Texas AG Thinks Bag Bans May Be Illegal

DALLAS (CN) - Texas Attorney General Greg Abbott says municipal bans on single-use plastic bags may violate state law, throwing into question bans passed in several cities, including Dallas, Austin, Laredo and Brownsville.

State Rep. Dan Flynn, R-Canton, asked in February for Abbott's nonbinding opinion on whether the bans are legal under the Texas Health and Safety Code.

In an Aug. 29 letter , Abbott drew a distinction between total bans on single-use plastic bags and partial bans that impose fees on their use.

Dallas approved a 5-cent per bag fee that will begin next year. Brownsville has imposed a much heftier $1 per-bag fee.

Austin imposed a complete ban , which brought a lawsuit by the Texas Retailers Association. Laredo has imposed a complete ban, as well.

The controlling law is the Solid Waste and Disposal Act, which prevents cities from banning "for solid waste management purposes, the sale of use of a container or package in a manner not authorized by state law; [or] assess a fee or deposit on the sale or use of a container of package."

This results in two questions: whether a single-use plastic bag qualifies as a "container or package" under the law, and if so, if a ban is for "solid waste management purposes."

"The act does not define 'container or package,'" Abbott said in his letter. "Undefined terms in a statute are given their ordinary meaning unless a different or more precise definition is apparent from the term's use in the statute's context. The common understanding of the word 'container' is a 'receptacle for holding goods.' Also relevant to the question is the common understanding of 'bag,' which is a 'flexible container that may be closed for holding, storing or carrying something.' Based on the common understanding of these terms, a court is likely to conclude that a single-use plastic bag is a container within meaning of the law."

However, determining what qualifies as "solid waste management purposes" is more difficult. Abbott said it is conceivable that bans target the generation of solid waste, which the bags would most likely become, but he cites ordinances from Freer and Laguna Vista that exist for other reasons. The Freer ordinance mentions bags as being hazardous to wildlife on ranch land, while the Laguna Vista ban mentions hazards to marine life.

"Determining whether a city adopted an ordinance for solid waste management purposes will require a factual inquiry into the intent of the governmental body," Abbott wrote. "Such factual inquiries are beyond the scope of an attorney general opinion."

Abbott said he cannot determine whether any of the specific ordinances are illegal, as a result. He advised that total bans adopted for "solid waste manage purposes" are probably illegal.

Regarding partial bans, Abbott was more definite. He said the plain language of the law bans cities from assessing fees.

"The prohibition on fees or deposits is not limited to instances when the assessment is for solid waste management purposes," Abbott wrote. "Because a court is likely to conclude a bag is a container ... a court would also likely conclude that a city is prohibited from assessing a fee on the sale or use of a replacement bag."

In justifying its partial ban, Dallas City Council members said they wanted to promote "a culture of clean."

"The city of Dallas desires to protect the natural environment, the economy, and the health of its residents," the ordinance states. "The improper disposal of single-use carryout bags has a negative impact on the environment by contributing to unsightly ugliness on the streets, sidewalks, trees, bushes, vacant lots, city parks, waterways, reservoirs and shorelines that is detrimental to the quality of life of residents, the property values of homeowners, and the tourism industry."

The littering requires hundreds of volunteer hours to remove from trees, lots and roadways, the city said.

Flynn said his request has more to do with perceived abuse of power than with the use of the bags.

"It's not about Austin; it's all about state authority and the power grab by some cities over state law. That's just about the easiest way to say it," Flynn said in March.

Follow @davejourno

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