New state laws hamper city powers
Granite Shoals City Attorney Joshua Katz briefed the City Council on three new bills that were passed in Texas' 88th legislative session and how they will impact city governments. Staff photo by Dakota Morrissiey
One of three bills signed into law by Texas Gov. Greg Abbott is known as the “Death Star Bill,” as it increases residents’ power to sue city governments. Another allows residents to opt out of a city’s extraterritorial jurisdiction, while the final bill removes a city’s ability to set a juvenile curfew. All three limit the power of local government and will go into effect on Sept. 1, 2023.
DailyTrib.com asked city officials in Granite Shoals, Marble Falls, and Burnet for their reactions.
“(House Bill 2127) got two nicknames,” Granite Shoals City Attorney Joshua Katz told the City Council at a meeting June 27. “One is ‘the Super Preemption Bill’ and it’s also been affectionately called ‘the Death Star Bill,’ which is foreboding, and it should be foreboding.”
HB 2127 focuses on the concept of “preemption,” removing the power of local governments in fields already regulated by the state government.
“If the state has regulated in a field under the following codes of statutes, then a city cannot adopt any ordinance in that field also,” Katz read from the bill.
The specific codes include agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, and property.
According to Katz, the powers of this bill are vague and vast. With its passing, Texas residents will have the ability to sue a local government if they believe they are being regulated beyond the parameters of state law. Under these conditions, cities would have to pay attorney’s fees if the plaintiff is successful.
Marble Falls Assistant City Manager Russel Sander said the bill removes regulatory power from local governments as well as residents’ voices in how their community looks and feels.
“Now, it will take statewide changes to the codes instead of the citizens working with the local government,” Sander said. “Texas is a vast state, and a one-size-fits-all approach doesn’t work well.”
The bill creates questions for cities that may only be answered through litigation.
“Our legal counsel feels that many of these questions will be decided by the courts,” Sander said.
Burnet City Manager David Vaughn highlighted another issue: These complicated bills can be hard to understand, and the full implications of their passage might not become apparent until they are put into action.
“I have not had an opportunity to thoroughly review any of the aforementioned bills to be able to provide a comment at this time,” Vaughn said in an email to DailyTrib.com.
Cities will be given three months’ notice prior to a lawsuit being filed so councils can decide whether or not the policy should be changed or if the lawsuit should be addressed in court.
“We don’t actually know what all of the examples (of litigation) will end up being,” Katz told the Granite Shoals council. “There are a lot of creative lawyers in our state. … We’ll see where it goes.”
Another measure, Senate Bill 2038, allows property owners to opt out of a city’s extraterritorial jurisdiction. An ETJ extends a half-mile past the city limits. The area receives city services such as fire rescue and police protection, but subdivisions have limited ordinance power and property owners can be annexed into the city without their approval.
The new bill gives property owners the power to leave an ETJ as long as they own the majority value of a defined area. It could be as small as one home or it could be a whole subdivision. As long as the petitioner or petitioners own the majority of the defined property, they can fill out an application to exit the ETJ that cannot be denied by the city. Property owners also will be able to demand local elections to vote on leaving a city’s ETJ.
“I think you’re probably going to see petitions to (Granite Shoals) and every other city after (Sept. 1),” Katz said. “What that means is that we’re going to start having a swiss cheese ETJ.”
One risk is that developers will buy up land near cities and leave an ETJ to avoid potential regulation. Another concern is the potential difficulty of determining who is entitled to city services if there are holes and gaps in an ETJ, Katz said.
Marble Falls’ Sander pointed out that officials will have less power to control eyesores along roads into a city, such as signage, billboards, banners, and flags.
“If an area does petition to be removed from the ETJ, it also removes the city’s ability to control some of the visual aspects as people enter the community,” he said.
Property owners will be able to petition to return to an ETJ if they choose. Bottom line is that the majority of power is in the hands of the individual property owner.
The third piece of legislation, House Bill 1819, will have less of an impact on Granite Shoals and other cities in the region, Katz said, but it has larger implications across the state. The bill abolishes a city’s ability to enforce juvenile curfews.
Juvenile curfews in Granite Shoals are hardly ever needed, according to police Capt. Chad Taliaferro.
“I’ve had maybe two incidents in 3½ years with individuals that were out past curfew,” he told the council. “That’s it.”
Granite Shoals leaders chose to accept an ordinance proposed by Katz that would repeal the city’s juvenile curfew ordinance effective Sept. 1.
Marble Falls does not have a juvenile curfew, so it would be unaffected by the new law. Several curfew laws in Burnet will become defunct on Sept. 1.
Katz offered an explanation regarding the purpose and nature of the bill.
“A lot of people think that curfews are selectively enforced in some cities against minority kids and teenagers, therefore it is a justice issue for some people,” Katz explained. “For other people, I think some people don’t want the cities regulating too far. They want the state to be doing that regulation.”
Learn more about the bills recently passed by the Texas Legislature at capitol.texas.gov.
4 thoughts on “New state laws hamper city powers”
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Good, the city’s power grab over landowner’s property rights can now be challenged. There’s no reason a local gov’t needs to regulate something the state already does. More regulation bad – less regulation good.
That is a gross oversimplification. Less regulation seems good on the surface but when you add in businesses, municipalities, natural resources, pollution, noise, and basically anything other than a good-ol-boy honor code out in the sticks, it doesn’t work for a functioning society. I am very conservative and prefer small government in most cases, but this is setting us up to fail.
It seems that our State Legislators want to make Texas a very large “unhappy family? Must admit, they are very good at doing a very little, most of their time.
This is a prime example of the state legislating with a broad brush without considering all of the possible ramifications. Ironically, this was done largely to hold larger cities that tend to lean left in check by the right-leaning state government. Equally ironically, a lot of right-leaning communities are finding all sorts of issues with it before the ink is dry. This type of governing will only continue to fan the flames of discontent on both sides of the aisle. At least there seems to be largely bipartisan agreement that THIS IS A BAD IDEA.