Legislative ETJ Opt-Out Remedies Take Priority Over Constitutional Challenges: Commentary on Elliott v. City of College Station

Legislative ETJ Opt-Out Remedies Take Priority Over Constitutional Challenges: Commentary on Elliott 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 (No. 23-0767, opinion delivered May 9, 2025) addresses a constitutionally charged challenge to municipal regulation in extraterritorial jurisdiction (ETJ), but resolves it on distinctly non-constitutional grounds.

The case sits at the intersection of:

  • Texas’s long-standing statutory regime allowing cities to regulate in ETJs;
  • The Texas Constitution’s “republican form of government” guarantee (Article I, § 2); and
  • A new statutory innovation—Senate Bill 2038 (SB 2038)—that gives ETJ landowners an apparently unilateral right to “opt out” of a city’s ETJ.

Petitioners Shana Elliott and Lawrence Kalke own property in the ETJ of the City of College Station. They are subject to certain municipal ordinances—including a ban on “off-premise” signs (effectively billboards) and a driveway-permit requirement—yet they cannot vote in City elections. They argue that this is incompatible with a “republican form of government” under the Texas Constitution, and they seek a declaration that the ordinances are facially void and unenforceable.

The City responded with jurisdictional defenses (standing, ripeness, and the political-question doctrine), and the lower courts dismissed the case with prejudice, largely embracing the view that the structure of local government is a nonjusticiable question left to the Legislature.

While the case was pending, however, the Legislature dramatically altered the legal landscape by enacting SB 2038. That legislation allows ETJ landowners to secure the release of their property from a municipality's ETJ by unilateral petition, with release occurring by operation of law if the city does not act within a specified time. This change raised a new question: if ETJ landowners have a statutory self-help mechanism that will eliminate the very regulatory burdens they challenge, should courts reach their constitutional claims at all?

The Supreme Court answers “not yet.” Without deciding whether the “republican form of government” claim is justiciable or valid, the Court:

  • Vacates the judgments of the trial court and court of appeals;
  • Orders the trial court to abate the case; and
  • Directs the plaintiffs to be given a reasonable opportunity to pursue the SB 2038 opt-out process first.

If the plaintiffs decline to seek ETJ release, the Court strongly suggests their injury may be considered self-inflicted and thus nonjusticiable. This is the central precedent established: where the Legislature has created an extrajudicial, self-effectuating remedy that would likely moot a constitutional challenge to municipal ETJ regulation, Texas courts should defer to that remedy under the doctrine of constitutional avoidance before adjudicating the constitutional claim.

II. Summary of the Opinion

A. Factual and Regulatory Background

Texas cities have enjoyed statutorily defined authority to regulate in their extraterritorial jurisdictions for more than a century. Current ETJ rules are codified chiefly in Chapter 42 of the Local Government Code, which:

  • Defines ETJ boundaries largely by city population (Tex. Loc. Gov’t Code §§ 42.001, 42.021–.026); and
  • Authorizes specific types of municipal regulation in the ETJ, including plats, subdivision controls, signage, public roads, and groundwater extraction (id. §§ 42.001, 212.002–.003, 216.003, 216.901–.902).

Importantly, other forms of regulation are explicitly forbidden in the ETJ—for example, building codes, height and use regulations, and building permits (id. §§ 212.003(a), .049).

College Station is a home-rule city with a population exceeding 100,000, giving it a five-mile ETJ radius. Within that ETJ, the challenged ordinances:

  • Ban off-premise and portable signs (including commercial and non-commercial billboards) in the ETJ; and
  • Require property owners to obtain City driveway permits for new or improved driveway approaches, expressly applying this regime to the ETJ.

The City concedes the ordinances apply to Elliott and Kalke’s property, and that it could enforce them through injunctive relief. It also concedes it has given no assurance of non-enforcement, though it claims it has not actually enforced them against the plaintiffs.

B. The Constitutional Claim

The plaintiffs seek a declaratory judgment that the ordinances are facially void under Article I, § 2 of the Texas Constitution, which pledges “the preservation of a republican form of government.” They argue that, at a minimum, a “republican form of government” requires that those who regulate a locality’s residents must be chosen by, and politically accountable to, those residents. In other words, ETJ residents subject to municipal regulation must have the right to vote in that municipality’s elections.

C. The City’s Jurisdictional Defenses and Lower Court Rulings

Before addressing the merits, the City filed a plea to the jurisdiction asserting:

  1. No injury-in-fact (lack of standing) because the plaintiffs had not yet taken steps to erect off-premise signs or build driveways requiring permits;
  2. Lack of ripeness because there was no imminent threat of enforcement; and
  3. Political-question doctrine barred the claim, as the form and structure of local government are reserved to the Legislature.

The trial court granted the plea and dismissed the case with prejudice. The court of appeals (Texarkana, by transfer) affirmed, framing the dispute as a nonjusticiable political question about municipal governance.

D. Intervening Legislation: SB 2038’s ETJ Opt-Out Mechanism

During the appeal—but before the Supreme Court’s review—the Legislature enacted SB 2038, codified in Tex. Loc. Gov’t Code §§ 42.101–.156. This law significantly reshapes ETJ doctrine by creating two new ways for ETJ land to be released from a municipality’s jurisdiction:

  1. Release by petition (§§ 42.101–.105); and
  2. Release by election (§§ 42.151–.156).

The opinion focuses on the petition process:

  • An owner (or owners) of the majority in value of “an area consisting of one or more parcels” in the ETJ may petition for release (id. § 42.102(b));
  • The petition must meet specified signature and verification requirements, borrowing general petition rules from the Election Code (id. §§ 42.103–.104; Tex. Elec. Code §§ 277.001–.004);
  • Once the city secretary verifies the petition, the city “shall immediately release the area” from the ETJ (id. § 42.105(a)-(c));
  • If the city fails to release the property by the later of:
    • 45 days after receiving the petition; or
    • the next city-council meeting occurring after 30 days from receipt,
    then the area is “released by operation of law” (id. § 42.105(d) (emphasis added)); and
  • Once released, the area may not be re-included in the ETJ or city limits unless the landowner later requests re-inclusion (id. § 42.105(e)).

Some locations are ineligible (e.g., areas within five miles of certain military bases and property subject to strategic partnership agreements), but the City concedes Elliott and Kalke’s property is eligible. The Supreme Court emphasizes that:

  • The city has no discretion to deny a valid petition;
  • Any purported “denial” is legally ineffective and in fact triggers release by operation of law;
  • The release returns regulatory authority to the county; and
  • The statute does not delegate legislative authority to private persons—they simply choose among existing regulatory schemes (municipal vs. county), not create their own (cf. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 880 (Tex. 2000)).

Despite this self-help pathway, the plaintiffs refuse to file an opt-out petition, claiming it would be futile because the City has preemptively adopted resolutions “denying” a series of SB 2038 petitions and has joined other cities in a separate lawsuit challenging SB 2038’s constitutionality (City of Grand Prairie v. State, No. D-1-GN-23-007785).

E. The Supreme Court’s Holding and Disposition

The Court does not decide whether:

  • The plaintiffs have standing or their claims are ripe;
  • Their “republican form of government” challenge is justiciable or valid; or
  • SB 2038 is constitutional.

Instead, invoking the doctrine of constitutional avoidance and separation-of-powers concerns, the Court holds:

  1. The new ETJ opt-out mechanism materially changes the legal landscape: ETJ property subject to challenged municipal regulation can now be unilaterally released by the landowner;
  2. This statutory remedy would provide “prompt and complete relief” for the plaintiffs’ alleged injuries, thereby likely mooting their constitutional claims;
  3. Courts should not decide sweeping constitutional questions when an existing legislative mechanism is reasonably capable of resolving the dispute;
  4. The proper course is to vacate the trial court’s judgment and the court of appeals’ opinion and remand with instructions to abate the district-court proceedings for a reasonable period while the plaintiffs pursue the statutory opt-out process; and
  5. If, after a reasonable time, the plaintiffs still have not filed a compliant petition, their alleged injury may be deemed “traceable only to their choice to voluntarily submit to the City’s ETJ regulation,” potentially warranting dismissal for lack of justiciable injury.

The Supreme Court also exercises its equitable discretion to vacate the court of appeals’ opinion, emphasizing that it was issued without apparent consideration of the already-enacted SB 2038 and concerned a legal regime (an ETJ without an opt-out mechanism) that no longer exists.

III. Analysis

A. Precedents and Authorities Cited

1. Constitutional Avoidance and Separation of Powers

  • Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024)

In Webster, the Court articulated the modern Texas formulation of constitutional avoidance, stressing the judiciary’s obligation to avoid unnecessary constitutional rulings as a manifestation of respect for coequal branches and separation of powers. The Elliott opinion quotes Webster for the proposition that constitutional avoidance reflects “the judiciary's commitment to the separation of powers, respect for the other branches, and desire to prevent constitutional friction unless and until unavoidable.” That language is directly repurposed to justify deferring to the Legislature’s newly created ETJ opt-out scheme.

  • In re Turner, 627 S.W.3d 654 (Tex. 2021)

The Court cites Turner for the proposition that, even while courts serve as “the ultimate interpreter of the Constitution,” they also “have a duty to avoid unnecessary constitutional issues.” In Elliott, this duty is operationalized by requiring parties to attempt to resolve their dispute via SB 2038 before asking courts to decide whether ETJ regulation of nonvoters violates Article I, § 2.

  • Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288 (Tex. 2024)

Borgelt is cited to emphasize that constitutional avoidance is prudential and grounded in a presumption that other branches themselves intend to comply with the Constitution. Requiring litigants to seek relief through SB 2038 before judicial intervention presumes the Legislature enacted a constitutional and effective remedy to resolve the kind of tensions raised by this case.

  • McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003)

McIntyre underscores that “our role is not to second-guess the policy choices that inform our statutes.” The Elliott Court invokes this idea to frame SB 2038 as the Legislature’s rebalancing of private-property interests and municipal control within ETJs—precisely the kind of policy judgment that courts should not disturb absent clear constitutional conflict.

  • Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020)

Morath is cited on the equitable doctrine of vacatur: the Court may vacate lower-court opinions when the “public interest would be served by vacatur.” Here, although the case was not mooted in the classic sense, the Court analogizes and uses its equitable discretion to vacate a court of appeals opinion written in the shadow of an outdated legal context.

2. Justiciability, Mootness, and Exhaustion of Nonjudicial Remedies

  • American K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246 (Tex. 2018)

This case is cited for the definition and rationale of the political-question doctrine, emphasizing that controversies involving “policy choices and value determinations constitutionally committed” to other branches are excluded from judicial review. The lower courts had leaned on this doctrine to dismiss the plaintiffs’ claim as a challenge to the Legislature’s chosen form of local governance. The Supreme Court does not endorse that conclusion; instead, it avoids the political-question issue entirely by focusing on SB 2038.

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

Sykes stands for the principle that dismissal with prejudice is improper when a jurisdictional defect can be cured by the plaintiff. The Supreme Court references this to cast doubt on the propriety of the trial court’s with-prejudice dismissal, noting that barring plaintiffs from ever bringing their constitutional claims is inconsistent with a dismissal for lack of standing or ripeness.

  • CPS Energy v. ERCOT, 671 S.W.3d 605 (Tex. 2023)

CPS Energy held that a decision by the Public Utility Commission on underlying issues might moot constitutional claims by curing alleged violations, and that even if it did not, the party could still litigate constitutional claims after exhausting the administrative remedy. Elliott uses this model: SB 2038 might moot the plaintiffs’ constitutional complaints; if not (for example, if SB 2038 is ultimately invalidated or found inapplicable), their constitutional claims could be litigated then.

  • Garcia v. City of Willis, 593 S.W.3d 201 (Tex. 2019)
  • City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012)

These cases articulate a similar principle: litigants must pursue statutory remedies that could moot or avoid constitutional takings claims, rather than immediately filing separate proceedings based on alleged constitutional violations. Elliott extends this principle beyond takings to a “republican form of government” challenge, emphasizing that litigants should seek available nonjudicial avenues first when those avenues may obviate the constitutional questions.

3. ETJ Authority and Municipal–Legislative Power Allocation

  • City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996)

Murphy is cited for the proposition that the Legislature created the ETJ scheme and has the corresponding power to alter or even eliminate requirements such as municipal consent for ETJ reduction. Elliott relies on this to underscore the breadth of legislative control: SB 2038’s unilateral opt-out is squarely within legislative prerogative, even if municipalities object.

  • City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586 (Tex. 2018)

Laredo is referenced to reiterate that a home-rule city’s power of local self-government is subject to the Legislature’s ability to impose limits, provided legislative intent to do so appears with “unmistakable clarity.” Elliott uses this to make clear that College Station, as a home-rule city, cannot override or nullify SB 2038 by ordinance or resolution.

  • FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)

FM Properties dealt with unconstitutional delegation of legislative authority to private landowners. In Elliott, property owners and the City both raise delegation concerns about SB 2038 in other litigation, but the Court here explains that no unconstitutional delegation occurs: the statute does not task private persons with setting public policy or creating rules, but simply allows them to choose between two existing regulatory regimes—city versus county.

4. Republican Form of Government and Political Question Background

  • Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903)
  • Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911)

These early 20th-century cases involved challenges to forms of municipal government (e.g., commissioner systems) as inconsistent with “republican” governance. The court of appeals had read them as rendering such issues nonjusticiable political questions. The Supreme Court, in vacating the court of appeals’ opinion, carefully notes that:

  • Those cases do not clearly hold that all republican-form claims are categorically nonjusticiable; and
  • They can also be read as assuming judicial competence to review the issues but ultimately finding that the legislative choices at issue did not violate the constitutional requirement.

By emphasizing the ambiguity in Brown and Bonner and vacating the court of appeals’ reliance on them, the Supreme Court signals that the justiciability of Texas “republican form of government” claims remains an open question.

5. Property Rights and Police Power Context

  • Commons of Lake Houston, Ltd. v. City of Houston, ___ S.W.3d ___, 2025 WL 876710 (Tex. Mar. 21, 2025)
  • Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004)

These cases are enlisted to situate ETJ regulation within the broader doctrine of police power. They emphasize that:

  • All property is held subject to legitimate exercises of the police power aimed at the public health, safety, and welfare;
  • Most regulatory intrusions are non-compensable; and
  • Some may cross the line into compensable takings, but that is the exception.

While Elliott does not present a takings claim, these precedents support the proposition that Texans, through the Legislature, have long accepted that some private-property rights must yield to public regulation, particularly in areas contiguous to cities.

6. Standing / Traceability Framework

  • Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018)

Meyers sets out the familiar three-part test for standing: (1) injury in fact; (2) fairly traceable to the defendant’s conduct; and (3) redressable by judicial relief. Elliott hints that, if the plaintiffs refuse to use SB 2038’s opt-out process, any ongoing injury may be attributable not to the City’s ordinances but to the plaintiffs’ voluntary choice to remain under ETJ regulation. This foreshadows the possibility that future refusal to opt out could destroy traceability or redressability, undermining standing.

B. The Court’s Legal Reasoning

1. The ETJ Opt-Out Process as a Game-Changer

Central to the Court’s reasoning is its characterization of SB 2038’s opt-out scheme as fundamentally altering the legal regime at issue. Before SB 2038, residents like Elliott and Kalke could be indefinitely subject to municipal ETJ regulation without any unilateral exit. That arrangement provided the factual backdrop for their “republican form of government” challenge: regulation without representation and no way out.

After SB 2038, however:

  • ETJ residency plus regulation is a condition that landowners can unilaterally change by petition;
  • The City’s consent is no longer required; and
  • A municipality’s refusal or delay cannot lawfully prevent release, because a failure to release within the statutory timeframe triggers release by operation of law.

Thus, the legal reality the plaintiffs attack—a regime of involuntary, indefinite ETJ regulation by a city whose lawmakers they cannot elect—no longer fully exists for them. Instead, they stand at a fork in the road:

  • Remain in the ETJ (subject to City regulation) by choosing not to file a petition; or
  • Leave the ETJ and its regulations by filing a compliant petition.

That choice is now central to the Court’s analysis of justiciability and constitutional avoidance.

2. Constitutional Avoidance as an “Order of Operations”

Justice Devine describes constitutional avoidance not as a strict jurisdictional bar, but as a prudential doctrine that prescribes an “order of operations” when multiple pathways to relief exist:

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, not as a jurisdictional matter but as a discretionary policy matter akin to comity.

That “order of operations” is:

  1. First, use the legislative opt-out mechanism (here, SB 2038’s petition process);
  2. Then, only if necessary, litigate constitutional questions that survive or are unaffected by that process.

Because the statutory mechanism promises “prompt and complete relief,” the Court concludes it would be “imprudent” and inconsistent with separation of powers to reach the constitutional question now.

3. Rejecting the Futility Argument

The plaintiffs argue that resort to SB 2038 would be futile because:

  • The City has already passed resolutions purporting to deny numerous SB 2038 petitions; and
  • The City is actively challenging SB 2038’s validity in separate litigation.

The Court gives this argument little traction for two reasons:

  1. The statute is mandatory and self-executing:
    • The City has a mandatory duty to release qualifying areas upon receipt of a valid petition;
    • Failure to do so within the statutory time is itself “action”—a failure “to take action to release the area”—that triggers release by operation of law; and
    • Any City resolution purporting to deny a valid petition is legally ineffective; the City cannot override an express legislative command.
  2. Presumption of constitutionality:
    • SB 2038, like all statutes, is presumed constitutional;
    • The City’s contrary litigation posture does not relieve courts or litigants of the duty to treat the statute as controlling law unless and until a court holds otherwise.

Thus, “futility” is not a viable excuse for refusing to use a statutory remedy that is, in the Court’s words, “a matter of paperwork, not permission.”

4. Abatement and Potential Future Dismissal

The Supreme Court’s remedy—vacatur plus abatement—is strategically chosen. It avoids prematurely declaring the case moot (because plaintiffs have not yet filed petitions) while acknowledging that:

  • Filing compliant petitions will almost certainly moot the case by eliminating the challenged regulatory burdens; and
  • Refusing to file may transform any remaining alleged injury into a self-imposed one, breaking the causal chain necessary for standing.

    The Court’s closing direction is explicit:

    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 powerful signal for future litigants: where a legislatively provided, self-effectuating remedy exists that would alleviate the complained-of regulation, refusal to invoke it may destroy justiciability.

    5. Vacatur of the Court of Appeals’ Political-Question Analysis

    Although the Supreme Court does not definitively resolve the political-question characterization, it identifies several problems with leaving the court of appeals’ opinion intact:

    • The court of appeals decided the case “on the eve” of SB 2038’s effective date without apparent awareness of the new statutory opt-out regime;
    • Its analysis addressed an ETJ framework that no longer exists;
    • It arguably overstated the implications of Brown and Bonner in declaring such claims political questions; and
    • Leaving the opinion precedential could mislead lower courts about the justiciability of “republican form of government” challenges in other contexts.

    The Court thus vacates the opinion, clarifying that:

    Vacatur removes the opinion's binding precedential nature but does not strike it from case reporters or foreclose litigants and courts in future cases from relying on it as persuasive authority.

    This nuanced treatment preserves the analytical work as a potential resource while ensuring it does not bind future decisions in a radically changed legal environment.

    C. Likely Impact on Future Cases and ETJ Law

    1. ETJ Litigation Must Now Navigate SB 2038 First

    The primary doctrinal impact is clear: any challenge by ETJ landowners to municipal ETJ regulation will now be expected to go through SB 2038’s opt-out mechanism before courts consider constitutional arguments, at least where:

    • The land is eligible for SB 2038 release; and
    • The constitutional claim focuses on burdens created by continued ETJ status and municipal regulation.

    This is not framed as a rigid jurisdictional exhaustion requirement, but the Court’s language makes it very close in practical effect. Courts will likely:

    • Abate litigation while plaintiffs file SB 2038 petitions; and
    • Dismiss actions if plaintiffs decline that path and cannot show some independent injury beyond what SB 2038 could cure.

    2. Strengthening of Legislative Primacy over ETJ Design

    The opinion underscores that ETJ is a “legislative creation”, and that:

    • The Legislature determines when and how cities may exercise police powers outside their boundaries;
    • The Legislature decides how ETJ boundaries may be expanded, reduced, or otherwise altered; and
    • Municipalities—including home-rule cities—cannot unilaterally resist or overrule statutory ETJ directives.

    By emphasizing those principles in the context of SB 2038, the Court reinforces legislative supremacy over ETJ policy, making it much harder for municipalities to defend resistance to the opt-out process on the basis of home-rule authority.

    3. Reserved Questions: Republican Form Claims and SB 2038’s Validity

    Several significant questions are explicitly left unresolved and will likely surface in future litigation:

    • Are “republican form of government” claims justiciable under the Texas Constitution?
      The Court avoids saying yes or no. It distances itself from the court of appeals’ broad political-question holding and carefully notes that Brown and Bonner do not clearly foreclose such claims. This leaves open the possibility that Texas courts may one day adjudicate the scope of Art. I, § 2 in a more direct manner.
    • Is SB 2038 itself constitutional?
      The City has joined other municipalities in a separate suit attacking SB 2038 on grounds including alleged unconstitutional delegation and inconsistency with preexisting ETJ statutes. Elliott does not resolve those issues, but it emphasizes that until a court holds otherwise, SB 2038 is valid law that courts and parties must respect.
    • What if the opt-out mechanism itself causes an independent injury?
      The Court hints that in a different case, it might be inappropriate to require resort to an opt-out process that itself inflicts a distinct harm. Elliott is explicit that “that is not the case here,” but this caveat suggests future cases might plead harms uniquely associated with opting out (for example, loss of municipal services) to argue against the need for abatement.

    4. Strategic Implications for Litigants

    For ETJ landowners:

    • SB 2038 offers a powerful bargaining chip and practical remedy: removal from city regulation without city consent;
    • If their main complaint is regulation itself, SB 2038 may offer faster and more certain relief than multi-year constitutional litigation; and
    • To preserve constitutional claims, they may need to articulate injuries that persist even after ETJ release, or that stem from the existence or structure of SB 2038 itself.

    For municipalities:

    • Attempts to deny or ignore SB 2038 petitions are legally futile and may accelerate loss of ETJ territory by operation of law;
    • Municipal resistance is better directed through facial challenges to SB 2038, as in City of Grand Prairie, rather than ad hoc denials; and
    • The opinion reinforces that local ordinances cannot conflict with “unmistakably clear” legislative commands concerning ETJ boundaries and procedures.

    For future constitutional litigants generally:

    • Elliott reinforces the broader doctrine that courts will demand use of nonjudicial remedies that may moot constitutional issues, whether those remedies are administrative processes, statutory petitions, or similar mechanisms;
    • Refusal to pursue such remedies risks turning alleged injuries into nonjusticiable, self-inflicted harms; and
    • Constitutional avoidance will be applied robustly where legislative solutions exist or can reasonably be used.

    IV. Complex Concepts Simplified

    A. Extraterritorial Jurisdiction (ETJ)

    What is ETJ? It is a legally defined “buffer zone” around a city—typically extending ½ mile to 5 miles beyond the city limits, depending on population—where the city can exercise certain limited regulatory powers even though the area is outside its corporate boundaries.

    Why does ETJ exist? The Legislature believes that allowing cities to regulate just outside their boundaries helps protect the health, safety, and welfare of people both inside and adjacent to the city—for example, by controlling subdivision layouts, road access, and signage in areas that are likely to develop into urban or suburban neighborhoods.

    Do ETJ residents vote in city elections? Usually not. They live outside the city limits and, absent annexation, are nonresidents. This creates the core tension in Elliott: residents governed by some city rules but without city voting rights.

    B. SB 2038’s “Release by Operation of Law”

    What does “release by operation of law” mean? It means that something happens automatically because a statute says it does, regardless of what government actors might attempt to do or not do. Under SB 2038, if a city fails to release an ETJ area after a valid petition within the prescribed time, the land is deemed released by the statute itself.

    Why is this important? It strips cities of any real ability to block ETJ release. Even a formal denial resolution is legally ineffective; what matters is whether the petition is valid and the statutory clock has run.

    C. Republican Form of Government

    The Texas Constitution (Art. I, § 2) and the U.S. Constitution (Art. IV, § 4) both reference a “republican form of government.” At a very high level, this means:

    • Political power resides in the people;
    • Government officials exercise power only by and through the people’s authority; and
    • There is an element of popular election and control.

    But the exact legal content of this guarantee—especially as to local governance and ETJ—is not fully settled in Texas law. Elliott is a prime example of the Court choosing not to define that content when a statutory solution is available instead.

    D. Political Question Doctrine

    The political-question doctrine says some issues are reserved to other branches of government and are not appropriate for judicial resolution. Common examples include:

    • Foreign policy decisions;
    • Certain internal legislative procedures; and
    • Questions expressly assigned by the Constitution to another branch.

    The court of appeals believed that whether ETJ regulation of nonvoters violates a “republican form of government” was such a nonjusticiable question. The Supreme Court neither accepts nor rejects this view; it instead finds a way to dispose of the case without deciding it.

    E. Constitutional Avoidance

    Constitutional avoidance is a judicial practice that says:

    • If a case can be resolved on nonconstitutional grounds, courts should do so;
    • Courts should not decide constitutional questions unless unavoidable; and
    • This respects separation of powers and reduces unnecessary conflict with the political branches.

    In Elliott, avoidance takes the specific form of:

    • Recognizing SB 2038 as a nonconstitutional way to remedy the plaintiffs’ grievances; and
    • Requiring that path to be tried first.

    F. Vacatur

    “Vacatur” means a higher court sets aside a lower court’s judgment or opinion. In Elliott, the Supreme Court vacates:

    • The trial court’s dismissal; and
    • The court of appeals’ opinion.

    The opinion explains that vacatur:

    • Removes the opinion’s binding precedential force; but
    • Does not erase it from reporters—other courts may still consult it as persuasive but not mandatory authority.

    V. Conclusion

    The Supreme Court of Texas’s decision in Elliott v. City of College Station is less about what the Texas Constitution requires for a “republican form of government” and more about how courts should behave when the Legislature has already provided a practical, self-executing solution to the complained-of problem.

    Key takeaways include:

    • Priority for Legislative Remedies: When a statute like SB 2038 offers ETJ landowners a unilateral, reliable path to escape municipal regulation, courts will insist that path be tried before constitutional challenges proceed.
    • Strengthened Constitutional Avoidance: The Court deploys avoidance robustly, not merely to select among multiple interpretations of a statute but to postpone addressing an entire class of constitutional claims when they may soon become moot.
    • Legislative Supremacy over ETJ: The decision reiterates that ETJ is a legislative construct, that municipalities must comply with ETJ statutes, and that statutory commands like SB 2038’s mandatory release provisions cannot be overridden by local policy or resolutions.
    • Conditional Justiciability: Future plaintiffs challenging ETJ regulation must recognize that failure to use SB 2038’s opt-out process could transform their injury into a self-inflicted one, undermining traceability and standing.
    • Reserved Constitutional Terrain: The justiciability and substantive content of Texas’s “republican form of government” guarantee remain unresolved; Elliott postpones, but does not foreclose, a more definitive reckoning with that provision.

    Ultimately, Elliott cements a significant procedural precedent: where the Legislature has crafted an extrajudicial route that would largely or entirely remedy the complained-of regulatory injury, Texas courts will generally require litigants to pursue that route before adjudicating sweeping constitutional questions. In the ETJ context, this means SB 2038’s opt-out mechanism is now the first step—not the last resort—for landowners who wish to contest municipal regulation beyond city limits.

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