# Elliott v. City of Coll. Station

Supreme Court of Texas, No. 23-0767

**Elliott v. City of Coll. Station, No. 23-0767 (Tex. May 9, 2025). Holding: Because the Legislature's 2023 opt-out statute offers the property owners a unilateral way to leave the City's ETJ, which would moot their constitutional claims, the Court, applying the doctrine of constitutional avoidance, vacated the lower courts' judgments and the court of appeals' opinion and remanded with instructions to abate so the owners can use the statutory release process; if they do not do so within a reasonable time, the suit may be dismissed because any injury would be traceable only to their choice to remain subject to the City's regulation.**

Practice areas: texas constitution, civil procedure, real property

## Key issues

- Under the constitutional-avoidance doctrine, the Court vacated lower-court judgments that dismissed as a nonjusticiable political question a challenge to a city's regulation of nonvoting residents of its extraterritorial jurisdiction (ETJ) under the Texas Constitution's republican-form-of-government clause, because a 2023 law lets ETJ property owners unilaterally opt out of a city's ETJ.
- The case is remanded with instructions to abate so the property owners can use the statutory release process; if they do not do so within a reasonable time, the suit may be dismissed because any injury would result from their choice to remain subject to the ordinances.

## Factual History
Shana Elliott and Lawrence Kalke live and own real property in the extraterritorial jurisdiction (ETJ) of College Station, which extends five miles from the corporate boundary because the city has more than 100,000 residents; they cannot vote in city elections, but their property is subject to certain city ordinances (Opinion, PDF p. 4). They challenge two: one prohibiting "all off-premise and portable signs," and one requiring a permit to build or improve a driveway (Opinion, PDF pp. 4-5). They have not taken any steps toward erecting a sign or building a driveway; the City concedes the ordinances apply to their property and could be enforced by an injunction suit, and says it has neither enforced nor threatened to enforce them against the plaintiffs, but it has made no assurances of nonenforcement (Opinion, PDF p. 5).

## Procedural History
The plaintiffs sought a declaration that the ordinances are facially invalid and unenforceable because local regulation of nonvoting ETJ residents violates the pledge to "the preservation of a republican form of government" in article I, section 2 of the Texas Constitution (Opinion, PDF pp. 5-6). The City filed a plea to the jurisdiction arguing lack of standing, lack of ripeness, and that the form of local government is a nonjusticiable political question; the trial court granted it and dismissed the case with prejudice (Opinion, PDF pp. 6-7). While the appeal was pending, the Legislature enacted S.B. 2038, effective September 1, 2023, giving ETJ landowners a way to secure release of their property from a city's ETJ; the court of appeals affirmed on political-question grounds the day before the law took effect, without discussing it (Opinion, PDF p. 7 & n.24, 15 n.56). The plaintiffs petitioned for review on September 20, 2023; the Court granted review on October 18, 2024, invited the Solicitor General to file an amicus brief, heard argument on January 15, 2025, and decided the case on May 9, 2025 (Docket; Opinion, PDF pp. 1, 8, 18).

## Issues Presented
The plaintiffs present whether the court of appeals erred by holding, for the first time in Texas history, that applying a provision of the Texas Bill of Rights presents a nonjusticiable political question, and by holding that article I, section 2 provides no limit on government power (Brief on the Merits (Shana Elliot, et al), PDF p. 14; Petition for Review (Shana Elliott, et al), PDF p. 11). The City contends the court of appeals only upheld dismissal for lack of jurisdiction and did not reach the merits, and that the plaintiffs lack standing, their claims are unripe, and the claims present a political question (Brief on the Merits (the City of College Station, Texas, et al), PDF p. 13). The Court decided that, given S.B. 2038, the litigation should not proceed as currently postured (Opinion, PDF pp. 2-3, 8).

## Standard(s) of Review
The Court applies the doctrine of constitutional avoidance, under which courts have a duty to avoid unnecessary constitutional issues, as a discretionary policy matter akin to comity, and it vacates opinions in cases that have become moot when the public interest would be served (Opinion, PDF pp. 14-16).

## Legal Arguments
**Whether the republican-form-of-government challenge is justiciable.**

**Petitioners (Elliott and Kalke):** The court of appeals' holding that article I, section 2 is beyond judicial review is a radical error: no Texas court had held a provision of the Bill of Rights to present a political question, courts have adjudicated claims under that section, and the court ignored its text, structure, and history (Brief on the Merits (Shana Elliot, et al), PDF p. 25; Petition for Review (Shana Elliott, et al), PDF p. 17). They argued that the S.B. 2038 opt-out process is futile because the City has formally denied release petitions and challenges the statute (Opinion, PDF p. 12).

**Respondents (City of College Station):** The claims rest on hypothetical events that have not occurred, since the plaintiffs have not tried to erect a sign or build a driveway and fear only that the City may enforce the ordinances; the plaintiffs therefore lack standing, their claims are not ripe, and the questions about the structure of local government are political questions (Brief on the Merits (the City of College Station, Texas, et al), PDF p. 20; Response to Petition (City of College Station, Texas, et al), PDF p. 20; Opinion, PDF pp. 6-7).

## Stated Reasons the Court Should Take the Case
The plaintiffs argued that the decision departs from the state's jurisprudence, conflicts with prior Texas decisions that ruled on the meaning of article I, section 2, and presents an ideal vehicle (Petition for Review (Shana Elliott, et al), PDF p. 17). The City responded that the court of appeals decided only jurisdiction, that the second issue is not ripe for review, and that two other jurisdictional grounds support affirmance (Response to Petition (City of College Station, Texas, et al), PDF p. 12).

## Practice Area Tags
texas-constitution, civil-procedure, real-property

## Procedural Posture/Vehicle
Petition for review from the Sixth Court of Appeals in an appeal from the dismissal of a declaratory-judgment suit on a plea to the jurisdiction; argued January 15, 2025, and decided May 9, 2025, with a concurrence in part and dissent in part (Opinion, PDF pp. 1, 6-7, 18).

## Amicus Involvement
- [Texas Municipal League](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=af95a419-2d43-43e2-894d-804bde529af1&coa=cossup&DT=BRIEFS&MediaID=bb6131ec-9572-4106-a8e9-88c5014648e9) filed an amicus curiae brief on July 31, 2024.
- [The Goldwater Institute](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=06047dee-aa85-4ca0-a01e-67385adaf806&coa=cossup&DT=BRIEFS&MediaID=e9fda444-920b-4337-a5b6-2ab26d50ee7c) filed an amicus curiae brief on August 21, 2024.
- [Bexar County Emergency Services District Association, et al.](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d2141ccd-1231-4fdc-9f97-4bde3655acd0&coa=cossup&DT=BRIEFS&MediaID=9c006aed-a90c-49fb-bdde-42470b70de43) filed an amicus curiae brief on August 28, 2024, and a supplemental amicus curiae letter brief on September 27, 2024.
- [The State of Texas, through the Solicitor General](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a88144ee-8c52-4f6d-857f-9f8bafaef89f&coa=cossup&DT=BRIEFS&MediaID=9879dd8b-33f8-4eea-8258-bbe5307b3d7a) filed an amicus curiae brief on March 20, 2025, at the Court's invitation.
- [Timberwood Park](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fbbf4522-cb54-465d-b794-01d29f044df9&coa=cossup&DT=BRIEFS&MediaID=2911c8cb-4d67-446c-98bd-c875cdbced5e) filed an amicus curiae brief on March 21, 2025.

## Holding
Because the Legislature's 2023 opt-out statute offers the property owners a unilateral way to leave the City's ETJ, which would moot their constitutional claims, the Court, applying the doctrine of constitutional avoidance, vacated the lower courts' judgments and the court of appeals' opinion and remanded with instructions to abate so the owners can use the statutory release process; if they do not do so within a reasonable time, the suit may be dismissed because any injury would be traceable only to their choice to remain subject to the City's regulation (Opinion, PDF pp. 2-3, 8, 14-18).

## Court's Reasoning
Extraterritorial jurisdiction is a legislative creation that lets cities regulate certain matters, including signage, outside their boundaries, and the Legislature controls when it may be reduced (Opinion, PDF pp. 3-4, 9). S.B. 2038 lets the owner of even a single parcel, on a petition signed by a majority in value of the owners, unilaterally and automatically secure release of the property, and the city has no discretion: it must immediately release the area, or the area is released by operation of law if the city does not act by the statutory deadline (Opinion, PDF pp. 9-10). The plaintiffs do not claim an exclusion applies, and the City concedes the statute lets them secure release, which would certainly and permanently moot their only claim (Opinion, PDF p. 11).

The plaintiffs argued futility because the City has adopted at least ten resolutions purporting to deny release petitions and is challenging S.B. 2038 in other litigation, but the statute is presumed constitutional and remains the law, and "[r]elease is a matter of paperwork, not permission," so any denial is legally ineffective (Opinion, PDF pp. 12-13 & n.41, 16). Even when mootness through a nonjudicial process is merely possible, the Court has required abatement while the litigants pursue relief extrajudicially, and the Legislature has reweighed the interests in S.B. 2038, so the Court should avoid unnecessary constitutional rulings (Opinion, PDF pp. 13-15). The Court also vacated the court of appeals' opinion in its equitable discretion because the court did not address the new statute, noting that vacatur removes binding precedential force but not persuasive value, and observing that the court of appeals did not hold such claims categorically nonjusticiable but felt constrained by *Brown v. City of Galveston* and *Bonner v. Belsterling* (Opinion, PDF pp. 16-18).

**Concurrence in part and dissent in part (Justice Sullivan).** He agreed that the court of appeals' opinion should be vacated and deprived of precedential effect, and said he found the courts below erred in holding the claim nonjusticiable under the political-question doctrine, citing the Solicitor General's amicus brief as an analysis he could not improve upon (Sullivan, J., concurring in part and dissenting in part, PDF pp. 1-2). He dissented from the instruction that the plaintiffs must seek release on pain of dismissal, because the City has denied every release request so far, so they should be allowed to continue litigating their claim on remand (Sullivan, J., concurring in part and dissenting in part, PDF pp. 3-4).

## Disposition
The Court vacated the lower courts' judgments and the court of appeals' opinion and remanded to the trial court with instructions to abate the proceedings pending the plaintiffs' exercise of their statutory remedy (Opinion, PDF p. 18).

## Vote Breakdown
Justice Devine delivered the opinion of the Court, joined by Chief Justice Blacklock and Justices Lehrmann, Boyd, Busby, Bland, Huddle, and Young; Justice Sullivan filed an opinion concurring in part and dissenting in part (Opinion, PDF p. 1).


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Source: The SCOTX Report, https://scotxreport.com/cases/23-0767. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.