Statutory Self‑Help Before Constitutional Adjudication: The Texas Supreme Court’s ETJ Opt‑Out Framework 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) sits at the intersection of municipal power, individual voting rights, and judicial restraint. The case raises a fundamental constitutional question: can a city regulate residents of its extraterritorial jurisdiction (ETJ) who have no right to vote in city elections without offending the Texas Constitution’s guarantee of a “republican form of government”?

Yet the Court does not answer that question. Instead, it uses this dispute to reinforce a powerful procedural and structural principle: when the Legislature supplies an effective statutory “self‑help” mechanism that can resolve an alleged constitutional injury, courts should ordinarily require litigants to pursue that relief before adjudicating broad constitutional challenges. In doing so, the Court:

Vacates the court of appeals’ opinion (which had relied on the political question doctrine),
Remands and orders the trial court to abate the case, and
Signals that if the plaintiffs decline to use the new statutory opt‑out process, any ongoing “injury” may be deemed self‑inflicted and thus non‑justiciable.

This commentary examines the opinion in depth: the factual and statutory background, the litigation posture, the Court’s use of constitutional avoidance, its reading of the 2023 ETJ reforms (SB 2038), and the likely impact on future ETJ and constitutional litigation in Texas.

II. Background and Context

A. Parties and Factual Setting

Petitioners, Shana Elliott and Lawrence Kalke, are residents and property owners who live not within the City of College Station’s corporate limits, but within its extraterritorial jurisdiction (ETJ). The City of College Station, a home‑rule municipality with more than 100,000 residents, exercises certain regulatory powers in its ETJ pursuant to Chapter 42 and related provisions of the Texas Local Government Code.

The City and its officials—Mayor Karl Mooney and City Manager Bryan Woods in their official capacities—are respondents. They concede that the ordinances at issue apply to Elliott and Kalke’s property and could be enforced, though the City claims never to have enforced them against these or similarly situated ETJ residents.

B. What Is Extraterritorial Jurisdiction (ETJ)?

Texas municipalities may regulate in a limited buffer zone outside city limits known as the extraterritorial jurisdiction. The Legislature:

Defines ETJ boundaries, primarily by population size and geographic criteria (Local Gov’t Code § 42.021), and
Specifies which topics may be regulated (e.g., platting, subdivision, certain signage, some roadway issues) and which are off‑limits (e.g., building codes, building heights) in the ETJ.

The Legislature has declared the policy of ETJ regulation to be the promotion and protection of the “general health, safety, and welfare of persons residing in and adjacent to the municipalities” (Local Gov’t Code § 42.001). ETJ authority is thus a delegation of the State’s police power to municipalities for a defined geographic band.

C. The Challenged Ordinances

Elliott and Kalke challenge two specific City ordinances as applied to their ETJ properties:

Off‑premise sign prohibition – A City ordinance bans “all off‑premise and portable signs,” including billboards, in the ETJ. “Off‑premise” is defined consistently with state law as a sign advertising something not principally located or sold on the premises.
Driveway permit requirement – Another ordinance requires any property owner desiring a new driveway or improvements to an existing driveway within the City or its ETJ to obtain a City driveway permit.

The plaintiffs have not actually attempted to erect off‑premise signs or alter driveways. Their complaint is that these potential regulations hang over them as an impermissible encumbrance on their property rights imposed by a government they cannot help elect.

D. The Constitutional Claim: “Republican Form of Government”

The plaintiffs’ core legal theory is that ETJ regulation without representation violates Article I, § 2 of the Texas Constitution, which states:

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…

Drawing on the language and concept akin to the United States Constitution’s Guarantee Clause (Article IV, § 4), the plaintiffs contend that a “republican form of government” at a minimum requires:

that those who are subject to a governmental jurisdiction’s regulation must have the right to vote for the officials who are making and enforcing those regulations.

Accordingly, they seek a facial declaration that applying these ordinances to ETJ residents who cannot vote in City elections is unconstitutional and that the ordinances are therefore void and unenforceable.

E. The City’s Response and Justiciability Challenges

The City opposed the lawsuit on both jurisdictional and merits grounds. Its plea to the jurisdiction raised:

Standing – No concrete injury because no enforcement has occurred or been threatened; the plaintiffs have not attempted the regulated conduct.
Ripeness – Any dispute is speculative without imminent enforcement action.
Political question doctrine – The form and structure of local government is committed to the Legislature and not subject to judicial regulation; courts lack standards to judge whether a particular allocation of regulatory authority is consistent with a “republican form of government.”

The trial court granted the City’s plea and dismissed with prejudice. As the Supreme Court notes, dismissal with prejudice is generally inconsistent with a pure standing or ripeness dismissal, which is ordinarily without prejudice because defects might be cured. That procedural detail suggests the trial court accepted the political question argument or otherwise concluded that the claim could never be justiciable.

F. The Intervening 2023 Legislation: SB 2038

While the case was on appeal, the Legislature enacted SB 2038 (2023), codified in Local Government Code §§ 42.101–.156. Historically, a city’s ETJ could not be reduced without the city’s written consent (Local Gov’t Code § 42.023). SB 2038 dramatically alters that landscape by creating:

Release by petition – Owners of “an area consisting of one or more parcels” in the ETJ may petition for release. If the petition meets statutory requisites and the city secretary verifies signatures, the city must release the area “immediately,” and if it does not, release occurs by operation of law after a set deadline (Local Gov’t Code § 42.105(d)).
Release by election – Residents of defined areas can initiate an election to vote on whether the area should be removed from the ETJ.

Certain areas are statutorily excluded (e.g., within a five‑mile radius of a military base with active training; areas under a strategic partnership agreement). But neither side contends that Elliott and Kalke’s property falls within any exclusion. The City concedes they have an unconditional statutory right to secure release from its ETJ.

Crucially, once an area is released, it cannot be re‑included in the city’s ETJ or corporate limits unless the owner later requests inclusion (Local Gov’t Code § 42.105(e)). Regulation reverts to the county or the default state framework; the city’s ETJ ordinances no longer apply.

III. Summary of the Supreme Court’s Opinion

A. Framing the Core Issue: Justiciability After a Legislative “Fix”

By the time the case reached the Texas Supreme Court, the question was not yet the substantive compatibility of ETJ regulation with a republican form of government. Instead, it was whether the case remained justiciable in light of SB 2038, which:

Gives the plaintiffs a unilateral, non‑discretionary path to be free of City regulation, and
Could entirely moot their constitutional objections if pursued.

The Court holds that this legislative development fundamentally alters the legal landscape. It therefore:

Vacates the trial court’s dismissal and the court of appeals’ affirmance,
Remands to the trial court with instructions to abate the case, giving the plaintiffs a “reasonable opportunity” to complete the opt‑out process, and
Signals that if they decline to pursue release, any future claim may be non‑justiciable because any ongoing injury would be “traceable only to their choice to voluntarily submit to the City’s ETJ regulation.”

B. No Present Ruling on the “Republican Form of Government” Merits

The Court expressly avoids ruling on:

Whether ETJ regulation of non‑voting residents violates Article I, § 2 of the Texas Constitution, or
Whether claims invoking the state “republican form of government” clause are justiciable as a category.

Instead, it relies on the doctrine of constitutional avoidance and the availability of a complete statutory remedy to postpone and probably eliminate the need to decide these issues.

C. Treatment of the Court of Appeals’ Political Question Holding

The court of appeals had affirmed dismissal based on the political question doctrine, concluding that decisions about the form of municipal government—such as whether to regulate ETJ residents—are committed to the Legislature, not the courts.

The Supreme Court:

Notes that the court of appeals’ analysis was heavily influenced by earlier Texas cases (Brown v. City of Galveston (1903) and Bonner v. Belsterling (1911)),
Observes that the court of appeals read these cases as restricting judicial review of claims about the structure of local government, and
Vacates the opinion, explicitly to prevent it from having binding precedential effect in a legal landscape now altered by SB 2038.

The Court emphasizes that:

The vacated opinion may still be cited as persuasive authority, but
It should not be read too broadly; even the court of appeals expressed uncertainty about whether Brown and Bonner implied non‑justiciability or, instead, decided the merits and found no constitutional violation.

IV. Detailed Analysis

A. The New ETJ Regime Under SB 2038

1. From City Consent to Owner‑Initiated Release

Before 2023, Local Government Code § 42.023 generally prohibited reducing a municipality’s ETJ without the municipality’s written consent, subject to specified exceptions. SB 2038 overlays that framework with a robust, owner‑initiated process that:

Allows even a single parcel to form the “area” eligible for release,
Requires only that the petition be properly drawn and signed by qualifying owners or voters, and
Removes any substantive discretion from the city regarding whether to grant the release.

On this statutory text, the Court repeatedly stresses that:

“Because the statute prescribes a mandatory action and a mandatory consequence for noncompliance, no discretion is afforded to the municipality on these matters.”

Thus, a compliant petition triggers an automatic legal consequence. The city must release the area; if it fails to do so by the statutory deadline, the area is released “by operation of law” (Local Gov’t Code § 42.105(d)).

2. The City’s Resistance and Its Legal (Ir)relevance

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

The City has passed at least ten resolutions “denying” similar petitions and declaring SB 2038 unconstitutional or inconsistent with § 42.023’s consent requirement, and
The City has joined other municipalities in separate litigation challenging SB 2038 (e.g., City of Grand Prairie v. State in Travis County).

The Supreme Court firmly rejects “futility” as a bar to using the statutory process. It reasons that:

A city’s resolutions cannot override an explicit legislative command or alter a statutory consequence that occurs by operation of law.
Any purported “denial” of a compliant petition is legally ineffective and, in fact, triggers the release by operation of law because the municipality has “failed to take action to release the area.”
SB 2038 enjoys a presumption of constitutionality unless and until invalidated in a proper challenge.

Thus, as far as this case is concerned, the Court treats release under SB 2038 as “all but a certainty” if the plaintiffs file a compliant petition.

3. The Consequence: Mootness Is Likely, or at Least Possible

Once the area is released from the ETJ, the City’s ordinances—including those on signs and driveways—no longer apply. As the Court notes, the statute:

Does not empower landowners to craft a custom regulatory regime, and
Does not authorize them to pick and choose which city ordinances apply.

Instead, it offers a binary choice of legal regime—remain under city ETJ regulation (with no city vote), or exit the ETJ and be regulated under county/state law instead. For Elliott and Kalke, who are only challenging the validity of City ordinances as applied to them, this choice would:

Fully eliminate the regulatory burdens they contest, and
Thus entirely moot their specific claim that ETJ ordinances violate their rights.

Even if some theoretical constitutional issues could survive that mootness (for example, if they were seeking a systemic declaration applicable to others), the Court emphasizes that at minimum SB 2038 largely alleviates their “republican form of government” concerns under their own articulation of those concerns.

B. Constitutional Avoidance and the Duty to Seek Nonjudicial Relief

1. The Avoidance Doctrine: Role and Rationale

The Court explicitly grounds its disposition in the doctrine of constitutional avoidance, invoking cases like:

In re Turner (courts have a duty to avoid unnecessary constitutional issues),
Webster v. Commission for Lawyer Discipline (avoid “constitutional friction” unless unavoidable),
Borgelt v. Austin Firefighters Ass’n (avoidance as an expression of separation of powers and respect for legislative branches), and
McIntyre v. Ramirez (“our role is not to second‑guess the policy choices that inform our statutes”).

Under this doctrine, courts:

Interpret statutes to avoid constitutional conflicts where fairly possible, and
Refrain from deciding constitutional questions when a case can be resolved on non‑constitutional grounds.

The Court characterizes avoidance here as a prudential rule of “order of operations”, akin to comity:

“There are two methods an ETJ property owner can pursue to get out from under the City's regulation: under the ETJ statute or under the Texas Constitution. Each one could resolve, and thereby moot, the other. The doctrine of constitutional avoidance directs an order of operations…”

2. Parallel to “Exhaustion” and Mootness in Prior Cases

The Court analogizes the required pursuit of SB 2038 relief to prior rulings where litigants were required to seek administrative or statutory remedies before pressing constitutional claims:

CPS Energy v. ERCOT – Utility was required to exhaust proceedings at the Public Utility Commission where a ruling might cure alleged constitutional defects and moot the claims.
Garcia v. City of Willis – A takings plaintiff had to pursue an administrative hearing that might grant complete relief, even if the administrative body could not itself decide constitutional claims.
City of Dallas v. Stewart – A litigant must avail itself of statutory remedies that might moot its takings claim instead of immediately suing on the Constitution.

In each case, the Court underscored that:

The existence of a potential nonjudicial cure counseled against immediate constitutional adjudication;
Even if the nonjudicial forum could not rule on constitutional questions, it might eliminate the factual basis for any alleged injury (thus mooting the constitutional question entirely).

The same logic applies to SB 2038: while the City’s constitutional objections to SB 2038 are pending elsewhere, the statute presently:

Is in force, and
Can fully resolve the specific injury alleged by Elliott and Kalke.

3. Self‑Inflicted Injury and Justiciability if Plaintiffs Decline to Opt Out

Near the end of the opinion, the Court offers a crucial warning about the future of the case:

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

This is an application of the standard standing requirements articulated in Meyers v. JDC/Firethorne, Ltd.: a plaintiff must show:

An injury in fact,
Fairly traceable to the defendant’s conduct, and
Redressable by a favorable court ruling.

Once SB 2038 makes exit from the ETJ:

Unilateral,
Automatic upon a compliant petition, and
Permanent absent renewed consent,

continuing to remain under ETJ regulatory authority after choosing not to file a petition might render any injury self‑imposed, breaking the chain of causation needed for standing.

This is an important signal: while the Court formally frames its remand as an abatement for prudential reasons, it also forecasts that failure to use the statutory remedy could make the constitutional claims non‑justiciable as a matter of standing.

C. The Court’s Treatment of the Political Question Doctrine and “Republican Form of Government” Claims

1. The Court of Appeals’ Reasoning

The court of appeals relied on Brown v. City of Galveston (1903) and Bonner v. Belsterling (1911) — early 20th‑century cases involving challenges to the structure of city government — to conclude that:

Determining whether a particular municipal design is “republican” is a political question entrusted to the Legislature, and
Thus, the plaintiffs' claims were non‑justiciable.

However, the court of appeals candidly acknowledged that Brown and Bonner could also be read as having:

Accepted the justiciability of “republican form” claims, but
Held that the specific legislative arrangements at issue did not violate that standard.

2. The Supreme Court’s Response

The Supreme Court does not endorse the court of appeals’ political question analysis and makes several clarifying points:

It expressly states that the court of appeals’ opinion “does not purport to hold that ‘republican form of government’ claims under the Texas Constitution are categorically nonjusticiable.”
It notes the court of appeals’ uncertainty about whether Brown and Bonner decided justiciability or the merits, cautioning against reading that opinion too broadly.
It vacates the opinion, thereby stripping it of binding precedential force, although it remains available for persuasive use.

By declining to resolve whether “republican form of government” questions for Texas municipalities are justiciable, the Court keeps that doctrinal door open for another day. This is significant: there is no holding here that such claims are per se political questions.

D. Vacatur and the Public Interest

Vacatur is not automatic when a case becomes moot or partially mooted; it is an equitable remedy. 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 would be served by eliminating the precedential weight of a decision that no longer rests on the current legal landscape.

Here, SB 2038:

Was signed by the Governor before the court of appeals heard argument, and
Went into effect almost simultaneously with the issuance of the court of appeals’ opinion.

The Supreme Court notes there is no indication the court of appeals was fully apprised of the law’s effective status. Given that the statute “provides a means of nonjudicial recourse that largely alleviates the plaintiffs’…concerns,” the high court concludes that it is equitable to:

Vacate the appellate opinion,
so that future litigation over the justiciability of republican‑form‑of‑government claims and ETJ regulation can proceed without being bound by an analysis based on an obsolete statutory framework.

E. Police Power, Delegation, and Home‑Rule Limits

The opinion situates the ETJ system within the broader constitutional structure of Texas law:

The Legislature has long exercised the police power to regulate for public health, safety, and welfare. It may delegate portions of that power to municipalities, including in areas beyond city limits.
But home‑rule cities’ authority is always subject to state preemption (Tex. Const. art. XI, § 5). Municipal charters and ordinances cannot conflict with “general laws enacted by the Legislature.”
SB 2038 is such a general law. Thus, even if the City believes SB 2038 improperly overrides § 42.023 or delegates local legislative authority to landowners, it:
- Cannot ignore the statute,
- Cannot adopt resolutions to nullify its commands, and
- Must respect the statute’s automatic release mechanism, unless and until a court of competent jurisdiction declares the law unconstitutional.

The Court reinforces that no “delegation” to private parties is occurring in the constitutional sense here. SB 2038 merely allows landowners to choose among existing governmental schemes—city ETJ regulation versus county/state regulation. Landowners are not given governmental power to make rules; they are given a choice

F. Complex Concepts Simplified

1. “Republican Form of Government” in the Texas Constitution

The phrase “republican form of government” is historically and conceptually dense. As the Court notes (quoting Bonner), even Thomas Jefferson considered “republic” to be a “very vague” term. At its core, a republican government is:

Founded on the authority of the people, and
Characterized by some degree of popular election and control of government officials.

The plaintiffs argue that this principle requires that:

All those who are governed by a particular local regulatory authority must be able to vote in that authority’s elections.

The Court neither accepts nor rejects that interpretation. It reserves that question for another day, focusing instead on the availability of a nonjudicial remedy.

2. ETJ Regulation Without Representation

For lay readers, the plaintiffs’ complaint can be distilled as follows:

The City of College Station regulates aspects of their property (such as signs and driveways).
They live outside the city limits and therefore cannot vote for city council members.
They view this as “regulation without representation,” in tension with republican government principles.

SB 2038 does not give them the vote, but it gives them a different remedy: they may escape City regulation entirely by exiting the ETJ. The Supreme Court’s opinion is, in effect, about whether they must attempt that exit before asking the judiciary to rebuild or invalidate the ETJ system on constitutional grounds.

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

Several interlocking doctrines determine whether a court may reach the merits:

Standing – Does the plaintiff have a concrete, personal injury fairly traceable to the defendant and redressable by the court?
Ripeness – Is the dispute sufficiently developed and immediate, or is it hypothetical and contingent?
Mootness – Has something occurred (e.g., changes in law, facts, or relief) that eliminates the dispute or the court’s ability to grant effective relief?
Political question – Are the issues textually committed to another branch of government, or is there a lack of judicially manageable standards to decide them?

The Court does not definitively resolve how these doctrines apply to Elliott and Kalke’s claims under the pre‑SB‑2038 regime. However, it:

Strongly suggests that SB 2038 will render the case moot if the plaintiffs pursue release, and
Warns that if they do not pursue release, their injury may become self‑inflicted and thus not fairly traceable to the City, undermining standing.

4. Vacatur

“Vacatur” means the higher court wipes away the lower court’s judgment and opinion. The case remains as if that decision had never been entered for precedential purposes. However:

The vacated opinion remains available to read and cite as a persuasive source; it is simply no longer binding precedent on other courts.

The Supreme Court uses this tool to remove the binding effect of an appellate decision that:

Addressed constitutional justiciability in a now‑superseded statutory context, and
Could interfere with the careful application of constitutional avoidance in future cases.

V. Likely Impact and Future Implications

A. On ETJ Litigation and Municipal Regulation

This opinion reshapes the litigation landscape for ETJ disputes in several ways:

Practical primacy of SB 2038 remedies – ETJ property owners who object to municipal regulation will be expected to:
- First pursue release under SB 2038, and
- Only if that process fails to cure their injury (or is inapplicable) can they proceed to press deeper constitutional challenges.
Constraint on facial constitutional challenges – Litigants cannot easily seek sweeping declarations against ETJ regimes while ignoring a legislatively provided, individualized opt‑out. Courts will ask: Why haven’t you used the statutory self‑help route first?
Preservation of legislative primacy over ETJ design – The decision underscores that creation, alteration, and release of ETJ territory are fundamentally legislative functions. The judiciary’s role is secondary and constrained by constitutional avoidance and justiciability doctrines.

B. On “Regulation Without Representation” Theories

For those seeking to mount broad constitutional attacks on ETJ as “regulation without representation,” this decision is a double‑edged development:

On the one hand, the Court does not reject in principle that Article I, § 2 might constrain legislative design of local governance. It leaves open the possibility that some configurations might violate the requirement of a republican form of government.
On the other hand, by emphasizing the availability of an opt‑out mechanism, the Court:
- Reduces the urgency of judicial intervention, and
- Makes it harder to show a non‑self‑inflicted injury necessary for standing if plaintiffs simply decline the legislatively provided exit.

In practical terms, the Court appears to be signaling that:

So long as ETJ regulation is coupled with a meaningful statutory off‑ramp,
Claims that ETJ is inherently non‑republican are more difficult to frame as live, justiciable controversies.

C. On Constitutional Avoidance and Judicial Restraint

Doctrinally, Elliott strengthens a line of Texas cases emphasizing:

Caution in reaching constitutional questions, especially structural questions about the design of government;
Respect for legislative adjustments of regulatory schemes;
Use of abatement and remand as tools to allow nonjudicial processes to run their course before deciding constitutional claims.

Future litigants should expect:

More frequent use of abatement orders when intervening legislation or administrative processes may resolve disputes;
Courts to inquire closely into whether alleged injuries are still genuinely attributable to the challenged government conduct, or instead to plaintiffs’ failure to use available statutory remedies.

D. On SB 2038 Challenges by Municipalities

The opinion also has indirect implications for cities challenging SB 2038 itself:

The Court treats SB 2038 as fully operative and authoritative unless and until a court declares it unconstitutional.
By emphasizing the statute’s mandatory language and automatic release mechanism, it reinforces the view that municipalities must comply with SB 2038 even while litigating its validity elsewhere.

Although the Court does not decide SB 2038’s validity, it clearly frames it as:

A valid exercise of legislative power over the ETJ system,
Displacing any contrary municipal policy or ordinance (consistent with the home‑rule limitation that city ordinances cannot conflict with general laws).

VI. Conclusion: Key Takeaways

The decision in Elliott v. City of College Station is less about the substantive meaning of “republican form of government” and more about how and when courts should reach such constitutional questions. Its most important contributions include:

Statutory self‑help first: When the Legislature offers a unilateral, non‑discretionary remedy that can eliminate a plaintiff’s alleged injury (here, SB 2038’s ETJ opt‑out), Texas courts will ordinarily:
- Require litigants to pursue that remedy before adjudicating constitutional claims, and
- View failure to do so as potentially breaking the causal link needed for standing.
Enhanced constitutional avoidance: The Court deepens its commitment to avoiding constitutional holdings when nonjudicial processes—legislative, administrative, or otherwise—can resolve or moot disputes.
Vacatur as a tool of prudence: The Court vacates an appellate opinion on the political question doctrine to prevent an outdated legal framework from ossifying as binding precedent after the Legislature has re‑engineered the ETJ system.
Open questions preserved: The Court leaves unresolved:
- Whether Article I, § 2 “republican form of government” claims are categorically justiciable or not, and
- Whether ETJ regulation, in the absence of an opt‑out mechanism, would violate that clause.
Clarified legislative supremacy over ETJ boundaries: The opinion reaffirms that ETJ territory and authority are legislative creations. Municipalities must operate within statutory parameters, including owner‑initiated release mechanisms that override prior consent requirements.

For ETJ residents and municipalities across Texas, the practical message is clear: SB 2038 now sits at the center of the ETJ regulatory framework. Property owners who object to city regulation must seriously consider using its opt‑out mechanism. Courts, in turn, will be reluctant to render sweeping constitutional judgments when a precise, legislatively provided tool can resolve the dispute without unsettling the broader legal order.