Bill Text: TX SB2858 | 2025-2026 | 89th Legislature | Comm Sub

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Bill Title: Relating to state preemption of certain municipal and county regulation.

Sponsorship: Partisan Bill (Republican 3)

Status: (Engrossed - Dead) 2025-05-27 - Placed on General State Calendar [SB2858 Detail]

Download: Texas-2025-SB2858-Comm_Sub.html

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By: Creighton, et al. S.B. No. 2858
(Bell of Montgomery)

A BILL TO BE ENTITLED
AN ACT
relating to state preemption of certain municipal and county
regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) the state has historically been the exclusive
regulator of many aspects of commerce, trade, elections, and
criminal justice in this state;
(2) in recent years, several local jurisdictions have
sought to establish their own regulations of commerce, trade,
elections, and criminal justice that are different than the state's
regulations; and
(3) the local regulations have led to a patchwork of
regulations that apply inconsistently across this state.
SECTION 2. The purpose of this Act is to provide additional
statewide consistency by returning sovereign regulatory authority
powers to the state where those powers belong in accordance with the
Texas Constitution, including Section 5, Article XI, of that
constitution.
SECTION 3. This Act:
(1) may not be construed to prohibit a municipality or
county from building or maintaining a road, imposing a tax, or
carrying out any authority expressly authorized by statute;
(2) may not be construed to prohibit a home-rule
municipality from providing the same services and imposing the same
regulations that a general-law municipality is authorized to
provide or impose;
(3) does not affect the authority of a municipality or
county to conduct a public awareness campaign; and
(4) does not affect the authority of a municipality or
county to repeal or amend an existing ordinance, order, or rule that
violates the provisions of this Act for the limited purpose of
bringing that ordinance, order, or rule in compliance with this
Act.
SECTION 4. Chapter 102A, Civil Practice and Remedies Code,
is amended by adding Subchapter A, and a heading is added to that
subchapter to read as follows:
SUBCHAPTER A. PRIVATE ACTION
SECTION 5. Sections 102A.001, 102A.002, 102A.003,
102A.004, 102A.005, and 102A.006, Civil Practice and Remedies Code,
are transferred to Subchapter A, Chapter 102A, Civil Practice and
Remedies Code, as added by this Act, and amended to read as follows:
Sec. 102A.001. DEFINITION. In this subchapter [chapter],
"person" means an individual, corporation, business trust, estate,
trust, partnership, limited liability company, association, joint
venture, agency or instrumentality, public corporation, any legal
or commercial entity, or protected or registered series of a
for-profit entity.
Sec. 102A.002. LIABILITY FOR CERTAIN REGULATION. Any
person who has sustained an injury in fact, actual or threatened,
from a municipal or county ordinance, order, or rule adopted or
enforced by a municipality or county in violation of any of the
following provisions or a trade association representing the person
has standing to bring and may bring an action against the
municipality or county:
(1) Section 1.004, Agriculture Code;
(2) Section 1.109, Business & Commerce Code;
(3) Section 1.023, Election Code;
(4) Section 1.004, Finance Code;
(5) Section 1.006, Health and Safety Code;
(6) [(4)] Section 30.005, Insurance Code;
(7) [(5)] Section 1.005, Labor Code;
(8) [(6)] Section 229.901, Local Government Code;
(9) [(7)] Section 1.003, Natural Resources Code;
(10) [(8)] Section 1.004, Occupations Code;
(11) Section 1.08(b), Penal Code; or
(12) [(9)] Section 1.004, Property Code.
Sec. 102A.003. REMEDIES. (a) A claimant is entitled to
recover in an action brought under this subchapter [chapter]:
(1) declaratory and injunctive relief; and
(2) costs and reasonable attorney's fees.
(b) A municipality or county is entitled to recover in an
action brought under this subchapter [chapter] costs and reasonable
attorney's fees if the court finds the action to be frivolous.
Sec. 102A.004. IMMUNITY WAIVER. Governmental immunity of a
municipality or county to suit and from liability is waived to the
extent of liability created by this subchapter [chapter].
Sec. 102A.005. NOTICE. A municipality or county is
entitled to receive notice of a claim against it under this
subchapter [chapter] not later than three months before the date a
claimant files an action under this subchapter [chapter]. The
notice must reasonably describe:
(1) the injury claimed; and
(2) the ordinance, order, or rule that is the cause of
the injury.
Sec. 102A.006. VENUE. (a) Notwithstanding any other law,
including Chapter 15, a claimant may bring an action under this
subchapter [chapter] in:
(1) the county in which all or a substantial part of
the events giving rise to the cause of action occurred; or
(2) if the defendant is a municipality, a county in
which the municipality is located.
(b) If the action is brought in a venue authorized by this
section, the action may not be transferred to a different venue
without the written consent of all parties.
SECTION 6. Chapter 102A, Civil Practice and Remedies Code,
is amended by adding Subchapter B to read as follows:
SUBCHAPTER B. ATTORNEY GENERAL ENFORCEMENT
Sec. 102A.051. DEFINITION. In this subchapter,
"no-new-revenue tax rate" means the no-new-revenue tax rate
calculated under Chapter 26, Tax Code.
Sec. 102A.052. ATTORNEY GENERAL INVESTIGATION AND ACTION.
(a) The attorney general may investigate an alleged violation of a
law described by Section 102A.002 by a municipality or county.
(b) The attorney general may bring an action for injunctive,
declaratory, or mandamus relief against a municipality or county if
the attorney general determines after conducting an investigation
under Subsection (a) that the municipality or county violated a law
described by Section 102A.002.
(c) Notwithstanding any other law, including Chapter 15,
the attorney general may bring an action under this section in:
(1) the county in which all or a substantial part of
the events giving rise to the cause of action occurred; or
(2) if the defendant is a municipality, a county in
which the municipality is located.
Sec. 102A.053. EFFECTS OF PENDENCY OF ACTION. (a) During
the pendency of an action brought under Section 102A.052, with
respect to a municipality or county defending the action:
(1) the comptroller shall withhold payment of any
money due to the municipality or county under Section 321.502 or
323.502, Tax Code;
(2) the municipality or county may not adopt an ad
valorem tax rate that exceeds the municipality's or county's
no-new-revenue tax rate;
(3) the municipality or county may not adopt a budget
that exceeds the total expenditures of the budget under which the
municipality or county is operating at the time the attorney
general brings the action under Section 102A.052; and
(4) the municipality or county may not receive state
grant funds and any pending application for such funds shall be
denied.
(b) Section 109.004(a)(1), Local Government Code, does not
apply to a municipality if the comptroller is withholding payments
from the municipality in accordance with Subsection (a)(1).
(c) Notwithstanding Section 120.002, Local Government Code,
a county may not hold an election under that section if the
comptroller is withholding payments from the county in accordance
with Subsection (a)(1).
(d) Notwithstanding Subsection (a)(4), a municipality or
county may receive state grant funds for grants provided for the
purpose of:
(1) responding to a disaster declared under Chapter
418, Government Code, if:
(A) for a municipality, the municipality is
located in a county or a county adjacent to a county that includes
an area specified in the disaster declaration; and
(B) for a county, the county or a county adjacent
to the county includes an area specified in the disaster
declaration; or
(2) providing financial assistance to a municipal
police department, sheriff's department, constable's office,
district or county attorney's office, fire department, municipal or
county jail, or other municipal or county department providing law
enforcement or emergency response services.
Sec. 102A.054. ACTION PROCEDURES. (a) A municipality or
county defending an action brought under Section 102A.052 has the
burden of proof to establish that the municipality or county
complied with the law that is the subject of the action.
(b) The trial court shall set an action brought under
Section 102A.052:
(1) for an initial hearing not later than the 30th day
after the date the municipality or county defending the action was
served with process for the action; and
(2) for a trial on the merits not later than the 90th
day after the date the municipality or county defending the action
was served with process for the action, unless:
(A) the municipality or county and the attorney
general agree to a later date; and
(B) the court determines that holding trial at a
later date is in the interest of justice.
Sec. 102A.055. APPELLATE JURISDICTION; EXPEDITED APPEAL.
(a) The Fifteenth Court of Appeals has exclusive intermediate
appellate jurisdiction of an action brought under Section 102A.052.
A party must appeal the action not later than the 30th day after the
date the judgment is signed.
(b) An appellate court shall expedite an appeal of an action
brought under Section 102A.052.
Sec. 102A.056. RESOLUTION OF ACTION IN FAVOR OF ATTORNEY
GENERAL. (a) If the attorney general prevails in an action brought
under Section 102A.052:
(1) the municipality or county defending the action
may not, during the five fiscal years following the year in which
the judgment becomes final:
(A) adopt an ad valorem tax rate that exceeds the
municipality's or county's no-new-revenue tax rate; or
(B) receive state grant funds; and
(2) the court issuing the final judgment resolving the
action shall provide in the judgment that the state is entitled to
recover from the municipality or county defending the action a
penalty equal to the balance of the suspense account maintained for
the municipality or county under Section 321.501 or 323.501, Tax
Code, as applicable, that exists on the date the judgment is signed,
less the amount the comptroller may retain under Subsection (b) of
this section.
(b) Except as provided by this subsection, the comptroller
shall, on receipt of a copy of the final judgment in an action
brought under Section 102A.052, deposit the balance of the suspense
account maintained for the municipality or county defending the
action under Section 321.501 or 323.501, Tax Code, as applicable,
as of the date the judgment is signed to the credit of the general
revenue fund. The comptroller may retain in the suspense account
maintained for the municipality or county an amount not to exceed
five percent of the balance of the suspense account as of the date
the judgment is signed for the purpose of making refunds for
overpayments to the suspense account or redeeming dishonored checks
and drafts deposited to the credit of the suspense account. Not
later than the fourth anniversary of the date the comptroller
retains an amount in a suspense account under this subsection, the
comptroller shall deposit the balance of that retained amount, if
any, to the credit of the general revenue fund.
(c) Section 109.004(a)(1), Local Government Code, does not
apply to a municipality subject to a final judgment in an action
brought under Section 102A.052 for six state fiscal years following
the date the judgment is signed.
(d) Notwithstanding Section 120.002, Local Government Code,
a county may not hold an election under that section if the county
has been the subject of an adverse final judgment in an action
brought under Section 102A.052 before the sixth anniversary of the
date the judgment is signed.
Sec. 102A.057. RESOLUTION OF ACTION IN FAVOR OF
MUNICIPALITY OR COUNTY. If a municipality or county prevails in an
action brought under Section 102A.052, the comptroller shall
immediately send to the municipality or county any balance of the
suspense account maintained for the municipality or county under
Section 321.501 or 323.501, Tax Code, as applicable, being held
under Section 102A.053(a)(1) as of the date the final judgment
resolving the action is signed, including any interest that accrued
on the balance of the suspense account during the period the balance
was withheld.
SECTION 7. Chapter 1, Election Code, is amended by adding
Section 1.023 to read as follows:
Sec. 1.023. PREEMPTION. Unless expressly authorized by
another statute, a municipality or county may not adopt, enforce,
or maintain an ordinance, order, or rule regulating conduct in a
field of regulation that is occupied by a provision of this code.
An ordinance, order, or rule that violates this section is void,
unenforceable, and inconsistent with this code.
SECTION 8. Chapter 1, Health and Safety Code, is amended by
adding Section 1.006 to read as follows:
Sec. 1.006. PREEMPTION. Unless expressly authorized by
another statute, a municipality or county may not adopt, enforce,
or maintain an ordinance, order, or rule regulating conduct in a
field of regulation that is occupied by a provision of this code.
An ordinance, order, or rule that violates this section is void,
unenforceable, and inconsistent with this code.
SECTION 9. Section 1.08, Penal Code, is amended to read as
follows:
Sec. 1.08. PREEMPTION. (a) No governmental subdivision or
agency may enact or enforce a law that makes any conduct covered by
this code an offense subject to a criminal penalty. This subsection
[section] shall apply only as long as the law governing the conduct
proscribed by this code is legally enforceable.
(b) Unless expressly authorized by another statute, a
municipality or county may not adopt, enforce, or maintain an
ordinance, order, or rule regulating conduct that is otherwise
prohibited by a provision of this code. An ordinance, order, or
rule that violates this subsection is void, unenforceable, and
inconsistent with this code.
SECTION 10. Subchapter B, Chapter 102A, Civil Practice and
Remedies Code, as added by this Act, applies only to a cause of
action that accrues on or after the effective date of this Act.
SECTION 11. Every provision, section, subsection,
sentence, clause, phrase, or word in this Act, and every
application of the provisions in this Act to every person, group of
persons, or circumstances, are severable from each other. If any
application of any provision in this Act to any person, group of
persons, or circumstances is found by a court to be invalid,
preempted, or unconstitutional, for any reason whatsoever, then the
remaining applications of the Act to all other persons and
circumstances shall be severed and preserved and shall remain in
effect. All constitutionally valid applications of the provisions
in this Act shall be severed from any applications that a court
finds to be invalid, preempted, or unconstitutional, because it is
the legislature's intent and priority that every single valid
application of every statutory provision be allowed to stand alone.
The legislature further declares that it would have enacted this
Act, and each provision, section, subsection, sentence, clause,
phrase, or word, and all constitutional applications of the
provisions of this Act, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this chapter were to be declared invalid,
preempted, or unconstitutional.
SECTION 12. The Texas Supreme Court has exclusive and
original jurisdiction over a challenge to the constitutionality of
this Act or any part of this Act and may issue injunctive or
declaratory relief in connection with the challenge.
SECTION 13. This Act takes effect September 1, 2025.