Representative Flynn's Opinion Request Threatens Legality of City Bans
 

"I am happy that Texas Attorney General Greg Abbott today issued the opinion sought by my request," Flynn said.  "General Abbott determined that a court would likely find that a city cannot assess a fee on the sale or use of a single-use plastic bag.  He also found that if a factual inquiry determined that a city adopted a bag ban ordinance for solid waste management purposes, a court would likely conclude that such a ban would violate state law."

The opinion requested by Flynn pointed out that at least nine Texas cities have enacted bans on plastic bags and adopted fees on replacement bags in recent years.  The opinion request referenced Section 361.0961 of the Texas Health and Safety Code which states that: "a local government or other political subdivision may not adopt an ordinance, rule, or regulation to: (1) 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 ... or (3) assess a fee or deposit on the sale or use of a container or package."  Flynn asked Abbott to determine if the local laws violated the Health and Safety Code.

The opinion issued today by General Abbott concluded that:

• A court would likely conclude that Section 361.0961(a)(3) of the Texas Health and Safety Code prohibits a city from adopting an ordinance that assesses a fee on the sale or use of a single-use plastic bag; and

• A court would likely conclude that a city ordinance prohibiting or restricting single-use plastic bags is prohibited by Section 361.0961(a)(1) of the Health and Safety Code if the city adopted the ordinance for solid waste management purposes.   Whether a specific city's single-use plastic bag ordinance was adopted for such purposes will require a factual inquiry that is beyond the scope of an attorney general opinion.

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