In Texas, the legal and political tension between state lawmakers and its populous, “blue” urban cities and counties is nothing new, but the intensity of this ongoing power struggle has, by any measure, increased in recent history. Undoubtedly this “Cold War” between state and local governments reached a crescendo during the 88th Regular Session with HB 2127 by State Representative Dustin Burrows. Popularly known as the “Death Star” bill, the legislation was intentionally broad in enshrining explicit language in state law limiting local governments’ historically broad statutory authority to impose regulation within their jurisdictions. 

The city that is perhaps most widely-known for raising hackles under the granite dome of the Texas capitol, is the City of Austin. In recent years, the City of Austin has sought to impose significant regulations on the sharing economy services, like Uber, Lyft, and Airbnb, and more recently, paid sick leave on private employers within the city limits. The Austin City Council infamously defunded police, and legalized homeless encampments only to have voters resoundingly push back at the ballot box through a referendum. And in each of these cases, to name a few, the state legislature passed laws reversing these local policies.

Local officials across the state cry foul at this trend of erosion of “local control,” while state officials insist a “patchwork” of burdensome regulations is bad for business in Texas, and quality of life is threatened by policies like “defund” and encampments that undermine public health and safety. 

Although reasonable minds may disagree about whether such policies are best decided by state or local government, a series of recent court battles in Austin highlight that these limitations imposed on local authority may be justified. 

To varying degrees, these are not cases where the City of Austin treads where state law is unclear or historically silent, like with the issues above. These are cases where the City sought to violate the plain, black and white letter of the law. 

The most recent example of this is a case where, just this month, a Travis County District Court sided with local government watchdogs who sought to stop the City of Austin from establishing a Tax Increment Reinvestment Zone (TIRZ) under Chapter 311 of the Texas Tax Code on the south shore of the Colorado River between S. 1st an I-35. The watchdogs successfully argued that the property in question was not eligible for the tax-beneficial TIRZ because it was not blighted and could (and would) be developed without the financial incentive. 

In another case this month, a Travis County District Court granted plaintiffs a temporary restraining order (TRO) against the City of Austin whose Mayor & sought to drastically limit the amount of time the public has historically been able to speak on agenda items during Council meetings. The judges TRO stated that the City likely violated not only state law, the Texas Open Meetings Act, but even its own City Charter. 

In yet another case, the City of Austin's funding mechanism for its multi-billion dollar “Project Connect” transit plan has been embroiled in both legislative and court battles, as it blurs historically clear statutory lines between property taxes collected for Maintenance and Operations and those funds to be dedicated to repay bond debt. Between the Texas legislature and courts, keen observers project a devastating defeat for Austin’s local government. 

All three of these issues have been in the headlines just this month (April 2024). But wait, there’s more! Harris County has doubled down on a universal basic income program, modeled after the City of Austin’s, in spite of legal challenges from the Office of the Attorney General. The Austin City Council appears poised to adopt a resolution on May 2nd aimed at undermining enforcement of state law related to gender modification in children. 

With every legitimate legal challenge, loss, and claim on previously uncontemplated local authority, a few local governments damage their own credibility with state legislators, as well as the credibility of more responsible and reasonable local governments and officials. As Senator Konni Burton aptly back in 2016, city and county governments are “political subdivisions” of the State of Texas – that is to say, they are lawfully subordinate. 

If Texas city councils and commissioners courts were serious about preserving “local control,” they would be best served by getting back to the basics: public safety, (lawfully-funded) transportation infrastructure, and public utilities, where applicable. They would be served by staying within the norms and clear, statutory limits that they are delegated by state law, and not flirting with or flaunting those boundaries and provoking a necessary response from the general public, industry stakeholders, and ultimately from legislature and Governor. 

I find it odd that the Texas Bar Association was quick to go after Texas Attorney General Ken Paxton for his role in challenging the 2020 election, but they are no where to be found when Austin’s lawyers are repeatedly and clearly providing devastating legal advice for their clients and the taxpayers they serve.

With all the talk lately of “ceasefire” on an international scale, perhaps local governments interested in retaining local control, should initiate a “ceasefire” in the decades-long cold war between state and local control.