What happens to Denton’s fair housing and employment rules if state limits local regulation?

The bill, authored by Republican Rep. Dustin Burrows and promoted by business lobbying groups such as the National Federation of Independent Business, prohibits local governments from passing or enforcing ordinances governing business and commerce, agriculture, labor, finance and property. Known as a preemption bill, under it cities could no longer assume they have the purview to address, via local regulation, matters not governed by the state Legislature.

Proponents of the sweeping bill have touted it as a boon for business owners, saying the need to keep up with a patchwork of local regulations across the state has tarnished Texas’ reputation as being business-friendly.

“We’ve seen a trend with cities beginning to pass ordinances to regulate private employment practices like hiring, scheduling, wages, benefits or even regulating products like using gas-powered motors, so you’re hurting a lot of these folks that are just trying to operate a business and feed their families,” Annie Spillman, Texas state director at the NFIB, told the Denton Record-Chronicle in April.

“The bill will streamline all of those regulations at the state and federal level, where they really frankly have always been.”

But critics say it’s an attempt by the majority-conservative Legislature to limit the power of Democratic cities, at the expense of residents. A measure passed by the Dallas City Council in 2015 requiring employers to give water breaks to construction workers, along with “right to cure” ordinances active in Dallas and Austin, which give renters more time to catch up on back rent before being evicted, could be void under the bill.

With evictions soaring across the state amid rampant inflation, advocates warn that stripping local governments of the right to respond to the housing crisis through eviction-prevention measures will contribute to homelessness.

“We need all levels of government innovating to help keep renters and low-income people housed and to ensure that they have access to affordable housing and decent conditions,” said Ben Martin, research director at the nonprofit housing advocacy group Texas Housers. “This bill does the opposite of that — it takes away many of the tools that local governments would use to approach this problem, so low-income tenants are going to suffer as a result of this.”

In Denton, parts of the city’s nondiscrimination ordinance could be called into question. The ordinance prohibits discrimination in housing, employment and public accommodations based on race, color, national origin, age, religion, disability, sex, sexual orientation and gender identity.

Though HB 2127’s author said on the House floor that the bill is not aimed at nondiscrimination ordinances, there’s no language in the measure stating as much, which could leave the city open to lawsuits.

“The language of the bill itself certainly leaves open at least the possibility that fair housing protections at a local level are in fact preempted,” Martin said.

“So it’s helpful for establishing legislative intent that the bill’s author stated that and the sponsor in the Senate also stated that [they’re not], but if that’s the case, we would hope that they would have been able to point to something specific in the bill that speaks to that or accepted an amendment to the bill that makes that explicit, which they did not.”

The bill’s broad language leaves local governments with two options: Comb through every ordinance to try to determine which ones are preempted by the bill, or wait for legal challenges to arise. Private citizens can sue cities to fight ordinances that go beyond state law, but they cannot win damages apart from attorney fees.

If city attorneys try to get ahead of potential conflicts, though, it’s unclear how successful they would be.

“I don’t have confidence that attorneys’ offices are going to have much more insight into what isn’t preempted prior to cases hitting the courts than anyone else does, so it’s not even clear that their analysis would be accurate before the courts weigh in,” Martin said.

Denton’s nondiscrimination ordinance has something else working in its favor: Most of the protected classes included are also covered by state or federal law. The federal Fair Housing Act prohibits refusing to rent or sell housing, or otherwise making it unavailable, because of a person’s race, color, religion, sex, gender identity or sexual orientation, familial status or national origin. Employer laws enforced by the U.S. Equal Employment Opportunity Commission also cover the same classes, with the addition of age, pregnancy and disability.

“Since we’re in line with these other legislative acts, we’re going to direct the complainant to go down the channels for state or federal action anyway, so it’s like, wait, is this actually overturned?” Denton City Council member Brian Beck said.

Though the matter hasn’t officially been discussed during a council session, staff and elected officials have been keeping tabs on the bill as it has made its way through the Legislature.

“I don’t yet know what avenues may be available to challenge this, whether by individual cities or through the Texas Municipal League, but the distrust this expresses in the level of government that is closest to the people is shameful,” council member Paul Meltzer said.

Mayor Gerard Hudspeth and other members of the council did not respond to requests for comment about how HB 2127 could affect Denton.

The last day for Abbott to sign or veto bills is June 18. If the bill becomes law, how cities including Denton respond will depend on the direction — and creativity — of local leadership.

“There are very few cities of any population that want to support this because the Legislature isn’t nimble enough to respond to local conditions,” Beck said.

“I think there’s going to be some opportunities that cities — not just Denton, but all across the state — will take to figure out: How can I accomplish the goals that I have, and still maintain the sort of local flexibility and control that the authors of this legislation clearly don’t understand the importance of?”