88th LegislatureStatewide NewsLocal Preemption Bill Draws Businesses, Municipalities, Unions in House Committee Hearing

After years of responding to individual ordinances, GOP legislators have an eye on passing a proactive preemption measure.
March 16, 2023
Members of the Texas Legislature have proposed a litany of bills aimed at clawing back regulatory authority from local governments, and the foremost example is a broad preemption bill that received a lengthy committee hearing on Wednesday.

House Bill (HB) 2127 by Rep. Dustin Burrows (R-Lubbock) would prohibit local governments from establishing regulations that exceed state law within certain sections of code. It would also allow localities that violate this prohibition to be sued by members of the public, a provision that includes waiving the governmental and official immunity provided to political subdivisions and their electeds.

Burrows has called it a “stay in your lane” bill — officially the Regulatory Consistency Act — and paired it with another proposal aimed at clawing back authority from the judiciary when it comes to applying judgment.

“We cannot predict what is going to happen,” Burrows said, introducing his bill to the State Affairs Committee, explaining why the proposal is broad. “This Legislature has seen more bills on preemption than ever before and we cannot continue to play ‘Whac-A-Mole’ with these ordinances.”

Burrows then introduced a committee substitute that contained a few tweaks: adding the Property and Business & Commerce codes to the list named in the bill; limiting who can sue to anyone who’s suffered “actual or threatened” injury or an association representing someone injured; and limiting court venues to counties of the alleged violation’s origin or an adjacent county.

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In the original version, any individual in Texas could bring suit and do so in any county in the state.

Burrows said that the two new sections of code were added at the request of businesses to more fully encompass all that local ordinances have targeted.

Overall, the proposal is aimed at heading off the entirety of “patchwork” regulations across the state levied by political subdivisions — particularly in the big blue metropolitans.

In several of these cities and counties, ordinances establishing regulations above levels set by the state have been passed. A few years ago, the cities of Austin and Houston both passed $15 minimum wage mandates, safety training requirements, and employee benefit directives for construction companies as a precondition for approving bids or fast-tracking permitting.

Multiple cities passed paid sick leave ordinances, none of which ultimately became effective after a legal challenge, but did cause the industries to comply as they awaited the litigation’s outcome.

The contemporary example that has drawn ample criticism from Republicans at the Capitol is Dallas’ consideration — not yet adopted — of a phased-out ban on gas-powered lawn equipment. That proposal has drawn several specific responses, such as the identical bans of such a move by Sen. Brian Birdwell (R-Granbury) and Rep. Jay Dean (R-Longview).

Along with the patchwork of policies and restrictions implemented during the COVID-19 pandemic — both by the state and localities looking to go further — there’s a plethora of examples to point to by both sides on this issue; Burrows and other Republicans highlighting what they see as broad overreach by political subdivisions, and the localities claiming home-rule status justifies everything they’ve considered.

The lengthy hearing, which had more than 40 testifiers, ran the gamut of arguments for and against.

Skeeter Miller, the owner of multiple County Line BBQs across the state and in New Mexico, said that the cost of compliance with local regulations at his varying locations has cost an arm and a leg. He’s spent $150,000 just to set up software capable of complying with the scheduling and other regulations for his locations.

For him, predictive scheduling — a requirement that work schedules be set two weeks in advance — is overly burdensome. If an unexpected dead period hits during a work day, where the average business would let a few of their hourly service workers go home early, Miller says he must pay time and a half for shedded hours to anyone sent home early, even if they want to go.

That is the kind of inflexibility Burrows cited as a problem for businesses of all stripes to comply with. And if they operate in multiple jurisdictions, add to it the various iterations those regulations may take.

On the flip side, those opposed argued that the state has no business inserting itself into cities’ “local control” — a frequently cited line that abuts a more esoteric debate over the state’s and nation’s founding, and the creation of municipalities with home-rule status more than 150 years ago.

Earlier on Wednesday, a coalition of progressive activist groups and labor organizations convened to decry Burrows’ bill. Among those who spoke outside the Texas House chamber was El Paso County Commissioner David Stout.

About that long-running debate, Stout told The Texan, “I think if they want complete control, then why not just get rid of cities, municipalities, and county governments? I mean, what’s the purpose of having us around anymore?”

The state created home-rule status so that it didn’t have to approve very basic decisions by then-general law municipalities, such as building a road or town hall. It’s grown into something else entirely; whether those new prerogatives are in line with the original mission is the very root of this debate.

Every session, state legislators look to reassert their authority and counter various things done at the local level. Burrows’ intention with the bill, something he exclaimed multiple times during the hearing, is to show that it’s not sustainable to continue reacting and that it’s become necessary to switch gears toward proactivity.

The proactive broadness of HB 2127 has drawn a larger response from localities and progressive activists.

“I think this bill is much broader and much more sweeping than what we’ve seen in the past,” Stout said. “I think this is a result of the fact that the leadership here at the Legislature is not happy with the progressive policies that cities and counties across the state are implementing, and they’re doing everything that they possibly can to try to keep us from continuing with those.”

Stout’s hometown, El Paso, will vote on a proposition in May that’d direct the city to become 100 percent renewable-powered by 2045 and prohibit city water from being used by the fossil fuel industry. Burrows named this during his remarks as another example of a local government going too far, requiring preemption.

One of the groups alongside Stout was the Workers Defense Project (WDP) — a worker center that is chiefly responsible for those Austin and Houston construction ordinances. It also was the springboard from which now-Congressman Greg Casar (D-TX-35) jumped into political office — whose spokesman decried the proposal and defended the local regulations they helped implement.

WDP acts like a labor union in that it lobbies for certain employment policies, but doesn’t file taxes as one — something that caught it an official Department of Labor complaint in 2019, which fizzled out after the Biden administration took over.

Burrows faced a full-court press from his ideological opponents in the committee hearing, especially from fellow members like Reps. Rafael Anchía (D-Dallas) and Chris Turner (D-Grand Prairie). Turner and others questioned whether things like fireworks, pawn shops, towing, door-to-door sales, and alarm systems could still be regulated under the preemption law.

During his closing statement, Burrows pointed to specific sections of code — not included in those cited in HB 2127, such as the Local Government Code — that already provide for the regulation of these things.

“Well, it’s real funny. When this all started, the only thing [opponents] were concerned about was pawn shops. And then I pointed out to them where they would still have the power to regulate pawn shops,” Burrows said. “Despite the change [made to the bill after meetings with proponents and opponents], here we are with people trying to say just the opposite of what I’d heard during these meetings…I guess it’s just a delay tactic designed to deceive and confuse us.”

At the end of the hearing, the committee substitute for HB 2127 was withdrawn and the bill was left pending — a standard procedure that doesn’t really damage its chances of advancing to the floor. Should the bill make it to the House floor, an effort by opposing members to amend or kill it is all but assured.

Last session, Democrats were successful in killing similar but more narrowed preemption legislation not once but twice.

The story of the never-ending political fight between state sovereignty and local authority will include another, bigger chapter when the clock strikes midnight on sine die.


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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.