Temperatures hovered comfortably in the mid 80s Thursday morning as members of a City Council committee discussed potential plans for protecting local construction workers from heat-related illness.
Construction industry leaders, labor experts and health care professionals had spent roughly six months crafting the recommendations under consideration, and Planning and Community Development Committee Chair Adriana Rocha Garcia (D4) was eager to move them forward before summer arrives in a city that last year experienced 59 days of triple-digit heat.
Looming over an effort that appeared to have the support of every member of the committee, however, is a potential new state law that city leaders worry could radically reduce their ability to protect workers, regulate natural resources and crack down on unfair business practices.
House Bill 2127 has been approved by the state House and Senate, and Gov. Greg Abbott is expected to sign it any day.
Crafted by state Rep. Dustin Burrows (R-Lubbock), the bill aims to create a statewide, uniform set of regulations for businesses, which Burrows says have been hurt by a patchwork of local rules.
Broadly speaking, the bill would achieve that goal by wiping out local governments’ ability to set rules beyond what the state already specifies on issues related to agriculture, business and commerce, finance, insurance, labor, occupations, property, local government and natural resources.
Thursday’s committee meeting offered a first glimpse at how HB 2127 might play out for cities that could soon be responsible for its implementation.
Required breaks and other heat-related mandates some council members want to create in San Antonio for construction workers are exactly the kind of regulations HB 2127 was intended to stop, after city-led efforts like paid sick leave ordinances became popular in recent years. Labor groups have labeled the pending legislation the “Death Star Bill” because they consider it so wide-ranging and powerful.
The bill’s supporters cite other progressive-led city initiatives HB 2127 would have also thwarted, such as bans on plastic bags, which other municipalities have sought to implement. The legal concept under which such laws are applied is known as preemption.
The legislation marks the latest incursion in a years-long effort by the Republican-dominated Texas Legislature to chip away at the ability of Democratic-led big cities to govern themselves.
Unlike narrower past efforts, however, city officials are not yet sure how far-ranging the effects of HB 2127 will be and how much of their past work will be undone.
“If the bill [becomes law] … [does] that mean that everything we’ve done [on this committee], including, for instance, proactive apartment inspection … would be out the door?” Rocha Garcia asked Assistant City Attorney Jameene Williams, who said she could not yet provide an answer.
Preemption on steroids
On Monday the Texas Legislature will end its every-other-year 140-day legislative session — an unusual construct designed to keep government small in a state that’s home to the world’s ninth-largest economy.
Of the 1,750 bills city officials said they were tracking this session, HB 2127, which had its first hearing in the House’s State Affairs Committee on March 15, quickly stood out to them as a top concern.
Though opponents of the bill initially believed the approach was too broad to become law, it quickly attracted support from major business groups like the National Federation of Independent Business, and Abbott signaled support for Burrows’ efforts at an NFIB luncheon in February.
It advanced from both chambers on largely party-line votes with two San Antonio representatives, Republicans John Lujan and Mark Dorazio, as sponsors.
Since HB 2127’s initial committee hearing, which featured testimonies from San Antonio, Houston and Dallas officials, begging lawmakers to use caution on such a dramatic change, proponents of the bill say it’s been tweaked to mitigate cities’ confusion and angst.
One amendment added during the Senate floor vote added language saying cities can recoup their legal fees if they’re sued for maintaining an ordinance in conflict with the law and the lawsuit is deemed frivolous. Another removed language saying city officials could be held liable for violations of the law, in addition to the municipalities.
Other amendments proposed by Senate Democrats aimed at labor protections failed.
The number of state codes that would be preempted by the bill has also changed, from six in the initial draft to a total of nine.
“As [with] most bills that are so controversial when they first get started, there was a little bit tweaking here and there,” said Rod Bordelon, a regulatory attorney and scholar for the conservative Texas Public Policy Foundation, which supports HB 2127. “But substantively, I think the bill as passed … is pretty closely related to what was filed originally.”
State law gives cities explicit authority over many issues within the codes the bill seeks to preempt — authority that cities would maintain even if the bill becomes law. For example, the local government code gives cities permission to regulate fireworks, zoning and law enforcement.
That means cities would still be able to regulate many issues within the nine codes the legislation preempts, but city attorneys would need to examine all new and existing ordinances on a case-by-case basis to ensure they wouldn’t violate the new law.
“It’s the subject matter within that code that we’d have to look at,” Williams told the council committee Thursday. “So it’s not an automatic preemption of all of our ordinances that fall under that particular code. We’d have to look at the substance of the ordinances.”
While city leaders say that’s an overwhelming burden on their resources, proponents of the bill say they’re simply shifting the burden of compliance to the city instead of businesses.
“If the City of San Antonio issues an ordinance and that seems to be in conflict with state law or other ordinances around the state, then [private businesses] are having to sit down with their lawyers and compliance specialists and figure out what do they need to do in each one of these jurisdictions,” said Bordelon.
Getting ahead of preemption
Amid much discussion about the preemption bill, San Antonio council members on Thursday were conflicted about how to move forward on protecting construction workers from heat-related mishaps — an issue they’ve been working on for more than a year. Rocha Garcia and then-Councilwoman Ana Sandoval asked for a task force to study heat-illness prevention measures the city could implement in April 2022.
Among the efforts the city is considering is an education campaign to inform workers of their rights. It’s also discussing a potential ordinance mandating 10-minute breaks every four hours of work on construction sites and on-site signage in English and Spanish, similar to existing ordinances in Dallas and Austin.
Councilwoman Teri Castillo (D5), a housing and labor activist who wants the ordinance to go even further, urged her fellow committee members to bring a proposal to the full council so workers could be protected during the hot summer months before HB 2127 would go into effect on Sept. 1.
“I do not believe that we should sit on our hands while workers continue to pass out on the job,” said Castillo, who suggested the ordinance should also include access to water, shade and the ability for workers to rest preemptively if they are feeling ill.
Councilwoman Rosie Castro (D7) agreed the council should move forward regardless of law.
“In September we may find that [the preemption law is] unconstitutional, and that our ordinance would stand,” Castro said.
Williams said the city attorney would provide legal guidance to council members on how the law might apply to the proposals they’re considering but added that the law’s vague nature will almost definitely end in a court’s interpretation.
HB 2127 states that any person or business harmed by a city ordinance in violation of the law can bring suit against the city. A successful plaintiff is entitled to injunctive relief and attorney’s fees, but no other damages.
The council committee ultimately voted 4-1 in favor of moving forward with the educational campaign, as well as asking staff to return with a proposed ordinance. Councilman John Courage (D9), cast the lone no vote.
If HB 2127 is signed by the governor, Courage said later, he hopes San Antonio will join forces with every other major city to mount a legal challenge “and see if we can get a wiser decision from the Texas Supreme Court.”
Mixed reviews from the business community
Some other members of San Antonio’s business community, including the San Antonio Chamber of Commerce, have sided with city leaders in questioning the bill’s broad approach. The San Antonio Hispanic Chamber of Commerce drew public backlash for splitting with the city and supporting it.
Rocha Garcia is both the daughter of a recently retired construction worker and a former vice president of communications for the Hispanic Chamber.
In an interview, she said she understands the importance of attracting business to the state but doesn’t believe cities’ effort to protect workers have hindered that in the way HB 2127’s supporters suggest. If it’s signed into law, the city may need to bring on additional legal help to navigate it, she said.
“[State leaders] boast that Texas has the fastest-growing economy,” Rocha Garcia said. “You’re telling me that we’re keeping business away, but yet we are still a very healthy economy. It just doesn’t make sense to me.”
While local business groups have clashed regularly in recent years with a City Council whose members care deeply about labor and the environment, San Antonio Chamber of Commerce interim President Dave Petersen said his group worries the law would create more confusion and legal hoops for businesses.
“We believe that municipal leaders don’t need to be in labor and employment regulation, but we do also recognize that our local leaders need to be able to regulate some important issues,” Petersen said. “…There could be extensive litigation on those areas that are not very clear, and that wouldn’t be in our best interest.”
