Prioritizing ETJ Opt-Out Remedies and Constitutional Avoidance in Elliott v. City of College Station

I. Introduction

In Shana Elliott and Lawrence Kalke v. City of College Station, Texas, the Supreme Court of Texas confronted a collision between municipal extraterritorial regulation and the Texas Constitution’s guarantee of a “republican form of government.” The case arises from the City of College Station’s regulation of properties located within its extraterritorial jurisdiction (ETJ), even though those property owners cannot vote in City elections.

The petitioners, Shana Elliott and Lawrence Kalke, own and reside on property within College Station’s ETJ. They challenged two City ordinances that:

• ban off-premise and portable signs in the ETJ, including billboards; and
• require a City permit for the construction or improvement of driveways in the ETJ.

They argued that these ordinances—applied to people who have no vote in City elections—violate Article I, Section 2 of the Texas Constitution, which pledges “the preservation of a republican form of government.” According to the plaintiffs, a “republican” government requires that all persons subject to a local regulator’s rules must be able to vote for that regulator.

The City responded that the challenge was not justiciable at all: that the plaintiffs lacked standing and ripeness, and that the structure of local government is a nonjusticiable political question reserved to the Legislature. The trial court granted the City’s plea to the jurisdiction and dismissed the case with prejudice; the court of appeals affirmed, relying on the political-question doctrine.

While the case was on appeal, however, the Legislature dramatically changed the ETJ landscape by enacting Senate Bill 2038 (SB 2038), codified in part at Texas Local Government Code §§ 42.101–.156. SB 2038 creates a unilateral opt-out procedure by which ETJ landowners may have their property automatically released from a municipality’s ETJ—without municipal consent—by petition (or by election in some circumstances).

The Supreme Court’s central move in this opinion is to:

• vacate the court of appeals’ judgment and opinion, and
• remand with instructions to abate the case while the plaintiffs are given a “reasonable opportunity” to pursue their statutory opt-out remedy under SB 2038.

The Court explicitly invokes constitutional avoidance, separation of powers, and the need to prevent “constitutional friction” when the Legislature has already supplied a nonjudicial remedy that will likely eliminate the alleged injury.

II. Summary of the Opinion

Justice Devine, writing for the Court (with one partial concurrence/dissent by Justice Sullivan), does not decide whether:

• Article I, Section 2 of the Texas Constitution provides a justiciable “republican form of government” guarantee, or
• College Station’s ETJ regulations, applied to nonvoting residents, are constitutional or unconstitutional.

Instead, the Court holds:

1. The intervening enactment of SB 2038 fundamentally changed the legal context. The new statute grants ETJ landowners—including these plaintiffs—a mandatory and unilateral petition-based mechanism to secure release of their property from a city’s ETJ.
2. Under Texas Local Government Code §§ 42.101–.105, once a compliant petition is submitted and signatures verified:
   • the municipality has a mandatory duty to “immediately release” the area from its ETJ (§ 42.105(a)–(c)); and
   • if the municipality fails to do so, the property is released automatically “by operation of law” after a specified time (§ 42.105(d)).
3. Because release from the ETJ would fully and permanently eliminate the plaintiffs’ exposure to the challenged ordinances, the statutory process would “certainly and permanently moot” the only claim in the case.
4. Even if mootness is not yet present, the possibility of statutory mootness is sufficiently strong that, under the Court’s precedents on constitutional avoidance and exhaustion of nonjudicial remedies, the courts should:
   • abate the proceedings; and
   • require the plaintiffs to make reasonable efforts to secure relief under SB 2038 before adjudicating their constitutional claim.
5. Accordingly, the Court:
   • vacates the trial court and court of appeals judgments and the court of appeals’ opinion; and
   • remands to the trial court with instructions to abate the case to allow pursuit of the opt-out petition.
6. If, after a reasonable opportunity, the plaintiffs have not filed a compliant petition, “the suit may be subject to dismissal” because any injury would then be self-inflicted—traceable not to the City’s actions but to the plaintiffs’ decision to “voluntarily submit to the City’s ETJ regulation,” invoking the standing requirements articulated in Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018).

The Court also gives significant guidance on related issues without finally resolving them:

• It indicates that SB 2038 is binding law and not an unconstitutional delegation to private parties under FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000).
• It emphasizes the supremacy of legislative enactments over contrary municipal ordinances, relying on Texas Constitution Article XI, Section 5(a) and City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586 (Tex. 2018).
• It clarifies the effect of vacatur: removing the binding precedential weight of the court of appeals’ opinion while leaving it available as possible persuasive authority, citing Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020).

III. Factual and Procedural Background

A. Extraterritorial Jurisdiction in Texas

Extraterritorial jurisdiction is a legislative construct. Under Chapter 42 of the Texas Local Government Code, municipalities are granted limited regulatory power over unincorporated areas adjacent to their corporate limits. The size of a city’s ETJ is driven primarily by population. For a city with more than 100,000 residents—like College Station—the ETJ generally extends five miles from the city limits. See Tex. Loc. Gov’t Code § 42.021(a)(5).

Within the ETJ, municipalities may exercise the State’s police power on specified subjects, including:

• plats and subdivision of land (Chapter 212);
• some aspects of signage (Chapter 216);
• certain public roads and infrastructure; and
• groundwater extraction and related issues.

Other areas are expressly off-limits: municipalities may not regulate the use, height, or size of buildings, require building permits, or enforce their building codes in the ETJ. Tex. Loc. Gov’t Code §§ 212.003(a), .049.

B. The Challenged Ordinances and the Plaintiffs’ Claims

Elliott and Kalke own property within College Station’s ETJ but do not reside within city limits and therefore cannot vote in City elections. Their property, however, is subject to certain municipal ordinances extended to the ETJ.

The two ordinances ultimately at issue are:

1. Off-premise Sign Ban – College Station’s Code of Ordinances bans “off-premises signs, including commercial and non-commercial billboards” in the ETJ. An “off-premise sign” is defined (tracking Tex. Loc. Gov’t Code § 216.002(3)) as a sign advertising goods, services, events, etc., not principally located on the premises where the sign stands.
2. Driveway Permit Requirement – Another ordinance requires any property owner seeking to construct or improve a driveway within the City or its ETJ to apply for a driveway permit. See College Station Code ch. 34, art. II, §§ 34-31(a), 34-36(b)(3).

The City concedes that:

• these ordinances apply to the plaintiffs’ properties; and
• the City could enforce them by suit for injunctive relief, see Tex. Loc. Gov’t Code § 212.003(c).

However, the City also asserts that it has never enforced and has not threatened to enforce these ordinances against the plaintiffs or similarly situated ETJ residents, and it has made no promise of non-enforcement.

The plaintiffs have not yet attempted to erect off-premise signs or modify their driveways. They nonetheless regard the ordinances themselves as an unlawful impediment to the use of their land and seek a declaratory judgment under the Texas Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.004(a), that the ordinances are facially void and unenforceable.

Their core constitutional theory is that:

• Article I, Section 2 of the Texas Constitution, echoing the U.S. Constitution’s Guarantee Clause, consecrates a “republican form of government”; and
• at a minimum, that principle requires that Texans subject to local regulations must be able to vote for those who adopt and enforce those regulations.

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

The City filed a plea to the jurisdiction, arguing:

1. No standing – The plaintiffs had not suffered an “injury in fact,” because the City had not enforced or threatened to enforce the ordinances against them.
2. Not ripe – The constitutional claims were premature without a concrete enforcement threat.
3. Political question – The plaintiffs’ attempt to control how the Legislature structures municipal government (including ETJ arrangements) raises a political question outside judicial competence and committed to the legislative branch.

The trial court granted the plea and dismissed the case with prejudice. As the Supreme Court notes, dismissal with prejudice usually indicates a ruling “on the merits” and is generally improper if the defect is lack of jurisdiction that can be cured. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).

The court of appeals (Texarkana, by transfer) affirmed, holding that under Texas precedents—including Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903), and Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911)—the plaintiffs’ claims about the form and structure of municipal government presented a nonjusticiable political question. It did so without analyzing the effect of SB 2038, which had been passed, signed, and was imminent in its effective date.

D. SB 2038 and the New ETJ Opt-Out Framework

The long-standing ETJ framework, adopted in the 1960s, had generally made an ETJ non-reducible without a city’s written consent. See the former rule in Tex. Loc. Gov’t Code § 42.023. That changed in 2023 with SB 2038, enacted by the 88th Legislature.

SB 2038 provides two main routes for removing areas from ETJs:

1. Petition-based release by landowners or residents (Tex. Loc. Gov’t Code §§ 42.101–.105); and
2. Election-based release (Tex. Loc. Gov’t Code §§ 42.151–.156).

For this case, the critical feature is the petition-based mechanism:

• The “owner or owners of the majority in value” of an area consisting of “one or more parcels” of land in a city’s ETJ may file a petition for release. § 42.102(b).
• The petition can be supported either by:
  • more than 50% of registered voters in the area, or
  • a “majority in value” of the landowners in the area. § 42.104(a).
• Upon verifying signatures, the city secretary must “immediately release” the area from the ETJ. § 42.105(a)-(c).
• If the municipality fails to “take action to release the area” by the later of:
  • the 45th day after receiving the petition, or
  • the next meeting of the governing body occurring after the 30th day after receipt,
  then “the area is released by operation of law.” § 42.105(d) (emphasis added).
• Once released, the area cannot be re-included in the ETJ or corporate limits unless the landowners later affirmatively request such inclusion. § 42.105(e).

Certain areas are excluded from this process (e.g., areas near military bases or subject to strategic partnership agreements), but the City conceded that Elliott and Kalke’s property is not subject to any such exclusion.

IV. Detailed Analysis

A. Statutory and Constitutional Framework

1. Legislative control over ETJs

The Court underscores that ETJ is entirely a legislative creation. From the earliest 1913 laws authorizing regulation up to 5,000 feet outside city limits to the Municipal Annexation Act of 1963 and the current Chapter 42 regime, the Legislature has:

• defined what an ETJ is;
• specified which regulatory powers cities may exercise in the ETJ; and
• prescribed how ETJ boundaries may be expanded, reduced, or transferred. See Tex. Loc. Gov’t Code §§ 42.001–.904, 42.023–.024.

The policy statement in § 42.001 explicitly ties ETJs to the “general health, safety, and welfare of persons residing in and adjacent to the municipalities.”

2. Home-rule cities and state supremacy

College Station is a home-rule municipality. Under Tex. Loc. Gov’t Code § 51.072 and Article XI, Section 5(a) of the Texas Constitution, home-rule cities possess “full power of local self-government” unless a charter provision or ordinance is “inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature.”

Relying on City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586 (Tex. 2018), the Court reiterates:

• the Legislature may “expressly or impliedly” limit or withdraw local authority,
• but its intent to do so must appear with “unmistakable clarity.”

SB 2038, in the Court’s view, clearly satisfies that standard: it withdraws municipal veto power over ETJ reductions and commands automatic release when a valid petition is filed and verified.

3. Article I, Section 2: “Republican form of government”

Article I, Section 2 provides, in part:

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….

The Court cites Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911), which in turn quoted Thomas Jefferson’s observation that the term “republic” has a “very vague application,” but that governments are “more or less republican” depending on the degree of “popular election and control” they possess. This background highlights that:

• the clause has historically been broad and somewhat indeterminate; and
• its application to specific municipal arrangements is not straightforward.

The plaintiffs’ restrictive gloss—that anyone subject to local regulation must be entitled to vote for that regulator—is not accepted or rejected by the Court; the question is postponed in light of SB 2038.

B. The New ETJ Opt-Out Regime Under SB 2038

1. Mandatory duties, no municipal discretion

A central holding of the opinion is that SB 2038 leaves no discretion to municipalities regarding ETJ release when a compliant petition is filed:

• Use of terms like “shall” and “must” in a statute that prescribes a consequence for noncompliance makes the requirement mandatory. The Court cites Image API, LLC v. Young, 691 S.W.3d 831, 841 (Tex. 2024) and Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
• Section 42.105(d) explicitly provides that if the municipality “fails to take action to release the area” within the statutory time, release occurs “by operation of law.”

The Court therefore concludes:

Any purported denial of a compliant petition is legally ineffective to avoid the statutory fail-safe. To the contrary, such an action triggers release automatically because, in the words of the statute, the municipality has “fail[ed] to take action to release the area.”

This is an important clarification for parallel litigation in which municipalities are challenging SB 2038’s validity and adopting resolutions “denying” petitions despite the statute’s mandatory terms.

2. Not an unconstitutional private delegation

Some cities (including College Station, by resolution) have claimed that SB 2038 is an unconstitutional delegation of governmental authority to private landowners. The Court rejects that characterization by invoking FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 880 (Tex. 2000):

A delegation occurs only when an entity is given a public duty and the discretion to set public policy, promulgate rules to achieve that policy, or ascertain conditions upon which the existing laws will apply.

SB 2038 does not give ETJ landowners any regulatory power. They:

• cannot legislate, regulate, or select which ordinances apply; and
• merely choose among existing regulatory regimes (municipal vs county) for their land.

Thus, SB 2038 is characterized as a choice-of-governance mechanism, not a delegation of lawmaking authority.

C. Justiciability: Standing, Ripeness, Mootness, and Self-Inflicted Injury

1. Standing and the traceability requirement

Under Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex. 2018), standing in Texas requires:

1. an injury in fact, concrete and particularized, actual or imminent;
2. that is fairly traceable to the defendant’s conduct; and
3. that is likely to be redressed by judicial relief.

The Court suggests that, after SB 2038, any injury from being regulated by City ordinances will be traceable to the City only if the property owner has reasonably pursued and been denied the statutory opt-out remedy. If an owner deliberately declines to use a mechanism that would remove them from the City’s jurisdiction, then any continued regulatory burden “would be traceable only to their choice to voluntarily submit to the City’s ETJ regulation.”

While the Court stops short of holding that the plaintiffs currently lack standing, it clearly warns that if they do not file a petition within a reasonable time, their claims may become nonjusticiable on this traceability ground.

2. Ripeness and the threat of enforcement

The City argued that, because it had not enforced or threatened enforcement of the ordinances, the plaintiffs’ claims were unripe. The Supreme Court does not squarely resolve ripeness, but it treats the existence of the ordinances themselves—and the City’s admission that they apply and could be enforced—as sufficient for purposes of the analysis, particularly because:

• the ordinances are on the books and formally constrain the plaintiffs’ land use; and
• the plaintiffs need only seek declaratory relief, not damages or compensation for past enforcement actions.

3. Mootness and the requirement to pursue nonjudicial remedies

The heart of the opinion lies in the Court’s treatment of potential mootness created by SB 2038, and the analogy it draws to administrative-exhaustion cases.

The Court emphasizes:

On the language of the statute, mootness is all but a certainty. But even when mootness emanating from a nonjudicial process is merely a possibility, we have consistently required abatement of the judicial proceedings while the litigants pursue relief extrajudicially.

The opinion cites several cases:

• CPS Energy v. ERCOT, 671 S.W.3d 605 (Tex. 2023) – The Court held that a Public Utility Commission proceeding could moot constitutional claims by resolving or curing the asserted injury, and parties must exhaust such processes even if they eventually intend to litigate their constitutional rights.
• Garcia v. City of Willis, 593 S.W.3d 201 (Tex. 2019) – Even if constitutional issues cannot be litigated in an administrative forum, a litigant must pursue potential administrative relief that might resolve the dispute on other grounds, thereby mooting the constitutional claim.
• City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) – A property owner challenging a taking must first avail herself of statutory procedures that could moor or resolve her claim before bringing an independent takings suit.

By analogy, SB 2038’s petition process is treated like an administrative remedy or nonjudicial alternative that must be exhausted before the courts undertake sweeping constitutional adjudication.

D. Constitutional Avoidance and Separation of Powers

The Court heavily invokes the doctrine of constitutional avoidance, which requires courts to:

• resolve cases on nonconstitutional grounds whenever reasonably possible, and
• avoid “unnecessary constitutional issues.”

Key authorities include:

• Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478, 488 (Tex. 2024) – The doctrine 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.”
• In re Turner, 627 S.W.3d 654, 656 (Tex. 2021) – Courts recognize their role as ultimate interpreters of the Constitution but still must avoid unnecessary constitutional decisions.
• Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288, 303 (Tex. 2024) – Constitutional avoidance is rooted in the presumption that other branches, like the judiciary, intend to comply with the Constitution.
• McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003) – The judiciary’s role is not to second-guess policy choices underlying statutes.

Here, because SB 2038 already provides a complete and straightforward legislative solution to the plaintiffs’ grievance—allowing them to exit the ETJ and thereby escape City regulation—there is no immediate need to define:

• whether Article I, Section 2 claims are justiciable, or
• what “republican form of government” precisely requires.

The Court frames reliance on SB 2038 as an “order of operations” dictated by constitutional avoidance. It likens this to a comity-based decision: courts defer to a legislative mechanism that may render constitutional controversy unnecessary, thus respecting both separation of powers and institutional harmony.

E. The Political Question Doctrine and “Republican Government” Claims

1. Political question doctrine basics

The political question doctrine, as the Court notes (citing American K-9 Detection Services, LLC v. Freeman, 556 S.W.3d 246, 253 (Tex. 2018)), is “primarily a function of the separation of powers.” It excludes “controversies that revolve around policy choices and value determinations constitutionally committed” to other branches, drawing heavily on Baker v. Carr, 369 U.S. 186 (1962), and Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986).

Traditionally, Guarantee Clause-type claims at the federal level have often been treated as political questions. The Texas courts, however, have not squarely resolved the extent to which Article I, Section 2 is judicially enforceable as against legislative structuring of local government.

2. Treatment of Brown and Bonner; the vacated court of appeals opinion

The court of appeals relied on Brown v. City of Galveston and Bonner v. Belsterling to hold that challenges to the form of municipal government are political questions. The Supreme Court cautions against reading those cases—or the now-vacated appellate opinion—too broadly.

The Supreme Court notes:

• The court of appeals did not hold that “republican form of government” claims under the Texas Constitution are categorically nonjusticiable.
• Rather, the appellate court interpreted Brown and Bonner as limiting judicial review over legislative choices about the form and organization of municipal government.
• But the court also “hedged,” acknowledging that Brown and Bonner could be read as permitting judicial review but finding the particular legislative arrangements consistent with a republican form of government.

By vacating the appellate judgment and opinion, the Supreme Court:

• removes the appellate opinion’s binding precedential force; but
• leaves it available, at most, as potential persuasive authority in future litigation. See Morath v. Lewis, 601 S.W.3d 785, 791 (Tex. 2020).

Importantly, the Supreme Court itself refrains from endorsing or rejecting the court of appeals’ political-question reasoning and its reading of Brown and Bonner, signalling that the question remains open.

F. Municipal Autonomy Versus State Supremacy over ETJs

The opinion reflects a consistent theme in Texas municipal law: while home-rule cities are empowered to govern themselves locally, the Legislature retains ultimate supremacy over the existence, scope, and conditions of that authority, especially in the ETJ context.

• In City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996), the Court recognized that since the Legislature created the ETJ scheme, it may also alter or eliminate requirements like municipal consent.
• Here, SB 2038 is precisely such an alteration: it removes the municipal veto and imposes a mandatory, automatic release regime.

The Court also notes that once an area is released from the ETJ, regulatory authority reverts to the county. SB 2038 does not empower landowners to design their own private mini-regimes; it simply allows them to move from municipal regulation to county regulation.

This reinforces the Court’s repeated message that disputes about the appropriate policy balance between:

• municipal control (which may influence planning, infrastructure, and tax base considerations), and
• the liberty of nonresident landowners subject to municipal regulation,

are legislative policy questions, not for courts to second-guess if the statute itself is constitutional.

G. Vacatur of the Court of Appeals’ Opinion

The Court’s decision to vacate the appellate opinion is grounded in its equitable powers and the public interest, following the logic of Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020). There, the Court explained that vacatur may be warranted when a case becomes moot and the public interest is served by removing a lower court opinion’s precedential effect.

Here, the procedural posture is different—the case is not moot, but the legal landscape changed significantly via SB 2038 while the case was pending. The Supreme Court concludes that, given:

• the imminent effective date of SB 2038 when the court of appeals decided the case, and
• the availability of a complete legislative solution that could have obviated the constitutional analysis,

the appellate court should have paused or re-examined the case in light of the new law. To realign the doctrine with current law and avoid entrenching constitutional analysis rendered stale by statutory changes, the Supreme Court vacates the appellate opinion and returns the case to the trial court with instructions to abate.

V. Complex Concepts Simplified

1. Extraterritorial Jurisdiction (ETJ)

What it is: A buffer zone outside a city’s corporate boundaries in which the city has limited regulatory powers, especially over development and infrastructure, but which is not fully annexed into the city (and typically does not vote in city elections).

Why it matters: ETJs let cities shape growth and protect their outskirts without having to annex everything immediately, but they impose municipal rules on people who may have no vote in city affairs—creating the democratic legitimacy tensions seen in this case.

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

What it is: A constitutional guarantee that Texas’s government will be “republican” in nature—grounded in the authority of the people, with political power inherent in them, and subject to their ability to alter or abolish government.

Key idea: The term has a broad, somewhat indeterminate meaning. At a minimum, it emphasizes popular control and accountability, usually via elections. Whether it requires that every person regulated by a local body must be able to vote in that body’s elections is a live, unresolved question.

3. Political Question Doctrine

What it is: A doctrine that courts will not decide questions that the Constitution commits to other branches or that lack manageable legal standards. It prevents courts from entering into inherently political or policy-based disputes.

In this context: The City argued that deciding how ETJs fit into a “republican form of government” is such a political question. The Supreme Court has not fully embraced or rejected that argument in this case; it instead avoided the issue by focusing on SB 2038.

4. Constitutional Avoidance

What it is: A prudential rule that courts should:

• decide cases on nonconstitutional grounds whenever possible, and
• avoid constitutional rulings that are unnecessary or premature.

In practice here: Because SB 2038 gave plaintiffs a simple way to escape the alleged constitutional harm, the Court declined to interpret Article I, Section 2 or to decide whether the ETJ scheme was republican.

5. Mootness and Nonjudicial Remedies

Mootness: A case is moot if a court’s decision can no longer affect the parties’ rights—e.g., because circumstances have changed and the plaintiff no longer suffers a live injury.

Nonjudicial remedies: The Court requires litigants to pursue legislative or administrative remedies that could moot their claims before the courts will decide difficult constitutional issues. If SB 2038 releases the plaintiffs’ land from the ETJ, their complaint about being regulated by a city they cannot vote in vanishes.

6. Vacatur

What it is: An appellate court’s act of setting aside a lower court’s judgment or opinion, effectively erasing its binding precedential effect.

Effect: The vacated opinion may still exist in case reporters and can be persuasive, but it is no longer binding on any court.

7. Delegation vs. Private Choice

Delegation doctrine: The Legislature may not transfer its core lawmaking power to private parties, especially if those parties gain discretion to set public policy or prescribe the conditions for the law’s application.

SB 2038’s structure: It does not delegate regulatory power; it simply authorizes landowners to choose which existing regime (municipal or county) will govern their property. That choice does not violate the non-delegation principle under FM Properties.

VI. Impact and Future Implications

A. For ETJ Landowners and Property-Rights Litigation

• Mandatory use of SB 2038 first: ETJ landowners who dislike municipal regulation but qualify under SB 2038 must now expect courts to require them to:
  1. file a petition under SB 2038, and
  2. wait to see if their property is released by operation of law,
  before courts will entertain broader constitutional challenges to ETJ regulation.
• Self-inflicted injury risk: Landowners who intentionally avoid the opt-out process may find their constitutional claims dismissed for lack of standing—any harm from municipal regulation will be viewed as the product of their own choice.
• Narrowing facial challenges: Because SB 2038 empowers landowners to avoid municipal jurisdiction altogether, it will be harder for them to claim that the ETJ regime is facially unconstitutional as applied to them, at least where opt-out is actually available.

B. For Municipalities and Ongoing SB 2038 Litigation

• SB 2038 is currently binding: Despite pending constitutional and statutory challenges to SB 2038 (e.g., City of Grand Prairie v. State), the Supreme Court emphasizes that the statute is presumed constitutional (Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003)) and “remains the law.”
• Resolutions denying petitions are ineffective: Municipal resolutions purporting to “deny” valid release petitions have no legal effect. If a city fails to release the area as required, the release occurs automatically by operation of law.
• Strategic and fiscal planning: Cities will need to:
  • reassess long-term infrastructure and annexation strategies in light of potential ETJ shrinkage;
  • account for potential regulatory gaps and shifts to county control; and
  • consider, as a policy matter, whether and how to address landowners’ grievances through annexation reforms or alternative governance structures.

C. For Future “Republican Form of Government” Litigation

• Doctrinal questions remain open: The case leaves unresolved:
  • whether Article I, Section 2 claims about local government structure are generally justiciable or political questions; and
  • what baseline of democratic accountability is constitutionally required when local rules govern nonvoting residents.
• Practical pre-screening via SB 2038: However, by making SB 2038 the first step, the Court effectively ensures that many such disputes will never ripen into Article I, Section 2 decisions, because the property owners’ injuries will be eliminated via opt-out.

D. For Judicial Practice and Separation of Powers

• Enhanced role for constitutional avoidance: The opinion robustly applies constitutional avoidance not merely as a canon of construction but as a case-management principle: courts should prefer legislative solutions that make constitutional adjudication unnecessary.
• Vacatur as a tool to adjust to legal change: By vacating the court of appeals’ opinion, the Court reinforces that when the legal framework materially changes during litigation, prior doctrinal pronouncements should not necessarily be allowed to ossify into binding precedent.

VII. Conclusion

Elliott v. City of College Station is less about the merits of ETJ regulation under the Texas Constitution than about how and when courts should reach such constitutional questions. The Court’s principal contributions are:

• Confirming that SB 2038 creates a mandatory and unilateral opt-out mechanism for ETJ landowners, enforceable even in the face of municipal resistance;
• Requiring plaintiffs to exhaust that nonjudicial mechanism before pressing broad constitutional attacks on ETJ arrangements;
• Signaling that injuries from ETJ regulation may become self-inflicted if owners decline to use available opt-out procedures, potentially defeating standing;
• Applying the doctrine of constitutional avoidance in a robust way, postponing any final word on the justiciability and scope of Texas’s “republican form of government” guarantee; and
• Using vacatur to prevent appellate precedent, formed under a superseded legal regime, from constraining future development of doctrine.

Going forward, the case stands as a significant procedural and structural precedent: before Texas courts will address fundamental constitutional challenges to municipal power, litigants must first avail themselves of clear legislative alternatives that may dissolve their injury altogether. It thereby strengthens the Legislature’s primacy in designing the architecture of local governance, while preserving the judiciary’s authority to intervene—if and when constitutional issues genuinely cannot be avoided.