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Municipal Preemption

Our founding fathers created the US as a federalist system that split powers between the federal government and the states.

While Congress has blurred that line over the years, the line between the Texas government and its municipalities has been even less clear.

Can a city decriminalize marijuana?

Can a city add to already onerous labor and construction regulations?

Is there any limit to city government?

And did all that change with the Death Star Bill that took effect last year?

Today, we are exploring the divide between the Texas State Government and its municipalities.

The start of cities in Texas is chaotic.

From 1836 to 1858, through being a Republic and State, legislation was the only way to incorporate a city.

This process produced cities with different powers and lines between the state and the city.

The one constant was that cities only had the powers expressly defined in their charters.

Then, in 1858, the legislature allowed for general law cities. These cities do not have to be approved by the legislature and only have the powers expressly given to them by the state legislature.

The population requirements for these cities and the different structures for these cities changed over the years, but the concept stayed the same.

Then, in 1912, the Home Rule Amendment to the Texas Constitution was passed, and its home rule cities are the focus of this video.

It provided for the creation of home-rule cities for areas with more than 5,000 people.

So what is a home rule city? For the first time, instead of having a defined set of powers, home-rule cities were allowed to create any ordinance that wasn't explicitly prohibited or preempted by state law.

This increased city powers substantially. They were now mini-states, making public policy on their level as long as the state hadn't spoken.

This preemption portion was watered down four years later in 1916 when the Court of Criminal Appeal said, "The power of the city to act is as general and broad as is the power of the Legislature to act."

The state now had to specifically say they were preempting a section of law to limit city's powers

The number of home-rule cities exploded. Cities could now create their own form of government (within some guidelines) and have nearly as much authority as the state.

Today, we have 389 different home-rule cities, which has only increased. We could find no record of any home-rule municipality ever being abolished, and only 30 general-law cities have the population for home-rule and have yet to choose to incorporate as such.

The back and forth between the cities has caused uncertainty and caused more regulation at the state and local levels.

Here are some examples

In 1935, Texas returned alcohol regulation to the cities and counties after prohibition ended. Cities and counties then returned to pre-prohibition rules, and many adopted even more restrictions.

Then, in 1977, the pendulum swung back to state preemption with the first extensive preemption legislation saying, "Unless otherwise specifically provided by the terms of this code, the manufacture, sale, distribution, transportation, and possession of alcoholic beverages shall be governed exclusively by the provisions of this code."

The state has since expanded that preemption in 1987, 1991, 1995, 2001, 2011, 2015, 2019, and 2023.

In the 1980s, Richardson adopted bans on specific dog breeds. The Texas Supreme Court upheld it because of a lack of dog legislation or prohibition at the state level. Then, the Texas Legislature created dog regulations and prohibited breed-specific dog ordinances. They added language both explicitly preempting cities and prohibiting these powers.

In 2003, Texas got in front of the cities creating their own minimum wages and prohibited it.

In 2014, Denton banned fracking. Instead of challenging it in court, the legislature just prohibited many different types of oil and gas regulation and specified in the law that state oil and gas regulation preempted local ordinances. Again, they added language both explicitly preempting cities and prohibiting these powers

These are just a few stories of the constant struggle between the cities and the state. Cities enact ordinances in a new area, and then the state comes in and creates its own regulations to preempt cities. It occurs with building regulations, business regulations, environmental regulations, political sign regulations, and so much more.

In 2017, Governor Greg Abbott declared war on local regulation altogether. He said that liberal cities were turning Texas into California and equated this back-and-forth strategy to firing single rifle shots. Abbott then proposed that Texas end home rule altogether and only let cities regulate what the state allows.

He never repealed home-rule cities, which would require a constitutional amendment, but he signed the so-called "Death Star" bill into law in 2023.

The right and the left have sensationalized this bill, but it's not very radical.

There are two main parts to this bill. The first is to add language like the following to the Texas codes for agriculture, business and commerce, finance, insurance, labor, local government, natural resources, occupations, and property.

"Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code."

These provisions tell the Texas Supreme Court and Texas Court of Criminal Appeals to recognize that preemption limits city authority. Theoretically, we are just returning to constitutionality here.

Then, a provision allows citizens to sue cities violating these laws.

The cause of action is minimal. You must warn the city three months in advance that you will sue. If you win, you only receive legal fees, and if the judge considers your lawsuit frivolous, you have to pay the city's legal fees.

After the governor signed the bill into law, Houston, joined by San Antonio and El Paso, sued the state in a Travis County courtroom, claiming the law was unconstitutional.

That judge ruled in Houston's favor but did not issue an injunction striking the law down. Therefore, the law is in effect now, but no other significant lawsuits have come down the pipeline.

The next significant action in municipal preemption is happening right now. Since 2020, several cities across the state have passed ordinances that forbid police from enforcing marijuana laws, including Austin, San Marcos, Elgin, Denton, and our very own Killeen. (Harker Heights did, too, but it never went into effect.)

Many people have called this action decriminalization, but that's not correct. Decriminalization is when the legislature changes a crime to a civil offense (basically, turning any possible jail time into a fine).

These ordinances order city police not to enforce the law. The sheriff's department, DPS, and constables can still enforce marijuana laws in the city, just not City PD.

You can see how much confusion this could cause.

Texas law is weirdly specific about this circumstance, saying, "The governing body of a municipality... may not adopt a policy under which the entity will not fully enforce laws relating to drugs."

So, predictably, the lawsuits started. They started at the county level, but the state got involved at the beginning of this year. The AG sued all five cities I mentioned to stop these ordinances.

The Texas Supreme Court hasn't ruled on either of these issues, and I hope to bring you updates as they progress, but that's where they stand now.

That's the history of municipal preemption, so what are the problems?

The first problem is unpredictability. Theoretically, home-rule cities had the most power in 1912, and their powers just chipped away as time passed.

This uncertainty does not allow for long-term planning for cities or successful activism by voters. As a voter, if you don't know whether you should lobby the state or your city for a specific issue, that's a problem.

The second problem is growing regulations. Cities regulate certain behaviors when the state doesn't. Then, the state adds more regulations to stop the cities from regulating those behaviors.

This effect is a vicious cycle that grows state and city governments.

The third is the famous patchwork quilt problem. If you are expanding your business in Texas, you must deal with nearly 400 different regulations.

That amount of regulations cripples small businesses, which in turn slows the economy and kills jobs.

So, with these problems, what's the solution?

You just need one solution for this problem.

The solution is to define the powers of a city.

Many people will disagree on what those powers should be, and that's ok. Any set of defined powers is much better than our current status quo.

You could even have a list of powers a city could choose from when they write their charters so each city can choose to create parks or public libraries.

In my opinion, cities should be limited to three roles. They should run a police department, build and maintain roads, and run utilities. That's it.

So what do you think? Should cities have uncapped powers? Is limiting them to three powers to much?

Let me know in the comments.


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