Bans on those single-use plastic bags, like is being pushed by San Antonio City Councilman Cris Medina, may be illegal, 1200 WOAI news reports.
State Representative Dan Flynn has formally requested an Attorney General's opinion on whether bag bans, which are currently in place in nine Texas cities and are being aggressively pushed in San Antonio, violate an eighties-era portion of the Texas Health and Safety Code which forbids cities from 'restricting the use or charging a fee for the use of any container or package.' The law was passed to prevent any of those 'bottle and can deposit laws,' which are in place in other states, from being instituted by Texas cities.
"There is a statute which has been in place for some time in the Health and Safety Code, which we think prohibits cities from banning plastic bags," Ronnie Volkening, the President of the Texas Retail Association, told 1200 WOAI news.
Following an outpouring of opposition to his proposal from retailers, business groups, and even from environmental organization, Medina withdrew his bag ban proposal for further input. But it is expected to emerge at City Hall again, possibly as early as next week. Sources tell 1200 WOAI news that city officials are strongly lobbying for a bag ban, saying that it would help cut down on trash.
City staffers say stray plastic bags account for fully 9% of the total litter collected, and efforts to cut down on that litter by aggressive recycling programs at retail stores have not worked.
But Volkening says the state law is clear.
"We do believe that if you do look at the state statue, the law does appear to pre-empt this kind of activity by the city," he said.
The Texas Constitution stresses that state laws override local municipal statutes. It was the idea of State Primacy which resulted in the New Braunfels can ban being thrown out by a judge. In a similar case, the judge ruled that state laws which give the state authorities to regulate what happens on rivers meant that the New Braunfels municipal ordinance banning certain containers from the Comal and Guadalupe Rivers was unenforceable.