AUSTIN - Those who don't believe cities they don't live in should be able to tell them what to do with their property are taking their case to the Texas Supreme Court.
A lawsuit against College Station says individuals who live outside the city can't be subject to its regulations unless given the chance to vote in city elections. It challenges so-called extraterritorial jurisdiction powers laid out in the Texas constitution.
Texas Public Policy Foundation filed the case in Brazos County in 2022 but is now fighting two rulings rejecting claims made on behalf of plaintiffs Shana Elliott and Lawrence Kalke. The Sixth District Court of Appeals in Texarkana ruled against them in 2023, finding courts can't weigh in where a political question exits without violating the separation of powers.
The Supreme Court will hear oral arguments on Jan. 15.
"In affirming dismissal of this case, the lower court held - for the first time in Texas history - that a provision of the Texas Constitution presents a non-justiciable 'political question' and must be left to the discretion of the legislature - an approach this Court explicitly rejected as recently as 2005," TPPF's appeals brief says.
"In doing so, the lower court ignored guidance from this Court requiring that constitutional provisions be given their plain meaning and created a conflict with other Texas courts. If not corrected, the lower court's decision, as well as its reasoning, will have substantial impacts on the jurisprudence of this state."
TPPF has likened the framework allowing extraterritorial jurisdiction to colonial America, when protestors threw tea in Boston Harbor because they were being taxed without representation.
The plaintiffs do not live in College Station but are forced to comply with its property regulations anyway, the complaint says, despite not being allowed to vote in municipal elections. The ETJ range of cities depends on population, with cities of more than 100,000 having extended boundaries of five miles.
A ruling for the plaintiffs would certainly extend far beyond the outskirts of College Station. The issue had the Sixth Circuit pondering the meaning of Democracy.
"All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit," Justice Jeff Rambin wrote.
"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."
This isn't the time to change the Texas Constitution, College Station argued in its brief in May. The legislature has authorized ETJs for more than 100 years, and that power has been modified - not eliminated - through the years by lawmakers.
In fact, a 2023 law grants property owners the right to opt out of a city's ETJ, College Station noted. And it adds it has never threatened to enforce any of its regulations against the named plaintiffs.
"The Texas Constitution has committed issues concerning the structure and operation of local governments to the elected state legislature," College Station's brief says. "The overriding feature of a republican form of government is popular sovereignty - the recognition that the people are the ultimate source of all legitimate power.
"In Texas, people exercise that power by electing legislators who hold office at their sufferance and who exercise legislative power on behalf of the people who elected them.
"When the legislators enacted the statutes granting cities authority to regulate certain activities in areas outside their boundaries, they acted as the representatives of all the voters of the state, not the voters of some part of it."
Other groups have been allowed to weigh in via amicus briefs. The Bexar County Emergency Services District Association says residents who have been annexed into San Antonio's ETJ almost always are unaware, and funding issues cause a reluctance to build infrastructure for emergency services in areas that could turn from county to city property in the future.
"(L)ong-term erosion of (Bexar County ESD) territory in the ETJ is poised to leave the remaining residents of unincorporated Bexar County with a diminished tax base to properly fund emergency services in the ETJ," its brief says.