July 3, 2023 -- Today, the City of Houston filed a lawsuit in Travis County against the State of Texas to have declared unconstitutional, void, and unenforceable House Bill 2127, the so-called "Death Star" or "Super" preemption bill. Governor Greg Abbott signed Texas House Bill 2127 on June 14, 2023, with an effective date of September 1, 2023.
Preemption under established law is a constitutional doctrine by which our judiciary carefully considers and determines in rare instances that state law displaces conflicting local law, finding there is no possibility that State and local law can coexist. Under HB 2127, preemption is given a new meaning and one that effectively repeals Texas constitutional home rule. Not only is preemption given a new meaning, this legislation disregards the hierarchy of Texas laws where a statute such as HB 2127 cannot repeal a constitutional provision. Our laws require a constitutional amendment election to effect a repeal.
Constitutional local control gives Texas cities the power of self-government, permitting them to tailor their laws specifically to address local residents' and businesses' needs and desires. Well-established Supreme Court decisions place the burden of proof on the party challenging a city law to establish a direct and irreconcilable conflict with unmistakable clarity of preemption.
HB 2127 creates a one-size-fits-all statewide regulation scheme with no attempt to address areas of concern that prompted cities to pass laws in response to constituent requests. Programs like Houston's pay-or-play programs for city contractors, which provide 30,000 uninsured Houstonians with health care, would die under HB 2127. Dallas and Austin's ordinances that mandate water breaks for workers in the Texas heat would similarly go by the wayside.
The bill permits the State of Texas simply to decree that whole "fields" of current and future local regulation are off limits to city government. This would be true even in emergencies like Hurricane Harvey. Short of filing lawsuits in the hope that local law is not in one of HB 2127's several "fields" of law, citizens only recourse would be to petition their State Legislature to pass a law addressing the concerns during the five months every two years the Legislature meets or petition the Governor to call a special session.
HB 2127 would also improperly shift the heavy burden of disproving preemption to cities—clearly violating the Texas Constitution and decades of the Texas Supreme Court's preemption rulings.
HB 2127 achieves these unconstitutional ends by using vague language so indefinite and opaque that Texas cities cannot know which of their laws they may enforce, and Texas businesses and residents cannot know which local laws they must obey. Instead, the Legislature has unconstitutionally delegated to the courts the legislative responsibility to identify specific laws or purported fields allegedly preempted, if they can. Adding insult to injury, HB 2127 encourages and forces home-rule cities and their taxpayers to pay fees to finance such lawsuits filed by trade associations seeking to deregulate their industries at the local level.
"The Texas Constitution expressly champions the local control and innovation that has been key to the tremendous economic dynamism in cities like Houston. HB 2127 reverses over 100 years of Texas constitutional law without amending the Constitution. Because Texas has long had the means to preempt local laws that conflict with State law, HB 2127 is unnecessary, dismantling the ability to govern at the level closest to the people and therefore punishing all Texas residents. Houston will fight so its residents retain their constitutional rights and have immediate local recourse to government," said Mayor Sylvester Turner.