Houston Sues the State Over “Death Star" Law

Houston is challenging a state law eliminating many local ordinances, which is set to take effect Sept. 1 (Image via Getty Images)

The city of Houston hopes to preempt the state's "Death Star" law, a bill passed by the Texas Legislature that would undo a raft of local ordinances in cities across the state, through a lawsuit that would prevent it from taking effect Sept. 1. House Bill 2127, introduced by Rep. Dustin Burrows, R-Lubbock, would neutralize local protections like Austin's 2010 rest break ordinance, which mandates a water break every four hours for construction workers. Already this summer, a construction worker, a mail carrier, and a utility lineman have died in Texas due to heat-related illness. It's unclear what other local regulations the law would overturn – it only cites broad fields like agriculture, business, labor, and natural resources – and this confusion is part of the grounds for the lawsuit.

The petition, filed last Monday, begins with a small history lesson – home rule, a constitutional amendment that the Texas Legislature passed in 1912, was created as an answer to a logistical problem. "When Texas had just a few large cities, the Legislature had the bandwidth to pass special legislation for each of them," the plaintiffs argue. "But as the number of large cities grew, requests from local governments swamped the legislature." Home rule allows regulations to vary from city to city – the Legislature would "never be 'the exclusive regulator' of city life, as HB 2127 wrongly asserts." In Texas, state law only overrides local law when the two "directly and irreconcilably" conflict. The Supreme Court of Texas has held that it's up to the party seeking preemption of local law – typically the state – to prove that conflict and then preempt the local law with "unmistakable clarity."

But, the petition contends, the "Death Star" law is so "indefinite, awkward, and opaque" that it violates this legal precedent: "Houston, like all cities, needs to know with certainty what laws it may enforce … Laws with preemption clauses cannot be 'living' documents, as HB 2127's author asserted in House hearings." The new law leaves interpretation of which local laws are preempted up to the courts, but the suit contends that is the Legislature's responsibility.

Rather than respond to the lawsuit's arguments, Burrows complained on Twitter about the involvement of a California firm in the suit, Local Solutions Support Center, alleging that "leftist cities" were working with "activists from California" to stop HB 2127. The law is "simply enforc[ing]" the constitution, Burrows added. But Gov. Greg Abbott has publicly said it's specifically meant to target Austin; at a Texas Public Policy Foundation event in June he said "local governments – the city of Austin, for example – are not going to be able to micromanage businesses in the state of Texas."

When HB 2127 takes effect, cities will have to look at each of their existing ordinances and charter amendments to determine if they're preempted. Locally approved regulations in Austin that could be affected include fair chance hiring, restrictions on predatory lending practices, and tenant eviction protections. When asked if Austin will join the suit, a city spokesperson could only offer that Council will meet in July to discuss "the ramifications of HB 2127 – which appear to be sweeping – and the City's options going forward."