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This story was co-published with El Paso Matters as part of our joint Equitable Cities Reporting Fellowship For Borderland Narratives.
UPDATE: On Aug. 30, a Travis County judge declared House Bill 2127 unconstitutional after hearing a lawsuit that had been initiated by the city of Houston, joined by San Antonio and El Paso, supported by dozens of large and small municipalities in Texas. The “Death Star Bill,” as its opponents called it, was set to go into effect on Sept. 1. “I am thrilled that Houston, our legal department, and sister cities were able to obtain this victory for Texas cities,” says Houston Mayor Sylvester Turner. Meanwhile, the Texas Association of Business, through the Freedom Litigation Center, released a statement urging the State to appeal the decision: “We are confident that when the dust settles, House Bill 2127 will be found constitutional, and business owners will enjoy a less burdensome regulatory environment,” TAB CEO Glenn Hamer says.
In 2015, El Paso became the second city in the country to safeguard its workers by passing a historic wage theft ordinance. As a sweeping new state law aimed at handicapping Texas’s more liberal city governments is set to take effect Sept. 1, that protection is now facing an existential threat.
House Bill 2127 — also known as the Super Preemption Bill or, among opponents, the “Death Star” bill — aims to regulate many aspects of commerce and trade in local jurisdictions that differ from state-imposed directives.
Passed in May and signed into law by Texas Gov. Greg Abbott a month later, the legislation could affect local policies dealing with ordinances – including agriculture, insurance, labor, natural resources, and occupation codes — that contradict the state.
“The purpose of this Act is to provide regulatory consistency across this state and return the historic exclusive regulatory powers to the state where those powers belong,” reads the bill, introduced to the state’s Republican-controlled legislature. But opponents believe its aim is to weaken bluer cities and counties’ ability to regulate their industries and enact progressive policies. (Abbott’s office did not respond to Next City’s questions about the need for HB2127 or its benefits.)
“The Death Star law is part of a trend of broad preemption bills we see in Republican-controlled states across the country – in states like Michigan, Florida, and Tennessee – as part of a larger effort to hold power at the state level and punish local governments from passing policy that the state legislature doesn’t support,” said Local Progress Texas, a network of liberal local government officials, in a news release. “The passage of the Death Star Law sets up other states to follow suit.”
In July, the cities of Houston and San Antonio filed a joint lawsuit against the state of Texas, claiming that the law violates the state constitution and infringes on the rights of home-rule cities to pass their own ordinances. Shortly afterward, the City of San Antonio also joined the suit to block the law. And now 32 local elected officials across Texas, including in El Paso, have signed onto an amicus brief in support of the cities, filed by Local Progress and the Public Rights Project.
While these local leaders say they can’t yet know the full impact of the law on their municipalities, they believe the law will undermine their ability to meet their constituents’ needs, voiding a slew of local ordinances and leaving governments vulnerable to litigation.
Laura Cruz Acosta, spokeswoman for the City of El Paso, says the law’s vagueness makes it hard for officials to know precisely which ordinances will be impacted until a court determines that a local policy is in conflict with a state counterpart.
“This creates a situation where local laws can be preempted when there is no state regulatory counterpart and ultimately seeks the repeal of the constitutional home rule provided to cities,” she says. “It also delegates the courts to identify which of El Paso’s laws (if any) are preempted, which can be a costly and time-consuming process.”
In El Paso, the city’s non-discrimination ordinance — which prevents discrimination based on race, sexual orientation, reproductive health actions, hairstyle, or texture regarding employment, housing, and public accommodation — and wage theft prevention ordinance face a likely invalidation. A minor-focused curfew ordinance, established in 1996 and amended in 2006, could also face the chopping block.
So, too, could policies dealing with the agriculture code, drought conditions, overgrown lots when dealing with insects and bees, predatory lending of businesses out in the county, injuries at special events, the insurance code and the occupations code, safety at outdoor festivals and sporting events, natural resources dealing with uncontrolled burns, trash and tire dumping, heavy trucks oil, gas, and propane lines, says El Paso County Commissioner David Stout.
El Paso County Commissioner David Stout
Stout was among four El Paso-based local officials who signed onto the recent amicus brief in favor of Houston and San Antonio’s lawsuits. He’s also gone to state legislature committee meetings to advocate against the bill. He believes HB2127 will tie the hands of local elected officials, stripping them of the ability to produce innovative and nuanced responses to their constituents’ distinctive needs.
“We’re elected to try to protect our people from things like natural disasters to other types of crisis, to support our workforce to provide safe housing, to make sure that we have clean, potable drinking water, and so many other things,” he says. “The solutions to all those types of issues look differently from city to city and from county to county.”
The law can preempt not only policies put in place by elected officials but also those approved by voters. For Stout, the law is an “aggressive” act of voter suppression, a move he believes is aimed at nullifying the voices of progressive voters yet may end up hurting conservative municipalities and voters.
“The implications of HB2127 are really far-reaching… destroying the idea of home rule, destroying the idea of local control and really, democracy,” Stout says. “It’s the very definition of state interference. Why should a group of legislators who have rarely or never been to El Paso tell my community what’s best for us?”
The legislation would also remove governmental immunity, leaving counties and cities open to civil litigation by any member of the public that believes their ordinances contradict state policies.
“It’s going to be expensive for local governments to defend and handle and many instances where the express county authority to regulate is unclear,” Stout says. “The bill might possibly chill the county’s will to enact a rule of order for fear of liability to the county or the county official.”
The law’s ambiguity can also create a financial burden for counties already limited in how much money they can raise to operate. Stout says that while the law’s final implications are still up in the air, the county would have to spend countless staff hours combing through the law and comparing it with all the policies enacted at each one of their departments.
“The state legislature is talking about doing all this great work to try to reduce taxpayer burden,” Stout says. “But then they turn around and do this. I think they’re speaking out of both sides of their mouths.”
The County of El Paso’s press office did not comment on which county policies would be affected or the repercussions of HB2127.
Many business organizations in Texas supported the bill, but the El Paso Chamber did not officially take a stance. El Paso Chamber officials did not respond to questions about the benefits of HB 2127 after various email correspondence.
(Photo courtesy City of Belton)
About an hour’s drive from Austin is the small, red-leaning city of Belton, Texas, home to about 25,500 residents. “A decade ago at the county level, there was not a single elected official who was a Democrat,” says the city’s public information officer Paul Romer. “That has changed, but it is still a place that most would describe as having traditional values.” One Republican representative from the city of Belton, Hugh Shine, was one of the sponsors of HB2127.
But during a July 11 city council meeting, as the city broached the topic of HB2127, the discussion was far from supportive. “We’re quite concerned about the implications of that,” Belton City Manager Sam Listi says. “House Bill 2127 contradicts the Home Rule amendment of the Texas Constitution, is unnecessarily vague, and forces the cities to prove their authority to enact ordinances.”
Place 6 Council Member Wayne Carpenter says that after spending several hours reading the Home Rule, enacted for more than 100 years in the Texas Constitution, he determined that HB2127 violates the Constitution.
“It’s designed to basically punish large cities, which we are not,” he says. “What San Angelo may need, San Antonio doesn’t need, and what Houston needs or doesn’t need, really doesn’t apply to most things in Belton. I think this is a very dangerous precedent.”
Stephanie O’Banion, who represents Place 7 on the council, testified in the legislature against the bill. “It’s a terrible bill on multiple levels, but in this role for cities, it’s a terrible stripping of our ability to serve our community, and it doesn’t make a lot of sense,” she says.
The city of Belton decided unanimously to have an amicus brief ready to file in support of the lawsuit when the time was right.
“We’re still waiting to see what happens,” says Romer. “The one-size fits all model of government is too restrictive. Communities understand their local issues better than state or federal officials. Autonomy should be preserved, not restricted.”
In Houston’s lawsuit, filed July 3, the city called the measure unconstitutional, void and unenforceable. Three weeks later, San Antonio joined the lawsuit citing similar objections. “The Texas Constitution gives home-rule cities the ability to create local ordinances, and lawmakers have overstepped their authority with House Bill 2127,” says San Antonio Mayor Ron Nirenberg. “We do not intend to meekly surrender our community’s right to self-govern. City Council members—chosen by local voters—work with residents in their neighborhoods and understand their community’s needs and issues far more than lawmakers in Austin.”
Crucial city housing ordinances – dealing with increased apartment inspections at complexes failing to meet the city’s maintenance and safety codes, as well as a tenant bill of rights that protects renters by targeting discrimination and ensuring tenants have a safe, stable, and affordable place to live – could disappear under the new law.
San Antonio District 5 Councilmember Teri Castillo
San Antonio District 5 Councilmember Teri Castillo, who was involved with the city’s suit, argues that it undermines the democratic process and concurs that the law’s vagueness leaves her city vulnerable to lawsuits.
“Ultimately, whether you’re on the right or the left, folks know that local government is the closest to the ground in our communities and know what solutions are needed,” she says.
Among the explicit targets of the law have been ordinances mandating water breaks for construction workers, such as those in Austin and Dallas. San Antonio, too, had been considering such an ordinance – but because Abbott’s new law would have prevented it, the ordinance had to be scaled down “to one that doesn’t cover all San Antonio residents,” says Castillo. “It will apply to residents who receive a contract through the city.”
HB2127 enforcement does not lie within a state commission or group to decide the validity of a local policy, but rather individuals who can sue the municipalities if they believe a policy is out of compliance with the state of Texas.
“It leaves everything open for a lawsuit, and that’s a lot of taxpayer money that’s going to have to be used to challenge these lawsuits,” Castillo says.
In Austin, one of the most progressive cities in the state, ordinances dealing with water and rest breaks for construction workers, fair chance hiring, wage theft prevention, a $20 minimum wage for city employees, and paid parental leave for city and county employees could also face invalidation.
Austin District 2 Councilwoman Vanessa Fuentes
“There is a conservative effort by Republicans to bring forward broad preemption legislation,” Austin District 2 Councilwoman Vanessa Fuentes says. “It’s a concerted effort to hold power at the state level. They want to consolidate power at the state level and take away power from local governments.”
In the early years of her career, Fuentes was a legislative aid at the Texas Capitol located in Austin to a different approach to local policies by the Senate. During the 83rd legislative session, she recalls, the rhetoric emerging from the conservative lawmakers’ wing favored local control and local voice.
“Here I am 10 years later … and have seen the state legislature preempt, strip away local control, kneecap local control, and basically declare war on city governments on how we can best protect the interests of our communities,” she says.
Fuentes is concerned about other local policies dealing with tenant protections, water breaks, and a law she brought forward in the aftermath of the Supreme Court overturning Roe v. Wade going away. The policy she introduced updated the city’s nondiscrimination ordinance to include protections on reproductive health decisions, which would prevent employers from discriminating against workers who had out-of-state abortions.
“Now that has been preempted,” she says. “There are serious consequences that we have as a result of the Deathstar Bill.”
Protesters gathered near El Paso's federal courthouse on May 3 to protest the possible overturning of Roe v. Wade. (Photo by Corrie Boudreaux / El Paso Matters)
HB 2127, Fuentes says, has profound implications that endanger what locally elected representatives can provide to their communities during times of disaster and affect policies the legislature does not support.
“The legislature has changed their tune because they’ve seen what type of policies have been passed, and these policies are focused on our most vulnerable residents,” she says. “They’re focused on our renters, are focused on workers, they’re focused on the interests and priorities of your everyday Texan.”
Fuentes identified a policy that was passed in Austin but never enacted — dealing with paid sick leave that guaranteed workers could take time off to care for themselves or a loved one —as a “boogeyman” to justify HB2127.
“That policy was first passed in Austin as a mandate to employers, and it was stalled at the courts and never went into effect,” she says. “Yet that was often cited in the testimony and the reason why we needed this comprehensive law, this broad law.”
As in San Antonio, Fuentes says she has already seen the preemption law limiting Austin lawmakers’ ability to craft policies to protect their constituents. “We wanted to bring forward legislation combating wage theft for freelancers,” she says. “Now, we can’t do that because that is regulation around hiring practices.”
As far as joining other cities’ lawsuits against the state, Fuentes says Austin would focus its resources on dealing with cases that will likely come forward against the city.
“We plan to fight tooth and nail to keep those policies enacted,” she says. “We are the capital city, so we have to be strategic and how we engage on this issue.”
This story has been updated to correct El Paso Chamber of Commerce’s actions related to the bill.
Christian Betancourt is Next City and El Paso Matters' joint Equitable Cities Reporting Fellow for Borderland Narratives. He has been a local news reporter since 2012, having worked at the Temple Daily Telegram, Duncan Banner, Lovington Leader and Hobbs News-Sun. He's also worked as a freelance reporter, photographer, restaurant owner and chef. Born and raised in Juarez, El Paso became Betancourt’s home when he moved there in the seventh grade.
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