87th LegislatureState HouseState SenateState Versus Local Control Underpins 87th Texas Legislative Session

Such a retort is frequently recited in and around Texas politics — a theme that permeates issues ranging from taxation and energy policy to police department funding and property rights.

Yet, the question should be explored: what are the parameters by which the state and local governments operate?

First, a bit of a history lesson.

Texas’ governmental structure exhibits an internal dichotomy between Anglo-American common law and Hispanic juridic law. Municipalities and their charter-focused construction fall under the former while the county divisions and structures trace back to the latter.

And when Texas became its own entity, the juridic law construct became the constitutional mainstay while the Anglo construct ranged from absent to secondary. In its constitutions, both of the republic and state, the only explicit political subdivisions of the state were counties.

The ability to formally recognize municipalities, however, still existed. During the existence of the Republic of Texas, 1836 to 1845, only the Congress could incorporate a city. Nacogdoches was the first of such municipalities in 1837. No authority for a community to charter its own government existed during the republic.

When Texas joined the Union, all discretion on municipality incorporation fell to the legislature. And that is how it operated in Texas for 30 years — on a case-by-case basis. Despite their incorporation, each remained subject to state law — also known as “general law.”

But in 1876, that changed. A new governing document was ratified by the Constitutional Convention of 1875, which included a new municipality distinction: “general law” and “chartered.”

Chartered law is defined as those at or below 5,000 in population and general law is defined as those above 5,000 in population — the original population line was set at 10,000 but was amended to its current form in 1909.

For context, only two Texas cities had surpassed 10,000 in population at that point — Galveston and San Antonio — with Houston the only one close behind.

General law municipalities are strictly subject to state law and may not issue any rule beyond it. 

Professor George D. Braden, who spearheaded an annotated Texas Constitution complete with historical context and analysis, said the population line was reduced because the governing responsibilities for the state legislature over each municipality were becoming too cumbersome.

This move offloaded more responsibility from the legislature’s shoulders. In fact, the journal of the 1875 convention features many examples of the legislature investing run-of-the-mill governing authority in municipalities over their internal affairs, such as the ability to set its own property tax rate within the state’s parameters rather than the state’s rate itself.

Article XI of the Texas Constitution establishes counties as legal subdivisions of the state. While municipalities existed, their authority, even under charter, paled in comparison to what is seen today.

In an 1869 U.S. Supreme Court decision City of Clinton v. Cedar Rapids and Missouri River Railroad, Justice John Dillon ruled municipalities only possess authority explicitly granted to them by the state; those “necessarily implied” to those enumerated powers; those “absolutely essential” to the locality; and that a tie goes to the state.

This is known as the Dillon Rule under which state governments largely operate.

A 1907 Supreme Court case, Hunter v. City of Pittsburgh, echoed this principle. The case, steeped in the context of another recurring Texas issue, concerned the annexation of the City of Allegheny into Pittsburgh after a majority vote within both municipalities.

The court sided with the state and its duly passed law, upholding the election result, but within its opinion ruled, “Municipal corporations are political subdivisions of the State, created by it and at all times wholly under its legislative control.”

This put Texas in a tricky spot. On the one hand, the court reinforced the state’s full control over any municipality within its borders. But on the other, to that point the state had not explicitly recognized municipalities as political subdivisions the same as counties — carrying with that label all rights to self-rule as they so extended.

Furthermore, the legislature had been trying to wash its hands of the rank, day-to-day dealings required to oversee municipality governance.

The legislature decided shortly thereafter to codify those two municipal categories to bridge the gap between legislative oversight and municipal actualization.

The main aspect of the change is known as the “Home Rule Amendment,” which is the origin of much of the authority wielded by municipalities today. Texas law now explicitly enabled municipalities to issue their own charters, opening the door for home rule.

Since then, whether by legislative deference or court ruling, the authority cities hold has expanded. Conventional holding by the Dillon Rule and the Home Rule Amendment remain juxtaposed forces within state law.

The epicenter of the tussle between state and local authority is the state’s capital city. Austin City Council’s policies — most notably its recent homeless camping ban recission and $150 million police department budget cut — have caught the ire of Governor Greg Abbott who’s used them as a political cudgel with which to beat his political opposites … and to great electoral success.

Abbott has suggested, and plans to advance in legislation this session, annexing the Austin Police Department from the city to under the wing of the Texas Department of Public Safety. He’s also proposed a financial penalty for cities that “defund their police.”

A less-developed idea is disbanding Austin’s city government and creating a state-controlled district — similar in nature to that of the District of Columbia.

But this conflict expands beyond Austin, and perhaps the foremost example lies in taxation. Local government property taxes in Texas are among the highest in the nation, largely because no state offset, such as an income tax, exists.

During the 2019 session, the issue became a focal point for the legislature which passed the most consequential property tax reform in some time. Declared the “Super Bowl Session” by state leaders, the legislature could only muster a reduction in the cap on property tax growth in the final version of Senate Bill (SB) 2. 

Though surely no easy political lift, and more stringent than that which failed in 2017, the reform does not provide much in the way of true relief.

Once passed, localities rushed to fit in one more tax hike before the new caps set in. But for many places in Texas, that reform was again postponed due to the disaster loophole within SB 2. Numerous localities took advantage of it, but others did not.

That episode was just another in the recurring clash during which tensions have worsened between these two levels of government.

Coming into this legislative session, that trend will undoubtedly continue. Issues such as a ban on taxpayer-funded lobbying and abortion highlight the doctrine of legislative preemption and its parameters — or lack thereof.

Sen. Bob Hall (R-Edgewood), who makes up one-half of the legislative team advancing the taxpayer-funded lobbying ban, falls squarely on the side of the state’s right of preemption when necessary.

“The precedent is set for who has the ultimate responsibility: the state governments. The people created the state governments and then the states created the federal government and counties and cities as subdivisions of the state itself,” Hall emphasized.

He added, “The state government is the protector of liberty and our constitution.”

Pointing to taxpayer-funded lobbying specifically, Hall added, “The role of the state is to protect the people, their rights, and their pocketbook. Local elected officials taking something from the people in the form of a tax and using the public’s money against them is just wrong.”

“When people’s money is being used against them, [the state] has a responsibility to not allow that to happen — just like with sanctuary cities.”

Rep. Terry Canales (D-Edinburg) is a staunch local control advocate. 

“The reality of politics is that the most organic, most grassroot level is at the local level. There’s no one-size-fits-all solution to a state as vast and diverse as Texas,” Canales told The Texan.

He added, “They know the ins and the outs, where the potholes are, where the drainage issues are, and they are the best source of information and control for those issues.”

Hall objected to this framing, calling it a “red-herring argument,” adding “there is never a right time to do the wrong thing” when it comes to the rights of citizens juxtaposed to local government policies.

A five-time incumbent, Canales said he’s seen the idea of “local control” fall out of favor under the pink dome. 

“Local control now is nearly non-existent.”

Canales further stipulated that instances do exist wherein the state should preempt localities. Specifically, when “a local government requests state action; a true abuse or overreach exists by a local government violating its citizens’ rights; or the fundamental tenets of the government we created are abridged by local politics.”

But largely, Canales continued, the state exists most often to “supplement, augment, or assist local government.”

In essence, the two legislators disagree mainly on where the lines of local government authority end and rights of citizens begin — and political differences of opinion contribute to what constitutes a violation of rights and when.

A previous example of legislative preemption occurred when various localities, namely the City of Denton, issued fracking bans within their jurisdictional limits. In effect, this created various sets of rules governing fracking throughout the state, spurning continuity within the industry.

In 2015, Abbott signed a bill into law that essentially voided all local policies differing from the state’s, codifying as, “An oil and gas operation is subject to the exclusive jurisdiction of this state.”

Canales took aim directly at that preemptive legislation, and further added that localities, for example, should be able to prohibit drilling sites within some distance of a school. He’s tried to advance that legislation since it occurred, thus far unsuccessfully.

Another instance occurred in 2019 when the state banned red light cameras that had become a fruitful source of reliable revenue for cities, and of tremendous headache for drivers. However, support and opposition to this policy largely transcended partisan identity.

Canales continued, “The shift, in my opinion, has swung too far toward Austin-control over local control.”

He then pointed to a tweet by Kevin Roberts, executive director of the conservative Texas Public Policy Foundation, which said, “The ultimate ‘local control’ is by the individual citizen — each of whom in Austin is endangered by reckless decisions [of Austin].”

“Those individuals also voted for their local officials,” Canales countered, adding, “and it’s un-Texan and un-American for the legislature to cram their policies down those local officials’ throats.”

Hall, meanwhile, stipulated that home rule as it was originally constituted is acceptable, in fact, necessary. But he added that the state must be vigilant in identifying and stamping out instances of local government abridgement of their authority.

He stated, “There is a big difference between doing things differently, from locality to locality, and doing things that cross from right into wrong,” said the senator.

Another issue Hall identified to watch this dynamic unfold around is elections. Texas has 254 counties each with varying degrees of diverging election procedures. Hall sees opportunity this session for the state to pull back some of the discretion left to counties and establish more uniform protocols.

Numerous pieces of legislation doing just that have already been filed on both sides of the aisle.

Canales’ position can largely be summed up as “The government is best which governs closest to home.” 

Hall, meanwhile, echoes the spirit of the 10th Amendment that leaves all unenumerated powers in the federal constitution to the states — including sovereignty over their localities which they created.

But the question gets murkier depending not only on a given policy, but the history in which governing authority was turned over to municipalities from the state.

That local control redux, however, can play politically the other way. Take examples such as the sanctuary cities for the second amendment and unborn that many rural Texas localities have adopted. It’s not just blue cities rebelling against their red-state parent.

Despite the best efforts of many politicians, politics is all about the long game. It’s difficult, in the moment, to fully grasp that laws passed now hold immense implications 100 years from now well after those involved are long gone, but that plain reality is clear from days of old to today.

The coronavirus pandemic — with all its resulted dueling, and often contradictory, state and local orders — has provided yet another display of the state-versus-local fight, but also a lesson that yesterday’s legislation affects today’s events.

Texas is not exactly the mythical haven of unalloyed conservatism many outside the state believe it to be. Clashes within — not only between politically left and right ideologies but also between urban, suburban, and rural perspectives — permeate nearly every issue and heighten every odd-numbered year.

But perhaps the most rooted fight exists between state supremacy and local control — a fight that’s raged for decades and will be again featured throughout the 87th Legislative Session.