Dallas still on fence about joining lawsuit to block ‘Death Star bill’ from taking effect

By Everton Bailey Jr.

With about a week left before a hearing in the case, Dallas doesn’t appear to have plans to join Houston in a lawsuit to block a new state law expected to limit how cities and counties regulate themselves.

City officials, however, have filed or signed legal briefs supporting efforts to derail the new legislation, which goes into effect Sept. 1.

Dallas Interim City Attorney Tammy Palomino earlier this month filed a letter in the case arguing House Bill 2127, or the Texas Regulatory Consistency Act, is unconstitutional. Separately, five Dallas City Council members were among almost three dozen current and former elected officials from around the state who signed a legal brief against the new law.

But the city of Houston’s Legal Department told The Dallas Morning News that they’ve received no indication from Dallas as of last week that the city planned to do more than support Houston’s effort to overturn the law. San Antonio and El Paso have joined the suit against the state, court records show. Officials in Austin are declining to opt in, according to The Austin American-Statesman.

Palomino was non-committal when asked by The News if Dallas would join the lawsuit.

“We are closely watching the case and will continue to consider the city’s options,” Palomino said, citing an Aug. 30 hearing in the case in Travis County District Court.

The Texas Regulatory Consistency Act, signed by Gov. Greg Abbott on in June, bans local municipalities from adopting or enforcing ordinances that go further than what’s already allowed under state law. It requires cities to get permission from the Legislature if they want to enact rules that go beyond what’s allowed in laws that cover agriculture, business and commerce, finance, insurance, labor, local government, natural resources, occupations, and property.

Dallas officials sent a letter to State Rep. Rafael Anchia, D-Dallas, in March listing more than 100 rules and policies in Dallas’ city code they believed would have to be changed once the law went into effect. It included Dallas rules regulating minimum wages, water conservation, sexually oriented businesses, equal opportunity employment and anti-discrimination provisions. Ordinances in Dallas and Austin that require construction workers to get water breaks has been one of the highest profile local laws expected to be banned starting in September.

Abbott and other backers of the new law view it as necessary to make regulations uniform across the state so businesses can more quickly expand, fostering more new jobs and boosting the state’s economy. A person or group could sue a municipality if they feel they’ve been negatively impacted by a local rule that conflicts with state law.

It’s been nicknamed the “Death Star bill” by opponents due to the wide range of its potential impact on local regulations around Texas.

Houston sued the state in Travis County District Court on July 3, arguing that HB 2127 illegally stripped cities of constitutionally protected rights to govern themselves and shouldn’t be enforced. San Antonio petitioned to join the suit July 24 and El Paso did the same July 31, court records show.

Like Dallas, the cities of Arlington, Denton, Plano and Waco filed a joint amicus brief on Monday urging a Travis County judge to declare the new law unconstitutional.

Palomino told The News she believes the new law will limit the city’s ability to regulate issues specific to Dallas and that the potential legal challenges of local ordinances could end up being a price largely paid by taxpayers.

“The Texas Regulatory Consistency Act is unclear, vague, inconsistent with current preemption law and poses more questions than it answers,” she said.

In her Aug. 3 letter to Travis County District Court Judge Jan Soifer, Palomino said she believes an amendment to the state Constitution would need to be approved in order to take cities’ self-governing authority away like the new law aims to do.

“The citizens of Texas adopted the home-rule amendment to the constitution in 1912 so that qualifying local governments that chose to adopt home-rule charters could promptly address the needs of their local residents to the extent any such actions were not contrary to state law,” Palomino wrote.

Dallas council members Chad West, Jaime Resendez, Omar Narvaez, Adam Bazaldua and Jaynie Schultz were among 32 current and former elected officials who signed an Aug. 1 legal brief supporting blocking the new law from taking effect. West and Bazaldua told The News is July that they believed Dallas should join in the lawsuit trying to overturn the new law.

The list also includes current and former council members from Austin, Balch Springs, Denton, DeSoto, Eagle Pass, El Paso, Grand Prairie, Houston, Iowa Colony, Laredo, Pasadena, San Antonio and San Marcos. There were also county commissioners, a county attorney and a school board member from El Paso, Harris and Travis counties as well as the Pasadena Independent School District.

“Although the officials represent localities with different needs and different views about how to address matters of policy, they share a common concern that HB 2127 is an unconstitutional overreach by the Legislature and encourage this court to declare the law invalid,” the legal brief said.

The state disagrees with legal efforts to block the Texas Regulatory Act.

In an August 9 motion to dismiss the lawsuit, state attorneys argue cities lack any standing to sue over the new law because there is no state agency in charge of enforcing it and they say any alleged harms municipalities claim can’t be traced back to the state.

“HB 2127 does not itself preempt any statute,” the state’s motion said. “It is enforced via lawsuits by regulated parties alleging that an ordinance is preempted. Judicial review of HB 2127 will be appropriate if and when a municipality raises the supposed unconstitutionality of HB 2127 as a defense to one of those future lawsuits.”

The state also dismisses claims the new law is unconstitutional, saying cities and counties aren’t citizens and have no rights.

“The Legislature may expressly preempt municipal ordinances, order, and rules,” the state’s motion said, “and did so in HB 2127.”

This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas.