The Local Government Preemption Debate in Texas Isn’t Just About Cities

The framers of the U.S. Constitution gave the states an incredible amount of latitude to organize local levels of government and define the boundaries of jurisdictional authority under their control.

And while debates over the powers of local governments are nothing new, they’ve become especially pronounced in recent years in states like North Carolina, where the legislative furor over the H.B. 2 transgender “bathroom bill” and its repeal prompted an economic development backlash.

In Texas, progressives in major cities have regularly clashed with Republicans at the State Capitol on a variety of local governance issues, like sanctuary city policies, plastic bag fees, ride-booking services and fracking.

Gov. Greg Abbott, a conservative Republican who has happily signed various measures to limit the jurisdictional powers of localities since taking office, has made his views clear on the state’s intergovernmental supremacy. He recently went as far to say that he’s willing to try broad-based legislation to preempt cities on a variety of issues of authority, instead of incrementally.

As City Lab wrote in late March:

By promising to block local regulations, no matter their merit, he is outlining a policy of obstruction—a capital-P preemption to thwart liberal cities from passing legislation. It’s the latest in a series of escalating gestures by red-state governors and lawmakers to curtail the rights of their more-liberal cities.

But the preemption debate isn’t just about cities and the battle lines aren’t always neatly drawn along partisan divisions between Republican leaders who control the levers of state government and Democratic mayors and city council leaders.  

For some county leaders in conservative areas of the state, like West Texas, actions at the State Capitol are just as noxious to them as they are to local leaders in progressive-minded city halls.

That includes Senate Bill 2, which was approved last month by lawmakers in the upper chamber and if adopted, would curb the growth of property taxes at the city and county- level.

According to the Lubbock Avalanche-Journal:

The most impactful bills … came out of the Texas Senate just a week apart—when the [S]enate approved a bill meant to curb the growth of property taxes for cities and counties and then voted on a two-year budget that several area county judges say reduces state funding for services for which counties are forced to pay.

Put more simply: State lawmakers are “pushing unfunded mandates and then tying our hands on paying them,” Gaines County Judge Tom Keyes, a Republican, told the newspaper.

Some county leaders in rural West Texas, including Keyes, and others in non-urban jurisdictions elsewhere in the state are very much worried about whether their budgets can absorb the looming fiscal blows that will come from property tax reform in the state.

“We may, I fear, actually have counties reaching bankruptcy,” James Allison, general counsel for the County Judges and Commissioners Association of Texas, told the Avalanche-Journal. “I don’t say that lightly.”

The Texas Association of Counties has been vocal on the property tax preemption issue, pointing out how property taxes fund various county government functions which are also “unfunded mandates” handed down from the state.

That includes the high costs of indigent defense that counties cover compared to the state’s expenditures.

According to The Lufkin News:

In fiscal 2016, the state funded about $31.6 million of total statewide indigent defense costs, while counties contributed about $216.1 million — about 87 percent of the costs. County expenditures have increased 136 percent since 2001.

Angelina County spent about $458,500 for indigent criminal defense in 2016, and $164,720 was spent for court-appointed attorneys in Child Protective Services cases. According to Suiter, about $40,000 was reimbursed by the state. The state does not reimburse cases involving CPS.

Where do ordinary Texans stand on efforts by Republicans, including the governor, to preempt local government authority? That’s hard to say.

The Texas Monthly, which recently polled the sentiments of state residents on questions related to local government authority, recently published a feature on “The Demise of Local Control” in the Lone Star State, and observed:

As always, patterns in public attitudes inevitably get incorporated into the strategies of interest groups in state politics. The absence of deep-seated attitudes supporting a principle of “local control” gives organizations and interests promoting a stronger hand for state government room to provide scaffolding for state leaders’ impulses to overrule local decisions. If Republican voters think Uber and Lyft leaving Austin was just another instance of Austin liberals inhibiting free enterprise and innovation, the principle of local control won’t stop them from embracing statewide rule-setting by the Legislature. When Republican voters feel the pinch of rising property tax bills, they are that much more likely to favor the state limiting the locals’ ability to raise tax revenues without voter approval, all things being equal.

Abbott has his supporters in conservative ideological circles, and there’s not much stopping them at the State Capitol. They’re pressing forward, armed with strident language about where government authority in Texas lies.

“Local control is not a license for tyranny,” James Quintero, the local governance director at the conservative-leaning Texas State Policy Foundation, said in a statement. “Governor Abbott clearly understands that liberty—not local control—is the guiding principle that ought to direct Texas’ policymaking process. This proper perspective will be invaluable as the legislature tackles much-needed reforms in many areas where local governments have overreached.”

Stay tuned …