City of Aledo, City of Angleton, City of Anna, City of Aubrey, City of Bonham, City of Brownsville, City of Bulverde, City of Cibolo, City of Clyde, City of College Station, City of Crandall, City of Denison, City of Denton, City of Edcouch, City of Elsa, City of Fate, City of Grand Prairie, City of Hutto, City of Kaufman, City of La Villa, City of Lockhart, City of McKinney, City of Navasota, City of Parker, City of Van Alstyne, and Aubrey Municipal Development District v. State of Texas, Attorney General Kenneth Paxton (In His Official Capacity), Texas Comptroller of Public Accounts Don Huffines (In His Official Capacity), and the Office of the Texas Comptroller of Public Accounts
CourtTexas Court of Appeals, 15th District
Date FiledOctober 15, 2026
Docket15-25-00086-CV
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Affirmed and Memorandum Opinion filed October 15, 2026
In The
Fifteenth Court of Appeals
NO. 15-25-00086-CV
CITY OF ALEDO, CITY OF ANGLETON, CITY OF ANNA, CITY OF
AUBREY, CITY OF BONHAM, CITY OF BROWNSVILLE, CITY OF
BULVERDE, CITY OF CIBOLO, CITY OF CLYDE, CITY OF COLLEGE
STATION, CITY OF CRANDALL, CITY OF DENISON, CITY OF
DENTON, CITY OF EDCOUCH, CITY OF ELSA, CITY OF FATE, CITY
OF GRAND PRAIRIE, CITY OF HUTTO, CITY OF KAUFMAN, CITY OF
LA VILLA, CITY OF LOCKHART, CITY OF MCKINNEY, CITY OF
NAVASOTA, CITY OF PARKER, CITY OF VAN ALSTYNE, AND
AUBREY MUNICIPAL DEVELOPMENT DISTRICT, Appellants
V.
STATE OF TEXAS, ATTORNEY GENERAL KENNETH PAXTON (IN HIS
OFFICIAL CAPACITY), TEXAS COMPTROLLER OF PUBLIC
ACCOUNTS DON HUFFINES (IN HIS OFFICIAL CAPACITY), AND THE
OFFICE OF THE TEXAS COMPTROLLER OF PUBLIC ACCOUNTS,
Appellees
On Appeal from the 261st District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-23-007785
MEMORANDUM OPINION
This case is about municipal extraterritorial jurisdiction (ETJ), “a legislative
creation that allows a municipality to exert specified regulatory authority over
unincorporated areas contiguous to municipal boundaries.” 1 The Legislature
recently changed the law to afford ETJ residents a method to unilaterally opt out of
a city’s ETJ.2 Twenty-five cities and a municipal development district sued the State,
the Attorney General, the Comptroller of Public Accounts,3 and the Office of the
Comptroller to declare that the law is unconstitutional. The trial court granted the
defendants’ plea to the jurisdiction and dismissed the case without prejudice. We
affirm.
BACKGROUND
The Legislature has empowered Texas municipalities to regulate outside their
corporate boundaries for more than 100 years.4 The current statutory scheme dates
to the 1960s. 5 As codified in Chapter 42 of the Local Government Code, the
geographic limit of a particular municipality’s ETJ is determined by its population
size, among other things.6 Within this area, municipalities may regulate on specific
matters, such as plats and subdivision of land, signage, public roads, and
groundwater extraction.7 Regulation on other matters is specifically forbidden.8
1
Elliott v. City of Coll. Station, 717 S.W.3d 888, 892 (Tex. 2025).
2
Act of May 8, 2023, 88th Leg., R.S., ch. 106, § 1, 2023 Tex. Gen. Laws 213, 213–16
(codified at TEX. LOC. GOV’T CODE §§ 42.101–.156).
3
Comptroller of Public Accounts Don Huffines is automatically substituted for his
predecessor. TEX. R. APP. P. 7.2(a).
4
Elliott, 717 S.W.3d at 892.
5
Id.
6
See TEX. LOC. GOV’T CODE §§ 42.021–.026.
7
See id. §§ 212.002–.003, 216.003, .901–.902.
8
See, e.g., id. §§ 212.003(a), .049 (prohibiting a municipality from regulating the height,
2
In addition to setting the terms by which nonresidents may be subjected to
municipal regulation, the Legislature “controls the circumstances under which a
municipality’s statutorily prescribed ETJ can be reduced or otherwise altered.”9
Since 1963, the Legislature generally prohibited the reduction of a municipality’s
ETJ without its consent.10 That changed in 2023 with the enactment of SB 2038,11
which created two methods for securing release of an area from a city’s ETJ: (1)
through a petition filed by a resident or landowner,12 or (2) by a special election on
whether to release an area from the ETJ.13
“Release by petition allows the owner of even a single parcel of land to
unilaterally and automatically secure the property’s release from a city’s ETJ.”14
Once the city secretary verifies the petition is statutorily compliant, the city is
required to “immediately release the area from the municipality’s [ETJ].”15 If the
city does not release the area within forty-five days, “the area is released by operation
of law.”16
Similarly, release by election allows a resident or landowner in a city’s ETJ
to petition for an election on whether to release a specific area from the ETJ.17 If the
election petition meets the statutory requirements, the city “shall order” an election
size, or use of any building in its ETJ or enforcing its building code there).
9
Elliott, 717 S.W.3d at 895; see TEX. LOC. GOV’T CODE §§ 42.023–.0251 (setting conditions
for release, reduction, and transfer of a municipality’s ETJ).
10
See Elliott, 717 S.W.3d at 895 & n.28.
11
Act of May 8, 2023, 88th Leg., R.S., ch. 106, § 1, 2023 Tex. Gen. Laws 213, 213–16.
12
Id. at 213–14 (codified at TEX. LOC. GOV’T CODE §§ 42.101–.105).
13
Id. at 214–16 (codified at TEX. LOC. GOV’T CODE §§ 42.151–.156).
14
Elliott, 717 S.W.3d at 895 (citing TEX. LOC. GOV’T CODE §§ 42.102(b), .104(a)).
15
TEX. LOC. GOV’T CODE § 42.105(c).
16
Id. § 42.105(d).
17
Id. § 42.152(a).
3
to be held in the area described by the petition. 18 If a majority of qualified voters in
the area vote in favor, the city “shall immediately release the area” from its ETJ.19 If
the city fails to act within a certain time, the “area is released by operation of law.”20
In September 2023, the City of Grand Prairie received two statutorily
compliant release petitions. After the city council purported to deny those petitions,21
the City of Grand Prairie sued the State under the Uniform Declaratory Judgment
Act (UDJA) for declarations that SB 2038 is unconstitutional under various
theories. 22 Twenty other municipalities who had also received petitions later joined
as plaintiffs (“the Cities”23), and the cities of Bonham and Anna intervened
(“Intervenors”).24
The State filed a plea to the jurisdiction arguing that Plaintiffs lack standing
and have not pleaded claims waiving sovereign immunity. In response, Plaintiffs
amended their petitions to add the Attorney General and the Comptroller in their
official capacities and the Office of the Comptroller as defendants. In their live
petitions, the Cities argue that SB 2038 conflicts with other law and is
18
Id. § 42.153(a)–(b).
19
Id. § 42.155(a).
20
Id. § 42.155(c).
21
But see Elliott, 717 S.W.3d at 897 (“Any purported denial of a compliant petition is legally
ineffective to avoid the statutory fail-safe. To the contrary, such an action triggers release
automatically because, in the words of the statute, the municipality has ‘fail[ed] to take action to
release the area.’” (quoting TEX. LOC. GOV’T CODE § 42.105(d)).
22
See generally TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011.
23
The Aubrey Municipal Development District is also a part of this group.
24
There were three other intervenors: the City of Brownsville, the City of Cibolo, and 2020
Long Tail Trails Investments. Cibolo and Brownsville joined the Cities’ appellate briefs, and we
dismissed Long Tail’s appeal pursuant to a settlement. Long Tail Trails Invs., et al, v. State of
Texas, et al, No. 15-25-00086-CV, slip op. at *2 (Tex. App.—15th Dist., Dec. 29, 2025, order)
(available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=228c383b-060c-
4048-b7e4-7d6a1f938af6&coa=coa15&DT=Order&MediaID=dc81183e-e444-49d2-912e-
4219d809b733).
4
unconstitutional under various theories. Intervenors adopted these claims—
sometimes with new legal theories—and also assert that SB 2038 violates their
home-rule authority and is an unconstitutional gift of public funds.25
The State Defendants filed an amended plea to the jurisdiction based on
standing and immunity. Following a hearing, the trial court granted the plea and
dismissed the case without prejudice. The Cities and Intervenors (who we
collectively refer to as “Plaintiffs”) appealed.
SCOPE OF THE PLEA TO THE JURISDICTION
We start with Intervenors’ assertion that the trial court granted relief not
supported by the pleadings.26 Intervenors argue that the plea did not challenge their
claims or, in the alternative, only the claims they adopted from the Cities. The State
Defendants respond that (1) the amended plea to the jurisdiction encompassed
Intervenors’ petitions because they incorporated the Cities’ claims and (2) the unique
claims are not outside of the plea’s scope because a jurisdictional plea “is not for
challenging claims.”
We agree that the trial court did not grant more relief than requested. The State
Defendants asked the trial court to “dismiss the Cities’ claims in their entirety” but
never defined which cities, and discussed only the claims common to all. But the
jurisdictional plea incorporated the arguments in the State Defendants’ summary-
judgment response “as if fully stated herein.” And that response is to the motions for
summary judgment filed by the Cities and by Intervenors. Reading the two
documents together, the trial court did not grant more relief than requested. 27
25
Intervenors also asserted that SB 2038 effects an unconstitutional taking, but do not
mention the claim in their appellate briefs.
26
TEX. R. CIV. P. 301 (“The judgment of the court shall conform to the pleadings.”).
27
Even if a trial court grants more relief than requested, we may not reverse if the error is
harmless. See G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (harmless-error rule
5
STANDARD OF REVIEW
A plea to the jurisdiction can challenge the plaintiff’s pleadings, the existence
of jurisdictional facts, or both.28 When the challenge is to the pleadings, as here, our
task is to “determine if the pleader has alleged facts that affirmatively demonstrate
the court’s jurisdiction to hear the cause.” 29 In ascertaining whether jurisdiction
exists, we “construe the pleadings liberally in favor of the plaintiffs and look to the
pleaders’ intent.” 30
DISCUSSION
Plaintiffs argue that trial court should have denied the plea because they have
standing and they alleged viable constitutional claims that waive immunity. We
address only the immunity argument because it is dispositive here. 31
“Sovereign immunity generally bars suits against the State or its subdivisions
absent a waiver.”32 To “waive immunity, consent to suit must ordinarily be found in
“applies to all errors”). The State Defendants alleged that all parties had not pleaded facially valid
claims to overcome immunity. As explained below, Intervenors failed to plead any facially valid
claim. See, e.g., Kownslar v. City of Houston, 654 S.W.3d 472, 479–80 (Tex. App.—Houston
[14th Dist.] 2022, pet. denied) (holding that consideration of arguments outside the plea to the
jurisdiction was harmless because dismissal was the correct result); Goldman v. Olmstead, 2016
WL 7163876, at *5 (Tex. App.—Dallas Nov. 14, 2016, no pet.) (holding that granting plea to the
jurisdiction on non-jurisdictional issue was harmless error because dismissal was correct result);
see also Inwood Nat’l Bank v. Fagin, 706 S.W.3d 342, 347 (Tex. 2025) (applying same principle
to error in granting summary judgment).
28
Busse v. S. Tex. Indep. Sch. Dist., 740 S.W.3d 463, 469 (Tex. 2026).
29
Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024).
30
Busse, 740 S.W.3d at 469.
31
See Tex. Gen. Land Office v. SaveRGV, 2026 WL 1765503, at *4 (Tex. June 19, 2026) (“As
we explain below, our resolution of defendants’ immunity challenge is dispositive here, so we
need not also address standing.”).
32
Kensington Title-Nevada, LLC v. Tex. Dep’t of State Health Servs., 710 S.W.3d 225, 230
(Tex. 2025).
6
a constitutional provision or legislative enactment.” 33 The UDJA provides “a limited
waiver for challenges to the validity of an ordinance or statute.” 34 To invoke this
waiver, the plaintiff has the burden to plead a facially valid claim “that the
challenged law is invalid because it is unconstitutional, preempted by superior
governing law, or barred for some similar reason.”35
No Conflict with Section 42.023
First, Plaintiffs argue that SB 2038 is invalid because it “directly conflicts
with Texas Local Government Code § 42.023.”
Section 42.023 prohibits reducing a municipality’s ETJ without the written
consent of its governing body. 36 Formerly there were three exceptions, none of
which are relevant here. 37 SB 2038 did not add to the list.38 Plaintiffs argue that this
sets up a conflict between SB 2038 and Section 42.023, which they propose to
resolve by construing release “by operation law” in SB 2038 to take effect only after
the municipality has given its written consent.
We disagree. In arguing that the list is exclusive, Plaintiffs effectively rely on
the expressio unius canon, which states that “expressing one item of a commonly
associated group or series excludes another left unmentioned.” 39 But that canon
33
Tex. v. JRJ Pusok Holdings, LLC, 738 S.W.3d 408, 413 (Tex. 2026).
34
State v. Zurawski, 690 S.W.3d 644, 660 (Tex. 2024).
35
Id. at 661.
36
TEX. LOC. GOV’T CODE § 42.023(1)–(3).
37
The exceptions were judicial apportionment of overlapping ETJs, by agreement with
another municipality, and to comply with limits on the ETJ of a specific city. See id. The
Legislature subsequently added “as necessary to comply with Subchapter D or E” (the subchapters
added by SB 2038) to the list of exceptions to the consent requirement. Act of May 29, 2025, 89th
Leg. R.S., ch. 1041, 2025 Tex. Sess. Law Serv. H.B. 2512 is not at issue here because it applies
only to petitions or requests for election filed on or after September 1, 2025. See id.
38
See generally Act of May 8, 2023, 88th Leg., R.S., ch. 106, § 1, 2023 Tex. Gen. Laws 213,
213–16.
39
City of Austin v. Powell, 704 S.W.3d 437, 453 (Tex. 2024).
7
“does not apply unless the statutory context makes it fair to suppose that the
legislature considered the unnamed possibility and meant to say no to it.” 40 We see
no indication that the Legislature considered adding SB 2038’s procedures to the list
of exceptions and decided against it. Plaintiffs’ interpretation would effectively
restore the pre-SB 2038 state of the law, and we will not “lightly presume that the
Legislature may have done a useless act.”41 Absent some textual indication that the
Legislature intended Section 42.023 to control over subsequent amendments to
Chapter 42, we conclude the list of exceptions is not exclusive.42
The Supreme Court’s decision in Elliot indicates that SB 2038 is effective
even though it did not modify Section 42.023. The Court observed that Section
42.023’s general prohibition on reducing a municipality’s ETJ without the consent
of its governing body “changed in 2023 with the enactment of SB 2038”43 and
reiterated the point several more times.44 These statements may be technically dicta
because the Supreme Court disposed of the case on different grounds. 45 But they are
judicial dicta: “statement[s] made deliberately after careful consideration and for
40
Id.; see Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 895 (Tex. 2000) (“The
doctrine of expressio unius est exclusio alterius is simply an aid to determine legislative intent, not
an absolute rule.”).
41
Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 581 (Tex. 2022).
42
When the Legislature intends for a statute to control over later enactments unless expressly
exempted, it says so expressly. See TEX. CIV. PRAC. & REM. CODE § 110.002(c) (“This chapter
applies to each law of this state unless the law is expressly made exempt from the application of
this chapter by reference to this chapter.”).
43
Elliott, 717 S.W.3d at 895 (emphasis added).
44
See id. at 895–96 (“Because releasing the area is the only action a city is authorized to take
on a valid petition, its consent is not required.”); id. at 897 (“Any purported denial of a compliant
petition is legally ineffective to avoid the statutory fail-safe. To the contrary, such an action triggers
release automatically.”); id. at 901 (“Release is a matter of paperwork, not permission.”) (Sullivan,
J., concurring and dissenting).
45
Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399 (Tex. 2016) (defining dicta as an “opinion
expressed by a court, but which, not being necessarily involved in the case, lacks the force of an
adjudication”).
8
future guidance in the conduct of litigation,” which “should be followed unless
found to be erroneous.” 46 Following the Supreme Court’s lead, we conclude that
Section 42.023 does not control over SB 2038.
Home Rule Authority
Turning to the constitutional challenges,47 we start with Intervenors’ argument
that SB 2038 violates their powers of local self-government. As home-rule
municipalities, Intervenors “may exercise all powers not denied to them by the
Constitution or state law.” 48 They acknowledge that municipal actions must be
consistent with the Constitution and state law but argue that they are entitled to the
protection of Section 42.023 until the Legislature modifies it. This argument rests
on the same basis as the previous issue—that the list of exceptions in Section 42.023
is exclusive. For the reasons just stated, we also conclude that this claim is not
facially valid.
Nondelegation
The Constitution vests legislative power in the Legislature,49 which may in
turn delegate its power to “local governments, administrative agencies, and even
private entities under certain conditions.” 50 Plaintiffs allege that SB 2038 is an
unconstitutional private delegation because both the petition and release-election
systems grant private citizens the authority to amend an ETJ, a legislative act.
We disagree. A delegation of legislative authority “occurs only when an entity
46
Id.
47
The Cities argue at the start of their live petition that SB 2038 is unconstitutional both
facially and as applied and then never mention the distinction again save for a stray reference in
the prayer for relief. We make no attempt to label their claims because we conclude that all
plaintiffs failed to allege a facially valid claim of any type.
48
Powell v. City of Houston, 628 S.W.3d 838, 842 (Tex. 2021)
49
TEX. CONST. art. III, § 1.
50
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).
9
is given a public duty and the discretion to set public policy, promulgate rules to
achieve that policy, or ascertain conditions upon which the existing laws will
apply.”51 The Supreme Court explained recently in Elliot that SB 2038 “confers no
regulatory authority and imposes no public duties on private persons residing in the
released area” and does not allow landowners to create their own regulatory
scheme.52 Instead, it merely “offers landowners a choice” between being regulated
by the municipality or the county. 53 These statements may be dicta, but we follow
the Supreme Court’s lead. 54 Plaintiffs did not plead a facially valid nondelegation
claim.
Due Course of Law
The Texas Constitution provides that no one “shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disfranchised, except by the
due course of the law of the land.”55 Plaintiffs allege that the SB 2038 is vague and
denies affected landowners procedural protections. Neither claim is facially valid.
SB 2038 is Not Vague
A statute may be unconstitutionally vague where it “forc[es] ordinary people
to guess at the statute’s meaning,” or “is so unclear that it invites arbitrary or
discriminatory enforcement.”56
51
Elliott, 717 S.W.3d at 896 n.37.
52
Id. at 896.
53
Id. (“When property is released from a municipality’s ETJ—by the city or by operation of
law—regulation of the area is necessarily returned to the county.”).
54
See Howmet Aerospace, Inc. v. Burford, 733 S.W.3d 36, 41–42 (Tex. 2026) (Young, J.,
concurring in denial of review, joined by Sullivan, J., and Hawkins, J.) (casting doubt on whether
a court of appeals can ever disregard judicial dicta from the Supreme Court of Texas).
55
TEX. CONST. art. I, § 19.
56
Tex. Dep’t of Ins. v. Stonewater Roofing, Ltd. Co., 696 S.W.3d 646, 660 (Tex. 2024).
Stonewater Roofing concerned the Fourteenth Amendment’s Due Process Clause. Id. Absent
argument about the distinct scope of the Texas Constitution, “we will assume for present purposes
that the anti-vagueness requirements of the two clauses are the same.” Paxton v. Annunciation
10
Plaintiffs focus their vagueness challenge on two parts of SB 2038. First, a
petition may be filed by a “resident of an area”57 in an ETJ or “the owner or owners
of the majority in value of an area.”58 To achieve release of the area from the ETJ,
the petition must be signed by “more than 50 percent of the registered voters of the
area described by the petition as of the date of the preceding uniform election date”
or “a majority in value of the holders of title of land in the area described by the
petition, as indicated by the tax rolls of the applicable central appraisal district.”59
Plaintiffs assert that the italicized terms are vague without guidance on how to
calculate “majority in value,” which property tax valuations to use, which agency’s
records to consult, and which year’s valuations to use. 60
But SB 2038 says which entity’s property valuations to use—the “applicable
central appraisal district.”61 Each county has one, 62 and the petition’s description of
the land to be released should be enough to enable anyone to figure out the correct
district or districts.63 As for “indicated by the tax rolls,” Plaintiffs argue that it is
unclear whether the tax rolls determine the “holders in land title” or the “majority in
value for the area” or both. But the context indicates that the tax rolls should be used
to determine the title holders in the area to be released and whether the petition is
House, Inc., 719 S.W.3d 555, 588 (Tex. 2025).
57
TEX. LOC. GOV’T CODE § 42.102(a).
58
Id. § 42.102(b) (emphasis added).
59
Id. § 42.104(a) (emphasis added).
60
Intervenors argue that providing an area is released “by operation of law” is “vague as to
what law could operate to release the area” because Section SB 2038 conflicts with Section 42.023.
For the reasons set out above in our discussion of the statutory claim, that is also not a viable claim.
61
TEX. LOC. GOV’T CODE § 42.104(a)(2).
62
TEX. TAX CODE § 6.01 (“An appraisal district is established in each county.”).
63
Tex. LOC. GOV’T CODE § 42.104(d) (requiring petition to “include a map of the land to be
released and describe the boundaries of the land to be released by” metes and bounds or lot and
block number).
11
signed by a “majority in value” of those holders.64 The Legislature could have
provided guidance on how to make that calculation,65 but the Constitution does not
require “perfect clarity and precise guidance” from the Legislature. 66 Plaintiffs have
not validity alleged that SB 2038 is vague.
Adequate Notice and Opportunity to Be Heard
Procedural due course of law “at a minimum requires notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.”67 We
measure what process is due under a “flexible standard” that depends on “the
practical requirements of the circumstances.” 68 This standard includes three factors:
(1) “the private interest that will be affected by the official action”; (2) “the risk of
an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3) the
government’s interest. 69
Plaintiffs allege that the release-petition system deprives affected landowners
of notice and a meaningful opportunity to be heard before their property is released
from the ETJ. But this misunderstands how a release petition works. A voter must
64
Ruth v. Comm’n for Lawyer Discipline, 738 S.W.3d 213, 216 (Tex. 2026) (“We construe
the words of a statute according to their plain meaning and in the context of the statute's
surrounding provisions.”).
65
Plaintiffs point out that SB 2038 provides no mechanism for resolving disputes between
property owners about whether a petition is statutorily compliant. This is a complaint about the
Legislature’s policy choices rather than vagueness. There are no allegations that such a dispute has
ever happened, so we will not reach this issue. See VanDevender v. Woods, 222 S.W.3d 430, 433
(Tex. 2007) (“[T]he cardinal principle of judicial restraint—if it is not necessary to decide more,
it is necessary not to decide more—counsels us to go no further.”).
66
Stonewater Roofing, 696 S.W.3d at 661; see Edwards Aquifer Auth. v. Chem. Lime, Ltd.,
291 S.W.3d 392, 404 (Tex. 2009) (“But a line must be drawn somewhere, and the Legislature was
not required to draw it with perfect precision.”).
67
Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839 n.6 (Tex. 2022).
68
Mosley v. Tex. Health & Human Servs. Comm’n, 593 S.W.3d 250, 265 (Tex. 2019).
69
Id.
12
sign a petition “in writing,”70 which here means that the signatures must appear on
the petition in the signer’s own handwriting.71 To get the required signatures, the
proponent must seek those signatures from other affected landowners in person or
at least directly. At that time, the proponent and the other persons in the affected area
can attempt to convince each other about the advisability of withdrawing from the
ETJ. This procedure gives the proponent significant incentive to notify every
affected landowner and listen to their position.72 And a dissenting landowner who
fails to convince his neighbors may ask the city to extend its ETJ back over the
landowner’s property. 73
No Violation of Equal Protection
The Texas Constitution provides that all people “have equal rights, and no
man, or set of men, is entitled to exclusive separate public emoluments, or privileges,
but in consideration of public services.”74 To state a viable equal-protection claim
under the Texas Constitution, a plaintiff must show that he was “treated differently
from others similarly situated” and that the different treatment “is not rationally
related to a legitimate governmental purpose.” 75
70
TEX. LOC. GOV’T CODE § 42.104(c).
71
SB 2038 applies the requirements of Chapter 277 of the Election Code to release
petitions. Id. § 42.103. Chapter 277 requires that the signature “appear on the petition in the
signer’s own handwriting.” TEX. ELEC. CODE § 277.002(b). The petition also “must include a map
of the land to be released and describe the boundaries of the land to be released by: (1) metes and
bounds; or (2) lot and block number.” TEX. LOC. GOV’T CODE § 42.104(d).
72
See Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 189 (Tex. 2022) (“Notice must be
reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the
action and afford them the opportunity to present their objections.” (internal quotation marks
omitted)).
73
TEX. LOC. GOV’T CODE § 42.105(c). Intervenors contend that release under SB 2038 is
irrevocable but, as explained in the next section, we disagree.
74
TEX. CONST. art. I, § 3.
75
Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015); Tex. Parks &
Wildlife Dep’t v. RW Trophy Ranch, Ltd., 712 S.W.3d 943, 963 (Tex. App.—15th Dist. 2025, no
13
Plaintiffs made neither showing. They allege that SB 2038 violates equal
protection because only the residents of an area considering release can vote in a
release election, but it is unclear whether that treats any similarly situated individuals
differently. Any landowner in an ETJ can request a release election for their own
areas. And SB 2038’s limitation of voting rights to the residents of the area to be
released is rationally related to SB 2038’s purpose of giving landowners a choice of
regulatory schemes.76
SB 2038 Does not Violate the Contracts Clause
The cities of Aledo, Burleson, and Hutto (“Contract Cities”) argue that SB
2038 violates the Contracts Clause by impairing their agreements with private
landowners.
The Texas Constitution prohibits laws “impairing the obligation of
contracts.”77 The “obligation” of a contract is the “law which binds the parties to
perform their agreement.” 78 To determine whether a law violates the Contract
Clause, a court asks first whether it substantially impairs a contractual obligation
and, if so, “whether the Legislature acted within its police powers in enacting the
legislation.”79 In making the first determination, courts consider factors such as “the
pet.).
76
Plaintiffs also contend that the provision for notice of a successful petition violates the
equal protection rights of minority-in-value property owners because it does not provide for notice
before an area is released from the ETJ. Our reasoning above regarding why those provisions do
not violate procedural due course of law protections applies equally here.
77
TEX. CONST. art. I, § 16. We cite some federal cases because the Contracts Clause in the
U.S. Constitution has essentially the same meaning. City of Baytown v. Schrock, 645 S.W.3d 174,
183 (Tex. 2022) (Young, J., concurring, joined by Lerhmann, Blacklock, and Busby, JJ.) (citing
Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007, 1023 (1934))).
78
See Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991);
Langever v. Miller, 76 S.W.2d 1025, 1030 (Tex. 1934).
79
Brooks v. Northglen Ass’n, 141 S.W.3d 158, 169–70 (Tex. 2004); see Ashley Sveen v. Kaye
Melin, 584 U.S. 811, 819 (2018) (articulating second step of the test as asking whether the “law is
drawn in an appropriate and reasonable way to advance a significant and legitimate public
14
extent to which the law undermines the contractual bargain, interferes with a party’s
reasonable expectations, and prevents the party from safeguarding or reinstating [its]
rights.”80
The contracts at issue here are regulated by statute. Section 212.172 of the
Local Government Code authorizes cities to enter binding development agreements
with landowners located in the city’s ETJ. 81 An agreement may guarantee the land’s
immunity from annexation, set the terms of the eventual annexation, extend the
city’s planning authority over the land, or authorize enforcement of certain
municipal regulations on the land.82 The agreement is binding on both parties for the
term of the contract. 83 Section 43.016 prohibits a city from annexing land in its ETJ
that is continuously used for agricultural purposes if the city and the owner execute
a Section 212.172 agreement which preserves that use. 84
Each city executed a Section 212.172 or a Section 43.106 agreement with a
private landowner under which the city would have the right to annex the property
at the end of the contract term or on the occurrence of a specified event.85 All three
landowners filed release petitions, which took effect over purported denials by those
municipalities.86 The Contract Cities argue that this “jeopardizes” or “extinguishes”
purpose.” (internal quotation marks omitted)).
80
Ashley Sveen, 584 U.S. at 812.
81
TEX. LOC. GOV’T CODE § 212.172(f).
82
Id. § 212.172(b).
83
Id. § 212.172(f).
84
Id. § 43.016.
85
For example, Section 7.1 of the Dean Ranch Development Agreement requires the property
owner to submit an irrevocable annexation petition to the City of Aledo once three events have
occurred. Burleson and Hutto entered into Section 43.016 agreements with landowners that
provided for voluntary annexation at the end of the contract term or earlier if the property owners
stopped using the land for agriculture.
86
See Elliott, 717 S.W.3d at 897 (“Any purported denial of a compliant petition is legally
ineffective to avoid the statutory fail-safe. To the contrary, such an action triggers release
15
their contractual rights because they can no longer annex the territory or regulate
development in its ETJ.87
But the Contract Cities have not alleged that these consequences flow from
SB 2038. SB 2038 operates to release land from the statutorily-created ETJ, not a
section 212.172 agreement. A Section 212.172 agreement may provide a city with
regulatory authority that equals or even exceeds that available under the ETJ
statutes.88 The agreement “is binding on the municipality and the landowner and on
their respective successors and assigns for the term of the contract,”89 and is
enforceable in court. 90 Although the statute does not expressly address enforcement
by the municipality, 91 we have no reason to think that only the landowner party may
enforce development agreements in court.
Whether an agreement is enforceable in court might matter less if the Contract
Cities are correct that releasing land under SB 2038 makes annexation impossible.
They say it has this effect because removal from the ETJ is permanent, and a city
may not annex land outside of its ETJ. 92 But we are not convinced that removal from
automatically.”).
87
Intervenors also assert that SB 2038 violates the Contracts Clause, but they have not
identified an agreement concerning land that has been released under SB 2038.
88
Compare TEX. LOC. GOV’T CODE § 212.003(a)(1)–(3) (providing that cities may not
regulate in its ETJ “the use of any building or property for business, industrial, residential, or other
purposes” or the size of building that may be constructed), with id. § 212.172(b)(1)–(4) (allow
landowners to agree that cities will enforce substantially the same regulations).
89
Id. § 212.172(f).
90
Id. § 212.172(i)–(k).
91
See id. § 212.172(f), (h)–(k). We have found one case where a municipality sued to enforce
a development agreement. Legacy Hous. Corp. v. City of Horseshoe Bay, Tex., No. 1:21-CV-
01156-RP, 2024 WL 2867810, at *21 (W.D. Tex. Apr. 23, 2024), report and recommendation
adopted, No. 1:21-CV-1156-RP, 2024 WL 2131484 (W.D. Tex. May 13, 2024), aff’d, 158 F.4th
636 (5th Cir. 2025).
92
See TEX. LOC. GOV’T CODE § 43.014 (“A municipality may annex area only in its
extraterritorial jurisdiction unless the municipality owns the area.”).
16
the ETJ is permanent, at least not in most cases. Municipalities have preexisting
authority to extend their ETJs over property that is “contiguous” to the existing ETJ
at the request of its owner. 93 A separate statute authorizes cities to annex an area on
request of the owner. 94 This may not include everyone—an objecting owner’s
property might not be contiguous with the remaining ETJ. But that hypothetical
possibility is not enough to render SB 2038 constitutionally infirm.95
In sum, the statutory framework convinces us that the “law which binds the
parties to perform their agreement” is the same as it was before SB 2038.96 The
Contract Cities have not pleaded a facially valid claim that SB 2038 substantially
impairs their contractual obligations.
SB 2038 is not a Prohibited Local or Special Law
Article III, Section 56 of the Texas Constitution prohibits the Legislature from
enacting “any local or special law” on a variety of subjects and requires it to employ
a general law whenever possible. 97 “A local law is limited to a specific geographic
region of the State, while a special law is limited to a particular class of persons
distinguished by some characteristic other than geography.”98 The purpose of this
prohibition is to “prevent the granting of special privileges and to secure uniformity
of law throughout the State as far as possible.”99
Plaintiffs argue that SB 2038 is “the functional equivalent of invalidating or
voiding all police power regulatory enactments adopted by a city that apply to the
93
Id. § 42.022(b).
94
Id. § 43.0671.
95
See Zurawski, 690 S.W.3d at 668 (“A court does not strike down a law as unconstitutional
based on a hypothetical situation.”).
96
Langever, 76 S.W.2d at 1030.
97
TEX. CONST. art. III, § 56.
98
Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997).
99
Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996).
17
property in question, but only voters in the ETJ may participate in the election.” But
a law does not violate Section 56 if “there is a reasonable basis for the classification
made by the law, and [] the law operates equally on all within the class.”100 As
explained earlier, the Legislature had a reasonable basis for limiting suffrage only to
the affected members of the ETJ.
Intervenors argue that SB 2038 constitutes a local or special law for two
additional reasons. First, they argue that SB 2038 does not apply uniformly across
the State because it exempts certain areas. Specifically, SB 2038 exempts land near
certain military bases, land that was voluntarily annexed, and land subject to a
strategic partnership agreement.101 But the Legislature has “broad authority to make
classifications for legislative purposes,”102 and Intervenors do not even attempt to
explain why there is not a reasonable basis for these exemptions. 103
Second, Intervenors assert that requiring the city to pay the costs of a release
election is a local law because it requires a single city to defray the costs of an
election of statewide importance.104 Their sole support for this argument is a 1943
attorney general opinion. 105 “Attorney General opinions are persuasive, but not
100
See Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 451 (Tex. 2000); Maple Run, 931 S.W.2d
at 945.
101
SB 2038, 88th Leg., R.S., ch. 106, § 1, 2023 Tex. Gen. Laws at 213, 214–215. The
Legislature later added exceptions for industrial districts and for land surrounding a particular city.
See TEX. LOC. GOV’T CODE §§ 42.101(4), (6); .151(4), (6).
102
Maple Run, 931 S.W.2d at 945.
103
See Ford Motor Co., 22 S.W.3d at 451 (“The primary and ultimate test of whether a law is
general or special is whether there is a reasonable basis for the classification made by the law.”);
accord Maple Run, 931 S.W.2d at 945; Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950).
104
TEX. LOC. GOV’T CODE § 42.153(c) (“The municipality shall pay for the costs of holding
the election.”).
105
Tex. Att’y Gen. Op. No. O-4645 (1943), available at
https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1942/O-4645.pdf.
(last visited October 13, 2026).
18
controlling,”106 and this one does not apply anyway