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 ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00078-CV
SHANA ELLIOTT AND LAWRENCE KALKE, Appellants
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, Appellees
On Appeal from the 85th District Court
Brazos County, Texas
Trial Court No. 22-001122-CV-85
Before Stevens, C.J., van Cleef and Rambin, JJ.
Opinion by Justice Rambin
OPINION
More than a century ago, the Legislature gave Texas cities the ability to regulate matters
beyond city limits. The territory subject to such regulation became known as the extra-territorial
jurisdiction, or ETJ. In granting ETJ to cities, the Texas Legislature has expressly stated that it
does so for the benefit of both city and ETJ residents. See TEX. LOC. GOV’T CODE ANN.
§ 42.001 (“Purpose of Extraterritorial Jurisdiction. The legislature declares it 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 residing in and adjacent to the
municipalities.”).
The Appellants, two residents of the ETJ of the City of College Station (City), present a
challenge to the very concept of ETJ, or at least to ETJ as historically and currently granted to
cities by the Texas Legislature.1 The challenge being that, unless residents of the ETJ can vote
in city elections, any city regulation of the ETJ is void. In the Appellants’ words, “Everything in
the Texas Bill of Rights ‘is excepted out of the general powers of government, and shall forever
remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.’”
(Quoting TEX. CONST. art. 1, § 26). “Void” is a strong word in constitutional parlance, because
“[a]n unconstitutional statute is void from its inception and cannot provide a basis for any right
or relief.” Ex parte E.H., 602 S.W.3d 486, 494 (Tex. 2020) (quoting Reyes v. State, 753 S.W.2d
382, 383 (Tex. Crim. App. 1988) (en banc)).
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any
conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
2
The provision of the Bill of Rights of the Texas Constitution that the Appellants invoke is
Article I, Section 2, 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, 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.
TEX. CONST. art. I, § 2.
Though at times the Appellants couch this as merely a case involving one city and two
ordinances, the scope of the relief sought by Appellants is sweeping, as they themselves admitted
when requesting oral argument on grounds that this case could “impact both property owners and
municipal governments throughout the state of Texas.” The case could have such an impact
because Appellants bring a facial constitutional challenge to the City’s ability to regulate private
property outside of its territorial borders. “In a facial challenge, the party challenging the statute
claims that the statute always operates unconstitutionally.” EBS Sols., Inc. v. Hegar, 601 S.W.3d
744, 753 (Tex. 2020) (emphasis added).
The Appellants bring their challenge under Article I, Section 2, of the Texas Constitution
and not the federal republican-form-of-government guarantee found in the “Guarantee Clause”
of Article IV, Section 4, of the Constitution of the United States of America. Appellants assert
that, while the United States Supreme Court has found the federal version of the republican-
form-of-government guarantee to be a matter for Congress, the Texas version under Article I,
Section 2, confers individual rights that can be enforced by the judiciary as a check on the Texas
Legislature.
3
The Texas Supreme Court has already spoken to the application of Article I, Section 2, of
the Texas Constitution to cities and has also spoken to the application of the republican-form-of-
government guarantee under the Constitution of the United States of America. Brown v. City of
Galveston, 75 S.W. 488, 495–96 (Tex. 1903) (addressing Article I, Section 2); Bonner v.
Belsterling, 138 S.W. 571, 574–75 (Tex. 1911) (addressing the federal Guarantee Clause).
In both instances, the Texas Supreme Court said that it is for the Texas Legislature, and
not for the courts, to determine the type of government afforded at the city level. Brown and
Bonner are rooted in the foundational understanding that cities are not sovereigns unto
themselves, but rather are subordinate entities subject to the people of the State of Texas acting
as and through their Legislature. That foundation remains solid. See Town of Lakewood Vill. v.
Bizios, 493 S.W.3d 527, 530 (Tex. 2016) (“Municipalities are creatures of law that are ‘created
as political subdivisions of the state . . . for the exercise of such powers as are conferred upon
them . . . . They represent no sovereignty distinct from the state and possess only such powers
and privileges as have been expressly or impliedly conferred upon them.’” (emphasis added)
(quoting Payne v. Massey, 196 S.W.2d 493, 495 (Tex. 1946))).
Brown and Bonner, though, are more than a century old. Over time, judicial doctrines,
such as standing, ripeness, and what is and is not a political question, have been expressed in
finer detail by the highest courts of our State and nation. Perhaps Brown and Bonner were not
expressed in the judicial terminology that subsequently developed. As a matter of judicial
theory, one could debate whether Brown and Bonner found the issue of “republican form of
government” at the city level to be a political question beyond the judiciary’s reach, or on the
4
other hand, those cases found the issue to have been within the judiciary’s reach, but then made
judicial pronouncements that Legislative authority over the form of city government, as
exercised in those cases, was consistent with a constitutional “republican form of government.”
Either way, the Texas Supreme Court has spoken clearly that the matter is committed to
the Legislature. The Legislature has relied on that word for more than a century, via numerous
statutory grants, modifications, and withdrawals of ETJ authority to the cities. For us, on this
case, that is the end of the matter.
Justiciability requires careful case-by-case analysis, but it is largely a matter of separation
of powers. One of the considerations in the justiciability analysis (in its present-day articulation)
is whether the relief sought can be “judicially molded.” Am. K-9 Detection Servs., LLC v.
Freeman, 556 S.W.3d 246, 252 n.18 (Tex. 2018) (quoting Baker v. Carr, 369 U.S. 186, 198
(1962)).
Given the longstanding Texas Supreme Court rulings in this field, we see no way that the
trial court, or an intermediate court of appeals, such as this Court, could set Brown aside to mold
the relief presently requested. Accordingly, for reasons discussed below, we affirm the trial
court’s dismissal of this case on a plea to the jurisdiction.
I. Factual and Procedural Background
Shana Elliott and Dr. Lawrence Kalke (Appellants) own separate properties within the
ETJ of the City. It is undisputed that, as residents of the ETJ, they cannot vote in city elections.
Elliott and Kalke assert that they want to take certain actions on and regarding their property and
that the city has ordinances in place prohibiting those actions. Elliott and Kalke sued the City,
5
the City’s mayor, and the City’s manager (collectively Appellees). The suit challenged two
ordinances of the City on the following single legal theory: “This case presents a facial
Constitutional challenge under Article 1, Section 2 of the Texas Constitution, [to] College
Station’s decision to regulate the persons and property outside of their city limits.” Elliott and
Kalke contended that, because ETJ residents cannot vote in the City’s election, any regulation of
the ETJ by the City should be declared “unconstitutional”2 and that a permanent injunction
should issue “enjoining the application of College Station’s code of ordinances against Plaintiffs’
properties located outside of College Station’s city limits.” At core, though, their suit is about
more than ordinances, as Elliott and Kalke seek “a declaration that College Station lacks
constitutional authority to regulate persons and private property beyond its city limits.”
The City and its officials brought a plea to the jurisdiction, asserting that Elliott and
Kalke lacked standing, that their claims were not ripe, and that the suit presented a political
question.3 Elliott and Kalke opposed the plea to the jurisdiction and every ground asserted
therein. The trial court permitted discovery, including the deposition of the city manager. The
trial court held a hearing on the plea to the jurisdiction on September 15, 2022, and on the next
day, granted the plea, dismissing the case.
The challenged ordinances concern two subjects: “off-premise” signs, and driveways.
Concerning signs, Section 7.5(CC) of the City’s Unified Development Ordinance (UDO)
2
On appeal, Elliott and Kalke express this in terms of city regulation of the ETJ being void pursuant to Article 1,
Section 26, of the Texas Constitution. See TEX. CONST. art. 1, § 26 (“Everything in the Texas Bill of Rights ‘is
excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto,
or to the following provisions, shall be void.”).
3
Because we resolve the case on other grounds, we do not address the questions of standing and ripeness.
6
provides, “All off-premise and portable signs shall be prohibited within the Extraterritorial
Jurisdiction of the City of College Station.” CITY OF COLL. STATION, TEX., UNIFIED DEV. CODE
sec. 7.5(CC) (2023). “Off-premise” is a term of art in the signage field, referring to signs
physically located on one place that direct the reader to another place. City of Austin, Tex. v.
Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (“[F]or the last 50-plus years,
federal, state, and local jurisdictions have repeatedly relied upon on-/off-premises distinctions to
address the distinct safety and esthetic challenges posed by billboards and other methods of
outdoor advertising.”). Concerning driveways, Section 34-36(b)(3) of the City of College
Station Code of Ordinances states, “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 . . . .” CITY OF COLL. STATION, TEX., CODE OF ORDINANCES
sec. 34-36(b)(3) (2023). This restriction applies to “all streets, sidewalks, and driveways within
the corporate limits of the City . . . and within the extraterritorial jurisdiction of the City.” CITY
OF COLL. STATION, TEX., CODE OF ORDINANCES sec. 34-31 (2023).
The Texas Legislature has limited the City’s enforcement mechanism for a range of
matters in the ETJ, including driveways, to a suit for injunction. See TEX. LOC. GOV’T CODE
ANN. §§ 212.002, 212.003(b), (c) (“A fine or criminal penalty prescribed by the ordinance does
not apply to a violation in the extraterritorial jurisdiction.” “The municipality is entitled to
appropriate injunctive relief in district court to enjoin a violation of municipal ordinances or
codes applicable in the extraterritorial jurisdiction.”). The City has, by Section 10.3 of its UDO,
made a suit for injunctive relief the sole enforcement mechanism for any ordinance violation in
7
the ETJ. CITY OF COLL. STATION, TEX., UNIFIED DEV. CODE sec. 10.3(B) (2023) (“Any person
violating any provision of this UDO, outside the corporate limits of the City, but within the
City’s extraterritorial jurisdiction, shall not be considered as committing a misdemeanor, nor
shall any fine provided in Section A above be applicable; however, the City shall have the right
to institute an action in a court of competent jurisdiction to enjoin the violation of any provision
of this UDO.”).
The City did not sue Elliott or Kalke over the ordinances at issue. Instead, the City
asserts that it has never sued anyone “similarly situated” to Elliott and Kalke over the ordinances
at issue, with the City considering “similarly situated” to be residential property owners in the
ETJ. Though the City contends that it does not enforce the challenged ordinances, it would not
go so far as to say that they do not apply to Elliott and Kalke, nor would the City commit to
never enforcing them. The following exchange from the deposition of the city manager aptly
summarizes the state of affairs:
Q. . . . . I’m asking about the choice that you used the word enforce
but you didn’t use the word apply.
So, my question is, is your position you do not enforce any
ordinances?
A. Yes. My position is that we do not enforce those ordinances.
Q. Are you claiming that there are no ordinances that could apply to
them?
A. I’m not claiming that there are no ordinances that -- no, I’m not
claiming that. I’m -- exactly what I said, that we don’t enforce the ordinances.
Q. Okay. As city manager, is your decision not to enforce an
ordinance permanently binding on the city?
8
A. No.
Q. Okay. So, a future city manager could come to a different
conclusion about enforcement?
A. Correct.
Q. Okay. In fact, you could change your mind about enforcement,
correct?
A. Correct.
On the other hand, both Elliott and Kalke admit that they have not taken any concrete
steps towards the realization of their desires. Neither has applied for a driveway permit. Neither
has turned so much as a spade of soil for a driveway. Neither has bought so much as a
posterboard or a paintbrush for a sign.
On these facts, the parties are at loggerheads on the law. The City contends that “[t]he
Texas Legislature has granted authority to Texas cities to regulate certain activities in nearby
areas outside their corporate boundaries.” In the City’s view, this presents the following political
question: “Whether Texas municipalities should be afforded that authority is a question for the
Legislature, not the courts.” In support of this contention, the City cites to numerous acts
regarding extraterritorial jurisdiction, including Chapters 42, 212, 216, and 217 of the Local
Government Code. Elliott and Kalke, on the other hand, consider the City’s view to be
unsupported. Elliott and Kalke assert: “[T]he City’s arguments regarding the political question
doctrine boil down to a single, unsupported claim: that the legislature has granted cities the
authority to regulate in the ETJ and therefore it is not for the courts to second guess whether such
authority is constitutional.”
9
Both sides cite authorities on these subjects, authorities that we now address.
II. The Nature of Texas Cities
At core, Brown and Bonner dealt with the foundational essence of Texas cities. This was
a question hotly debated in the early 1900s, as the civil and criminal enforcement of the
ordinances of growing cities increasingly overlapped with the laws of the Texas Legislature. Or
in the tragic case of the Great Galveston Hurricane of 1900, the question was brought to the fore
when the extensive loss of life resulted in the Texas Legislature providing that the governor
could appoint new city commissioners who, after a term of two years, would then be subject to
election. See, e.g., Brown, 75 S.W. at 489–90. In several cases, challenges to the civil or
criminal enforcement of a city ordinance took the form of a challenge to the constitutionality of
the city government on the theory that, if the government was unconstitutional, the ordinance
was void.
One view, the view espoused by the Texas Court of Criminal Appeals in Ex parte Lewis,
was that the notion of cities (and some actual cities), predated the State of Texas, and even the
Republic of Texas, and that all cities therefore drew upon a common-law source of authority
inherent (if not expressed) in the Texas Constitution. Ex parte Lewis, 73 S.W. 811, 818 (Tex.
1903). In the words of the Texas Court of Criminal Appeals:
The fact that a system of municipal government was long in vogue prior to the
enactment of the [Texas] Constitution, and that under this system, from time
immemorial, local self-government was recognized, and the power of the
suffragans in cities to elect their own municipal officers was conceded, and that
nowhere and at no time had the power ever been claimed on the part of the
Legislature to interfere by authorizing the Governor to appoint local municipal
officers, must afford strong evidence of an existing condition which would
indicate that there was no purpose on the part of those who framed our organic
10
law to destroy a system of municipal government which had always heretofore
been recognized.
Id. at 817.
Ex parte Lewis went before the Texas Court of Criminal Appeals because a resident of
Galveston emptied out a “privy or water-closet” at a time and or place prohibited by an
ordinance of the City of Galveston, was fined, then jailed for failure to pay the fine, and then
challenged his punishment on grounds that “the Governor ha[d] no authority, under the
Constitution of this state, to appoint the members of [the city’s] board, and that the charter
provision authorizing him to do so [was] null and void, and that said ordinance, and all
proceedings thereunder, [were] without authority of law.” Id. at 811. The Texas Court of
Criminal Appeals agreed, holding:
[T]he mayor and board of aldermen of said city were elective officers under and
by virtue of our Constitution, and . . . the majority of these, in the face of our
traditions and of the organic law itself, having been appointed by the Governor,
any law or ordinance passed by them was without authority, inasmuch as they
were not officers of the municipality, and could not, under our Constitution, be
such.
Id. at 819.
Another argument made by Ex parte Lewis had to do with the then-current version of
Article VI, Section 3, of the Texas Constitution, which provided that all “qualified electors” who
had resided in a city for six months could vote in a city’s elections, including for mayor,
provided that only those paying property taxes could vote on the “expenditure of money or the
assumption of debt.” From the existence of this constitutional provision, Ex parte Lewis
concluded, “To hold that the Constitution makers undertook the task of defining qualifications of
11
voters in cities, and providing that persons possessing the enumerated qualifications should have
the right to vote for mayor and other elective officers, and then to decide, without any express
provision of the Constitution on the subject, that the Legislature should have the power to
withhold this right to vote in cities, would, in our opinion, be a travesty on constitutional
construction.” Id. at 818.
Ultimately, Ex parte Lewis was a policy-based plea for local control:
It may be that here and there, under our American system, cities may be given
over to corruption, and lawless elements permitted to run riot over the best
interests of the municipality, but this can only be temporary. If we adhere rigidly
to the principles of local self-government, in the end conservatism and
enlightenment and American citizenship will triumph. But if this incentive on the
part of the better classes for good government is removed, and localities taught to
depend on some central power to take care of them, we may never expect an
improvement. On the contrary, the seeds of our free institutions, planted by the
fathers in the townships and municipalities, will be scattered to the winds, anarchy
will run riot throughout the entire body politic, while we look in vain for some
strong central power to arrest the destruction of our liberties which have rested
hitherto upon that vital and essential principle of the republic-local self-
government by the people.
Id.
Another view was expressed by the dissenter in Ex parte Lewis. Under this view,
“municipal governments are the bare creatures of the Legislature. The legislative breath has
made them, and the legislative breath can unmake them.” Id. at 826 (Brooks, J., dissenting).
Under this view, “there is nothing in the letter or spirit of the [Texas] Constitution that remotely
infringes upon the legislative right to create the charter with appointive officers for the stricken
city of Galveston.” Id. at 827.
12
The Texas Supreme Court also heard a post-hurricane challenge to the form of
Galveston’s government. The Texas Supreme Court came down on the side of cities being the
creations of the Legislature and, in so doing, expressly (though reluctantly) disagreed with the
Court of Criminal Appeals. Brown, 75 S.W. at 491, 494.4
As with Ex parte Lewis, Brown dealt with a challenge to the appointment of city
commissioners by the governor, as authorized by the new city charter created by an act of the
Texas Legislature. Id. at 489–90, 491 (“The first question submitted to us involves the
constitutionality of those sections and provisions of the charter of the city of Galveston which
empower the Governor of the state to appoint three members of the governing board of
commissioners for that city, and of those which invest that commission so constituted with the
powers of mayor and board of aldermen.”). The case went up the civil ladder of the Texas
judiciary because the plaintiffs there sought civil injunctive relief against Galveston city
ordinances imposing a license requirement on those operating vehicles in the city, with the cost
of a license being on a sliding scale based on the type of use and the number of horses or other
animals used to pull the vehicle. Id. at 490–91.
Brown took a statewide view of things and, in so doing, presented an analysis of first
principles.
4
The court in Brown began its analysis by observing: “Recognizing the equal authority and dignity of [the Court of
Criminal Appeals], we approach the investigation of the question with much hesitancy, because of the delicacy of
the duty to be performed. We shall accord to the opinion of the majority in that case equal weight as an authority
with that of any other court of last resort, and, because it is a court of co-ordinate powers with this, acting under
authority derived from the same Constitution, we feel constrained to conform our opinion to that, if we can properly
do so in the discharge of our duty.” Brown, 75 S.W. at 491.
13
The Texas Constitution begins with this:
That the general, great and essential principles of liberty and free government
may be recognized and established, we declare:
Section 1. Texas is a free and independent State, subject only to the Constitution
of the United States, and the maintenance of our free institutions and the
perpetuity of the Union depend upon the preservation of the right of local self-
government, unimpaired to all the States.
TEX. CONST. art. I, § 1.
Brown held that “local self-government” in Article I, Section 1, refers to the entire state.
“[T]he declaration of the right of local self-government has reference to the people of the state,
and not to the people of any portion of it.” Brown, 75 S.W. at 495. The term “the people,”
however, does not appear in Article I, Section 1.
Brown next addressed Article I, Section 2, of the Texas Constitution, which does refer to
“the people”:
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.
TEX. CONST. art. I, § 2.
Brown took a statewide view of this section as well, holding that Article I, Section 2,
“does not mean that political power is inherent in a part of the people of a state, but in the body
who have the right to control, by proper legislation, the entire state and all of its parts.” Brown,
75 S.W. at 495.
14
Brown then turned to Article II and the separation of powers. Article II, Section 1, states:
§ 1. Separation of powers of government among three departments
The powers of the Government of the State of Texas shall be divided into three
distinct departments, each of which shall be confided to a separate body of
magistracy, to wit: those which are Legislative to one, those which are Executive
to another, and those which are Judicial to another; and no person, or collection of
persons, being of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.
TEX. CONST. art. II, § 1.
Here too, Brown continues the stark conceptual turn from Ex parte Lewis. Brown held
that Article II, Section 1, “distributes the powers of government—the powers which reside in the
people—into three departments.” Brown, 75 S.W. at 495. By reference to “the people,” a term
that does not appear in Article II, Section 1, Brown brings its analysis of Article I, Section 2, to
bear:
By organizing into a state, with its different departments empowered to exercise
the authority of the people in the administration of their affairs, the people did not
part with their power; it remains with them, to be exercised by the departments
according to the limitations and provisions which are expressed or implied in the
Constitution for their government and direction.
Id. (emphasis added).
Brown’s analysis then moves to Article III, Section 1, which provides: “The Legislative
power of this State shall be vested in a Senate and House of Representatives, which together
shall be styled ‘The Legislature of the State of Texas.’” Id. (quoting TEX. CONST. art. III, § 1).
Brown brings the statewide concept of “the people” from Articles I and II to bear on the nature of
the Article III “Legislative power” as follows, “‘The legislative power of this state’ means all of
the power of the people which may properly be exercised in the formation of laws against which
15
there is no inhibition expressed or implied in the fundamental law.” Brown, 75 S.W. at 495
(emphasis added). The “fundamental law” as used in that sentence means the Texas
Constitution. See id. at 494 (“We have been taught to regard the state and federal constitutions
as the sole tests by which the validity of the acts of the legislature are to be determined.”
(quoting Redell v. Moores, 88 N.W. 243, 247 (Neb. 1901))).
Having set forth those underpinnings in Texas Constitution Article I, Sections 1 and 2,
Article II, Section 1, and Article III, Section 1, Brown comes to the heart of the matter:
Since a municipal corporation cannot exist except by legislative authority, can
have no officer which is not provided by its charter, and can exercise no power
which is not granted by the Legislature, it follows that the creation of such
corporations, and every provision with regard to their organization, is the
exercise of legislative power which inheres in the whole people, but by the
Constitution is delegated to the Legislature; therefore it is within the power of the
Legislature to determine what form of government will be most beneficial to the
public and to the people of a particular community.
Brown, 75 S.W. at 495–96 (emphasis added).
Brown then went on to use “the doctrine” to refer to, and to reject, the position advanced
by Ex parte Lewis, namely the position that cities, i.e., a subset of “the people,” have rights from
a source that is not expressed in the Texas Constitution. Id. at 494 (“the doctrine announced by
the Court of Criminal Appeals in Ex parte Lewis”),5 496. Brown specifically rejected the idea
5
The Texas Supreme Court identified “the doctrine” in even greater detail:
It is asserted by the appellant that the people of Galveston had the ‘inherent right’ to select their
own municipal officers, and that the Legislature had no power to authorize the Governor of the
state to appoint municipal officers for that city. This proposition seems to be supported by the
majority opinion in the case of Ex parte Lewis, 73 S.W. 811, from which we quote. After citing a
number of cases, the Court of Criminal Appeals said: ‘But the reasoning in all of the cases—those
referred to as well as all others—to which our attention has been called, except State of Nevada v.
Swift, 11 Nev. 134 [Nev. 1876], strongly supports the proposition that, even without some express
constitutional provision, neither the Legislature nor the Governor has the power to appoint the
16
that independent municipal authority could be found in “the principles of natural justice” or in
“natural justice,” or in a “spirit supposed to pervade the Constitution, but not expressed in
words.” Id. at 496.
Brown buttressed its position with several observations.
For one, the Texas Supreme Court noted, “Our Constitution is distinguished for the
particularity of its provisions and the details into which it enters in reference to matters of
government.” Id. at 493. In particular, the Texas Constitution specified the officers and manner
of election for county officials but did not do so for cities. Id. (citing then-current TEX. CONST.
art. XI). From this the Brown court concluded, “It is significant that the Legislature was thus left
free to choose the form of government for cities and towns in contrast with the particular
provisions for counties.” Id.The Texas Supreme Court also addressed the Article VI, Section 3, argument made by
Ex parte Lewis. Brown agreed that Article VI, Section 3, of the Texas Constitution addressed
who could vote in municipal elections, if they were held. Brown, 75 S.W. at 493 (“The purpose
of this section is to secure to all electors of the state residing in cities and towns the right to vote
at all elections for elective officers of such corporations, and to secure to property taxpayers the
right to determine questions of the expenditure of money and the assumption of debts, when
submitted to a vote.” (emphasis added)). But Brown considered it a leap for Ex parte Lewis to
permanent officers of a municipality. In the cases cited it occurs to us that the real effect of the
decisions was to establish the doctrine that, in the absence of a grant of authority in the
Constitution authorizing the appointment of such local officers by the Legislature or the Governor,
this power was denied by implication arising from the history and traditions which time out of
mind had conferred local self-government on municipalities.’
Brown, 75 S.W. at 494 (emphasis added).
17
find that mayoral elections must be held, because that same logic applied to the same
constitutional provision would result in every little thing having to do with city finances
requiring an election. Id. Brown found support in this reasoning from the existence of other
constitutional provisions requiring a vote on particular matters of local finances, because
provisions requiring elections on particular matters would be wholly unnecessary if Article VI,
Section 3, had the broad ramifications ascribed to it by Ex parte Lewis. Id.6 The Texas Supreme
Court granted that there was, perhaps, room for difference of opinion on the import of Article VI,
Section 3, regarding “republican form of government,” but not enough room to overturn an act of
the Texas Legislature. Id. at 493–94.7
Further, the legislation creating the post-hurricane city charter was largely the result of a
bill sponsored by the state representatives and the state senator representing Galveston. Id. at
496. Therefore, to set that legislation aside would be to “deny to the people of Galveston the
right to govern their affairs their own way, and thereby to substitute a form of municipal
government dictated by the courts.” Id.
6
“The fact that the Constitution directs that all propositions to levy taxes to support public free schools in cities and
towns shall be submitted to a vote of the property tax payers (article 11, §§ 7 and 10; article 7, § 3) shows that the
convention did not understand that section 3, art. 6, embodied such requirements, else the special provisions would
be useless.” Brown, 75 S.W. at 493.
7
The majority opinion [of Ex parte Lewis] argues with much force the proposition that the charter
of Galveston is in conflict with section 3 of article 6 of the Constitution, but we do not believe that
it is so conclusive as to justify this court in overruling the decision of the legislative department.
If there was doubt in our minds, our conclusion must be as expressed in the following quotation:
‘But if I could rest my opinion in favor of the constitutionality of the law on which the question
arises on no other ground than this doubt so felt and acknowledged, that alone would, in my
estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the
integrity, and the patriotism of the legislative body by which any law is passed to presume in favor
of its validity, until its violation of the Constitution is proved beyond all reasonable doubt.’
Id. at 493–94.
18
In closing, Brown cautioned that the Ex parte Lewis approach presented a vague and
unmanageable standard that was an invitation to judicial overreach:
“The doctrine” furnishes no standard or rule by which to determine the validity of
any law framed by the Legislature, but leaves each judge to try it according to his
own judgment of what constitutes the “history and traditions” of the state, and
what rights have been vested in the people by reason of such “history and
traditions.” To this theory we cannot give our consent, but must adhere to the
well-established rules of construction which confine the court to the Constitution
as the standard by which it is to determine the validity of legislative enactments.
Brown, 75 S.W. at 496.8
Thus, there was an unfortunate split between the State’s two highest courts, as recognized
by Commissioners’ Court of Nolan County v. Beall, 81 S.W. 526, 528 (Tex. 1904).9 See also
Ex parte Anderson, 81 S.W. 973, 974 (Tex. 1904).
8
Brown dealt with the additional question of whether the fees charged by the ordinance were a proper exercise of
police power or an impermissible occupation tax. Id. at 496–97.
9
The Beall court observed:
[I]n ordinary cases there could be no conflict between the Court of Criminal Appeals and the
Supreme Court; it being the duty of the latter to follow the former on questions of criminal law,
and the corresponding duty of the former to follow the latter upon questions of civil law. So far
harmony of decision was secured. But unfortunately there is a class of cases in which this rule
cannot be applied. For example, the Legislature may pass a statute which both confers civil rights,
and declares offenses punishable in the criminal courts, the validity of which as a whole may be
questioned. Under such a law both a civil action may be brought, and a criminal prosecution
instituted. The question of the validity of the act is peculiar to neither jurisdiction. Under it, if
valid, there are not only civil rights to be protected, but also criminal offenses to be prosecuted.
Upon the question of the validity of the act neither court should be bound by the decision of the
other. Such was the act, the validity of which was passed upon by this court in the case of Brown
v. City of Galveston, 75 S.W. 488, 7 Tex. Ct. Rep. 758. In that case we were called upon to
determine the right of the city government of the city of Galveston to maintain itself under the act
in question, and, not considering this court bound by the decision of the Court of Criminal
Appeals in the case of Ex parte Lewis (Tex. Cr. App.) 73 S.W. 811, we declined to follow it. No
more do we think that the Court of Criminal Appeals were bound by our decision upon that
question. Therefore as to that class of cases there may be conflict between the decisions of the
two courts, and there is no provision in the Constitution for settling the law in such cases and
enforcing harmony of decision.
Beall, 81 S.W. at 528.
19
Thankfully, by 1909, there was, if not harmony, at least détente between the courts,
because the Texas Court of Criminal Appeals abandoned the approach of municipalities being
separate sovereigns. The Texas Court of Criminal Appeals held, “Municipal corporations have
only such powers as may be granted by the Legislature, unless otherwise provided in the
Constitution; and wherever the question of a grant of power is at issue, the grant will be taken
more strongly in favor of the granting power, and against the grantee, when application of this
principle is made to municipal corporations.” Mantel v. State, 117 S.W. 855, 856 (Tex. Crim.
App. 1909) (emphasis added). The case in which the Texas Court of Criminal Appeals so held
was not a republican-form-of-government challenge, but it did call on the Texas Court of
Criminal Appeals to assess the authority of cities as compared to the Legislature. At issue in
Mantel were overlapping versions of food safety regulations, each with differing penalties: the
ordinance of the City of Dallas, and the statutes of the State of Texas. The Texas Court of
Criminal Appeals found, “The city ordinance seems to be sweeping enough to cover all the
provisions of the state law, without drawing any distinction as to the character of foods which
may be adulterated or the manner of adulteration, in so far as punishment is concerned.” Id. at
857. The Texas Court of Criminal Appeals further found that “the punishment for violation of
the city ordinance [was] different from that prescribed for violation of the state law.” Id.Consequently, the ordinance had to yield because “city ordinances are justified by virtue of the
authority granted in the charter[,]” which “is derived from the Legislature, and the power of the
city government to create or ordain ordinances is by virtue of authority granted by the
Legislature.” Id. The Texas Court of Criminal Appeals observed, “[I]t is well within the power
20
of the city of Dallas, by ordinance duly passed, to adopt such ordinances as may be appropriate
to protect the public health, subject, always, that they be in conformity with the state law on the
same subject.” Id. (emphasis added). The Texas Court of Criminal Appeals cited neither Brown
nor Ex parte Lewis in this decision.
A little more than two years after Mantel, the Texas Supreme Court was again faced with
a republican-form-of-government challenge. Bonner v. Belsterling, 138 S.W. 571, 573 (Tex.
1911). The case was brought by a member of the board of education of the City of Dallas who
had been removed via a recall election. Id. There was no dispute that the City of Dallas derived
its powers from a charter granted by the Texas Legislature. Id. at 573. Nor was there any
dispute that the city’s government was republican in nature, save and except for the dispute over
the Legislature’s grant of the recall power, which was challenged not under Article I, Section 2,
of the Texas Constitution but under the Guarantee Clause of Article IV, Section 4, of the United
States Constitution. Id. at 574. The Texas Supreme Court, quoting Thomas Jefferson, noted the
difficulty in pinning down what is meant by a “republican form of government”:
As to the meaning of the phrase, ‘Republican form of government,’ there is no
better authority than Mr. Jefferson, who, in discussing the matter, said: ‘Indeed, it
must be acknowledged that the term ‘republic’ is of very vague application in
every language. Were I to assign to this term a precise and definite idea, I would
say, 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 the citizens.
Bonner v. Belsterling, 138 S.W. 571, 574 (Tex. 1911) (quoting Letter from Thomas Jefferson to
John Taylor (May 28, 1816), NATIONAL ARCHIVES, https://founders.archives.gov/documents/
Jefferson/03-10-02-0053).
21
The Texas Supreme Court, citing Brown, held that, subject to the Constitutions of the
United States and the State of Texas, “the people of Texas have the right to adopt any form of
government which they may prefer” and that “the Legislature may confer upon any municipal
government any power that it may see fit to give.” Id. at 574 (citing Brown, 75 S.W. 488).
Consequently, “[t]he policy of reserving to the people such power as the recall, the initiative, and
the referendum is a question for the people themselves in framing the government, or for the
Legislature in the creation of municipal governments. It is not for the courts to decide that
question.” Id. at 574–75 (emphasis added).10 Bonner went on to observe that “we are unable to
see from our viewpoint” how the ability to hold recall elections would make the city’s board of
education less republican. Id. at 574.
In 1912, on the heels of all the decisions cited above, the Texas Constitution was
amended to permit cities to adopt their own charters. This power, though, came with limitations:
Cities having more than five thousand (5000) inhabitants may, by a majority vote
of the qualified voters of said city, at an election held for that purpose, adopt or
amend their charters, subject to such limitations as may be prescribed by the
Legislature, and providing that no charter or any ordinance passed under said
charter shall contain any provision inconsistent with the Constitution of the State,
or of the general laws enacted by the Legislature of this state . . . .
Tex. H.J. Res. 10, 32d Leg., R.S., 1911 Tex. Gen. Laws 284–85 (proposing constitutional
amendment, which passed, to Article XI, Section 5, of the Texas Constitution relating to
amendment of city charters).
10
It is worth noting that Bonner cited Brown for the rule that the Legislature determines the form of municipal
government, but after that, let things be. Bonner did not expound upon Brown, nor did Bonner undertake to refute
Ex parte Lewis. This is consistent both with Ex parte Lewis being a dead letter on the subject and with Bonner
seeking to clearly affirm the validity of Brown but to do so quietly and respectfully.
22
Shortly after the adoption of that amendment, the Texas Legislature passed an enabling
act that placed restrictions on such “home rule” cities. See, e.g., McCutcheon v. Wozencraft, 294
S.W. 1105, 1106 (Tex. 1927). In McCutcheon a would-be city bus operator was denied a
franchise by the city commission of Dallas (then a home rule city). Id. at 1105. The would-be
bus operator sought mandamus relief to compel the city to put the question to the voters. Id.
The Texas Supreme Court denied that relief, holding that the Legislature’s enabling act did
indeed include a provision for submitting city decisions to the voters, but as a safeguard
mechanism to permit voters to reject franchises actually granted by the city’s governing body,
not as a means to second-guess the governing body’s rejection of a franchise. Id. at 1107.
In the case now before us, the City is a home rule city. However, neither side in this case
argued that home rule status impacted the analysis. Perhaps that is because the Texas Supreme
Court—while recognizing the constitutional source of home rule power—has nonetheless held
that all cities in Texas remain subdivisions of the state that “represent no sovereignty distinct
from the state and possess only such powers and privileges as have been expressly or impliedly
conferred on them.” Town of Lakewood Vill., 493 S.W.3d at 530 (quoting Payne, 196 S.W.2d at
495). As a result, the conceptual underpinning of Brown and Bonner remains solid.
III. Extraterritorial Jurisdiction
With an understanding of the nature of cities established, we turn next to the
extraterritorial jurisdiction of cities. The discussion of cities was necessary because both sides
agree that there is no prior case presenting a republican-form-of-government challenge to
extraterritorial jurisdiction and because, for lack of such a case, both sides cite to cases involving
23
cities (namely Ex parte Lewis, Brown, and Bonner) in their arguments regarding the
extraterritorial jurisdiction. Those cases are discussed above. What we turn to, then, is the
source of extraterritorial authority. On this, both sides agree that extraterritorial jurisdiction is a
statutory creation of the Texas Legislature. “A city’s authority to regulate land development in
its ETJ is wholly derived from a legislative grant of authority.” Town of Annetta S. v. Seadrift
Dev., L.P., 446 S.W.3d 823, 826 (Tex. App.—Fort Worth 2014, pets. denied) (quoting FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 902 (Tex. 2000) (Abbott, J., dissenting)).
The Texas Legislature has granted cities in Texas the authority to regulate certain
activities outside their corporate boundaries, in what is known as their extraterritorial
jurisdiction. The Texas Legislature “declare[d] it the policy of the state to designate certain areas
as the extraterritorial jurisdiction of municipalities.” TEX. LOC. GOV’T CODE ANN. § 42.001.
Extraterritorial jurisdiction refers to “the unincorporated area that is contiguous to the corporate
boundaries of the municipality” and is located within a specified distance of those boundaries,
depending upon the number of inhabitants within the municipality.11 TEX. LOC. GOV’T CODE
ANN. § 42.021. The purpose of extraterritorial jurisdiction is “to promote and protect the general
health, safety, and welfare of persons residing in and adjacent to the municipalities.” TEX. LOC.
GOV’T CODE ANN. § 42.001. Subject to certain exceptions, the Legislature has authorized cities
to regulate the subdivision of land and access to public roads within their ETJ. TEX. LOC. GOV’T
CODE ANN. § 212.003. The Legislature has also authorized cities to extend their sign regulations
11
The extent of a particular city’s ETJ depends on the size of that city’s population. TEX. LOC. GOV’T CODE ANN.
§ 42.021. For cities with populations exceeding 100,000, such as the City, the ETJ extends five miles from the
city’s boundaries. TEX. LOC. GOV’T CODE ANN. § 42.021(a)(5).
24
to their ETJ and regulate certain nuisances within a defined area outside the city limits. TEX.
LOC. GOV’T CODE ANN. §§ 216.003, 217.042. In some shape or form, cities have had
extraterritorial powers since at least 1913.12
IV. Plea to the Jurisdiction
“A plea to the jurisdiction is a dilatory plea” by which a party challenges a court’s
authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). We review the trial court’s ruling on a challenge to its subject-
matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004).
If a plea to the jurisdiction challenges a party’s pleadings, the reviewing court examines
whether the pleader affirmatively alleged facts establishing jurisdiction. Tex. Dep’t of Crim.
Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). When examining whether the pleader has met
this burden, the reviewing court looks to the pleader’s intent, construing the pleadings liberally,
and taking all factual assertions as true. Id.If the facts regarding the jurisdictional issue are undisputed, or fail to raise a fact
question, then the plea to the jurisdiction becomes a question of law. Miranda, 133 S.W.3d at
228. “If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id. at 227.
12
See Act approved April 7, 1913, 33d Leg., R.S., ch. 147, § 4, 1913 Tex. Gen. Laws 307, 310 (“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 the power to police all parks or grounds, speedways, or boulevards owned by said city
and lying outside of said city . . . .” (emphasis added)).
25
V. Political Question
As stated at the outset, appellants present a facial challenge to the City’s ordinances,
arguing that they violate the “republican form of government” requirement found in Article I,
Section 2, of the Texas Constitution. Facial constitutional challenges are “disfavored because
they threaten to short circuit the democratic process by preventing laws embodying the will of
the people from being implemented in a manner consistent with the Constitution.” King St.
Patriots v. Tex. Democratic Party, 521 S.W.3d 729, 741–42 (Tex. 2017) (citation omitted). The
Appellants contend that the City ordinances at issue violate Article I, Section 2, of the Texas
Constitution because Appellants reside in the City’s ETJ and are “subject to the municipality’s
regulatory authority but [are] denied the ability to vote to remove the holder of legislative power
from office.”
In Texas, “[s]ubject[-]matter jurisdiction requires . . . that the case be justiciable.” State
Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). 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 non-judicial government branches. Am. K-9, 556 S.W.3d at 253.
“The political question doctrine is an issue of subject-matter jurisdiction, and thus a party
properly asserts it in Texas state court via a plea to the jurisdiction.” Van Dorn Preston v. M1
Support Servs., L.P., 642 S.W.3d 452, 459 (Tex. 2022). “Whether the jurisdictional facts
establish trial-court jurisdiction is a question of law that [is] review[ed] de novo.” Id.26
In Baker v. Carr, the United States Supreme Court set out six factors for identifying
issues that have been committed to another branch of government:
It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may describe
a political question, although each has one or more elements which
identify it as essentially a function of the separation of powers.
Prominent on the surface of any case held to involve a political
question is found [1] a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious pronouncements
by various departments on one question.
Baker v. Carr, 369 U.S. 186, 217 (1962).
However, as stated in Baker, the political question doctrine “is one of ‘political
questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide
controversy as to whether some action denominated ‘political’ exceeds constitutional authority.”
Id.The Texas Supreme Court has never explicitly adopted the entirety of the Baker test, but
it has “assumed” that the Baker factors “serve equally well in defining the separation of powers
in the state government under the Texas Constitution.” Am. K-9, 556 S.W.3d at 253 (quoting
Neeley v. W. Orange-Cove Consol. Ind. Sch. Dist., 176 S.W.3d 746, 778 (Tex. 2005)). The
Texas Supreme Court has also been “guided” by Baker in cases implicating both federal and
state authority. Id. at 254; Van Dorn Preston, 642 S.W.3d at 458–59 (“This case presents a
27
similar state-federal dynamic. The claims presented are ones over which the federal courts have
concurrent jurisdiction, and we apply American K-9’s analysis, guided by federal precedent, to
inform our decision.”).
American K-9, though guided by Baker, was decided as a matter of “the separation of
powers mandated by the Texas Constitution.” Am. K-9, 556 S.W.3d at 254. In this context,
American K-9 incorporated the “discriminating analysis” described by Baker. Id. at 257 (quoting
Baker, 369 U.S. at 211). In full, the Baker discriminating analysis is as follows:
Our cases in this field seem invariably to show a discriminating analysis of
the particular question posed, in terms of the history of its management by the
political branches, of its susceptibility to judicial handling in the light of its nature
and posture in the specific case, and of the possible consequences of judicial
action.
Baker, 369 U.S. at 211–12. In regard to the “susceptibility to judicial handling,” American K-9
noted that, in the federal system, Baker treated justiciability issues such as “whether the duty
asserted can be judicially identified and its breach judicially determined, and whether protection
for the right asserted can be judicially molded,” as a question separate from jurisdiction, but in
Texas “[s]ubject[-]matter jurisdiction requires . . . that the case be justiciable.” Am. K-9, 556
S.W.3d at 252 n.18 (quoting Baker 369 U.S. at 198; Gomez, 891 S.W.2d at 245).
In the same context, i.e., being guided by Baker when deciding an issue under the Texas
Constitution, American K-9 looked specifically to the first two Baker factors, namely, whether
there was “a textually demonstrable constitutional commitment of the issue to a coordinate
political department” or “a lack of judicially discoverable and manageable standards for
resolving it.” Id. at 252–53 (quoting Baker, 369 U.S. at 217). In doing so, American K-9 noted
28
that these factors are related. Id. at 253 (citing Nixon v. United States, 506 U.S. 224, 228–29
(1993) (“[T]he concept of a textual commitment to a coordinate political department is not
completely separate from the concept of a lack of judicially discoverable and manageable
standards for resolving it; the lack of judicially manageable standards may strengthen the
conclusion that there is a textually demonstrable commitment to a coordinate branch.”)).
The bulk of federal authorities indicate that “republican form of government” presents a
political question. The United States Constitution contains a guarantee clause similar to that of
the Texas Constitution. The United States Constitution directs the United States to “guarantee to
every State in this Union a Republican Form of Government.” U.S. CONST. art. IV, § 4.
“Although the Supreme Court has suggested that perhaps not all claims under the guaranty
clause present nonjusticiable political questions, in the main the Court has found that such claims
are not judicially enforceable.” Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997) (citing
New York v. United States, 505 U.S. 144, 182–86 (1992)). “In most of the cases in which the
Court has been asked to apply the [Guarantee] Clause, the Court has found the claims presented
to be nonjusticiable under the ‘political question’ doctrine.” New York v. United States, 505 U.S.
144, 184 (1992). In Pacific States, the Supreme Court considered a taxpayer’s challenge to an
Oregon tax law on the ground that it was adopted by ballot initiative in violation of the
Guarantee Clause. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). The Court
concluded that challenges based on the Guarantee Clause present nonjusticiable political
questions. In doing so, the Court declined to define the phrase “Republican Form of
Government,” instead concluding that that definition was of a political character and, hence,
29
beyond the jurisdiction of the courts. Id. at 133 (“[T]hat question has long since been determined
by this court conformably to the practice of the government from the beginning to be political in
character, and therefore not cognizable by the judicial power, but solely committed by the
Constitution to the judgment of Congress.”); see also Ryan C. Williams, The “Guarantee”
Clause, 132 HARV. L. REV. 602, 671 n.431 (2018) (“The modern understanding of the political
question doctrine as a barrier to all Guarantee Clause claims began to crystallize with the Court’s
1912 decision in Pacific States . . . .”).
As for Texas authorities, neither Brown nor Bonner expressly declined to address the
republican-form-of-government challenges before them as political questions. See Brown, 75
S.W. at 496; Bonner, 138 S.W. at 574.13 Both Brown and Bonner pre-date Baker, American K-9,
and Van dorn Preston. That said, both Brown and Bonner spoke in terms that fit within the first
two Baker factors, factors that were announced decades later.
On the first Baker factor, textual commitment to another branch of the government,
Brown held that “it is within the power of the Legislature to determine what form of government
will be most beneficial to the public and to the people of a particular community.” Brown, 75
S.W. at 495–96. Brown made particular note that Galveston’s city charter was the result of
legislative action and that two state representatives and one state senator spoke for Galveston in
13
The parties bring to our attention Walling v North Central Texas Municipal Water Authority, 359 S.W.2d 546(Tex. App.—Eastland 1962, writ ref’d n.r.e.) (per curiam). The wording of the holding of Walling could be
construed as either a refusal to decide the issue on justiciability grounds or a determination on the merits: “We find
nothing in the United States Constitution or in the State Constitution which would authorize us to say that the
citizens of the Authority are being deprived of a republican form of government.” Id. at 549 (emphasis added).
Walling dealt with a water district, not a city, and did not have the benefit of Texas Supreme Court authority
examining Baker. Id. at 547. Further, Walling discusses neither Ex parte Lewis, nor Brown, nor Bonner. See id.Walling, then, is of little help in the present analysis.
30
the legislature. Id. at 496. On the second Baker factor, Brown observed that “the doctrine” of
Ex parte Lewis “furnishes no standard or rule by which to determine the validity of any law
framed by the Legislature . . . .” Id.
On the first Baker factor, Bonner held that “the Legislature may confer upon any
municipal government any power it may see fit to give.” Bonner, 138 S.W. at 574. Bonner
further held that questions such as “recall, the initiative, and the referendum” are “for the
Legislature in the creation of municipal governments.” Id. at 574. Going further, Bonner stated,
“It is not for the courts to decide that question.” Id. On the second Baker factor, Bonner quoted
Thomas Jefferson for the proposition that the definition of a “republican form of government” “is
of very vague application in every language[,]” but that to an extent a definition can be formed,
“governments are more or less republican as they have more or less of the element of popular
election and control in their composition.” Id. at 574. The conundrum is that Bonner then
proceeded to use that as a standard in a federal challenge: “[w]e . . . will proceed to examine the
provisions of the charter with a view of determining if it fulfills the definition given by
Mr. Jefferson; and, if it does, it is not obnoxious to the provisions of the federal Constitution as
above quoted.” Hence, Bonner was decided on the Guarantee Clause, on which Appellants do
not rely and, additionally, was decided shortly before Pacific States, in which the United States
Supreme Court found Guarantee-Clause challenges to be political questions. Pac. States, 223
U.S. at 133.
We leave this here for now, with the discussion to be resumed in the Analysis.
31
VI. The Judiciary’s Role
Though there are circumstances under which courts can and should decline to resolve
political questions, it emphatically remains the sole province of the judiciary to interpret the
constitution. Am. K-9, 556 S.W.3d at 252 (“[t]o the courts alone”). Thus, if the constitution
imposes a judiciable standard by which to measure the act(s) of the Legislature, it is the province
of the courts to determine whether that standard has been met:
The final authority to determine adherence to the Constitution
resides with the Judiciary. Thus, the Legislature has the sole right
to decide how to meet the standards set by the people in [the
provision of the Texas Constitution there at issue], and the
Judiciary has the final authority to determine whether they have
been met.
W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558, 563–64 (Tex. 2003) (citing Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 176–178 (1803)).
The Texas Supreme Court’s approach in the school finance cases is illustrative. There,
the Texas Supreme Court undertook a comprehensive historical review of the Texas
Legislature’s acts on the subject before remanding for consideration of whether the Legislature
had met the constitutional standards applicable to school financing. See id. at 564–73 (providing
lengthy overview of legislation).
VII. Analysis
We are faced with a novel argument. There has been no prior challenge to extraterritorial
jurisdiction under Article I, Section 2, of the Texas Constitution. TEX. CONST. art. I, § 2.
The Appellants contend that, under Ex parte Lewis, they have the right to vote for
municipal officers and that this right is not dependent on the Legislature. Appellants, therefore,
32
do not question the effectiveness of the Legislature in its role as representative of the interests of
ETJ residents. Appellants did not, for example, bring forward all of the acts of the Legislature in
this field in the fashion of the school funding challenges. Instead, Appellants question whether
the Legislature may serve in that role at all. Appellants are of the view that Article I, Section 2,
as construed by Ex parte Lewis, mandates that, if there is to be ETJ, the ETJ property owners
must have a direct vote in city elections. See id.
But Ex parte Lewis, as discussed above, was rejected by the Texas Supreme Court, and
the Court of Criminal Appeals backed away from the notion that cities are sovereigns unto
themselves.
Aside from Ex parte Lewis, Appellants contend that Brown itself is a cities-as-sovereigns
case, because of the statement in Brown that city charters are “formulated by the people of the
towns.” That takes words in isolation, stripping them from the context of Brown:
[I]t is a matter of common knowledge that charters are formulated
by the people of the towns, presented by their representatives to
the Legislature, and, in case of opposition, committees attend upon
the Legislature to secure the wish of the majority. The city of
Galveston had two representatives in the House and one in the
Senate that enacted this law, and the bill was introduced in the
House by one of her representatives, and supported by all. To
overthrow the charter of that city, upon the assumption of ‘a
history and tradition’ which have no real existence, would in fact
deny to the people of Galveston the right to govern their affairs in
their own way, and thereby to substitute a form of municipal
government dictated by the courts. In fact, this theory is out of
harmony with the practices of republican state governments in
America, and opens up a broad filed [sic.] in which to search for
grounds to declare laws of a Legislature void, without the shadow
of authority in the well-established powers of the courts under our
Constitution.
33
Brown, 75 S.W. at 496 (emphasis added).
More broadly, Brown held that “it is within the power of the Legislature to determine
what form of government will be most beneficial to the public and to the people of a particular
community.” Id. at 495–96. Since Brown, the Texas Legislature has seen fit to give cities
extraterritorial jurisdiction, and in so doing, has declared that it, the Legislature, is looking out
for the “general health, safety, and welfare” of those living “adjacent to” cities. TEX. LOC.
GOV’T CODE ANN. § 42.001.
In sum, the Appellants present a facial constitutional challenge on grounds that have been
rejected by Brown. We do not answer the questions of whether Brown and Bonner were political
question cases as and when decided, or whether they would be considered political question
cases today. We, as an inferior court, are confronted with what to do with the Appellants’ facial
challenge as presented to us today. We are subject to the Texas Supreme Court’s adoption of the
first two Baker factors in the decades after Brown and Bonner.
Concerning the facial challenge presented by the Appellants, Brown constitutes a textual
commitment to the Legislature under the first Baker factor.
Regarding the second Baker factor, given Brown’s commitment of the matter to the
Legislature, any challenge to extraterritorial jurisdiction under Article I, Section 2, of the Texas
Constitution would need to put into words a standard of “republican form of government” by
which to judge the Legislature’s representation of citizens in the extraterritorial jurisdiction. The
closest the Appellant came to such an articulation was in their reply brief, where they said that
the Article I, Section 2, republican-form-of-government limitation on Legislative power is a
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“modest one” that requires that “[p]roperty owners must merely be allowed to vote at some point
for those that regulate their property.” Taken on its face, “at some point” is a vague standard.
Taken in context of how the Appellants relied on Ex parte Lewis for a right independent of the
Legislature, (and on how the Ex parte Lewis approach was rejected), “at some point” does not
address the question of Legislative representation of residents of the extraterritorial jurisdiction.
Further, the Texas Supreme Court, via American K-9, adopted the Baker “discriminating
analysis,” part of which is an assessment of “the possible consequences of judicial action.” Am.
K-9, 556 S.W.3d at 257 (quoting Baker, 369 U.S. at 211–12). Though the Appellants would stop
with a finding of unconstitutionality, the “discriminating analysis” counsels that this Court
should consider what would happen on the next day. Which is to say that, though the Appellants
seek a declaration of unconstitutionality because they do not get to vote in city elections, their
petition in the trial court, and their briefing here, are notable for their lack of a request for voting.
In particular, Appellants do not explain what manner of voting, in their view, would suffice (for
but one example, should residents of the ETJ be incorporated into existing city commission
districts, or should the ETJ be given its own city commission district, etc.). Nor do Appellants
specify who should give them such voting. Appellants, it appears, would leave that task to the
Legislature, as they make no argument that the City could expand voting into the extraterritorial
jurisdiction without legislative authority, and they do not ask the judiciary to grant them the
voting they desire. At least not directly. Indirectly, any judicial finding of unconstitutionality
would point to what is required for constitutionality. In addition to considering the next day, the
“discriminating analysis” counsels pondering all the days going back to the beginning of
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extraterritorial jurisdiction, because if a legislative act is void as unconstitutional, it is void “from
inception.” Ex parte E.H., 602 S.W.3d at 494. Looking back to the inception of ETJ, a century
has a particular persuasive power of its own. “[G]eneral public acceptance of and acquiescence
in administrative and legislative interpretations over a long period of time are particularly
persuasive and are to be given serious consideration in construing constitutional provisions.”
Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264, 269 (Tex.
1980) (citing, among other things, Brown, 75 S.W. 488). The Appellants’ failure to wrestle with
such questions is some indication that their case is unmanageable for the judiciary under the
second Baker factor. See Am. K-9, 556 S.W.3d at 252–53; Baker, 369 U.S. at 217.
VIII. Conclusion
Although the Texas Supreme Court has never explicitly adopted the entirety of the Baker
test, it has listed factors that may help determine if a political question exists. “Chief among
them are whether there is ‘a textually demonstrable constitutional commitment of the issue to a
coordinate political department’ or ‘a lack of judicially discoverable and manageable standards
for resolving it.’” Van Dorn Preston, 642 S.W.3d at 458. An application of these two Baker
factors to the issue in this case—whether the City’s ordinances violate the republican-form-of-
government requirement found in Article I, Section 2, of the Texas Constitution—results in the
conclusion that the issue presented by the Appellants is a nonjusticiable political question. First,
there is a “textually demonstrable constitutional commitment” of the republican-form-of-
government issue to the legislature. Id. The Texas Supreme Court’s opinion in Brown found
that the “Constitution . . . delegated to the Legislature” the people’s authority to determine a
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city’s “form” and “power[s]” “and every provision with regard to [its] organization.” Brown, 75
S.W. at 495–96. Secondly, there is “a lack of judicially discoverable and manageable standards”
as to the issue because, as stated in Bonner, what constitutes a republican form of government is,
by necessity, indefinite. See Am. K-9, 556 S.W.3d at 252–53 (quoting Baker, 369 U.S. at 217).
As a result, because the Baker factors indicate that a political question exists, this Court may not
address the issue, as presented by the Appellants, without violating the separation of powers.
We find that Appellants’ facial challenge, as presented, presents a political question. We
affirm the district court’s grant of the Appellees’ plea to the jurisdiction and the concomitant
dismissal of the Appellants’ case.
Jeff Rambin
Justice
Date Submitted: June 14, 2023
Date Decided: August 31, 2023
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