In the last few years, a trend has emerged in Texas for the state to challenge or overturn certain local ordinances. Some believe the attack on local ordinances is hypocritical, given state officials, specifically Governor Greg Abbott and Attorney General Ken Paxton, consistently defend the state against perceived federal overreach. The Governor and Attorney General are unaffected by these claims and cite that the U.S. and State Constitutions are on their side. As a result, the list of local policies attempted or successfully overturned by the state is not short.
Short Term Rentals: When the city of Austin passed a ban on certain Short Term Rental Policies, it did not take long for property rights advocates to sue the city. Their position, supported by Attorney General Ken Paxton, was upheld by the Texas Supreme Court.
Plastic Bag Ban: A few Texas cities have passed “single use bag bans” for various reasons. The City of South Padre Island claims the bags pollute their beaches; meanwhile, the City of Fort Stockton banned the bags after ranchers’ complaints that the bags interfered with cattle feeding. This month, the Texas Supreme Court ruled such bans as unconstitutional because they are in conflict with state law on solid waste disposal. While neither the Governor or Attorney General were directly involved in the litigation, AG Paxton did applaud the ruling and sent letters to the 11 Texas Cities with such bans, letting them know that those ordinances are now unenforceable.
TNC Regulation: When the City of Austin banned certain Transportation Network Companies from operating within city limits, the Texas Legislature responded swiftly by passing a bill that sets statewide policy for TNC regulation, restoring the rights of Uber and Lyft to operate in Austin.
Fracking Ban: The Legislature also acted when the residents of Denton passed a “Fracking ban.” With the support of Governor Abbott, Texas cities are no longer allowed to ban fracking, citing private property rights as being infringed by the ban. Governor Abbott, when signing the bill, declared that the bill avoids “a patchwork of local regulations” that threatened oil and gas production.
Property Taxes: The Legislature was unable to come up with a solution to skyrocketing property tax, even though property tax reform was named a priority of the Governor’s during the 2017 legislative session and following special session. This will again be a priority for the Governor and Lt. Governor Patrick during the 2019 legislative session.
Mandatory Sick Leave: The 2019 Legislative session also promises to reverse the City of Austin’s recently passed mandatory sick leave policy. The effort will be led by State Representative Paul Workman and State Senator Donna Campbell, both Republicans whose districts represent part of Austin.
What remains to be seen is if the Governor will mount another attempt to regulate cities’ tree ordinances or permitting processes. Both were named priorities during last year’s special legislative session but neither passed.
This perceived attack on local government is received with great criticism by many, particularly the Texas Municipal League. Specifically, they call state leaders out for championing the 10th Amendment to advocate for states’ rights, while infringing on localities’ rights. Both the Governor and Attorney General recognize that the Constitution specifically delegates to the states those powers that are not otherwise assigned to the Federal Government. Furthermore, the U.S. Supreme Court has issued a series of rulings that make it clear that cities are subordinate to the states. Governor Abbott believes that the delineation is justifiable, as a patchwork of regulation throughout the state makes doing business in Texas very difficult.
Obviously, given their recent rulings on Short Term Rentals and Single Use Bags, the Texas Supreme Court agrees that 10th Amendment rights to the states are very different from those rights given to the cities. City Councils and Mayors will continue to argue “local control” to defend these ordinances. But the reality is that cities cannot pass regulations that conflict with state law. Furthermore, the state’s efforts to overturn any local ordinances are fully within the legal scope of state government and not at all in conflict with the Governor’s and Attorney General’s efforts to use the 10th Amendment against the federal government’s encroachment on states’ rights.
