TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00637-CV

Officials Acting in Their Official Capacities for the City of Austin Development Services 

Department: Denise Lucas, in her Official Capacity as Director; Rick Holloway, in his 

Official Capacity as Assistant Director; David Chapman, in his Official Capacity as 

Development Services Division Manager; Mario Garcia, in his Official Capacity as 

Environmental Compliance Supervisor; Brian Eagan, in his Official Capacity as 

Environmental Compliance Specialist Senior; Robert Jason Crouch, in his Official 

Capacity as Environmental Compliance Specialist Senior, Appellants

v.

Austin Nightlife, LLC d/b/a Summit Lounge, Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-21-006221, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

After it was cited for violating the terms of its outdoor-music-venue permit and

various municipal noise ordinances, Austin Nightlife, LLC d/b/a Summit Lounge sued various 

officials with the Development Services Department at the City of Austin1(collectively, the City 

Officials) seeking declaratory and injunctive relief for what it contends are ultra vires acts. The 

City Officials filed a plea to the jurisdiction, which the trial court denied. In this interlocutory

1 Those officials are Denise Lucas, in her Official Capacity as Director; Rick Holloway, 

in his Official Capacity as Assistant Director; David Chapman, in his Official Capacity as 

Development Services Division Manager; Mario Garcia, in his Official Capacity as 

Environmental Compliance Supervisor; Brian Eagan, in his Official Capacity as Environmental 

Compliance Specialist Senior; Robert Jason Crouch, in his Official Capacity as Environmental 

Compliance Specialist Senior.
2

appeal, the City Officials assert that the trial court erred in denying their plea to the jurisdiction 

because they are protected from suit by governmental immunity and because Austin Nightlife 

has failed to assert any valid ultra vires claims. We will affirm the trial court’s order in part and 

reverse and render in part.

FACTUAL AND PROCEDURAL BACKGROUND

Chapter 9-2 of the Austin City Code regulates noise and amplified sound in the 

city, including the decibel levels and times at which sound equipment may be operated at 

outdoor-music venues. See Austin, Tex., Code of Ordinances §§ 9-2-1−65 (“Noise and 

Amplified Sound”). Generally, under Section 9-2-30(A)(1), sound equipment for which an 

outdoor-music-venue permit has been issued may be operated up to 85 decibels until 10:30 p.m. 

on Sunday through Wednesday, until 11:00 p.m. on Thursdays, and until 12:00 midnight on 

Fridays, Saturdays, and New Year’s Eve. See id. § 9-2-30(A)(1) (“Decibel Limits for Outdoor 

Music”); see also id. §§ 9-2-35−65 (“Live Music Permits”). Under certain enumerated 

exceptions, however, an outdoor-music venue may operate sound equipment as late as 2:00 a.m.

See id. § 9-2-30(A)(1)-(4). Relevant here, Section 9-2-30(A)(2) allows outdoor-music venues

located in the “Warehouse District,” as designated by City ordinance, to operate permitted sound 

equipment until 2:00 a.m. on all days of the week. Id. § 9-2-30(A)(2). In addition, Section 9-2-

30(A)(3) of the Code provides that “during the spring festival season” (which coincides with the 

South-by-Southwest music festival) a venue may operate permitted sound equipment until 2:00 

a.m., whether or not located within the Warehouse District. Id. § 9-2-30(A)(3).

Austin Nightlife operates a roof-top lounge called Summit Lounge in downtown 

Austin at 120 West Fifth Street. On Austin Nightlife’s application, the City’s Development 
3

Services Department issued the lounge an outdoor-music-venue permit and sound-impact plan. 

See id. §§ 9-2-39 (“Outdoor Music Venue Permit”), 9-2-41 (“Sound Impact Plan”). The permit 

and sound-impact plan indicate that Summit Lounge is not located in the Warehouse District 

but instead is in the “Outside” district, i.e., in the central business district “among other 

bars, restaurants, and residential uses.” The permit allows Summit Lounge to operate sound 

equipment outdoors until 12:00 midnight on Fridays and Saturdays, until 11:00 p.m. on

Thursdays, and until 10:30 p.m. on all other days.

After receiving citations for violations of its permit and of Chapter 9-2 noise 

ordinances, Austin Nightlife filed suit against the City Officials for what it contends are three

instances of ultra vires conduct. First, Austin Nightlife’s petition alleged that the City Officials

have improperly refused to recognize that Summit Lounge is located in the Warehouse District, 

as defined in Section 9-2-1(19) of the Austin City Code, and that, as a result, it is entitled under 

Section 9-2-30(A)(2) to the extended hours of operation applicable to outdoor-music venues in 

the Warehouse District.

Second, Austin Nightlife alleged that during the South-by-Southwest music 

festival it “sought confirmation [from the Development Services Department] that [Summit 

Lounge], like all of the other venues, was allowed to operate during the extended hours,” as

provided by Section 9-2-30(A)(3) of the Code. According to Austin Nightlife’s petition, the City 

Officials wrongfully refused to provide this confirmation and instead notified Austin Nightlife

that if it wanted to operate at the extended hours applicable during the spring festival season, it 

had to first apply for and obtain a temporary modification of its sound-impact plan.

Finally, Austin Nightlife alleged that the City Officials acted “ultra vires in 

issuing or causing to be issued citations against [Austin Nightlife] for noise violations because 
4

the officers that issued the violations were not properly designated as required under Section 9-2-

1(1) and no portion of [Chapter 9-2] of the City Code authorizes the accountable official to cause 

a citation to be issued.” Austin Nightlife seeks declaratory and injunctive relief (1) prohibiting 

the City Officials from “unlawfully issuing citations against [Austin Nightlife] for noise 

violations contrary to requirements laid out in City of Austin Code of Ordinances,” and

(2) compelling the City Officials to “represent in all future permits and sound-impact plans that

the Summit Lounge is located in the Warehouse District.”

In response, the City Officials filed a plea to the jurisdiction asserting that Austin 

Nightlife’s claims are barred by governmental immunity. Following an evidentiary hearing, the 

trial court denied the City Officials’ plea. This interlocutory appeal followed. See Tex. Civ. 

Prac. & Rem. Code § 51.014(a)(8).

STANDARD OF REVIEW

Subject-matter jurisdiction is essential to the authority of a court to decide a case. 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). A plea to the jurisdiction is

a dilatory plea that challenges the trial court’s subject-matter jurisdiction without regard to 

whether the asserted claims have merit. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

Whether a trial court has subject-matter jurisdiction is a question of law, and we review a trial 

court’s ruling on a plea to the jurisdiction de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 225 (Tex. 2004).

The burden is on the plaintiff to affirmatively demonstrate the trial court’s 

jurisdiction. Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). When, as in 

this case, the defendant’s plea to the jurisdiction challenges the sufficiency of the plaintiff’s 
5

pleadings, we determine if the plaintiff has alleged facts that affirmatively demonstrate the 

court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. In making this assessment, 

we construe the plaintiff’s pleadings liberally, taking all assertions as true, and look to the 

plaintiff’s intent. Id. If the plaintiff meets its burden of affirmatively demonstrating the trial 

court’s jurisdiction, the plea to the jurisdiction should be denied. See In re Diocese of Lubbock, 

624 S.W.3d 506, 512 (Tex. 2021) (orig. proceeding). When resolving issues presented by a plea 

to the jurisdiction, a court may consider evidence that the parties have submitted and must do so 

when necessary to resolve the jurisdictional issues. Bland Indep. Sch. Dist., 34 S.W.3d at 555.

2

If resolution of the jurisdictional issue requires the trial court to construe 

municipal ordinances, we likewise review these questions de novo. Powell v. City of Houston, 

628 S.W.3d 838, 842 (Tex. 2021). In construing an ordinance, we apply the same rules that

are used to construe statutes. Id. Thus, our primary objective in construing an ordinance is to

ascertain and give effect to the enacting body’s intent. See TGS-NOPEC Geophysical Co. v.

Combs, 340 S.W.3d 432, 439 (Tex. 2011). To discern that intent, we start with the plain and

ordinary meaning of the ordinance’s words, using any definitions provided by the enacting body.

See Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). We consider an

ordinance as a whole, rather than isolated provisions, and we do not give an undefined term a

meaning that is out of harmony or inconsistent with other provisions, even though it might be

2

 When a plea to the jurisdiction challenges the existence of jurisdictional facts that 

implicate the merits of the plaintiff’s claims, the movant’s burden mirrors that of a traditional 

summary-judgment motion. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021).

Here, the City Officials neither challenged the existence of any jurisdictional facts alleged by 

Austin Nightlife nor submitted evidence in an attempt to negate the existence of such facts.

Nevertheless, at the hearing on the plea to the jurisdiction, Austin Nightlife presented 

documentary evidence in support of its claims, and the City Officials did not attempt to dispute 

that evidence.
6

susceptible to such a construction standing alone. Texas State Bd. of Chiropractic Exam’rs v.

Abbott, 391 S.W.3d 343, 347 (Tex. App.—Austin 2013, no pet.) (citing Texas Dep’t of Transp.

v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).

DISCUSSION

Sovereign immunity implicates a court’s subject-matter jurisdiction and generally 

bars suits against the State and its subdivisions, such as agencies and boards, absent a clear and 

unambiguous waiver of immunity by the Legislature. Nazari v. State, 561 S.W.3d 495, 500

(Tex. 2018). Under the doctrine of governmental immunity, political subdivisions of the state, 

such as counties and cities, share the state’s immunity when performing governmental functions 

as the state’s agent. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 

747 (Tex. 2019). Therefore, like sovereign immunity, governmental immunity implicates a 

court’s subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Harris 

County v. Annab, 547 S.W.3d 609, 612 (Tex. 2018).

“In certain narrow instances, a suit against a state official can proceed even in 

the absence of a waiver of immunity if the official’s actions are ultra vires.” Hall v. McRaven, 

508 S.W.3d 232, 238 (Tex. 2017). While governmental immunity provides broad protection to 

the state and its officers, it does not bar a suit against a government officer for acting outside his 

legal authority in carrying out his duties—i.e., an ultra vires suit. See Houston Belt. & Terminal

Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016). Properly pleaded ultra vires suits 

do not implicate immunity because they do not attempt to exert control over the state but, 

instead, attempt to reassert the control of the state over its official. City of El Paso v. Heinrich, 

284 S.W.3d 366, 372 (Tex. 2009).
7

To fall within the ultra vires exception, the plaintiff must allege and ultimately 

prove that a government official acted without legal authority or failed to perform a purely 

ministerial act. Honors Acad., Inc. v. Texas Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018). A

government official fails to perform a ministerial act when “the law prescribes and defines the 

duties to be performed with such precision and certainty as to leave nothing to the exercise of 

discretion or judgment.” Hall, 508 S.W.3d at 238. A government official acts “without legal 

authority” when he exceeds the bounds of his granted authority or if his acts conflict with the law 

itself. Houston Belt, 487 S.W.3d at 158.

“Ultra vires claims depend on the scope of the state official’s authority,” not the

quality of the official’s decision. Honors Acad., 555 S.W.3d at 68 (quoting Hall, 508 S.W.3d 

at 234). And while an act within the official’s discretion is protected by immunity even if it is

erroneous, Hall, 508 S.W.3d at 242−43, officials generally have no discretion or authority to

misinterpret the law, Houston Belt, 487 S.W.3d at 163. However, if a plaintiff alleges only 

facts demonstrating acts within the official’s legal authority and discretion, the claim is barred 

by immunity. Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envt’l Quality, 

307 S.W.3d 505, 516 (Tex. App.—Austin 2010, no pet.).

In reviewing the trial court’s jurisdictional ruling, we will examine each of Austin 

Nightlife’s three ultra vires claims in turn to determine whether it has sufficiently alleged a valid 

ultra vires claim. See Thomas v. Long, 207 S.W.3d 334, 338-39 (Tex. 2006) (explaining that it is 

proper to examine subject-matter jurisdiction on claim-by-claim basis because “it is proper for a 

trial court to dismiss claims over which it does not have subject matter jurisdiction but retain 

claims in the same case over which it has jurisdiction”).
8

Status as a Warehouse District Venue

In its first claim, Austin Nightlife alleged that the City Officials acted ultra vires by

failing to recognize that Summit Lounge is located within the City’s Warehouse District and is

therefore entitled under Section 9-2-30(A)(2) to operate sound equipment at later hours. Section 

9-2-1(19) of the Code defines the “Warehouse District” as follows:

WAREHOUSE DISTRICT means the area:

(a) that begins at the intersection of Congress Avenue and Cesar Chavez 

Street;

(b) north along Congress Avenue to Fifth Street (West);

(c) west along Fifth Street (West) to Guadalupe Street;

(d) south along Guadalupe Street to Cesar Chavez; and

(e) east along Cesar Chavez Street to Congress Avenue, the place of

beginning.

See Austin, Tex., Code of Ordinances § 9-2-1(19). Under this definition, the Warehouse District 

is a geographic area, the boundaries of which are “along” designated portions of specific streets. 

Relevant here, the northern boundary of the Warehouse District is defined as “along” a certain 

portion of West Fifth Street. 

Austin Nightlife’s undisputed allegations and evidence establish that Summit 

Lounge is an outdoor-music venue located on the north side of West Fifth Street. The City 

Officials construed “Warehouse District” under Section 9-2-1(19) to include only those 

properties on the south side of Fifth Street, that is, properties within the geographic area created 

by the streets themselves. Accordingly, they concluded that Summit Lounge was not located in 

the Warehouse District when they issued the lounge a permit and sound-impact plan, and later 
9

when citations for ordinance violations were issued to the lounge.3 The map below shows how

the Summit Lounge is situated in relation to the relevant streets of downtown Austin.

3 We note also that the permit and sound-impact plan issued to Summit Lounge appears 

to expressly exclude the lounge from the Warehouse District. Although a decision “to approve 

or deny a permit under [§ 9-2-39] may be appealed,” there is no allegation or evidence that 

Summit Lounge appealed its permit as issued.
10
11

Austin Nightlife contends that the City Officials have acted “without legal

authority” in concluding that Summit Lounge is not in the Warehouse District because, in its 

view, the City Officials’ interpretation of Section 9-2-1(19) conflicts with the unambiguous

language of the ordinance. See Houston Belt, 487 S.W.3d at 158. Austin Nightlife reasons that

the term “along Fifth Street” in Section 9-2-1(19) necessarily means properties on both sides of 

Fifth Street and, consequently, that Summit Lounge’s location on the north side of the street

qualifies as “along Fifth Street.” Thus, according to Austin Nightlife, the City Officials’ refusal

to recognize Summit Lounge as being in the Warehouse District constitutes an ultra vires act.

In its plea, and now on appeal, the City Officials do not argue that their authority 

to recognize or refuse to recognize that “an outdoor music venue” is located “in the Warehouse 

District” is absolute. See id. at 165 (explaining that “only absolute grants of authority will totally 

bar judicial review”). Instead, the City Officials contend that the limit of their authority in

determining a venue’s Warehouse-District status under Section 9-2-1(19) is the ordinance itself;

that the ordinance is, at worst, ambiguous as to whether it includes properties on the north side of 

Fifth Street; that as the governmental entity charged with enforcing City noise ordinances, its 

officials have the authority and discretion to reasonably interpret Section 9-2-1(19); and, finally,

that their interpretation of Section 9-2-1(19)—that is, that a property is in the Warehouse District 

only if it is located within the geographic area created by the boundary streets—is a reasonable

interpretation.

As the parties recognize in their respective arguments, whether the City Officials 

acted ultra vires in failing to recognize Summit Lounge as being within the Warehouse District

turns on the scope of the officials’ discretion to interpret the language of Section 9-2-1(19). 

Unless the terms of the ordinance unambiguously place Summit Lounge within the Warehouse 
12

District, the City Officials have discretion to construe the boundaries of that district. In 

interpreting Section 9-2-1(19), we start with the words of the ordinance to discern the city’s 

intent. See CPM Tr. v. City of Plano, 461 S.W.3d 661, 670 (Tex. App.—Dallas 2015, no pet.)

(explaining that when construing city ordinance, “we rely on the plain meaning of the text as 

expressing [the city’s] intent”) (citing Texas Lottery Comm’n v. First State Bank of DeQueen, 

325 S.W.3d 628, 635 (Tex. 2010))). In the context of the present case, whether the City Officials

were acting “without legal authority,” see Houston Belt, 487 S.W.3d at 158, turns on

interpretation of the ordinance’s use of the term “along.”

Although the term “along” is not defined in Chapter 9-2, when used as a 

preposition it is ordinarily defined as “in a line matching the length or direction of.” See Along,

Merriam-Webster Online Dictionary, https://merriam-webster.com/dictionary/along (last visited 

April 19, 2023). Accordingly, the relevant ordinance can reasonably be read to begin at a 

particular point, i.e., “the intersection of Congress Avenue and Cesar Chavez Street.” Applying 

the foregoing definition of “along,” the ordinance could logically be construed to produce a line 

proceeding down each named street to the place where that street reaches the intersection with 

the next named street. Such a use of “along” is not uncommon in setting boundary lines. See, 

e.g., Lebow v. Weiner, 454 S.W.2d 869, 871 (Tex. App.—Beaumont 1970, writ ref’d n.r.e.)

(“ONE HUNDRED FIFTY (150 ft.) feet, along the Feeder Road”); State ex rel. Beckville Indep. 

Sch. Dist. v. Tatum Indep. Sch. Dist., 283 S.W.2d 802, 808 (Tex. App.—Texarkana 1955, writ 

ref’d n.r.e.) (“[T]he true boundary line between the Beckville District and the Tatum District 

runs along the Yellow Jacket Road.”); Krider v. Hempftling, 137 S.W.2d 83, 85 (Tex. App.—

Galveston 1940, no writ) (“thence S. 411⁄2 [varas] E. along the center of said public road to the 

beginning”); Brown v. St. Mary’s Temple No. 5, etc., 127 S.W.2d 531, 532 (Tex. App.—Dallas 
13

1939, no writ) (“Thence northeast along said alley 113 feet.”). Although the ordinance here does

not specify whether the line runs down the center of each named street or along one side or the 

other, that is immaterial—the street can reasonably be interpreted to be the boundary. Thus, 

based on the plain language of Section 9-2-1(19), we cannot conclude that the use of the term 

“along” unambiguously includes properties located on both sides of the boundary streets or that 

it precludes the streets themselves from constituting the Warehouse District’s boundary lines.

We therefore disagree with Austin Nightlife’s contention that the definition of 

Warehouse District under Section 9-2-1(19) unambiguously provides that the northern boundary

of the Warehouse District includes those properties located on both sides of West Fifth Street. 

Consequently, the City Officials’ construction of Section 9-2-1(19) to exclude Summit Lounge 

from the Warehouse District does not conflict with the plain language of the ordinance and

therefore does not constitute an act “without legal authority.” See Houston Belt, 487 S.W.3d 

at 158. As a result, Austin Nightlife’s allegation that the City Officials wrongfully failed to 

recognize Summit Lounge as located within the Warehouse District, even construed in the light 

most favorable to Austin Nightlife, does not state a valid ultra vires claim. The trial court 

therefore erred in denying the City Officials’ plea to the jurisdiction as to this claim.

Extended Hours During the Spring Festival Season

In its second claim, Austin Nightlife asserts that the City Officials acted ultra vires 

in requiring Summit Lounge to apply for a temporary modification of its permit and soundimpact plan to obtain extended 85-decibel hours during the spring festival season. See Austin,

Tex., Code of Ordinances § 9-2-41(B), (C) (providing that sound-impact plan includes, among

other elements, “prescribed decibel limits and hours of operation” and that “accountable official 
14

may modify sound-impact plan” after permit has been issued). Austin Nightlife alleges that this 

action by the City Officials “violate[s] the clear language of City Code Section 9-2-30(A)(3), 

which operates to automatically extend venue hours during the [South-by-Southwest music 

festival] season.”

As previously discussed, Section 9-2-30(A)(3) of the Code provides that permitted 

sound equipment may be operated “[u]p to 85 decibels during the spring festival season, between 

10:00 a.m. and 2:00 a.m.” Id § 9-2-30(A)(3). The “spring festival season” is defined by 

ordinance as “Friday of the second week of March through Sunday during the third week of 

March, unless the city manager designates an alternate ten-day period for a particular year.” Id.

§ 9-2-1(15). Although Section 9-2-30(A) qualifies that the operation of sound equipment is

authorized at specified decibel levels “unless a more restrictive decibel limit is required by a 

sound-impact plan, a condition in an outdoor-music venue permit, or by another provision of this 

code,” there is no such qualification as to hours of operation. See id. § 9-2-30(A) (emphasis 

added). Austin Nightlife’s permit and sound-impact plan, which were admitted into evidence at

the hearing on the City’s plea, allow Summit Lounge to operate at up to 85 decibels during its

permitted hours and therefore do not impose “a more restrictive decibel limit” than that allowed 

under Section 9-2-30(A).

The language of Section 9-2-30(A)(3) contains no requirement for an outdoormusic venue to modify its permit or sound-impact plan before it may operate sound equipment 

under the extended hours applicable during the spring festival season. As worded, the ordinance 

can be read to “leave nothing to the exercise of discretion or judgment” of the City Officials.

That is, it appears to be unambiguous. Consequently, construing the pleadings liberally in favor 

of Austin Nightlife, we conclude that its pleadings are sufficient to give the trial court
15

jurisdiction over its claim that City Officials acted ultra vires in refusing to allow Summit 

Lounge to operate sound equipment at 85 decibels until 2 a.m. during the spring festival season.

The trial court did not err in denying the City Officials’ plea to the jurisdiction as to this claim.

Designated Authority

Finally, Austin Nightlife alleges that the City Officials here lacked any authority to 

issue or cause citations to be issued for noise-ordinance violations “because the officers who 

issued the violations were not properly designated [as accountable officials] as required under 

Section 9-2-1(1) and no portion of [Chapter 9-2] of the City Code authorizes the accountable 

official to cause a citation to be issued.”

Contrary to Austin Nightlife’s assertion, we cannot conclude that only a specific 

“accountable official,” as defined in Chapter 9-2, has the authority to issue citations or cause 

citations to be issued. Section 9-2-1(1) defines “accountable official” as “the City officer or 

employee designated by the city manager with a particular administrative or enforcement 

responsibility under [Chapter 9-2].” Id. § 9-2-1(1) (emphasis added). Other provisions in 

Chapter 9-2 specify the particular responsibilities of an “accountable official.” Those 

responsibilities generally concern permitting. For example, Chapter 9-2 provides that the 

“accountable official” is responsible for approving or denying outdoor-music-venue permit

applications, issuing sound-impact plans, and suspending or revoking permits. Id. §§ 9-2-39 

(accountable officials may issue permit); 9-2-41(C) (accountable official may modify soundimpact plan); 9-2-53 (decision on application by accountable official); 9-2-54 (notice of 

application by accountable official). Nothing in Chapter 9-2 suggests that enforcement activities

such as the issuance of citations are the “particular” responsibilities of the “accountable official.”
16

In contrast, Chapter 1-1 of Austin City Code, General Provisions, authorizes a 

director of a city department (which would include the Development Services Department) to 

issue citations “if the director reasonably believes the person has engaged in conduct that violates 

a law or ordinance that the director is responsible for enforcing.” Id. § 1-3-2 (“Authority to Issue 

Citations to Appear in Municipal Court”).

4

 In addition, a department director may designate 

employees to issue citations. Id. § 1-3-3 (“Designated Employees”). Austin Nightlife has not 

alleged or argued that the citations against Summit Lounge for noise-ordinance violations were 

not issued or caused to be issued by a department director or by an employee designated by the 

director under Section 1-3-3.

In summary, the City Officials’ issuance of citations through authorized employees 

does not conflict with the plain language of Section 9-2-1(1) and therefore does not constitute an 

act “without legal authority.” See Houston Belt, 487 S.W.3d at 158. The allegations in Austin 

Nightlife’s pleadings, liberally construed, fail to affirmatively demonstrate the trial court’s

jurisdiction as to its claim that the City Officials acted ultra vires “in issuing or causing to be

issued citations against Summit Lounge for noise violations.” The trial court erred in denying 

the City Officials’ plea to the jurisdiction as to this claim.

CONCLUSION

Because the trial court erred in denying the City Officials’ plea to the jurisdiction 

as to Austin Nightlife’s claim based on Section 9-2-1(19), concerning its status as a Warehouse 

District venue, and its claim based on Section 9-2-1(1), concerning whether citations were issued

or caused to be issued by an “accountable official,” we reverse the trial court’s order as to these 

4 A violation of the City’s noise ordinances under Chapter 9-2 or of a sound-impact plan 

is considered a chargeable offense. See Austin City Code §§ 9-2-61(A), 9-2-3(D).
17

claims and render judgment dismissing these claims for lack of jurisdiction.

5 We affirm the trial 

court’s order denying the City Officials’ plea to the jurisdiction as to Austin Nightlife’s claim 

that the City Officials acted ultra vires in requiring Summit Lounge to obtain a temporary 

modification of its permit and sound impact plan in order to be authorized to use extended 85-

decibel hours during the spring festival season.

6

__________________________________________

J. Woodfin Jones, Justice*

Before Justices Baker, Smith, and Jones*

Affirmed in part; Reversed and Rendered in part

Filed: April 20, 2023

*Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.

See Tex. Gov’t Code § 74.003(b).

5

 As previously discussed, a trial court generally should give a plaintiff an opportunity to

amend its pleadings before granting a plea to the jurisdiction that challenges the sufficiency of 

the plaintiff’s pleadings. Houston Belt. & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

160 (Tex. 2016). Here, however, Austin Nightlife had an opportunity to amend its pleadings—

and did so—after the City Officials filed their plea to the jurisdiction. See Clint Indep. Sch. Dist.

v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (noting that plaintiffs were not entitled to another 

opportunity to replead when they “had the opportunity to, and did in fact, amend their pleadings

in the trial court after the [defendant] filed its plea to the jurisdiction”). Moreover, the 

jurisdictional defects in Austin Nightlife’s pleaded claims arise from the nature of the claims and 

not from a lack of factual allegations. See id. (explaining that remand “is a mechanism for 

parties . . . to plead facts tending to establish [] jurisdiction” and not for parties to plead new 

claims). Consequently, we need not give Austin Nightlife another opportunity to replead.

6

 In conjunction with the instant opinion and judgment, we lift the temporary stay 

entered by this Court on October 25, 2022.