Texas Lawmaker Requests Bag Ban Opinion From Attorney General Abbott

Mar 7, 2014

State Rep. Dan Flynn, R-Canton, says several members of the Texas Retailers Association have requested he find about the legality of some Texas city’s efforts to ban the use of plastic shopping bags.

Flynn is hoping to discover whether plastic bag bans violate sections of the state’s Health and Safety Code:

"Well it’s a health issue -- they want you to use these cloth bags that get so nasty and dirty," Flynn said. "Why in the world would government get involved in something like this? And then, of course, the retailers are getting beat up over this."

Flynn said it was after the Texas Retailers Association approached his office that he requested a legal opinion from Attorney General Greg Abbott about such city ordinances.

"They (Texas Retailers Association) are being harassed and contacted by a lot of businesses and a lot of individuals," Flynn said.

Based on its interpretation, one of those options might be a section of the Texas Heath Code that says a city may not restrict the use or sale of a container or package not authorized by state law. 

It also states that a city government cannot assess a fee for use of those containers or package, which is language that was used in the Texas Retailer Association’s lawsuit against the City of Austin when it enacted a ban on plastic bags in 2013.    

Since then the city of San Antonio, as well as a few smaller cities in Northeast Texas, are considering similar ordinances.

Health and Safety Code:

Sec. 361.0961. RESTRICTIONS ON AUTHORITY OF LOCAL GOVERNMENT OROTHER POLITICAL SUBDIVISION. (a) A local government or other political subdivisionmay not adopt an ordinance, rule, or regulation to:(1) prohibit or restrict, for solid waste management purposes, the sale or use of acontainer or package in a manner not authorized by state law;(2) prohibit or restrict the processing of solid waste by a solid waste facility,except for a solid waste facility owned by the local government, permitted by the commission forthat purpose in a manner not authorized by state law; or(3) assess a fee or deposit on the sale or use of a container or package.(b) This section does not prevent a local government or other political subdivision fromcomplying with federal or state law or regulation. A local government or other politicalsubdivision may take any action otherwise prohibited by this section in order to comply withfederal requirements or to avoid federal or state penalties or fines.(c) This section does not limit the authority of a local government to enact zoningordinances.