Two years ago, a heated debate in the Texas Legislature resulted in the passage of a controversial law aimed at limiting local government authority. Known as the “Death Star bill,” the Texas Regulatory Consistency Act restricted localities from imposing regulations that went beyond state law in several key areas. Now, State Sen. Brandon Creighton (R-Conroe), a chief architect of the 2023 law, is back with a new proposal that seeks to strengthen the state’s authority even further, targeting local regulations in the fields of elections and criminal law.
The Texas Regulatory Consistency Act, originally coined the "Death Star bill" by critics, created what is known as field preemption, which prevents municipalities and counties from implementing regulations that exceed or conflict with state law in nine areas of regulation. The law, passed with some bipartisan support in the House, immediately sparked significant opposition, particularly from larger, more liberal cities. Legal challenges soon followed, with several blue localities filing lawsuits over the law’s constitutionality.
In 2024, a Travis County district judge ruled that the law was unconstitutional. However, despite the ruling, the law remained in effect as the state quickly appealed the decision. The legal battle continues, with oral arguments scheduled for April 23 before the Third Court of Appeals in Austin.
Undeterred by the ongoing legal disputes, Sen. Creighton is pushing forward with a new bill aimed at bolstering the preemption law. His Senate Bill 2858 seeks to expand the reach of the 2023 law by adding two more sections of state code: the Elections Code and the Penal Code. Creighton’s bill also seeks to clarify and strengthen the legal framework of field preemption, making it explicit that municipalities and counties are prohibited from adopting, enforcing, or maintaining any ordinance, order, or rule that regulates conduct in areas already addressed by state law.
“This legislation is about ensuring that the state has the authority to regulate consistently and effectively across all of Texas,” Creighton said in a statement. “We cannot allow local governments to create a patchwork of conflicting regulations that disrupt the uniformity of the law.”
One of the key features of Senate Bill 2858 is its attempt to address the primary legal challenge posed by the law's opponents: whether the state can enforce field preemption or whether it is limited to conflict preemption, which only applies when a local regulation directly conflicts with a state law. Creighton’s bill defines field preemption in statutory language, aiming to eliminate ambiguity and prevent courts from invalidating the law on technical grounds.
The proposed legislation would also empower the Texas Attorney General’s office to investigate and sue local governments for alleged violations of the preemption law, even without a direct complaint from an affected party. Currently, only individuals living in the same locality as the offending regulation can initiate legal action. Under the new bill, the burden of proof would be on the locality to demonstrate that their regulations comply with state law.
As an additional penalty, while a lawsuit is under review, the Texas Comptroller would withhold monthly tax remittances from the affected locality. Furthermore, the locality would be prohibited from adopting a property tax rate above the "no-new-revenue" rate, which limits tax increases to the rate of inflation and population growth. If a court rules that a locality’s regulation violated the preemption law, it would face even more severe penalties, including being barred from receiving state grants and being restricted from raising property taxes for the next five years. Additionally, any withheld tax revenue would be deposited into the state’s general fund.
The 2023 law, and now Creighton’s new bill, have created significant political divides. Last year, Creighton worked closely with House Speaker Dustin Burrows (R-Lubbock) to pass the original preemption law through the Texas Senate. However, the law’s passage did not come without controversy. Several Democratic legislators, particularly from larger urban areas, voiced strong opposition, and Burrows faced considerable pushback from his own caucus, making it difficult to secure some votes.
The City of Houston, one of the major plaintiffs against the 2023 law, has not yet issued a public statement regarding Creighton’s new proposal.
As the battle over the preemption law continues to unfold in court and in the state legislature, both local governments and state lawmakers are gearing up for another showdown. Advocates for local control argue that the state is overstepping its bounds by imposing one-size-fits-all regulations on diverse communities. On the other hand, supporters of Creighton’s efforts argue that such measures are necessary to ensure consistent and effective governance across Texas.
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