On July 18, 2025, the Texas Third Court of Appeals in Austin dismissed a constitutional challenge to the Texas Regulatory Consistency Act[1] (the “Act”) on standing grounds, declining to address whether the Act’s sweeping preemption of local regulations across multiple sectors is constitutionally permissible. Texas v. City of Houston et al., No. 03-23-00531-CV. The ruling is particularly notable for its clarification of standing requirements under Texas law and its affirmation that enforcement of the Act rests exclusively with private parties—not the State.

Background

Passed in 2023, the Texas Regulatory Consistency Act (nicknamed the “Death Star Bill”) aims to standardize regulations across Texas by preempting municipal ordinances in eight major areas: agriculture, business and commerce, finance, labor, natural resources, occupations, property, and insurance. The law’s enforcement mechanism allows any “person”—defined broadly to include corporations, individuals, and other entities—harmed by a local ordinance to bring a civil action for declaratory and injunctive relief following a 90-day notice period.

In anticipation of the Act’s effective date, the cities of Houston, San Antonio, and El Paso filed a pre-enforcement lawsuit under the Uniform Declaratory Judgments Act. They argued that the Act violates the Texas Constitution’s Home Rule Amendment, functions as an improper constitutional amendment, contains vague and undefined language, and unlawfully delegates legislative authority to the judiciary. The trial court agreed and declared the Act unconstitutional. The State appealed.

The Court of Appeals’ Decision

The Third Court of Appeals reversed, holding that the cities lacked standing and, as a result, the court lacked subject-matter jurisdiction. The decision rested on two primary findings:

• Cities’ Alleged Harms Deemed Too Speculative. The court concluded that the cities failed to allege a sufficiently concrete and particularized injury to support standing. Their claims—such as the administrative burden of reviewing local ordinances for compliance, the potential cost of repealing or amending those ordinances, and the risk of future litigation—were deemed too speculative and generalized. Texas law requires plaintiffs to demonstrate an actual or imminent injury affecting a legally protected interest. Because the cities did not identify a specific ordinance that was currently in effect and subject to imminent enforcement or preemption under the Act, the court found no real, immediate controversy. Absent such specificity, the alleged harms amounted to hypothetical future possibilities, insufficient to establish injury-in-fact.
• No Enforcement Connection with the State. Even assuming the cities could establish an injury-in-fact, they failed to show that their alleged harms were fairly traceable to the State—the named defendant. Under Texas law, standing requires not only a concrete injury but also a causal connection between that injury and the defendant’s conduct. Because the Act delegates enforcement authority exclusively to private parties, and the State neither initiates enforcement actions nor threatens to do so, the court found no “enforcement connection” between the State and the challenged provisions. Without such a connection, the cities could not satisfy the traceability requirement necessary for standing.

Because the court found the cities lacked standing, it did not reach the underlying constitutional claims.

Implications for Businesses and Local Governments

• Regulatory Status Quo Preserved: With the Act still in effect, municipalities must continue to evaluate their ordinances for consistency with the statute’s preemption provisions.
• Private Enforcement Pathway: Businesses facing compliance costs or threatened enforcement of conflicting local ordinances are well-positioned to establish concrete injury and clear traceability to support standing in court.
• Strategic Risk Assessment: Local governments should anticipate legal challenges when enacting or enforcing ordinances in any of the eight regulated fields. Businesses, in turn, should review local regulatory requirements and evaluate whether any conflict with the Act exists. Where local rules impose financial, administrative, or operational burdens, entities should consider seeking declaratory or injunctive relief and seek recovery of attorneys’ fees and costs.

Looking Ahead

The decision in Texas v. City of Houston highlights the rising trend of state preemption and the strategic use of private enforcement mechanisms to shield laws from direct constitutional challenges. By delegating enforcement of the Texas Regulatory Consistency Act to private parties rather than the State, the Act complicates municipalities’ ability to mount facial or as-applied challenges before enforcement actions arise. The court noted that the cities might cure their lack of standing by identifying a specific ordinance facing imminent preemption, but the Act’s private enforcement structure makes the State an elusive defendant. Consequently, the Act’s constitutionality is more likely to be tested when private litigants sue to enforce preemption, allowing municipalities to raise constitutional defenses in response. Thus, the Act’s validity will likely be scrutinized through defensive litigation rather than pre-enforcement suits.

[1] Texas Regulatory Consistency Act, 88^th Leg., R.S., ch. 899, 2023 Tex. Sess. Law Serv. 2873 (TRCRA).