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Thursday, July 12, 2018 by Audrey McGlinchy

Texas usually fights Austin at the Capitol. Lately, the fight is in the courtroom.

The city of Austin has endured several legal jabs from the state in the past couple of months.

Recently, Texas Attorney General Ken Paxton stepped into a dispute over the makeup of the city’s Planning Commission. A week ago, the city of Austin announced it would no longer enforce its ban on single-use plastic bags after the Texas Supreme Court overturned a similar law in Laredo. In April, Paxton joined a lawsuit brought by business groups against Austin’s new paid sick leave rules.

A spokesperson confirmed that the city of Austin’s legal team has been busy lately and has “more cases involving the state than we historically have had.”

The state versus city narrative is not new in Texas, but typically that tale unfurls during the legislative session.

“I think it’s new in that (this fight is) going into the courtroom instead of just the halls of the Legislature,” said Mayor Steve Adler. Adler called Paxton’s involvement in the city’s Planning Commission “inappropriate.”

Texas Municipal League Executive Director Bennett Sandlin said he has also noticed a trend of the city-state fight entering the courtroom – but he sees it as simply as spillover from the Legislature.

“When you see success coming after cities in the statehouses, when that starts to catch hold, I think the next logical step is if you can’t beat them in the statehouse, go to court under the same theory,” said Sandlin. “These lawsuits are really an extension of what we’ve seen the last two sessions.”

In an op-ed in the Austin American-Statesman on Friday, Paxton decried the “lawlessness” of cities in Texas, citing city policies struck down in the past couple of years by court rulings or legislative action; for example, Austin’s background check requirements for ride-hailing companies that were pre-empted by a new state law last year.

When asked by email if he was hoping to hurry up the legislative pre-emption process by taking more of these cases against the city to court, Paxton’s office did not respond directly to the question. In addition to clarifying current cases against the city, a spokesperson wrote: “The Attorney General is focused on upholding the rule of law no matter what level of government is in question.”

Research suggests, at the very least, that state lawmakers are overriding local laws more often.

“The rise of pre-emption isn’t just a state by state issue, it’s definitely nationwide,” said Alex Jones, manager of the Local Democracy Initiative with the National League of Cities.

This year, the National League of Cities published an updated report on state pre-emption laws. In it, researchers looked at seven common laws passed by state lawmakers in the past couple of years to override city regulations, including paid sick leave and ride-hailing regulations. The National League of Cities found that only two states – Connecticut and Vermont – had not passed laws in 2017 overriding local rules across the most common topics.

Jones attributes a rise in pre-emption laws to two things: Overwhelmingly, Republicans are in power in statehouses while cities tend to have more liberal leaders, and cities are flexing their power to pass new policies.

“Cities are doing more than they have traditionally in order to solve problems in their communities,” said Jones.

This has led, said Sandlin, to a movement to reclaim the power of state governing bodies.

“I call it the Goldilocks form of government,” he said. “The federal government’s big and bad, cities are small and bad, and somehow state government gets it just right. And that can’t possibly be the case, of course, but that’s the trend.”

Photo by GABRIEL C. PÉREZ / KUT.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT.

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Key Players & Topics In This Article

Austin City Council: The Austin City Council is the body with legislative purview over the City of Austin. It offers policy direction, while the office of the City Manager implements administrative actions based on those policies. Until 2012, the body contained seven members, including the city's Mayor, all elected at-large. In 2012, City of Austin residents voted to change that system and now 10 members of the Council are elected based on geographic districts. The Mayor continues to be elected at-large.

Texas Legislature: The state’s legislative governing body composed of the House and Senate.

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