Texas ‘preemption’ bills escalate war between liberal cities, conservative legislature

AUSTIN, Texas – New legislation is heating up the long-running cold war between Texas’ relatively progressive cities and its GOP-dominated legislature.

Local officials across Texas are worried that far-reaching state bills could roll back their attempts to ensure construction workers get rest breaks in Texas’ searing heat, to run no-kill animal shelters and to maintain local water quality.

GOP sponsors and conservative groups say companion bills HB2127 and SB814, which would prevent local governments from passing or enforcing local rules in several critical areas “unless explicitly authorized by statute,” would protect Texas business owners from an unprecedented and aggressive overreach by the state’s booming, blue-tinged cities.

But local officials and urban advocacy groups contend the legislation would strip cities of their ability to regulate a broad range of environmental, labor and health and safety concerns.

The bills are part of a broader push by conservative groups to take their conflicts with progressive cities up with state legislators, rather than cities themselves, said Bennett Sandlin, executive director of the Texas Municipal League, a trade group for the state’s cities.

“It’s coming out of national think tanks in the last years,” he said. “You go straight to the state government and don’t have to go city by city.”

Last year, Florida Gov. Ron DeSantis (R) vetoed a far-reaching preemption bill passed by the GOP-led legislature in his state, which would have exposed local governments to lawsuits over any ordinance that cut a local business’s profits.

The Texas bills are broader yet: If passed, they would nullify any local ordinances that could fall under the rubric of the state’s labor, natural resources, agriculture, insurance or occupations codes — unless the legislature writes specific legislation directly permitting a rule.

The two bills would also allow any citizen to sue their county — or a neighboring county — over a local law that they felt violated the state’s new powers, opening blue- or purple-leaning counties to a flood of lawsuits from their more conservative peripheries.

Most bills never pass the legislature, and these ones have a tough road out of committee. When the bills debuted last week, a bipartisan group of legislators had hard questions for one of their authors, state Rep. Dustin Burrows (R), about the broadly worded legislation’s potential for unintended consequences.

Those concerns have caused similar (if less-sweeping) bills to fail the last two times they were introduced in the state legislature.

But Burrows is a committee chair and powerful legislator backed by a lobby of business and conservative groups determined to curb what they describe as an unprecedented power grab by cities.

Burrows did not respond to The Hill’s repeated request for comment on the measures.

In the cities — in contrast to the suburbs and exurbs that ring them — Texas Gov. Greg Abbott (R) and Lt. Gov. Dan Patrick (R) “can feel Republican control slipping,” said Harvey Kronberg, founder and editor of the Quorum Report, a venerable Austin-based nonpartisan political newspaper.

The two bills — like a flurry of other state legislation this session aimed at staving off other potential city ordinances — “are more an effort to staunch the authority of Democrats as to have anything to do with diminishing friction in business,” Kronberg said.

But unlike proposed bills that seek to outlaw bans on gas stoves or gas-powered lawnmowers, or to block Austin from using local bonds to finance light rail — which opponents say at least clarify what they are opposing — these bills are far broader, said Sandlin.

At a committee hearing last week, “two-thirds of the back and forth was legislators testifying — does it ban regulations on short term rentals? Well, it’s not clear. Does it ban payday lending regulations? It’s not clear,” Sandlin said.

Cities are used to states preempting local authority, Sandlin said. “That happens all the time. But we don’t know how to lose when we don’t know even know what is being discussed.”

The bills’ supporters argue that they are a necessary measure to defend small business.

Over the past five years, Texas cities have embarked on a “completely new” series of ordinances that have involved “stepping out of their traditional jurisdiction,” said Annie Spilman, state director of the nonpartisan National Federation of Independent Business (NFIB), a sponsor and drafter of the bill.

The two bills are “not some sort of aggressor-type move. This was completely a reaction to the aggression against small businesses,” Spilman said. 

NFIB membership is concerned about city legislation increasing potential costs to business owners — including the costs of staying in compliance with what Spilman described as “whack-a-mole” local regulation.

She warned that the group’s membership — the majority of whom have fewer than ten employees — was particularly vulnerable to the “patchwork” of local regulations as they traverse job sites across Texas’ sprawling cities, which are often composites of dozens of smaller cities.

“The Walmarts, the Amazons, these people — they can handle this kind of stuff. Small businesses can’t.”

Spilman’s group, the NFIB, was galvanized by the passage of a series of short-lived regulations in Austin, San Antonio and Dallas in 2018 which required business owners to let employees accrue sick time — measures many business groups staunchly opposed.

They were particularly concerned about provisions of the sick-leave laws that would have let cities subpoena the employment records of businesses accused of violating them.

Those laws never went into effect. State and federal courts struck the measures down in 2019 — arguing that sick time counted as income, and that the rules therefore violated a state ban on Texas cities raising the minimum wage above the federal level. But in the attempt, the NFIB saw a threat.

The group is also concerned about rules ranging from those requiring workers to receive schedules two weeks in advance to “weirdo” ordinances like Austin’s move to ban the declawing of cats.

NFIB wants legislators to cut such rules off “before these get out of hand and we’re trying to fight these all one by one,” she said, adding that the organization was also “trying to stop the panic before it happens with our small business owners.”

Spilman described the legislation as common-sense measures aimed at creating consistent state rules to replace a patchwork of local ordinances that she argued create undue pressure on the small business owners that make up a majority of the organization’s membership.

Local officials and urban advocacy groups, by contrast, argue that this checkerboard of regulation is a necessary and unobjectionable part of having diverse local issues addressed in different ways by local authorities.

They also worry about the method of enforcement. Like the state’s notorious abortion ban, the means for carrying out the preemption law would be private citizens filing lawsuits — in this case against local governments for laws that plaintiffs felt entered into territories where the state had asserted supremacy.

Local governments warn that could open them up to a flood of frivolous lawsuits, creating exactly the fog of regulatory uncertainty that business groups say they want to avoid.

The gulf between how NFIB and the cities understand the bills gives the debate a surreal quality, because the two sides can’t agree on what powers the legislation would reserve for the state — a question that city governments say carries life-or-death consequences.

One example of a local ordinance that the bill would cast into doubt is protections for workers laboring in the state’s often-extreme heat. Regulations in Austin and Dallas require construction workers to get a rest break of at least 10 minutes every four hours — a measure Austin officials linked to a rash of workplace heat injuries and deaths.

Under the new bills — which reserve authority over anything potentially regulated under the labor code for the state — city officials worry they would lose the ability to regulate workers’ exposure to heat. Such exposure results in 43 deaths per year nationwide. 

Spilman downplayed these concerns. “There are only two cities that have rest break ordinances,” she told The Hill. “If there were such a big issue of people not getting rest breaks, I feel like there would be some sort of state law.”

She also said that the bills would still allow the federal Occupational Health and Safety Administration (OSHA) “to issue fines at any workplace.” (OSHA announced an upcoming national heat safety standard last year, but no such rule has yet been passed, as The Hill reported.)

Finally, she argued that if cities felt that heat regulations were a necessary health and safety measure, they could argue that case in court.

“If I were a good lawyer I could probably argue that for health and safety you could probably file some sort of ordinance requiring heat and water breaks or keep that ordinance in place,” Spilman wrote The Hill in a subsequent email.

That reliance on legal interpretation to sort out broad laws is exactly the problem, opponents argue. 

If cities believe they are preempted — or are wary of fending off lawsuits from local interest groups — then they will be deterred from touching broad aspects of local governance, regardless of whether those are technically allowed, Luis Figueroa of advocacy group Every Texan told The Hill.

“We’re gonna be interpreting this in the courts for decades, as people and the courts try to figure out what’s allowed and not allowed,” he predicted.

Austin city council member Jose “Chito” Vela was more pointed in laying out what he sees as potential consequences of the bill.

Texas’ growing cities, with their diverse and urgent infrastructure and public safety needs, are  stuck “in a catch-22, where the state doesn’t want to govern — and it doesn’t want to let cities govern,” he said.

Vela expressed concern that the bill would expose Texas cities to “the floodgates of just a bunch of harassing lawsuits against a local government, which cost us money and time to defend.”

That prospect “has the potential to disrupt municipal services,” Vela added. And while he noted that Austin has the resources to adopt a “wait and see” approach and fight challenges under the bill, other cities have fewer resources. 

“This goes beyond Austin, you know?” Vela said. “This applies to every little one-stoplight town in the state.”

But Spilman urged caution: she emphasized that the bill would get more targeted as the session went on, and pushed back on what she characterized as unfair attacks on the businesses supporting it.

Those groups “are always being tagged the people that don’t want to help their employees or protect them,” she said.

“And that couldn’t be further from the truth. These are their family,” she added.

— Updated at 12:49 p.m.