construction bill for the court system.”

HB 2139 reads, “When interpreting a statute, a court is not to inquire into what members of the legislature intended or hoped to accomplish, but shall enforce the statutory text as written and in accordance with the meaning that the words of the statute would have to an ordinary speaker of the English language.”

One section is titled “reliance on legislative history prohibited,” under which courts are precluded from taking into account statements from legislators, including the bill’s authors or sponsors; the contents of committee reports; and any comments made during committee or floor debates.

“I’m just trying to establish intent,” is a phrase heard often at the House’s back microphone or in committee hearings. The House Journal is often appended with long dialogues between legislators for the purpose of creating some record of intent from which a judge may cite during future legal challenges against laws passed by the body.

Both sides do it, and Burrows sees the practice as a way to insert a legal Trojan Horse into a law.

“It bothers me that perhaps two legislators can undo or undermine what I and my 149 other colleagues voted on and is unfair to the body as a whole,” Burrows said.

The other onus for Burrows filing the bill is the judiciary itself.

“I want to know that when judges are trying to decide what a statute means they need to go to the plain text and plain meaning of the actual words on the piece of paper,” he said.

Originalists would counter that just the words on the page are insufficient in judging intent, as the plain meaning of words often changes as years go by.

An example of this lies within the Second Amendment.

Regarding the prefatory clause “A well regulated militia…,” “well regulated” during the late 18th century meant well-trained or well-equipped, according to Jeffery Rosen of the National Constitution Center.

But in modern parlance, the term often takes on a connotation of government regulation, which those on the political left use to justify any number of firearm possession regulations.

Asked about that dynamic, Burrows said, “[A]t the end of the day, you cannot account for things that do change over time and there is no perfect solution to all of this, but there has to be some guiding principles.”

“We have a code construction act that’s currently law that essentially provides for judges to interpret what we mean and allow all these extraneous statements and debates to influence what they think we actually mean. I don’t want them to do that,” he added.

“I think this is the best way to preserve the integrity of what we have tried to pass.”

The second bill’s directive notwithstanding, Burrows’ intent of both proposals is to assert the Legislature’s status as the predominant branch of government — both in theory and in practice.