Texas Sues Brownsville Over Plastic Bag Tax

BROWNSVILLE, Texas (CN) — "Don't Mess With Texas," the state's motto for its anti-littering campaign, became ambivalent Wednesday when Texas sued Brownsville for enforcing a plastic-bag tax meant to cut down on garbage and pollution.

Attorney General Ken Paxton sued Brownsville, its Mayor Tony Martinez and three other city officials on Wednesday in Cameron County Court.

Brownsville, pop. 183,000, is on the Mexico border.

The City Commission passed the law in 2009. It requires stores to charge customers a $1 fee for unlimited plastic bags, and took effect in 2011, making Brownsville the first city in Texas to implement a plastic-bag tax. Stores that violate the ordinance can be fined up to $2,000.

City spokeswoman Roxanna Rosas told The Brownsville Herald in February that the tax, passed to reduce the amount of plastic bags littering the streets, beaches and sewer system, had generated $3.8 million since taking effect, about $71,000 per month.

Rosas said the money paid for sanitation trucks, street sweepers and landscaping projects.

Paxton claims in his lawsuit that Brownsville's tax violates the Texas Health & Safety Code, which states: "A local government or other political subdivision may not adopt an ordinance, rule, or regulation to assess a fee or deposit on the sale or use of a container or package."

There are a few exceptions to the law: Dry cleaners can still wrap clothes in plastic bags, grocery stores can give them to customers to wrap meat or frozen foods, veterinarians and pharmacies are also allowed to use them, according to the Herald.

Paxton seeks declaratory judgment that ordinance violates the law against charging a fee for a container or package and illegally increases the city's sales tax rate, and an injunction to stop the city from enforcing the tax.

This is the first time Texas Attorney General's Office has sued a city over a plastic-bag tax, a spokeswoman said in an email.

"No local government has the authority to violate Texas law just because it feels like it. Clearly, Brownsville is raising taxes on its citizens through this unlawful bag fee. The rule of law must be upheld, and state law is clear — bags may not be taxed," Paxton said in a statement.

Brownsville City Attorney Mark Sossi told Courthouse News that "abuse of the plastic bags was a big problem here" and praised city officials for addressing the issue with the tax.

"Brownsville's plastic bag ordinance has made the city a cleaner place," Sossi said in an email. "I remember that before the city enacted this ordinance, it was common to see plastic bags blowing around on the streets, in common areas, and floating in the resacas. .... The city disagrees strongly with the attorney general's assertions. The one dollar minimal plastic bag fee is a lawful fee and not an unlawful tax."

Resacas are horseshoe lakes that dot Brownsville. They were formed when the Rio Grande jumped its banks and carved a new course. Eventually, the old river beds silted in and became lakes.

Texas may have an unspoken incentive to keep plastic bags in use because they are made from petroleum, the state's economic lifeblood.

Brownsville isn't the only Texas city that has taxed plastic bags.

After the Dallas City Council in March 2014 approved a similar ordinance requiring retailers to charge 5 cents for each carryout bag, paper or plastic, Gov. Greg Abbott griped that such laws were "Californianizing" the state.

Dallas repealed the law in June 2015, a month after four plastic bag makers sued the city.

San Francisco became the first major city to ban plastic bags in 2007. Los Angeles County, Portland, Ore., Seattle and Washington, D.C. also ban plastic bags or tax them.

Plastic bags do not biodegrade, but break down into smaller and smaller pieces, eventually becoming a dust that can poison wildlife.

A study reported in the Sept. 30 issue of "Scientific Reports" found tiny plastic particles inside hermit crabs and other creatures that live on the sea floor at depths of up to 6,000 feet.

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