Texas’ Third Court of Appeals in Austin has upheld the enforcement of Texas’ Regulatory Consistency Act, which is designed to rein in out-of-control local governments and protect Texans from tyrannical regulations.
Passed in 2023, the act has been referred to by critics as the “Death Star Bill,” because it centralizes regulatory control over a wide range of subjects, including agriculture, business and commerce, finance, labor, natural resources, occupations, and property.
For these subjects, local governments are effectively preempted from adopting, enforcing, or maintaining ordinances unless explicit permission is found in another statute.
The act asserts that the state has historically controlled such aspects of commerce and that only in recent years have local jurisdictions “sought to establish their own regulations of commerce that are different than the state’s regulations.”
“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 act.
Before the law took effect, the cities of Houston, San Antonio, and El Paso (hereafter referred to as “the cities”) filed a pre-enforcement action against the State of Texas—represented by the Office of the Attorney General—seeking a declaration that the act violated various provisions of the Texas Constitution.
In August 2023, District Judge Maya Guerra Gamble declared the act unconstitutional, citing its vagueness.
The State appealed to the Third Court of Appeals in Austin, arguing the suit should be dismissed since the cities lack standing. The appeals court agreed, reversing the trial court’s judgment and dismissing the suit.
The court found the cities had no evidence of a concrete injury resulting from the State’s enforcement of the act.
“Without an actual local regulation to which to apply the Act, and thereby evaluate its constitutionality, no concrete dispute exists for us to resolve,” reads the decision.
Additionally, the cities failed to show that their alleged injuries are traceable to the State.
This is due to the act’s mode of enforcement, which must result from private action. Any person injured by a local law that violates the act has standing to bring action against their local government, whether a municipality or county. Because the State does not enforce the act, the court found that the cities cannot take legal action against it.
Legal observers expect the cities may appeal the court’s decision to the Texas Supreme Court. At the time of publication, such actions have yet to be taken.
Background
Should this decision serve as final legal approval for the Regulatory Consistency Act, it would end a saga that began in 2018.
That year, the Austin City Council passed an ordinance requiring private employers to provide sick leave to all employees. The ordinance was promoted by then-Councilmember (and current U.S. Rep.) Greg Casar and the Democratic Socialists of America.
While the Texas Legislature was expected to pass legislation preempting this ordinance in 2019, that measure was killed by State Rep. Dade Phelan (R-Beaumont) in a deal cut with LGBT activists. At the time, Phelan, who later became Speaker of the House, was chairman of the powerful State Affairs Committee.
While a lawsuit from the Texas Public Policy Foundation and Attorney General Ken Paxton prevented this ordinance from going into effect, the Texas Legislature nevertheless continued to work on the issue.
That work culminated in 2023, with the passage of the Regulatory Consistency Act.
The San Antonio City Attorney’s Office told Texas Scorecard that “We are still analyzing the Court’s opinion and will consult with the respective clients on appeal options.”
“While we are disappointed with the Court’s ruling we are encouraged that the decision is not on the merits of our argument but on standing,” the statement continued. “We are still highly confident on our position that the bill is contrary to the Texas Constitution because it attempts to modify the constitutional powers provided to ‘Home Rule’ cities versus ‘General Law’ cities.”
Collyn Peddie—attorney representing the City of Houston—told Texas Scorecard that she is not authorized to speak on the city’s behalf.
The City of El Paso and the Attorney General’s Office did not respond to Texas Scorecard’s request for comment in time for publication.
