In 2015, El Paso became the second city in the country to safeguard its workers by passing a historic wage theft ordinance. Now, as a sweeping new state law aimed at handicapping Texas’ more liberal city governments is set to take effect Sept. 1, that protection is facing an existential threat.
House Bill 2127 — also known as the Super Preemption Bill or the “Death Star Law” among opponents — aims to regulate many aspects of commerce and trade in local jurisdictions that differ from state-imposed directives.
Passed in May during the 88th Legislative session and signed into law by Texas Gov. Greg Abbott a month later, the preemption law 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 some counties’ ability to regulate their industries and enact progressive policies. Abbott’s office did not respond to El Paso Matters’ questions about the need for HB 2127 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. 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.
How El Paso is responding
Laura Cruz-Acosta, spokeswoman for the city of El Paso, said 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 said. “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 hair 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, said 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 HB 2127 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 crises, to support our workforce, to provide safe housing, to make sure that we have clean, potable drinking water, and so many other things,” he said. “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 HB 2127 are really far-reaching… destroying the idea of home rule, destroying the idea of local control and really, democracy,” Stout said. “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 said. “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 said 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 said. “But then they turn around and do this. I think they’re speaking out of both sides of their mouths.”
The El Paso County’s press office did not comment on which county policies would be affected or the repercussions of HB 2127.
Many business organizations in Texas supported the bill, but the El Paso Chamber did not take a stance. El Paso Chamber officials did not respond to questions about the benefits of HB 2127 after various email correspondence.
How other Texas cities are responding
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,” said 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 HB 2127.
But during a July 11 city council meeting, as the city broached the topic of HB 2127, the discussion was far from supportive. “We’re quite concerned about the implications of that,” Belton City Manager Sam Listi said. “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.”
Belton Place 6 Council Member Wayne Carpenter said that after spending several hours reading the Home Rule, enacted for more than 100 years in the Texas Constitution, he determined that HB 2127 violates the Constitution.
“It’s designed to basically punish large cities, which we are not,” he said. “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, another Belton council member, 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 said.
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,” Romer said. “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,” said 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, 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 said.
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,” Castillo said. “It will apply to residents who receive a contract through the city.”
HB 2127 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 said.
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.
“There is a conservative effort by Republicans to bring forward broad preemption legislation,” Austin District 2 Councilwoman Vanessa Fuentes said. “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 aide at the Texas Capitol located in Austin. 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 said.
As far as joining other cities’ lawsuits against the state, Fuentes said 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 said. “We are the capital city, so we have to be strategic, in how we engage on this issue.”
Correction: An earlier version of this story incorrectly stated the El Paso Chamber’s position on HB 2127. The Chamber did not take a position on the bill.
This story was co-published with Next City as part of our joint Equitable Cities Reporting Fellowship For Borderland Narratives.