Date Filed: May 23, 2022
Original Court: 85th District Court (Brazos County)
Appeals: Texas Court of Appeals, Sixth District; Supreme Court of Texas
Case Status: Victory
Texas law contains a quirk that allows cities to regulate areas outside their city limits without providing city services or the right to vote in city elections. This “extraterritorial jurisdiction” arose from a mid-20th Century annexation spree, where cities gobbled up land—and tax revenue—as fast as they could. Prior to 2018, Texas cities could forcibly annex surrounding areas whether the people there wanted to be part of the city or not. In order to make this process less chaotic, the Texas Legislature gave cities a buffer outside their city limits (an “extraterritorial jurisdiction” or ETJ) where they could put laws in place in advance of annexation. But designating an ETJ does not oblige the city to provide services or allow those residents to vote in city elections. Although ETJs are supposed to be temporary, there is no time limit for the city to formally annex the area in its ETJ. This is a classic case of regulation without representation.
Shana Elliott and Larry Kalke live about half a mile outside of College Station’s city limits. They cannot vote for College Station’s mayor or city council and they do not receive city services. But because they live in College Station’s ETJ, the city exercises significant authority over what they can do on their property. If they want to so much as fix a pothole in their driveway, they must go to College Station city hall, pay for a permit, and hope that College Station grants permission.
CAF filed a lawsuit to stop College Station from regulating Elliott and Kalke through its ETJ. While this lawsuit was pending, the Texas Legislature passed Senate Bill 2038 (S.B. 2038). S.B. 2038 allows property owners to petition a city to be released from its ETJ. Cities like College Station have strenuously objected to this petition process, but the statute gives cities little choice in the matter. The Texas Supreme Court vacated lower court decisions that had dismissed the case and remanded the case to the district court so that the plaintiffs could file petitions for removal from the ETJ. The plaintiffs filed petitions to be removed from the ETJ in June 2025, but the City of College Station refused to act on them. Instead, the petitions automatically took effect under S.B. 2038’s 45-day waiting period. Thanks to CAF’s efforts, Elliott and Kalke are now free from College Station’s unconstitutional ETJ.
Case Documents:
Defendants’ Plea to the Jurisdiction
Plaintiffs’ Opposition to Defendants’ Plea to the Jurisdiction
Defendants’ Reply in Support of its Plea to the Jurisdiction
Sixth Court of Appeals Opinion
Petitioners’ SCOTX Merits Brief
Respondents’ SCOTX Response Brief