Texas lawmakers look to courts as they make new run at bag bans


Possible Texas Supreme Court case could provide clarity on bag bans, says state rep.

Austin has made fighting legislation to thwart city bag bans a priority.

Two years ago, libertarian-minded lawmakers convening at the Capitol were gunning to take down bag bans enacted in cities such as Austin.

Now, after several sessions of foundering legislation, they’re hoping for relief from the courts.

At a session of a downtown Austin public policy conference on Thursday titled “The Californiazation of Texas: Plastic Bag Bans,” one of those lawmakers, state Rep. Drew Springer, R-Muenster, suggested a possible Texas Supreme Court case might provide the clearest chance for opponents of city bag bans.

The title of the session hosted by the conservative Texas Public Policy Foundation appeared inspired by a speech then-Gov.-elect Greg Abbott gave at the same policy confab in 2015.

“Texas is being Californianized and you may not even be noticing it,” Abbott had said. “It’s being done at the city level with bag bans, fracking bans, tree-cutting bans. We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model.”

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The Legislature two years ago quashed a decision by Denton voters to ban fracking within their city limits, but failed to roll back bag bans.

The bans on single-use bags were aimed at curbing litter and driven by other environmental concerns. Conservatives, with the support of the bag industry, have argued the Legislature must step in to eliminate the prohibitions as an affront to individual and economic liberty.

Lawmakers uncomfortable with wading into issues involving local government helped thwart the bills; they were assisted last session by an odd-bedfellows group calling itself Local Control Texas, which was composed of Central Texas environmentalists, workers rights groups and Republicans from rural areas and small cities.

But in August a state appeals court tossed out Laredo’s ban on store-provided checkout bags. The ruling, by a San Antonio-based court, applied to the 32 South Texas counties in the court’s district, but it has no immediate impact on similar bans outside the district, including Austin and Sunset Valley.

But all sides have appealed the ruling to the all-Republican Texas Supreme Court, hoping for broader clarity.

“We’re looking for the Supreme Court to see it repealed once and for all,” said Springer, who failed to get a floor vote on his measure in 2013.

In its ruling, the 4th Court of Appeals said Laredo’s bag ban was pre-empted by a state law that says cities cannot “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package.”

Store-provided bags, the court ruled, are containers under the law.

New legislation

Still, lawmakers will make another run at the measure.

State Sen. Bob Hall, R-Rockwall, who won election as part of a tea party wave in 2014, has filed Senate Bill 103, which authorizes a business to provide a bag “made from any material” at the point of sale. The measure would also bar a city from adopting or enforcing a regulation “that purports to restrict or prohibit a business from, require a business to charge a customer for, or tax or impose penalties on a business for providing to a customer at the point of sale a bag or other container made from any material.”

Similar Senate measures in 2015 — by Hall and state Sen. Craig Estes, R-Wichita Falls — never gained traction. But those Senate bills were not filed until March, relatively late.

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In a sign of little interest from House leadership in 2015, a measure filed in the House authored by state Rep. Matt Rinaldi, R-Irving, never got a committee hearing, a key step in moving a bill forward.

Altogether, at least a dozen Texas cities have enacted some sort of bag ban or implemented a bag fee.

Austin’s bag ban, implemented in 2013, is designed to cut down litter and the amount of waste sent to area landfills. The ordinance doesn’t expressly impose a bag fee, though some retailers charge customers for bags.

A 2015 city-commissioned study declared that Austinites use nearly 200 million fewer plastic bags annually than they did before a plastic bag ban.

No retailers have been given penalties or fines, Austin Resource Recovery spokeswoman Emlea Chanslor said.

Among Austin’s legislative priorities heading into this session is to “protect Austin residents’ right to govern themselves and work with their city government to adopt and enforce ordinances that address the health, safety and public welfare of the community” including the city’s rules on single-use bags, according to language adopted by the City Council in October.

Austin’s bag ban has survived a series of legal challenges.

The Texas Retailers Association, for example, backed out of a lawsuit against Austin’s ban.

The City Council of Texas?

The battle has been joined on other fronts.

In October, Texas Attorney General Ken Paxton sued the city of Brownsville, which ordered an environmental fee of $1 per transaction when plastic bags are provided to shoppers.

Paxton argued the fee is an illegal sales tax and should be banned.

The move against Brownsville “is part of a very disturbing trend by state officials to take away the ability of Texans to decide at the local level what is best for their community and their neighborhood,” Bennett Sandlin, executive director of the Texas Municipal League, which represents cities, said at the time.

At the policy conference Thursday, Muenster said the bag issue “was not the most pressing” at the Legislature, though he claimed it would carry by roughly 60 percent if it ever reached the House floor.

“Is the state Legislature going to become the City Council of Texas?” asked Robin Schneider of Texas Campaign for the Environment, which supports bag bans like Austin’s.

But Phil Rozenski, an officer at Novolex, which manufactures plastic bags and packaging material, said it amounts to “regulation at any cost.”

He found sympathy in the audience.

“I’m tired of the micromanaging,” said Terri Hall, who advocates for conservative causes. “Speaking as a mom and as a consumer,” she said, plastic bags were convenient for handling things like dirty clothes.

The Texas Supreme Court could agree to hear an appeal on the Laredo ruling the first half of this year.

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