Elliott v. City of Coll. Station
| Docket Number | 06-22-00078-CV |
| Decision Date | 31 August 2023 |
| Parties | 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 |
| Court | Texas Court of Appeals |
Date Submitted: June 14, 2023
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.
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 ( ).
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)).
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.
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.
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) ( " .
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 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.
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, 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) 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) (...
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