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
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No. 23-0767
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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

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On Petition for Review from the
Court of Appeals for the Sixth District of Texas
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JUSTICE SULLIVAN, concurring in part and dissenting in part.

In my view, the courts below erred in holding that the plaintiffs’
republican-form-of-government claim is nonjusticiable under the
political-question doctrine. To be frank, I struggle to improve upon the
thorough, prompt, and devastating analysis that we invited a friend of
the Court to file. See OSG Amicus Br. 9–25 (analyzing TEX. CONST.
art. I, §§ 2, 29; art. II, § 1); cf. The Simpsons: Homie the Clown (Fox
television broadcast Feb. 12, 1995) (“Stop, stop, he’s already dead!”). For
now, though, we needn’t reach for a ream of paper and the
political-question decoder rings. 1
That’s because our Court has now “vacate[d] the lower court
judgments and the court of appeals’ opinion.” Ante at 18. The opinion
of the court of appeals has thus been stripped of “any binding
precedential effect.” Morath v. Lewis, 601 S.W.3d 785, 791 (Tex. 2020)
(per curiam). I agree with the majority (natch) that nobody in Texas
should be bound by the opinion reported at 674 S.W.3d 653. Because
it’ll remain reported there, bench and bar alike can still “rely[ ] on it as
persuasive authority.” Morath, 601 S.W.3d at 791. But anyone who’s
tempted to try will find precious little power to persuade in the opinion
below—especially when stacked up against the CVSG brief that’s been
filed in this Court. 2

1 See, e.g., Van Dorn Preston v. M1 Support Servs., L.P., 642 S.W.3d 452,

455, 457–65 (Tex. 2022); In re Abbott, 628 S.W.3d 288, 294 n.8 (Tex. 2021); Am.
K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 249–50, 252–60 (Tex.
2018); Morath v. Tex. Taxpayer & Student Fairness Coal., 490 S.W.3d 826,
846–47 (Tex. 2016); WILLIAM BAUDE ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 291–324 (8th ed. 2025); PAUL M.
BATOR ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 233–41 (2d ed. 1973).
2 For the avoidance of link rot, a copy of the CVSG brief has been
archived at https://perma.cc/FG5V-NBQ4. Cf. Texas v. Am. Tobacco Co., 441
F. Supp. 3d 397, 424 n.21 (E.D. Tex. 2020) (“To avoid the issues of link rot and
reference rot, the Court uses a persistent identifier link to archive [some
website], as available at the time this Order is issued.”). The brief, filed in
No. 23-0767 on March 20, 2025, is also available on our website as of this
writing. The acronym CVSG, by the way, stands for the phrase “call for the
views of the solicitor general.” E.g., Conkright v. Frommert, 556 U.S. 1401,
1402–03 (2009) (Ginsburg, J., in chambers); Scott A. Keller, Before the Bench:
Unique Aspects of Texas Supreme Court Practice, 82 TEX. BAR. J. 502, 503 &
nn.29–32 (July 2019).

2
So why am I respectfully dissenting in part here? Unlike the
majority, I wouldn’t compel the plaintiffs—on pain of dismissal of their
whole case—to petition the City of College Station for release from its
extraterritorial jurisdiction. See Ante at 18 (“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 . . . .”); cf. TEX. R. APP. P. 60.2(f), 60.6.
Sure, the plaintiffs could play a get-out-of-extraterritorial-
jurisdiction-free card, pursuant to a bill the Governor signed into law
almost two years ago. See S.B. 2038, 88th Leg., R.S. (2023), codified in
relevant part at TEX. LOC. GOV’T CODE §§ 42.101–.105. And maybe that
was the better play for them all along? Senate Bill 2038’s relatively new
opt-out regime could undercut the plaintiffs’ entitlement to declaratory
and injunctive relief, were a court to reach the merits of their
republican-form-of-government claim. See Ante at 8; OSG Amicus
Br. 35.
On the other hand, the City has denied every request for release
from its extraterritorial jurisdiction so far, based on a dubious
constitutional challenge to Senate Bill 2038 that it and other
municipalities are pressing in a separate case. See Ante at 12. Maybe
the City will win that case, or lose it slowly? Nobody knows right now—
least of all these plaintiffs. If they want to keep litigating their
republican-form-of-government claim in the meantime, I’d let them take
their best shot on remand. Cf. The Fair v. Kohler Die & Specialty Co.,
228 U.S. 22, 25 (1913) (Holmes, J.) (“Of course, the party who brings a
suit is master to decide what law he will rely upon . . . .”).

3
Now that this Court has spoken, though, the plaintiffs are bound
to get the message: “Release is a matter of paperwork, not permission.”
Ante at 12 n.41; cf. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 184
(2016) (Roberts, C.J., dissenting) (querying whether “there are other
plaintiffs out there who . . . won’t take ‘yes’ for an answer”). Here’s
hoping the City can read the handwriting on the wall, too.

James P. Sullivan
Justice

OPINION FILED: May 9, 2025

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