Late last month, the Houston Chronicle published an article noting the Foundation’s longstanding effort “to see ETJs abolished completely.” What prompted the friendly mention was Tesla’s recent announcement that it would be using a new state law, Senate Bill 2038, to petition to have its electric vehicle factory, located in eastern Travis County, “removed from the city’s extraterritorial jurisdiction,” or ETJ. If the company’s petition is ultimately successful, then it would no longer be weighed down by “burdensome [municipal] regulations,” or Austin’s various ideological crusades.
While Tesla’s use of the new law is a truly positive development—as is the establishment of a process that allows everyone to seek “the release of an area from a municipality’s [ETJ] by petition or election”—it would be a mistake to think that there is nothing left to do on the ETJ front. Indeed, there is still much more work to do to protect Texans living on the outskirts from rapacious and unaccountable municipal governors.
In fact, we ought to abolish it entirely.
As the Foundation has long detailed, the ETJ concept enables municipal officials to govern people and property without consent or consequence. That is, current law allows city officials to tell ETJ residents what they can and cannot do, despite those residents being unable to vote in municipal elections. In the absence of electoral consequence, government officials have no real incentive to take ETJ residents’ concerns into account when formulating policy and enforcing restrictions. The system reeks of regulation without representation—and it’s likely unconstitutional.
In 2022, the Foundation’s litigation arm set out to test the legality of the ETJ concept in Elliot v. City of College Station, alleging that the framework is “constitutionally suspect.” One of the chief complaints raised in the case is that ETJs fundamentally violate a citizen’s constitutional guarantee to a republican form of government. Here’s more:
Depriving a person of their ability to participate in the democratic process on the basis of an artificial boundary is at odds with the spirit of the U.S. and Texas constitutions. Let’s remember that Article IV, Section 4 of the U.S. Constitution guarantees “a Republican Form of Government,” and that Article I, Section 2 of the Texas Constitution says: “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.”
Thus far, municipal apologists have not offered any persuasive rebuttals to the charge of unconstitutionality. However, that might eventually change if and when the case is ever considered by the Texas Supreme Court. Were that possibility ever realized, one might envision a scenario whereby cities argue that the complaint is moot given the passage of SB 2038—which is a good and needed measure. But is it enough to satisfy the grave constitutional concern? Are we, as a society, content to allow an election outcome dictate whether we can or cannot enjoy a fundamental right? And even with the election component in place, how are we to handle those residents who are perennially unsuccessful in their respective contests? Are we to advise that unlucky bunch to simply give up hope on certain constitutional guarantees?
These questions and others like them lead a reasonable person to one conclusion: The ETJ concept is not befitting the people of Texas nor its Constitution, and we should dispense with it quickly, be it through the courts or the 89th Legislature.