The text as introduced · 1,461 words
2025S0248-1 03/13/25
By: Creighton
S.B. No. 2858
A BILL TO BE ENTITLED
AN ACT
relating to state preemption of certain municipal and county
regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) the state has historically been the exclusive
regulator of many aspects of commerce, trade, elections, and
criminal justice in this state;
(2) in recent years, several local jurisdictions have
sought to establish their own regulations of commerce, trade,
elections, and criminal justice that are different than the state's
regulations; and
(3) such local regulations have led to a patchwork of
regulations that apply inconsistently across this state.
SECTION 2. The purpose of this Act is to provide additional
statewide consistency by returning sovereign regulatory powers to
the state where those powers belong in accordance with Section 5,
Article XI, Texas Constitution.
SECTION 3. This Act:
(1) may not be construed to prohibit a municipality or
county from building or maintaining a road, imposing a tax, or
carrying out any authority expressly authorized by statute;
(2) may not be construed to prohibit a home-rule
municipality from providing the same services and imposing the same
regulations that a general-law municipality is authorized to
provide or impose;
(3) does not affect the authority of a municipality or
county to conduct a public awareness campaign; and
(4) does not affect the authority of a municipality or
county to repeal or amend an existing ordinance, order, or rule that
violates the provisions of this Act for the limited purpose of
bringing that ordinance, order, or rule in compliance with this
Act.
SECTION 4. Chapter 1, Elections Code, is amended by adding
Section 1.023 to read as follows:
Sec. 1.023. PREEMPTION. Unless expressly authorized by
another statute, a municipality or county may not adopt, enforce,
or maintain an ordinance, order, or rule regulating conduct in a
field of regulation that is occupied by a provision of this code.
An ordinance, order, or rule that violates this section is void,
unenforceable, and inconsistent with this code.
SECTION 5. Chapter 1, Penal Code, is amended by adding
Section 1.11 to read as follows:
Sec. 1.11. PREEMPTION. Unless expressly authorized by
another statute, a municipality or county may not adopt, enforce,
or maintain an ordinance, order, or rule regulating conduct in a
field of regulation that is occupied by a provision of this code.
An ordinance, order, or rule that violates this section is void,
unenforceable, and inconsistent with this code.
SECTION 6. Section 102A.002, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 102A.002. LIABILITY FOR CERTAIN REGULATION. Any
person who has sustained an injury in fact, actual or threatened,
from a municipal or county ordinance, order, or rule adopted or
enforced by a municipality or county in violation of any of the
following provisions or a trade association representing the person
has standing to bring and may bring an action against the
municipality or county:
(1) Section 1.004, Agriculture Code;
(2) Section 1.109, Business & Commerce Code;
(3) Section 1.004, Finance Code;
(4) Section 30.005, Insurance Code;
(5) Section 1.005, Labor Code;
(6) Section 229.901, Local Government Code;
(7) Section 1.003, Natural Resources Code;
(8) Section 1.004, Occupations Code;[ or ]
(9) Section 1.004, Property Code ;
(10) Section 1.023, Elections Code; or
(11) Section 1.11, Penal Code .
SECTION 7. Chapter 102A, Civil Practice and Remedies Code,
is amended by adding Sections 102A.008 through 102A.013 to read as
follows:
Sec. 102A.008. DEFINITIONS. In this chapter:
(1) "Local government" means a municipality or
county.
(2) "No-new-revenue tax rate" means the
no-new-revenue tax rate calculated under Chapter 26, Tax Code.
Sec. 102A.009. ATTORNEY GENERAL INVESTIGATION AND ACTION.
(a) The attorney general may investigate an alleged violation of
this chapter by a local government.
(b) If after conducting an investigation under Subsection
(a), the attorney general determines that a local government
adopted, enforced, or maintained an ordinance, order, or rule in
violation of the provisions listed in Section 102A.002, the
attorney general may bring an action in the name of the state
against the local government for the violation.
Sec. 102A.010. ENFORCEMENT ACTIONS DURING PENDENCY OF
ACTION. During the pendency of an action brought under Section
102A.009, with respect to a local government defending the action:
(1) the comptroller shall withhold payment of any
money due to the local government under Section 321.502 or 323.502,
Tax Code, as applicable;
(2) the local government may not adopt an ad valorem
tax rate that exceeds the local government's no-new-revenue tax
rate; and
(3) the local government may not receive state grant
funds and any pending application for such funds shall be denied.
Sec. 102A.011. BURDEN OF PROOF; INITIAL HEARING. (a) A
local government defending an action brought under Section 102A.009
has the burden of proof to establish by a preponderance of the
evidence that the local government complied with the law the
alleged violation of which is the subject of the action.
(b) The court of original jurisdiction shall set an action
brought under Section 102A.009 for an initial hearing not later
than the 30th day after the date the local government defending the
action was served with process for the action.
Sec. 102A.012. RESOLUTION OF ACTION IN FAVOR OF ATTORNEY
GENERAL. (a) If the attorney general prevails in an action brought
under Section 102A.009:
(1) the local government defending the action may not,
during the five state fiscal years following the year in which the
judgment becomes final:
(A) adopt an ad valorem tax rate that exceeds the
local government's no-new-revenue tax rate; or
(B) receive state grant funds; and
(2) the court issuing the final judgment resolving the
action shall provide in the judgment that the state is entitled to
recover from the local government defending the action a penalty
equal to the balance of the suspense account maintained for the
local government under Section 321.501 or 323.501, Tax Code, as
applicable, that exists on the date the judgment is signed.
(b) The comptroller shall, on receipt of a copy of the final
judgment in an action brought under Section 102A.009 that includes
a provision described by Subsection (a)(2), deposit the balance of
the suspense account maintained for the local government defending
the action under Section 321.501 or 323.501, Tax Code, as
applicable, as of the date the judgment is signed to the credit of
the general revenue fund.
Sec. 102A.013. RESOLUTION OF ACTION IN FAVOR OF LOCAL
GOVERNMENT. If a local government prevails in an action brought
under Section 102A.009, the comptroller shall, notwithstanding any
other law, immediately send to the local government the balance of
the suspense account maintained for the local government under
Section 321.501 or 323.501, Tax Code, as applicable, as of the date
the judgment resolving the action is signed.
SECTION 8. Section 102A.002, Civil Practice and Remedies
Code, as amended by this Act, and Section 102A.009, Civil Practice
and Remedies Code, as added by this Act, apply only to a cause of
action that accrues on or after the effective date of this Act.
SECTION 9. Every provision, section, subsection, sentence,
clause, phrase, or word in this Act, and every application of the
provisions in this Act to every person, group of persons, or
circumstances, are severable from each other. If any application
of any provision in this Act to any person, group of persons, or
circumstances is found by a court to be invalid, preempted, or
unconstitutional, for any reason whatsoever, then the remaining
applications of the Act to all other persons and circumstances
shall be severed and preserved and shall remain in effect. All
constitutionally valid applications of the provisions in this Act
shall be severed from any applications that a court finds to be
invalid, preempted, or unconstitutional, because it is the
legislature's intent and priority that every single valid
application of every statutory provision be allowed to stand alone.
The legislature further declares that it would have enacted this
Act, and each provision, section, subsection, sentence, clause,
phrase, or word, and all constitutional applications of the
provisions of this Act, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this Act were to be declared invalid, preempted,
or unconstitutional.
SECTION 10. The Texas Supreme Court has exclusive and
original jurisdiction over a challenge to the constitutionality of
this Act or any part of this Act and may issue injunctive or
declaratory relief in connection with the challenge.
SECTION 11. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2025.
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