Texas Legislature Extends State’s Reach into County, Municipal Affairs

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Courtesy / Michael Koukoullis

The capitol building in Austin will be the site of a special legislative session in July.

Texas' 85th legislative session featured several defeats for local control, and the special session that Gov. Greg Abbott has called for July all but guarantees the struggle over authority among cities, counties, and the state will continue.

"If 2015 was the year that local control began to lose its luster as a governing principle among some state leaders, the 2017 legislative session saw the culmination of this unfortunate trend," stated the Texas Municipal League, which advocates for city governments. "The new, improved mantra at the Capitol is 'liberty,' which translates to liberty to do anything you want in a city without consideration for the liberty or property values of your neighbors."

The Legislature's recent passage of bills directed at overruling local decisions could signal a rising tide of conflict between cities and the states for years to come.

But the governor pointed out in March that this country "isn't the United States of municipalities."

"The main theme of this session was about local authority, in our eyes," State Rep. Diego Bernal (D-San Antonio) said. "It left us bewildered, because in the past the party in power made the issue one of its calling cards, but on the other side."

In some parts of the country, cities hold considerable sway over their state governments. New York City has a budget of a whopping $78 billion, nearly half of the state government's budget. The city's population of 8.5 million people is nearly half the state's total.

Texas has some of the largest cities in the country, but their stature is not on par with that of the state. The budgets of the five largest Texas cities add up to just over $10 billion, a figure dwarfed by the $217 billion state budget. Their collective populations amount to 7 million people, which is about one-quarter of the state's residents. When state and local law disagree, the state's authority rules unless federal courts intervene.

Nevertheless, in the wake of the federal government's withdrawal from the Paris agreement to combat climate change, 211 mayors nationwide promised to keep their commitments to reach the agreement's emission targets. Many mayors also declared defiance of "sanctuary city" restrictions when President Donald Trump issued an executive order to strip funding from those cities.

However, those mayors may be making promises they can't keep. The state can choose to intervene in most issues and overrule city policy.

After a legal battle that lasted for more than two years over the balance between safety and convenience of rideshare platforms such as Uber and Lyft, San Antonio legalized the services with optional fingerprint background checks. Austin required those background checks after years of debate and functionally banned the most popular platforms in the process. Then last month, the state invalidated all local regulations by passing its own law. Against the wishes of Austin's city council, Uber and Lyft have returned to the city.

In 2014, the City of Denton voted through a referendum to ban fracking. In response, the Legislature intervened and banned local regulation on oil and gas extraction.

“Local control’s great in a lot of respects," said Christi Craddick, chair of the Texas Railroad Commission, which regulates the energy industry in the state. "But I’m the expert on oil and gas. The City of Denton is not.”

If San Antonio wanted to regulate gas wells because of contamination risks to the Edwards Aquifer, the region's air quality, or its goals to reduce methane emissions, it would not have the authority to do so.

This session, the Legislature passed a bill that similarly removed authority from counties and cities to regulate agriculture. The Seed Control Bill (SB 1172/ HB 3582) declares that no local entity may regulate seeds or the "cultivation of seeds," which likely includes pesticides, herbicides, and fertilizer runoff. Backed by Monsanto and Dow Chemical, it will essentially preempt counties from limiting the use of genetically modified seeds as Hawaii attempted to do.

Agricultural businesses, like farmers who rely on non-GMO contaminated cotton to export their goods, are at risk of upstream choices affecting their land and products.

U.S. Dept. of Agriculture/Courtesy photo

The square bud of a young cotton flower.

"During the Senate Committee hearing, the bill author, Chairman Perry, gave an example of how he viewed local control should work: Grape growers in his region are paying cotton growers to use a more expensive herbicide that is less prone to drift," said Judith McGeary, executive director of the agricultural advocacy group Farm and Ranch Freedom Alliance.

"From a property-rights perspective, the cotton farmers should have to pay whatever expense is necessary to prevent the damage. They do not have the right to cause harm to someone else’s crops. It is, in essence, extortion – the grape growers are having to pay people not to hurt them."

In Bexar County, if fertilizer runoff endangered the Edwards Aquifer or agricultural pesticides threatened bees and other pollinators, the local government no longer has the authority to regulate them.

One of the most controversial bills to pass in the last session was Senate Bill 4, which requires police departments to enforce immigration law. The law, which is slated to go into effect Sept. 1, allows local law enforcement officials to ask anyone whom they detain, including during traffic stops, about immigration status.

"We are fearful that the community will no longer cooperate with us because of this bill," San Antonio Police Chief William McManus said at a press conference on April 27. “I don’t understand how the state can all of a sudden take over that part of the chief’s responsibility by disallowing them to come up with rules and regulations that the department abides by.”

There are an estimated 71,000 undocumented immigrants in Bexar County, according to the Migration Policy Institute. It is unclear where the resources to carry out immigration law enforcement will come from, since SB 4 does not address funding for police departments.

Rocío Guenther / Rivard Report

San Antonio City Councilmen Roberto Trevino (D1) (left) and Rey Saldaña (D4) join protesters against the Legislature's passage of Senate Bill 4.

In recent days, both the City of San Antonio and Bexar County have joined a lawsuit against the state in federal court.

“The fight is now in the courtroom, and San Antonio stands shoulder to shoulder with Texas cities in that fight,” City Councilman Rey Saldaña (D4) told a crowd gathered in front of City Hall.

Abbott's announcement Tuesday of a special session included a list of issues on the docket with big implications for local control.

"The list of proposed topics for a special session represents an all-out assault on the ability of Texas voters to decide what's best for their communities and their neighborhoods,"the Texas Municipal League said in a statement.

Six topics Abbott listed pertain to legislation in areas such as annexation, land use, and property taxes that are traditionally regulated by cities.

One of those bills could make annexation more difficult. It would prevent annexation of an area unless residents of the area vote to accept it. For cities like San Antonio, if surrounding areas can more easily resist annexation, the result could be less tax revenue, more suburbs, and overstretched city services.

Another piece of proposed legislation concerns property taxes and could require cities to hold an election on property taxes anytime they increase more than 5% per year. That could affect city revenue, too.

Despite legislation passed during the recent session and the looming fights in the special session, Bernal is optimistic about the future of local control.

"I don't believe that the Republicans in San Antonio understand yet what the Republicans in Austin are doing in their name," he said. "Once they figure that out, I think there will be a shift."

For now, at least, leaders in Austin seem to have all the authority they need, according to City of San Antonio Director of Government and Public Affairs Jeff Coyle.

“It’s a really tough environment for cities right now,” he said.

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