Texas

Constitutional Provisions

Texas’s Constitution allows any city with a population greater than five thousand to adopt a home rule charter. Tex. Const. art. XI § 5. The constitution further provides that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State . . .” Tex. Const. art. XI § 5(a).

Tex. Const. art. XI § 13(a): “Notwithstanding any other provision of this constitution, the legislature may by law define for all purposes those functions of a municipality that are to be considered governmental and those that are proprietary, including reclassifying a function’s classification assigned under prior statute or common law.”

Statutory Provisions

Although Texas’s constitution theoretically allows cities to adopt a home rule charter that grants significant local authority, the legislature has sharply limited that authority—particularly in recent years. The Local Government Code provides generally that any municipality “may adopt, publish, amend, or repeal an ordinance, rule, or police regulation that: (1) is for the good government, peace, or order of the municipality or for the trade and commerce of the municipality; and (2) is necessary or proper for carrying out a power granted by law to the municipality or to an office or department of the municipality.” Tex. Loc. Gov’t Code § 51.001. But a 2023 law—the Texas Regulatory Consistency Act (“TRCA” and called, by opponents, the “Death Star”¹ bill)—added the following language to the same code chapter: “Notwithstanding Section 51.001, the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.” Id. § 51.002. The same law also preempts city and county regulation of “conduct in a field of regulation that is occupied by a provision” of the state’s Agriculture, Business & Commerce, Finance, Insurance, Labor, Natural Resources, Occupations, and Property Codes. Tex. H.B. No. 2127 §§ 5–15 (2023). Moreover, under a separate provision of state law, the state maintains exclusive jurisdiction over regulations of greenhouse gas emissions. Tex. Health & Safety Code § 382.005(b–c).  

The Local Government Code contains separate sections describing more expansive home rule authority for each of the types of Texas municipalities, but it is not clear how courts will reconcile the apparent conflicts between those and the new section 51.002. See, e.g., id. § 51.012 (“[A type-A] municipality may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic.”); id.§ 51.032 (“The governing body of [a type-B] municipality may adopt an ordinance or bylaw, not inconsistent with state law, that the governing body considers proper for the government of the municipal corporation . . . [and] may take any other action necessary to carry out a provision of this code applicable to the municipality.”); id. § 51.072 (“[A home-rule] municipality has full power of local self-government . . . [and the] grant of powers to the municipality by this code does not prevent, by implication or otherwise, the municipality from exercising the authority incident to local self-government.”).

A Texas city with a population greater than 5,000 can adopt a home rule charter under Article XI, § 5 of the Texas Constitution as long as the charter does not contain “any provision inconsistent with the Constitution of [Texas], or of the general laws enacted by the Legislature of this State.” Courts interpreting this section have generally construed it as a broad grant of home rule powers to cities that operate under home rule charters:

It was the purpose of the Home-Rule Amendment, art. XI, § 5, and the enabling statutes to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.

Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948) (internal citation omitted); Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975) (“A city which operates under the Home Rule Amendment is empowered to adopt or amend its charter in any manner in which it may desire, consistent and in accordance with the state constitution and the general laws of this State.”).

Texas courts will attempt to construe potentially conflicting state and local law in a way that allows both to remain in effect, see Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993), but the state can still preempt a whole subject matter potentially available to legislate as long as the state expresses its intent to preempt that area with “unmistakable clarity.” See City of Floresville v. Nissen, 654 S.W.3d 11, 14 (Tex. App. 2022).

Express Preemption

Express preemption occurs when the state includes explicit preemptive language in state statutes. For example, Tex. Health & Safety Code § 361.0961(a)(1): “A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”

Field Preemption

Texas courts have not explicitly recognized field preemption as a doctrine that operates within state law, but they have concluded that “the legislature may, by general law, withdraw a particular subject from a home rule city’s domain.” Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex. 1991). Relatedly, when the legislature has done so, a local government may only regulate if its action is “ancillary to and in harmony with the general scope and purpose of the state enactment.” City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982) (“The entry of the state into a field of legislation, however, does not automatically preempt that field from city regulation; local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.”).

Conflict Preemption

Conflict preemption occurs when there is outright or actual conflict between state and local law. Texas courts asking whether state and local laws conflict assess whether a “reasonable construction leaving both in effect can be reached,” and emphasize that “both will be enforced if that [is] possible.” City of Beaumont v. Fall, 291 S.W. 202, 206 (Comm’n App. 1927). Courts concluding that only a portion of a state law is in conflict with state law may leave the remainder of the local law intact and enforceable. See BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 8 (Tex. 2016) (“[An] Ordinance is preempted only to the extent that it is inconsistent with state law . . . [and] any provisions that are preempted do not affect the validity of the remaining portions of the Ordinance or any other ordinances.”).

In recent years, the Texas legislature has adopted a wide variety of laws preempting local control over issues connected to climate change. The Texas Regulatory Consistency Act is a recent example of a sweeping measure to take control away from local governments on a range of topics—all “conduct in a field of regulation that is occupied by a provision” of the state’s Agriculture, Business & Commerce, Finance, Insurance, Labor, Natural Resources, Occupations, and Property Codes. The examples that follow include those preemption provisions in addition to several others:

Agriculture Law. Tex. Ag. Code § 1.004: “Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code.”

Greenhouse Gas Emissions. Tex. Health & Safety Code § 382.005(b–c): “To the extent not preempted by federal law, the state has exclusive jurisdiction over the regulation of greenhouse gas emissions in this state. A municipality or other political subdivision may not enact or enforce an ordinance or other measure that directly regulates greenhouse gas emissions.”

Climate Charters. Tex. Loc. Gov’t Code § 9.0045: “A municipality may not hold an election for voter approval of a proposed climate charter unless the legislature adopts a resolution approving the proposed climate charter.”

Building Electrification. Tex. Loc. Gov’t Code § 247.002(a): “A political subdivision may not adopt or enforce an ordinance, order, regulation, or similar measure that limits access to or use of an energy source or that results in the effective prohibition of infrastructure that is necessary to provide access to a specific energy source, including a wholesaler, retailer, energy producer, or related infrastructure, including a retail service station.”

Internal Combustion Engines. Tex. Loc. Gov’t Code § 247.003(a): “A political subdivision may not adopt or enforce an ordinance, order, regulation, or similar measure that directly prohibits or restricts the use, sale, or lease of an engine based on its fuel source.”

Natural Resources. Tex. Nat. Res. Code § 1.003: “Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code.”

Oil & Gas Infrastructure Siting. Tex. Nat. Res. Code § 81.0523(b): “An oil and gas operation is subject to the exclusive jurisdiction of this state. Except as provided by [limited exceptions in this statutory section], a municipality or other political subdivision may not enact or enforce an ordinance or other measure, or an amendment or revision of an ordinance or other measure, that bans, limits, or otherwise regulates an oil and gas operation within the boundaries or extraterritorial jurisdiction of the municipality or political subdivision.”

Carbon Dioxide Pipelines. Tex. Nat. Res. Code § 117.101(b): “Except as provided by [exemptions in this section] . . . a city may not adopt or enforce an ordinance that establishes safety standards or practices applicable to the pipeline transportation of hazardous liquids or carbon dioxide or hazardous liquid or carbon dioxide pipeline facilities that are subject to regulation by federal or state law.”

Real Property. Tex. Prop. Code § 1.004(a): “Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code.”

Oil & Gas Infrastructure. Tex. Util. Code § 121.202(a): “A municipality or a county may not adopt or enforce an ordinance that establishes a safety standard or practice applicable to a [natural gas] facility that is regulated under this subchapter, another state law, or a federal law.”

The cases below provide examples of how courts historically analyzed preemption questions that arise under Texas law, but these cases predate the Texas Regulatory Consistency Act adopted in 2023. Future litigation is likely to be significantly shaped by the TRCA’s provisions that preempt broad swaths of local authority.

Texas courts closely examine allegations that a local law conflicts with or is otherwise preempted by state law. They express some hesitation to interpret statutes in ways that create unavoidable conflicts—noting, for example, that “a city ordinance is presumed to be valid.” City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982). But the large number of clearly preemptive state laws means courts frequently invalidate conflicting ordinances. The cases below demonstrate how Texas courts balance the scope of municipal home rule authority with the state’s power to limit local governments.

• City of Laredo v. Laredo Merchants Association, 550 S.W.3d 586 (Tex. 2018): In this case the Texas Supreme Court held that a Laredo ordinance banning single-use plastic shopping bags was preempted by state law. Id. at 598. The ordinance forbade “any commercial establishment to provide . . . checkout bags to customers.” Id. at 589. The state law read that a “political subdivision may not . . . prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” Id. at 589 (quoting Tex. Health & Safety Code § 361.0961). The court concluded that by disallowing regulation “in a manner not authorized by state law” the legislature required even home rule cities to find an affirmative grant of authority to uphold their local ordinance—presented with none, the court held the state law preempted the ordinance. Id. at 598 (“By authorizing regulation only when municipalities are told how to permissibly regulate, the Act requires an express authorization.”).

• Dallas Merchants & Concessionaire’s Association v. City of Dallas, 852 S.W.2d 489 (Tex. 1993): This case concerned whether a local rule prohibiting alcohol sales within a certain distance of a residential zone was preempted by state law against ordinances that “impose stricter standards” on alcohol sellers than those imposed by the state itself. Id. at 489–90. The state law added that “[i]t is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state.” Id. at 491. The court concluded that because the legislature’s intent to be the exclusive regulator of how alcohol could be sold in the state was clearly expressed, a local law adding requirements around where those sales could take place was preempted. Id. at 492.

• BCCA Appeal Group v. City of Houston, 496 SW. 3d 1, 19 (Tex. 2016): In this case a group representing refineries challenged a local ordinance requiring, among several other provisions, that facilities generating air pollution within Houston must register with the City. Id. at 19. Relevant state law gave the Texas Council on Environmental Quality (TCEQ) authority to authorize air emissions by granting permits to facilities to do so, and specifically provided that any ordinance enacted by a city concerning air pollution “may not make unlawful a condition or act approved or authorized” by state law or TCEQ rules. Id.; see also Tex. Health & Safety Code § 382.113(b). Finding that a facility could have a valid state-issued permit allowing it to operate within the City’s jurisdiction and yet that operating under that permit would be unlawful under local law if the facility had not registered with the City, the court concluded that the local ordinance was preempted by state law. Id. at 21.

Other Relevant Cases

EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 754 (Tex. 2020) (“[I]f a statute is susceptible to two interpretations—one constitutional and the other unconstitutional—then the constitutional interpretation will prevail.”).

Texas Indus. Energy Consumers v. CenterPoint Energy Houston Elec., 324 S.W.3d 95, 103 (Tex. 2010) (“Absent an expression of intent regarding severability, the valid remaining portions of a statute remain enforceable if the invalidity of one portion ‘does not affect other provisions or applications of the [rule] that can be given effect without the invalid provision or application.’”).

City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982) (finding regulating mobile home siting a valid exercise of police power and noting that an “ordinance is presumed to be valid . . . [and] . . . the courts have no authority to interfere unless the ordinance is unreasonable and arbitrary a clear abuse of municipal discretion.”) (alteration in original).

Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975) (“[I]t is necessary to look to the acts of the legislature not for grants of power to [home rule] cities but only for limitations on their powers.”).

City of Beaumont v. Fall, 116 Tex. 314, 322 (Comm’n App. 1927) (“It has never been the intention of the people of this state to permit one city to enforce a law which is contrary to a general law governing other cities of the same class.”).

Recent and Ongoing Litigation

In 2023, Houston, San Antonio, and El Paso challenged the validity of HB 2127—titled the “Texas Regulatory Consistency Act” (TRCA) and nicknamed the “Death Star” bill by opponents pointing out that the Act vastly expands the state’s preemption of local measures.² The cities won an initial victory in trial court arguing that the measure effectively nullified the home rule provisions in the Texas Constitution, but the state appealed.

On July 18, 2025 the appellate court reversed the trial court’s decision, dismissing the plaintiff cities’ case without prejudice after concluding that the cities lacked standing to sue. Among other reasons for dismissing the case, the court faulted the plaintiffs for failing to plead which specific local laws would be preempted by the TRCA—demonstrating to the court that the cities could not identify a concrete and particularized injury. The court further concluded that any injuries the cities did have were not traceable to the state as a defendant, since the state had not threatened to sue the cities under the TRCA and the cities “made no allegation otherwise indicating that the State likely will sue.” Opinion at 15. On September 17, 2025 the plaintiffs moved for rehearing.

By resolving the case on standing the court left the cities without clear guidance on whether the TRCA is in fact constitutional, but the cities are likely to exercise extreme caution when considering potentially preempted local laws, particularly as private party litigation gets underway. On October 29, 2025, a group of private plaintiffs sued Dallas under the TRCA, alleging that 83 of the city’s ordinances are preempted by the state law. The action is seeking a declaratory judgment that the ordinances are invalid and to permanently enjoin Dallas from enforcing any of them. The case is Kyles et al. v. City of Dallas, No. 25-11423-467, in the 467th Judicial District Court of Denton County.

State law in Texas mandates that municipalities adopt the International Residential Code, National Electric Code, and International Building Code. See Loc. Gov’t Code §§ 214.212, .214, .216; see also SB 365 of 2001 § 3 (requiring municipalities to “establish rules and take other necessary actions” to implement the codes mandated by Texas law).³

Local governments may make amendments to the provisions of these codes provided only that they hold a public hearing on a proposed local amendment and adopt a local amendment by ordinance. See, e.g., Tex. Local Gov’t Code § 214.212(e). Amendments to these codes need not be more stringent than the statewide versions—a local government can enhance, diminish, or fully delete provisions of those codes as applicable within their jurisdiction.⁴

Texas has also adopted energy efficiency codes under the separate provisions of state law that codify the energy efficiency chapter of the international Residential Code (applicable to single-family construction) and the International Energy Conservation Code (applicable to all other construction) as statewide mandatory codes. Health & Safety Code § 388.003. Local amendments to these codes are permitted, but only in nonattainment areas (as established and defined by the U.S. Clean Air Act) and their surroundings (specific counties identified in Tex. Health & Safety Code § 386.001(2)), local amendments cannot be less stringent than the statewide codes. Id. § 388.003(e).

Despite the apparently broad authority of municipalities to adopt amendments to the Texas Building Codes and energy and energy efficiency codes, separate provisions of state law place limits on what cities can do in building codes. Cities may not pass rules or building code provisions that have the effect of banning natural gas in buildings. Tex. Util. Code § 181.903. Cities also may not restrict residential or small commercial consumers from installing solar equipment, though utilities can do so if they find restricting residential solar is necessary to support “reliability, power quality, or safety of the distribution system.” Tex. Local Gov’t Code § 229.101(b). And, under a bill specifically designed to give Texas residents flexibility to place solar canopies in the best position to generate power,⁵ cities in Texas may not use building codes to limit where residents can place solar pergolas. Tex. Local Gov’t Code § 214.221.

Cities also may not adopt rules that directly or indirectly limit the use of certain construction materials:

(a) Notwithstanding any other law and except as provided by Subsection (d), a governmental entity may not adopt or enforce a rule, charter provision, ordinance, order, building code, or other regulation that:

(1) prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building; or

(2) establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building.

Tex. Gov’t Code § 3000.002.

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Public Utility Commission of Texas (PUCT) regulates the state’s electricity markets and sets rates for utilities in the deregulated market. Alongside PUCT, the Electric Reliability Council of Texas (ERCOT) is an independent system operator charged with maintaining the overall flow of power across the state and maintaining generation. See 16 Tex. Admin. Code § 25.361.Natural gas infrastructure throughout the state is regulated by the Railroad Commission of Texas.

What authority, if any, do municipalities have over utilities? By statute, municipalities have authority to own and operate utilities. Tex. Local Gov’t Code § 552.001. Several operate municipal utilities, including for example San Antonio’s CPS Energy and Austin Energy. Texas municipalities also can set rates and control operations and services of utilities within the municipality unless the municipality surrenders its authority to the PUCT. Compare Tex. Util. Code § 32.001 (establishing PUCT jurisdiction over utilities in areas outside a municipality and areas in which a municipality has surrendered its jurisdiction) with Tex. Util. Code § 103.001 (“[T]he governing body of a municipality has exclusive original jurisdiction over the rates, operations, and services of a gas utility within the municipality . . .”) and Tex. Util. Code § 33.001 (“[T]he governing body of a municipality has exclusive original jurisdiction over the rates, operations, and services of an electric utility in areas in the municipality . . .”). Parties to a municipal ratemaking proceeding can appeal the city’s decision to the PUCT. Tex. Util. Code. § 33.051 (articulating one of several pathways through which municipal ratemaking can be appealed to the PUCT).

Can cities enter into franchise agreements with utilities? Texas municipalities are empowered to enter into franchise agreements and to charge franchise fees on investor-owned utilities that operate in the municipality’s right-of-way. Util. Code §§ 33.008, 39.456. Both gas and electric utilities are authorized to build infrastructure in city-owned rights of way but must do so “with the consent of and subject to the direction of the governing body of the municipality.” Compare Tex. Util. Code. §§ 181.005, .022 with Tex. Util. Code §§ 181.006, .023.

Does case law address whether the state public service law preempts local authority over utilities? Case law addressing the interplay between state public service law and local authority is sparse, and there appear to be no controlling opinions parsing the two from the Texas Supreme Court. Texas courts of appeals have provided mixed answers to comparable questions. Compare Gulf, C. & S. F. Ry. Co. v. White, 281 S.W.2d 441, 448 (Tex. Civ. App. 1955) (allowing a railroad to build in contravention of local zoning rules because the railroad was operating with “power of eminent domain by delegation from the State of Texas”), with Porter v. Sw. Pub. Serv. Co., 489 S.W.2d 361, 365 (Tex. Civ. App. 1972), writ refused NRE (Apr. 25, 1973) (“[A] city, in discharging the delegated police powers, does not usurp the [state’s] eminent domain authority . . . by requiring it to meet certain [construction] standards.”).

How can cities intervene in Public Utility Commission proceedings? PUCT regulations allow any party that has “a justiciable interest” in the outcome to intervene in a ratemaking proceeding. 16 Tex. Admin. Code § 22.103(b)(2).

Does the state have an obligation to serve statute? Yes, Texas utilities are subject to a duty to serve all customers under Tex. Util. Code § 38.001, providing that “[a]n electric utility and an electric cooperative shall furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and reasonable,” and under Tex. Util. Code § 186.002, providing that “[a] public utility is dedicated to public service. The primary duty of a public utility, including its management and employees, is to maintain continuous and adequate service at all times to protect the safety and health of the public against the danger inherent in the interruption of service.”

Has the state passed enabling legislation for community choice aggregation (CCA)? No, Texas has not passed enabling legislation for community choice aggregation.⁶

Texas Municipal League, Alphabet Soup: Types of Texas Cities (2017), https://perma.cc/S3W4-L9ZZ (explaining the specific characteristics of the types of municipalities categorized as “general law cities” under Texas law).

Michael B. Kent Jr., Public Utilities, Eminent Domain, and Local Land Use Regulations: Has Texas Found the Proper Balance?, 16 Tex. Wesleyan Law Rev. 29 (2009), https://perma.cc/QEF3-39M9 (describing the statutory and case law history of Texas’s approach to balancing public utility concerns with local control).

Texas law grants standing to “any person”—broadly defined to include individuals, business entities, governments, and agencies of virtually all types—to sue a local government or a local government official for violations of several broad preemption statutes. See Tex. Civ. Prac. & Rem. Code § 102.A.001. A plaintiff in such an action may receive their costs and reasonable attorney’s fees, and state law explicitly waives all types of governmental and qualified immunity as defenses to such an action. Id. at §§ 102A.002–.003.

Texas has passed several measures aimed at preventing state entities from investing in companies advancing environmental and social goals. These “anti-ESG” laws include:

• Chapter 809 of the Government Code, which directs state retirement funds to identify and potentially to divest from firms that boycott energy companies. See Tex. Gov’t Code § 809.053(d) (“If . . . the financial company continues to boycott energy companies, the state governmental entity shall sell, redeem, divest, or withdraw all publicly traded securities of the financial company.”).

• Similar legislation codified at Chapter 565 of the Insurance Code provides that “an insurer may not use an environmental, social, or governance model, score, factor, or standard to charge a rate different than the rate charged to another business or risk in the same class for essentially the same hazard.” Tex. Insurance Code § 565.005.