The short answer: probably.
On Friday, Attorney General Greg Abbott issued an opinion stating that a court would likely find municipalities “enact[ing] bans on plastic bags and adopt[ing] fees on replacement bags” to be in violation of state law. The AG’s opinion concludes that such ordinances run afoul of two particular provisions of the Health and Safety Code.
The laws in question are found in section 361.0961 of the Health and Safety Code which states:
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.
While neither the terms “container or package” are defined in the text, the AG’s opinion suggests that the common understanding of those words could reasonably be construed to include single-use plastic bags. Given that single-use plastic bags likely fall within the definition of container or package, the opinion finds that those ordinances enacted with the intent of managing “solid waste,” which single-use plastic bags will eventually become, conflict with section 361.0961(a)(1).
Municipal ordinances that assess a plastic bag fee also run afoul of the Code, in a much more direct way. The opinion states: “The plain language of subsection 361.0961(a)(3) prohibits a political subdivision from adopting an ordinance that ‘assess[es] a fee or deposit on the sale or use of a container or package.’” And unlike the potential violation of section 361.0961(a)(1), the prohibition of plastic bag replacement fees is not limited to instances of “solid waste management,” but is instead much broader.
Undoubtedly, there is still much legal wrangling to come on this issue, but the Attorney General’s recent opinion is a good sign that freedom and personal choice may win the day yet.