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Texas AG seeks to stop Buck-a-Bag fee in Brownsville

By David Yates | Oct 12, 2016

General court 09

AUSTIN – Attorney General Ken Paxton is suing the city of Brownsville, seeking an injunction to stop “an illegal” tax on plastic-bag shoppers.

Brownsville shoppers are charged a $1 per bag “environmental fee” for plastic bags provided during checkout, according to the Office of the Attorney General.

Paxton, maintaining that the fee is an illegal sales tax, filed suit against the city on Oct. 12 in Cameron County District Court.

Mayor Tony Martinez and City Manager Charlie Cabler are also named as defendants.

“No local government has the authority to violate Texas law just because it feels like it,” Paxton said. “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.”

Under the Texas Health & Safety Code, plastic checkout bags are considered “containers or packages.”

Because state law requires local governments to manage waste from taxes already collected, the law prohibits them from assessing taxes or fees at the cash register, according to a Paxton press release.

In the suit, Paxton argues Brownsville citizens are being unlawfully taxed.

According to a cited published report in the press release, shoppers in the city of Brownsville hand over almost $71,000 per month in illegal environmental fees.

Since its inception through January of this year, the city of Brownsville’s $1 environmental fee taxed citizens around $3.8 million, according to the Brownsville Herald.

Robin Schneider, executive director for Texas Campaign for the Environment, says contrary to Paxton's press release, Brownsville does not have a “buck-a-bag” fee.

"Retailers can charge $1 total for all the bags a particular shopper needs. So if you go to the store and get just a few items that fit in one bag, it’s $1, but if you do your weekly shopping for the whole family and you get 10 bags, it’s still $1," Schneider said. "And of course the shopper – you – can always avoid the fee by bringing your own reusable bags."

Schneider also says the $1 fee is not required for all retailers under Brownsville’s ordinance. What the ordinance actually says is that single-use plastic bags are banned in Brownsville, but if a retailer wants to be exempted from this ban, they can still hand out single-use plastic bags if they change the $1 environmental fee.

"So it’s up to each retailer to decide whether to stop distributing single-use plastic bags or whether to start charging the $1 fee," Schneider said. "Only about a dozen retailers have chosen to charge the fee – mainly the large stores such as HEB and Walmart. The vast majority of stores simply stopped using plastic bags."

Case No. 2016-DCL-06794

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Texas Office of the Attorney General