The 88th Regular Session resulted in a variety of enacted bills that affect the firm’s local government clients. There were 8,344 bills and joint resolutions filed, and 1,258 bills passed. That’s an increase from the 87th Regular Session where 1,073 bills passed. A large portion of the newly enacted bills affect local governments; too many to list individually in this report but highlights of some key bills are summarized below by BHDA attorney and government relations expert Claudia Russell.
Super Preemption
HB 2127– This controversial bill applies to both cities and counties and expressly preempts certain city home rule regulations. It potentially preempts other regulations in fields occupied by state statute. It creates a cause of action for lawsuits against local governments to determine whether a regulation is preempted and requires three months’ notice before a claimant can bring a lawsuit. The bill expressly protects the following city authority:
- Existing payday lending ordinances, if valid under previous law;
- Existing regulations of the retail sale of dogs or cats, until the state adopts statewide regulations;
- Ability to regulate a massage establishment;
- Ability to maintain roads, impose taxes, and carry out any authority expressly authorized by statute;
- Authority to conduct a public awareness campaign;
- Ability to negotiate terms of a collective bargaining agreement; and
- Adoption of policies related to city employees.
The bill expressly preempts the following city regulations:
- Regulations relating to employment leave, hiring practices, breaks, employment benefits, scheduling practices, and other terms of employment that exceed or conflict with federal or state law;
- Regulations involving the breeding, care, treatment, or sale of animals or animal products if person holds a license for the business issued by federal or state government; and
- Regulations of evictions or delivery of notice to vacate prior to an eviction.
HB 2127 also provides that unless expressly authorized, an ordinance or order that regulates conduct in a field of regulation that is occupied by a provision of one of the following codes is void and unenforceable:
- Agriculture Code;
- Business & Commerce Code;
- Finance Code;
- Insurance Code;
- Labor Code;
- Natural Resources Code;
- Occupations Code; and
- Property Code.
Major cities across Texas have already filed lawsuits claiming the bill to be unconstitutional. Even if the newly enacted bill survives a constitutional challenge, interested parties note that the extent of the super preemption will not be fully known for years while courts determine when a state statute occupies a field of regulation.
Targeted Preemption
SB 1017 provides that a municipality cannot regulate an energy source or engine.
SB 784 provides that a municipality cannot regulate greenhouse gas emissions.
HB 1750 & HJR 126: Both bills limit municipal regulation of agricultural within the city limits and extraterritorial jurisdiction (ETJ).
HB 1598 limits a municipality’s ability to regulate the siting of municipal solid waste facilities.
Land Use- ETJ Release
SB 2038 allows residents and property owners in a municipality’s extraterritorial jurisdiction (ETJ) to use either the petition or election process as outlined in the bill to remove themselves from the ETJ. These release provisions do not apply to land that is:
- Designated as industrial district;
- Subject to a strategic partnership agreement;
- Located within five miles of a military base;
- Voluntarily annexed into a city’s ETJ if located in high growth county with population over 240,000; and
- Located in certain parts of San Antonio ETJ.
Annexations after January 1, 2023, do not expand the ETJ unless would-be residents of the ETJ request inclusion. And if an area is released from ETJ, any city/county interlocal agreements giving city authority to regulate subdivisions are terminated as to the area and the county is granted the authority.
Land Use- Inspections and Payment for Nonconforming Use
HB 14 authorizes third party review of development documents or permits and third-party inspections if not acted upon or completed within 15 days of statutory deadline. A third party who reviewed a development document or conducted an inspection would be required to take actions in accordance with all applicable provisions of law and notify the regulatory authority of the results of the review or inspection within 15 days of completing the review or inspection. Regulatory authorities can prescribe a reasonable format for the notice.
SB 929 relates to the notice and compensation a municipality must provide before revoking the right to use property for a use that was allowed before the adoption of or change to a zoning regulation or boundary. The bill requires the governing body of a municipality or a zoning commission to provide written notice to property owners and occupants of each public hearing regarding any proposed adoption of or change to a zoning regulation or boundary that could result in a current conforming use of a property becoming a nonconforming use. The bill also establishes the compensation that the owner or lessee of property with a nonconforming use is entitled to receive if the nonconforming use is required to cease operation due to being a nonconforming use.
Taxation
HB 4082 prohibits a county from issuing certificates of obligations or tax notes for a facility for professional or semi-professional sports, a stadium, arena, civic center, convention center, coliseum, or a hotel.
Finance
SB 22 relates to the establishment of grant programs to provide financial assistance to qualified sheriff’s departments, district attorney’s offices, and county attorney’s offices in rural counties. It establishes rural sheriff’s office and rural prosecutor’s office salary assistance grant programs.
Governance
SB 29 relates to prohibited governmental entity implementation or enforcement of a vaccine mandate, mask requirement, or private business or school closure to prevent to the spread of COVID-19.
- SB 29 prohibits a governmental entity from implementing the aforementioned. Limitations on mandates related to face masks would not apply to state supported living centers, facilities operated by the Texas Criminal Justice Department or the Texas Juvenile Justice Department, municipal or county jails, or hospitals or other health care facilities owned by a governmental entity that were subject to certain other rules prescribed by a government agency which conflicted with the limitation. Limitations on mandates related to vaccines would apply only to the extent that the prohibition did not conflict with certain federal rules.
SB 271 requires local governments to report cyber incidents to the state.
SB 1893 prohibits the use of TikTok on any local government device.
Personnel
HB 471 requires a political subdivision to provide its paid firefighters, police officers, and emergency medical services personnel a leave of absence for an illness or injury related to the person’s line of duty. A person may use the person’s accumulated sick leave, vacation time, and other accrued benefits before the person is placed on temporary leave. The temporary leave is with full pay for a period commensurate with the nature of the line of duty illness or injury and the leave must be continued, if necessary, for at least one year. Among other provisions, the bill provides for a person’s return to light duty with a temporary disability, authorizes another firefighter, police officer, or emergency medical services personnel to voluntarily do the work of the injured firefighter, police officer, or emergency medical services personnel until the person returns to duty, and provides that any workers’ compensation benefits provided to the person must be offset, to the extent applicable, by any amount for incapacity received as provided by the bill’s provisions.
Purchasing
HB 2965 provides that governmental entities cannot force contractors to waive Chapter 2272, Government Code, (Certain Construction Liability Claims) in filing bids or after contracts have been awarded.
Environment
HB 4385 allows a municipality to provide sewer service to areas of less than 15 connections without a certificate of convenience and necessity (CCN) and is not within the certificated area of another retail public utility.
Courts
HB 2620 requires the Texas Department of Criminal Justice (TDCJ) to review and certify the required documents delivered to TDCJ during the scheduled admission of a new person within three days of receiving the documents. TDCJ is required to take custody of a person awaiting transfer following a conviction of a felony no later than 45 days after all documents have been reviewed and certified by TDCJ. If TDCJ has not taken custody of a person within the 45-day period, TDCJ is required to compensate the county for:
- 125 percent of the cost of confinement for each day the person remained confined in the county jail following the 45-day period;
- the cost of confinement for each day beginning when TDCJ received the required documents and ending on the date TDCJ certified the required documents; and
- the cost to the county for all medical, behavioral health, and pharmaceutical care provided to the person while confined beginning on the date TDCJ received the required documents.
- By September 30, 2023, the Texas Board of Criminal Procedures is required to adopt the scheduled admissions policy required by the bill. The compensation to counties would only apply to costs related to the confinement of a person that occurred after October 1, 2023, regardless of whether the requirements for the transfer of the person were completed before, on, or after that date.