By Nubia Reyna | The Rider
The Texas Attorney General’s office and City of Brownsville have agreed to temporarily halt proceedings in the state’s lawsuit against the municipality’s bag ban fee.
In a letter dated Oct. 14, both parties agreed to “temporarily suspend, toll and hold in abeyance without sanction, penalty or obligation to any party, any and all case flings (sic), discovery and applicable procedural deadlines in the above referenced case from October 14, 2016 to December 14, 2016.”
Brownsville City Attorney Mark Sossi and Associate Deputy Attorney General Andrew D. Leonie signed the agreement.
The agreement, titled Rule 11, gives both parties an opportunity to resolve the matter.
On Oct. 12, Attorney General Ken Paxton filed suit against the city, Brownsville Mayor Tony Martinez, City Manager Charlie Cabler, Public Health and Wellness Director Arturo Rodriguez and Finance Director Lupe Granado III, alleging that Brownsville’s $1 environmental fee charged to customers who request plastic or other non-reusable bags provided by a business establishment violates section 361.0961 (a)(3) of the Texas Health & Safety Code, which prohibits such fees.
The lawsuit also alleges:
–the environmental fee is an illegal sales tax adopted in violation of the Texas Tax code;
–the plastic bag ordinance’s in position of a $1 tax on all plastic and non-reusable bags, in addition to Brownsville’s 2 percent tax rate, means that Brownsville’s tax rate exceeds the statutory minimum of 2 percent;
–because the plastic bag ordinance is inconsistent with Texas statutes, it violates Article 11, Section 5 of the Texas Constitution.
The state asks that the court declare the plastic bag ordinance null and void under Chapter 37 of the Civil Practices and Remedies Code. It also asks that:
–the court prohibits the defendants from enforcing the ordinance; and
–a full trial on the merits and, after the trial, a permanent injunction against further enforcement of the plastic bag ordinance.
The Rider requested an interview with Leonie, but Jennifer Speller, office manager of the AG’s Communications Division, said they are not commenting on the matter. As of today, Sossi could not be reached for comment.
The Brownsville City Commission approved the plastic bag ban ordinance on Sept. 23, 2010, and it took effect on Jan. 1, 2011.
City Finance Director Lupe Granado said the city collected fees totaling $876,530 in Fiscal Year 2014 and $982, 703.64 in FY 2015.
Granado said that although “we still have not closed the accounting period for the Fiscal Year 2016,” the amount collected is $934,381.08.
According to the ordinance, “The environmental fee remitted to or collected by the City shall be used towards environmental programs, recycling, and clean-up initiatives.”
Asked what the money has been spent on, Granado replied: “We currently fund a position–an ordinance enforcer position–that is tasked with managing, making sure that the plastic bag fee is there and enforcing any ordinance violations or activities an ordinance officer does. Then, we have for 2016, we funded a duck pond project and then we are also funding a lease payment for the purchase of landfill equipment that would be in 2016.”
Rose Timmer, executive director of Healthy Communities of Brownsville Inc., an organization dedicated to improving the quality of life in the city, said the bag fee has not only reduced the use of plastic bags in Brownsville, but it has also provided money for several projects.
“The average person in the U.S. uses about 500 plastic bags a year … only 4 to 10 percent of those bags are recycled,” Timmer said. “While they may help you carry your groceries at home, they are not very good at anything else.”
She said the fees collected have been used for a lot of things.
“We bought a compactor, special projects like the Hike and Bike master plan, the Make a Difference Day,” Timmer said, adding that the city is also doing an urban forestry management plan.
Deborah Contreras, a Texas Southmost College student and founder of the ACT Now Generation, an environmental organization, said the bag fee has helped clean the city’s streets.
“The plastic bag ban has helped clean the streets of Brownsville drastically,” Contreras said. “It is a voluntary fee.”
