Local cities grapple with 'Death Start Act'

HAYS COUNTY — Cities throughout Hays County are grappling with the unknown effects of a recently passed bill by the Texas Legislature during the 88th regular session, H.B. 2127 — also known as the Texas Regulatory Consistency Act, or what some are calling “The Death Star Act.”

Sponsored by Rep. Dustin Burrows, H.B. 2127 purports to limit municipal regulatory authority (even for a home rule city, or cities over 5,000) to that of a general law city, which encompasses most Texas cities, including the city of Dripping Springs.

“Our authority comes solely from state statute,” said Ginger Fraught, Dripping Springs deputy city administrator.

Home rule cities such as Kyle and Buda can establish local ordinances and are not bound solely to state statue. However, H.B. 2127 would bar cities and counties from passing certain ordinances — and overturn existing ones — that go further than state law in broad areas including agriculture, business and commerce, finance, insurance, labor, natural resources, occupations and property. H.B. 2127 passed the Texas House by a 92-56 vote in April.

According to the bill’s language, “the legislature finds that the state of Texas has historically been the exclusive regulator of many aspects of commerce and trade in this state; in recent years, several local jurisdictions have sought to establish their own regulations of commerce that are different than the state’s regulations; and the local regulations have led to a patchwork of regulations across this state that provide inconsistency.

“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.

“The provisions of this code preclude municipalities or counties from adopting or enforcing an ordinance, order, rule or policy in a field occupied by a provision of this code unless explicitly authorized by statue. A municipal or county ordinance, order, rule or policy that violates this section is void and unenforceable. These matters include agriculture, business and commerce, finance, insurance, labor, property and more."

At the Buda City Council meeting held Tuesday, June 20, city attorney Alan Bojorquez updated council members on the “significant effects” of H.B. 2127.

“It may affect some of the current regulations we have on the books and how we go about enforcing the regulations. It could also affect some of the regulations we adopt in the future. So, this is fairly significant,” said Bojorquez. “H.B. 2127 is an attempt to curtail that home rule authority granted not only by the Texas Constitution, but also by the people of the city of Buda.”

There is a general preemption that unless expressly authorized, a city cannot adopt or enforce a rule in a “field of regulation” that is “occupied by” the state. A rule that violates this code is “void and unenforceable.”

Specific preemptions include payday lending, employment, animal/pet sales and evictions. There are several exceptions such as building/maintaining roads, imposing taxes, health/safety of animals, public awareness campaigns, collective bargaining, city employee policies and massage establishments.

“If the ordinance touches upon a ‘field of regulation’ within that specific statue, that’s where the city is preempted, but what that means is not clear,” said Kyle city attorney Paige Saenz, who noted that the city has not looked at the individual ordinances and the specific impacts on Kyle. “I think everybody is very much aware that what that actually means in application is not clear. Obviously, it’s going to be taken on a case-by-case basis. And figuring out what that means will be challenging. There’s not a definition for those terms and where there’s room for interpretation and there’s a lack of clarity, that means there’s just the potential for dispute.”

How those disputes will be resolved, she added, will vary.

“We're going to have to wait for the courts to tell us in some ways what this means because it's not necessarily clear from the statutes,” Saenz said.

The heart of the matter revolves around local control.

“That’s a concept that's probably always in flux. Because things are changing, things are changing in the world and changing quickly. And so, government changes in this division of labor amongst local and state kind of changes as well. I think there's more work to be done on those organizational efforts,” Saenz said. “It's always a moving target. And I'm a big believer in local control; the people that are closest to the problem resolving it makes a lot of sense … because all levels of government need to work together for the benefit of the state as a whole. And part of that is making these decisions about where does the control lie? There are still discussions that need to be had because that requires a lot of work, I think, for it to really be functional. So that's kind of [what] my big picture view of it is.”

Kyle Mayor Travis Mitchell added, “Kyle is monitoring the legislation proposed by the state this session. As the case with most municipalities, we believe local policies are best when responding to local issues.”

Neither the city of Wimberley nor Hays County officials could be reached for comment as of press time Tuesday.