Denton Fracking Litigation: Commentary on Home Rule Authority and Preemption

Which laws of the State must a city ordinance comply with in order to be a permissible exercise of Home-Rule authority?


      I discussed briefly, in part 4 of my series on the Denton Fracking Litigation, the City's authority to legislate pursuant to the Home-Rule Amendment of the Texas Constitution (Art. XI sec. 5). The pertinent provision provides that "...and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State...."
      The question, one of constitutional import in the Denton Fracking Litigation, becomes the meaning of the phrase "inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State."
      Presenting a uniquely interesting problem is the Texas Administrative Code ("TAC"). Containing sixteen (16) titles covering a vast array of industries, the Administrative Code is a comprehensive listing of rules, regulations, and policies implemented by State actors pursuant to grant of legislative authority. The grant of authority to the Agencies is, by virtue of being an "act of the Legislature of this State" undoubtedly a "law of the State." The question becomes: Are the subsequent actions adopting rules, regulations, and policies, by those acting pursuant to a legislative grant of authority, also "laws of the State" even though no legislative act accompanied their enactment?
      Enactments of regulations contained in the TAC are generally by grant of authority and subject to the Administrative Procedures Act and published in the Texas Register. Analysis of the case precedent citing Art.XI section 5 fails to provide guidance with regard to whether the Administrative Code provisions are "laws of the State." The plain language of the constitution, including the phrase enacted by the Legislature, would appear to answer the question in the negative. Administrative Code procedure, to the extent that their enactment is by grant of legislative authority, and not an act of the legislature, are not "general laws of the State."                   HOWEVER, the author recognizes the potentially endemic problem in the above reading of the Constitutional provision. If cities are allowed to disregard, by passing ordinance pursuant to their home-rule authority, enactments by administrative agencies, the potential for mass confusion and conflict with regard to which rules apply where is great. IS it possible that the RRC and/or TCEQ regulations will be viewed as a "floor" for regulations, with municipalities able to enact more stringent regulation? Yes, it's possible, but the challenges facing a regulatory scheme of that nature are legion.
      The fundamental question becomes this: Are laws enacted by the Legislature sufficiently different from laws enacted by grant of authority from the Legislature so that the two must be given different treatment with regard to the conflicts analysis when determining the limits of a City's Home Rule authority? The plain text of the Constitutional provision tends to imply that is exactly the case. Whether SCOTX will rule on the question, or how, remains to be seen.
      In the past, provisions of the Local Government Code, the Government Code, the Health and Safety Code, the Transportation Code, the Alcoholic Beverage Code, the Utilities Code, the Clean Air Act, and the Clean Water Act have all been invoked to invalidate an inconsistent action taken by a municipality pursuant to its home-rule authority. Neither the Administrative Code nor the Natural Resources Code have ever been the basis of a Court's preempting a city's use of its home-rule authority. The City of Denton is in territory litigated rarely.
      Ultimately, the "simple" answer to the conflicts of local law question is to allow for the City's exercise of home-rule authority to create a "ceiling" on regulation, while the existing TAC provides a "floor" for minimum regulation. In this manner, the City may, consistent with its home-rule authority, pass ordinance resulting in more regulation, but could not remove regulation put in place by administrative agency. While this could prove nightmarish for businesses seeking to conduct activity, it is the most plausible reading of the plain text of the homerule amendment.

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