Texas House Preemption Bill Set for Floor Fight With Cities, Businesses on Opposite Sides

House Bill (HB) 2127 by Rep. Dustin Burrows (R-Lubbock) takes a “field preemption” approach — a proactive rather than reactive measure by which the state would preclude localities from passing regulations not explicitly authorized by state law. Previously, the Legislature has responded to individual instances of local government regulation it deems excessive by preempting those actions through tailored legislation. Burrows calls this “playing Whac-A-Mole.”

There are nine sections of code included in the committee substitute: Agriculture, Business & Commerce, Finance, Insurance, Labor, Local Government, Natural Resources, Occupations, and Property. The proposal would allow individuals who’ve suffered “actual or threatened injury” from their locality’s regulations to sue the local government and its officials for approving regulations that exceed what state law permits in those sections. Those suits may be brought in the county of origin or an adjacent one, but a three-month notice period is required.

Language added to the substitute specifically preempts regulations of animal breeding and sale businesses, provided the individual running the business is licensed by the state or federal government.

Setting some initial guidelines, Section 4 of the bill lists the things it does not prohibit municipalities from regulating: infrastructure maintenance, animal welfare ordinances except as delineated in the aforementioned provision, and tweaking existing regulations to bring them into compliance with this proposed law.

In short, the bill allows localities to regulate whatever is permitted to them in those nine sections, but nothing more than that. For example, if a provision of state law permits a city to regulate prescribed burns of wood or brush, then the city may apply its own oversight to how those burns are carried out. The same applies to water conservation during drought conditions, municipal zoning, and anything else state law addresses.

The bill has 66 joint or coauthors — 10 away from a chamber majority — and passed out of the House State Affairs Committee on Friday by a vote of 8 to 3. One Democrat, joint author Rep. Richard Peña Raymond (D-Laredo), voted with Republicans on the committee. Rep. Oscar Longoria (D-Mission) is a coauthor.

It is scheduled for a floor vote on Tuesday.

The dividing lines on the issue are familiar: state versus local government, conservative versus progressive activism, small and big business versus unions.

The National Federation of Independent Business has made the bill’s passage one of its top priorities. The trade union AFL-CIO has hopes to kill it.

Putting on a full court lobbying press, the Texas Municipal League (TML) kicked itself into overdrive in opposition to the bill. 

“At best, the bill would abdicate the legislature’s traditional role in setting specific limitations on city regulation to the courts,” TML said in an advisory to members. “At worst, the bill attempts to dramatically scale back 110 years of Texas home rule city authority by running an end around of Article XI, Sec. 5 of the Texas Constitution.”

That section of the Texas constitution grants municipalities the ability to incorporate, establish home-rule status, and write out its governing charter. That process is what has allowed localities to govern most of their own affairs without needing the state Legislature to weigh in on every decision — a line drawn by the Constitutional Convention of 1875 out of expediency.

As the state’s population grew, it became burdensome for the part-time, once-a-biennium Legislature to approve actions localities wanted to take — thus bearing out the home-rule provision.

But that same section of the constitution adds, “The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

TML is a lobbying entity that represents municipalities across the state who pay dues with public funds — something that’s made it a prime target of some GOP legislators’ efforts to ban taxpayer-funded lobbying.

The organization’s main criticism is the bill’s broadness — a feature of field preemption as opposed to “conflict preemption,” by which specific instances of local regulations are counteracted by state law. One such example of the more tailored approach came to the House floor, but was subsequently postponed for a second time, Monday in Rep. Brooks Landgraf’s (R-Odessa) HB 2374 that’d prohibit political subdivisions from outlawing gas-powered lawn equipment or engines writ large.

Landgraf’s bill is a direct response to the yet-unapproved proposal in Dallas to ban gas-powered lawn equipment.

But TML also questioned what happens when state law is silent on an issue, a situation it says could be left to courts to decide. The Legislature may also address that unforeseen circumstance with its own prescription down the road.

Leading up to its committee hearing, one of the main criticisms of HB 2127 was that it’d eliminate payday lending regulations many municipalities currently have in place. The current version of the bill establishes a carveout of that practice, allowing the continued enforcement of payday lending regulations in place before this year.

But the business community sees this law as a lifeline amid the tidal wave of constantly changing regulations in the state’s largest cities — the places where the most businesses operate.

NFIB State Director Annie Spillman said HB 2127 “creates some sort of consistency in a world of uncertainty.”

“This bill would restore the regulatory powers that have always traditionally been encompassed within the state and federal government, back to the state and federal government,” she added.

“Texas cities will still keep their local control powers over zoning, public safety, public health, overgrown lots, door-to-door sales, water restrictions, you name it. This bill will not strip cities of any of their governing powers over their communities.”

Eight years ago, the Legislature preempted an attempted fracking ban in the City of Denton. Last session it approved a bill, backed by some in both parties, that prohibited localities from banning certain electricity fuel types.

Where that one passed, another one failed — twice — when House Democrats successfully killed municipality employment regulations in 2021.

The issue has crossover appeal both ways, which may be borne out in the floor vote to come Tuesday. There is also likely to be a concerted effort by most of the minority party to kill the bill through a point of order or water it down through amendments.