Is Texas Empowering Texas Cities?
If you have been reading our firm blogs recently or just watching the local news here in our part of Texas, you know our state elected officials met this summer in the 85th Legislative session to write more laws; and write they did. At last unofficial count by me, there are 213 new laws on the books in Texas. Our firm practices municipal law representing Texas cities. Our clients as well as all Texas cities must comply with many new state-imposed mandates or controls in a wide array of areas; including drone usage, tree removal and planting, regulation of seeds, electrician’s fees, car towing and so on.
Ironic since both the current and previous governor continually bemoan the overreach of federal government control, yet assert control over Texas cities and their citizens. Earlier this year our governor mentioned a “broad-based ban on regulations at the local level unless and until certain standards are met,” and went on to say the country is not called the “United States of Municipalities,” at a luncheon for the Texas Conservative Coalition Research Institute. Whether you agree with the governor’s ideology is your call, but what demands attention is the extent to which state government controls Texas cities.
A new law that has caught my attention, and that of the rest of the world, controls not only how a city does business, but with whom they do business, and further seeks to control the political beliefs of companies with which they do business. Texas cities may have an additional limitation on their city contracts, although the new law may be geared to only state agencies.
Texas House Bill 89 effective September 1, 2017 provides no state agency or city may enter contracts with a company for goods or services unless the contract contains a written verification from the company that it (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. This law is aimed at the Boycott, Divestment and Sanctions (BDS) movement, which puts economic and other non-violent pressure on Israeli companies and companies that work with Israel. The ACLU, calls these laws a “legislative assault” on the right to boycott, and contends the Texas law “is leveraging vital government funds to suppress one side of a prominent public debate”.1
Unfortunately, in light of the new law a Texas city added the written verification to an application for grants to help rebuild homes and businesses damaged by Hurricane Harvey. City Council stepped in and removed the provision, but only after the story hit the worldwide internet. ACLU Texas Legal Director Andre Segura called the requirement “an egregious violation of the First Amendment” and said it was reminiscent of “McCarthy-era loyalty oaths requiring Americans to disavow membership in the Communist Party and other forms of ‘subversive’ activity.”2
Texas and a few other states have taken a political stance, and by creating HB 89, Texas is enforcing its ideology regarding this topic, and mandating businesses in Texas that engage in commerce with Texas cities agree and follow the mandate. The larger issue is that of control and the economic impact of such control. Laws written by elected officials inevitably control not only our individual behavior, but the way we do business, how cities within Texas are run, and certainly how cities govern. Shouldn’t Texas cities be able to exercise their powers as they see fit to build a thriving community that can economically flourish without restriction and control?
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. Information about our municipal law practice can be found here.