Texas District Court Declares State Preemption Law Unconstitutional. What Now?

The legal battle continues between large cities and the State of Texas over state attempts to nullify local enactments on employment and other matters that exceed or conflict with state law.

The Texas Regulatory Consistency Act (or HB 2127), known by critics as the Death Star Bill, was scheduled to take effect September 1, 2023. The broadest reading of the law would arguably have nullified any local employment law that conflicted with or exceeded state law.  But the Act has been blocked, at least temporarily, by the ruling of a district court in Austin, Texas.

In the underlying lawsuit, the City of Houston, joined by San Antonio and El Paso as intervenors and informally supported by several other cities, alleged that HB 2127 violates the Texas Constitution in multiple ways, including that the law is unconstitutionally vague. On August 30, 2023, Travis County District Court Judge Maya Gamble agreed, declaring that HB 2127 in its entirety is unconstitutional – both on its face and as applied to the home rule provision of the constitution and local laws not otherwise preempted by the Texas Constitution. The judge noted that the apparent absence of a severability clause from the Act meant that no “provision can be given effect without the invalid provisions and application.”

The State of Texas appealed the decision immediately, but no briefs have been filed yet. The appeal process could take days, weeks, or months. Following determinations by the appellate court, the party that does not prevail likely will appeal to the Supreme Court of Texas.

What does this mean for Texas employers? The safest course at present would be to continue complying with municipal labor laws notwithstanding the Death Star Bill. While confusion about enforceability of the state law is compounded by the district court order finding unconstitutionality but failing to expressly enjoin it, the eventual outcome of this litigation is uncertain.  Even if the state prevails, there will still be the potential for further litigation by cities defending their affected laws on different legal grounds.  Employers subject to municipal laws that differ from state employment standards should continue to track this litigation and any enforcement actions related to it until the picture clears up.