## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00078

- CV

SHANA ELLIOTT AND LAWRENCE KALKE , Appellant s
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 , Appellee s

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.

Opin ion by Justice Rambin2 

### O P I N I O N More than a century ago, the Legislature gave Texas cities the ability to regulate ma tters beyond city limits. The territory subject to such regulation became known as the extra

- territorial jurisdiction , or ETJ. I n granting ETJ to cities, the Texas Legislature has expressly stated that it
does so for the benefit of both city and ETJ reside nts. See T EX

. L OC

. G OV ’ T C ODE A NN

. § 42.0 0 1 (“ Purpose of Ex trat e rritorial 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 a nd ad jace n t to the municipalities. ” ). The Appellants, two residents of th e 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 gr anted to cities by the Texas Legislatur e. 1 The cha ll e n ge being that, unless residents of the ETJ can vote
in ci ty elections , any city regulation of the ETJ is void

. In the Appellant s ’ words , “ E verything in the Texas Bill of Rights ‘is excepted out of the general powers of government, an d shal l fo rever

r e m ain inviolate, and all laws contrary thereto, or to the foll owing provisions, shall be void.’” ( Q uoting T EX

. C ONST

. a rt. 1, § 26 )

. “Void” is a strong word in constitutional parlance, be cause

“ [a] n unconstitutional statute is vo id from its inc eption a nd c annot 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 Origin ally ap peale d to the Tenth Court of Appeals, this case was transferred to this C ourt by the Texas Su preme Cour t pur s u ant to it s d ock et equalization efforts. Se e T EX

. G OV ’ T C ODE A NN

. § 73.001. We are unawa r e of a n y confl ic t between precedent of the Te nth Court o f App eals and that of this Court on any relevant issue. See T EX

. R. A PP

. P. 41.3.3

The provision of the Bill of Rights of the Texas Con stit uti on that t h e Appel l a nts 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. Th e faith of the people of Texas st ands pledg ed to the pr e servati o n of a republican form of government, and, subject to this limit ation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
T EX

. C ONST . ar t. I, § 2. Though at times t h e 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 argum ent on grounds that this case cou ld “impact b o th proper ty owner s 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 pri va te property outs ide of its territor ial bord e r s. “In a facial challenge, the party challenging the statute
claims that the stat ute always operates unconstitutionally.” EBS Sols., Inc. v. Hegar , 601 S.W.3d 744, 753 ( Tex. 2020) (empha sis added).
The A p p ellants b ring their challe nge under Article I, Section 2 , of the Texas Constitution
and not the federal republican

- form

- of

- gover n m ent guarantee found in th e “Gu arantee Claus e”
of Article IV , Se ction 4 , of the Con stitution of the Un ited Sta t e s of America. Appellants assert
that , while the United States Supreme Court has fou nd the federal version of the re publican

form

- of

- government g uarantee to be a mat t er for Congres s, the Texas versi on under Article I,
Section 2 , confers individu al rights that can be enforced by th e judiciary as a check on the Texas Legislature.4

The Texas Supreme Co urt has already spoken to the application of Arti c le I, Section 2 , of
th e Texas Constitution to ci ties and has also spoken to the application of the republican

- form

- of

gov ernment g u arant ee under the Constitution of the United States of America

. Brown v. City of
Galveston , 75 S.W. 488, 495

– 9 6 ( Tex. 19 03) (address ing Article I, Section 2) ; B onner v. Belsterli ng , 138 S.W. 571, 574

– 75 ( Tex. 1911) (addressing the federal Guara ntee Clau s e ).
In b oth instances, the Texas Supreme Court said that it is for the Texas Legisl ature , and

not for the court s , to deter min e th e type of government afforded at the city level

. Br own and
Bonner are rooted in the foundational understanding that cities are n ot s ove reigns unto themselves, but rathe r are subordinate entities subject to the p eople of the State o f Texas ac ting

as an d thr ough their Legislature. That fou ndation remains so lid

. See Town of Lakewood Vill. v.
Bizios , 493 S.W.3d 527, 530 (Tex. 2016) (“Mun icipalities are creatures of law that ar e ‘created as poli tical subdivisions of the state

. . . for the exe rcise of suc h powers as are conferred upon
them

. . . . They represent no sover eignty dis t i nct fro m th e state and possess only such powers and privil eges as have been expressly or impliedly conferred upon them.’” ( e mphasis added) ( qu o t ing Pay ne v. Massey , 196 S.W.2d 4 93, 495 (Tex. 1946) ) )

. Brown and Bonner , thoug h , are more than a century old. Over time , judicial doctrines , such as standi ng, ripene s s , and wh at is and is not a political q u estion , ha ve been expressed in
finer de tail by the hi ghest courts of our S tate a nd n a tion

. Perhaps Brown an d Bonner were not expressed in the judicial term inol ogy that subsequently developed

. As a matt er of judicial

t h eory , one could d ebate whet her Brown and Bonner found the issue of “ republi can form of government ” at the city level t o be a political question beyond the judicia ry’s reach, or on the5

other hand, those cases found the issue to have bee n within the judicia r y ’s reac h , but t h e n made judi cial pronouncement s that Legislat ive authority over the form of city government , as

exe rc ised in t hose cases, was consis tent with a consti tutional “republican form of government

. ” Either way , the Texas Supr eme Court has spoken c learly t hat the matter is co mmitted to the Legislature

. The Legislature has reli ed on that word for more than a ce nt ury , via n umerous statutory gra nts, modif

ications , and withdrawals of ETJ authority to the cities

. For us, on this

c ase, that is the end o f the m a tter.
J u sticiability requires careful case

- by

- case analysis, but it is lar gely a matter of separation of po we rs
. One of the considerations i n the justiciabili ty analysis (in its present

- day articulation)
is whether the relief sought can be “ judi c i a lly mol ded

. ” A m. K

- 9 Detec tion Servs., LLC v.
Freeman , 556 S.W.3d 246, 252 n.18 (Tex. 201 8) ( quoting Baker v. Car r , 369 U.S. 186, 19 8 (1962) ).
Given t he longstanding Texas Supreme Court rulings in this field, we see no way that the trial court, or an i ntermediate co u rt of appeal s , such as this Cou r t , co uld set Brown aside to mold the relief presently r equested

. Acco rdin gly, for reasons discussed below, w e affirm the trial
court’s dismissal of this ca se on a plea to th e jurisdiction.
I. Factual and Proce dural Backgrou n d
Shana Elliott and Dr. L awren ce K a lke (Appellants ) own separate properties within the
ETJ of the C i ty

. It is undi sputed that , as re sidents of the ETJ , they cannot vote in c ity elect i ons. Ell iot t and Kalke assert that the y w ant to take cer tain actions on and regarding t heir property and that the city ha s ordinances in p lace prohibiting those actions. Elli ott and Kal ke sued the City ,6

the City ’s mayo r , and the C ity’s m an ager ( collectively Appellees). T he su it c hal lenged two
ordinances of th e City on the following single legal theory : “ T his case presents a facial
Const itutional challenge under Article 1 , Se ction 2 of the Texas Const itutio n , [to] Colle ge Station’s decision to regulate the perso ns and property out s ide o f t h eir city limits.” E lliott and
Kalke contend ed that, b ecause ETJ residents canno t vote in the City’s election, any regulation o f
the ET J by the C ity should be declared “un c onstitutiona l ” 2 and that a per manent injunction
shou ld issue “enjoining t h e app lic ation of College Stati on’s code of ordinances against Plaintiffs’ properties located outside of College Station’s city limits.” At core, tho ugh, their suit is ab out

more t h an ordinance s, as Elliott and Kalke s eek “a declaration that College Stati o n lac ks

cons titutional authori ty to regulate persons and priva te property beyond its city limits .” The City and its officials brought a plea to the jurisdiction, asserting that El l iott and
Kal ke lacked stan ding, that their claims we re n ot ripe, and that t h e sui t p resent ed a political
qu estion. 3 Elliott and Kalke opposed the plea to the juri sdiction and every ground asserted
therein. The trial co urt pe rmitted discovery, including th e deposition of the city manager. The
trial court hel d a hearing on the pl e a to the jurisdiction on Sep te mber 15, 2022, and on the next day , granted t he plea , dismissin g the case. The challenged ordinances concern two subje cts: “ off

- premise ” s igns , and d riveways.
C oncerning signs, Section 7.5 ( CC ) of the City’s Unified Development O rdina nce (UDO)

2 On app eal , Elliott and K a l ke express t his in terms of city regulation of the ETJ being void pursuant to Article 1, S ection 26 , of th e Texas Cons titution. See T EX

. C ONST

. a rt. 1, § 26 ( “Everything in the Texas Bill o f Ri ghts ‘i s exc epted out of the general powers of governme nt, an d shall forev er re mai n inviolate, an d a ll laws contrar y thereto, or to the following provisions, s h all be v oid. ”).

3 Because we resolve the case on other grounds, we do n ot address the questions of s ta nding and ripen ess.7

provides , “ All off

- premise and po rtable signs shall be prohibite d within the Extraterritorial Jurisdiction of the City of C o llege Station.” C ITY OF C OLL

. S TAT I O N , T EX ., U NI FIED D EV

. C ODE
sec. 7. 5 ( CC ) (2023)

. “Off

- p r emise” is a term of art in the signage field, refe rring to signs ph y sica lly loca ted on one p l ace that direct the reader to another p lace. City o f Austin, Tex

. v. Reagan Nat’ l Advert. of Austin, LLC , 142 S. Ct. 1464, 1475 (2022) ( “ [F] o r t he last 50

- plus years, federal, state, and loc al jurisdictions have repeatedly r elied upo n o n
- /of f

- pr emises d i stinc tions to
address t he distinct safety and esthet ic challenges pose d by bi llboa rds and other methods of outdoor advertising.”). Concerning driv eways, S ection 34

- 36 (b)(3) of the City of College
Station Code of O rdina nc e s states , “ A ny property owner desiring a new drive w ay approach or an i m prove ment to an existing dr iveway at a n exi st ing residential or other property shall make application for a driveway permit

. . . . ” C ITY OF C OLL

. S TAT ION , T EX ., C ODE OF O RD I NANCES

s ec. 34

- 3 6 ( b ) ( 3 ) (2023)

. T his restriction applies to “all streets, sidewalk s, and driveways within
the cor p orat e limits of the City . . . and wit hin the e xtrat err itorial jur isdiction of the C ity.” C ITY

OF C OLL

. S TAT ION , T EX ., C ODE OF O RD INANCES se c. 34

- 3 1 (2023 )

. T he Te xas Legislatur e has limite d the C i t y’s e nforcem ent mechanism for a range of
matters in the ETJ, including driveways, to a s uit for injunction. See T EX

. L OC

. G OV ’ T C ODE
A NN

. § § 2 12.002 , 212.003 (b), ( c) (“ A fine or criminal penalty p rescribed by the ordinance does

not apply to a violation in t he extr aterritorial ju risdiction. ” “ Th e municipality is e ntitled to
appro p riate injunctive relief in district court to enjoin a v iolation of mu nicipal ordinances or codes appli cable in the extra territorial jurisdiction. ”)

. The Ci t y h as, by S ection 10.3 of its UDO , made a suit for injunctive relief the sole enf orce m ent mec hanism for any ordinance vi olation in8

the ETJ. C ITY OF C OLL

. S TAT ION , T EX ., U NIFIED D EV

. C ODE sec. 10.3 ( B) (2023) (“ Any pers o n violating any provision of this UDO, outside the corporate limits o f the City, but with in t h e City ’s extraterrit o r i a l jur isdiction, shall not be considered as committing a misdemeanor, nor
shall a ny fine provided in Section A above be applica ble; howeve r , the City shall have the right
to institute an action in a court of c ompetent jurisdicti on t o enjoin the violatio n o f any provision

o f this UDO. ”). The City did not sue Elliott or Kalke over t he ordinances at is sue. Instead , t he City
asserts that it ha s never su e d anyone “similarly situated” to Elli ott and Kalke over the ordinances at issue, wit h th e C i t y conside ri n g “ similarl y situ ated ” to be residential proper ty owner s in th e
ETJ. Though the City contend s that it does not enforce the chal lenged ordin ances, it w ould not go so far as to say that they do not apply to Elliott and Kalke , nor would the Cit y commit to

n e ve r enforci ng the m
. The fol lowing excha nge from the deposition of the city manager aptly
summarizes the state of affairs:

Q

. . . . . I ’ m as king about the choice that you used the w ord enforce but yo u didn ’ t use the word apply.

So, my qu est i o n is, is yo u r p osition you do not enforce any o rdinances?
A

. Yes. My position is that we do not enforce tho se ordinances. Q

. Are you claiming th at th ere are no ordinances that could apply to them?
A. I ’ m not claiming that there are no ordinances t hat

- - no, I ’ m n o t c laiming that. I ’ m
-- exactly wh at I said, tha t we don ’ t enforce the ordinances. Q. Okay. As c ity manager, is your decision not to enfo rce an ord i nance permanently binding on th e city?9 A. No. Q

. Okay. So, a future city manager coul d c o m e to a diff e ren t conclu sion a bout enforcement?
A. Correct. Q. Okay

. In fact, you could change your mind about enforcement, correct?
A. Correct.
On the other h and, both E lliott and Kalke a dmi t that they have not taken any concrete steps towards th e r e a lization of the ir desir es. N either has appli ed for a driveway permit. Neither
has turned so much as a spade of soil for a drive way
. Neither has bough t so much a s a posterboar d or a paintbrush for a sign. On these facts, the parties are at loggerhead s o n the law. T he City con tends t hat “ [t] he
Texas L egislature has granted authority to Texas cities to regulate certain activities in nearby
areas outside their corp o rate boundarie s. ” In the City’s view, this presents the following political question : “ W hether Texa s m u nic ipalitie s should be afforde d that authority is a question for the Legislature, not the courts. ” In s upport of this contention, the City cites t o nu merous acts regard ing extraterritorial jurisdiction , including Chapters 42, 21 2, 2 16, and 217 of the Loc a l
G o vernmen t Code. Elliott an d Kalke , on the other hand, consider the City’s view to be unsupported

. Elliott an d Kalke assert: “ [T] he Cit y’s arguments r e garding the political que stion
doctrine boi l down to a single, unsupported cl aim: that the legisla t ure has gra nted cities the

a u t horit y to regulate in the ETJ and therefore it is not for the courts to second guess whether such
authori ty is constitutional

. ”10

Both si des cite authorities on these subj ects , authorities that we now address.
II. The Na ture o f T exas Cit ies At core, Bro wn a nd Bonner dealt with the found ational essence of Texas cities. This wa s a question hotly debated in the earl y 1900 s, a s the civil and criminal enforcement of the
ordina nces of growing cities increasingly overlapped wit h the l aw s of the Texas Legislatu re
. Or in the tragic case of the Great Galveston Hurricane of 1900, the q uestion was brought to the fore
when th e extens iv e loss of life r esulted in the Texas Legislature pr ovid ing that the g overnor could appoint new city c ommis s io ners who , after a term o f t w o years, would then be subject to
election. See, e.g. , Brown , 75 S.W

. at 489

– 90. In several cases, challeng es to the civil or
crimi nal enforcement of a city ordinance t ook the form of a challenge to the constitutionali ty o f
th e city g overnment on th e t h eory that , if the government wa s unconstitutional, the ordinance

was void. One view, the view espoused by the Texas Co u rt of Criminal Appeal s in Ex parte Lewis , was that the notion of cities (and some actual cities) , predated t he State o f Te xas, and even the Repu blic o f T e xas, and that all cities therefore d rew upon a common
- law source of author ity inherent (if no t expressed) i n the Texas Co nstitution. Ex pa rte Lewis , 73 S.W. 81 1, 818 ( Tex. 1903). In the words of the Tex as Co u rt of Cr im inal Appeals:
Th e fact that a system of muni cip a l government was long in vogue prior to the enactment of the [Texas] Constitution , and that und e r this system, from time immemorial, local self

- government was r ecognized, and the power of the suffr a ga ns in ci ties to elect th eir ow n municipal officers w as c onceded, and that nowhere and at no time had the power ever been cla imed on the p art of the Leg i slature to interfer e by authorizing t he Gov ernor to appoint loca l municipal officers, must afford str o ng evide nc e of an existing condi tion which would indic ate that there was no purpose on t he part of those who framed our organi c11

law to dest roy a system o f municipal governme nt which had alway s here tofore been recognize d.
Id. at 817

. Ex p arte Lewis went b e fo re the T exas Court of Criminal Appeals because a resident of
G alveston emptied out a “privy or water

- closet” at a time and or plac e prohi bited by an

or d inance of the City of Gal veston, was fined, then jailed for failure to pay the fine, and then
challen g ed his pun ishm ent on grounds tha t “the Governor ha [d] no autho rit y , under the
Constitution of th is state, to appoint the members of [t he ci ty’s] boar d , and that the charter provisio n authorizing him to do so [w as] null and void, and that said ordinance, a n d all
proc eedings t hereunder, [were] wit hout authority of law.” Id. at 811. The Texas Court of Criminal App eals agreed, holding: [T] h e mayor and board of aldermen of said city were elective of ficers under and b y virtu e of our Constitution , and

. . . t h e majority of these, in the face of our tr aditions and of the organic law itse lf, having been appointed by the G overnor, any law or o rdinan ce passed b y them was without authority, inasmuch as they were not officers of the municipality, and cou ld not, unde r o ur Const itution, be such.
Id. at 819

. Another argument made by Ex parte Le wis had to do with the then

- curren t version of Article VI, S ection 3, of the Texas Constitution , which provided that all “qualified electors” w ho
had resided in a city for six m on ths coul d vote in a city’s elect ions, including for mayo r,
pr ovided that only those paying property ta xe s could vote on the “expendit ure of money or the

a ssumption of debt.” From the existence of this constitutional prov ision, Ex parte Le wis

con cluded , “ T o hold t h at the Constitution mak ers undertook the task of defining qual ifications of12

voters in ci ti es , and providing that persons possess ing the en u merated qualifications should have the right to vote for mayor and oth er elective office rs, and then to d e ci de, with o ut any express provisio n of the Constitution o n t he subject, t hat the Legislature should h av e the power to
withhold this right t o vote in c ities, would, in our op inion, be a travesty on constitutional

construc tion. ” Id. at 818

. Ultima tely, Ex p ar te Lewis was a policy

- based plea for local control: It may be that h ere and there, u nder our American system, ci ti es may be given over to corru ption, and lawles s elements permitted to run riot over the best interests of the municip ality, but this ca n on l y b e tempo rary. If we ad here rigi dly to the principles of local self

- g ov ernment, in t he end conservatism and en li gh tenment and American ci tizens hip will triumph. But if this incentive on the part of the better classes for good gove rnment is removed, and lo cal ities taught to depen d on som e central power to take care of them, w e may never e xpect an improvement. On th e contrary, the seeds of our fr ee institutions, p lanted by the fathers i n the townships and municipalities, will be sca ttered to the wind s, a n ar chy will run riot through out the entire body politic, while we look in vain for some strong central power to a rr es t the destruction of ou r libe rties which have r ested hitherto upon tha t vital and essential principle of the republic

- local self

govern ment by the peo ple.
Id.
Anothe r view was expressed by the dissenter in Ex pa rte Lewis

. Un der this view, “municipal g ov ernments are the bare c reatur es of the Legisla t ure. The legislative br eath has made them, and the legislative breath can unmake them.” Id

. a t 826 (B rooks, J., dissenti ng). Under this view, “there is nothing in the letter or spirit of the [Texas] Con st it ution that remotely
inf ringes upon the legisla t ive right to create the charter with appointive officers for the strick en city of Galvest on. ” Id. at 8 27.13

The Texas Supreme Co urt a lso heard a post

- hurricane challen ge to the fo rm of
Galv eston’s governmen t. The Texas Supreme Court came down on the side of c i ties being the
creations of the L egislature and , in so doing, expressly (though reluctan t ly ) disag reed with the
Court of Crimin al App eals. Brown , 75 S.W. at 491, 494

. 4
As with Ex parte Le wis , Brown dealt w it h a challenge to t he appointm ent of city

comm i ssioners by the governor, as autho rized by the new city charter created by an act of the
Te xas Legi slat ure. Id. at 489

– 90, 49 1 (“ T he first question submitted to us in vol ves the
constituti onality of those s ec ti ons and provisions of the cha rter of the c ity of Galveston which empower the G overnor of the state to appoint three members o f the gov e rn ing bo ard of
commissioners for th at city, and of those which invest that com m ission so constitu ted with the
powers of m ayor and board of aldermen.”)

. The case went up the civil ladder of the Tex as judiciary because the plaintiffs there sough t civil inj u nc tive relief against Galveston ci ty

o rdinances imposing a license requirement o n those operating vehicles in the cit y, w ith the cost
of a license bei ng on a sliding s cale based on the type of use and the number of horses or other
animals used to pull the ve hicl e. Id. at 490

– 91.
Brown to ok a statewide view of things and , in so doi ng , presented an an a lysis of first prin ci pl es.

4 The court in Brown began it s anal y si s by ob ser ving: “ R ec ognizing the eq ual authori ty and dignity of [the Court of Criminal A ppeal s], we a pp roach the in vestigation of the question wit h much hesita ncy, because of the delicacy of the du ty to be performed. We shall accord to the opini on of t he majori ty in that c ase eq ual weight a s an authority with that of any o ther court of last resor t, and, be cause it is a court of co

- ordinate powers w ith this, acti ng under authority derived from the s ame C onstitution, we feel constrained to conform our op i nion to t hat , if we c an pro perly do so in the discharge of our duty.” Brown , 75 S.W. at 49 1.14

The Texas Cons titution be gins with this: That the general, great and ess ential principles of liberty and free governmen t may be re c og nize d and es tablished, we declar e: Section 1. Texas is a free and independ ent State, subject o n ly to the Constitu ti on of the United Sta tes, and th e maintenance o f our free institutions and the p erpetuity of the Union depend upon the preserva tion of th e r ight of loca l self

government, un imp aired to all the States.
T EX

. C ONST . ar t. I, § 1.
Brown h e ld that “local sel f

- go vernment” in Artic le I, Secti on 1 , refers to the entire state

.

“ [T] he declarati on of the right of local self

- government has re ference to the peo ple of the state,
and not to the peopl e of any portion of it.” Brown , 75 S.W. at 49 5. The term “the people,”
h ow ever, does not appear in Ar t i cle I, S ection 1.
Brown next addressed Article I, Section 2 , of the Texas Constitution , which does ref e r to “the peop le ”: All political p ower is inherent in the people, and all free go v ernments are founded on their authority , an d instituted f or the ir benefi t. Th e faith of the people of Texas stands pledged to the preservatio n of a republican form of gover n me nt, and, sub je ct to this limitat ion only, they have at all times the inalienable right to alter, reform or abolish thei r go ver nment in su ch mann er as th ey may think expedient.
T EX

. C ONST . art. I, § 2.
Brown took a state wide view of this section as we l l, holding tha t Article I, Section 2 , “does not mean that political power is inhe rent in a part of the people of a state , bu t in the body

w ho have the ri gh t t o control, by proper legislation, the entire state and all of its parts.” Brown , 75 S.W. at 495.15

B rown then tu r ned to Article II and the separation of powers. Article II , Sect i o n 1 , states: § 1. Separation of powers of g overnme nt amon g three departm ents
The powers of the Government of the State of Texas shall be divided into three distinct departm e nts , each of wh ich shall be confided t o a separate body of magistracy, to wit: th ose which are Legis lative to one, those wh ic h are E xecutiv e to an other, a nd t h ose w hich are Judicial to another; and no person, or collection of perso ns, being of one of the s e d epartments, shall exe rcise any powe r pr operly attached to either of the others, except in the inst ances herein expressl y pe rmitted

. T EX

. C ONST

. art. II , § 1

. Her e too, Brown continues the stark conceptual turn from Ex parte Lew is

. Brown held
that Ar t icl e II, Sectio n 1 , “distr ibutes the p owers of government

— the powers which reside i n the people

— into three depart ments .” B ro wn , 75 S.W. at 495. By referen ce t o “the people,” a term
that does not appear in Article II, Section 1 , Brown brings its analysis of Article I , Sec tion 2 , to
bear: By organizing into a state, with its differen t departments empowered to exercise the a ut ho r ity of the people in the adm i n istration of their a ffairs, the people did not part with their power; it remains with them , to be ex ercised by t he de partments accordin g to the limitations and provisions which are expressed or implied in the Constitution f

or thei r gover nment and directi o n
. Id. (emphasis add ed).
Brown ’ s an alys is then moves to Ar ticle II I , Section 1 , which pro vides: “ The Leg islat ive power of this State shall be vested in a Senate and H ouse of Representatives, whi c h together
shal l be styled ‘ The Legisla ture of t he State of T exas. ’ ” Id. ( quoting T EX

. C ONST . art. III, § 1 )

. Brow n br ings the statewide concept of “the pe op l e” from Art icles I an d II to bear on the nature of
the Article III “ Legislative power ” as follows, “‘The legislative power of this state ’ mea ns a ll o f
th e power of the people whic h may properly be exercised in the formation of laws against which16

the re i s no inhibitio n expressed or implied in the fundamental law.” Brown , 75 S.W. at 495 (emphasis added)

. The “f undamental law” as used in th at sentence means the Texa s Co nsti t ution. See i d. at 494 (“ We h ave been taught to regard the state and federal const it u tions
as th e sole tests by which t he validity of t he acts of the legislature are to be determined. ” ( q uoting Red e ll v. Moores , 88 N.W. 2 43, 247 ( Neb. 1901) ) )

. Having set forth those underp innings in Texas C onstitution A rticle I, Sections 1 and 2,
Articl e II, Section 1, and Article III, Sec tion 1 , Brown comes to the heart of the matt er: Since a municipal corporatio n c annot exist except by l egislative authority, can hav e no officer which is not provided by its c harter, and can exercise no power which is no t granted by t he Legislature, it f oll ows that the creation of s uch corporations, and every provision with regard to their organization, is the exercise of legislati ve p ower which inheres in the whole pe ople, but by the Constitution is delegated to the Legi s l ature ; the re fore it is within th e p ower of the Legislature to determine what fo rm of government will be most be ne f icial to the public and to the people of a parti cula r co mmunity.
Brown , 75 S.W. at 49 5

– 96 (em phasis added).
Brown then went on to use “the do ctrine” t o r efer to, and to rej ect, the position advanced by Ex parte Lewis , na mely the position that cities , i. e ., a subset of “the peop le , ” have rights from

a sour ce t hat is not expressed in the Te xas Cons titution. Id. at 494 (“the doctrine announced by
the Cou rt o f Criminal Appeals in E x parte Lewis ”) , 5 496. Br own specifically r ejected the idea

5 T he Texas S upreme Court identified “the doctrine” in e ven greater detail:
It is asserted by the appell an t t ha t the people of Galveston had the ‘inherent right’ to select th eir own m un icipal officers , and that the Legislature had no power to a uthorize the G overnor of the state to appoint m unicipal officers fo r that city. This propo sition seems to be suppor te d b y the majority opinion in the case of Ex parte Lewis , 73 S. W. 811 , from w h ic h we quote. Af ter citing a number of cases, the Court of Cr iminal A ppeal s said: ‘ But the reasoning in al l of the cases

— those referred to as well as a ll others

— to which our a tt ent io n has been called, except State of Nevada v. Swift , 11 Nev. 134 [Nev. 18 76] , strong ly supports the pr oposition th at, even without some express cons titution al provision, neither the Legislature nor the Governor has the power to appoint th e17

that independe n t municipal authority coul d be found in “the prin cipl es o f natural justice” or in
“natur al justice,” or i n a “spirit supposed to pervade the Co ns tituti on, bu t no t expressed in
word s.” Id

. at 496

. Brown buttressed i ts position with several observations. For one, the Tex as Supreme Court noted , “ O ur Co nstitution is distinguished for the particularity of its provisions and the details into w hich it e nters in ref erence to matters of
go vern ment.” Id. at 493. In parti c u lar, the Texas Constitution specified the office rs a nd m anne r of el ection for county of

ficials bu t did not do so for cities. Id. ( citing then

- c urrent T EX

. C ONST

. art. XI )

. From this th e Brown cour t conclu ded , “ I t is sig n ificant that the Legislature was thus left free to choose the form of governmen t fo r ci ties and towns in contrast with the particula r provisions for counties.” Id. The Texas Supr eme Court also addressed the Article VI , Section 3 , a rgument made by
Ex part e Lewis

. Brown agreed that A r ticle VI, Section 3 , of the Texas Constitution addressed
who could vote i n muni cipa l el ections, if they were held. Brown , 75 S.W. at 493 (“ The purpose
of this section is to secure to al l e lec tors of the state residing in citie s an d t owns the right to vote
at all elections for ele ctive officers of such corporations, and to secu re to prop erty taxpayers the right to dete rmine questions of the ex penditure of money and the assumption of debts , w hen
sub mitted t o a vote

. ” ( e mp hasis ad ded ) )

. But Brown consider ed it a leap for Ex p arte Le wis to

permanent of

fic er s of a municipality. In the cases cited it occurs to us tha t t he re al e ffect of th e d ecisions was to establish th e doctrine that, in the abse nce o f a gran t of authority in the Constitution au thorizin g the appointment of such local office rs by the L eg isl at ure or the Governor, this power was denied b y impl i cation ar isi ng fr om t he history and traditions whi ch time out o f mind had conferred local s elf

- g o vernmen t on municipalities.’
Brown , 75 S.W. at 494 (emphasis added ).18

find that mayoral elections must be held, be caus e th at s ame logic applied to the sam e constitutional provision would result in every little thing having to do with ci ty fin ances requiring a n elec tio n
. Id. Brown found support in this reasoning from the existence of other

con stit utio nal provi sion s requiring a vote on parti cular matters of local finances , because provi sions requiring elections on parti cular ma tte rs would b e w holly unn ecessary if Ar t icl e VI,
Sec tion 3 , had the broad ramifications ascribed to it by Ex parte Lewis

. Id. 6 The Texas S upreme Court gr anted that there was, perhaps , room for difference of opinion on the i mport of Arti cle VI,
Secti on 3 , re g arding “ repu blican form of governme nt , ” but not enou gh room to overturn an ac t of
the Tex a s Leg islature. Id

. at 493

– 94. 7
Fu rther, the le gislation cre atin g th e post

- hu rricane city charter was largely the result of a bill s ponsored b y the state represen tati ves and the sta te senator represent ing Galveston

. Id

. at
496

. Therefore, to set that leg i slat ion aside would be to “ deny to the people of Galveston the right to govern their af fair s th eir own way, and thereby to substitute a form of municip al
governm ent dictated by the cou rts.” Id.

6 “The fact that the Constitutio n dir ec ts that all propositions to levy taxes to su pport p ublic fre e s choo ls in cities and to wns shall be su bmitted to a vote of the property tax pay ers ( a rticle 11 , § § 7 and 10; a rticle 7, § 3) shows that t he convention did not understand that s ection 3 , ar t. 6, embodied such requirements, else the specia l prov i sions wou ld be u sele s s. ” Brown , 75 S.W. at 493.

7 The major ity opinion [of Ex parte Lewi s ] arg ues with m uch force the proposition that the charter of Galveston is in conflict with s ection 3 of a r ti cle 6 of the Constitution, but we do not believe t hat it is so co nclu sive as to justify this cou rt i n o verruling the d ecision of the legislati ve de partme nt. If th ere was doubt in our minds, our conclusion mus t be as expressed in the following quot ation: ‘Bu t if I could rest my opinion in favor of the co nstitu t ionality of the law on which the question a ris es on no other ground than this doubt so fel t and acknowle dg ed, that alone would, in my estimation, be a s atisfactory vindication of it. It is but a d ec ent r espect due to the wisdom, the integrity, and the pa t riotism of t he legis lative body by which a n y l aw is passed to presume in favor of its va li dity, until it s violation of the Constitution is proved be yond all reasonable doubt.’
Id. at 493

– 9 4.19

In c losing, Brown cautioned that th e Ex parte Lewis approa c h present ed a vag ue and unmanageable standard t hat was an invitation to judicial overre ach:

“ Th e doctrine ” furnishes no standard or rule by which to de termine the val idity of any law fr amed by the Legi slature, but leaves each judge to try it accordin g to his own j udgment of what constitutes the “ histo r y and tradi tions ” of the state, and what rig hts have been ve sted in the people by reason of such “ histor y and tradi tion s. ” To this theory we cannot give our consent, but must adhere to the well

- establis h ed rules of co nstruct ion which confine the court to the Constit ution as the standard by whic h it is to determine the validity of legislative enactments.
Br own , 75 S.W . at 496. 8
Thus , there w as an unfortun ate split between the State’s tw o highest courts, as r ecognized
b y Commi ssioners’ Court of Nolan Count y v . Beall , 8 1 S. W. 526, 528 ( Tex. 1904)

. 9 See also
Ex parte Anderson , 81 S.W. 973, 974 ( Tex. 1904)

.

8 B ro wn de alt w ith the additional question of whether th e fees c h arge d by the ordi nance were a proper exercise of police p owe r or an impermi ssible occu pation tax. Id

. a t 496

– 97.

9 The Beall court o bserv ed : [I]n or dinary cas es there could be no conflict between the Court o f Cri mi nal Appeals and the Supreme Cour t; it b e i ng the duty of the latter to fo llow the former on questions of crimin al la w, and the corr esp onding d uty of the form er to follow the latter upon que st ions of ci vil law. So far harm ony of decision was secured. But u nfortunately there is a class of cases i n which this rule cannot be appl ied. For example, the Legislature may p a ss a stat ute whic h b oth conf ers civil rights, and declares offenses punishable i n the c riminal courts, the v alidity of which as a whole ma y b e questioned. Under such a law bo th a ci v i l action may be brought, and a criminal prosecution instituted. The qu est ion of the vali dit y of the act is peculiar to neither jurisdiction. Under it, if val id, there are not onl y civil rights to be protect ed , b ut also criminal offenses to be pr osecute d

. Upon the q uestion of the vali dity of the act neither court should be bou nd by t he decis ion of the othe r. Such was the ac t, the validity of which was pas se d upon by this court in the case of Brown v. City o f Gal ve ston , 75 S. W. 488, 7 Tex. Ct. Re p. 758. In that case we were called upo n to determine the right of the city gov ern men t of the cit y o f Galves ton to maintain itself under the act in question, and, no t considering this cour t bound by the decision of t he Co ur t of Criminal Appeals in the cas e of Ex p arte Lewis ( Tex. Cr. App.) 73 S

. W. 811, we declined to follow it. No m ore do we think th at the Cour t of Criminal Appeals w ere bound by our decision upon t ha t question. Therefore as to that class of cases th er e m ay be conflict between the decisio ns of t h e two courts, and there is no pr ovision in the Constitution for settling th e la w i n such c ase s and en forc ing harmony of decis ion. Beall , 81 S.W. at 528

.20

Th ankful ly, b y 19 09, there wa s , if not harmony, at l eas t détente between the courts,
bec ause th e Tex a s Court of Criminal Appeals abandoned the app roac h o f municipali ties being separate soverei gns. The Texas Court of Criminal Appeals held , “ Municipal corporations have

o nly such powers as may be granted by t he Legislature , unless otherwise pro vided in t h e Const itution; and wherever the question of a grant of pow er is at issue, the grant will be taken more strongly in favor of the granting power, and against the grantee, w hen appl ication of this principle is m ade to municipal corporations.” Man tel v. Sta t e , 117 S.W. 855, 856 ( Tex. Crim. App. 1909) (emphasi s a d ded ). Th e case in which the Texas Court of Crim inal Appeals so held was not a republican

- form

- of

- government ch all enge , b ut it did call on the Texas Cour t of Criminal Appea ls to assess the authori t y o f cit ies as compare d to the Legislature. At issue in
M antel wer e ov erl apping versions of food safety regulati ons , each with differing penalties: the
ordinance of the Ci ty o f Dalla s, an d th e statutes of the S tate of Texas. The Texas Court of Criminal Appea l s f

ound , “ T he city ordi nance seems to be sweeping en ough to co ver al l th e
p rovisions of the state law, without dra wing any distinction as to the character of foods whi ch

m ay be ad ulte rate d or the manner of adulteration, in so far as p unishment is c onc erned.” I d

. at
85 7

. The Texas Co urt of Criminal Appeals further f ound that “ the pun ishment for violation of the city ordina nce [was] different from that prescribed for vi olat ion of the s t ate law.” I d

. Conseq uently , the ordinance had to yiel d be c ause “city ordinances are jus tifi ed by virtue o f the authority g ranted in the c harter [,] ” w hich “ i s derived from the Legislature, and the power of the city government to create or ord ain ordinanc es is by virtue of auth ority granted by the Legislature. ” I

d. The Texas Court of Crimi nal A ppeals observ ed , “ [ I ] t is well w ithin the p ower21

of the cit y of Da llas, by ordinance duly passed, to adopt such ordinances as may be appropriate

to prot ect the publ ic heal th , subje ct, alw ays, that they be in conform i ty with th e state law on the
same sub ject .” Id

. (emphasis added). The T exas Court of Criminal Ap peal s c ited neither Brown

nor Ex parte Lewis in this decision. A little more than two year s af ter Mantel , the Texas S upreme Court was a gain faced with
a repu b lic an
- form

- of

- government challenge. Bo nner v. Belster ling , 138 S.W. 571, 573 ( Tex

. 1911). The ca se w as brought by a member of the board of educ ation of the City of Dallas who
had been re mo ve d via a rec a ll election. Id. Ther e was no dispute that th e City o f Dallas derived its powe rs from a charter granted by the Texas Legisl ature. Id. at 57 3

. N or w as there any dispute that the city’s government was republican in nature, save and except for the dispute o ver the Legislature’s grant of the recall powe r , whic h was challenged not under Article I, Section 2,
of the Texas Constitu tion but under the Guarantee Claus e of Articl e IV , S ection 4 , of the United
States Constitution. Id. at 574. The Texa s Supreme Co urt, quoting Thomas Jef f e rson, noted the difficulty i n pinning down what is mean t by a “republican form of govern me nt”:
As t o the meaning of the phrase, ‘Repub lican form of g ove rnment,’ there is no better authority than M r. Jefferson, who, in discussing t he matter, said: ‘Inde e d , it m ust be acknowledged th at the term ‘republic’ is of v ery vague application in every la nguage. Were I to assign to this term a pre cise and de fini te idea, I would say, purely and simply, it mea ns a government by its citizens in mass, acting directly a n d not persona lly, according to rules established by the maj ority; and that every other g over nment is more or less republican in proport ion as it h as i n i ts composition more or less of this ingredie nt of the direct a ctio n of the cit izens.
Bonner v. Belst e r ling , 138 S.W. 571, 574 (Tex . 1911) ( quot ing Letter from Thomas Jefferson to John Taylor (May 28 , 18 1 6 ) , N ATIONAL A RCHIVES , https:// founders. archives. gov/ documents/
Jefferson/ 03

- 10

- 02

- 0053 )

.22

The Texas Supreme Co urt , citing Br o wn , hel d that, subject to the C o nstitutions of the
Unit ed States and the State of Texas, “the people of Texas h ave the right to adopt any form of government which they may prefer ” and that “the Legisla ture may confer up on any municipal
gove rnme nt any pow e r th at it may see fit to give.” Id. at 574 ( citing Bro wn , 75 S.W. 488 )

. Conseq uently, “[t]he policy of reservin g to the people such powe r as the recall, th e initiative, and the referendum is a questio n for the people t hemselves in framing th e government , or for the Legislature in the cre ation of municipal go vernments. It is not for the courts to decide that questio n .” Id. at 574

– 75 (emph asis added). 10 Bonn e r went on to observe that “we are unable to see from our viewp oint” how the ability to hold recal l ele cti ons would make the city’s boa rd of
education les s republican. Id. at 574. In 1912, on the heels of all the decisions cited above, the T exas Constitut i on was amended to permit cities to adopt their own c harters. This powe r, though, came with limi t a t ions : C ities having more than five thousand (5000) i nhabitants may, by a majority vote of the qual ified voters of said city, at an electio n he ld for that pu rpose, adopt or amend their charters , subject to such limitat ions as may be pre scribed b y the Legi s l atur e , and provid ing that n o charter or any ordinance passed under said charter shall co ntain any provision inconsist ent with the Constit ution of the State, or of the gene ral la ws enacted by the Legi slature of this state

. . . . Tex. H.J. Res. 10, 32 d Le g., R.S. , 1911 Tex. Gen. Laws 284

– 85 (proposing constitutional
amendment , which passed, to Article XI, Section 5, of the Tex as Constitution relating to
amend m ent of city char ters).

10 It is worth noting that B on ner cited Brown for the rul e tha t the Legislature determines the f orm of m u n icipal gover nment, but after t hat, let things be. Bonner did not expound upon B rown , nor d id Bon ne r un dertake t o refute Ex parte Lewis

. This is co nsistent b oth with Ex parte Lewi s being a dead letter o n th e sub je ct and with Bonner seeking to cl early a ff

i rm the valid ity of Brown but to do so quietly and respectfully.23

Shortly after the adoption of that amendment, the Te xas Le gislature pass e d a n e nabling

act that placed restrictions on such “h ome rule” cities

. See, e.g. , McCutcheon v. Woz encraft , 294
S .W. 1105, 1106 ( Tex. 1927). In McCutcheon a w ould

- be city bus operator was denied a franchise by the city commission of Dalla s (then a home r ul e city). Id. at 1105. The would

- be
bus operator sought mandamus r elief to c ompel the city to put the questio n to the vote r s. Id. The Texas Supreme Court d enied that relief, holding that the Legislature ’s enabling act di d
inde ed include a p rovi si on fo r submitting city decisions to the voters, but as a safeguar d mechanism to permit v oters to rejec t franchise s a ctually gra n ted by the city’s governing body,

no t as a means to second

- guess the governing bo dy’s rejection of a fran chise. Id. at 110 7.
In the c ase now before us, the Cit y is a home r ule city

. However, neith er side in this case argued that home ru le status impacted the an a lysis. Perhaps that is beca u se the Texas Supreme
Court

— while recognizing the con stitutional source of h o me rule power

—has no netheless held
that all ci t ie s in Texas remain subdivisions of th e state that “ represent no soverei gnty distinct
from the state a n d possess only such powers an d privileges as have been expressly or impliedly

con ferred on them. ” T

o wn of Lakewood Vil l. , 49 3 S.W.3d at 530 ( quoting P ay ne , 196 S.W.2d at
495 )

. As a result , t he conc eptual underpinning of Bro wn and Bonner remains solid.
I II. Extraterritorial Jurisdict i on With an understanding of the nature of cities esta blished, we tu rn n e xt to the

extra terr it orial jurisdiction of cities

. T he discussion of cities was neces sary becau se both si des agree that there is no prior case presenti ng a republican

- form

- of

- governm e nt challenge to extraterritorial jurisdiction and because , for l ack of such a case, both s ides cite to cases involving24

citi es (namely Ex parte Lewis , Brown , and Bonn er ) in the ir arguments regarding the extraterritorial ju risdiction

. Those cases are discu s sed above. What we turn to, then, is the

sour ce o f extraterrito rial aut hority. On this , b oth sides agree that extraterri t or ial jurisdiction is a

statutor y creation of the Te xas Legislature

. “ A city ’ s authority to reg ulate land development in
its ETJ is wholly derived from a legislative grant of autho rity

. ” Town of Annetta S

. v. Seadrift Dev., L.P

. , 446 S.W.3d 823, 826 (Tex

. App.

— For t Worth 2014 , pet s
. denied ) ( quo t ing FM
Pr op s. Operating Co. v. City of Austin , 22 S.W

. 3d 868, 902 (Tex. 2000 ) ( Abbott, J. , dissenting ) )

. The Texas L egislat ure has gran te d cities in Texas the authority to regulat e certain
activities outside thei r corporate boundaries, in what is known as th eir extrater ritorial juri sdic t ion. The Texas Legi sl ature “declare[d] it the policy of t he state to designate certain are as as the ext r aterritorial jurisdiction of mun icipalitie s.” T EX

. L OC

. G OV ’ T C OD E A NN

. § 42 .001. Extraterritorial jurisdiction refe rs to “the unin corporated ar ea t h at is contiguous to th e corporate
boundaries of the muni c ipalit y” and is located within a s pecified dista nce of those boundaries, depending up on th e number of inhabitants within th e municipality. 11 T EX

. L OC

. G OV ’ T C ODE
A NN

. § 42.021. The purpose of e xtra t erritorial jurisdict io n is “to promote and protect the g e neral
healt h, safety, and welfare of persons res iding in and adjacent to the municipalitie s.” T EX

. L OC

. G OV ’ T C ODE A NN

. § 42 .001. Subject to certain exceptions, the Le gislature ha s authorized citi e s to regulate the su bd ivision of land and access to publ i c roads within their ETJ. T EX

. L O C

. G OV ’ T
C ODE A NN

. § 212.003. The Legislature has a lso authorized cities to extend t heir s ign regulations

11 The extent o f a particular ci ty’s ETJ depend s on the size of that city’s popula tion. T EX

. L OC

. G OV ’ T C ODE A NN

. § 42 .0 21. For cities w ith po pul at ions exceeding 100,000, such as the City , th e ETJ extends five mi les from the city’s boundaries. T EX

. L OC

. G OV ’ T C ODE A NN

. § 42. 021 (a)(5).25

to their ETJ and regulat e c erta in nuisa nces within a def i ned area outside the c ity limits. T EX

. L OC

. G OV ’ T C ODE A N N

. §§ 216.003, 217.042. In some shape or for m, cities have had extraterritorial powers since at least 1 913. 12
I V

. Plea to th e J urisdic tion

“ A plea to the jurisdiction is a dilatory plea ” b y whi ch a party cha llen ges a court ’ s authority to d etermi ne the s u bject matter of the action. Bland Indep

. Sch

. D ist . v. Blue , 34
S.W.3 d 547, 554 (Tex. 2000). W e review the trial cour t ’ s ru ling on a challenge to its subject

matter jurisdiction de novo

. Tex. Dep ’ t of Parks & W ild life v. Miranda , 133 S.W. 3d 217, 22 8 (T e x. 200 4)

. If a plea to the jur isdiction challenges a party ’ s pleadings , the reviewing court examines
whether the plead er af

fi rmatively allege d facts establishing jurisdiction. Tex

. Dep ’ t of Crim. Just. v. Rangel , 595 S.W.3d 198, 205 (Tex. 2 02 0)

. When ex a mining whether the pleader has met
this b urden , the reviewing court lo oks to the pleader ’ s intent, construing the plead ings l iberally,
and t aking all factual assertions as tr ue. Id.
I f the facts regarding the jurisdictional issue are undis puted, or fail to raise a fact question, then the plea to the jurisdiction becomes a question of law

. Miranda , 133 S.W.3d a t
228

. “ If the p leadings affirmatively negate the existence of ju risdiction, t hen a plea to the jurisdict ion may be granted without allowing the p l aintiffs an opportunity to amend. ” Id. at 227

.

12 See Act approved Ap r il 7, 19 1 3 , 33d Leg., R.S., ch. 147 , § 4, 1913 Tex. Gen. Laws 307, 310 ( “That each city shall have the p ower t o d ef

ine all nuisan ces and pr o hi bit the sa me within the city and outside the city limits for a distance of five thou sand feet ; to have the po wer to police all parks or grounds, speedways, or boulevards own e d by said city and lying outside of said cit y
. . . . ” (emphasis adde d) )

.26

V. P olitical Question
As sta ted at t h e ou tset, appellants present a facial c hallenge to the City’s ordinances, argui ng that they violate t he “ republican form of government ” requi rement found in Article I,
S e ction 2 , of the Texas Constitution. Fac ial constitution al challenges are “disfavored bec ause they threaten to short ci rcui t the democrat ic process by preventing laws e mbodying the will o f
the people from being implemented in a manner consisten t with the C onstitutio n.” King St.
Patriots v. T

ex . Democratic Part

y , 521 S.W.3d 729 , 741

– 42 (Tex. 2 017) ( c itation omitted). The Appe ll ants contend that th e City ordinances at iss ue violate Article I, Section 2 , of t he Texas
Constit ution because Appellant s reside i n the City’s ETJ an d are “subject to the municipali ty’s regulatory a u tho rity but [are] denied the ability to vote to remove th e holder of legislati ve power from off ice.” In Texas, “[s]ubject [

- ] matter j urisdiction requires

. . . that the case be justiciab l e.” State
Ba r of Te x. v . Gomez , 891 S.W.2d 243, 245 (Tex. 1994). Th e po litical question doc trine “is primaril y a function o f the separation of pow ers” and exclu des from j udicial review
controversies t hat “revolve around po licy choices and va lue determin a tions consti tutiona lly
committed for resolution ” to non
- judicial g ov ernm ent branches. Am. K

- 9 , 556 S.W.3d at 253

.

“ The po li tical question doct rine is an issue o f subject

- matter jurisdiction, and thus a par ty properly asser ts it in Texas state court via a plea to the jur isdiction. ” Van Dorn Preston v. M1 Support Servs., L.P

. , 642 S.W.3d 452, 459 (Tex. 2022)

. “ Whether the ju ri sdictional facts
establish trial

- cour t jurisdic tion is a question of law that [is] review [ed] de no vo. ” Id.27

In Baker v. Carr , th e United States Supreme Court set out six factors for identifying
issues that have been committed to another branch of gover nm ent :

It is apparent that s everal form ulations w h ich vary slightly accord ing to the settings in whic h the q uestio ns arise may descr i be a political question, although each has one or mo re elements which identify it as es sentially a function of the sep arati on of powers. Prominent on t he surface of any ca s e held to involve a polit ical question is found [1] a text ually demonstra ble const i tutional commitment of the issue to a coordinate pol itical depar tment; or [2] a la ck of judicially discoverable and ma nagea bl e standards for resolving i t; or [3] the imposs i bility of deciding withou t an initial policy determ ination of a kind clea rly for n o njudicial discretion; or [4] the impossibility of a court ’ s unde rtaking independen t reso lution without expressing lack of t he respect due coordinate bra nches of g overnment; or [5] an unusual need fo r unquestioning adherence to a po litica l decisio n already made; or [6] the potentiality of embarrassment from multifarious pronouncements by vario us departments on one question

. Ba ke r v. Carr , 369 U.S. 186, 21 7 (1962)

. However, a s stated in Baker , the political question doctrine “ is one of ‘po litical
q uestions, ’ not one of ‘political cases.’ The courts cannot re ject as ‘no law suit’ a bona f ide controversy as to whether some a ction d enominated ‘political’ exceeds consti tutional a u thority.”
Id.
The Texas Supreme Court has never explic itly a dopted th e entiret y of the Baker test , but
it has “ assumed” that the Ba ker factors “ serve equally we ll in defining the separation of p ow ers in t he state government under the Texas C onstitutio n. ” Am. K

- 9 , 556 S.W. 3d at 253 ( quoting Neeley v. W. Ora nge - Co ve Consol . Ind. Sch. Dist

. , 176 S.W.3d 746, 778 (Tex. 2005) )

. The
Texas Supr eme Co urt has also b een “guided” by Baker in cases implicati n g both f ederal and

state authority. Id. at 2 54 ; Van Do rn Presto n , 642 S .W.3d at 458

– 59 (“This case prese nts a28

simi lar state

- federal dynam i c. The claims presen ted are ones over which the fed eral courts have

concurrent jurisd iction, and we apply Ameri can K

- 9 ’s a na lysis, guided b y fede ral precedent, t o inform o ur decision.”)

. American K

- 9 , tho ugh guided by Bake r , was dec ided as a matter of “ t h e s eparation of powers mandate d by th e Texas Constitution. ” Am. K

- 9 , 556 S. W.3d at 254. I n this co ntext,
Americ an K

- 9 inc orporated the “ discriminating analysis ” described by Baker

. Id. at 257 ( quot ing
Baker , 369 U.S. at 211 )

. In ful l , the Baker discri m ina ting analysis is as fol lows:

O ur cases i n this field se em invariably to show a discr iminat ing analysis of t he particu lar question posed, in terms of the history of its managemen t by the political branches, of its suscepti bility to j udicial handling i n t he light of its nature an d postur e in the specific case, a nd of the poss ib le consequenc es of jud icial action.
Baker , 369 U.S. at 211

– 12

. In regard to the “susceptibilit y to judi cial handli ng,” Am erican K

- 9
noted that , in t he federal sy stem, Baker tr e a ted justiciabilit y issues such as “ w hether the duty asserted can be judic ia lly identified and it s b reach judic ially dete rmined, and whether protection for the right asserted can be ju dicially mo lded , ” a s a question separate from jurisdiction , but in
Texas “[s]ubje ct [

- ] matter jurisdiction requir es .
. . 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 a t 24 5 )

. In the same context , i.e ., being guid ed by Baker when deciding an issu e under the Te xas Constitution, American K

- 9 looked spec ifically t o the firs t two Ba ker factors, nam ely , whether

t here was “ a textually demonstrable cons titutiona l comm itm ent of the issue to a coordinate poli tical department ” or “ a lack of judicia lly disco v era ble and ma nageable standards for resolving it

. ” Id. at 2 52

– 5 3 ( q uot ing Baker , 369 U.S. at 217 )

. In doing so, American K

- 9 noted29

t hat these factors are related

. Id

. at 253 ( citing Nixon v. Uni t ed State s , 506 U.S. 224, 228

– 29 (1993) ( “ [T] he conce pt of a textual com mitment to a coordinate po litical department is not

c o mp letely separat e from the concep t of a lack of judicially dis coverab le and manageable
standard s for re solving it; the lack of jud icially manageable standards may strengthen the
concl usion that there is a textually demonstrable commitment to a coord inat e br anch. ”) )

. The bu lk of federal authorities indicate that “republican form o f government ” presents a political question

. The United States C onstit ut ion contains a g uarantee clause similar t o tha t of
the Texas C onsti tution. The Unite d States C on sti tutio n directs the United St ates to “guarantee to every State in this Union a Repu blican Form of Government.” U.S. C ONST

. a rt . IV, § 4. “Although the Su pr eme Court has su ggested that per haps not all c laims un der the guara nty clause present nonjustic ia ble poli t i cal questions, in the main the Court has found that such claims

are n ot jud icially enforceable.” Texas v . United States , 106 F

. 3d 66 1, 666 ( 5 th Cir

. 1997) (citing
New York v . U

nited State s , 505 U .S. 144 , 182

– 86 (1992 ) ). “In mo st of th e cases in whi ch t h e Court has been asked to apply the [Guarantee] Clause, the Court has fo und t he claims presented to be nonjusticiable unde r the ‘ polit ical question ’ d o ctrine.” New York v. Uni ted State s , 505 U.S. 144, 18 4 (1992)

. In Pac i fic States , the S upreme Court con s i dered a taxpayer ’ s cha llenge to an Oregon tax law on the ground that it w as adopted by ballot initiative in violation of th e Guarante e Clause. Pac

. States Tel

. & Tel

. Co. v. Or egon , 223 U.S . 118 (1 912). The Court

c onc lu ded that challenges based on the G u arantee Clause present nonjusticiable political
que stions. In doing so, the Court declined to define t he phrase “ Republican F or m of
Government , ” instead concluding that that definition was of a politica l ch aracter and, hence ,30

b ey ond the jurisdiction of t h e c our ts

. Id

. a t 133 (“[T]hat question has long since been determined by this court conformably to the practi ce of t he g overnment fr om the beginning to be political in

c haracter, and theref

ore n ot cogni za bl e by the judicial pow er , but solely committed b y the
C onstitution to the judgment of Congress.”); see also Ry an C. Williams, The “Guar antee”
Clause , 132 H ARV

. L. R EV

. 602, 671 n. 4 3 1 (2018) (“The modern un derstanding of the political questi on doctrine a s a barrie r to all Guarantee Cl au se claims began to c r ys tallize with the Court ’ s 1912 decision in Pacific States

. . . .”). As for Texas authorities, neither Brown nor Bon ner expressly de cl ined to address the republican

- form

- of

- government chal lenges before them as poli tical questions. See Brown , 75
S.W. a t 49 6; Bonner , 138 S.W. at 574

. 13 Both Br own and Bonner pre
- date Baker , American K

- 9 ,

an d Van dor

n Preston

. That s aid , bo th Brown and B onner spoke in terms that fit within the first

two Baker factors, fac t ors that we re announced decades later.
On t he fir st Baker factor, textual c ommitme nt to another branch of the government,
Brown held tha t “it is within th e p ower of the Legi sl ature to determine what form of government
will be most beneficial to the public a nd to the people of a particular commu ni ty .” Br ow n , 75
S.W. at 4 95

– 96. B rown made particula r note that Galveston’s cit y charter was the r esult of legislat ive action and th at two state representatives and one state senator spoke for Galves t on in

13 T he parties brin g to our attention Walling v North C entral Texas Municipal Water Authority , 359 S.W.2 d 54 6 (Tex. App.

— Eas tland 1962, wri t ref’d n.r.e.) (per curiam). The wording o f t he holding of Walling could be con strued as eith er a re fusal to dec ide the i s sue on justi ciability grounds or a determination on the merits: “We find nothing in th e United S tate s Constitutio n o r in the State Co nstitution which would authorize us to say tha t the citizens of the Authority ar e being d epri ved of a republican form o f g overnment.” Id. at 549 (emphasis added). Walli ng dealt with a water district, not a c ity, and d id n ot have the b ene fit of Texas Su pre me Court authority examining Baker

. Id. at 54 7. Further, Walling discusses neit her Ex part e L ewis , nor Brown , nor Bo nn e r . See i d. Walling , then , is of little help in the present analysis.31

the leg i slature. Id

. at 496. On the second Ba ke r factor , Brown o bserved that “th e doctrine” of
Ex parte Lewis “furnishes no s tandard or rule by which to d e termine the valid i ty of a ny l aw f ramed by the Legislature

. . . . ” Id.
On the first Baker f

actor, Bonner h eld that “the Legislature may confer u po n any

mu ni cipal g overnment any p ower it may see fit to give.” Bonner , 138 S. W . at 574. Bonner
further hel d that questions s u ch as “ recall, the initiative, and the referendum” are “for the Legislatur e in the creat ion of mun icipal governments.” Id. at 5 74

. Going f urthe r, Bonn er stated ,

“ I t is not for the courts to decide that ques tion. ” Id. On the second Baker factor, Bonn er quo te d Thomas Jefferson for the pr opos ition that the definition of a “ repu b lican form of govern ment ” “ is of very vague applic at ion in ever y langu age[,]” but that to an extent a definition can be formed,

“ govern ments are more or less republic an as they hav e mo re or less of the element of po pula r election and control in their comp o sition. ” Id. a t 5 74. The conundrum is that Bonne r the n
procee de d t o use t hat as a sta ndard in a federal challenge: “[w]e

. . . will proceed to examine the provisi ons of the char ter with a view of determining if it fulfills the definition given by
Mr. J e fferson; and, if i t does, it is not obnoxious to t he pr ov isions o f t he fede ral Constit ution as above quoted.” Hence , Bonner was decid ed on the Guarantee Clause, on which Appellants d o
not re ly and , additionally, was decided shortly before Pacific States , in w hich the United States Supreme Court found Guar an te e
- Cla use c hall enges t o be political question s
. Pac. States , 223
U.S . at 133.
We leave this her e for now, with the discussi on to be res umed i n the Analysis

.32

V I . The Judici ary’s Role Though there are c i r cumstances u nder which court s can and should de cl ine to reso lv e polit ical ques tions, it emphatically remains the sole pr ovince of the judiciary to interpret the
constitution. A m. K

- 9 , 55 6 S.W.3d at 252 ( “ [ t ] o the courts alone”). Thus , if the constituti o n imposes a j udiciable standard by which to meas ur e t he act (s ) of the Legislature , it is the province
of the courts to de termine whether tha t standard has b een met :

The final aut hority to determine adherence to the Constitution resides with the Judiciary. Thus, th e Le gislature has the sole right to dec id e h ow to me et th e st andards set by the people in [the provision of the Texas Con stitution there at issue] , and the Judiciary h as the final authority to determi ne whether they have been met. W. Orange

- Cove C onsol. I .S.D . v. Alanis , 107 S.W.3d 558, 563

– 64 ( Tex . 2003 ) ( c iting M arbury
v. Madison , 5 U.S. (1 Cranch) 1 37, 176

– 178 ( 1803) )

. The Texas Supr eme Cour t’s approach in the schoo l finance ca ses is illustrative. There,
the Texas Supreme Court under took a co m prehensive hi stori cal review of the Texas Legislature ’ s acts on the subj ect before remanding for consideration of whether the Le gislature
had met the c onstitutio nal standard s applicable to school financing

. See id. at 564

– 73 (prov iding lengthy over view o f legislatio n)

. VI I . Analys is
We a r e faced w ith a novel argume nt

. There has been no prio r cha llenge to extraterritorial jurisdiction under Article I , Section 2 , of the Texas Constitution. T EX

. C ONST

. art. I, § 2. The Appellants c onten d that, under Ex p art e Le wis , they have th e rig ht to vo te for municip al officers and that this right is not dependent o n the Legislature

. Appell ants , therefo re,33

do not que stion the effectiveness of the Legislature in its role as representative of the int erests of
ETJ res i den t s
. Appellant s did not, f or exa mp le , bring forward all of the acts o f the Legisla ture in
this field in th e fas hion of the scho ol funding challenges. Instead, Appell ants q uestion wheth er the Legislature m ay serve in that role at all. Appellan ts are of th e view that Ar ticle I , Sec tion 2 ,

as construed by Ex p arte Lewis , mandates that , if there is to be ETJ, the ETJ p roperty owner s
must have a direct vote in city el ections

. See i d.
But Ex parte Lewis , as discuss ed a bove, was rejected by the Texas Supreme Co u rt , and
th e C ourt of Crim inal App ea ls backed away from the notion that cities are soverei gns unto
themselves.
Aside from Ex parte Lewis , A ppellants con tend that Brown itself is a cities

- as
- sovereigns

case , because of the stat ement in Brown that city ch art e rs a re “formu l ated by the p eo pl e of the
towns.” That takes words in isolation, str i pping t hem from the context of Brown :

[I]t is a ma tter of com mon knowledge that charters are for m ulated by the peop le o f the town s, presented by their representatives t o t h e Le g islature , and, in case o f opp osition, committees attend upon the Legislature t o secure the wish of the majority. The city of G alv eston had two representatives in the House and one in the Senate tha t enacted t his law, and the bill was introduced i n t h e Ho us e by on e of h er repre se ntati ves, and supported by all

. To overthrow the char t er of t hat city, upon the assumption of ‘a his to ry a nd tradit ion’ which have no real existence, w o uld in fact deny to t he people of Galveston the right to govern their aff a irs in their o wn wa y, and t he reby to substitute a form of municipal government dict a ted by the courts. In fact, this theory is ou t of ha rmony wi th the practices of republican state g overnments in Am eric a, and opens up a broad filed [sic.] in which to sea r ch for grou nd s to d ec lare l aw s of a Legis lature void, without the shadow of authority in t h e well

- established powers of the courts under ou r Con s titution.34

Brown , 75 S.W. at 496 ( emphasis added).
M ore broadly, Bro wn held that “ it is within the power of th e Legislatur e to det er mine

w ha t form of governmen t will be most beneficial to the public an d to the people of a particular community. ” Id

. at 495

– 96. S ince Brown , the Texas Legislature has seen f it to give citi es extraterritorial jurisdiction, and in s o d o i ng, has de cl ared t ha t it, th e Legislature , is l ooking out
for the “general health, safety , and we lfare” of those living “ adjacent to ” ci ti es. T EX

. L OC

. G OV ’ T C ODE A NN

. § 42.0 0 1

. In sum, the Ap pellant s present a facial constitution al challenge on grou nds tha t h ave bee n reje cted by Br own . We do not answer the questions of whether Brown and B onner w ere pol itical question cases as and whe n decided , or whethe r they would be considered political q uestion

cases to da y
. W e , as an inferior co urt , are confronted w i th what to d o with t he Appel la nts ’ facial
chall enge as presented to us today. We are subj ect to the Tex as Supreme Court’s adoption of t he
first two Baker fac tors in the decades after B rown and Bonner

. Concerning the facial challeng e presente d by the Ap p el lants , Bro wn const i tutes a t extual
commitment to the Legisl ature under the first Bake r factor. Regarding the second Baker facto r, given Brown ’ s commitment of the matter to the
Le gi s lature, any challenge to extraterritorial jurisdiction un der Article I , S ect ion 2 , of the Te xas Cons ti tution would need to put into word s a standard of “republican form o f gov ernment” by which to judge the Legislature ’s repre sentati on of citizens in the extraterri torial jurisdiction. T he closest the Appellant came to su ch a n a rtic ulation was in their re pl y brief, where they said that
the Article I , Se ction 2 , republican

- form

- o f

- government limitation on Legislative power is a35

“modes t one” that requires that “[p]r operty owners must merely be all owed to vote at some point
for t ho s e that re gu l ate the ir pro pe rt y.” Taken on its face, “at some point” is a vague stand ard.
Tak en in context of how the Appell ants relied on Ex parte Lewis for a right inde pendent of the Legislature, (and on how the Ex parte Lewis approach wa s rejected) , “ a t so me p oint ” does not
addr es s the questi on of Legislative representation of residents o f the e xtrate rritorial jurisdict ion. Further, the Texas Supreme Court, via American K

- 9 , adopted the Baker “discriminating
anal ys is , ” part of which is an assessment o f “th e po ssib le cons equences o f judicial a ction.” Am.
K

- 9 , 556 S.W.3d at 257 (quoting B aker , 369 U.S. a t 211

– 1 2 )

. Thoug h the Appellants would stop
with a findin g of unconstitutionality, the “discriminating analysis ” counsels tha t this Cour t
should co ns id e r what would happen on the ne xt day. Which is to say that, though the Appellants
seek a declaration of uncons titutional ity because they do not get to vot e in ci ty elections, their petition in the trial court , and t heir briefing h ere, are n otable for th ei r lack of a r e quest f or voti ng
. In particul ar, Appellants do not explain what manner of voting, in th eir view, would suf fice (for but one example, should residen ts of the ETJ be incorporated into ex isting city commi ssion districts, or shoul d the ETJ b e gi v en its own c i ty com mission di strict, etc

. ). Nor do Appellants specify who should give them such voti ng. Appellants , it appear s, would leave that task to the Legi slature , as they make no argument that the City c ould ex pand vo ting into the extrater ritor ia l jurisdic t io n witho ut legis la tive authorit y, and they do not ask the judiciary to gr ant them the

v oti ng th ey desire. At least not directly. Indirectl y, any judicial finding of unconstitutionality

w ould point to what is requi red for constitutional ity. I n addition to consid ering th e next day, the
“d iscriminating analysis” counsels ponder ing all t he da ys go ing back to the beginning of36

extraterritorial jurisd iction , because if a legislative act is vo id as uncons titutional , it is void “from incepti on.” Ex p a rte E.H

. , 60 2 S.W.3 d at 494

. Looking back to the inception of ETJ, a c entury has a particular persuasive power of its o wn
. “ [G] eneral public acceptance of and acquiescence
in ad ministrative a nd legislative interpretat ions over a long p eriod of time ar e p articularly
persuas ive and ar e to be given serious consideration in cons t ruing constitutional provisions.”
Dir. o f Dep’t of Agri c. & Env’t v. Printing Indus. Ass’n of Tex

. , 600 S .W.2d 264, 269 (T ex. 1980) ( citing , among other things, Brown , 75 S .W. 4 88 )

. The Appella nt s’ fa ilure to w r estle wit h such questions is some in dica tion that the ir case is unmanageable for the judic iary un der the
second Baker factor. See Am. K

- 9 , 556 S.W .3d at 252

– 53 ; Bake r , 369 U.S. at 217.
VI I I . Conclusio n
A ltho ug h t he Te xas S up r eme Court ha s never explic itly ad o pted the entirety of the Baker test, it has listed factor s that may help determine if a political question exists. “ Ch ief among
them are whether t here is ‘ a textual ly demons trable constitutional commitme nt of th e issue t o a coordinat e political de partmen t ’ or ‘ a lack of judicially discoverable and manage able st andards for resolving it. ’ ” Van Dorn Preston , 642 S .W .3d at 4 58

. An applica tion of these two Baker
factors t o the issue in this case

— wh ether the City’s o rd i nanc es violate the republican

- for m
- of

go vernment r equirem ent found in Article I, Section 2 , of the Texas Con stitution

— results in t he
conclu sion that the issue pr esent ed by the Appellants is a nonjusticiable po litical question. First,

t here is a “tex tua ll y dem on s trable const itutional commi tment” of the rep ublican

- form

- of

government issue to the legislature

. Id

. T he Texas Supreme Co urt’s opinion in B r own found
th at th e “Constit ution

. . . delegated to the Legisl ature” the people’s autho rity to d et ermine a37

c ity ’s “ form ” and “ power [ s ] ” “and eve ry prov ision with regard to [its] organization.” Brown , 75
S.W. at 495

– 96

. Se condly, there is “a lack of judicia lly discovera ble a nd manageabl e standards”
as to the issue beca use, as stated in Bonner , what c onstitu te s a r ep u blican form of government is , by nece ssity , ind efinite

. See Am. K

- 9 , 556 S.W.3d at 252

– 53 (quoting Bake r , 369 U.S. at 217 ). As a result, b ecause the B a ker factors indicate that a poli tical question exists , this Court may not
addr e ss the issue , as pres en t ed by the Ap pellants , wit hout vi olati ng the separation of powers.
W e find that Appell ants’ f acial challenge, as presented, pr esents a p olit ical question. W e affirm the distric t court’s grant of the Appellees’ plea to the juris diction and the concomit an t
dismissal o f the Appellant s’ case.

J eff Rambin Justice
Date Submitted : Ju n e 14, 2 023 Dat e Decided: August 31 , 2023