A press release from the Texas Attorney General: Attor­ney Gen­er­al Ken Pax­ton Sues Five Cities Over Mar­i­jua­na Poli­cies Pre­vent­ing Enforce­ment of Texas Drug Laws

The state intends to clamp down on cities that are lenient on marijuana possession.

- Click here for it.

Texas Attorney General Ken Paxton has launched lawsuits against the cities of Austin, San Marcos, Killeen, Elgin, and Denton for adopting amnesty and non-prosecution policies that violate Texas laws concerning marijuana possession and distribution.

The five municipalities adopted ordinances or policies instructing police not to enforce Texas drug laws concerning possession and distribution of marijuana—an illicit substance that psychologists have increasingly linked to psychosis and other negative consequences. Texas Local Government Code forbids any political subdivision from adopting “a policy under which the entity will not fully enforce laws relating to drugs.” Further, the Texas Constitution notes that it is unlawful for municipalities to adopt ordinances that are inconsistent with the laws enacted by the Texas Legislature (Article 9, Section 5).

From the Texas Tribune: House proposal aims to limit increases in Texas property tax bills

Some 2306 students are focusing on property tax reform for their papers.

- Click here for the article.

Saying there needs to be more transparency in how property taxes are assessed in Texas, the head of the House Ways and Means Committee unveiled legislation Friday that would reduce the maximum increase allowed in taxes on individual properties.

House Bill 15, dubbed the “Property Taxpayer Empowerment Act” and authored by state Rep. Dennis Bonnen, R-Angleton, would reduce the maximum increase in taxes for a property — from 8 percent to 4 percent. The legislation would also require local governments to annually publish a “No New Taxes Rate" — which is the rate that would raise the same amount of money as the previous year — and restrict debt service taxes to debt that has been approved by voters.

“Government only works when citizens can hold their leaders accountable, and accountability begins with transparency,” Bonnen said in a news release. “Our property tax system is needlessly confusing and discourages citizens from taking an active role in the local rate-setting process. The Property Taxpayer Empowerment Act will give Texans the information and clarity they need about their tax bill to hold local leaders accountable.”

From the Houston Chronicle: HOUSTON Lawmaker's bill reopens debate over $105M Astrodome parking plan - Lawmaker requires voter approval; local government calls it 'micromanaging'

We covered the initial proposal - which did not require additional revenue, meaning no need for voter approval - in the fall. Here's the latest.

- Click here for the article.

Harris County Judge Ed Emmett voiced concern Tuesday that a bill filed by a veteran state senator jeopardizes the county's plan to revitalize the Astrodome, adding that county representatives would continue to try to persuade legislators to support the $105 million project.

Emmett said state Sen. John Whitmire's bill, the Harris County Taxpayer Protection Act, was misleading and that Whitmire's statements that some Astrodome renovation funds could be spent on Minute Maid Park or the Toyota Center were "demonstrably incorrect."

"This bill is an example of state government making it more difficult for local government to do its job," Emmett said.

Whitmire's bill would require voter approval for a county plan to spend $105 million to raise the floor of the iconic, domed stadium and create 1,400 parking spaces and space for events or festivals.

Emmett, a Republican, said the county would delay a "comprehensive analysis of future operation and maintenance needs at NRG Park" until the bill's fate were decided. NRG Park includes the 52-year-old Astrodome, NRG Stadium, home of the Houston Texans and the Houston Livestock Show and Rodeo, and event venues NRG Arena and NRG Center.

At a press conference Tuesday in Austin, Whitmire and other state senators from the Houston area gathered to express their support of legislation that would effectively block - or at least delay - Emmett's plan.

For more: More on the Whitmire Astrodome bill.

From the Tyler Morning Telegraph: State versus local control expected to be overarching theme in 85th Texas Legislature

The Texas Legislature seems intent on usurping local power.

- Click here for the article.

For years, the real battles in the Texas Legislature haven’t been Democrats versus Republicans - they’ve been urban versus rural interests.

That’s changing. When the Legislature convenes on Jan. 10, the new battle will be local control versus state prerogatives. On big issues ranging from sanctuary cities to revenue caps and rules for ride booking apps such as Uber and Lyft, to smaller issues such as plastic bag bans and whether employers can ask job applicants about their criminal histories, lawmakers will contend with cities about the appropriate level of local control.

This flips the script. Local control has been a watchword of conservatives in years past, as they sought to limit rules and unfunded mandates coming out of Austin.

Now, though, it’s the conservatives who say the state is sovereign and that larger cities - which in Texas these days are often more liberal than the Legislature - enact their own rules that go beyond what some lawmakers see as appropriate.

On the right, the conservative Texas Public Policy Foundation sees the matter as a proper restoration of the state’s role in policy matters that affect freedom and economic development.

“There’s a big conversation over local control,” said James Quintero, director of the TPPF’s Center for Local Governance. “Local control’s proper use is to rein in government and protect liberty. But it has been misused by those on the left to advance bad policy.”

On the left, the Austin-based Center for Public Policy Priorities agrees that the flashpoints during the upcoming session will be local versus state control.

“That’s exactly what the problem is,” said the Center’s Senior Fiscal Analyst Dick Lavine. “And we want to see local control over local matters. The government closest to the people understands the feelings of the people in the community. And elections keep officials accountable.”

The article goes on to highlight areas of contention. Could be useful for 2306 students looking for a paper topic.

For opinion on the issue: TEXAS VIEW: Local control is the only way to go.

From the Texas Tribune: Analysis: In Texas, You Can Fight City Hall

It looks like local control will be a major issue during the next legislative session.

- Click here for the article.

“Local” might be the byword for fancy farm-to-market restaurants, but it can be a dirty word at the Texas Capitol.

The state Legislature has become the appeals court for the state’s local governments. Companies and industries snubbed by local laws are increasingly asking state lawmakers to turn things their way — and it’s working.

. . . The next tests will start when the Legislature meets for its next regular session in January. This time, one big fight involves local regulation of drivers for ride-hailing companies like Lyft and Uber. Another is a straight-up attempt by the state to limit local officials’ ability to raise taxes without voter approval.

The ride-hailing issue sets up like the fracking issue did. Austin voters were asked whether the ride-hailing drivers should pass security checks, like cab drivers do. Uber and Lyft said they would leave if voters approved the regulations, irking voters with their methods and the explicit threat. Voters backed the regulations. The companies left. They threatened to leave Houston, too, over regulations there.

Industry allies in the Legislature have promised to file a statewide ride-hailing law that doesn’t hobble the companies.

. . . The property tax proposals are the latest attempts by state officials to control local property tax increases. The state doesn’t have a property tax itself — that’s unconstitutional — but cities, counties and school districts are state inventions and are subject to state regulation and some control. And in this case, some state officials want to give voters more control over property tax increases.

That’s not how the local governments see it, however. They believe, with some evidence, that state officials just want to make it harder to raise the money they contend they need to do what their voters demand of them. Some take it further, saying the need for more tax money is driven, in part, by what the state requires local governments to do.

You might argue that the property tax debate is a case of checks and balances, of one set of elected officials keeping another set of elected officials in line. You might even be right.
Other cases — fracking, smoking, texting while driving, hailing rides, banning plastic supermarket bags among them — are efforts to replace local laws with state ones.

From the Daily Texan: State lawmakers debate local control, preview agendas for upcoming session

More on the upcoming 85th session, with special focus on the rights of cities.

- Click here for the article.

The 85th Legislature will finally put to test several theories on what role the state can constitutionally play in policy disputes with localities, which could potentially impact Austin’s ride-hailing regulations and transgender bathroom ordinance, according to state lawmakers Saturday.

As part of the 2016 Texas Tribune Festival, two separate panels of state senators and representatives previewed the upcoming session of the Legislature, which reconvenes in January.

Both panels heavily focused on the issue of local control and whether the state can overturn city council policies through statewide legislation.

Legislators briefly touched on the issue with a bill overturning Denton’s hydraulic fracturing ban last session that was signed into law by Gov. Greg Abbott.

“There is no 10th Amendment for cities,” said state Sen. Konni Burton, R-Colleyville, at the Senate Agenda panel, citing the state’s protection against intrusion from the federal government. “We created the cities, the state did, so we have every right to say ‘you are overreaching.’”

In May, Austin voters sided with city officials by reaffirming ride-hailing regulations — primarily mandatory fingerprint-based background checks — through an initiative at the ballot, and ride-hailing companies Uber and Lyft ceased services as they had promised after Austinites voted to keep the regulations.

From Slate: Phoenix Has Beef With Arizona - From guns to puppies, the state keeps telling its citizens they can’t have the laws they want.

Terrific stuff on preemption. Something similar could be written about the Texas legislature and cities in Texas.

- Click here for the article.

Over the past five years, conservative states have been in a lawmaking frenzy to overrule local ordinances on issues as diverse as the minimum wage, taxicab licensing, workplace discrimination, and who may use which bathroom.

It’s called pre-emption, and as I wrote earlier this month, it has become the most powerful statehouse tactic of our time. What began as an industry-driven attempt to abolish cities’ restrictions on guns and smoking has evolved into a reflex to restrain virtually any local initiative that a statehouse doesn’t like.

North Carolina’s homophobic and transphobic HB2, passed by a heavily gerrymandered statehouse to abolish a Charlotte anti-discrimination law, is a notable recent example. But the capital of pre-emption may be Arizona, whose statehouse has been uniquely aggressive in its drive to dismantle local control in Tempe, Tucson, and Phoenix, three left-leaning cities.

Arizona’s Legislature has quashed local laws on everything from puppies to guns. It has pre-emptively pre-empted cities from making laws about plastic bags or employee scheduling (i.e. requiring employers to give advance notice of shift changes). And this year, it passed a law that suspends city funding for services like police and fire if the state attorney general finds conflict between city and state laws.

From Ballotpedia: Preemption conflicts between state and local governments (2016)

We'll discuss preemption in both 2305 and 2306 soon - it is a key part of federalism. Here's a look at the major areas of conflict currently. Texas is not listed, but I have a hunch that's because the legislature is not in session. Next year will be very different.

- Click here for the article.

- And click here for detail about the conflict over preemption across the nation - including Texas.

A tug-of-war between cities and state governments has developed behind the scenes of the 21st century's biggest policy debates. Interest groups advancing policy reforms ranging from bans on fracking to higher minimum wages have led local and state officials to tussle over appropriate responses. Mayors, city councils, and community activists are passing ordinances and initiatives on wages, gun control, and LGBT issues in order to fill gaps perceived in existing law. Governors and state legislators have pushed back against these local responses, citing their interests in creating uniform policies across all local governments in their states.

This struggle continues the decades-long evolution of preemption, a legal concept that allows a state law to supersede a conflicting local law due to the state's power to create cities as granted by state constitutions. The term is also used to describe a similar exercise of power by the federal government over states, but this page only deals with preemption at the local and state level. Preemption jumped into the national spotlight in 2016 as friction increased between cities and states. These tensions are due in part to a common partisan divide: Democrats tend to control large cities, while Republicans tend to control state governments. Entering 2016, Democratic mayors oversaw 67 of the nation's 100 largest cities by population. This contrasts with Republican state government trifectas in 23 states and Republicans holding 30 out of 50 governorships in 2016.

ARGUMENTS

Legislators and governors argue that preemption allows states to create consistent laws across all municipalities. State officials also suggest that they are in better positions than cities to protect the rights of individuals by virtue of a larger view of policy debates.

Mayors, city councils, and county officials argue that preemption takes away local control necessary to respond to specific issues. Local officials also suggest that they are more attuned to the needs of the public given the relatively small number of state officials.

From the Texas Tribune: Paxton Opinion Slams Schools' Transgender Policies

Doing what he is constitutionally authorized to do.

A great example of conflict between the three levels of government.

- Click here for the article.

Texas Attorney General Ken Paxton on Tuesday issued an opinion saying the Fort Worth school superintendent who made headlines for formulating guidelines to accommodate transgender students exceeded his authority. Paxton also said that a portion of the guidelines instructing district employees not to out transgender students to their parents might violate state law.

Citing a part of the Texas education code, Paxton wrote that school district boards of trustees — not superintendents — are required to adopt policies while superintendents can only implement those policies “by developing administrative regulations.”
Attorney general opinions are not legally binding, and Paxton's interpretation has no direct legal impact on the Fort Worth district.

The Fort Worth ISD guidelines are in line with a directive from the Obama administration — issued after the guidelines were adopted — that instructed school districts across the country to ensure that transgender students are not discriminated against. Republican Lt. Gov. Dan Patrick requested the opinion three weeks after calling for Fort Worth ISD Superintendent Kent Scribner’s resignation.

From Vox: The controversial GMO labeling bill that just passed Congress, explained

The latest example of federal preemption.

- Click here for the article.

For months, Congress has been agonizing over what to do about labels for genetically modified foods. Various states have debated labeling for years. But the issue suddenly gained urgency on July 1, when Vermont became the first state in the country to require GMO labels in grocery stores.

Many food manufacturers despised Vermont’s law; they’ve been pulling their products from the state’s shelves and lobbying Congress to stop the law. Their big complaint was that if states enact their own GMO labeling laws, it would create an unworkable "patchwork" of local rules.

Now we're close to a resolution of sorts. On July 7, the Senate voted 63-30 to pass a bill that would preempt state laws like Vermont’s and replace them with a single national GMO labeling standard. On July 14, the House approved the bill by a 306 to 117 vote.

The new bill will require all food manufacturers to disclose any GM ingredients in their products. But there’s a twist: Companies can place a disclosure directly on the package. Or, if they think those labels too inflammatory, they can instead offer a digital QR code on the package that consumers would have to scan with their smartphones to get information on GM ingredients (something few people tend to do).

The bill now just needs to be signed by President Obama — and the White House has already signaled that he will do so.

Various industry groups are pleased with the Senate's bill — since it eliminates the messy patchwork — but others on both sides of this issue are displeased. Pro-labeling groups think the QR codes will be too easily ignored and say this will kill off opportunities for stricter labeling in the future. Opponents of labeling, meanwhile, argue that the whole issue is ridiculous, given the ample science showing that GM foods are just as safe to eat as regular foods.

From the Texas Tribune: Judge Blocks Texas Immigrant Harboring Law

To kick things off in 2305 today - a look at how the decisions of a federal judge can, and cannot, impact public policy in Texas and how they in turn impact the citizens of Texas (who are also citizens of the national government).

- Click here for the article.

A federal judge has blocked part of the state’s omnibus border security bill that makes harboring undocumented immigrants a state crime.

Under a provision of House Bill 11, which went into effect in September, a person commits a crime if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”

In January the Mexican American Legal Defense and Educational Fund, or MALDEF, filed a lawsuit in Bexar County against Gov. Greg Abbott, Texas Department of Public Safety Director Steve McCraw and the Texas Public Safety Commission, which oversees the DPS. The lawsuit alleges the state violated the U.S. Constitution’s Supremacy Clause because immigration enforcement is a federal responsibility.

The lawsuit was filed on behalf of two San Antonio landlords, David Cruz and Valentin Reyes; and Jonathon Ryan, the director of an immigrant services agency. The plaintiffs said that under the bill’s provisions, they could be accused of the crime for providing shelter space or renting homes to undocumented immigrants.

“What the plaintiffs said was, ‘We don’t want to be prosecuted under this law, we think it’s unconstitutional,’” said Nina Perales, MALDEF’s vice president of litigation.

In an order signed on Thursday, federal District Judge David Alan Ezra said the plaintiffs would likely succeed on the Supremacy Clause claim and ruled that state and local officials had no authority to enforce the harboring provision until a final decision on the case is made.

“In this case, Plaintiffs risk subjection to criminal penalties under laws that might be pre-empted by federal law and the Supremacy Clause of the United States Constitution,” he wrote. “Thus, the Court finds that Plaintiffs are likely to suffer irreparable harm.”

A spokeswoman for state Attorney General Ken Paxton said "we are disappointed in the ruling and evaluating our options."

Although MALDEF was victorious on one front, the judge rejected the group’s claim that the bill violates the plaintiffs' right to due process and equal protection. Perales said the equal protection argument was made because the bill did not have a “rational purpose” and was arbitrary.

But in his order, Ezra said that although HB 11 might be pre-empted, the harboring provision fits in with the state’s intended goal of securing its borders.

“HB 11’s harboring provisions are rationally related to their stated purpose of ‘strengthen[ing] the state’s border security measures and help[ing to] stem the rising tide of human smuggling and human trafficking in Texas,’” he wrote.

From NPR: From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws

We discussed some of this in 2306 today. As creatures of the state, city power can be limited by the state. Lot's of that has been going on recently. This radio interview walks through what different states have been doing to restrict local governments.


- Click here for it.

Here's a bit of the interview:

GRAVES: In Arizona, in the city of Tempe, which is where one of the major universities in Arizona is, there was a study committee in which the city council and others were working with the local businesses to look into how to have a paid sick leave measure in that city.

And the state legislature, which is, you know, dominated by Republicans and ALEC members, the members of American Legislative Exchange Council, have basically come forward and said if a city passes such a measure, the state will basically hold back funds for firefighters, for police. And so it will basically not do the revenue sharing that is traditional in Arizona between the state and the cities for providing funding for emergency services if a city dares to adopt a paid sick measure. And that basically stopped that measure in its tracks.

DAVIES: Wow. So they didn't try and preempt the actual measures themselves. They simply said there will be consequences if they are enacted.

GRAVES: It's a new form of preemption basically - that's right. If a city does adopt such a measure, it would be denied revenue. And certainly a city could go ahead and adopt such a measure and then try to litigate it, but in the meantime, it's a very difficult environment if the state actually goes through with that threat and does not give funding for police and firefighters. It's an extraordinary hammer to impose on, in essence, the idea of offering paid sick, of having a city require paid sick leave within its jurisdiction.