Legislative Self‑Help Before Constitutional Adjudication: The ETJ Opt‑Out Regime in 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, Texas (No. 23‑0767, opinion delivered May 9, 2025) is less about what the Texas Constitution means and more about when Texas courts should decide what it means.

The petitioners, Shana Elliott and Lawrence Kalke, are property owners who live in the extraterritorial jurisdiction (“ETJ”) of the City of College Station. Their land lies outside the city limits, but state law authorizes the city to apply certain ordinances—here, a ban on off‑premise signs and a driveway‑permit requirement—within the ETJ. Because ETJ residents cannot vote in city elections, Elliott and Kalke brought a facial challenge under Article I, § 2 of the Texas Constitution, arguing that subjecting nonvoting residents to municipal regulation violates Texans’ pledged commitment to a “republican form of government.”

The lower courts dismissed on justiciability grounds, primarily under the political question doctrine, and did so with prejudice. While the case was on appeal, however, the Legislature enacted Senate Bill 2038 (SB 2038), codified in Local Government Code §§ 42.101–.156. SB 2038 radically changed the ETJ landscape by authorizing ETJ property owners to unilaterally and automatically remove their property from a municipality’s ETJ through a statutory petition process, without city consent.

Faced with this intervening statute, the Supreme Court does not reach the profound constitutional question—whether Texas’s “republican form of government” clause limits ETJ regulation of nonvoting residents. Instead, the Court:

Vacates the lower courts’ judgments and the court of appeals’ opinion;
Remands with instructions to abate the case;
Requires that Elliott and Kalke be given a reasonable opportunity to pursue the SB 2038 opt‑out procedure; and
Signals that if they decline to use that legislative self‑help, any injury will be “traceable only to their choice to voluntarily submit to the City’s ETJ regulation,” rendering the case potentially nonjusticiable.

The decision thus establishes a significant procedural principle: when an intervening legislative “self‑help” mechanism can fully and unilaterally cure the plaintiff’s alleged constitutional injury, Texas courts should require that option to be pursued—and typically abate proceedings—before adjudicating broad constitutional challenges. At the same time, the Court underscores that cities may not ignore SB 2038: ETJ releases occur “by operation of law,” and municipal resistance cannot override the statute.

II. Summary of the Opinion

A. Holdings and Disposition

The Supreme Court of Texas holds:

Intervening change in law. SB 2038, enacted while the case was pending, now allows ETJ residents to secure unilateral release of their property from a municipality’s ETJ through a petition process in Local Government Code §§ 42.101–.105.
Opt‑out is mandatory and self‑executing. The statute imposes a mandatory duty on city officials to release qualifying property and provides that if the city fails to act, the area “is released by operation of law.” The municipality has no discretion to deny a compliant petition.
Self‑help must precede constitutional adjudication. Because this statutory process offers Elliott and Kalke complete and permanent relief from the complained‑of ordinances, the Court, invoking the doctrine of constitutional avoidance and separation‑of‑powers principles, declines to decide their “republican form of government” challenge at this time.
Vacatur and abatement. The Court:
- Vacates the trial court’s dismissal with prejudice and the court of appeals’ opinion;
- Remands with instructions to abate the proceedings so that petitioners may pursue the statutory ETJ‑removal process.
Future justiciability. If, after a reasonable time, the plaintiffs do not submit a compliant petition, “the suit may be subject to dismissal” because any ongoing injury would be self‑inflicted and not fairly traceable to the City, citing Meyers v. JDC/Firethorne, Ltd.

B. Issues Not Decided

The Court pointedly does not decide:

Whether ETJ regulation of nonvoting residents violates Article I, § 2 of the Texas Constitution;
Whether claims invoking Texas’s “republican form of government” clause are categorically nonjusticiable political questions;
Whether SB 2038 itself is constitutional (that question is being litigated elsewhere, e.g., City of Grand Prairie v. State).

Instead, the opinion is a robust reaffirmation of:

The constitutional avoidance doctrine in Texas; and
Legislative primacy over the design and modification of ETJ regimes and municipal powers.

III. Detailed Analysis

A. Factual and Procedural Background

1. ETJ, the City of College Station, and the challenged ordinances

Extraterritorial jurisdiction is “a legislative creation” that allows municipalities to regulate certain matters beyond their boundaries, in contiguous unincorporated areas. The Legislature’s stated policy in Chapter 42 of the Local Government Code is to designate ETJs “to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities.”¹

College Station, a home‑rule city of over 100,000 residents, has an ETJ extending five miles from its corporate limits. Within the ETJ, state law authorizes regulation of certain topics (e.g., subdivision plats, signage, roads, groundwater), but expressly forbids others (e.g., building codes, building permits, zoning of use/height/size).

Elliott and Kalke live and own property in this ETJ. They are:

Subject to certain municipal regulations; but
Not eligible to vote in City of College Station elections.

Their suit ultimately focuses on two ordinances applied to ETJ property:

Off‑premise sign ban. The City prohibits “all off‑premise and portable signs,” including commercial and non‑commercial billboards, in the ETJ.²
Driveway permit requirement. Property owners must obtain a city permit to construct or improve a driveway, with the ordinance expressly applicable to the ETJ.³

The plaintiffs have not yet attempted to erect an off‑premise sign or build a driveway without a permit; they bring a facial attack on the ordinances as unlawful constraints on their use of property.

The City:

Concedes the ordinances apply to the plaintiffs’ property;
Concedes it could enforce them (e.g., via injunctive relief) under Local Government Code § 212.003(c);
States it has not yet enforced or threatened enforcement in this case, but refuses to disavow future enforcement.

2. The constitutional theory: Article I, § 2 – “republican form of government”

The plaintiffs invoke Article I, § 2 of the Texas Constitution, which provides:

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.

They argue that, at a minimum, a “republican form of government” requires that residents have the ability to vote for all officials who regulate the locality in which they reside. Thus, they contend, the Legislature’s ETJ scheme—under which municipal ordinances govern nonresidents who have no city vote—violates this constitutional guarantee, making the ordinances facially void.

3. The City’s justiciability defenses and lower‑court rulings

Before the merits, the City filed a plea to the jurisdiction, arguing:

Lack of standing. No concrete injury occurred because the plaintiffs have not attempted to engage in the regulated conduct (posting signs, building a driveway).
Ripeness. No imminent threat of enforcement exists, so the dispute is premature.
Political question. The design and structure of local government is constitutionally committed to the Legislature, not the courts, under separation‑of‑powers principles, making the case nonjusticiable.

The trial court granted the plea and dismissed the suit with prejudice. As the Supreme Court notes, dismissing with prejudice is generally inconsistent with a ruling based solely on standing or ripeness, because those defects may be cured and the claim refiled.⁴ That suggests the trial court relied on the political question doctrine, which, if applicable, would bar judicial review altogether.

On appeal, the court of appeals (Sixth District, sitting by transfer) affirmed. Relying on older cases (Brown v. City of Galveston and Bonner v. Belsterling), it concluded that questions concerning the Legislature’s choice of municipal governmental form present nonjusticiable political questions.

Crucially, however, while the case was pending—and before the Supreme Court’s review—the Legislature enacted SB 2038, creating a new ETJ‑release mechanism. The court of appeals did not discuss this law.

B. The Intervening Statute: SB 2038’s ETJ Opt‑Out Regime

1. Legislative policy and authority over ETJ

The Legislature has long asserted and exercised control over ETJ boundaries and the conditions for their modification. Chapter 42 of the Local Government Code:

Defines ETJ boundaries (primarily based on municipal population);
Authorizes specific types of regulation within ETJ areas; and
Specifies the procedures for release or reduction of ETJ territory, historically requiring the city’s written consent.⁵

The Court reiterates that the ETJ scheme is a legislative creation, subject to broad legislative revision. In City of Murphy v. City of Parker, the Court had already recognized that the Legislature “has the power to alter [the ETJ scheme], including the power to entirely eliminate the requirement that a city give its written consent to a reduction of its ETJ.” SB 2038 is a modern exercise of that authority.

2. Core mechanics of SB 2038

SB 2038 adds Subchapter D‑1 and Subchapter E to Chapter 42, creating two primary methods for ETJ removal:

Removal by petition (Subchapter D‑1; §§ 42.101–.105); and
Removal by election (Subchapter E; §§ 42.151–.156).

The petition mechanism is central here:

The “owner or owners of the majority in value of an area consisting of one or more parcels of land” within the ETJ may file a petition requesting release.⁶
The petition must:
- Describe the area;
- Be signed by either:
  - more than 50% of the registered voters in the area; or
  - a “majority in value” of title holders in the area;
- Otherwise comply with applicable petition requirements (via Election Code Chapter 277).
Once the city secretary verifies the signatures and petition validity, the city must “immediately release the area from the ETJ.”⁷
Crucially: If the municipality “fails to take action to release the area” by the later of:
- 45 days after receiving the petition, or
- the next meeting of the governing body that occurs after the 30th day after receiving the petition,
then “the area is released by operation of law.”⁸
Once released, the area may not be re‑included in an ETJ or corporate boundaries unless the owners later request inclusion.⁹

The statute exempts certain categories of property from this process (e.g., within five miles of certain military bases; property under strategic partnership agreements). There is no dispute that Elliott and Kalke’s property is eligible for release.

3. Effect of release

Relief under SB 2038 is purely jurisdictional and regulatory:

Released property exits the city’s ETJ and returns solely to county and state regulatory control;
No new regulatory entity is created; no private party is delegated public regulatory power (mitigating nondelegation concerns);
Landowners cannot cherry‑pick ordinances—they choose between existing municipal regulation and the alternative county regime.

For ETJ residents like Elliott and Kalke, the statute thus offers precisely what their lawsuit aims to achieve: removal from municipal regulation, permanently, at their unilateral initiative.

C. Justiciability Framework and the Court’s Approach

1. Standing, ripeness, mootness, and political questions

Texas justiciability doctrine—largely judge‑made but rooted in separation of powers—requires:

Standing: an injury in fact, fairly traceable to the defendant, redressable by a court ruling;¹⁰
Ripeness: a dispute sufficiently concrete and developed, not hypothetical or contingent;
Mootness: a live controversy must exist at all stages; if subsequent events resolve the dispute, the case becomes moot;
Political question doctrine: courts may not decide issues constitutionally committed to other branches or lacking judicially manageable standards (a separation‑of‑powers limit, citing American K‑9 Detection Services, LLC v. Freeman and the U.S. Supreme Court’s Baker v. Carr line).

The City invoked all four concepts. The trial court’s with‑prejudice dismissal and the court of appeals’ reliance on the political question doctrine raised the possibility that Texas courts might treat some Article I, § 2 “republican form” claims as categorically nonjusticiable.

2. The Supreme Court sidesteps direct justiciability rulings

The Supreme Court declines to definitively resolve:

Whether plaintiffs currently have standing or whether their claims are ripe (given no enforcement yet);
Whether challenges to the ETJ regime under Article I, § 2 present a political question.

Instead, the Court reframes the problem: the legal landscape has fundamentally changed due to SB 2038, and that change introduces an intervening nonjudicial remedy that could either:

Directly moot the constitutional claims by eliminating the complained‑of regulation; or
Transform any continuing injury into a product of the plaintiffs’ own voluntary choice, thereby destroying traceability and redressability for standing purposes.

Given this, the Court essentially uses constitutional avoidance as a prudential overlay: when a legislative mechanism may resolve or moot a constitutional dispute, the judiciary should allow that mechanism to operate before issuing constitutional rulings.

D. Constitutional Avoidance as the Decisive Principle

The opinion situates itself within, and reinforces, a line of Texas cases emphasizing judicial restraint in constitutional decision‑making.

1. The doctrine in Texas law

Drawing on recent precedent such as Webster v. Commission for Lawyer Discipline, Borgelt v. Austin Firefighters Ass’n, and In re Turner, the Court reiterates:

Courts have a duty to avoid unnecessary constitutional issues and to interpret statutes in ways that obviate constitutional conflicts when reasonably possible.¹¹
This avoidance doctrine is not jurisdictional but prudential; it rests on the separation of powers and “respect for the other branches.”¹²
It helps “prevent constitutional friction unless and until unavoidable” and presumes that other branches also intend to comply with the Constitution.

2. Analogy to exhaustion and mootness cases

The Court analogizes to earlier contexts in which relief available through nonjudicial processes can moot constitutional claims:

CPS Energy v. ERCOT: A Public Utility Commission (PUC) proceeding might “cure” alleged constitutional violations, mooting constitutional claims or obviating their need.
Garcia v. City of Willis: A property owner challenging a municipal ordinance had to seek relief before a hearing officer; a favorable ruling could moot a takings claim.
City of Dallas v. Stewart: A litigant must invoke available administrative procedures that may moot a takings claim rather than immediately filing a separate constitutional suit.

These cases illustrate a pattern: even when an administrative or statutory process cannot adjudicate the constitutional question itself, it may:

Provide relief on other grounds; or
Alter the factual or legal context such that the constitutional issue disappears.

The Court applies the same logic here. Even though the SB 2038 process does not decide whether the ETJ regime is “republican,” it can eliminate the ETJ’s application to these plaintiffs entirely—thereby removing any constitutional controversy between them and the City.

3. Why abatement, not immediate dismissal?

The Court stops short of declaring the case currently moot, because the plaintiffs have not yet invoked SB 2038. Instead, it orders abatement—a pause—so plaintiffs can decide whether to use the opt‑out.

This is consistent with prior practice: when a nonjudicial process may moot a case, Texas courts often abate to let that process run its course, then assess justiciability afterward. Only if the plaintiffs decline to use the process, or if using it fails to provide relief, will courts reach the constitutional claims (if live).

E. Treatment of the ETJ Release Mechanism and “Futility” Arguments

1. Plaintiffs’ futility contention

Elliott and Kalke argue that pursuing SB 2038 relief would be futile because:

College Station has passed at least ten resolutions “denying” ETJ release petitions filed by other property owners; and
The City, along with numerous other municipalities, has filed suit in Travis County (City of Grand Prairie v. State) challenging SB 2038’s constitutionality and interpreting it as inconsistent with § 42.023’s consent requirement.

From these facts, plaintiffs infer the City will not honor their petitions; thus, they claim, they should not be required to attempt a process the City rejects.

2. The Court’s response: the statute, not the City, controls

The Court firmly rejects the futility argument, relying on the text of § 42.105(d):

If a municipality fails to take action to release the area . . . by the later of the 45th day after the date the municipality receives the petition or the next meeting of the municipality’s governing body that occurs after the 30th day after the date the municipality receives the petition, the area is released by operation of law.

Key points in the Court’s reasoning:

The statute is mandatory: it uses “shall” and “must,” and prescribes a penalty for noncompliance (automatic release), which Texas law treats as mandatory.¹³
Municipalities have no discretion to deny a valid petition; once filed and verified, release is merely a function of time and statutory operation.
Any attempt by the City to “deny” a compliant petition is legally ineffective. Such a denial is itself a “failure to take action to release,” which by statute triggers automatic release.
No municipal ordinance, resolution, or litigation position can override a clear legislative command. Under Article XI, § 5(a) of the Texas Constitution and cases such as City of Laredo v. Laredo Merchants’ Association, home‑rule cities cannot enact measures inconsistent with general laws enacted by the Legislature.

In short, the Court treats SB 2038 as self‑executing and supreme over contrary municipal acts. The existence of municipal resistance does not make the statutory process futile; it simply means the statutory “fail‑safe” (release by operation of law) will do the work instead of voluntary city compliance.

3. Potential mootness and self‑inflicted injury

Because the statute (if used) will:

Release plaintiffs’ property from the ETJ; and
Bar re‑inclusion absent their request,

the Court concludes that SB 2038 relief would “certainly and permanently moot the only claim the plaintiffs have brought.”

Conversely, if the plaintiffs refuse to pursue the statutory remedy, any ongoing exposure to ETJ regulation becomes a type of self‑inflicted injury. Then, under standing principles summarized in Meyers v. JDC/Firethorne, Ltd., their injury is no longer “fairly traceable” to the City’s conduct, but instead to their own decision to remain within the ETJ despite a unilateral exit option. In that scenario, dismissal for lack of justiciability becomes likely.

F. Vacatur of the Court of Appeals’ Opinion

1. Equitable vacatur based on intervening developments

The Supreme Court exercises its equitable power to vacate both:

The court of appeals’ judgment; and
The court of appeals’ opinion itself.

Citing Morath v. Lewis and U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, the Court explains that vacatur is appropriate when the public interest so requires, especially where an intervening legal development significantly changes the landscape before appellate resolution.

Here:

SB 2038 had been signed months before the court of appeals issued its opinion and took effect the day after that opinion;
The opinion did not discuss SB 2038 at all, indicating the court may not have been fully apprised of the intervening law.

Under those circumstances, leaving the opinion as binding precedent on the justiciability of Article I, § 2 claims—with no consideration of the opt‑out regime—would, in the Supreme Court’s view, be imprudent.

2. Limited precedential effect of vacated opinions

The Court clarifies an important but sometimes overlooked point:

Vacatur “removes the opinion’s binding precedential nature” but does not erase it from reporters or bar litigants from citing it as persuasive authority in future cases.

Nonetheless, the Court warns against reading the vacated opinion too broadly, noting:

The court of appeals did not hold that “republican form of government” claims are categorically nonjusticiable; it focused on legislative choices about municipal structure.
The appellate court itself recognized that Brown and Bonner could be read instead as rejecting those particular constitutional challenges on the merits, rather than on political question grounds.

Thus, the Supreme Court leaves the justiciability of Article I, § 2 claims an open question, and the vacatur prevents the lower court’s tentative analysis from prematurely hardening into binding doctrine.

G. The Unanswered “Republican Form of Government” Question

The opinion acknowledges, but deliberately declines to answer, the core constitutional question: what concrete requirements does Article I, § 2 impose on Texas’s governmental arrangements, especially at the municipal level?

The Court references Bonner v. Belsterling, which in turn quoted Thomas Jefferson’s observation that “republic” is a “very vague” term, and that governments are more or less “republican” depending on how much popular election and control they contain. The plaintiffs’ theory is that any municipal regulation of residents who lack the power to vote for the regulating body’s officers fails this test.

By choosing constitutional avoidance, the Court:

Does not endorse or reject that theory;
Does not declare Article I, § 2 claims nonjusticiable per se; and
Signals that, should ETJ residents ineligible for SB 2038 relief (e.g., those in excluded areas) bring similar claims, the Court might eventually have to confront the substance of the “republican form of government” guarantee.

For now, however, the Court’s message is procedural: if the Legislature has provided a complete and unilateral self‑help mechanism, courts should not leap to resolve sweeping constitutional questions.

H. Precedents Cited and Their Influence

Several prior decisions shape and support the Court’s reasoning:

1. Separation of powers and political questions

American K‑9 Detection Services, LLC v. Freeman, 556 S.W.3d 246 (Tex. 2018)
Clarifies that the political question doctrine stems from separation of powers and bars review of disputes “constitutionally committed” to other branches or involving inherently nonjudicial policy determinations.
Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903), and Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911)
Early cases concerning the Legislature’s power to structure municipal government under the state constitution’s “republican form of government” guarantee. The court of appeals read them as political‑question decisions; the Supreme Court suggests they might equally be merits decisions, leaving the doctrinal status uncertain.

2. Constitutional avoidance and judicial restraint

Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024)
Emphasizes the judiciary’s “commitment to the separation of powers, respect for the other branches, and desire to prevent constitutional friction unless and until unavoidable.” The Elliott opinion quotes and builds on this language.
Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288 (Tex. 2024)
Recognizes that constitutional avoidance rests on a presumption that all branches seek to comply with the Constitution.
In re Turner, 627 S.W.3d 654 (Tex. 2021)
States that Texas courts have a duty to avoid unnecessary constitutional issues even as they remain the ultimate interpreters of the Constitution.

3. ETJ and municipal authority

City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996)
Highlights the Legislature’s plenary power over ETJ boundaries and the possibility of eliminating municipal consent requirements for ETJ changes—essential background for SB 2038.
City of Laredo v. Laredo Merchants’ Association, 550 S.W.3d 586 (Tex. 2018)
Reaffirms that the Legislature can expressly or impliedly preempt home‑rule ordinances and that such preemption must appear with “unmistakable clarity.” The ETJ‑opt‑out provisions of SB 2038 are such a clear directive.

4. Delegation and police power

FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)
Explains nondelegation principles: a “delegation” exists only when an entity is given public duties and discretion to set public policy or determine conditions for the application of existing laws. The Court uses this framework to show SB 2038 does not improperly delegate regulatory power to private landowners; it simply allows them to choose between two existing regimes.
Commons of Lake Houston, Ltd. v. City of Houston, ___ S.W.3d ___, 2025 WL 876710 (Tex. Mar. 21, 2025) and Sheffield Development Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004)
These cases reinforce that private property is held subject to valid exercises of the police power, but some regulations can amount to takings. They contextualize extraterritorial regulation within the broader police‑power framework.

5. Administrative remedies, exhaustion, and mootness

CPS Energy v. ERCOT, 671 S.W.3d 605 (Tex. 2023); 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 collectively teach that litigants must generally pursue available administrative or statutory remedies that might moot or resolve constitutional claims before resorting to the courts—an analogy the Court explicitly draws.

6. Standing and self‑inflicted injury

Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018)
Reiterates that standing requires an injury in fact that is fairly traceable to the defendant and redressable by the court. Elliott uses this to suggest that once a unilateral exit option exists, refusing to take it can break the traceability chain.

7. Vacatur and public interest

Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020); U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994)
Support the Court’s use of vacatur as an equitable tool when intervening events make prior appellate decisions inappropriate as binding precedent.

IV. Impact and Implications

A. For ETJ Residents and Municipal Governance

The immediate, practical impact of Elliott is to highlight, and effectively endorse, SB 2038’s ETJ opt‑out mechanism as a robust form of legislative self‑help. ETJ property owners who:

Object to municipal regulation; and
Are eligible under SB 2038;

now have a clear path: file a compliant petition and obtain release—by city action or by operation of law—without needing to litigate constitutional theories.

For municipalities, especially home‑rule cities:

The decision signals that resistance to SB 2038 (via resolutions or narrow interpretations) cannot prevent releases from occurring under the statute’s fail‑safe;
It may incentivize cities to:
- Reevaluate the breadth of their ETJ regulations;
- Consider strategic reductions of ETJ territory;
- Engage politically with ETJ residents in new ways (e.g., voluntary agreements, annexation strategies);
Pending litigation over SB 2038’s constitutionality will continue, but until and unless the statute is invalidated, cities must operate under the presumption that it is valid.

B. For Constitutional Litigation Strategy in Texas

Elliott sends a strong signal about the sequencing of challenges:

If the Legislature has provided an individualized, unilateral, and complete remedy to the plaintiff’s asserted injury, courts will often require litigants to use that remedy first.
Failure to do so may render injuries non‑traceable to the government, defeating standing.
The “futility” exception to exhaustion‑like requirements will be narrow where the statute is self‑executing or operates by law regardless of governmental cooperation.

This has broader implications beyond ETJ law: any future statute creating self‑help or opt‑out mechanisms could similarly be treated as a prerequisite to constitutional adjudication, particularly in facial challenges seeking systemic relief.

C. For Political Question Doctrine and Article I, § 2 Claims

Although the Court vacates the court of appeals’ political‑question holding—and avoids pronouncing on the merits—it leaves an important subtext:

Article I, § 2 “republican form of government” claims are not categorically barred from judicial review under current Texas law.
The doctrinal boundary between political questions and justiciable “republican form” disputes remains open and may be refined in future cases, particularly if arising outside the SB 2038 context (e.g., involving non‑releasable ETJ areas, or other structural innovations).

In that sense, Elliott postpones but does not foreclose a potentially major development in Texas constitutional law. It also subtly corrects the overbroad reading of Brown and Bonner as purely political‑question cases.

D. For Separation of Powers and Statutory Supremacy

Finally, the opinion is a reaffirmation of two structural themes:

Legislative supremacy over municipal structure and ETJ.
The ETJ regime exists only by legislative grace, and the Legislature can expand, restrict, or abolish it at will, subject to constitutional limits. Home‑rule cities cannot insulate themselves from such changes.
Judicial deference to legislative problem‑solving.
When the Legislature responds to a perceived constitutional or policy problem (here, nonvoting ETJ residents under municipal regulation) by enacting a remedial statute (SB 2038), courts should allow that democratic solution to operate before intervening with constitutional rulings.

V. Simplifying Key Legal Concepts

1. Extraterritorial Jurisdiction (ETJ)

An ETJ is a belt of land outside city limits where the city may regulate certain matters (such as subdivision plats, some aspects of road and sign regulation) to manage growth and protect residents’ health and safety. ETJs are defined and controlled by state statute, not by inherent city power.

2. “Republican Form of Government” (Article I, § 2)

This clause in the Texas Bill of Rights pledges Texans to preserve a “republican” government—one grounded in the people’s authority, with some form of representative control. The precise legal content of this guarantee, especially at the local‑government level (e.g., what voting rights it implies), is still underdeveloped and remains an open question in Texas law.

3. Justiciability: Standing, Ripeness, Mootness, Political Question

Standing: You must be personally affected by the challenged action in a concrete way, and your injury must be caused by the defendant and fixable by the court.
Ripeness: The dispute cannot be purely hypothetical or speculative; there must be some real or imminent application or threat.
Mootness: Even if a case was once live, if events occur that remove the dispute (e.g., the challenged law no longer applies to you), the court must usually dismiss.
Political Question: Some issues—such as those textually committed to another branch or lacking workable standards—are considered “nonjusticiable,” meaning courts will not decide them at all.

4. Constitutional Avoidance

A prudential rule: if a case can be decided on nonconstitutional grounds (such as interpreting a statute or using a statutory remedy), courts should choose that path instead of deciding constitutional questions. This reflects respect for the Legislature and helps maintain stable interbranch relations.

5. “Operation of Law”

When something happens “by operation of law,” it occurs automatically because the statute says so, regardless of what the parties do or intend. In Elliott, if the city fails to release ETJ property after a valid petition within the statutory time, the property is released automatically—no further action is needed.

6. Vacatur

Vacatur is when a higher court wipes out a lower court’s judgment or opinion. It:

Removes the lower opinion’s authority as binding precedent; but
Does not erase it from the record; it may still be cited as persuasive authority.

7. Self‑Inflicted Injury and Standing

If a person continues to be harmed after refusing an available, effective remedy, courts may view the remaining injury as self‑inflicted. When that happens, the injury is no longer “caused” by the government, and the plaintiff may lose standing to sue.

VI. Conclusion

Elliott v. City of College Station is a landmark in Texas procedural and structural law, not because it answers the plaintiffs’ profound constitutional question, but because it explains why that question should not yet be answered.

By vacating the lower courts’ judgments, remanding for abatement, and insisting that SB 2038’s ETJ opt‑out process be given “a reasonable opportunity” to work, the Supreme Court of Texas:

Reasserts the Legislature’s authority to redesign ETJ regimes and craft self‑help remedies for regulated parties;
Deepens the role of constitutional avoidance, particularly where legislative mechanisms might moot or resolve constitutional disputes;
Signals that plaintiffs cannot ignore effective statutory exit options and still claim judicial redress for the corresponding injuries; and
Leaves open, for another day, the substantive meaning and justiciability of Texas’s “republican form of government” guarantee.

In effect, the Court holds that when the Legislature gives you a lawful door out of the house, you must at least try the handle before asking the courts to remodel the entire building. For ETJ residents across Texas, for municipalities grappling with SB 2038, and for constitutional litigants more broadly, Elliott will be a central reference point in the evolving relationship between legislative innovation, local regulation, and judicial review.