The Potential Impact of Texas House Bill 2127 – No Water Breaks

Aug 15, 2023

During this legislative session, there was a disruption in the county and city police forces in Texas. The Death Star Bill, as opponents have called it, which was passed by both houses, will probably be signed by Governor Greg Abbott this fall.

Republicans in the state legislature, according to opponents, are further eroding local autonomy with House Bill 2127.

HB 2127 would preempt a wide range of local laws, including those prohibiting discrimination in hiring and housing as well as rules governing construction standards and payday lenders. It would also limit the water break of workers in a state that already has the highest heat-related death rate. Cities and counties would have to abide by state law or risk legal action.

Municipal laws may not apply to another city, according to supporters, who claim that municipal regulations are too fragmented. According to them, the bill was especially important for businesses. This bill has a wide-ranging effect and leaves room for interpretation. If you are wondering what implications the bill may have, contact an attorney at De La Garza Law Group.

What is Texas House Bill 2127?

The Texas Regulatory Consistency Act (HB 2127), which was approved by the Texas Legislature on May 23, 2023, is likely to be signed into law by Governor Greg Abbott. HB 2127 would take effect on September 1, 2023, upon the Governor’s approval.

Texas home rule towns may exercise any powers given by their municipal charters, and Texas counties may exercise the particular powers granted to them by the Texas Constitution, provided that their acts do not conflict with state or federal law. However, if HB 2127 were to become law, Texas’s longstanding policy of providing local governments with a great deal of autonomy would be drastically altered.

With the passage of HB 2127, there will be a significant shift away from local government authority and toward more state control. It continues a national pattern where state legislators use preemption to deal with political issues.

What Areas Will Texas House Bill 2127 Impact?

According to HB 2127, towns and counties are prohibited from adopting any rules, orders, or ordinances in “fields of regulation that are occupied by a provision of this code.” The following state codes are specifically named in the statute as preempting local action:

  • Agriculture 
  • Business and Commerce 
  • Finance 
  • Insurance 
  • Labor 
  • Local Government
  • Natural Resources 
  • Occupational 
  • Property 

More people will be affected by this law than lawmakers originally thought. Only six state codes were included in the original draft of HB 2127’s preemption of local authority. However, subsequent changes added the Business and Commerce, Local Government, and Property Codes to the list. 

Opponents of local government preemption attempted to include amendments protecting municipal nondiscrimination laws, required water breaks for construction workers, and “fair chance” employment practices throughout the process, but each of those attempts was unsuccessful.

Legal Avenues Around House Bill 2127

Currently, because the bill is not made into law, there are no legal avenues that have been explored. However, the leaders in Houston, according to a recent press release, are trying to stop the bill before it comes into law by attacking its constitutionality. On its face, the bill conflicts with the Constitution. 

Leaders in Houston claim, in a new lawsuit, that the new law is unconstitutional and drastically reduces the ability of cities to self-govern. They contend that the bill violates a provision of the constitution that permits localities to create their own laws. Voters would have to pass a constitutional amendment for the law to go into effect.

The Texas constitution’s home rule is effectively repealed under HB 2127’s revised definition of preemption. Preemption under established law is a constitutional doctrine that judicial officials carefully evaluate and apply to rare situations in which state law supersedes conflicting local law, concluding that there is no way that state and local law may coexist.

The lawsuit states that this act disregards the Texas legal system’s hierarchy, which states that a statute like HB 2127 cannot repeal a constitutional provision. As a result, preemption is not simply given a new meaning. To repeal Texas laws, a constitutional amendment election is necessary. The bill is not properly adhering to this constitutional process. 

It is likely that other city officials and government groups will file similar lawsuit to combat the unconstitutional applications of Texas House Bill 2127. 

Possible Protections Available for Workers

HB 2127 presents Texas’ local government with a number of additional difficulties. Counties and towns will need to carefully review HB 2127’s text for problems with both current and future municipal legislation. Previously, there were few questions about the extent of their jurisdiction to manage local issues. The immunity-waiving provisions of HB 2127 may cause such legislation to be challenged in court. Therefore local officials would be well to plan a litigation strategy.  

The broad phrasing in HB 2127 that refers to the “field of regulation” might have far-reaching consequences and result in the repeal or non-enforcement of ordinances like:

  • Providing compensated sick time
  • defending staff members against discrimination
  • limiting water use when there is a drought
  • Predatory lending prevention
  • invasive species control
  • controlling loud noise
  • addressing environmental emergencies

The current safeguard for workers would be through the constitution and recourse through the local government. Worker unions have voiced their outrage and concern with the bill and its ability to govern water breaks of outdoor Texas workers. The supporters of the bill stated this would be better addressed by OSHA controls, which currently leave the employers responsible for the safety of the workers. 

The best protection available for workers would be OSHA and its ability to govern workplace safety. The best approach to protect workers in Texas would be for OSHA to implement national standards that would address issues Texas workers will see, like heat-related illness and death. 

Additional Implications of Texas House Bill 2127

The bill could instantly revoke a city’s ability to enact its own rules, nullifying numerous policies that local governments have previously implemented.  

Simply put, the bill could forbid localities from adopting additional ordinances on specific topics and instead mandate that they rigorously adhere to state law in certain circumstances. 

These limitations may have an impact on San Antonio’s and other cities’ Tenant Bill of Rights as well as the Proactive Apartment Inspections Program, both of which were recently implemented by the San Antonio City Council. It may also have an impact on local laws requiring workers in other cities to take regular water breaks.

The law also waives the governmental immunity that typically shields cities from having to defend against pricey and time-consuming lawsuits over local decision-making and permits any person or trade association harmed by an ordinance that violates HB 2127 to sue the city or county for declaratory and injunctive relief as well as attorney’s fees. As a result, it is probable that HB 2127 will cause a sharp rise in the number of lawsuits filed against local governments.

Are There Any Good Aspects of House Bill 2127?

Certain issues are expressly left up to local government regulation according to the new bill. As a result, both cities and counties ought to be able to maintain core operations in a variety of local focus areas, such as:  

  • Establishing and upholding laws for the “control, care, management, welfare, or health and safety of animals”
  • Launching public awareness campaigns 
  • Levying taxes 
  • Regulation of local government employees
  • Road maintenance and building 

To local workers, the bill does not have any positive implications. There are certain focus areas (above) that are still left in the hands of the local government, but they already have this contract. There is no language in the new bill that positively impacts the reign of local governments and their ability to pass ordinances under specific state and local codes.

Contacting an Attorney to Discuss House Bill 2127

Members of the City Councils are urging cities to file a lawsuit against the state over a soon-to-be-enacted law that prevents local governments from enforcing local regulations on certain sectors of industry and commerce. The “Death Star bill” has been dubbed by organized labor groups due to its potentially extensive effects, but the city attorneys in charge of upholding the amendments claim they are unsure of how much it will affect the council’s work at this time.

So far, Houston is the only city to file a lawsuit repelling the bill and attacking its unconstitutional implications. Council members across the states and labor unions are urging those that can to file a lawsuit to hopefully repel the bill. The lawsuits that will be filed may not take the bill, but it can push for excessive amendments to the bill. 

The bill has stated such broad regulations that city officials are unaware of the exact impact the law will have once it goes into effect. However, because it is so broad, state officials are concerned that it will strip any control that local governments have and open the doors to lawsuits, requiring them to defend against the lawsuit. 

Opponents of the bill tried to force amendments to the bill before it passed the houses, but any additions they proposed were vetoed. Regulators clearly wanted to keep the bill expansive and at a high hierarchy regulation. 

Lawsuits are imperative, and workers need their rights protected. Concerned workers should contact local attorney at De La Garza Law Group to discuss the possible implications of the bill and what rights they still have.