Paxton sues Brownsville over fee on plastic bags

_{*Correction appended}

_{This story has been updated throughout.}

Texas Attorney General Ken Paxton is wading into another fight over local control — this one about plastic bags at certain retailers.

The Republican on Wednesday sued the city of Brownsville over its $1 per-transaction fee on plastic and other one-time use bags offered at grocery stores and certain other businesses, started in 2011 to cut down on waste, calling it an “illegal sales tax.”

“Clearly, Brownsville is raising taxes on its citizens through this unlawful bag fee,” Paxton said in a statement. “The rule of law must be upheld, and state law is clear — bags may not be taxed.”

Brownsville City Attorney Mark Sossi did not immediately respond to a request for comment. But a city website disputes the tax argument. "The fee is not actually a tax because it is simply being used to dissuade people from using plastic bags and promote environmental efforts," the website says.

Plastic bags have become a flashpoint in a roiling debate over local control that has also touched on immigration, oil and gas drilling, and ride hailing, among other issues. 

The lawsuit, filed in Cameron County, is Paxton’s first attempt to thwart city efforts to curb waste by charging for bags or banning them. He joins the Texas Public Policy Foundation, the powerful conservative group, in that broad effort.

Paxton’s challenge comes two months after a state appeals court struck down a plastic bag ban in Laredo, a decision that city is appealing to the Texas Supreme Court.

Austin, Fort Stockton and Port Aransas are among several other Texas cities that have sought to regulate bags to reduce waste.

City officials have offered a host of reasons for such policies, including keeping storm drains from clogging.

Brownsville began its bag policy in 2011. It collects about $71,000 per month in bag fees, totaling nearly $3.8 million through January of this year, according to the Brownsville Herald.

Those funds have paid for city beautification projects among a host of other items, including garbage trucks and street sweepers, according to the newspaper.   

In announcing the lawsuit, Paxton described the policy has a $1 per-bag fee and "buck-a-bag." But Brownsville's $1 "environmental fee" applies to each transaction, meaning the use of any number of bags during a sale would cost $1. Many businesses have simply phased out plastic bags, leaving reusable ones as customers' only option — and meaning they do not charge a checkout fee. 

Paxton's challenge is at least his second against a local government in two months. In August, he sued Waller County over its ban on guns at its local courthouse. 

Read related Tribune coverage here:

• The highest criminal court in Texas said Wednesday it will not hear Ken Paxton's appeal of securities fraud charges, putting the attorney general on the path to a trial in the coming months. 
  

• The Texas Legislature has become the court of last resort for companies and industries fighting local regulations in the state's cities and counties. And for those interests, Austin can be a very favorable venue for appeals.

• A state appeals court has struck down a plastic bag ban in Laredo in a high-profile fight over local control that could ultimately impact similar laws in other Texas cities.

Disclosure: The Texas Public Policy Foundation has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Correction: An earlier version of this story, using information circulated by Texas Attorney General Ken Paxton's office, inaccurately described Brownsville's $1 per-transaction fee. It is not a $1 per-bag fee.