Elliott v. City of College Station: Constitutional Avoidance and the Duty to Abate ETJ Challenges in Light of SB 2038

I. Introduction

In Shana Elliott and Lawrence Kalke v. City of College Station, the Supreme Court of Texas confronted a highly sensitive constitutional challenge to municipal power: whether a city may regulate residents in its extraterritorial jurisdiction (ETJ) when those residents have no vote in city elections, and whether such an arrangement is compatible with the Texas Constitution’s guarantee of a “republican form of government” in Article I, § 2.

Rather than resolve that foundational question, the Court did something more restrained but legally significant. While the case was pending, the Legislature enacted Senate Bill 2038 (SB 2038), creating a unilateral statutory mechanism allowing ETJ landowners to remove their property from a municipality’s ETJ. The Court held that this new statutory regime fundamentally changed the legal landscape:

• The plaintiffs now have a nonjudicial, unilateral way to escape the very ETJ regulations they are challenging.
• A successful petition under SB 2038 would completely moot their constitutional claim.
• Under the doctrine of constitutional avoidance, courts must allow that statutory remedy to run its course before adjudicating broad constitutional attacks.

Accordingly, the Court vacated the court of appeals’ opinion and the trial court’s dismissal, and remanded with instructions to abate the case so the plaintiffs can pursue the statutory ETJ-release process. If, after a reasonable time, they choose not to do so, their alleged injuries may be deemed self-inflicted and thus nonjusticiable.

The decision is important not because it answers the “republican form of government” issue, but because it:

• Clarifies how SB 2038 operates as a matter of law;
• Strengthens a robust version of constitutional avoidance and judicial restraint in Texas;
• Signals how courts should handle constitutional challenges when a parallel legislative remedy could moot the dispute.

II. Factual and Procedural Background

A. Texas’s Extraterritorial Jurisdiction (ETJ) Framework

Extraterritorial jurisdiction is a statutory creation. Under Chapter 42 of the Texas Local Government Code, municipalities are given a belt of territory beyond their corporate limits—an ETJ—within which they may exercise defined, limited regulatory powers. The breadth of the ETJ typically depends on population size. For a city like College Station, with more than 100,000 residents, that ETJ extends five miles from the city limits. (fn. 1)

Within the ETJ, the Legislature has authorized cities to regulate certain subjects—primarily land-use related matters such as:

• Plats and subdivision of land;
• Some signage controls;
• Public roads and driveways;
• Groundwater extraction.

Other types of regulation are explicitly forbidden in the ETJ. For example, a city cannot regulate building use, height, or size, cannot require building permits, and cannot enforce its building code outside its corporate limits. See Local Gov’t Code § 212.003(a), .049.

Historically, ETJ was conceived as a buffer to manage growth and protect health and safety in areas likely to be annexed. But, after the Legislature largely ended forced annexation, ETJ residents found themselves subject to city regulations without any realistic prospect of becoming city voters. This case arises squarely in that changed landscape.

B. College Station’s ETJ Ordinances at Issue

Petitioners Shana Elliott and Lawrence Kalke own and reside on property located within College Station’s ETJ but outside its city limits. Thus:

• Their property is subject to certain city ordinances; but
• They cannot vote in College Station elections or serve in city office.

Their lawsuit eventually narrowed to challenge two specific ordinances as applied in the ETJ:

1. Off-premise signage ban. College Station’s sign code prohibits “all off-premise and portable signs” in the ETJ, including both commercial and non-commercial billboards. (fn. 2)
2. Driveway permit requirement. The City requires any property owner seeking a new driveway approach or improvements to an existing driveway in the ETJ to obtain a city driveway permit. (fn. 3)

The City conceded that these ordinances apply to the plaintiffs’ property and could be enforced in a suit for injunctive relief. It also acknowledged it has not given any binding assurance of non-enforcement, even if it has not yet attempted to enforce these ordinances against the plaintiffs specifically.

C. The Constitutional Theory: Republican Form of Government

The plaintiffs do not challenge the ordinances as exceeding statutory ETJ powers. Nor do they allege a takings claim or an as-applied violation. Instead, they launch a facial constitutional attack rooted in Article I, § 2 of the Texas Constitution:

All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

Borrowing from the parallel Guarantee Clause in the U.S. Constitution, they argue that a “republican form of government” minimally requires that those exercising local regulatory power over residents be subject to those residents’ votes. Because ETJ residents are regulated by a city but cannot vote in that city’s elections, they say, the entire ETJ scheme is unconstitutional, at least as implemented here.

Their requested remedy is sweeping: a declaration that College Station’s ETJ ordinances are facially void and unenforceable, not just as to them but as a matter of principle.

D. The City’s Plea to the Jurisdiction and Political Question Argument

The City responded with a plea to the jurisdiction, arguing the courts lacked subject-matter jurisdiction on three related grounds:

1. No standing. The plaintiffs have not yet sought to erect off-premise signs or obtain a driveway permit, so they have no concrete injury.
2. Not ripe. There is no imminent enforcement action; any injury is speculative.
3. Political question. The proper form and structure of local government is a policy-laden question committed to the Legislature, not the courts, and is therefore nonjusticiable under the political-question doctrine.

The trial court granted the plea and dismissed the case with prejudice. That disposition is itself telling: as the Supreme Court later notes, a dismissal with prejudice is ordinarily inconsistent with a ruling based on lack of standing or ripeness, which are defects that can often be cured by changed circumstances or amended pleadings. (fn. 4) The trial court’s posture lined up more naturally with the “political question” rationale.

E. Intervening Legislation: SB 2038 and the ETJ Opt-Out Regime

While the case was pending in the court of appeals, the legal terrain shifted dramatically. In 2023, the Legislature enacted SB 2038 (now codified chiefly at Local Gov’t Code §§ 42.101–.156), which:

• Reversed the longstanding rule that a city’s ETJ cannot be reduced without the city’s consent; and
• Created two alternative mechanisms for releasing areas from the ETJ:
  • Release by petition of landowners or residents (§§ 42.101–.105); and
  • Release by local election within the ETJ area (§§ 42.151–.156).

For purposes of this case, the petition mechanism is key. It allows the owner(s) of one or more parcels in a city’s ETJ to file a petition seeking release of that defined “area” from the ETJ. If the petition meets statutory requirements and signatures thresholds, and if the city fails to “take action to release” the area by a specified deadline, the area is released “by operation of law.” See § 42.105(d).

The statute also provides that once released, the area:

may not be included in the [ETJ] or the corporate boundaries of a municipality, unless the owner or owners of the area subsequently request that the area be included in the municipality's [ETJ] or corporate boundaries.

In other words, the release is both mandatory and durable, absent a future voluntary decision by the landowners to re-enter.

F. The Court of Appeals’ Decision and Failure to Reckon with SB 2038

The court of appeals affirmed the dismissal, largely on political-question grounds, relying on early 20th-century precedents such as Brown v. City of Galveston and Bonner v. Belsterling that addressed the Legislature’s authority to shape municipal government. It did so, however, without considering or even addressing the now-effective SB 2038, despite the fact that:

• SB 2038 was signed into law while the appeal was pending; and
• The statute took effect the day after the court of appeals issued its opinion.

The Supreme Court later characterizes this omission as understandable (given timing and briefing) but ultimately incompatible with modern doctrines of constitutional avoidance and judicial restraint.

The plaintiffs then petitioned for review, and the Supreme Court granted review. Multiple amici participated, including the Solicitor General for the State of Texas, the Texas Municipal League, and others, underscoring the statewide stakes.

III. Summary of the Supreme Court’s Decision

Justice Devine, writing for a strong majority, takes a path focused on justiciability and institutional role, not on the substantive merits of the “republican form of government” claim.

A. Key Holdings

1. SB 2038 fundamentally changes the legal landscape.
   Because ETJ property owners now have a statutory, unilateral mechanism to secure release from a city’s ETJ, the legal regime the plaintiffs originally challenged no longer exists in the same form.
2. SB 2038 offers complete, extrajudicial relief.
   For these plaintiffs, who concede they are eligible and whose property is not subject to any statutory exclusions, a valid petition would:
   • Automatically remove their property from College Station’s ETJ;
   • Terminate the application of the challenged ordinances to their property; and
   • Thereby moot their constitutional claims.
3. Cities have no discretion to deny a compliant petition.
   The Court interprets § 42.105 as imposing a mandatory duty on the city to release a qualifying area and a mandatory consequence—release by operation of law—if the city fails to take the requisite releasing action. Express city resolutions “denying” such petitions are legally ineffective and in fact trigger that automatic release.
4. Constitutional avoidance requires abatement, not immediate constitutional adjudication.
   Because a nonjudicial statutory process may moot the constitutional controversy, the Court invokes a robust form of constitutional avoidance:
   • It vacates the court of appeals’ opinion and the trial court’s judgment.
   • It remands with instructions to abate the case for a “reasonable time” to allow the plaintiffs to pursue the SB 2038 release process.
5. Refusal to use the statutory remedy may destroy justiciability.
   If the plaintiffs do not file a compliant petition within a reasonable time, any continuing injury from ETJ regulation may be considered self-imposed and thus not fairly traceable to the City’s conduct. The suit would then be subject to dismissal on standing grounds. See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018).

B. What the Court Expressly Does Not Decide

Equally important is what the Court pointedly leaves unresolved:

• It does not decide whether the ETJ regime, as previously structured, violates Article I, § 2’s “republican form of government” guarantee.
• It does not hold that “republican form of government” claims are categorically nonjusticiable political questions.
• It does not uphold or strike down SB 2038’s constitutionality; it simply applies the statute as currently in effect and presumed constitutional.

By vacating rather than affirming the court of appeals’ political-question analysis, the Court purposely avoids creating binding precedent about the justiciability or merits of Texas “republican government” challenges to municipal structure.

IV. Precedents Cited and Their Role in the Decision

The opinion is dense with citations that collectively frame the Court’s core themes: separation of powers, judicial restraint, statutory interpretation, and justiciability. The most significant include:

A. Political Question and Separation of Powers

• American K-9 Detection Services, LLC v. Freeman, 556 S.W.3d 246 (Tex. 2018).
  Cited for the definition of the political question doctrine as “primarily a function of the separation of powers,” excluding from judicial review controversies involving policy choices constitutionally committed to other branches. The City relied on this framework to argue that the structure of municipal governance lies outside judicial competence.
• Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903), and Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911).
  These early cases, discussing the Legislature’s authority to define municipal forms and to experiment with commission-style and other charters, played a prominent role in the court of appeals’ reasoning. The Supreme Court emphasizes that the court of appeals may have misread them as purely political-question decisions, when they may instead stand for the more modest proposition that the particular legislative choices at issue were consistent with a republican form of government.

The Supreme Court does not endorse a broad political-question bar, and by vacating the opinion, it implicitly warns against reading Brown and Bonner as foreclosing all such claims.

B. Constitutional Avoidance and Judicial Restraint

• Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024).
  Quoted for the proposition that constitutional avoidance demonstrates “the judiciary’s commitment to the separation of powers, respect for the other branches, and desire to prevent constitutional friction unless and until unavoidable.”
• In re Turner, 627 S.W.3d 654 (Tex. 2021).
  Cited for the statement that courts have a “duty to avoid unnecessary constitutional issues.”
• Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288 (Tex. 2024).
  Provides a contemporary articulation of constitutional avoidance as a prudential doctrine rooted in respect for co-equal branches and the presumption they will act constitutionally.
• McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003).
  Quoted for the proposition that the judiciary’s role “is not to second-guess the policy choices that inform our statutes.”

Together, these cases underpin the Court’s decision to defer consideration of the constitutional question until it is truly unavoidable—and to insist that litigants first exhaust a straightforward statutory path that promises to moot their claims.

C. Statutory Interpretation and Mandatory Duties

• Image API, LLC v. Young, 691 S.W.3d 831 (Tex. 2024).
  Used to support the view that statutory language using “shall” or “must” with a penalty for noncompliance is mandatory, not discretionary.
• Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001).
  Similar role, emphasizing that “must” connotes a mandatory duty when paired with specified consequences.
• City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586 (Tex. 2018).
  Cited for the principle that state law can limit home-rule authority with “unmistakable clarity,” underscoring that city ordinances cannot override express legislative directives like § 42.105.
• City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996).
  Used to emphasize that ETJ is a creature of statute and the Legislature can adjust or eliminate requirements (including city consent to ETJ reduction) at will.

These precedents justify the Court’s strong reading of SB 2038 as allowing unilateral, mandatory, and automatic ETJ release—despite municipal resistance.

D. Nonjudicial Remedies, Mootness, and Abatement

• CPS Energy v. ERCOT, 671 S.W.3d 605 (Tex. 2023).
  Cited to support the notion that when an administrative (or, by analogy, legislative) process might cure violations and thereby moot constitutional claims, courts should typically require exhaustion of that process before adjudicating the constitutional issues.
• Garcia v. City of Willis, 593 S.W.3d 201 (Tex. 2019).
  Similarly holds that a litigant must pursue administrative review that could grant relief and moot a takings claim, even if the constitutional claim itself cannot be decided administratively.
• City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012).
  Another example of the requirement to use available statutory mechanisms before pressing a takings claim, to avoid unnecessary constitutional adjudication.

The Court analogizes SB 2038’s petition process to these kinds of nonjudicial remedies and insists that similar prudential rules apply: litigants should not ask courts to decide constitutional questions when a straightforward statutory process might render those questions irrelevant.

E. Delegation of Legislative Authority

• FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000).
  Cited for the definition of an unconstitutional delegation: it occurs when a non-governmental entity is given a public duty and discretion to set public policy, promulgate rules, or determine conditions under which laws apply. The Court uses this standard to emphasize that SB 2038 does not delegate legislative power to landowners. Instead, it simply allows landowners to choose which preexisting regulatory regime (city or county) will govern their property.

This is a subtle but important signal in relation to ongoing municipal challenges to SB 2038 claiming unconstitutional delegation.

F. Standing and Self-Inflicted Injury

• Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018).
  Provides the familiar three-part standing test: (1) injury-in-fact; (2) traceability; (3) redressability. The Court invokes Meyers in its closing paragraph to warn that if the plaintiffs refuse to utilize the SB 2038 process, any injury from ETJ regulation may be attributable not to the City’s conduct but to the plaintiffs’ choice to remain in the ETJ.
• Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003).
  Reaffirms the presumption of constitutionality for statutes and places the burden of proof on those challenging a statute’s validity—bolstering the Court’s willingness to apply SB 2038 as written despite pending municipal challenges.

G. Vacatur and Precedential Effect

• Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020).
  The Court relies on Morath to explain its equitable power to vacate lower court judgments when events have mooted the controversy or substantially altered the landscape, and to clarify that a vacated opinion loses binding precedential force but may retain persuasive value.

Here, the Supreme Court vacates the court of appeals’ opinion not primarily because the case is moot, but because the court of appeals resolved a constitutional question without considering a concurrently enacted comprehensive legislative solution. That, the Court indicates, is exactly what constitutional avoidance seeks to prevent.

V. The Court’s Legal Reasoning

A. SB 2038 Has Made the Challenged ETJ Regime Obsolete

The plaintiffs’ core complaint is that they are involuntarily subjected to city regulations without a city vote. SB 2038 changes that dynamic in a constitutionally relevant way:

• Although ETJ residents still cannot vote in city elections,
• They can now exit the city’s ETJ unilaterally, returning their property to pure county jurisdiction.

The Court stresses that this opt-out option was a deliberate legislative response to concerns that ETJ residents had “too much” municipal control imposed without a “vote or voice.” The Legislature “reweighed the interests at stake” and adjusted the ETJ structure. Courts, the opinion emphasizes, are not to second-guess that policy recalibration.

Crucially, the Court explains why SB 2038’s opt-out truly is unilateral:

• The statute obliges the city to “immediately release” an area covered by a valid petition upon verification of the owner’s signature, leaving no room for city discretion (Local Gov’t Code § 42.105(a)–(c)).
• If the city fails to release the area by the specified deadline, “the area is released by operation of law” (§ 42.105(d)).
• Any city resolution purporting to “deny” or “reject” a qualifying petition is legally a failure to take the required releasing action, which triggers automatic release.

Thus, even though College Station has passed resolutions asserting SB 2038 is invalid and “denying” petitions, those resolutions are, in the Court’s words, “legally ineffective to avoid the statutory fail-safe.”

B. Why the Plaintiffs’ Futility Argument Fails

The plaintiffs argue that pursuing a SB 2038 petition would be futile because:

• College Station has already adopted multiple resolutions “denying” similar petitions; and
• The City, along with other municipalities, has challenged SB 2038’s constitutionality in separate litigation.

The Supreme Court rejects this futility rationale on two levels:

1. Legal ineffectiveness of city resistance.
   City resolutions cannot override state law or alter the statute’s operation. As a matter of law, a valid petition will result in release—either because the city complies or because its refusal triggers release “by operation of law.” The plaintiffs therefore cannot presume their petitions would actually be ineffective.
2. Presumption of constitutionality and separation of powers.
   SB 2038 is presumed constitutional until held otherwise; courts must apply it accordingly. The City’s contrary view pending in another case does not authorize this Court to ignore the statute or to decide unrelated constitutional questions about a superseded regime.

In short, the existing legislative remedy is not illusory. It must be tried before courts will entertain the possibility of structural constitutional invalidity.

C. Constitutional Avoidance as an “Order of Operations”

The Court characterizes constitutional avoidance here as an “order of operations” principle:

• ETJ owners have two potential paths to relief:
  • A statutory ETJ-release mechanism under SB 2038; and
  • A constitutional lawsuit attacking the entire ETJ model under Article I, § 2.
• Either path, if successful, would moot the other.

Given that the statutory path is:

• Concrete and immediate;
• Capable of providing complete relief; and
• Less disruptive to the structural allocation of power between branches,

the Court holds that litigants must first pursue that path before courts engage the constitutional one. This is not a jurisdictional bar—courts still have power to hear constitutional challenges—but a prudential requirement that reflects respect for legislative solutions.

D. Vacatur of the Court of Appeals’ Political-Question Ruling

The Supreme Court is careful to note that the court of appeals:

• Did not explicitly hold that all “republican form of government” claims are nonjusticiable; and
• Recognized some ambiguity in how to read Brown and Bonner.

Nonetheless, the court of appeals resolved a major constitutional question without taking into account the Legislature’s recently enacted, comprehensive ETJ solution. In the Supreme Court’s view, this contravened the spirit of constitutional avoidance.

By vacating the appellate opinion:

• The Court removes its binding precedential effect on lower courts.
• The opinion may still be read as persuasive authority, but only with the caveat that its analysis occurred in an outdated legal context.

This outcome preserves the question of how, and under what circumstances, Article I, § 2 challenges to municipal governance might be justiciable in the future.

E. Prospective Standing Problems if the Statutory Remedy Is Declined

Finally, the Court explicitly warns that if the plaintiffs refuse to use SB 2038’s opt-out mechanism:

If after a reasonable time the plaintiffs have not submitted a compliant petition for release and have therefore elected to forgo the unilateral release process, the suit may be subject to dismissal because any injury would be traceable only to their choice to voluntarily submit to the City's ETJ regulation.

This is a sophisticated application of Meyers’s traceability requirement. When an injury is easily avoidable by the plaintiff’s own lawful action—in this case, a simple petition that would remove them from the ETJ—any continuing injury may become self-imposed and not “fairly traceable” to the government.

That approach reinforces the Court’s broader message: litigants must use the tools the Legislature has provided before asking courts to declare statutes or governance structures unconstitutional.

VI. Complex Concepts Simplified

A. Extraterritorial Jurisdiction (ETJ)

Think of ETJ as a “regulatory halo” around a city. It is:

• Not part of the city’s corporate boundaries;
• Not subject to city taxes (in general); but
• Subject to limited, specific city regulations (subdivision, certain infrastructure, some signage, etc.).

ETJ was meant to manage sprawl and coordinate development just outside city limits. It became controversial when cities could no longer annex residents without consent, but ETJ regulation continued.

B. Home-Rule Municipality

A home-rule city (typically over 5,000 population) operates under a city charter and has broad “full power of local self-government” unless limited by state or federal law. However:

• Home-rule powers are residual—they exist only until the Legislature clearly says otherwise.
• If state law and a city ordinance conflict, state law prevails.

This is why SB 2038 can override a city’s preference to retain its ETJ boundaries.

C. “Republican Form of Government”

This phrase, in both the U.S. and Texas constitutions, broadly refers to a form of government based on popular sovereignty, representation, and accountability. The precise content is contested. Historically, Texas cases have:

• Given the Legislature wide latitude to choose municipal forms and structures; and
• Not invalidated such choices absent extreme circumstances.

The plaintiffs here argue that a republican government must allow people to vote for all regulators who govern them. The Court declines to say whether that is or is not required under the Texas Constitution, leaving the doctrine’s contours open.

D. Political Question Doctrine

Some questions are so committed to the political branches—by the Constitution’s text, history, or structure—that courts deem them “nonjusticiable political questions.” Classic examples include:

• Foreign affairs decisions;
• Certain impeachment processes; and
• Some apportionment or recognition-of-government disputes (depending on jurisdiction).

The City argued that the ETJ/republican government challenge fits that mold. The Supreme Court explicitly avoids endorsing that view, noting the issue is more nuanced and context-dependent.

E. Constitutional Avoidance

Constitutional avoidance is a prudential principle:

• If a dispute can be fairly resolved on non-constitutional grounds (e.g., statutory interpretation, mootness), courts should choose that route.
• The goal is to avoid unnecessary friction with the Legislature and executive and to respect their own duty to act constitutionally.

In this case, because SB 2038 offers a clear, non-constitutional solution to the plaintiffs’ grievances, the Court holds it would be improper to jump ahead to decide the broad constitutional question.

F. Mootness, Ripeness, and Standing

• Standing requires a concrete injury fairly traceable to the defendant, and likely to be redressed by a court ruling.
• Ripeness asks whether the dispute has developed enough for judicial resolution, or whether it is still too speculative.
• Mootness asks whether a once-live controversy has been extinguished (e.g., because circumstances changed or the plaintiff has obtained full relief).

Here, SB 2038 creates a risk that the plaintiffs’ claims will become moot if they obtain ETJ release—and may render any ongoing injury non-justiciable if they unreasonably decline that relief.

G. “Operation of Law”

When something happens “by operation of law,” it happens automatically because a statute says so, not because a government actor chooses it. Under § 42.105(d), if a city fails to release an area described in a valid petition within the statutory deadline, the release occurs by operation of law, regardless of any city resolutions or actions to the contrary.

VII. Impact and Future Implications

A. For ETJ Landowners

The immediate message to ETJ landowners is clear:

• If you object to being regulated by a city whose elections you cannot vote in,
• You must first explore and, where available, use the SB 2038 opt-out mechanism.

Only after that avenue is exhausted (or shown to be unavailable) will courts consider broad constitutional challenges to the ETJ framework. Those who refuse to file a petition when eligible risk losing standing altogether.

B. For Municipalities

Cities face a different sort of message:

• SB 2038 is currently in force and must be obeyed; its constitutionality will be resolved in appropriate cases, but until then, cities cannot nullify it by resolution.
• Purported “denials” of valid petitions do not preserve ETJ territory; they instead trigger automatic release.
• Attempts to resist SB 2038 through local policy may undermine cities’ credibility in parallel litigation and could expose them to legal consequences if they ignore releases that occur by operation of law.

The Court’s reading of SB 2038 substantially strengthens landowners’ leverage and may accelerate ETJ contraction across the state.

C. For Pending Challenges to SB 2038

The Court does not resolve the case attacking SB 2038 directly (e.g., City of Grand Prairie v. State), but its language signals several important points:

• It rejects, as a matter of characterization, the claim that SB 2038 unconstitutionally delegates legislative authority to private parties, noting that landowners simply choose among existing regulatory regimes.
• It treats SB 2038 as a legitimate legislative rebalancing of municipal and landowner interests, grounded in health, safety, and welfare policy.
• It applies a strong presumption of constitutionality to SB 2038 and relies on it as a central pillar of its own holding.

Those signals suggest that SB 2038 faces an uphill battle in any frontal constitutional attack, although the Court takes pains not to prejudge issues reserved for other cases.

D. For Texas Constitutional Litigation Strategy

The broader doctrinal impact lies in how litigants and courts must approach Texas constitutional claims going forward:

• Parties must now be especially attentive to parallel legislative or administrative remedies that could moot or significantly narrow constitutional disputes.
• Counsel challenging statutes or governance structures should anticipate courts demanding evidence that non-constitutional remedies have been pursued or are unavailable.
• Lower courts are reminded that they must monitor legislative developments while cases are pending and adjust their analysis—even after briefing or argument—if new statutes change the legal landscape.

In this sense, Elliott v. City of College Station continues a line of cases like CPS Energy, Garcia, and Stewart, but applies their logic beyond takings and administrative disputes to a structural constitutional challenge concerning local government.

E. For the “Republican Form of Government” Clause

Finally, the case is significant for what it leaves open. The Court:

• Does not reject the possibility that Article I, § 2 may impose judicially enforceable limits on how the Legislature structures municipal power and suffrage.
• Does not endorse the view that Texas’ “republican form of government” clause is purely a political question.
• Signals that any such claim will be reviewed, if at all, in a context where there is no simple statutory solution and where the constitutional issue is truly unavoidable.

This preserves space for future litigation about the outer limits of legislative power over local governance, but under the shadow of strong prudential doctrines favoring legislative solutions first.

VIII. Conclusion

Elliott v. City of College Station is less about the immediate rights of two ETJ landowners and more about how Texas courts will navigate the intersection of legislative change, municipal authority, and constitutional structure.

At its core, the decision establishes and reinforces several key propositions:

1. When the Legislature creates a straightforward, unilateral process that can fully remedy an alleged constitutional injury—as SB 2038 does for ETJ regulation—courts should require litigants to pursue that process before adjudicating sweeping constitutional attacks.
2. SB 2038’s petition process is mandatory, non-discretionary, and self-executing; city attempts to “deny” valid petitions cannot prevent ETJ release, but instead trigger release “by operation of law.”
3. The doctrine of constitutional avoidance in Texas requires courts, including intermediate courts, to stay their hand when legislative developments offer a non-constitutional resolution, even mid-appeal.
4. Failure to use available statutory remedies may convert a government-imposed injury into a self-inflicted one, destroying standing under the traceability requirement.
5. The justiciability and substantive meaning of Texas’s “republican form of government” guarantee remain open questions, to be confronted only when truly necessary.

By vacating the court of appeals’ political-question ruling and insisting on an abatement to allow ETJ opt-out, the Supreme Court of Texas sends a clear message: in a republican system where the Legislature and the courts each have distinct roles, courts will not rush to redraw the constitutional boundaries of local government when the Legislature has already crafted a targeted, workable solution.

---

fn. 1 Local Gov’t Code §§ 42.001, 42.021; College Station, Tex., Code of Ordinances ch. 34, art. II, § 34-29 & app. A, art. 11, § 11.2.

fn. 2 College Station, Tex., Code of Ordinances app. A, art. 7, § 7.5(D)(11), (BB); Local Gov’t Code § 216.002(3).

fn. 3 College Station, Tex., Code of Ordinances ch. 34, art. II, §§ 34-31(a), 34-36(b)(3).

fn. 4 Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).