Reported / Citable
Background
Texas enacted S.B. 2038 in 2023, creating an automatic process through which qualifying landowners can obtain release from a municipality’s extraterritorial jurisdiction, or ETJ. Between 2023 and early 2026, Austin issued letters releasing about 170 properties within five miles of the Bee Caves Armory from its ETJ.
In March 2026, the City declared those releases void, concluding that the armory qualified as a military base under an exception to S.B. 2038’s automatic-release process. The City asserted renewed ETJ authority and, according to plaintiffs, began issuing notices of ETJ-regulation violations. Property Owners Withstanding ETJ Retractions (POWER) and the Schoenstatt Movement of Austin sought to preliminarily enjoin enforcement of the March retractions.
The Court’s Holding
Judge Robert Pitman granted the preliminary injunction. The court held that POWER had associational standing and declined to abstain under Pullman or Burford, because the injunction motion focused on alleged procedural-due-process violations and ultra vires conduct rather than requiring resolution of the statutory meaning of the military-base exception.
The court found plaintiffs likely to succeed on their procedural due process claim. Plaintiffs had protected interests in their real property and in the ETJ-release privilege conferred by the City, but the City gave them no pre-deprivation process before declaring their releases void. The court also found plaintiffs likely to prevail on their ultra vires claim because the military-base exception foreclosed automatic release, not all possible municipal releases; thus, the prior releases were likely voidable rather than void, and the City lacked shown authority to rescind them unilaterally. The court found irreparable harm, equities, and the public interest favored preserving the status quo.
Key Takeaways
- A city’s reversal of previously granted ETJ releases may trigger procedural due process protections.
- The court held that the S.B. 2038 military-base exception concerns automatic release, not necessarily a municipality’s authority to release property by other means.
- Austin is enjoined, pending final judgment, from enforcing its March 2026 retractions based on the properties’ proximity to the Bee Caves Armory.
Why It Matters
The ruling prevents Austin from reasserting ETJ regulatory control over the affected properties while the case proceeds. It also underscores that municipalities may need to provide process before withdrawing land-use-related privileges on which owners have relied.