Shana Elliott and Lawrence Kalke v. City of College Station, Texas; Karl Mooney, in His Official Capacity as Mayor of the City of College Station; And Bryan Woods, in His Official Capacity as the City Manager of the City of College Station

Supreme Court of Texas
══════════
No. 23-0767
══════════

Shana Elliott and Lawrence Kalke,
Petitioners,

v.

City of College Station, Texas; Karl Mooney, in his Official
Capacity as Mayor of the City of College Station; and Bryan
Woods, in his Official Capacity as the City Manager of the City of
College Station,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Sixth District of Texas
═══════════════════════════════════════

Argued January 15, 2025

JUSTICE DEVINE delivered the opinion of the Court, in which Chief
Justice Blacklock, Justice Lehrmann, Justice Boyd, Justice Busby,
Justice Bland, Justice Huddle, and Justice Young joined.

JUSTICE SULLIVAN filed an opinion concurring in part and
dissenting in part.

The people of the State of Texas, acting through their elected
representatives, have long empowered Texas cities to regulate certain
activities outside their corporate boundaries. Municipal authority to act
extraterritorially reflects the legislature’s policy determination that
limited local regulation in statutorily defined buffer zones promotes the
“general health, safety, and welfare” of the citizenry. 1 As legislatively
authorized, the City of College Station extends local ordinances
regulating “off-premise” signage and driveway construction to property
in its extraterritorial jurisdiction (ETJ). Those ordinances are now
under fire by ETJ property owners who contend that local regulation
without a corresponding right to vote in local elections is incompatible
with the Texas Constitution’s “republican form of government”
requirement. 2 The property owners seek a declaration that the
ordinances are facially void and unenforceable.
The only issue at this nascent stage of the dispute is whether the
constitutional claim is justiciable. The City argues that it is not for
several reasons, including that the form of local government is a political
question for the legislature, not the courts. The lower courts agreed and
dismissed the suit with prejudice. But while the case was pending on
appeal, the legislature changed the law to provide ETJ residents a
method to unilaterally opt out of a city’s ETJ. 3 The statutory procedure
offers the property owners complete relief that would moot their
constitutional claims, but they have yet to avail themselves of this
self-help solution. In keeping with “the judiciary’s commitment to the

1 TEX. LOC. GOV’T CODE §§ 42.001, .021.

2 See TEX. CONST. art. I, § 2 (consecrating the people’s pledge “to the

preservation of a republican form of government”).
3 Act of May 8, 2023, 88th Leg., R.S., ch. 106, §§ 1, 5, 2023 Tex. Gen.

Laws 213, 213-16 (codified at TEX. LOC. GOV’T CODE §§ 42.101–.156).

2
separation of powers, respect for the other branches, and desire to
prevent constitutional friction unless and until unavoidable,” 4 we vacate
the lower court judgments and remand to the trial court with
instructions to abate the proceedings to allow the property owners a
reasonable opportunity to complete the opt-out process.
I
Extraterritorial jurisdiction is a legislative creation that allows a
municipality to exert specified regulatory authority over unincorporated
areas contiguous to municipal boundaries. 5 Texas municipalities have
been empowered to regulate in areas beyond city limits for more than
100 years. 6 The current statutory scheme dates back to the 1960s. 7 As
codified in Chapter 42 of the Texas Local Government Code, 8 the
geographic limit of a particular municipality’s ETJ is determined by its
population size, among other things. 9 Within this area, the legislature

4 Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478, 488
(Tex. 2024).
5 See TEX. LOC. GOV’T CODE § 42.021 (defining municipal ETJ and
setting general boundaries).
6 See Act approved April 7, 1913, 33d Leg., R.S., ch. 147, § 4, 1913 Tex.

Gen. Laws 307, 314 (“That each city shall have the power to define all
nuisances and prohibit the same within the city and outside the city limits for
a distance of five thousand feet; to have power to police all parks or grounds,
speedways, or boulevards owned by said city and lying outside of said
city . . . .”) (current version at TEX. LOC. GOV’T CODE § 217.042).
7 See Municipal Annexation Act, 58th Leg., R.S., ch. 160, 1963 Tex. Gen.

Laws 447.
8 TEX. LOC. GOV’T CODE §§ 42.001–.904 (establishing the
extraterritorial jurisdiction of municipalities).
9 Id. §§ 42.021–.026.

3
has authorized municipalities to exercise the state’s police powers on
specific matters, including plats and subdivision of land, signage, public
roads, and groundwater extraction. 10 Other types of extraterritorial
regulation is specifically forbidden. For example, a municipality may
not regulate the use, height, or size of any building in its ETJ, require a
building permit, or enforce its building code. 11
With a population exceeding 100,000 residents, the City of
College Station’s ETJ extends five miles from the corporate boundary
line and generally covers only those adjacent areas that are not part of
any other municipality. 12 The plaintiffs, Shana Elliott and Lawrence
Kalke, live and own real property in the City’s ETJ. Although they have
no vote in City elections, their property is subject to regulation under
certain City ordinances. In this lawsuit, they challenge two 13—one that
prohibits “all off-premise and portable signs” 14 and another that requires

10 Id. §§ 212.002–.003, 216.003, .901–.902; see id. § 42.001 (articulating

the legislative purpose underlying extraterritorial jurisdiction). The parties do
not assert that the City’s status as a home-rule municipality alters the relevant
legal analysis. A home-rule municipality has the “full power of local self
government,” id. § 51.072, so long as the charter provisions or ordinances are
not inconsistent with state or federal law, TEX. CONST. art. XI, § 5.
11 TEX. LOC. GOV’T CODE §§ 212.003(a), .049.

12 Id. § 42.021(a)(5); COLLEGE STATION, TEX., CODE OF ORDINANCES
ch. 34, art. II, § 34-29 & app. A, art. 11, § 11.2 (2025) (defining the City’s
“extraterritorial jurisdiction” consistent with the Local Government Code).
13The plaintiffs’ lawsuit initially targeted a broader range of City
ordinances, but the suit’s focus has since narrowed.
14 COLLEGE STATION, TEX., CODE OF ORDINANCES app. A, art. 7,
§ 7.5(D)(11), (BB) (prohibiting “off-premises signs, including commercial and
non-commercial billboards” in the City’s ETJ). “‘Off-premise sign’ means a sign
displaying advertising copy that pertains to a business, person, organization,

4
property owners to secure a City permit to improve or construct a
driveway. 15 The plaintiffs have yet to take any affirmative steps
towards engaging in either activity, but they nonetheless view the
ordinances as unlawful encumbrances on the free use of their property.
The City concedes that the ordinances are applicable to the plaintiffs’
property and could be enforced in a suit for injunctive relief. 16 Although
the City claims it has neither enforced nor threatened to enforce these
ordinances against the plaintiffs or similarly situated residents, it has
made no assurances of nonenforcement.
To eliminate any regulatory impediment, the plaintiffs seek a
judicial declaration that the ordinances are invalid and unenforceable. 17
The plaintiffs assert that local regulation over nonvoting ETJ residents
is facially unconstitutional under the “republican form of government”
limitation in Article I, Section 2 of the Texas Constitution. Echoing

activity, event, place, service, or product not principally located or primarily
manufactured or sold on the premises on which the sign is located.” TEX. LOC.
GOV’T CODE § 216.002(3).
15 COLLEGE STATION, TEX., CODE OF ORDINANCES ch. 34, art. II,
§ 34-36(b)(3) (“Any property owner desiring a new driveway approach or an
improvement to an existing driveway at an existing residential or other
property shall make application for a driveway permit[.]”); see id. § 34-31(a)
(“This article shall govern all . . . driveways within the corporate limits . . . and
within the [ETJ] of the City as established by the Texas Local Government
Code.”).
16 See TEX. LOC. GOV’T CODE § 212.003(c).

17 See TEX. CIV. PRAC. & REM. CODE § 37.004(a) (authorizing a person

“whose rights, status, or other legal relations” are affected by a municipal
ordinance to seek a declaration regarding its construction or validity).

5
language from the United States Constitution’s Guarantee Clause, 18
Section 2 of the Texas Bill of Rights enshrines a bedrock principle of
state governance:
All political power is inherent in the people, and all free
governments are founded on their authority, and instituted
for their benefit. The faith of the people of Texas stands
pledged to the preservation of a republican form of
government, and, subject to this limitation only, they have
at all times the inalienable right to alter, reform or abolish
their government in such manner as they may think
expedient. 19
Whatever “republican form of government” means in its fullness, 20 the
plaintiffs contend that, at a minimum, this clause mandates that Texans
shall have the power to vote for all those who regulate a locality in which
they reside.
The City opposes the suit on both justiciability and merits
grounds. Antecedent to a merits-based inquiry, the City filed a plea to
the jurisdiction asserting that (1) the plaintiffs lack standing because
they have suffered no injury, (2) the constitutional claims are not ripe
because there is no imminent threat of enforcement, and (3) the

18 U.S. CONST. art. IV, § 4 (“The United States shall guarantee to every

State in this Union a Republican Form of Government . . . .”).
19 TEX. CONST. art. I, § 2.

20 See Bonner v. Belsterling, 138 S.W. 571, 574 (Tex. 1911) (quoting
Thomas Jefferson on the meaning of the term “republic” as “of very vague
application in every language” but, “purely and simply, it means a government
by its citizens in mass, acting directly and not personally, according to rules
established by the majority; and that every other government is more or less
republican in proportion as it has in its composition more or less of this
ingredient of the direct action of citizens. . . . [G]overnments are more or less
republican as they have more or less of the element of popular election and
control in their composition.”).

6
structure and operation of local government is a nonjusticiable political
question for the legislature. The political question doctrine is “primarily
a function of the separation of powers” and “excludes from judicial
review controversies that revolve around policy choices and value
determinations constitutionally committed for resolution” to nonjudicial
government branches. 21
Over the plaintiffs’ opposition, the trial court granted the plea and
dismissed the case with prejudice. 22 While an appeal was pending, the
legislature amended the ETJ statute to provide ETJ residents a
voluntary process to secure the release of property from a municipality’s
ETJ. 23 Although this opt-out process became effective the day after the
court of appeals issued its opinion, the court of appeals affirmed the
dismissal order based on the political question doctrine without
discussing the amended statute. 24 In supplemental briefing filed in this
Court, the parties disagreed about whether the amended statute

21Am. K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 253
(Tex. 2018) (quoting Baker v. Carr, 369 U.S. 186, 210 (1962), and Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).
22 The trial court did not state the basis for its ruling; however, barring

the plaintiffs from ever bringing their constitutional claims is inconsistent with
dismissal based on lack of standing or ripeness. Harris County v. Sykes, 136
S.W.3d 635, 639 (Tex. 2004) (“In general, dismissal with prejudice is improper
when the plaintiff is capable of remedying the jurisdictional defect.”).
23 See Act of May 8, 2023, 88th Leg., R.S., ch. 106, §§ 1, 5, 2023 Tex.

Gen. Laws 213, 213-16 (codified at TEX. LOC. GOV’T CODE §§ 42.101–.156)
(effective Sept. 1, 2023).
24 674 S.W.3d 653, 657, 675 (Tex. App.—Texarkana 2023). The appeal
was transferred from the Tenth Court of Appeals to the Sixth Court of Appeals
by a docket-equalization order of this Court. See TEX. GOV’T CODE § 73.001(a).

7
renders the case nonjusticiable by mooting the constitutional claims or
rendering the claims unripe for adjudication.
Having considered the various arguments on the questions
presented, including the Solicitor General’s amicus brief, 25 we have
determined that the litigation should not proceed as presently postured
because of the extent to which the intervening change in the law alters
the legal landscape. The legislature has provided a means for property
owners to unilaterally secure the release of property from a
municipality’s ETJ. As explained below, the amendments to the ETJ
statute have resulted in a legal regime that is far different from the one
the plaintiffs’ pleadings and arguments attack. Whether or not the mere
enactment of the opt-out process has mooted their constitutional claims
altogether, the law now provides a means of nonjudicial recourse that
largely alleviates the plaintiffs’ republican-form-of-government
concerns, even under their understanding of the clause’s meaning. Due
respect for a coequal branch of government accordingly demands that
the judiciary refrain from making any unnecessary constitutional
rulings.
II
The legislature has declared “the policy of the state to designate
certain areas as the extraterritorial jurisdiction of municipalities to
promote and protect the general health, safety, and welfare of persons

25 Amicus briefs have also been submitted by Texas Municipal League,

The Goldwater Institute, the Bexar County Emergency Services District
Association, the Bexar County Emergency Services District No. 5, and
Timberwood Park.

8
residing in and adjacent to the municipalities.” 26 In addition to creating,
defining, and setting the terms by which nonresidents may be subjected
to municipal regulation, the legislature controls the circumstances
under which a municipality’s statutorily prescribed ETJ can be reduced
or otherwise altered. 27
Since 1963, the legislature has generally prohibited the reduction
of a municipality’s ETJ without the governing body’s written consent. 28
That changed in 2023 with the enactment of SB 2038, 29 which offered
two additional methods for securing the release of an area from a city’s
ETJ: (1) through a petition filed by a resident or landowner 30 or (2) by
an election on the question of whether to release an area from the ETJ. 31
Release by petition allows the owner of even a single parcel of
land to unilaterally and automatically secure the property’s release from
a city’s ETJ. 32 Once the city secretary has verified the property owner’s

26 TEX. LOC. GOV’T CODE § 42.001.

27 Id. §§ 42.023–.024 (setting conditions for release, reduction, and
transfer of a municipality’s ETJ).
28Id. § 42.023 (stating the consent requirement and listing certain
exceptions); Municipal Annexation Act, 58th Leg., R.S., ch. 160, § 3(c), 1963
Tex. Gen. Laws 447, 448-49.
29 See Act of May 8, 2023, 88th Leg., R.S., ch. 106, § 1, 2023 Tex. Gen.

Laws 213, 213-16 (codified at TEX. LOC. GOV’T CODE §§ 42.101–.156).
30 Id. at 213-14 (codified at TEX. LOC. GOV’T CODE §§ 42.101–.105).

31 Id. at 214-16 (codified at TEX. LOC. GOV’T CODE §§ 42.151–.156).

32 TEX. LOC. GOV’T CODE §§ 42.102(b) (“The owner or owners of the
majority in value of an area consisting of one or more parcels of land in a
municipality’s [ETJ] may file a petition with the municipality in accordance
with this subchapter for the area to be released from the [ETJ].” (emphasis
added)), .104(a) (requiring the petition to be signed by “more than 50 percent

9
signature on an otherwise valid petition, the city is required to
“immediately release the area from [its ETJ].” 33 Because releasing the
area is the only action a city is authorized to take on a valid petition, its
consent is not required. 34 The statute is clear on this:
If a municipality fails to take action to release the area . . .
by the later of the 45th day after the date the municipality
receives the petition or the next meeting of the
municipality’s governing body that occurs after the 30th
day after the date the municipality receives the petition,
the area is released by operation of law. 35
Because the statute prescribes a mandatory action and a mandatory
consequence for noncompliance, no discretion is afforded to the
municipality on these matters. 36 When property is released from a
municipality’s ETJ—by the city or by operation of law—regulation of the
area is necessarily returned to the county. The amended statute confers

of the registered voters of the area described by the petition as of the date of
the preceding uniform election date” or “a majority in value of the holders of
title of land in the area described by the petition” (emphases added)); see id.
§ 42.103 (making Chapter 277 of the Election Code applicable to a petition
requesting removal); see also TEX. ELEC. CODE §§ 277.001–.004 (governing the
requisites for a petition prescribed by law outside of the Election Code).
33 TEX. LOC. GOV’T CODE § 42.105(a)–(c).

34 Cf. City of Murphy v. City of Parker, 932 S.W.2d 479, 481 n.1
(Tex. 1996) (observing that the legislature created the ETJ scheme and has the
power to alter it, including “the power to entirely eliminate the requirement
that a city give its written consent to a reduction of its ETJ”).
35 TEX. LOC. GOV’T CODE § 42.105(d) (emphases added).

36 See Image API, LLC v. Young, 691 S.W.3d 831, 841 (Tex. 2024) (“A

statute requiring that an act be performed within a certain time, using words
like shall or must, is mandatory.”); Helena Chem. Co. v. Wilkins, 47 S.W.3d
486, 493 (Tex. 2001) (“The word ‘must’ is given a mandatory meaning when
followed by a noncompliance penalty.” (internal quotation marks omitted)).

10
no regulatory authority and imposes no public duties on private persons
residing in the released area. 37 Nor does it allow landowners to create a
regulatory scheme of their choosing or permit them to pick and choose
among the municipal ordinances to which they will adhere. Instead, it
offers landowners a choice among existing regulatory schemes.
Not all areas in an ETJ are eligible for release under the amended
statute. 38 For example, the release process is not available for an area
within five miles of a military base at which an active training program
is conducted or for property that is subject to a strategic partnership
agreement as defined in Chapter 43 of the Local Government Code. 39
The plaintiffs do not claim that their property falls within an exclusion,
and the City concedes—as it must—that the statute’s plain language
grants the plaintiffs the unilateral ability to secure the release of their
property from the City’s ETJ. Once released, the area “may not be
included in the [ETJ] or the corporate boundaries of a municipality,
unless the owner or owners of the area subsequently request that the
area be included in the municipality’s [ETJ] or corporate boundaries.” 40
Accordingly, the petition-for-removal process would certainly and
permanently moot the only claim the plaintiffs have brought in this

37 See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 880

(Tex. 2000) (“A delegation [of legislative authority] 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.”).
38 TEX. LOC. GOV’T CODE §§ 42.101, .151 (exempting certain areas from

ETJ removal by petition or election).
39 Id. §§ 42.101(1), (5), .151(1), (5).

40 Id. § 42.105(e).

11
lawsuit. The plaintiffs nonetheless continue to press their
constitutional claims without attempting the nonjudicial resolution the
statute provides. The stated reason: futility. 41
The plaintiffs point to at least ten resolutions the City has
formally adopted purporting to deny release petitions duly filed by ETJ
property owners. In each, the City states its opinion that SB 2038
(1) unconstitutionally delegates the City’s legislative authority and
(2) conflicts with the consent requirement in section 42.023 of the Local
Government Code. 42 The City has also banded together with more than
a score of other municipalities in challenging SB 2038’s validity under
assorted constitutional and statutory-construction theories in parallel
litigation. 43 The City’s opposition to the new law is manifest, but that
presents no barrier to the plaintiffs’ pursuit of the statutory release
process.
Nor does the City’s resistance to SB 2038 authorize this Court to
pass judgment on the constitutionality of an ETJ regime that lacks a
unilateral opt-out option—a regime that no longer exists and to which

41 In a similar vein, the plaintiffs contend that requiring a property

owner to seek “permission” to leave the jurisdiction of an unlawful authority is
a distinct injury that the removal process will not cure. This argument
misunderstands the statutory scheme, which does not give the City discretion
to deny a release petition. Release is a matter of paperwork, not permission.
42 See, e.g., City of College Station, Tex., Resolution Nos. 03-28-24-9.4a

(Mar. 28, 2024); 03-28-24-9.4b (Mar. 28, 2024); 03-28-24-9.4c (Mar. 28, 2024);
03-28-24-9.5a (Mar. 28, 2024); 03-28-24-9.5b (Mar. 28, 2024); 03-28-24-9.5c
(Mar. 28, 2024); 10-24-24-7.3 (Oct. 24, 2024); 10-24-24-7.4 (Oct. 24, 2024);
10-24-24-7.5 (Oct. 24, 2024); 12-12-24-7.17 (Dec. 12, 2024), available at
https://www.cstx.gov/departments___city_hall/codes__ordinances_and_policies.
43 See City of Grand Prairie v. State, No. D-1-GN-23-007785 (261st Dist.

Ct., Travis County, Tex. Oct. 25, 2023).

12
the plaintiffs are no longer subject. The Local Government Code
imposes a mandatory duty on City officials to immediately release an
area described in a release petition, and if that does not happen within
a specified timeframe, release is effectuated as a matter of law. 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.” 44 No City ordinance or policy
statement can override an express legislative command or supersede
what has occurred by operation of law. 45 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. 46 That is what should happen here.

44 TEX. LOC. GOV’T CODE § 42.105(d).

45 See TEX. CONST. art. XI, § 5(a) (“[N]o [home-rule city] charter or any

ordinance passed under said charter shall contain any provision inconsistent
with . . . the general laws enacted by the Legislature of this State.”); City of
Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 592 (Tex. 2018) (observing
that the legislature can expressly or impliedly limit or withdraw the local
self-government power of a home-rule municipality, so long as the legislature’s
intent to impose the limitation appears with unmistakable clarity).
46 Cf., e.g., CPS Energy v. Elec. Reliability Council of Tex., 671 S.W.3d

605, 620 (Tex. 2023) (“[A] decision from the PUC on the underlying issues could
moot CPS’s constitutional claims . . . [by] cur[ing] the alleged violations and
obviat[ing] the need to assert the constitutional claims in court. And even if it
does not, a party is not precluded from pursuing its constitutional claims after
exhaustion . . . .”); Garcia v. City of Willis, 593 S.W.3d 201, 211-12 (Tex. 2019)
(holding that even if the complainant “could not litigate his constitutional
claims in an administrative proceeding, the fact remains that the hearing
officer might have ruled in his favor for other reasons that would moot his

13
Texans have long permitted the legislature to determine, subject
to constitutional limits, when an individual’s private-property rights
must yield to the public interest in health, safety, and welfare. 47 But in
our republican form of government, the legislature retains the power to
bring local government to heel and in all things remains accountable to
the people for its judgment. 48 In SB 2038, the legislature has reweighed
the interests at stake, 49 and the role of the judiciary “is not to
second-guess the policy choices that inform our statutes.” 50 Under the
doctrine of constitutional avoidance, our duty to ensure compliance with
the Texas Constitution comes with a corresponding “duty to avoid

constitutional arguments,” so “he was at least required to seek administrative
relief before filing a takings claim in district court”); City of Dallas v. Stewart,
361 S.W.3d 562, 579 (Tex. 2012) (“[A] litigant must avail itself of statutory
remedies that may moot its takings claim, rather than directly institute a
separate proceeding asserting such a claim.”).
47 See Commons of Lake Hous., Ltd. v. City of Houston, ___ S.W.3d ___,

2025 WL 876710, at *6 (Tex. Mar. 21, 2025) (“The government must exercise
its police power to satisfy its responsibilities, and this commonly requires the
imposition of restrictions on the use of private property. . . . [S]ome of these
intrusions are compensable; most are not.” (citations and internal quotation
marks omitted)); Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660,
670 (Tex. 2004) (while “all property is held subject to the valid exercise of the
police power,” some regulations may give rise to a compensable taking (citation
and internal quotation marks omitted)).
48 See supra note 45.

49 See House Comm. on Land & Res. Mgmt., Bill Analysis, Tex.
S.B. 2038, 88th Leg., R.S. (2023) (recognizing that ETJ statutes afford
municipalities “too much control over areas outside of municipal corporate
boundaries” and that allowing such regulation over residents and property
owners who have “no vote or voice in the municipalities that regulate them”
“may not necessarily be in their best interests”).
50 McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003).

14
unnecessary constitutional issues.” 51 This doctrine “manifest[s] the
judiciary’s commitment to the separation of powers, respect for the other
branches, and desire to prevent constitutional friction unless and until
unavoidable.” 52 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. 53
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, not as a jurisdictional matter but as a discretionary policy
matter akin to comity. Because there is no pressing need for this Court
to opine on sweeping questions of constitutional law that will necessarily
evaporate, it would be imprudent to do so at this time. 54 Although the

51 See In re Turner, 627 S.W.3d 654, 656 (Tex. 2021) (orig. proceeding)

(“While we recognize our role as the ultimate interpreter of the Constitution[,]
. . . courts have a duty to avoid unnecessary constitutional issues.” (alterations
in original) (quoting Sullivan v. McDonald, 913 A.2d 403, 406 (Conn. 2007))).
Webster v. Comm’n for Law. Discipline, 704 S.W.3d 478, 488
52

(Tex. 2024).
53See Borgelt v. Austin Firefighters Ass’n, 692 S.W.3d 288, 303
(Tex. 2024) (recognizing the constitutional avoidance doctrine’s prudential
foundation that is rooted in “the presumption that the rest of the government,
no less than the judiciary, intends to comply with the Constitution”); see also
United States v. Winstar Corp., 518 U.S. 839, 875 (1996) (the “function of
constitutional avoidance” includes “avoiding difficult constitutional questions
about the extent of state authority to limit the subsequent exercise of
legislative power”).
54 That is not to say that a court must always abate and direct the

plaintiff to initiate a unilateral opt-out procedure before addressing the
constitutional challenge. It might be inappropriate for a court to require the

15
City is challenging SB 2038’s constitutionality in other litigation, the
statute is presumed constitutional and remains the law. 55 What matters
here and now is that the statute’s plain language affords these plaintiffs
prompt and complete relief for their alleged injuries.
The importance of judicial restraint also compels us to vacate the
court of appeals’ opinion. With a complete legislative solution already
enacted and imminently effective, 56 the court of appeals could have
paused the litigation rather than unnecessarily opining on the
justiciability question. Had the court been apprised of this significant
legislative development—and there is no indication that it was—we
suspect it would have followed our constitutional avoidance precedent
and abated the suit or otherwise taken the altered legal landscape into
account. Opinions in cases involving matters that have become moot
may be vacated when we have concluded, as a matter of our equitable
discretion, “that the public interest would be served by vacatur.” 57
Though the procedural posture is different here, we exercise our

plaintiff to undergo an opt-out procedure that would itself cause an
independent injury. But that is not the case here.
55 See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) (noting that

statutes are presumed to be constitutional and “the party challenging the
constitutionality of a statute bears the burden of demonstrating that the
enactment fails to meet constitutional requirements”).
56 The Governor signed S.B. 2038 into law on May 19, 2023, nearly a

month before the court of appeals heard oral argument and more than three
months before the court issued its opinion on the eve of the law’s effective date.
See 674 S.W.3d 653, 653 (Tex. App.—Texarkana 2023).
57 Morath v. Lewis, 601 S.W.3d 785, 790-92 (Tex. 2020) (quoting U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994)).

16
discretion to provide the same equitable relief based on the state of the
legal landscape when the court of appeals ruled.
“Vacatur removes the opinion’s binding precedential nature but
does not strike it from case reporters or foreclose litigants and courts in
future cases from relying on it as persuasive authority.” 58 Without
commenting on the correctness vel non of the court of appeals’ analysis,
some observations about the opinion are therefore warranted. First, the
opinion does not purport to hold that “republican form of government”
claims under the Texas Constitution are categorically nonjusticiable.
Rather, based on the appellate court’s understanding of our opinions in
Brown v. City of Galveston 59 and Bonner v. Belsterling, 60 the court found
itself constrained to the conclusion that questions concerning the
legislature’s choices about the form of municipal government are beyond
judicial purview. 61 Second, even as to that conclusion, the court hedged,
observing that those cases may also be fairly construed as having found
the issue to be within the judiciary’s reach but then determining that
the authority the legislature had exercised over the form of city
government in those cases was consistent with a constitutional
“republican form of government.” 62 The court’s uncertainty about the

58 Id. at 791.

59 75 S.W. 488 (Tex. 1903).

60 138 S.W. 571 (Tex. 1911).

61 674 S.W.3d at 657.

62 Id.; see Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 698

(Tex. 2022) (noting that the Declaratory Judgments Act does not waive
immunity from suit for facially invalid constitutional claims).

17
correct framing of the issue cautions against reading the vacated opinion
too expansively.
III
For the reasons stated, we vacate the lower court judgments and
the court of appeals’ opinion. The case is remanded to the trial court
with instructions to abate the proceedings pending the plaintiffs’
exercise of their statutory remedy. 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. 63

John P. Devine
Justice

OPINION DELIVERED: May 9, 2025

63 See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex. 2018)

(holding that a claim is justiciable only if the plaintiff (1) suffers an injury in
fact, (2) that is fairly traceable to the defendant’s conduct, and (3) redressable
by a ruling from the judiciary).

18