Constitutional Avoidance and the Mandatory ETJ Opt‑Out Remedy: Commentary on Elliott v. City of College Station

Constitutional Avoidance and the Mandatory ETJ Opt‑Out Remedy:
A Commentary on Shana Elliott & Lawrence Kalke v. City of College Station

I. Introduction

The Supreme Court of Texas’s decision in Shana Elliott and Lawrence Kalke v. City of College Station is, on its face, a justiciability opinion. The Court does not decide whether it is unconstitutional for Texas cities to regulate residents of their extraterritorial jurisdiction (“ETJ”) who cannot vote in city elections. Instead, the Court uses this case to:

  • give decisive effect to the Legislature’s 2023 enactment of Senate Bill 2038 (“SB 2038”), which created a unilateral process for ETJ landowners to remove their property from a city’s ETJ; and
  • reaffirm and extend a strong doctrine of constitutional avoidance: courts must require litigants to pursue available nonjudicial remedies that could moot or substantially narrow constitutional claims before the courts will decide them.

In doing so, the Court vacates lower-court judgments that had dismissed the case on political-question grounds, remands with instructions to abate (pause) the proceedings, and signals that if the plaintiffs decline to use the SB 2038 opt-out process, any remaining “injury” may be deemed self-inflicted and therefore non‑justiciable.

The decision is thus less about the substantive contours of Texas’s guarantee of a “republican form of government” and more about:

  • how courts should respond when the Legislature creates a self-executing statutory remedy while litigation is pending; and
  • what that means for ETJ residents, municipalities, and the development of Texas constitutional law.

II. Factual and Procedural Background

A. Extraterritorial Jurisdiction (ETJ) and City Regulation

For over a century, Texas law has allowed cities to regulate limited matters in a buffer zone outside their corporate limits—areas now known as extraterritorial jurisdiction (ETJ). Current ETJ law is codified in Chapter 42 of the Local Government Code and originates in the 1963 Municipal Annexation Act.

Key features:

  • The geographic size of a city’s ETJ is tied primarily to its population. For a city like College Station (over 100,000 residents), the ETJ extends five miles from the city limits. (Loc. Gov’t Code § 42.021(a)(5))
  • Within the ETJ, municipalities may exercise the State’s police power on specified topics—such as platting and subdivision, certain road regulations, some water and signage regulations.
  • Other forms of regulation are prohibited in the ETJ—for example, building codes, building permits, and zoning restrictions on use, height, or size of buildings. (Loc. Gov’t Code § 212.003(a))

College Station, a home‑rule city, exercises ordinances in its ETJ that:

  • Prohibit off‑premise and portable signs (essentially billboards and similar signs that advertise something not located on the same property), and
  • Require permits for new or improved driveways in the ETJ.

B. The Plaintiffs’ Challenge

Petitioners Shana Elliott and Lawrence Kalke live and own property in College Station’s ETJ. They:

  • are subject to the City’s ETJ ordinances (sign and driveway regulations),
  • but have no right to vote in the City’s elections.

Even though they had not yet attempted to erect off‑premise signs or build/alter a driveway, they alleged that these ordinances themselves imposed an unconstitutional encumbrance on their property use.

Their central constitutional theory: when a city regulates residents in a locality (an ETJ) where those residents cannot vote in city elections, that structure violates the Texas Constitution’s guarantee of a “republican form of government” in Article I, Section 2.

“The faith of the people of Texas stands pledged to the preservation of a republican form of government….”

— Tex. Const. art. I, § 2

The plaintiffs sought facial invalidation of the ordinances under the Declaratory Judgments Act, arguing that:

  • ETJ residents are regulated “as if” they were city residents,
  • yet they are denied city voting rights, and
  • that this structure is incompatible with a “republican” government.

C. The City’s Plea to the Jurisdiction

The City responded with a plea to the jurisdiction—a mechanism for asserting that the court lacks power to hear the case at all. The City argued:

  1. No standing: Plaintiffs had not suffered an “injury in fact” because the City had not enforced, or threatened to enforce, the ordinances against them.
  2. Unripe: Because no enforcement was imminent, the claims were premature.
  3. Political question: The “form” and structure of local government, including ETJ arrangements, are matters committed to the Legislature, not the judiciary.

The trial court granted the plea and dismissed the suit with prejudice, permanently barring re‑filing. That type of dismissal is usually inconsistent with jurisdictional defects that might later be cured, which foreshadows the Supreme Court’s concern about the lower courts’ handling of justiciability.

D. Intervening Legislation: SB 2038

While the case was on appeal, the Legislature passed SB 2038, now codified at Local Government Code §§ 42.101–.156. This statute radically changed ETJ law by creating new ways for property to be released from a city’s ETJ:

  1. Release by petition (the key mechanism here):
    • Owner(s) of one or more parcels in the ETJ may petition for release.
    • Once a compliant petition is filed and signatures verified, the city must immediately release the area from its ETJ.
    • If the city fails to act within the statutory timeframe, the area is released by operation of law—that is, automatically, without any discretionary decision by the city.
    • Once released, the area cannot be re‑included in the ETJ or city limits without the owner’s subsequent consent.
  2. Release by election:
    • An election may be called on whether a broader area should be released from the ETJ.

There are certain exceptions—for example, areas near certain military bases and properties covered by strategic partnership agreements—but neither side claimed that Elliott and Kalke’s property fell within any exception.

Despite SB 2038, the court of appeals (Texarkana, by transfer) affirmed the dismissal solely on the political question doctrine, without analyzing the new statute or its effect on justiciability.

E. The City’s Hostility to SB 2038

The plaintiffs argued in the Supreme Court that resort to SB 2038 would be “futile,” pointing to:

  • Several City resolutions purporting to deny ETJ release petitions filed under SB 2038, asserting that:
    • SB 2038 unconstitutionally delegates municipal legislative authority; and
    • SB 2038 conflicts with Local Government Code § 42.023’s consent requirement for reducing ETJ boundaries.
  • A separate lawsuit filed by College Station and other cities challenging SB 2038 in Travis County (City of Grand Prairie v. State).

Elliott and Kalke argued that requiring them to “ask permission” from an allegedly unconstitutional local authority (the City) to escape its jurisdiction is itself a separate constitutional injury that SB 2038 cannot cure.

III. Summary of the Supreme Court’s Opinion

Justice Devine, writing for the Court, does not resolve the underlying constitutional dispute about ETJs and the “republican form of government.” Instead, the Court:

  1. Recognizes SB 2038’s petition procedure as a complete, unilateral remedy that can release plaintiffs’ property from College Station’s ETJ—automatically, if the City fails to act—in either case eliminating the challenged regulations.
  2. Holds that the judiciary should not proceed to constitutional adjudication while such a nonjudicial remedy exists and remains unused, invoking the doctrine of constitutional avoidance and separation of powers.
  3. Vacates the court of appeals’ opinion and the trial court’s judgment and remands with instructions to abate the proceedings to give plaintiffs a reasonable time to:
    • file a compliant petition under SB 2038, or
    • choose not to do so and thereby accept the risk that their injury becomes self‑inflicted.
  4. Signals that if plaintiffs decline to pursue SB 2038’s remedy, the suit may be dismissed for lack of justiciability, because any ongoing injury would be traceable only to their voluntary choice to remain within the ETJ regulatory scheme.
  5. Uses its equitable power to vacate the court of appeals’ opinion because the legal landscape had shifted significantly (via SB 2038) before that opinion issued, making its political-question analysis unnecessary and potentially misleading as precedent.

Importantly, the Court expressly does not declare that “republican form of government” challenges under Article I, Section 2 are categorically nonjusticiable. It leaves that question open and cautions against over-reading the now-vacated court of appeals decision.

IV. Detailed Analysis

A. Statutory Background: ETJ Authority and SB 2038

1. Longstanding ETJ Policy

The Legislature has repeatedly articulated that ETJ exists to “promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities.” (Loc. Gov’t Code § 42.001.) The Court emphasizes:

  • ETJ is a creature of statute; it exists only because the Legislature created it.
  • The Legislature both:
    • defines the scope of municipal regulatory power in the ETJ; and
    • controls the conditions under which a city’s ETJ may be expanded, reduced, or altered.

This sets the stage for accepting that the Legislature can also change the rules mid‑stream by enacting SB 2038 and that such changes can shape the justiciability of constitutional challenges to ETJ ordinances.

2. SB 2038’s ETJ-Removal Mechanism

SB 2038 fundamentally alters ETJ practice by enabling ETJ landowners—but not cities—to control whether their property remains in the ETJ. The key features, as interpreted by the Court, are:

  • Unilateral power in landowners: “The owner or owners of the majority in value of an area consisting of one or more parcels” may petition for release. Even a single parcel can suffice.
  • Ministerial city role: Once a properly supported petition is filed:
    • The city must verify signatures and compliance with the statute.
    • Upon verification, the city has a mandatory duty to release the area from its ETJ immediately.
  • Automatic release by operation of law:
    • If the city “fails to take action to release the area” by the later of:
      • the 45th day after receiving the petition, or
      • the next city‑council meeting occurring after the 30th day,
      then “the area is released by operation of law.”
    • Thus, city “denials” or inaction do not prevent release; they trigger automatic release.
  • No discretionary veto: City consent is no longer required to reduce the ETJ in situations falling within SB 2038; § 42.023’s older consent requirement is effectively limited by the newer, more specific scheme.
  • One‑way exit: Once released, the property cannot reenter the ETJ or city limits without the owner’s request.

The Court is explicit: any city resolution purporting to “deny” a compliant petition cannot override:

  • the city’s mandatory duty to release; and
  • the statute’s self‑executing consequence of release by operation of law if the city fails to effectuate the release itself.

This statutory framework is central to the Court’s conclusion that the plaintiffs now have an effective self‑help remedy that they must pursue before the courts will entertain their constitutional claims.

B. Justiciability, Mootness, and Abatement

1. The Central Justiciability Turn

The question before the Supreme Court is not what Article I, § 2 means in full, but whether the plaintiffs’ challenge is justiciable at all in light of SB 2038.

The Court’s reasoning proceeds in stages:

  1. The plaintiffs’ only concrete injury alleged in this lawsuit is being subject to College Station’s ETJ ordinances on signs and driveways.
  2. SB 2038 gives them a unilateral path to remove their property from the ETJ, thereby completely and permanently eliminating those ordinances as applied to their property.
  3. If they avail themselves of this remedy, their claims will likely become moot—no live controversy would remain.
  4. Even the possibility that a nonjudicial process might moot constitutional claims is sufficient to require litigants to attempt that process first.

The Court acknowledges some ambiguity about whether the mere existence of SB 2038 already moots the claims (because plaintiffs could opt out) or instead makes them unripe until plaintiffs attempt to opt out and are somehow prevented from doing so. But the Court finds that it need not pick between these theories; either way, constitutional adjudication is premature.

2. Abatement as the Remedial Device

Rather than dismissing outright, the Court orders the trial court to abate (pause) the case:

  • The plaintiffs must be given a “reasonable time” to file a compliant SB 2038 petition.
  • If they do so, and their property is released (whether by city action or operation of law), the case will become moot and should be dismissed on that basis.
  • If they refuse to do so, the trial court may dismiss for lack of standing, because any “injury” from City regulation would then be self‑inflicted—not fairly traceable to the City, but to plaintiffs’ own decision to remain within the ETJ regime.

This approach aligns with prior Texas cases in which the Court required litigants to pursue administrative or other nonjudicial remedies that could eliminate the need for constitutional litigation:

  • CPS Energy v. ERCOT, 671 S.W.3d 605 (Tex. 2023): Requiring exhaustion before asserting constitutional claims that might be mooted by the administrative body’s decision.
  • Garcia v. City of Willis, 593 S.W.3d 201 (Tex. 2019): Plaintiff had to use available administrative procedures that might afford relief before bringing a takings claim in district court.
  • City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012): Litigants must pursue statutory remedies that might moot takings claims, rather than immediately filing separate suits.

In short, the Court extends that line of reasoning beyond traditional agency‑exhaustion into a statutory self-help context: when the Legislature has created a unilateral opt‑out remedy, plaintiffs challenging the very regime they can opt out of must try that remedy first.

C. Constitutional Avoidance and Separation of Powers

1. The Doctrine of Constitutional Avoidance

The Court repeatedly emphasizes the doctrine of constitutional avoidance:

  • Courts should avoid deciding constitutional questions if a case can be resolved on nonconstitutional grounds.
  • This is not just a technical canon but a manifestation of:
    • respect for the other branches, and
    • the separation of powers.

Citing cases like In re Turner, 627 S.W.3d 654 (Tex. 2021), and Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024), the Court treats avoidance not as a jurisdictional limitation but as a strong prudential principle. Here, avoidance dictates the “order of operations”:

“There are two methods an ETJ property owner can pursue to get out from under the City’s regulation: under the ETJ statute or under the Texas Constitution. Each one could resolve, and thereby moot, the other. The doctrine of constitutional avoidance directs an order of operations….”

By placing the statutory remedy first, the Court ensures that:

  • the judiciary does not issue sweeping constitutional rulings about ETJs and the “republican form of government” when those rulings may become unnecessary; and
  • the Court does not undermine the Legislature’s recent policy choice in SB 2038, which rebalances the relationship between cities and ETJ residents.

2. Separation of Powers and Legislative Primacy

The opinion stresses that:

  • ETJs, their boundaries, and the allocation of regulatory authority between cities and counties are fundamentally legislative choices.
  • The Legislature remains politically accountable for those choices in Texas’s republican form of government.
  • When the Legislature has spoken—here, by giving ETJ residents a unilateral exit from municipal regulation—courts must give that policy full effect, absent a successful constitutional challenge to the statute itself.

At the same time, the Court makes clear that respecting legislative judgments does not mean ceding judicial review of constitutional limits. Instead, it means:

  • not deciding constitutional questions unnecessarily; and
  • presuming statutes are constitutional until shown otherwise (citing Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003)).

This is particularly salient because municipalities, including College Station, are simultaneously challenging SB 2038’s constitutionality in other litigation. The Court explicitly acknowledges that challenge but notes that:

  • SB 2038 is currently the law of the state and presumed constitutional; and
  • cities cannot treat it as a nullity in the meantime.

D. Political Question Doctrine and the “Republican Form of Government”

1. The Court of Appeals’ Political-Question Holding

The Texarkana court of appeals held that plaintiffs’ claims raised a nonjusticiable political question because:

  • they challenged the Legislature’s choice of municipal structure (ETJ regulation of non‑voters), and
  • under earlier Texas Supreme Court decisions—especially Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903), and Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911)—such matters were allegedly committed to the Legislature rather than the courts.

But the Supreme Court vacates that opinion and expressly questions that reading.

2. How Brown and Bonner Are Recast

The Court offers a nuanced reminder about Brown and Bonner:

  • Those cases can be read in two ways:
    1. As holding that issues about forms of municipal government are nonjusticiable; or
    2. As justiciable but concluding that the particular legislative forms of city government at issue there were, in fact, consistent with a republican form of government.
  • The court of appeals leaned on the first reading, but the Supreme Court signals that the second reading is at least equally plausible.

By vacating the court of appeals opinion and expressly warning against reading it too broadly, the Supreme Court leaves open:

  • whether Article I, § 2 “republican form of government” claims are generally justiciable in Texas courts; and
  • what level of “popular election and control” (to borrow Justice Devine’s Jefferson quotation from Bonner) is constitutionally required in different local-government arrangements.

Notably, the Court does not adopt the federal Guarantee Clause’s near‑categorical nonjusticiability. Instead, it carefully refrains from making any broad pronouncement, signaling that Elliott should not be cited in the future as resolving that issue one way or the other.

E. Effect and Interpretation of SB 2038: Mandatory, Self‑Executing Remedy

1. Futility Argument Rejected

Plaintiffs argued that applying under SB 2038 would be futile because:

  • College Station has formally “denied” numerous petitions; and
  • the City is actively litigating to invalidate SB 2038.

The Court rejects this futility argument on multiple grounds:

  1. Statutory text controls: The Local Government Code:
    • imposes a mandatory duty on the City to release a qualifying area once a valid petition is received and verified, and
    • provides that if the City “fails to take action to release the area” within the specified time, “the area is released by operation of law.”
  2. City “denials” are legally inefficacious: A resolution purporting to deny release is not an “action to release the area”; it is a refusal to perform the statutory duty. Under the statute’s terms, such refusal results in automatic release, not continued inclusion in the ETJ.
  3. Municipal resistance cannot nullify a state statute: No city ordinance, policy, or resolution can trump an explicit statutory command or prevent an event that the statute says occurs “by operation of law.”
  4. Separate constitutional challenges do not suspend the statute: The City’s lawsuit against the State over SB 2038’s validity does not relieve the City of its current statutory obligations, nor does it render SB 2038 inoperative while those challenges are pending.

Accordingly, a property owner who files a proper SB 2038 petition has a real, legally effective path out of the ETJ, despite City opposition.

2. Distinguishing “Paperwork” from “Permission”

The plaintiffs argued that being required to request release from an allegedly unconstitutional regime is itself a distinct constitutional injury. The Court answers that this mischaracterizes the nature of the remedy:

  • The statute does not require the property owner to seek the City’s permission in any discretionary sense.
  • The City has no authority to grant or withhold ETJ membership at its discretion for a compliant petition.
  • The process is one of paperwork and verification, followed by either:
    • mandatory release; or
    • automatic release by operation of law if the City fails to comply.

This is crucial to the Court’s conclusion that the statutory remedy is not itself a new constitutional injury; it is a mechanism to eliminate the old one.

F. Vacatur, Precedential Status, and the Role of Changed Law

1. Why the Court Vacated the Court of Appeals Opinion

The Supreme Court uses its equitable discretion to vacate the court of appeals’ judgment and opinion. The Court finds:

  • The legal landscape had already changed dramatically (SB 2038 had been signed into law and would soon take effect) by the time the court of appeals issued its decision.
  • The court of appeals nevertheless decided a broad political‑question issue without reference to the new statute and its potential to moot the constitutional dispute.
  • In analogous situations (e.g., Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020)), the Court has vacated lower-court opinions where intervening events made the previously litigated issue moot or substantially altered.

The Court is careful to note:

  • Vacatur does not erase the opinion from history, but it removes its binding precedential effect.
  • The opinion may still be used as persuasive authority by litigants and courts, but it is no longer controlling precedent.

This is especially important in the politically sensitive area of local-government structure and citizen voting rights; the Supreme Court evidently wishes to prevent the now‑vacated political-question analysis from ossifying into a rule that insulates all ETJ‑related structural challenges from judicial review.

G. Standing, Self-Inflicted Injury, and Future Litigation

In closing, the Court warns that if plaintiffs:

  • fail to file an SB 2038 petition within a reasonable time; and
  • continue to complain about being subject to City ETJ ordinances,

then any injury they suffer will be:

  • traceable only to their own decision not to opt out; and
  • potentially not redressable by judicial relief because the statute already provides them a complete remedy they chose not to use.

Relying on Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018), the Court reiterates that standing requires:

  1. an injury in fact,
  2. fairly traceable to the defendant’s conduct, and
  3. redressable by a court ruling.

When plaintiffs decline to exercise a direct, unilateral exit from the allegedly unconstitutional regime, the causal chain between government action and plaintiffs’ continued injury can be broken. This has two significant effects:

  • Doctrinally: It strengthens a line of cases that treat the failure to exhaust or pursue self-help remedies as undermining standing for constitutional claims.
  • Practically: It heavily incentivizes ETJ landowners to use SB 2038 first; otherwise, their constitutional cases may never get off the ground.

V. Complex Concepts Simplified

1. Extraterritorial Jurisdiction (ETJ)

An ETJ is a statutorily defined buffer zone around a city where:

  • The city is allowed to regulate certain matters such as subdivision, certain roads, signs, and some groundwater issues.
  • Residents of the ETJ are not city residents for most purposes—they do not vote in city elections, do not generally pay city property taxes, and do not receive the full bundle of city services.
  • The county typically retains default regulatory responsibility, except where state statutes explicitly give authority to the city.

2. “Republican Form of Government” (Texas Constitution, art. I, § 2)

The Texas Constitution’s Article I, § 2 pledges Texas to a “republican form of government.” At a high level, this means:

  • Government derives its authority from the people and exists for their benefit.
  • There must be some meaningful element of:
    • popular election, and
    • popular control over those who make binding rules.

But the exact contours—especially how much voting power is required at what level of local government—remain underdeveloped in Texas case law. Elliott does not answer that question; it simply holds that we must wait to reach it until statutory remedies have been exhausted.

3. Political Question Doctrine

The political-question doctrine says courts should not decide certain disputes that:

  • are textually committed by the Constitution to another branch (e.g., some foreign‑policy or impeachment matters), or
  • lack judicially manageable standards.

The court of appeals viewed ETJ and municipal-structure issues as political questions, beyond judicial review. The Supreme Court declines to endorse that view and instead sidesteps the issue via constitutional avoidance.

4. Mootness and Ripeness

  • Mootness arises when a live controversy no longer exists: even if there was a dispute at the start, events have resolved it such that a court ruling would have no practical effect.
  • Ripeness concerns whether a dispute has sufficiently developed to warrant judicial intervention—courts avoid deciding abstract, hypothetical, or premature disagreements.

SB 2038 raises questions of both:

  • If plaintiffs use SB 2038 and are released from the ETJ, their claims become moot.
  • Because they have not yet used SB 2038, their claims may be unripe, as they have not yet experienced the full “injury” or the denial of the statutory remedy.

5. Operation of Law

When something occurs “by operation of law,” it:

  • happens automatically because a statute says so,
  • without requiring a discretionary decision or affirmative act by an official.

Under SB 2038, if the City fails to release the area after a valid petition, the property is released from the ETJ by operation of law. The City’s attempt to “deny” the petition cannot stop that automatic legal consequence.

6. Vacatur

“Vacatur” is the judicial act of setting aside a lower court’s judgment and opinion. Its effects:

  • The vacated opinion no longer binds lower courts or parties as precedent.
  • It remains part of the historical record and may still be cited as persuasive authority, but it has no authoritative force.

The Supreme Court uses vacatur here to prevent the political‑question holding from gaining binding precedential status in a rapidly changing legal environment.

7. Ministerial vs. Discretionary Duties

  • A ministerial duty is a mandatory obligation to perform a specific act in a specific way when certain conditions are met (e.g., “the city must release the area once signatures are verified”).
  • A discretionary duty involves judgment or choice about whether and how to act.

The Court treats SB 2038’s requirements as ministerial: the City has no discretion to deny release of a qualifying petitioned area.

VI. Impact and Broader Significance

A. For ETJ Residents and Property Owners

  • Practical self‑help tool: SB 2038, as interpreted by the Court, gives property owners an effective way to escape city ETJ regulation without:
    • proving a constitutional violation, or
    • relying on city consent.
  • Litigation strategy: In most cases, ETJ owners will now be expected to:
    1. file an SB 2038 petition; and only if
    2. that remedy fails due to some legal impediment (e.g., statutory exception, later change in law),
    can they plausibly maintain constitutional suits about ETJ regulation.
  • Risk of losing standing: Owners who choose not to exercise the opt‑out process may find that courts regard their injuries as self‑inflicted and decline to hear their constitutional claims.

B. For Municipalities

  • Limited power to resist SB 2038: Cities cannot:
    • refuse to process petitions, or
    • “deny” release in a way that preserves ETJ coverage,
    without risking release by operation of law.
  • Separate constitutional challenges: While cities may continue to challenge SB 2038’s validity (e.g., as an unconstitutional delegation or conflict with other statutes), they must still comply with it unless and until it is struck down.
  • Reduced ETJ leverage: If property owners broadly petition for release, cities may lose regulatory influence over large unincorporated areas, shifting more responsibility to counties and potentially prompting legislative reconsideration.

C. For Texas Constitutional Law

  • Article I, § 2 remains largely undeveloped: The Court does not resolve:
    • the substantive meaning of “republican form of government” at the local level, or
    • whether ETJ arrangements are compatible with that guarantee.
  • No categorical nonjusticiability: By vacating the political‑question reasoning and declining to endorse it, the Court keeps open the possibility that:
    • Texas courts may adjudicate some Article I, § 2 claims in the future.
  • Strengthened constitutional avoidance: The decision reinforces a trend of:
    • requiring exhaustion of statutory remedies before constitutional adjudication; and
    • refusing to decide broad constitutional questions where legislative developments provide alternative solutions.

D. For Justiciability Doctrine and Litigation Practice

  • Expanded use of abatement: The Court’s direction to abate—rather than dismiss—recognizes:
    • the dynamic nature of the legal landscape, and
    • the value in allowing time for extrajudicial processes to play out.
  • Order‑of‑operations requirement: Litigants challenging statutory or regulatory schemes must:
    1. first use any available opt‑out, administrative, or remedial mechanisms that might moot their claims; and only
    2. then seek constitutional rulings if those remedies fail.
  • Precedent management: The Court’s willingness to vacate opinions when intervening law changes underscores the importance of context in relying on older decisions and encourages appellate courts to remain alert to ongoing legislative developments.

VII. Conclusion

Elliott v. City of College Station is a pivotal case not because it defines the content of Texas’s “republican form of government” guarantee, but because it:

  • confirms that SB 2038 gives ETJ landowners a unilateral, self‑executing right to escape city ETJ regulation through a petition process; and
  • entrenches a robust version of constitutional avoidance and justiciability doctrine that requires litigants to pursue such statutory remedies before bringing constitutional attacks on the underlying regime.

The Court vacates a potentially far‑reaching political‑question decision and, instead of resolving a deep constitutional controversy over ETJs and voting rights, chooses institutional restraint. It places primary responsibility on:

  • the Legislature, which has rebalanced the ETJ relationship through SB 2038; and
  • ETJ landowners themselves, who now control—through petition—whether they remain subject to city ETJ ordinances.

The key takeaways are:

  1. SB 2038’s opt‑out process is real and mandatory: Cities cannot override it; refusals to release qualifying property result in release by operation of law.
  2. Constitutional claims must yield to statutory remedies where possible: Plaintiffs must attempt self-help solutions like SB 2038 petitions before courts will decide broad constitutional questions.
  3. The meaning and justiciability of Article I, § 2 remain open: The Court explicitly avoids resolving whether challenges to local-government structure under the “republican form of government” clause are political questions.
  4. Standing can be defeated by non-use of statutory remedies: Future plaintiffs who decline to exercise available opt‑out procedures may find their injuries deemed self-inflicted and thus non‑justiciable.

In the broader legal context, Elliott stands as a significant precedent on how Texas courts will handle constitutional challenges in areas where the Legislature has provided potent statutory escape valves. It is a powerful reminder that, in Texas’s system of separated powers, the judiciary will wait to speak on the Constitution until the Legislature’s most recent solutions have had a fair chance to work.

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