### 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 Directo r ; Rick Ho l loway, in his Offic i al Capacity as Assistant Director; David Chapman, in his Offic ial Capacity as Devel opment Services Division Manager; Mario Garcia, in h is Official Capacity as En vironmental Compliance Supervisor; Brian Ea gan, in his Official Capacity as En v ironmental Comp l iance Specialist Se nio r; Robert Jason Cro uch, in his Official Capacity as Env ironment a l Compliance Specialist Senior , Appellant s

v. Austin Nigh t l ife, LLC d/b/a Summit Lounge , Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 21
- 0 0 6221 , THE HONORABLE AMY CLARK MEACHUM , JUDGE PRESIDING

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

A f ter it was cited for violating th e terms of its o ut door

- music

- venue pe rmit and
various municipal no ise or dinance s , Austin Nightlife, LLC d/b/a Summit Lounge sue d v ariou s

o fficials with the Development Services Department at the Ci ty of Austin 1 (collectively, the City
Offic ials ) see king declar atory an d inj u nc tive relief for what it contends are ultra vires acts

. The
C it y Officials filed a plea to th e j urisdi c t ion , w hi ch t he tri al court denied. In this interlocutory

1 T hose offi cial s are Denise Lucas, in her Official Capacity as Directo r ; Rick Ho l loway, in his Offic i al Capacity as Assistant Direc tor; David Chapman, in his Offic ial Capacity as Devel opment Services Division Manager; Mario Garci a, in h is Official Ca paci ty as En vironment al Compliance Supervisor; Brian Ea gan, in his Official Capacity as En v ironmental Compliance Specialist Se nio r; Rober t Jason Cro uch, in his Official Capacity as Env ironment a l Compliance Specialist Senior

.2

appeal , the City Officials assert t hat the trial court erred in de nying their plea t o the j u ri sdictio n because they are protect ed from suit by gov ernmental immunity and because Austin Ni ght l ife
has f ai led t o as sert a ny valid ultra vires claim s
. We w ill affirm the trial court ’ s order in part and

reverse and ren de r in part.

FACTUAL AND PROCEDURAL BACKGROUND
C h apter 9

- 2 of the Austin City Cod e regulates n oise and ampl if i ed soun d in the city , includi n g th e decibel levels and times at which sou nd equipment may be operated at
outdoor

- music venues. See Austin, Tex., Code of Ordinances § § 9

- 2

- 1

− 65 ( “ Noise and Amplified Sound ” ). Gen erally , under Sectio n 9

- 2

- 30( A) ( 1) , sound equipment for which a n
out door

- music

- venue permit has been issued may be ope rated up to 85 de cibels until 10: 30 p
. m. on Sunday through Wednesday , until 11:00 p .m. on Thursday s , and until 12:00 midnight on Friday s , Saturday s , and New Year ’ s Eve

. See id. § 9

- 2

- 30 (A)( 1) ( “ Decibel Limits for O utdoor
Music ” ) ; see also id. § § 9

- 2

- 35

− 65 ( “ Live Music P erm its ” ). U nder certain enumerated

exc eptio n s , h owever, a n outdoor

- music venue m ay o pe r ate sound equipment as late as 2:00 a .m. See i d. § 9

- 2

- 30 (A)( 1)

- (4). Relevant h ere , Sect i on 9

- 2

- 30(A) (2) allows outd oor
- music venue s l ocated in the “ War ehouse District , ” as designated by City ordinance , to operate per mitted sound equipment until 2 :00 a
. m
. on all days of the week

. Id

. § 9

- 2

- 30 (A)( 2 ). I n addition , Section 9

- 2

- 30 (A)(3) o f the C ode pro vides that “ during the spring fest ival season ” (which coincides with the
South

- by

- Southwest music festival) a venue may ope rate permitted sound equ ipment u nt il 2:00

a
. m. , whether or not located within the Warehouse District. Id. § 9

- 2

- 30 (A)( 3).

Austin Nigh t life operates a ro of

- top lounge call e d Summit Lounge in downt own Aust in at 12 0 West Fifth S treet

. O n Austin Nightlife ’ s a pplication , the City ’ s Develo p me nt3

Services Department iss ue d the lounge an ou t door

- musi c
- v en ue permit and sound

- impact plan

. See id. § § 9

- 2

- 39 ( “ O utdoor Music Ve n ue Permit ” ) , 9

- 2

- 41 ( “ Sound Impact Plan ” )

. The permit
and sound

- impact plan indicate that Summ it Lounge is not located i n t he Warehouse District
but instead is in the “ Outside ” district, i.e., in the central business district “ among other bars, restaurants, and residential uses. ” T he pe rm it allow s Summi t Lounge to operate sound
eq uipment outdoors until 12:00 m id ni ght on Fr i da y s an d S aturda y s , until 1 1 : 0 0 p .m. on
T hursday s , a nd until 1 0:30 p

. m
. on all ot h er days.

A f ter recei v i ng citations for violat ions o f its permit and of Chapter 9

- 2 noise
ordi nances , Austin Nig htlife filed suit aga inst the City Of ficials for what it co nte n ds ar e three
instances of ultra vires conduct

. First, A us tin Nigh t life ’ s petit ion alleged that the City Officials
ha ve improperly r e fused to r ecog nize tha t Summi t Lounge is located in th e Warehouse D istric t ,

as defined in Sect ion 9

- 2

- 1 (19) of the A u st in Cit y Code, a nd that , as a result , it is entitled under
Section 9

- 2

- 30(A)( 2) to t he extended hou rs of operation a pplicable to outdoor

- music venue s in
the Wa r ehouse District

.

Second , Austin Nigh t life alleg e d that d u ring the South

- by

- Southw es t music
fes ti va l it “ so ught confirmation [from the Development Services Department ] th at [Sum m it Lounge] , like all of the other venues , was allowed to oper a t e during the ext ended hour s , ” as provid ed by Section 9

- 2

- 30 (A)(3) of the Cod e
. Ac cor ding to Austin Nightlife ’ s pet i ti on , the City
Off icials wrongfully refused to provide this con firmat ion and instead no tified Austin Nightlife
that if it wanted t o op erate at the extended hours a pplicable during the spring festival season , it
had to fi rst apply f

or and ob tain a te m porar y m od ification of its sound

- impact plan

. Fi nally, A ustin Nightlife al lege d tha t the City Offici als acted “ ultra vires in issuing or causing to be issued citations against [ Austin Nightlife] for noi se violations beca use4

the o fficers that iss ued the vi o lati o ns w ere not proper l y designated as re quir ed under Section 9

- 2

- 1 (1) an d no port i on of [Chapter 9

- 2] of the City Code autho rizes the accountable officia l t o cause a citation to be issued

. ” Austin Nightli fe seek s decl a ratory a nd injuncti ve re l ief (1) p rohib i t ing
the City Officials fro m “ un law fully is suing ci tations again st [A ustin N ig h t li fe] for no ise
violations contrar y to re quirements laid out in City of Austin Code of O rdi n anc es, ” and (2) compelling the City Of ficia ls to “ rep resent i n a ll f uture perm its a n d sound

- impac t plans tha t the Sum mit Lounge is located in th e Wa rehous e D istric t

. ”

In response , the City Officials filed a plea t o the jurisdiction ass er ting that Austin
N ightlife ’ s claims are barred by g overnmental immu nity . Follow i ng a n evidentia ry he a ring, the trial court denied the City Official s ’ plea

. This interlocu tory appeal f ollowed. See Tex. C iv. Prac. & Rem. Code § 51.014 (a) (8)

.

ST ANDARD OF RE V IEW Subject

- matter jurisdiction i s esse ntial to the aut ho rity of a court to decide a case
. Bland Indep. Sch. Dist. v

. Blue , 34 S.W.3d 547 , 55 4

– 55 (Tex. 2000)

. A plea to the jurisdiction is

a dilatory plea th at challen ges the tr ial court ’ s s ubject

- matter jurisdi ction without regard to
whe t her t he asserted clai ms ha ve me rit. Harris C nt y . v. Syk es , 13 6 S.W.3d 635, 638 (Tex . 200 4 )

. W he th e r a trial court has subject

- matt er jurisdiction is a q uestion of law, and we review a tri a l

court ’ s ru ling on a pl ea to the jurisd iction de novo. Tex as Dep ’ t of Parks & Wi ld lif e v. Miranda , 133 S.W.3d 2 17 , 225 ( Tex. 20 04)

.

The burd en is on the plaint if f t o affirmat ively demonstrate the trial court ’ s jurisdic tion. Heckman v. Williamson Co u nty , 369 S .W .3d 137, 1 50 (T ex. 2012)

. W hen , as in this case, the defendant ’ s plea to the jurisd iction chal lenge s the suff iciency o f the plaintiff ’ s5

p leadi ngs, we determin e if the plaintiff has a lle ge d facts that a ff ir matively de monstrate the

court ’ s jurisdiction to he a r t he c ause
. Miranda , 133 S.W.3 d a t 226 . In ma ki ng this asses sment,

we construe the plaintiff ’ s p lea di ngs libera l ly , t aking all assert ions as t rue, and look to the pl aintiff ’ s intent

. Id

. If the pl ai nt if f meets its burden of affirmatively demonstrati ng the trial

court ’ s jurisdiction, the plea to t he juri sd iction s hould be denied. See In re Dio c es e of L ubbo c k , 624 S. W.3d 506, 512 (Tex. 2021) ( o rig. proce eding)

. When resolving issues presented by a plea to the j urisdictio n , a court may consider evidence that the parties have submitted and must do so
when necessary to resolve the jurisdictional i ssues. Bland Indep. Sc h. Dist. , 34 S .W.3d at 5 55

. 2

If resolution of the jurisdi ction al issue r equires the tri a l court to construe municipal ordinances , we likewise rev iew these questi on s de novo. P owell v. City of Houston , 628 S.W.3d 838, 842 (Tex. 2 0 21)

. I n constr uing a n o rdinance , w e apply the same r ules th at

a re use d to const rue statu tes

. Id. Thus, o ur p rimary objective i n construing an ordinance is to
ascertain and give ef

fect to t he e nacting body ’ s intent. See TGS

- NO PE C Geophysi cal Co. v. Com b s , 340 S.W.3d 4 32, 439 ( Tex. 2011 )

. To dis ce r n that int ent, we start with the plai n and ordinary meanin g of t he ordinance ’ s w or ds, using any definitions provided by the enacting bod y. See T exas Mut. Ins. Co

. v. Ruttiger , 381 S. W. 3d 430, 452 (Tex. 2012)

. We co nsider an ordina nce as a who l e, rat he r than i solated provisions, and we do no t give an und efi ned te rm a meaning tha t is out of harmo ny or in consistent with o ther pro vision s , e ven t houg h it might be

2 When a p lea to th e juri s di c ti on cha llenges the ex istence of jurisdictional fa cts that implicate the merits of the plai ntiff ’ s cl aims , the movan t ’ s burden m irr ors th at of a trad itional summary
- j udgmen t m ot i on
. Texas De p ’ t of Trans

p . v. Lara , 625 S.W .3d 46, 52 (Tex

. 2021 )

. Here, the C ity Officials neither challenged the existence of any jurisdictional f acts all eged by Austin Nigh tlife nor submitted evidence in an att em pt to negate the existence of such facts. Nevertheless, at the hearing on the plea to the jurisdi c tion, Austin Nightl i fe presented docum enta ry evidence in support of its claims , and the Ci ty Offic ials did not attempt to dispute that evidence

.6

susceptible to suc h a con st ruction standing alone

. Texas S t ate Bd. of Chi rop ractic E xam ’ rs v . Abbott , 3 91 S.W.3d 343, 347 (Tex. App.

— A ustin 2 013, n o pe t.) (c iting Texas Dep ’ t of Transp.

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

.

D ISCUSSION Sovereign immunit y implica t es a court ’ s subject

- matter ju risdiction and gene rall y bars s uits agains t the State a nd its subdivisions , such as agencies and boards , abs ent a clear and

un ambiguous waiver of immu ni ty by the Legisl ature. Naz ari v. St ate , 5 61 S. W. 3d 495, 500 (T ex. 2 018 )

. U nd er the doctrine o f governm ental immun ity, pol i tic al subdi visi on s of t he s tate ,

su ch as counties and cities, sh are the sta te ’ s imm u nity when per forming g overnmental functions

as the state ’ s age nt. Rosenber g Dev . Co r

p. v . I mper ial Per

fo rmi ng Ar ts, I

nc . , 57 1 S.W.3d 738,
7 47 (Tex. 20 19)

. The refore, l ik e s over eign imm unity, g overnmental immunity implicates a
court ’ s subject

- matter jur isdic t ion and is properly asserted in a plea to the jurisdictio n. Harris
C o u nty v. A nnab , 547 S.W.3d 609, 612 (Tex. 2018)

.

“ In ce rt ain narrow instance s, a sui t against a sta te offi ci al can pr o ceed even in
the abs ence of a waiver of im munity if the offic ial ’ s actions are ult ra vires. ” Hall v. McRaven , 5 08 S.W.3d 232 , 238 (Tex. 2017)

. W hile g overnmental immunity provi des br oa d pr o te ct ion to
the state an d its of

ficers, it d oes not ba r a s uit ag a inst a g overn ment of ficer for act ing outsi de his legal author ity i n carrying out h is du ties

— i.e. , an ultra vires suit. See Housto n Bel t. & T e rmi n al Ry. C o. v . Cit

y of Ho uston , 487 S.W.3d 154, 16 1 (Tex. 201 6 )

. Pro perly pl eaded ult ra vir es su its do not impl icate i m mu nity because they do not attemp t to exert cont r ol over th e state but , instead , at tempt to reassert the control of the state over its o fficial. City o f El Paso v. Heinrich , 284 S. W. 3d 3 66, 372 (Tex. 20 09 )

.7 To fall withi n the ultra vi res excep tion , the plainti f f mu st allege and u lt imat ely
p r ove that a governme nt official a cted witho ut legal authority or fa iled to perfo r m a p urely
ministerial ac t. Honors A cad., Inc. v. T exas Educ

. Agency , 555 S.W.3d 54, 68 ( T ex. 2018)

. A
g ove rnment of

ficial fails to perform a min isterial act when “ th e law p r escr i be s and defines the
duti es t o b e per f

ormed with such precision a nd certainty as to le ave n othing to the exer ci se of
discretion or judgme nt. ” Hall , 508 S.W.3d at 23 8

. A government o ff ic ial act s “ without le gal authority ” when he exceed s th e boun ds of h is granted a uthority or i f h is acts confl ict with the law
itself

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

.

“ Ul tra vires claims d ep end on t he scope of the st ate of fic ia l ’ s authority, ” not t he
q uali ty of the of

ficial ’ s decision. Hon ors Acad. , 555 S. W.3 d at 68 ( quoting Ha l l , 508 S.W.3d

at 234 ). And w hile an act w ithin the official ’ s discretion is protected by immun ity even if it is

er roneous, Hall , 50 8 S.W.3d at 242

− 43, offi cials genera lly have no discretion or autho rity t o

m isinterpret t he law, Houston Belt , 4 87 S.W.3d a t 163

. However , i f a plaintiff alleges only
facts demonstrating a cts w ithin the offi cial ’ s legal authority and discretion, the c la im is barred by i mmu nity

. C ree dmo or - Maha Wa t er Su pply Corp . v. Texas Comm ’ n on E n vt ’ l Qual i ty , 3 07 S.W.3d 505 , 516 ( Tex. App.

— Austin 20 10, no pet. )

.

In reviewing the trial court ’ s juri sdictional ruling, w e will exami n e each o f Austin Nightlife ’ s three u ltra vires claim s in turn to determine whether it ha s suffi ciently al leged a v alid
ultra vires claim

. See Thomas v. Long , 207 S.W .3d 334, 33 8

- 39 (Tex. 2006) ( explain ing that it is proper to examine subject

- matter jurisdiction on cla im

- by

- clai m ba sis because “ it is proper for a trial court to dismiss c laims over which it does not have subjec t matter jurisdiction but retain
claim s in the same case over which it has jurisdiction ” )

.8

S tatus as a Wa rehouse District V enue
I n its first claim , A usti n Ni ght life allege d that the C i t y Officials acted ultra vires by failing to recognize t hat Summit Loung e is located within the City ’ s Wareh ous e Dist r ict and is
th erefore enti tled under Section 9

- 2

- 30 (A)(2) to operate sound e quipment at later hours

. Se ctio n 9

- 2

- 1 (1 9) o f t he Code d e fi n es the “ W arehouse District ” as follows :

WAREHOUSE DISTRICT means the ar ea: (a) t h at be g in s at the intersection of Cong ress Avenue and Ce sa r Cha vez S treet; (b) n orth a l o n g Congres s Aven ue to Fi fth Street (West) ; (c) w e st a lo ng Fif

th Stree t ( West) t o G uadalu pe St r e e t ; (d) s outh alon g Gua da lup e Street to Ce sar Ch avez; and (e) e as t al ong Ces ar Chavez S t reet to Congress A venue, the place of begi nn ing.

See Aust in , Tex., Code of Ordinances § 9

- 2

- 1 (19)

. Under this definition , the Warehous e D ist ric t
is a geogr aphic area , t he bound aries of which are “ al ong ” designated portions of specific street s
. R elevant here, t he no rthe r n b oundar y o f the W arehouse Dis tr ict is defined as “ along ” a certa i n portion of West Fift h Street.

Austin Nightlife ’ s un di sp uted allegations and evide nce e s tablish that Summit Lounge is an o utdoor

- music venue located on the north side of West Fifth Stree t. The City
Officials c onstru ed “ Warehouse District ” u n d e r S e c t i o n 9

- 2

- 1 ( 1 9 ) to includ e only thos e
prop e rties on the s outh s id e of Fifth Stree t , that is, p r o perties wi thin the geog raphic area created by t he streets th emse lv es . Accordingly , the y concluded t hat Summi t Lounge was no t lo cated in
the W arehou se Dis t r ict when they issued the lounge a permit a nd sound

- im pact plan, and later9

when citation s for o rdi n a n ce viola tions were issue d 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 al so th at the permit and sound

- impact plan issued to Summit Lounge appears to expressly exclude the lou nge from the Ware h ouse District. Althou gh a decision “ to approve or deny a permit under [§ 9

- 2

- 39] may be appealed, ” the re is no allegation or evidence th at Su mmit Lounge appe aled its permit as i ssued

.1011 A ustin Nightli f

e contend s t hat the City Of fi c ia ls have acted “ without le gal
authorit y ” i n concluding that Summit Lounge is not i n t he W arehouse District because , in its
vi ew, the C ity Officials ’ interpretation of S ection 9

- 2

- 1 (1 9) conflict s wit h the unambiguous language of the ordi nan ce
. See Houston Belt , 487 S.W.3d at 158

. Aus tin Nightlife r eason s that
the term “ along F ifth Street ” in Section 9

- 2

- 1(19) necessarily means properties on both sides of
Fifth St reet and , cons equen tly , t h at Summit Lounge ’ s loc a ti on on the north side of the street qualif ie s as “ along Fifth Street

. ” T hus, accord ing t o A ustin N ightlife , th e City Officials ’ re fusal

to rec og nize Summit Loung e as b eing in the Wareho use District constitutes an ultra v ires act.

I n its plea, and no w on a ppe al , the City Offic ials do not argue that their authority

to re co gn i z e or re fuse to r e c ognize that “ an outd oor music ven ue ” is located “ in the W areh ouse District ” is absolute. S ee id. at 165 (ex plai ning th at “ only absol ute gr ants o f a uthority will totally bar judicial rev ie w ” ). In stea d , th e City Officia ls conte nd t h at t h e limit of their authority in
dete rmi nin g a v enue ’ s Wa rehous e
- District status under Section 9

- 2

- 1 (19) is the ordi n ance itself ; that the ordi na nce is , at worst , a mbiguous a s to whether it includes prop erties on the north side of
Fifth Stre et; that as the g o v e rn m ent a l entit y charg e d wit h enforc ing City noise ordinances , its
officials ha ve the authority and di screti on to reasonably interpr e t Sectio n 9

- 2

- 1(19 ) ; and , f inally,
that their i nt erpretation of Section 9

- 2

- 1(19)

— that is, that a propert y is in the Ware h ouse District

on l y if i t is located within the geographic area created by the boundary streets

— is a reasonable interpretation

. As t he parties recognize in their resp ective argumen ts , w hether the City Officials

act ed ultra vi re s in failing to recogn ize S u mmit Lou nge as b e ing within the War ehouse District

tur ns on the sco pe of the officials ’ discretion to interpret the lan guage of Section 9

- 2

- 1(1 9 )

. Unless the terms of the or dinance unambiguously place Summit Lounge within the Warehouse12

District, the City Officials ha ve d is cretion to construe the boundaries of that district. In interpreting Section 9

- 2

- 1 (1 9), we start with the words of the ordi nance to disce rn the city ’ s intent

. See CPM Tr. v . City o f Plano , 461 S.W.3d 661, 670 (Tex. App.

— Dallas 201 5, n o pet. ) ( e xplai n ing that when constru i ng city ordinance , “ we rely on the plain m eaning of th e tex t as
expre ssing [the city ’ s ] intent ” ) ( citing Texas Lott ery Comm ’ n v. First State Bank of DeQueen , 3 25 S. W. 3d 628, 635 (Tex. 2010 ) ) )

. In the context of the pr esent c ase, w het her the City Off icials were acting “ without legal a u thority , ” see Houston Belt , 4 87 S. W .3d at 158 , turns on
inte rpretatio n of the ord i nance ’ s use of the te rm “ along

. ”

Although t he term “ alo ng ” is not defined in Chapter 9

- 2 , wh en use d as a
p reposit ion it is ord inar ily def ined as “ in a line matching the leng th or direction of

. ” See Along , M e r riam

- W eb ster Online D ictionary , https:// merr iam

- webste r.com/dictionary/alo ng (last vis ited April 19 , 2023 )

. Acc ordingly, t he relevant ordinance can reasonably be read to begin a t a particular point, i.e., “ the intersection of Con gress Avenue and Cesar Ch avez Street. ” Applyin g the foregoing definition of “ along , ” the ordinance could l ogically be con strued to pr oduc e 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 s e tting boundary lines

. See,

e.g., Lebow v. Weiner, 454 S.W.2d 869 , 87 1 (Tex. App.

— Bea umont 1970 , writ ref ’ d n .r.e.) ( “ O NE 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

re f ’ d n.r.e. ) ( “ [T] he true boundary li ne b e tween the Beckville District and the Tatum District runs along the Yellow Jacket Road

. ” ) ; Krider v. Hempftling , 137 S.W.2d 83, 85 (Tex. App.

— Galvesto n 1940 , no writ ) ( “ t hence S. 41 1⁄2 [varas] E. along the center of said public road to th e be ginning ” ); B rown v. St. Mary ’ s Temple No. 5 , etc. , 127 S.W.2d 531, 532 (Tex. App.

— Dallas13

1939 , no writ ) ( “ Thence northeast along said alley 113 feet

. ” )

. Althoug h the ordinance here does not speci fy whether the li ne runs down the center of each named s tre et or along o ne s ide or the other, that is immaterial

— the street can reasonably be interpreted to be the boundary

. Thus,
ba sed on the plain language of Section 9

- 2

- 1(19) , we c annot conclude th at the u se of t he term

“ along ” unambiguously includes prope rt ies located on both sides of the bo undary street s or that
it preclu des the streets themselves fro m constituting the Wareho use D istrict ’ s boundar y line s.

W e therefo re disa gree with Aust i n Nightl ife ’ s contentio n th a t th e defi nition of
Warehouse District under Sect ion 9

- 2

- 1(19 ) unam bi guously p rovides that the northern b oundary
of the Warehouse District i nclude s thos e proper ties located on both side s of West F ifth Street

. C onsequen tly, the City Official s ’ construction of Se ction 9

- 2

- 1(19) to exclude Summi t Loung e from th e Wareho use District do es not conflict with the pla in language of the ordinance and
therefore do es not constitute an act “ without legal authority

. ” See Houston Belt , 487 S.W.3d

at 158

. As a resul t, Austin Night life ’ s allegation that the City Off ici als wron gfu lly failed to recognize Summi t Loung e as located with in the W areh ouse Distri ct , even construed in the light most favorable to Austin Nightlife, does not state a valid ultra vires claim

. Th e trial court
th erefore e rred in de ny i ng the City Off icials ’ ple a to t he ju ris diction as to this claim

.

Ext e nded Hour

s During the Spring Festiva l S e ason In its second claim, Austin Ni ghtlife asserts t hat the City Officials acted ultra vires
in requiring Summit Lounge t o apply for a te mp orary modif icati on o f its per mit and sou nd

i mpact pla n to obtain extended 85

- decibel hours during the spring f e stival s eason
. S ee Austin, Tex., Code of Or dina nces § 9

- 2

- 41 ( B), ( C) ( providing that sound

- im pact plan includes, among
other e lements, “ prescrib ed deci bel limits an d hours o f operat ion ” a nd that “ accountable official14

may modify sound

- impact plan ” after pe rmit has been iss ued )

. Austin N igh tlife all e ges that t his action by the City Officials “ violate [s] the clear language of City Code Section 9

- 2

- 3 0(A)( 3),
which opera tes to au tom atica lly extend venue hours durin g the [South

- by

- Sout h wes t music
festival ] season
. ”

A s previ ou sly dis cussed, Section 9

- 2

- 30 ( A )(3) o f the Code pro vides that permitted
sound equipment may b e operate d “ [u ] p to 85 decibels dur ing the spr in g festi val seaso n , betwe en 10:00 a
. m
. and 2:00 a

. m
. ” Id § 9

- 2

- 30(A)(3). T he “ sprin g festival season ” is defin ed by
ord inance as “ Friday of the se cond week of March th r ough Sund ay du ring the thir d week of March, unl ess the city man ager desig nate s an alternat e te n
- day per iod for a particular year

. ” I d. § 9

- 2

- 1(15). Although Sect i on 9

- 2

- 30(A ) qual ifies tha t the operation of sound equipment is
authorized at specified d ecib el levels “ unless a more restri ctiv e decibel l imit is r equired b y a

soun d

- imp act plan, a co nd it ion in an outdo or
- music ven ue pe rm it, or by a nother pro vision of this

co de , ” there is no such qu alification as to hours of operation. See id. § 9

- 2

- 30(A) (emphasis added). Austin Ni gh tlife ’ s permit and sound

- impact plan , wh ich wer e a dmitted into eviden ce at
the hearing on the City ’ s p l ea , allow Summit Lounge to operate at up to 85 decibe ls durin g its
p ermitted hours and t herefore do not impose “ a more restrictive de cib el limit ” tha n tha t allowed
under Section 9

- 2

- 30 ( A).

T he langua ge of Se ction 9

- 2

- 30( A ) ( 3 ) c ontains no r equirement for a n outdoor

music venue t o modi fy its permit or sound

- impact plan before it may operate sou nd equi pment
under the extended ho urs applicable during the spri ng festiv al sea s on
. As worde d, the or din ance can be read to “ leave nothing to the ex er ci se of discretion or judgment ” of t he City Offici a ls. That is, it appears to be unambiguous. Co ns e quently, c onst ruing t he ple adings liberally in favor of Austin Nightlife, we conclude that its pleadings are suff icient to give the trial court15

jurisd icti o n ov er its claim that City Officials a cted ultra vires in r efusing t o allow S u mmit Lounge t o operate sound equipment at 85 deci bels un t il 2 a .m. during the spring festival seas on. The trial court did not err in denying the City Official s ’ plea to the juri sdiction as to this claim.

Desi gna t ed Authority Finally, Austin Ni ghtlife alleges that t he C ity O fficials here lac ked any autho ri ty to
issue o r cause citations to be issued for noise

- ordin ance vi olations “ b ecause the offi ce rs wh o issued the vi olati ons we re not proper ly de sig nated [ as acc ount able offi c ials ] as require d under
Se ctio n 9

- 2

- 1 (1) and no port ion of [ Chapter 9

- 2] of the City Code auth orizes the accountab le
official t o cause a citation to be issued

. ”

C ontrary to Au sti n Nig h tlife ’ s assertion , we c anno t co n clude that only a specific

“ accountable official , ” as define d in Ch a pter 9

- 2 , has the authority to issue citations or cause citations to be issued. Section 9

- 2

- 1(1) defines “ acco untable offici al ” as “ the City officer or emplo yee d esignated by t h e c ity manager with a particula r administrative or enf orcement
respons i bility under [Chapter 9

- 2]

. ” Id

. § 9

- 2

- 1(1) ( emphasis added)

. O ther provisions in Chapter 9

- 2 spe cify th e particular re spo nsi bilities of an “ acco untable offic ial

. ” T ho se responsibili ties generally concern permitting

. For exa mple , Chapter 9

- 2 provides that t he

“ accountable official ” is respon sible f or approv ing or denying outdoor

- m usic

- venue permi t applica tions , issuing so und

- impact plans , and suspen ding or re voki ng p e r m its. Id

. § § 9

- 2

- 39 ( accountab le o fficials may issu e permit) ; 9

- 2

- 4 1 (C) ( a c countable official may m odify sound

impact plan) ; 9

- 2

- 53 ( decision on applica tion by accoun tabl e official) ; 9

- 2

- 54 (notice of application by accounta ble officia l). N othing in C h ap t er 9

- 2 sugge st s that enforcement activities
such as t he issu a nce o f citation s are the “ particular ” responsibilit ies of the “ accountable official

. ”16 In contrast, Chapter 1

- 1 of Austin City Cod e, General Prov isions , a ut horiz es a dir ector of a city depa rt me nt (which would include th e Development Serv ices Dep artment ) to
issue citati ons “ if th e dir ecto r reasonab ly belie ves the person has en gaged in co ndu ct that viola t e s a law or ordi nance that the director is responsible fo r enf orcin g. ” Id. § 1

- 3

- 2 ( “ Author ity to Iss ue Cita ti ons to Appear in Municipal Cour t ” )

. 4 In ad d ition, a de partmen t director may d esignate employees to i s sue citat io ns. Id. § 1

- 3

- 3 ( “ Designated Employees ” )

. Austin Nightlife has not alleged or argued that t he citations against Summit Lou nge for noise

- ord inance violations were not issued or caused to be is s ued by a department director or by an employee des ignate d by the
director under Sect ion 1

- 3

- 3.

In sum mary , the City Officials ’ iss uance of citations through authorized employees
do es n ot conflict with the plain language of Section 9

- 2

- 1 (1 ) and t herefore do es not constitute an
act “ with o ut legal authority

. ” See Houston Belt , 487 S.W.3d a t 158

. The alleg ation s in A usti n Ni ghtlife ’ s pleadings , liberally construed , fai l to affirmatively d emonstrate the tr ial court ’ s juris diction as to its claim that t he C ity Of ficials acted ultra vi re s “ in issuing or caus ing to be
iss ue d citation s against S ummit Lounge for noise viola tion s
. ” T he tr i al court e rred in deny i ng the City Officials ’ ple a to the jurisdic tion as to this claim.

CONCLUSION Because the trial court erred in denying the City Off icial s ’ plea to the jurisdiction

a s t o Austi n Nightli fe ’ s claim based on Section 9

- 2

- 1 ( 1 9 ) , c oncer ni n g its status as a W arehouse
District venue , and its claim ba sed on Section 9

- 2

- 1(1 ) , concerning whether citations were issued
or caused to be issue d by an “ accou ntabl e official, ” we reve rse the trial cou rt ’ s orde r as to the se

4 A violation of the City’s noise ordinances under Chapter 9

- 2 or of a sound

- impact plan is c onsidered a chargeable o ffense. See Austin City Code §§ 9

- 2

- 61(A), 9

- 2

- 3(D).17

claims and render jud gm e nt dis m issing th ese claims for lack of jurisd iction

. 5 W e affir m the tr ial

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 it s permit and sound impact plan in ord e r to be a uthori ze d to use ex t en ded 85

- decibel hours during the spring festival season

. 6

__________________________ ________________ J. Woodfin Jo n e s , Justi ce *
Be for e Justices Baker, Sm ith, and J ones *
A ffirmed in part; Reversed and R endered i n part
Filed: April 20, 2023

* Before J . Woo dfin Jones, Chief Justice (Re tired), Third Court of Appeals, si tting b y assignment

. See Tex. Gov ’ t C o de § 74.003( b)

.

5 As previously dis cussed, a trial court g enerall y sho uld give a plaintiff an opportunity to amend its pleadings befor e gr anting a plea to t he juris dictio n that c hallenges the s ufficiency of the plaintiff ’ s plead ings. Housto n Bel t. & T e rmi n al Ry. Co. v . City of Ho uston , 487 S.W.3d 154, 16 0 (Tex. 201 6)

. Here , however , Austin Nightlife had an opportunity to amend its p le ading s

— and did so

— after the Ci ty Offi c i al s filed their plea to t h e j urisdict ion

. See Clint Indep. S ch. Dist. v. Marquez , 487 S.W.3d 538, 559 (Tex. 2016) ( noting that plaintiffs w ere not e ntitled to another opportunit y to rep lead when they “ h ad the oppor tunity to, and did in fact, am end their pleading s in the tria l court after the [defendant] filed its plea to the jurisdiction ” ). Moreover, the jurisdictional defects in Austin Nightlife ’ s p leaded claims arise from the nature of the claims and not from a lack of factual allegations. S ee i d

. ( explaining that remand “ is a mechanis m for parties

. . . to plea d fact s tending to esta blish [] jurisdiction ” and not for parties t o plead new cl a ims )

. Consequently, we need not give Austin Nightlife another opportun i t y to replea d

.

6 In conjunction wit h the instant opinio n a nd judgment, we li ft the temporary stay entered by this Court on Oc tober 25, 2022

.