A legal challenge brought by the cities of El Paso, Houston, and San Antonio against a sweeping 2023 Texas law that limits local control was dismissed by a state appeals court on Friday, marking a major procedural victory for the state and keeping the controversial law in place — for now.
The law in question, House Bill 2127 — known by critics and supporters alike as the “Death Star bill” — was passed by the Texas Legislature and signed by Governor Greg Abbott last year. It went into effect on September 1, 2023, and significantly restricts the ability of cities and counties to pass local regulations that go beyond state law in certain areas such as labor, agriculture, and natural resources.
The three cities sued the State of Texas in 2023, arguing that the law was unconstitutional and an overreach into local governance. A district judge in Travis County agreed and declared the law unconstitutional. However, the judge did not issue an injunction, meaning the law still went into effect while the case moved through appeals.
On Friday, the Texas Third Court of Appeals reversed that lower court ruling — not on the constitutionality of the law itself, but on who the cities chose to sue. The court ruled that the State of Texas was not the proper defendant, because the law gives enforcement power not to the state, but to private individuals through civil lawsuits.
“No amount of repleading will show that the State of Texas is a proper defendant,” the court stated in its opinion. “We reverse the trial court’s final judgment and dismiss the Cities’ claims without prejudice for lack of subject-matter jurisdiction.”
Law Shifts Enforcement to Citizens
HB 2127 created a civil enforcement mechanism allowing private citizens — not state agencies — to sue local governments that enact ordinances allegedly in conflict with the state’s regulatory framework. This design played a key role in the court’s reasoning. Since the state is not charged with enforcing the law, the court found that it cannot be sued for its potential effects.
That procedural nuance allowed the appeals court to sidestep the deeper constitutional questions raised by the cities, such as whether the law infringes on home rule authority guaranteed to cities by the Texas Constitution.
No Concrete Harm, Court Says
The court also found that the cities failed to show how they had been harmed by the law. San Antonio and El Paso, the court noted, did not point to any specific ordinance being invalidated or at risk. Houston cited concerns that its “pay-or-play” health insurance ordinance might be preempted, but the court said it wasn’t clear how that amounted to a legal injury.
“In the absence of such a concrete dispute, the trial court’s declaratory judgment amounts to an advisory opinion,” the court said. “A court does not strike down a law as unconstitutional based on a hypothetical situation.”
Despite the lack of lawsuits so far under the new law, it has had a chilling effect. Some Texas cities have repealed or avoided passing ordinances that might conflict with state policy, fearing future litigation.
What’s Next?
The ruling leaves few immediate options for the cities. While they could appeal to the Texas Supreme Court, that may be a long shot. The state’s highest civil court is entirely Republican, and with the Third Court of Appeals already viewed by some conservatives as left-leaning — prompting the Legislature to create a new statewide appeals court for cases involving the state — a reversal seems unlikely.
Legal experts say future challenges to the law may need to come through actual enforcement cases, where a city is sued under HB 2127 and can argue the law’s constitutionality in the context of a specific dispute.
For now, the law remains in place — limiting local governments' ability to go beyond state regulations, and making Texas one of the most aggressive states in recent years in preempting local authority.
Key Takeaways:
HB 2127 restricts local governments from passing regulations in areas covered by state law.
The law is enforced through civil lawsuits by individuals, not by the state itself.
The court dismissed the cities’ lawsuit because the state is not directly responsible for enforcing the law.
No cities have been sued under HB 2127 yet, but some have changed or dropped ordinances in anticipation.
