TPPF sues Dallas in ongoing ordinance fight

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(The Center Square) – The Texas Public Policy Foundation has sued the city of Dallas over ordinances the city failed to repeal after a new law went into effect.

In July, TPPF warned Dallas officials that if they didn’t repeal or amend 133 ordinances that they say violate state law, the city would be sued. The city repealed six ordinances on the list, TPPF said, but identified 83 ordinances still on the books it argues violate state law. 

TPPF sued on Wednesday in District Court in Denton County on behalf of three Dallas residents. 

“We commend Dallas for doing the right thing by repealing a few of its unconstitutional ordinances,” TPPF attorney Nathan Seltzer said. “However, Dallas kept the overwhelming majority of these ordinances on the books, even though it admitted they are preempted by the Texas Regulatory Consistency Act.”

At issue is the Texas Regulatory Consistency Act, HB 2127, filed by now House Speaker Rep. Dustin Burrows, R-Lubbock, “to provide consistency and predictability by preempting local regulation of matters regulated by the state" in several regulatory codes. It preempts and makes unenforceable city ordinances that duplicate and/or add to state regulations.  

Dubbed the “Death Star” bill by some news outlets and Democrats, it passed with bipartisan support, Gov. Greg Abbott signed it into law and it became effective Sept. 1, 2023.

Not soon after, Democratic leaders of El Paso, Houston and San Antonio sued, arguing they didn’t want to follow the law, citing hypothetical scenarios. A district judge ruled in their favor, which was overturned by Texas’ Third Circuit Court of Appeals. The appellate court threw out the lawsuit and chastised the plaintiffs, arguing they failed “to identify a single local law to which the Act’s application would be unconstitutional,” The Center Square reported.  

The circuit court also chastised the lower court, stating its declaratory judgment “amounts to an advisory opinion that essentially declares: If the Act is applied to the Cities in a future, hypothetical scenario, that application would be unconstitutional. But ‘[a] court does not strike down a law as unconstitutional based on a hypothetical situation.’” 

After the appellate court ruling, TPPF notified the Dallas city attorney on behalf of three Dallas residents that city officials had injured them by enforcing 133 ordinances that are preempted by state law, in violation of the Texas Constitution. That number has been amended to include 83 ordinances.

In its 131-page complaint, TPPF highlights each of the 83 ordinances it argues are unconstitutional and place unnecessary financial and regulatory burdens on taxpayers.

The ordinances relate to multiple insurance requirements for transportation network company drivers, ambulances, mobile food units, motor vehicle escorts for hire, street seat permits, special events, streetlight pole banners, valet parking services, shared dockless vehicles, transportation for hire, vehicle tow services, and many others when an entire field of insurance regulation exists and no Texas statute authorizes the city to regulate such insurance.  

Other examples include codes related to boarding home licenses and life insurance; a catch-all remedial scheme for any code violation that burdens municipal courts and increases costs for taxpayers; amusement center licenses; cat and dog breeding permits; billiard hall licenses; weed removal regulation; regulating cemeteries and burials, among many others that are already regulated by state law.

The lawsuit also highlights state codes that preempt city regulations, including Agriculture, Business and Commerce, Finance, Insurance, Labor, Natural Resources, Occupations, and Property codes.

“Cities don’t get to pick and choose which state laws they follow,” TPPF senior attorney Matthew Chiarizio said. “For too long, Dallas has piled unnecessary and duplicative regulations on its citizens. The Legislature has rightly preempted those rules, and this lawsuit is about protecting Texans’ freedom to live and work without being smothered by layers of needless local regulation.”

The lawsuit asks the court to declare that each ordinance listed in the complaint is preempted by the state legislature and void under the Texas Constitution. It also requests that the city be permanently banned from enforcing them and to pay for attorney fees.

City officials have said they won’t comment on pending litigation.