Some good reporting from El Paso Matters.
That’s no moon…
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.
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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.
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 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 HB2127 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 HB2127 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.”
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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 HB2127.
But during a July 11 city council meeting, as the city broached the topic of HB2127, 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.”
Benton 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 HB2127 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 Benton 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.”
See here, here, and here for the background. I’d still like to see cities fully join the litigation, but they may or may not for whatever the reason. Having a variety of local officials send in (hopefully multiple) amicus briefs is close enough. I’m especially heartened to see a smaller city like Belton assess the effect of this litigation, and I’d really like to see a lot more reporting done on that. Texas has 43 cities with at least 100K people, and another 32 with between 50 and 100K. How many of them have done what Belton did, and how many of them reached similar conclusions? Have the plaintiffs been reaching out to them?
There’s a huge opportunity here, both for legal strategy and for future politics. This malignant bill is so large and broad and overarching that it surely will have some negative effect on all of these place. It may be that they can’t fully assess the potential for negative effect precisely because of the law’s vagueness and its enabling of civilian vigilantes. Cities need to band together and fight back if they want to continue as cities. And really, we need more media outlets looking at this and asking questions of their local officials. I know a lot happened this session, and we still have the voucherriffic special session to come and then we’re into election season etc etc etc, but this stuff is important. Let’s not let this get lost in the barrage.