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The Brownsville Herald: Legislator raises challenge to bag ban laws

March 12, 2014

It’s been more than four years since the Brownsville City Commission voted to pass an ordinance restricting the provision of bags at point-of-sale to only those that are paper or reusable.


The ordinance, known colloquially as the “plastic bag ban,” went into effect Jan. 5, 2011, and ushered in an era during which shoppers within the city limits needed to provide their own bags or pay for reusable ones from stores.


But one Texas lawmaker has sent a letter to the Texas Attorney General’s Office questioning the legality of such bans, which he said have become policy in nine cities across the state. State Rep. Dan Flynn, R-Canton, said in a Feb. 27 letter to the AG’s office that he felt the bans appeared to be in “contravention of state law.”


Along with Brownsville’s ordinance, Flynn noted ordinances in South Padre Island, Laguna Vista, Austin, Fort Stockton, Freer, Kermit, Laredo and Sunset Valley in his letter, suggesting the policies may violate a section of the Texas Health and Safety Code.


None of the cities where bag ordinances are in place are in Flynn’s district, which lies east of Dallas.


Although Brownsville’s ordinance isn’t truly a ban — plastic bags are available if customers pay a $1 environmental fee — Flynn identified it along with cities that have prohibited the plastic bags altogether.


Through March 11, the city has collected more than $2.14 million in fees since collection began in January 2011.


Brownsville officials have spent about $1.35 million of that total in pursuit of sustainable living projects, including the city’s curbside recycling pilot program and planning for the Brownsville Historic Battlefield Hike and Bike Trail.


Flynn points to two lines in Section 361.0961 of the Health and Safety Code, which states the limitations of municipal governments.


The code reads “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.”


A subsequent point in the code states that the local government also cannot “assess a fee or deposit on the sale or use of a container or package.”


Flynn said in closing that he would like an opinion on the legality of the ordinances in place across the state and attached a copy of the statute he referenced.


While the unfavorable opinion of the Attorney General’s office on the ordinances would not be enough to strike them down, it would be a strong incentive for local governments to alter their ordinances to bring them into compliance.


“I think it depends on the strength of the opinion,” said Brownsville’s City Planning Director Ramiro Gonzalez, who has guided the language of many of the city’s ordinances.


“If it’s a strong one on the negative side, it would definitely affect the ordinance in place.”


A response isn’t expected immediately, since the letter was received by the AG’s Opinion Committee March 4, but the outcome of the deliberations in Austin could have a direct impact on Brownsville’s role in leading the way toward plastic bag bans.


“We were one of the leaders in the effort,” Gonzalez said. “We were the pioneers.”


Edinburg and McAllen have been among cities to consider plastic ban bags after Brownsville’s ordinance went into effect, and the success of the ban in Austin inspired some debate in Dallas about putting a ban in place there.


This isn’t the first time plastic bag bans have been in peril, however, as a bill was proposed during the last regular session in Austin that sought to nullify the bans statewide.


The bill died without the House considering it, but the new legal challenge to the bans will require a response of some sort from the state’s top law office.


Regardless of the outcome, Gonzalez said he feels the ordinance has served a great purpose in Brownsville.


“I think the bag ban in Brownsville has been positive,” he said. “There obviously is some environmental benefit to not having plastic bags in Brownsville.”


Gonzalez also suggested he felt that, after three years of enforcement, residents had grown accustomed to the requirement.


“My general take on the subject is that people have gotten used to it now,” he said. “I know, from a personal standpoint, I remember my bags now.”


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