SB2858 - Relating to state preemption of certain municipal and county regulation.

      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 coun [Text truncated for display. Full text available on LegiScan.]