What started as a legal dispute between the City of Tyler and a local sewer company may result in a major precedent in the way the Texas Legislature operates and could impact citizens across the state.

On Thursday, Texas’s First Court of Appeals in Houston ruled that the City of Tyler and the Texas Legislature’s maneuver to exempt the city from a portion of the state’s water code violated the Texas Constitution.

In Article III, Section 56 of the Texas Constitution, the legislature is largely prohibited from making a local or special law when a general law could apply.

In this case, the City of Tyler wanted to provide sewer service to an area already served by a local company which had been granted the right to operate in the area by the state. It first sought permission from the Public Utility Commission but was denied. Still wanting to provide the service despite the denial, the city enlisted the aid of a local lawmaker, State Sen. Kevin Eltife (R-Tyler), to resolve the matter legislatively.

To do so, Eltife filed Senate Bill 789 — legislation that provided an exemption to the pesky portion of the water code that the Public Utility Commission had zeroed in on to prevent the City of Tyler from selling water.

“Once again, members, I would appreciate your help on this,” said Eltife as he laid out his bill to the Senate Agriculture, Water, & Rural Affairs Committee in 2015. “It is a local issue. We’ve got a bad actor we’ve been dealing with for 12 years, and we’re trying to resolve the situation so our constituents can have an opportunity to choose another utility provider.”

“If this is good practice, shouldn’t we maybe apply that across the state? Or is it just particular to this issue?” State Sen. Lois Kolkhorst (R-Brenham) then asked.

“I would not want it for the whole state. I would not vote for that. I would vote for this,” conceded Eltife.

Indeed, Eltife’s bill didn’t adjust matters statewide. Instead, his legislation only applied to a specific municipality:

(1) with a population of more than 95,000;

(2) located in a county that:

     (A) borders Lake Palestine; and

     (B) has a population of more than 200,000;

(3) that owns and operates a utility that provides sewer service; and

(4) that has an area within the boundaries of the municipality that is certified to another retail public utility that provides services.

It is common in the Texas Legislature for lawmakers to pass “bracket bills” (often dealing with subjects like hotel taxes) that are so narrowly limited as to apply to only one city or county. In this case, the area was exclusively the City of Tyler, as noted by the court:

“It is undisputed that as enacted, Section 13.2475 only applied to one municipality, the City of Tyler. Four counties border Lake Palestine: Anderson County, Cherokee County, Henderson County, and Smith County. Of these counties, at the time the statute was passed only Smith County had a population exceeding 200,000. The other three counties each had a population less than 80,000. Within Smith County, the City of Tyler was the only municipality that had a population exceeding 95,000. All the other municipalities had populations less than 10,000.”

The court found the carve-out was a violation of the Texas Constitution’s default preference for laws of general applicability and general prohibition of local laws.

While the City of Tyler can still appeal the ruling to the Texas Supreme Court, the decision should be celebrated as a victory for conservatives. As Kolkhorst noted in her question to Eltife, the state should be interested in good, uniform laws that apply to everyone.

The practice of carving the state into a patchwork of different laws and regulations lends itself to cronyism. The court’s decision is a step in the right direction and one that the legislature should embrace by ending the practice of passing unconstitutional bracket bills.

Cary Cheshire

Cary Cheshire is the Vice President of Texans for Fiscal Responsibility. A 6th Generation Texan, Cary attended Texas A&M University was active in a number of conservative causes including Ted Cruz's Senate campaign. He has also worked on campaigns to elect conservatives to Congress and the Texas Legislature. Cary enjoys college football, genealogy research, and the occasional craft beer.

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