Keeping Local Systems in Line: Has the Death Star Reached Its Ultimate Power?
On Friday, July 18, 2025, the litigation challenging what has been colloquially dubbed the “Death Star Bill” (AKA the Texas Regulatory Consistency Act; herein “TRCA”) met a fatal blow. The Third Court of Appeals of Texas dismissed without prejudice the City of Houston’s (“COH”) lawsuit seeking, under the Uniform Declaratory Judgments Act (“UDJA”), a judgment declaring TRCA unconstitutional, along with the claims of intervenors, the City of San Antonio and the City of El Paso (“Intervenors”), for want of subject matter jurisdiction. See State v. City of Houston, 2025 WL 2014935. Specifically, the court found the complaining cities lacked standing, first because of a failure to sufficiently plead injury-in-fact, and then, even if repleading could cure such deficiency, the court found that any injury that could be alleged would be conclusively untraceable to the sole named defendant, the State of Texas (“Texas”).
Cities have been anxiously watching the progression of the case since it was filed just a little over two years ago, on July 3, 2023, as a pre-enforcement suit prior to TRCA’s September 1, 2023 effective date. A collective municipal sigh of relief was audible when, on August 30, 2023, the Travis County 345th District Court granted COH’s motion for summary judgment and declared TRCA unconstitutional. See City of Houston v. State of Texas, 2023 WL 5618634.
However, Texas promptly appealed, requesting the higher court to reverse the trial court and dismiss the suit either because of lack of subject matter jurisdiction or on the merits, suggesting the court find each of COH’s claims facially invalid. State v. City of Houston 2023 WL 845670 at *2. The Third Court of Appeals granted Texas’ first wish without reaching the second. See generally State v. City of Houston, 2025 WL 2014935. (The court also declined to address the third prong of standing, redressability, finding its analysis of the first two prongs dispositive. Id. at *16.)
The court examined the harms asserted by COH and the Intervenors, noting that there was only one specific example of an ordinance that was identified as likely to be found unenforceable under TRCA (COH’s pay-to-play program), and even that was presented more as an example than a particularized harm affecting “an actual local regulation.” Id. at *2. To attack the statute broadly as unconstitutional is not enough, the court clarified, holding that “to prevail on a facial [constitutional] challenge, the plaintiff must first prevail on the as-applied challenge.” Id. at *9.
The court then delved into the traceability element standing, focusing on the requirement that there be some enforcement connection between the defendant and the challenged statute. Id. at *12-16.
There are two primary points that party cities and other cities grappling with the potential effects of TRCA should take away from the opinion: (1) It is likely a city will have to be sued under the private cause of action scheme of TRCA before that city is found to have standing to challenge the law; and (2) that plaintiff is unlikely to be Texas.
Though an appeal is still an option (and a probability), the disposition of this case may embolden some would-be TRCA plaintiffs, giving cities the opportunity to withstand an assault on their standing, but forcing them to spar with a probably private litigant rather than taking on the Goliath of Texas, which means a very different approach will need to be considered. However, while the battle was lost today, it remains to be seen whether Texas cities have overestimated their chances of blowing up the Death Star Bill.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
