Statutory ETJ Opt-Out as a Precondition to 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, Texas (No. 23‑0767, opinion delivered May 9, 2025) sits at the intersection of municipal power, private property rights, and state constitutional structure. The case arises from a challenge by two property owners residing in the extraterritorial jurisdiction (ETJ) of the City of College Station, who are regulated by city ordinances despite having no vote in city elections. They argue that this arrangement violates the “republican form of government” requirement embedded in Article I, Section 2 of the Texas Constitution.

While the litigation was pending, however, the Legislature dramatically altered the governing legal framework by enacting Senate Bill 2038 (2023), codified in Texas Local Government Code sections 42.101–.156. SB 2038 gives ETJ landowners a unilateral statutory mechanism to remove their property from a city’s ETJ—thereby automatically ending the city’s regulatory authority over that property. This intervening legislation and its proper use become the central focus of the Texas Supreme Court’s opinion.

Rather than addressing the underlying constitutional question—or deciding whether such claims present a nonjusticiable political question—the Court invokes the doctrine of constitutional avoidance, vacates the judgments below, and remands with instructions to abate the case. The plaintiffs are to be given a reasonable opportunity to invoke the new statutory opt‑out mechanism. If they do so, their claims will likely become moot. If they do not, any continuing “injury” may be deemed self‑inflicted, undermining standing.

The opinion establishes an important precedent: when the Legislature has supplied a direct, nonjudicial mechanism that can give complete relief from the challenged regulation, Texas courts should generally insist that litigants pursue that statutory remedy before adjudicating far‑reaching constitutional attacks on the structure of government.

II. Summary of the Opinion

At its core, the Court’s decision does the following:

Recognizes the transformative effect of SB 2038: ETJ landowners now have a unilateral right, via petition, to remove their property from a city’s ETJ. The city has no lawful discretion to deny a compliant petition; if it fails to act, release occurs “by operation of law” (Tex. Loc. Gov’t Code § 42.105(d)).
Rejects “futility” as a reason to bypass the statute: The City’s political and legal opposition to SB 2038, including formal resolutions “denying” petitions and participation in separate litigation attacking the statute, does not relieve landowners of the obligation to invoke the statutory process. The Court treats any purported denials as legally ineffective.
Applies constitutional avoidance: Because the statutory opt‑out could fully resolve the plaintiffs’ injuries and potentially moot their constitutional claims, the Court holds that it would be imprudent to decide sweeping constitutional questions now. It orders abatement to allow plaintiffs a chance to use the statutory remedy.
Vacates the court of appeals’ opinion: The Sixth Court of Appeals had affirmed dismissal on political‑question grounds without considering the new statute. The Supreme Court vacates that opinion and the lower court’s judgment, noting that vacatur removes binding precedential effect while leaving the opinion available as persuasive authority.
Signals future standing limits: If, after a reasonable time, the plaintiffs choose not to petition for ETJ release, any ongoing injury from city regulation may be “traceable only to their choice to voluntarily submit to the City’s ETJ regulation,” potentially defeating standing (citing Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018)).

Notably, the Court does not decide:

whether “republican form of government” claims under Article I, Section 2 are justiciable, or
whether College Station’s ETJ ordinances are constitutional on the merits.

III. Legal and Factual Background

A. Extraterritorial Jurisdiction (ETJ) in Texas

Extraterritorial jurisdiction is a statutory, not constitutional, creation. Under Chapter 42 of the Texas Local Government Code, the Legislature designates ETJ areas adjacent to municipalities and authorizes limited municipal regulation there. The Legislature’s stated policy is:

“to designate certain areas as the extraterritorial jurisdiction of municipalities to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities.” (Tex. Loc. Gov’t Code § 42.001.)

Key features:

Geographic limits: A city’s ETJ radius depends on population (Tex. Loc. Gov’t Code § 42.021). For a city with more than 100,000 residents, like College Station, the ETJ generally extends five miles from the city limits.
Permitted ETJ regulation: Municipalities may regulate in specific areas such as platting and subdivision of land, signage, public roads, and groundwater extraction (see Tex. Loc. Gov’t Code §§ 212.002–.003, 216.003, 42.001, 212.901–.902).
Forbidden ETJ regulation: Municipalities may not, in their ETJ, regulate building use, height, or size; require building permits; or enforce building codes (Tex. Loc. Gov’t Code §§ 212.003(a), .049).
Legislative supremacy: The ETJ scheme is entirely a legislative construct; the same power that created ETJs controls their scope, reduction, and elimination (Tex. Loc. Gov’t Code §§ 42.023–.024). Municipalities have no inherent extraterritorial authority.

B. The College Station Ordinances and the Plaintiffs’ Claims

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

cannot vote in City of College Station elections, yet
are subject to certain city ordinances extended into the ETJ.

Two ordinances are at issue:

Off-premise sign ban (billboard prohibition) in the ETJ:
College Station’s Code of Ordinances bans all “off-premises” and portable signs in the ETJ, including commercial and non-commercial billboards (Code app. A, art. 7, § 7.5(D)(11), (BB)). This aligns with state law defining “off‑premise sign” as one advertising activity not located on the same premises (Tex. Loc. Gov’t Code § 216.002(3)).
Driveway permit requirement for ETJ property:
The City requires property owners desiring a new driveway or improvements to an existing driveway to obtain a city driveway permit (Code ch. 34, art. II, § 34‑36(b)(3)), and it expressly applies this requirement to the ETJ (id. § 34‑31(a)).

The plaintiffs:

have not yet attempted to erect billboards or construct driveways,
but allege that the existence of these ordinances burdens their property rights, and
seek a declaratory judgment that the ordinances are facially void and unenforceable.

Their core constitutional theory rests on Article I, Section 2 of the Texas Constitution:

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

They argue that, at minimum, this clause requires that Texans have the right to elect all officials who regulate the locality in which they reside. To them, regulation of ETJ residents by city officials for whom they cannot vote is incompatible with a “republican form of government.”

C. Procedural History and Intervening Legislation

Plea to the jurisdiction in the trial court
The City filed a plea to the jurisdiction, arguing:
- No injury / no standing: The plaintiffs had not yet applied for a driveway permit or attempted to erect prohibited signs, so no concrete injury had occurred.
- Unripe: Without a credible threat of enforcement, the claims were premature.
- Political question: The design of local governmental structures, including ETJ arrangements, is allegedly committed to the Legislature and therefore nonjusticiable.
The trial court granted the plea and dismissed the case with prejudice—a noteworthy point, because dismissal with prejudice is generally inconsistent with correct handling of curable jurisdictional defects like ripeness or standing (see Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004)).
Appeal and the enactment of SB 2038
While the appeal was pending, the Legislature enacted SB 2038 (Act of May 8, 2023, 88th Leg., R.S., ch. 106, 2023 Tex. Gen. Laws 213, codified at Tex. Loc. Gov’t Code §§ 42.101–.156), effective September 1, 2023. SB 2038:
- created new unilateral petition and election procedures by which ETJ areas—or individual parcels—may be released from a city’s ETJ;
- eliminated the longstanding requirement, in many circumstances, that the city consent to ETJ reduction (partially superseding Tex. Loc. Gov’t Code § 42.023); and
- provided that if a city fails to release an area as required, the release occurs automatically “by operation of law” (Tex. Loc. Gov’t Code § 42.105(d)).
Despite this significant change, the court of appeals (Texarkana, by transfer) affirmed the dismissal on political-question grounds and did not analyze SB 2038, apparently without having it fully briefed.
Proceedings before the Supreme Court
At the Texas Supreme Court, the parties submitted supplemental briefs on whether SB 2038:
- had already mooted the case, or
- rendered the constitutional claims unripe or otherwise nonjusticiable.
The Court, with Justice Devine writing for the majority, ultimately certifies neither question. Instead, it holds that the statute so substantially alters the legal landscape that the case must be abated while the plaintiffs pursue the opt‑out procedure.

IV. Detailed Analysis

A. Precedents and Authorities Cited

1. Constitutional avoidance and separation of powers

The Court grounds its approach in a well‑developed line of Texas cases emphasizing judicial restraint when constitutional questions might be avoided:

Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024): Describes constitutional avoidance as reflecting “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 Court quotes this language and applies it directly.
In re Turner, 627 S.W.3d 654 (Tex. 2021): Explains that while courts are the ultimate interpreters of the Constitution, they also have a “duty to avoid unnecessary constitutional issues.” The Elliott opinion echoes this duty.
Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288 (Tex. 2024): Characterizes constitutional avoidance as rooted in a presumption that other branches also intend to comply with the Constitution. The Elliott Court invokes this logic to justify relying on SB 2038’s remedial scheme.
Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020): Addresses vacatur when changed circumstances moot a case, noting that vacatur may be appropriate as a matter of equity when it serves the public interest. Elliott uses Morath’s framework to justify vacating the court of appeals’ opinion.
United States v. Winstar Corp., 518 U.S. 839 (1996): Cited for the notion that constitutional avoidance helps avoid “difficult constitutional questions about the extent of state authority to limit the subsequent exercise of legislative power.” This supports the Court’s reluctance to address the deeper constitutional meaning of Texas’s republican‑form clause where a statutory solution exists.

2. Justiciability doctrines: standing, ripeness, and political question

Standing and traceability – Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018):
Meyers sets out the familiar three‑part standing test: (1) injury in fact, (2) fairly traceable to the defendant’s conduct, and (3) redressable by a court. Elliott cites Meyers to warn that, after SB 2038, any ongoing injury from ETJ regulation may be traceable not to the City but to the plaintiff’s failure to exit the ETJ.
Ripeness / exhaustion analogies – 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 hold that when an administrative or statutory proceeding may resolve a dispute, litigants generally must pursue such remedies before asserting constitutional claims. The Court draws an analogy:
- CPS Energy: PUC action could cure alleged constitutional violations and moot claims; exhaustion did not preclude later constitutional litigation if needed.
- Garcia: Even if constitutional issues could not be raised administratively, the administrative process might produce a favorable result that moots constitutional questions.
- Stewart: Litigants must use statutory remedies that may moot a takings claim rather than filing a separate proceeding at once.
Elliott extends this logic from administrative remedies to a legislatively prescribed, nonjudicial opt‑out process.
Political question doctrine – American K‑9 Detection Services, LLC v. Freeman, 556 S.W.3d 246 (Tex. 2018); Baker v. Carr, 369 U.S. 186 (1962); Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986):
These authorities define the political question doctrine as excluding from judicial review controversies committed by the Constitution to the elected branches. The court of appeals relied on this line of authority to hold that the structure of local government is a nonjusticiable political question. The Supreme Court in Elliott does not endorse or repudiate that conclusion; instead, it vacates the opinion and reserves the question.

3. Municipal power, ETJ, and preemption

Preemption and home‑rule limits – Texas Constitution art. XI, § 5; City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586 (Tex. 2018):
Article XI, section 5(a) prohibits home‑rule charters or ordinances inconsistent with the Constitution or general laws. Laredo reaffirmed that the Legislature may limit or withdraw municipal powers if its intent is expressed with “unmistakable clarity.” Elliott relies on this framework to emphasize that College Station cannot override SB 2038 with conflicting resolutions or noncompliance.
Legislative control of ETJ boundaries – City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1996):
Murphy notes that the Legislature created the ETJ scheme and could eliminate the requirement for city consent to ETJ reduction. Elliott holds that SB 2038 is precisely such an exercise of legislative power, requiring release without municipal consent in prescribed circumstances.
Presumption of constitutionality – Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003):
Statutes are presumed constitutional; challengers bear the burden of showing otherwise. Elliott applies this presumption to SB 2038, declining to treat it as invalid simply because certain cities contest it in separate litigation.
Early “republican form” cases – Brown v. City of Galveston, 75 S.W. 488 (Tex. 1903); Bonner v. Belsterling, 138 S.W. 571 (Tex. 1911):
These cases involved challenges to legislative design of municipal governments under Texas’s republican‑form guarantee. The court of appeals read them as holding that such matters are nonjusticiable political questions. Elliott suggests a more nuanced reading: they may instead (or also) be merits decisions concluding that specific legislative arrangements were consistent with a republican form of government. The Supreme Court vacates the court of appeals’ broader, categorical interpretation.

4. Delegation of power and police power

Nondelegation – FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000):
FM Properties explains that an unconstitutional delegation requires giving an entity both a public duty and discretion to set public policy, promulgate rules, or determine conditions under which existing laws apply. Elliott uses this framework to observe that SB 2038 does not delegate municipal legislative power to private landowners: it merely allows them to choose among pre‑existing, government‑created regulatory schemes (city vs. county regulation).
Police power and property rights – Commons of Lake Houston, Ltd. v. City of Houston, ___ S.W.3d ___, 2025 WL 876710 (Tex. Mar. 21, 2025); Sheffield Development Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004):
These cases reaffirm that:
- government must exercise its police power to protect health, safety, and welfare,
- all property is held subject to valid exercises of that power,
- only some regulations rise to the level of compensable “takings.”
Elliott cites them to situate ETJ regulation within the state’s police power, while emphasizing that the Legislature remains accountable and may recalibrate the balance—as it has with SB 2038.
Declaratory Judgments Act and immunity – Abbott v. Mexican American Legislative Caucus, 647 S.W.3d 681 (Tex. 2022):
Cited in the vacatur discussion, this case notes that the Declaratory Judgments Act does not waive immunity for facially invalid constitutional claims against the state. Although Elliott does not decide the immunity question, it flags it as a background limitation on suits challenging government structures.

B. The Court’s Legal Reasoning

1. Construction of SB 2038’s ETJ Opt-Out Mechanism

SB 2038 is the hinge on which the Court’s reasoning turns. The opinion carefully parses the statute to show that ETJ landowners now hold a unilateral right to secure release from municipal ETJ control.

Key statutory points:

Eligibility and scope: The owner(s) of “one or more parcels of land” in a municipality’s ETJ may petition for release (Tex. Loc. Gov’t Code § 42.102(b)). This allows even a single parcel owner to act.
Petition requirements: The petition must be signed either by:
- more than 50% of registered voters in the area described by the petition, or
- a majority in value of the landowners in the area (Tex. Loc. Gov’t Code § 42.104(a)),
with Texas Election Code Chapter 277 supplying technical petition rules (Tex. Loc. Gov’t Code § 42.103).
Mandatory release: Once the city secretary verifies signatures on a valid petition, the city “shall immediately release the area from the [ETJ]” (Tex. Loc. Gov’t Code § 42.105(a)–(c)). The statute uses the mandatory language “shall” and “must,” which the Court treats as imperative, especially because a noncompliance penalty is specified (citing Image API, LLC v. Young, 691 S.W.3d 831 (Tex. 2024), and Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)).
Release by operation of law: If the municipality fails to take the required action “by the later of the 45th day after” receiving the petition or “the next meeting” of the governing body after 30 days, “the area is released by operation of law” (Tex. Loc. Gov’t Code § 42.105(d)). There is no residual discretion for the city to block release.
Future inclusion barred absent owner consent: Once released, the area cannot be re‑included in a municipality’s ETJ or corporate boundaries “unless the owner or owners of the area subsequently request” such inclusion (Tex. Loc. Gov’t Code § 42.105(e)).

Thus, the Court concludes:

City officials are under a mandatory statutory duty to process a compliant petition and release the property.
If they refuse, the statute itself accomplishes the release without further municipal action.
No city policy, resolution, or ordinance can lawfully override this mechanism because state law preempts conflicting local measures (Tex. Const. art. XI, § 5; Laredo).

Crucially for justiciability, successful use of SB 2038 would:

remove the plaintiffs’ property from College Station’s ETJ,
return regulatory authority to the county, and
thereby eliminate the ordinances’ applicability to their property.

This would provide the plaintiffs with the complete relief they seek—freedom from the challenged city ordinances—without any constitutional ruling.

2. Rejection of the “Futility” Argument

The plaintiffs argued that invoking SB 2038 would be futile because:

College Station has adopted at least ten resolutions purporting to reject release petitions, asserting SB 2038 is an unconstitutional delegation and conflicts with Tex. Loc. Gov’t Code § 42.023.
The City has joined other municipalities in separate litigation challenging SB 2038 (City of Grand Prairie v. State, pending in Travis County).

The Supreme Court rejects the futility claim for several reasons:

Legal, not political, futility governs: Futility may sometimes excuse exhaustion where the relevant decisionmaker clearly lacks authority to grant relief. Here, however, the Legislature has expressly given relief and mandated how it occurs.
Statutory “fail-safe” overrides municipal resistance: Any “denial” of a compliant petition is treated as a failure to take the required action, thereby triggering automatic release “by operation of law” (Tex. Loc. Gov’t Code § 42.105(d)). Municipal opposition cannot negate the statutory consequence.
Presumption of constitutionality: SB 2038 remains presumed constitutional (citing Walker v. Gutierrez), and the Court will not treat it as void merely because cities are contesting it elsewhere.
“Paperwork, not permission”: The Court expressly rebuffs the plaintiffs’ claim that requiring them to seek “permission” from an unconstitutional authority is itself an injury. Because the city holds no discretion and release occurs either by compliance or by operation of law, the Court characterizes the process as administrative paperwork, not discretionary permission.
No unconstitutional delegation: Guided by FM Properties, the Court notes that SB 2038 does not delegate public regulatory power to landowners. Instead, the Legislature defines the ETJ regime and then allows owners to choose whether to remain under city regulation or revert to county jurisdiction—a choice among preexisting public regulatory structures, not private lawmaking.

Accordingly, the Court sees no legal barrier to the plaintiffs’ use of SB 2038 and no principled basis to bypass it.

3. Application of Constitutional Avoidance

Once the Court recognizes SB 2038’s capacity to provide complete relief, the constitutional avoidance doctrine becomes decisive. The Court frames the situation this way:

There are two available pathways to relief:
1. The statutory opt‑out process under SB 2038, and
2. A constitutional ruling that ETJ regulation of nonvoting residents violates the Texas Constitution’s republican‑form guarantee.
Each path, if successful, would likely moot the other.
Because constitutional decisions can reshape the structure of government and limit legislative flexibility, courts should not take that path if the Legislature’s own remedial scheme can fully and promptly resolve the dispute.

This leads to the Court’s central prudential holding:

“By refraining from exercising jurisdiction when a dispute can be resolved extrajudicially under a legislative enactment, we uphold the separation of powers that stabilizes our government.”

Several important nuances accompany this holding:

Not a jurisdictional bar: The Court stresses that constitutional avoidance is not a rigid jurisdictional doctrine but a “discretionary policy matter akin to comity.” Courts can hear the claims; they choose not to until the statutory avenue is tried.
Abatement, not dismissal: Rather than declaring the case moot immediately, the Court orders abatement so the plaintiffs have a “reasonable opportunity” to invoke SB 2038. This respects their choice while still prioritizing the Legislature’s remedial scheme.
Context-sensitive application: In a critical footnote, the Court cautions that requiring an opt‑out petition would be inappropriate if the opt‑out procedure itself imposed a separate, independent injury. That is not the case here, but the caveat limits the reach of the new rule.

4. Treatment of the Political Question Doctrine and the Republican-Form Claim

The City, and the court of appeals, had framed the case largely as a political question problem: whether the judiciary may second‑guess the Legislature’s choices about local governmental structure, including ETJ arrangements.

The Supreme Court deliberately sidesteps a definitive answer:

It vacates the court of appeals’ opinion that deemed ETJ governance a political question.
It acknowledges that early cases like Brown and Bonner might be read either as jurisdictional (political question) or as merits decisions concluding the arrangements were still “republican.”
It warns against reading the vacated opinion “too expansively” and underscores that it did not purport to hold all republican‑form claims nonjusticiable.

Thus, the Court leaves open:

whether Article I, Section 2 republican‑form claims are justiciable in Texas courts at all; and
if so, what substantive commitments the clause imposes on state or local governmental structure.

This is significant. The opinion avoids entrenching any categorical political‑question bar to republican‑form litigation, thereby preserving space for future, better‑framed challenges to be heard once statutory remedies are exhausted.

5. Standing, Traceability, and Voluntary Submission to Regulation

Near the end of the opinion, the Court hints at a powerful future standing argument:

“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.” (citing Meyers).

This reflects a tight application of the standing requirement that a plaintiff’s injury be “fairly traceable” to the defendant’s conduct, rather than to the plaintiff’s own choices.

Under this reasoning:

Before SB 2038, any injury from ETJ regulation was traceable to the Legislature’s ETJ statutes and the city’s ordinances.
After SB 2038, if an owner has the unilateral right to leave the ETJ but chooses to remain, the causal chain shifts:
- The city’s enforcement of ETJ ordinances applies only to those who voluntarily remain subject to them.
- An owner’s continued subjection becomes, in part, self‑imposed.

The Court does not hold that standing is already absent; instead, it signals that if the plaintiffs decline to pursue statutory release, a court may deem their injury nonjusticiable because it is not fairly traceable to the City’s conduct alone.

6. Vacatur of the Court of Appeals’ Opinion

Finally, the Court addresses why it vacates the court of appeals’ published opinion. Quoting Morath v. Lewis and U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, the Court reiterates:

Vacatur is an equitable remedy, available when the public interest is served by eliminating the binding precedential effect of an opinion rendered in a materially changed legal context.
Vacatur does not erase an opinion from reporters or bar its use as persuasive authority; it merely strips it of binding force.

Here, because:

SB 2038 was enacted and signed before the court of appeals decided the case,
the statute substantially changed ETJ law by the time the opinion issued, and
the appellate court’s analysis did not account for this transformation,

the Supreme Court concludes that allowing that opinion to stand as binding precedent would mislead lower courts about the current law, especially on the political‑question issue. Vacatur, coupled with remand and abatement, restores doctrinal flexibility for handling republican‑form and ETJ challenges under the new statutory regime.

V. Impact and Future Implications

A. Consequences for ETJ Residents and Landowners

The decision dramatically shifts the litigation landscape for ETJ property owners across Texas:

SB 2038 becomes the first stop: Property owners who challenge ETJ regulations—whether on constitutional, statutory, or preemption grounds—will generally be expected to:
1. first file a compliant petition for ETJ release under Tex. Loc. Gov’t Code §§ 42.101–.105 (or, where appropriate, pursue an ETJ‑wide election under §§ 42.151–.156), and
2. litigate constitutional questions only if release is truly unavailable or would itself cause independent injury.
Potential loss of standing if they decline to opt out: If an ETJ owner chooses not to petition for removal, courts may conclude that any regulatory “injury” is self‑inflicted and not fairly traceable to government action, undermining standing.
Powerful bargaining tool: The recognized right to unilateral exit may give ETJ landowners substantial leverage in negotiations with cities over future annexation terms, infrastructure services, or development conditions.
Non-universal applicability: SB 2038 excludes some areas from the opt‑out mechanism (e.g., areas near certain military bases or subject to strategic partnership agreements). For those owners, constitutional challenges may still be necessary and justiciable—even under Elliott.

B. Consequences for Municipalities

For Texas cities, the opinion underscores and amplifies several realities:

No veto power over ETJ exit: Cities cannot lawfully prevent ETJ release where a valid petition is filed. Any purported “denial” of such a petition is legally ineffective and triggers release by operation of law.
Risk of involuntary ETJ shrinkage: Widespread use of SB 2038 could substantially reduce municipal ETJ boundaries, shifting regulatory authority to counties and potentially affecting long‑term planning, infrastructure, and annexation strategies.
Limits of local resistance to state law: Even where cities believe SB 2038 is unconstitutional, they remain bound by it unless and until a court so holds. Adopting resolutions contrary to SB 2038 does not preserve ETJ jurisdiction as a matter of law.
Ongoing constitutional litigation about SB 2038: Separate suits (e.g., City of Grand Prairie v. State) may ultimately determine SB 2038’s validity. Elliott, however, treats the statute as controlling law for now.
Need to reconcile ETJ ordinances with state policy: Cities must recognize that their ETJ regulatory authority is now conditioned on landowners’ continued choice to remain within the ETJ. Aggressive ETJ regulation may prompt owners to exit, undermining municipal control.

C. Implications for Constitutional Litigation and Justiciability in Texas

Beyond the ETJ context, Elliott reinforces and extends key justiciability principles:

Exhaustion-like requirement for statutory remedies: The decision suggests that when the Legislature provides a nonjudicial remedy capable of fully resolving a dispute, Texas courts will generally require that litigants attempt that remedy before adjudicating constitutional challenges—even when the remedy is not administered by an agency but operates through self‑executing statutory mechanisms.
Constitutional avoidance as a structural principle: The opinion firmly anchors avoidance in separation‑of‑powers concerns: courts should avoid creating unnecessary constitutional friction with the Legislature, particularly where the Legislature has already recalibrated the regulatory balance.
Dynamic treatment of standing: The Court’s emphasis on traceability and voluntary subjection to regulation signals that post‑enactment statutory changes can alter the causation analysis for standing, potentially extinguishing justiciable injuries that were once present.

D. The Future of the “Republican Form of Government” Clause in Texas

Article I, Section 2 of the Texas Constitution—rarely litigated in modern times—emerges from this case uncharted but alive:

The Court does not decide whether the clause is judicially enforceable, leaving open the possibility that future, well‑postured cases could test its contours.
The Court does not define what the “republican form of government” guarantees in Texas, beyond acknowledging historical descriptions that emphasize popular election and control (citing Bonner quoting Thomas Jefferson).
By vacating the court of appeals’ opinion, the Court prevents that intermediate court’s reading from ossifying into statewide doctrine that all republican‑form claims are categorically nonjusticiable.

In practical terms, the opinion can be seen as a procedural gatekeeping decision: before Texas courts will confront the meaning of the republican‑form guarantee in the ETJ context, plaintiffs must first exhaust the Legislature’s newly provided exit mechanism.

VI. Complex Concepts Explained

The opinion uses several technical legal doctrines. The following simplified explanations may help clarify them:

Extraterritorial Jurisdiction (ETJ): A buffer zone outside city limits within which the Legislature authorizes a city to exercise limited regulatory powers (for example, on subdivision plats and certain infrastructure) to protect health, safety, and orderly growth.
Standing: A threshold requirement that a plaintiff show:
1. a concrete and particularized injury,
2. caused (or fairly traceable) to the defendant’s actions, and
3. likely to be redressed by a favorable court ruling.
Without standing, a court has no authority to decide the merits.
Ripeness: The idea that courts should decide disputes only when they have fully developed facts and an actual or imminent injury—not hypothetical or speculative harms in the distant future.
Mootness: Even if a case was once live, it becomes moot if subsequent events eliminate the plaintiff’s injury or otherwise make it impossible for a court to grant meaningful relief.
Political Question Doctrine: A category of justiciability that excludes controversies the Constitution commits to the political branches, such as certain foreign‑affairs or internal legislative‑procedure matters. The question is whether there are “judicially discoverable and manageable standards” for resolving the issue, or whether resolution requires policy choices reserved to elected officials.
Constitutional Avoidance: A prudential rule that courts should not decide constitutional questions if a case can be resolved on nonconstitutional grounds (such as statutory interpretation or the availability of a statutory remedy). It is rooted in separation of powers and a desire to avoid unnecessary constitutional conflicts with the Legislature.
Operation of Law: A legal event that occurs automatically by force of a statute, without needing further action by a person or government actor. Under SB 2038, if a city fails to release an area after a valid petition, release occurs by operation of law.
Vacatur: When a higher court sets aside (vacates) a lower court’s judgment or opinion, often because of mootness or changed circumstances. Vacatur typically removes the lower opinion’s precedential force while leaving it available as nonbinding persuasive authority.
Facial vs. As-Applied Constitutional Challenges:
- Facial challenge: Argues that a law is unconstitutional in all its applications.
- As-applied challenge: Argues that a law is unconstitutional as applied to the particular plaintiff or set of facts.
Elliott involves a facial challenge to the ordinances under the republican‑form clause.

VII. Conclusion

The Texas Supreme Court’s decision in Elliott v. City of College Station does not resolve the foundational question whether cities may constitutionally regulate ETJ residents who cannot vote in city elections. Instead, it erects a clear procedural and doctrinal framework around that question.

First, the Court gives an authoritative construction to SB 2038: ETJ landowners hold a unilateral, self‑executing right to remove their property from a city’s ETJ via petition. City resistance cannot lawfully block release; at most, it accelerates release by operation of law.

Second, the Court strongly reaffirms constitutional avoidance. When the Legislature has supplied a complete, nonjudicial mechanism to relieve the asserted injury, courts should insist that litigants try that mechanism before engaging in far‑reaching constitutional adjudication—especially in cases implicating the fundamental design of local government.

Third, by vacating the court of appeals’ opinion, the Court preserves doctrinal space for future litigation over the Texas Constitution’s republican‑form guarantee. It neither insulates ETJ regimes from constitutional scrutiny nor commits to viewing such claims as political questions; those issues remain open.

Finally, the opinion recasts the practical reality of ETJ regulation in Texas. Going forward, ETJ regulation will rest not only on legislative authorization but also on landowner consent—expressed through the choice to remain in or exit the ETJ under SB 2038. Courts, in turn, will evaluate the justiciability of constitutional attacks on ETJ governance against the background of that exit right and the separation‑of‑powers principles that counsel judicial restraint.