Affirm in part, Reverse in part, Render in part and Remand Opinion Filed September 18, 2013 

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In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01359-CV CITY OF MCKINNEY, TEXAS, Appellant V. HANK’S RESTAURANT GROUP, L.P., Appellee On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-03124-2012

OPINION Before Justices FitzGerald and Lewis 1 Opinion by Justice FitzGerald This is an interlocutory appeal from th e trial court’s order denying pleas to the jurisdiction filed by appellant City of McKinney, Texas. We affirm in part and reverse in part.
I. B ACKGROUND A. Summary of the allegations Appellee Hank’s Restaurant Group, L.P. (HRG ) operates a restaurant and live-music venue in McKinney, Texas, named Hank’s Texas Grill. According to HRG, the City has harassed HRG, its employees, and its customers ever since Hank’s Texas Grill opened in 2003. The City denies HRG’s allegations. Further, the City alleges that the premises of Hank’s Texas

1 The Honorable Mary L. Murphy was on the pa nel and participated at the submission of this case. Due to her resignation from theCourt on June 7, 2013, she did not participate in the issuance of this opinion. See T EX

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. P. 41.1(a), (b).–2– Grill violate numerous fire, building, and f ood-service regulations found in the City’s ordinances. Each side seeks inju nctive relief against the other. B. Procedural history This interlocutory appeal arises from a pair of lawsuits that were consolidated into one on the same day the trial judge denied the City’s pleas to the jurisdiction. HRG won the race to the courthouse, filing its lawsuit against the City on August 23, 2012. In its original petition, HRG alleged that City police officers had engaged in a ten-year campaign of harassment and intimidation against th e customers and staff of Hank’s Texas Grill. HRG further alleged that City police officers and firefighters disrupted live-music events at Hank’s Texas Grill by falsely claiming that the occupancy load for the premises had been exceeded. HRG also alleged that the City conducte d an inspection of the premises in June 2012 and claimed that the premises contained about ei ghty code violations. HR G further alleged that on August 9, 2012, the City sent HRG a letter thre atening to sue HRG if HRG did not within seven business days sign a “compliance plan” ag reeing to do everything re quired by the City. HRG alleged that the City’s conduct was illegal for various reasons, such as the inapplicability or unenforceability of the City ordinances on which the City was relying. HRG sought a declaratory judgment that the City’s conduct was improper, as well as temporary and permanent injunctive relief against the City. The trial judge signed a temporary restrain ing order in favor of HRG the same day. The next day, August 24, 2012, the City filed its original petition against HRG under Chapters 54 and 211 of the local government code. The City alleged that it had conducted a site inspection of Hank’s Texas Grill in June 2012 and discovered numerous violations of fire, building, and food-service ordinanc es. The City further alleged that the violations created a danger to the public’s life, health , property, and safety. The C ity sought a declaratory judgment–3– that HRG was in violation of C ity ordinances, temporary and pe rmanent injunctive relief, and attorneys’ fees under the Texas Uniform Declaratory Judgments Ac t. The City’s lawsuit was assigned to the same trial court as HRG’s first-fi led lawsuit, the 366th Judi cial District Court. In HRG’s suit, the City filed an original answer on September 4, a first amended answer on September 6, and a second amended answer on September 24. Each pleading contained a plea to the jurisdiction contesti ng the court’s subject-m atter jurisdiction over HRG’s claims. Each pleading also contained a request for an award of attorneys’ f ees under the Declaratory Judgments Act. The City did not otherwise assert any counterclaims against HRG in its pleadings. In the City’s suit, HRG file d an answer, counterclaim, a nd application for injunctive relief. In that pleading, HRG substantially repe ated the factual allegations and the claims for declaratory and injunctive relief that it had plea ded in its own first-filed lawsuit. HRG also alleged that the City’s conduct had proxi mately caused HRG to suffer up to $250,000 in damages. On September 18, the trial judge h eard and granted HRG’s request for a temporary restraining order. In the TRO, the judge se t HRG’s request for a temporary injunction for hearing on September 24. On September 24, the City filed its original answer to HRG’s counterclaim. The original answer included a plea to the jurisdiction and a request for attorneys’ fees under the Declaratory Judgments Act. The trial judge held a hearing on Septem ber 24, 2012. The reporter’s record from the hearing reflects that there was some disagreement about which motions were set for hearing at that time. It apparently was undisputed that HR G’s request for a temporary injunction in its case and the City’s request for a temporary injunction in its case were both set for hearing. The City took the position that its plea to th e jurisdiction in HRG’s case wa s also set for hearing, but HRG disagreed. The judge decided that he would hear the City’s pleas to the jurisdicti on in both cases–4– and then give HRG time to file additional briefi ng on the jurisdictional issues. The judge gave the parties a deadline of October 1 to file juri sdictional briefing and advised the parties that he would rule on the pleas to the jurisdic tion on October 2 without a second hearing. On October 1, HRG filed a respon se to the City’s plea to th e jurisdiction in each of the two cases, and the City filed a br ief in support of its plea to the jurisdiction in HRG’s case. On that same day, HRG also filed an identical am ended pleading in each of the two cases. The amended pleading is largely the same as HRG’s an swer to the City’s lawsuit, but it contains additional material in response to the City’s claim of immunit y, and its prayer for relief is slightly different from the pr ayer in HRG’s prior answer. On October 2, the trial judge signed two orders. In one order, the judge sua sponte consolidated the two cases, specifically consolida ting the City’s case into HRG’s first-filed case. The other order is entitled “Ord er Denying Plea to the Jurisdiction.” In that order, the judge denied the City’s pleas to the jurisdiction but also acknowledged that the City retained its immunity from claims for monetary relief in exce ss of any amounts necessary to offset the City’s monetary claims. The City timely filed its notice of interlocut ory appeal from the order denying its plea to the jurisdiction. See T EX
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. C ODE A NN . § 51.014(a)(8) (West Supp. 2012) (authorizing interlocutory appeal from order denying a plea to the jurisdiction by a governmental unit).
II. S TANDARD AND S COPE OF R EVIEW We review an order denying a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004). A plea to the jurisdiction can challenge the suffi ciency of the claimant’s pleadings or the existence of necessary jurisdictional facts. See id . at 226–28. The City did not adduce any–5– evidence to support its pleas to th e jurisdiction, so the instant cas e involves a challenge to the sufficiency of HRG’s pleadings. As the claima nt, HRG bears the burden of pleading facts that affirmatively demonstrate that governmental imm unity has been waived and that the court has subject-matter jurisdiction. See City of Dallas v. Turley , 316 S.W.3d 762, 767 (Tex. App.— Dallas 2010, pet. denied). We construe the plead ings in the claimant’s favor and look to the pleader’s intent. Miranda , 133 S.W.3d at 226. If the pleadings do not contain enough facts to demonstrate the propriety of ju risdiction but do not affirmativel y demonstrate incurable defects in jurisdiction, the claimant should be afforded the opportunity to amend. Id . at 226–27. This opportunity shall be given after a court determines that the pleadings are insufficient. Lazarides
v. Farris , 367 S.W.3d 788, 803–04 (Tex. App.—Houston [14t h Dist.] 2012, no pet.). But if the pleadings affirmatively negate the existence of jurisdiction, the plea may be granted without giving the claimant an opportunity to amend. Miranda , 133 S.W.3d at 227. The parties disagree whether HRG’s Oct ober 1, 2012 amended pleading is its live pleading for purposes of our anal ysis. HRG assumes that the am ended pleading is its live pleading; the City argues in its reply brief that it is not. We conclude that it is. The trial judge conducted a hearing on September 24, 2012, but the part ies disputed whether the City’s pleas to the jurisdiction were among the matte rs set for hearing at that tim e. The trial judge gave the parties a deadline of October 1, 201 2, to file jurisdictional briefs and advised that he would rule on the pleas on October 2 withoutanother hearin g. HRG filed its amended pleading on October 1, and the judge’s October 2 order denying the City’s pleas to the jurisdicti on recites simply that the judge “reviewed the pleadings of the parties.” The rules of civil procedure do not prescribe a deadline for filing amended pleadings before th e hearing or submission of a plea to the jurisdiction. See Grand Prairie Hosp. Auth. v. Tarrant Appraisal Dist. , 707 S.W.2d 281, 283 (Tex. App.—Fort Worth 1986, writ ref’d n.r.e.) (holding that a hear ing on a plea to the–6– jurisdiction is not a “trial” under Rule 63, and so amended pleading filed after hearing but before ruling was appellant’s live pleading); see also Rebecca Simmons & Suzette K. Patton, Plea to the Jurisdiction: Defining the Undefined , 40 S T
. M ARY ’ S L.J. 627, 670–71 (2009) (noting the “lack of clearly defined proce dure” to govern pleas to the jurisdiction). Because the rules prescribe no deadline for pleadings amendments be fore the hearing or submission of a plea to the jurisdiction, and because the trial judge recited th at he “reviewed the pleadings of the parties,” we conclude that HRG’s amended pleadings were the live pleadings before the trial judge when he denied the City’s pleas to the jurisdiction. 2
III. G OVERNMENTAL I MMUNITY A. The law of governmental immunity Governmental immunity is a common-law doctrine. City of Dallas v. Albert , 354 S.W.3d 368, 373 (Tex. 2011). It applies to political subdivis ions of the State, while the immunity of the State itself is referred to as sovereign immunity. Id . at 372 n.2. “When performing governmental functions, political subdivisions derive governmenta l immunity from the state’s sovereign immunity.” City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011) (footnote omitted). Governmental immunity comprises both immunity from liability and immunity from suit. Albert , 354 S.W.3d at 373. “Immunity from liabil ity protects entities from judgment while immunity from suit deprives courts of jurisd iction over suits against entities unless the Legislature has expressl y consented . . . .” Id . Thus, the legislatur e can waive a political subdivision’s governmental immunity. See id . at 374 (“[W]aivers of sovereign immunity or consent to sue governmental entiti es must generally be found in actions of the Legislature.”).

2 The City also objects to affidavits att ached to HRG’s amended pleading and incorporat ed therein by reference. Because the Cit y’s pleas to the jurisdiction challenge only the sufficiency of HRG’s pleadings to invoke the trial court’s jurisdiction, we consider the af fidavits only as supplementing HRG’s pleaded factual allegations, and not as evid ence. We need not address the City’s objections to them.–7– Governmental immunity is not unlimited. Ge nerally, a claim falls within the scope of governmental immunity if the claimant seeks eith er to control government action or to subject the governmental entity to liability. Anderson v. City of McKinney , 236 S.W.3d 481, 482–83 (Tex. App.—Dallas 2007, no pet.). But “a governmental entity does not have immunity from suit for monetary claims against it that are ‘ger mane to, connected with, and properly defensive to’ affirmative claims made by the entity, to the extent the claims against the entity offset the entity’s claims.” Albert , 354 S.W.3d at 372 (quoting Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 378 (Tex. 2006)). Also, “suits for in junctive relief may be maintained against governmental entities to remedy viol ations of the Texas Constitution.” City of Elsa v. M.A.L. , 226 S.W.3d 390, 392 (Tex. 2007) (per curiam) (i nternal quotation and citation omitted). The Declaratory Judgments Act waives immun ity as to certain claims, but it is not a general waiver of immunity. See Tex. Parks & Wildlife Dep’t v. Sawyer Trust , 354 S.W.3d 384, 388 (Tex. 2011). The Act provides that a person whos e rights, status, or other legal relations are affected by a statute or ordinance “may have determined any question of construction or validity arising under” the statute or ordina nce and obtain a declaration of hi s rights, status, or other legal relations thereunder. T EX
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. C ODE A NN . § 37.004(a) (West 2008). The Act further provides that a municipa lity must be made a party to any proceeding involving the validity of a municipal ordinance. Id . § 37.006(b). Accordingly, the supreme court has held that the Act waives a municipality’s immunity against claims challenging the validity of its ordinances. Albert , 354 S.W.3d at 378; City of El Paso v. Heinrich , 284 S.W.3d 366, 373 n.6 (Tex. 2009). The law has been evolving on the question of whether the Act waives governmental immunity against a claim seeking only the interpretation of a statute or a declaration of a party’s statutory rights. In the past, we have said that the Act waiv es governmental immunity against–8– such claims. See, e.g. , City of Seagoville v. Lytle , 227 S.W.3d 401, 410 (Tex. App.—Dallas 2007, no pet.) (“A declaratory judgment action agains t the government seeki ng a declaration of a party’s rights and status under a statute is not barred by gover nmental immunity.”); Bell v. City of Grand Prairie , 221 S.W.3d 317, 324 (Tex. App.—Dallas 2007, no pet.) (same); City of Dallas
v. Martin , 214 S.W.3d 638, 644 (Tex. App.—Dallas 20 06) (“[T]here is no governmental immunity in suits to construe legislation.”), rev’d on other grounds , 361 S.W.3d 560 (Tex. 2011). Some Texas Supreme Court cases seemed to support this interpretation of the law of immunity. See, e.g. , Tex. Lottery Comm’n v. First State Bank of DeQueen , 325 S.W.3d 628, 634–35 (Tex. 2010); Tex. Natural Res. Conservation Comm’n v. IT–Davy , 74 S.W.3d 849, 859– 60 (Tex. 2002); Tex. Educ. Agency v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994). But our statements that governmental immunity does not bar suits to co nstrue statutes or declare parties’ statutory rights were contradicted by th e supreme court in Heinrich and in Texas Department of Trans portation v. Sefzik , 355 S.W.3d 618 (Tex. 2011) (per curiam). In Heinrich , the court held that the governmental entity retains its immunity from suit when the claimant does not challenge the validity of a statute but rather challenges a government officer’s application of a statute to the claimant. 284 S.W.3d at 372–73 & n.6. The claimant’s remedy is an ultra vires suit against the government officer in his or her official capacity for prospective relief. Id . at 369–74. In Sefzik , the court explained and amplified Heinrich , stating that the Declaratory Judgments Act “does not waive the state’s sove reign immunity when the plaintiff seeks a declaration of his or her rights under a statute or other la w.” 355 S.W.3d at 621. 3 When the plaintiff’s complaint is that a state official ha s “trampled on the plain tiff’s rights,” the proper defendant is the official, notthe state agency itself. Id

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3 This statement in Sefzik is the opposite of, and thus disapproves, our statements in Lytle and Bell that governmental immunity does not bar a suit against a governmental entity seeking a declarati on of a party’s rights and status under a statute. See Lytle , 227 S.W.3d at 410; Bell , 221 S.W.3d at 324.–9– Thus, in City of Dallas v. Turley , we recognized that Heinrich had pruned back our expansive holdings regarding the waiv er of immunity found in cases like Bell , Lytle , and Martin

. 316 S.W.3d 762, 770–71 & n.5 (Tex. App.—D allas 2010, pet. denied). In Kaufman County v. Combs , we further recognized that Sefzik means the Declaratory Judgments Act “does not waive governmental immunity when a plaintiff seeks a declaration of rights under a statute or other law,” 393 S.W.3d 336, 343 (Tex. App.—Dallas 2012, pet. denied), and we also noted that the Act’s waiver “is limited to claims challengi ng the validity of ordina nces or statutes,” id . at 342. Finally, and most recently, we reviewed the Leeper , IT–Davy , and First State Bank of DeQueen opinions anew and concluded that they do not support the proposition that governmental immunity is waived whenever a party seeks an interpretation of a statute or ordinance. City of Dallas v. Tex. EZPAWN, L.P. , No. 05-12-01269-CV, 2013 WL 1320513, at *2–3 (Tex. App.— Dallas Apr. 1, 2013, no pet.) (mem. op.). Thus, we held that governmental immunity was not waived as to Texas EZPAWN’s suit seeking an interpretation of an ordinance and a declaration that the ordinance di d not apply to it. Id . at *3; see also Scott-Nixon v. Tex. Higher Educ. Coordinating Bd. , No. 03-10-00377-CV, 2012 WL 1582270, at*3 (Tex. App.—Austin May 4, 2012, no pet.) (mem. op.) (“[C]laims that seek to rest rain actions that allege dly violate or exceed authority under a statute but do not challenge the validity of th e statute . . . cannot be brought against the state, which retains immunity . . . .”) (internal quotations omitted). To summarize, the Declaratory Judgments Act waives governmental immunity against claims that a statute or ordinance is invalid. Heinrich , 284 S.W.3d at 373 n.6. The Act does not waive immunity against claims seeking a declaration of the claimant’s statutory rights or an interpretation of an ordinance. Sefzik , 355 S.W.3d at 621 (declaration of rights); Tex. EZPAWN , 2013 WL 1320513, at *2–3 (interpretati on of an ordinance). The Act also does not waive a governmental entity’s immunity agai nst a claim that government actor s have violated the law.–10– Heinrich , 284 S.W.3d at 372–73; Scott-Nixon , 2012 WL 1582270, at *3. But immunity does not bar a suit for prospective injunctive relief against government actors in their official capacity for violating the law. Heinrich , 284 S.W.3d at 373–77. B. Application of the law to HRG’s live pleading We now apply the law of governmental imm unity to each of HRG’s claims, dividing them into claims for declaratory, injunctive, and monetary relief. 1. Declaratory judgment First, HRG seeks a declaratory judgment ag ainst the City. Specifically, HRG prays for the following declarations: 1.) the City is attempted [sic] to enfor ce its list of alleged violation[s] with unenforceable provisions of the Code of Ordinances, City of McKinney, Texas; 2.) the City attempted to enforce its list of alleged violations with inapplicable International Electrical, Build ing, Plumbing and Fire Codes; 3.) the City attempted to enforce it [s] list of alleged violations with inapplicable provisions of the Intern ational Electrical, Building, Plumbing and Fire Codes; 4.) the City failed to follow its own pr ocedures for handling code disputes under the ICC fire code; 5.) the City entered without permi ssion, invitation, or probable cause the property of Hank’s Texas Grill; 6.) the City has stopped people leavin g Hank’s Texas Grill without probable cause; and, 7.) the City’s conduct was eg regious and inequitable. As discussed above, the City does not enjoy immunity from declaratory-judgment claims challenging the validity of City ordinances, but the City is immune from claims seeking interpretations of City ordinances , declarations of HRG’ s statutory rights, a nd declarations that City officials have violated or are violating the law. See Sefzik , 355 S.W.3d at 621; Heinrich , 284 S.W.3d at 372–73; Tex. EZPAWN , 2013 WL 1320513, at *2–3. Categories two through–11– seven of HRG’s prayer for declarat ory relief all involve claims that City officials are violating or misapplying the law in some respect. Accordingly, the City is immune from those claims unless some other waiver of immunity applies. In its first request for declaratory relief, HRG seeks a declaration that the City is attempting to enforce “unenforceable provisions of the Code of Ordinances” against HRG. HRG does not specify which ordinances are unenforceab le, nor does it specify why these ordinances are unenforceable. To avoid the bar of immun ity, HRG must challenge the ordinances because they are invalid for some reason. Because HR G does not plead specifically that any City ordinances are unenforceable b ecause they are invalid, we c onclude its first request for declaratory relief does not affirmatively demonstr ate that the claim is outside the scope of the City’s governmental immunity. But its firs t claim for declaratory judgment does not affirmatively demonstrate that it is barred by immunity either. Accordingly, although the trial judge should not have denied the City’s pleas to the jurisdicti on as to the first request for declaratory judgment, HRG is entitl ed to an opportunity to amend. See Miranda , 133 S.W.3d at
226–27. We next consider HRG’s arguments that th e City’s immunity to HRG’s declaratoryjudgment claims has been waived under other legal theories. a. Waiver of immunity by inequitable conduct HRG’s main argument against the City’s asse rtion of immunity is that the City has waived its immunity through its eg regious, intentional, and inequi table course of conduct. For purposes of this argument, we assume the truth of HRG’s factual allegati ons that the City has attempted to force the closure of Hank’s Te xas Grill through a campaign of harassment and intimidation of HRG, its employees, and its cust omers. The specific incidents alleged by HRG include two occasions on which City police officers detained HRG managers, multiple occasions–12– when police or fire officials stopped live-musi c performances without warrants to do so, and instances of police intimidation of customers by oppressive surveillance of the parking lot and by stopping customers as they were leaving the rest aurant. HRG also alleges that the City has changed the occupancy load for Hank’s Texas Grill several times and that the City is trying to compel HRG to fix numerous alleged code violati ons that are not actually violations because the code provisions are inapplicable or unenforceable. HRG relies on dicta in two Texas Supreme Co urt cases to support the proposition that there is an inequitable-conduct exception to governmental immunity. See Catalina Dev., Inc. v. Cnty. of El Paso , 121 S.W.3d 704 (Tex. 2003); Fed. Sign v. Tex. S. Univ. , 951 S.W.2d 401 (Tex. 1997). In each case, a claimant su ed a governmental entity for breach of contract, fa iled to prove a legislative waiver of immunity from suit, and argued that the court should establish an equitable doctrine of waiver by conduct applicable to its contract claim. Catalina Dev. , 121 S.W.3d at 705–06; Fed. Sign , 951 S.W.2d at 403–05. In each case, the court held that there was no waiver by conduct on the facts of the case. Catalina Dev. , 121 S.W.3d at 706–07; Fed. Sign , 951 S.W.2d at 408 & n.1. In Federal Sign , the court left th e door open to th e possibility of waiver by conduct under some ci rcumstances: “There may be ot her circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.” 951 S.W.2d at 408 n.1; see also Catalina Dev. , 121 S.W.3d at 705 (quoting footnote 1 of Federal Sign ). We reject HRG’s waiver-by-conduct argument. First, the supreme court has never held that such a doctrine exists, and the court recentl y emphasized that waivers of immunity generally should be left to the legislature. See Sharyland Water Supply Corp. v. City of Alton , 354 S.W.3d 407, 414 (Tex. 2011). Any judicial abrogation of governmental immu nity should be undertaken by the supreme court. See Leach v. Tex. Tech Univ. , 335 S.W.3d 386, 401 (Tex. App.—Amarillo–13– 2011, pet. denied) (stating that the existence of waiver-by-conduct doctrine “is a matter for the Supreme Court (or Texas Legislat ure) to resolve”). Moreover, judicial discussions of the possibility of waiver by conduct se em to have arisen only in th e context of breach-of-contract claims. See, e.g. , Sharyland Water Supply Corp. , 354 S.W.3d at 414; Catalina Dev. , 121 S.W.3d at 705; Fed. Sign , 951 S.W.2d at 408 & n.1. HRG cites only one intermediate appellate decision adopting the waiver-by-conduct doctr ine and applying it in favor of a claimant, and that was a breach-of-contract case. Tex. S. Univ. v. State St. Bank & Trust Co. , 212 S.W.3d 893, 904–08 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). We find no warrant in the limited case law on the subject to apply the waiver-by-conduct doctr ine to any legal theory except breach of contract. HRG has not pleaded a breach-of-contr act claim in this case. Finally, HRG proposes no principles or standards to guide or cons train the application of the waiver-by-conduct doctrine, and the amorphous nature of the doc trine further weighs against its adoption. For all these reasons, we reject HRG’s cont ention that it has su ccessfully pleaded a waiver of immunity by inequitable conduct. b. Waiver under Chapter 245 of the Texas Local Government Code HRG also argues that its claims come within the waiver of immunity found in section 245.006 of the local government code. Chapter 245 of the code is entitle d “Issuance of Local Permits,” and it has been called the “Vested Rights Act.” See Md. Manor Assocs. v. City of
Houston , 816 F. Supp. 2d 394, 409 (S.D. Tex. 2011). Chap ter 245 establishes a general rule that municipal regulatory agencies must consider a permit application under the terms of the ordinances, rules, and other appl icable regulations that are in effect at the time the permit application is filed. See generally T EX
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. G OV ’ T C ODE A NN . § 245.002(a) (West 2005). Certain permits and certain kinds of regulations are exempted from Chapter 245’s operation. See id . § 245.004. Chapter 245 may be enforced only thr ough mandamus or declarat ory or injunctive–14– relief, and “[a] political subdivision’s immunity fr om suit is waived in regard to an action under” Chapter 245. Id . § 245.006(a), (b). Relying on section 245.006, HRG argues that the City is not immune from HRG’s claims seeking declarations that the Ci ty is improperly seeking to enforce against HRG certain codes and ordinances that were not in effect when HRG applied for its permits in 2002. The first three categories of declaratory relief sought by HRG in th e prayer of its live pl eading potentially fit the section 245.006 waiver: (1) the City is attempting to enforce unenforceable ordinances against HRG, (2) the City is attempting to enforce inap plicable electrical, building, plumbing, and fire codes against HRG, and (3) the City is atte mpting to enforce inapplicable provisions of electrical, building, plumbing, and fire codes against HRG. Categories four through seven 4 clearly are not claims under Ch apter 245, so section 245.006 does not waive the City’s immunity as to those claims. The City does not address Chapter 245 in its opening brief, but in it s reply brief it argues that none of HRG’s declarator y-judgment claims qualify for the section 245.006 waiver of immunity because all of those claims are ex empted from Chapter 245 by section 245.004. The City relies specifically on the fo llowing provisions of section 245.004: This chapter does not apply to: (1) a permit that is at least two years old, is issued for the construction of a building or structure intended for human occupancy or habitation, and is issued under laws, ordinances, procedures, ru les, or regulations adopting only: (A) uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; or (B) local amendments to those codes enacted solely to address imminent threats of destruction of pr operty or injury to persons;

4 To reiterate, these are claims for declar ations (4) that the City failed to follow its own procedures for handling code disput es under the ICC fire code, (5) that the City entered Hank’ s Texas Grill without permissi on, invitation, or probable cause, (6) that the City ha s stopped people leaving Hank’s Texas Grill without probable cause, and (7) th at the City’s conduct was egregious and inequitable.–15– (2) municipal zoning regulations that do not affect la ndscaping or tree preservation, open space or park dedication, property classification, lot size, lot dimensions, lot coverage, or building si ze or that do not change development permitted by a restrictive covena nt required by a municipality;

. . . (6) fees imposed in conjunction with development permits;

. . . (8) regulations for utility connections;

. . . or (11) regulations to prevent the imminent destruction of property or injury to persons if the regulations do not: (A) affect landscaping or tree preservation, open space or park dedication, lot size, lot dimensions, lot coverage, building size, residential or commercial density, or the timing of a project; or (B) change development permitted by a restrictive covenant required by a municipality. Id . § 245.004. To invoke the waiver of immunity found in section 245.006, HRG should allege facts sufficient to demonstrate that its declaratory-judg ment claims come within the scope of Chapter 245, including facts sufficient to demonstrate that the exemptions found in section 245.004 do not apply to HRG’s claims. See Turley , 316 S.W.3d at 767 (“The plaintiff bears the burden to plead facts that affirmatively demonstrate that gove rnmental immunity has been waived . . . .”). Given the detailed exemptions found in sectio n 245.004 and the vagueness of HRG’s first three requests for declaratory relief, we conclude that HRG’s pleading does not contain sufficient facts to affirmatively demonstrate the propriety of the trial court’s jurisdiction under Chapter 245. But HRG’s pleading also does not affirmatively dem onstrate incurable defect s in jurisdiction. Accordingly, HRG must be given an opportunity to replead those claims. See Miranda , 133 S.W.3d at 226–27.–16– c. Waiver by pleading affirmative claims HRG argues that the trial judge properly deni ed the City’s pleas to the jurisdiction because the City waived its immunity by se eking affirmative relief. HRG relies on Reata Construction Corp. v. City of Dallas , 197 S.W.3d 371 (Tex. 2006). In that case, the court held that when a governmental entity sues a defendant for damages, the entity has no immunity from counterclaims that are connected to, germane t o, and properly defensive to the matters on which the entity bases its claim for damages. Id . at 377. The entity rema ins immune, however, from a counterclaim for damages in excess of the amount su fficient to offset the entity’s recovery, if
any. Id . Thus, the Reata rule does not permit an affirmative recovery against a governmental entity; it permits only an offset ag ainst the entity’s recovery, if any. We have found no cases holding that a government al entity’s filing of affirmative claims under the Declaratory Judgments Act waives th e entity’s immunity from declaratory-judgment counterclaims under Reata . Since Reata , the supreme court ha s indicated that the Reata rule is limited to offsetting counterclaims for monetary relief. In Albert , the supreme court said, “a governmental entity does not have immunity from suit for monetary claims against it that are ‘germane to, connected with, and properly defensive to’ affirmative claims made by the entity, to the extent the claims against the entity offset th e entity’s claims.” 354 S.W.3d at 372 (emphasis added) (quoting Reata , 197 S.W.3d at 378). We conclude a governmental entity’s affirmative claim for declaratory relief does not have any e ffect on the entity’s immun ity from counterclaims for declaratory relief. d. Conclusion The trial judge erred by denying th e City’s pleas to the jurisd iction with respect to HRG’s claims for declaratory judgment. But because HRG may be able to plead declaratory-judgment–17– claims against the City that are not barred by immunity, we will remand so that the trial judge may afford HRG a reasonable opportunity to amend its pleadings. 2. Injunctive relief HRG also seeks temporary and permanent injunc tive relief against th e City. Specifically, HRG seeks temporary and permanent injunctions prohibiting the City from the following conduct: (1) undertaking any enforcement efforts regarding the items att ached to the City’s August 9, 2012 letter until the City has complied w ith the board-of-appeals procedure set out in the fire code; (2) undertaking any enforcement e fforts in connection with items described as violations in the City’s August 9, 2012 letter; (3) forcing HR G to provide a fire watch if HRG is in compliance with the occupancy load set by the City on December 17, 2008; and (4) undertaking any enforcement efforts for wh ich no demand for compliance has been made. HRG also seeks an injunction (5) ordering City police and fire pe rsonnel to stay out of HRG’s property without permission, an invitation, or pr obable cause, and (6) orde ring the City’s police department to refrain from st opping anyone leaving Hank’s Texas Grill without probable cause. In the past, we have said that governme ntal immunity does not bar a claim that a municipality has misinterpreted the law and that includes requested injunctive relief. Anderson , 236 S.W.3d at 483–84. But, as explained above, the supreme court has clarified the law of government immunity in Heinrich . Under that case, governmental entities retain immunity from claims for injunctive relief based on allegations that government o fficials are viola ting the law or exceeding their powers under the law. See 284 S.W.3d at 372–73. Such claims must be brought against the responsible government act ors in their official capacities. See id . All of HRG’s claims for injunctive relief are directed to requiring City officials and empl oyees to comply with the law. Under Heinrich , the City retains its immunity from HRG’s claims for injunctive relief.–18– We have already analyzed HRG’s arguments th at the City’s immunity from suit has been waived by the City’s inequitable conduct, by Chap ter 245 of the local government code, and by the City’s assertion of affirmative claims for reli ef. The same analysis applies to HRG’s claims for injunctive relief. HRG’s arguments base d on inequitable conduct and on the City’s affirmative claims for relief are without merit. HRG’s pleadings are not sufficient to establish a waiver of immunity under Chapter 245, but it is en titled to an opportunity to amend its pleadings. Accordingly, we conclude that the trial judge e rred by denying the City’s pleas to the jurisdiction as to HRG’s claims for injunctive relief, an d we will remand so th at HRG may have an opportunity to replead. 3. Monetary relief The City asserts that it is im mune from HRG’s suit “to the ex tent [HRG] is attempting to allege a claim for damages.” This formulation highlights a threshold question, which is whether HRG is actually asserting a claim for money damages against the City at all. We conclude that HRG has pleaded a claim for money damages. HRG’s live pleading is not a model of clarit y. Sections I through VII of the pleading comprise HRG’s answer to the City’s lawsuit. Section VIII is entitle d “Factual Background to Answer, Counterclaims and Request for Injunctiv e Relief.” After a long factual recitation making up the bulk of section VIII, HRG alleges th at the City’s conduct has proximately caused damages to HRG that are “in excess of the minimu m jurisdictional limits of the Court but do not exceed $250,000.00.” Section IX is entitled “C ounterclaim,” and it c onsists of a single paragraph requesting declarator y relief. Section X is entit led “Application for Temporary Injunction and Permanent Injunction,” and although HRG devotes most of that section to describing the desired injunctive relief, sectio n X also contains one sentence mentioning attorneys’ fees: “The nature of the lawsuit will be for declaratory relief and attorney fees–19– incurred in response to the enforcement actions .” HRG’s prayer for relief does not contain a request for damages or attorney s’ fees. HRG’s prayer is de voted mostly to specifying the declaratory and injunctive relief de sired, and it conclude s with a general pray er for “such other and further relief, in law or in equity, to which [HRG] may show itself justly entitled.” The trial judge apparently construed HRG’s pleadings to in clude a request for mone tary relief. In his order denying the City’s pleas to the jurisdiction, the judge recited that HRG could “offset its claims for monetary relief up to an amount not exceeding the amount n ecessary to offset the City’s monetary claims.” In its appellate brief, HRG says little about its clai m, if any, for monetary damages. HRG does not mention any such claim in its statement of the facts. In its summary of the argument, HRG says only that it is entitledto mount a defense against the Ci ty’s lawsuit, “a defense which can include both declarat ory and injunctive relief and, [HRG ] contends, monetary damages.” Finally, in a heading that appears in the argument section of its brief, HRG asserts that the “Trial Court Properly Denied the City’s Plea to the Jurisdiction Regarding Hank’s Alleged Claim for Monetary Relief.” (Emphasis added.) Even this heading is ambiguous—it seems to be an averment that HRG has alleged a claim for monetary relief, but it could mean only that the City alleges that HRG has made a claim for monetary relief. Construing HRG’s pleading in favor of HRG a nd attempting to discern HRG’s intent, we conclude that HRG intended to plead a claim for damages against the City. We base our conclusion principally on paragraph 36 of sec tion VIII of HRG’s pleading, which reads, “[HRG] has been damaged. These damages proximately caused by the conduct of the City are in excess of the minimum jurisdictiona l limits of the Court but do not exceed $250,000.00.” HRG had no reason to aver that its damages were in excess of the minimum jurisdictional limits of the trial court unless HRG intended for the court to awar d damages to HRG. Thus, we construe HRG’s–20– live pleading to assert a claim for damages ba sed on the facts alleged by HRG. We do not, however, construe HRG’s pleading as including a claim for attorney s’ fees. The only mention of attorneys’ fees in the pleading is a statement that the “nature” of HRG’s lawsuit “will be for declaratory relief and attorney fees.” A statemen t that HRG will, in the future, make a claim for attorneys’ fees is not an actual claim for attorn eys’ fees. HRG makes no request for attorneys’ fees in its prayer for relief, and a “general prayer for relief will not support an award of attorney’s fees because it is a request for affirmative relief th at must be supported by the pleadings.” Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd. , 287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.). The City argues that it is immune from HRG’s claim for damages (1) because HRG has pleaded no legislative waiver of immunity from suit, and (2) because the rule of Reata Construction Corp. , does not apply given the pr ocedural posture of this case. As to the City’s first argument, HRG argues that the City’s i mmunity to HRG’s claim for damages has been waived by the City’s inequitable conduct and by Chapter 245 of the local government code. We have already rejected HRG’s waiver-by-conductargument. HRG’s argument based on Chapter 245 is also unavailing. Section 245.006(a) is clear: “This chapte r may be enforced only through mandamus or declaratory or injunctive relief.” T EX
. L OC

. G OV ’ T C ODE A NN . § 245.006(a). Thus, the Chapter 245 waiver of the City’s immunity does not waive the City’s immunity from a suit for damages. We agree with the City that HRG has not pleaded a legislative waiver of the City’s governmental immunity to suit for damages. We turn to the City’s second argument, which addresses the Reata doctrine. Under
Reata , a governmental entity is not immune from suit for monetary claims against it that are “‘germane to, connected with, and properly defensive to’ affirmative claims made by the entity, to the extent the claims against the entity offset the entity’s claims.” Albert , 354 S.W.3d at 372–21– (quoting Reata Constr. Corp. , 197 S.W.3d at 378). The City contends that its claims for attorneys’ fees under the Declar atory Judgments Act do not qualify as “affirmative claims” under the Reata rule. It relies on Texas Department of Criminal Justice v. McBride , 317 S.W.3d 731 (Tex. 2010), and City of Dallas v. VRC LLC , 260 S.W.3d 60 (Tex. App.—Dallas 2008, no pet.), for support. In McBride , a claimant sued the TDCJ for declaratory judgment and injunctive relief, and the TDCJ answered, asserted soverei gn immunity, and requested its attorneys’ fees. 317 S.W.3d at 732. The supreme court held that the TDCJ’s request for fees did not result in a waiver of immunity under Reata

. Id . at 732–33. The court distinguished Reata on the basis that the TDCJ’s request for fees was “purely defe nsive in nature, unconnect ed to any claim for monetary relief.” Id . at 733. In VRC , we likewise held that a defe ndant municipality’s defensive request for attorneys’ fees did not waive i mmunity. 260 S.W.3d at 64. Thus, the City’s defensive request for fees in its answer to HR G’s first-filed lawsuit triggered no waiver of immunity. But unlike the fee claims in McBride and VRC , the City’s requests for fees in this case are not solely defensive. In this consolidated case, the City seeks to recover not only attorneys’ fees incurred in defending HRG’s suit but also its f ees incurred in prosecuting its own affirmative claims against HRG. The consolidation of the two suits did not change the substance of the parties’ claims; it merely merg ed the two suits into one. See Perry v. Del Rio , 53 S.W.3d 818, 825 n.6 (Tex. App.—Austin) (“When actions are prope rly consolidated they become merged and are thereafter treated as one suit . . . .”) (internal quot ations and citation omitted), pet. dism’d , 66 S.W.3d 239 (Tex. 2001). So the question is whethe r the City’s claim for attorneys’ fees under the Declaratory Judgments Act, asserted in its own lawsuit against HRG, constituted an affirmative claim for relief under Reata . We conclude that it did. In Reata , the court said, “Once it asserts affirmative claims for monetary recove ry, the City must partic ipate in the litigation–22– process as an ordinary litigant, save for the limitation that the C ity continues to have immunity from affirmative damages claims against it fo r monetary relief exceedi ng amounts necessary to offset the City’s claims.” 197 S.W.3d at 377. Here, the City’s request for attorneys’ fees incurred in prosecuting the City’s claims ag ainst HRG constitutes an affirmative claim for monetary recovery. Accordingly, HRG may asse rt its own damages claims against the City defensively as an offset against the City’s recove ry, if any, of attorneys’ fees. Of course, those damages claims must also satisfy the Reata criterion of being “germane to, connected with and properly defensive to” the City’s claims. Id . But the City does not argue on appeal that HRG’s claims fail to satisfy this test, so we express no opinion on this question. For the foregoing reasons we reject the City ’s argument that the trial judge erred by denying the City’s plea to the jurisdiction as to HRG’s claim for damages up to the amount necessary to offset the City’s claims.
IV. T HE C ITY ’ S O THER A RGUMENTS The City raises four additional arguments attacking the trial court’s subject-matter jurisdiction specifically over HRG’s claims for in junctive relief. We discuss them briefly. First, the City argues that the trial court has no jurisdiction to en join the City from enforcing penal ordinances because HRG ha s not alleged that any ordinances are unconstitutional or that enforcement of the ordi nances would irreparably injure HRG’s vested property rights. See State v. Morales , 869 S.W.2d 941, 942 (Tex. 1994) (setting forth circumstances under which civil courts have juri sdiction to enjoin enfo rcement of criminal statutes). We note that the City does not cite a ny particular ordinances in connection with this argument, nor does it demonstrate that any of the ordinances involved in this case are penal ordinances within the meaning of Morales . HRG’s live pleading does not contain a request for an injunction against the enforcement of any particular City ordinance. Accordingly, the City–23– has not shown any error in the trial judge’s ruling under Morales . In the event HRG repleads its claims for injunctive relief, the City can rea ssert in the trial cour t its argument based on Morales

. Next, the City argues that the trial court does not have subject-matter jurisdiction to issue an injunction that orders the con tinuation of a violation of law. We disagree. The authorities cited by the City do not support th e proposition that an injunction ordering the continuation of an illegal act suffers from a jurisdictional defect. They hold only that such an injunction would be

erroneous. See, e.g. , Ahmed v. Shimi Ventures, L.P. , 99 S.W.3d 682, 692 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“A trial co urt . . . abuses its discretion when it issues an injunction that orders an illegal act, even when done in the name of preserving the status quo.”). We reject the City’s argument. Next, the City argues that the trial court lacks jurisdiction to enjoin the City from enforcing the alcoholic beverage code or state food-establishmen t regulations. HRG responds by denying that it intends to seek j udicial protection against enforcem ent of those state laws. HRG also argues that the C ity’s argument goes to the propriety of the injunctive relief sought, not to the trial court’s jurisdiction. Th e City cites no authority to support the proposition that the trial court lacks jurisdiction to enjoin a municipality from enforcing state laws, and we have found none. We conclude that, although such an injuncti on might be erroneous and reversible, the trial court does not lack subject-matter jurisdiction to rule on a request for such an injunction. Finally, the City argues that the trial court la cks jurisdiction to enjoin the City’s police department from stopping anyone leaving Hank’s Te xas Grill without probabl e cause. The City contends that HRG lacks standing to assert such a claim. The City’s entire argument consists of four sentences—three sentences setting forth ab stract propositions of the law of standing, and one sentence stating the conclusion that HRG lacks standing to seek this relief. The City provides no analysis explaining how the general law of standing s hould apply to this case. Nor–24– does the City explain why HRG’s assertion that the police department’s conduct is harming HRG’s business is not sufficient to confer standi ng on HRG at the pleading st age of the case. In sum, the City’s briefing of this argument is inadequate, so we do not address it. See In re Estate of Miller , 243 S.W.3d 831, 840 (Tex. App.—Dallas 2008, no pet.) (concluding that issue was waived because appellant did not analyze legal au thority and made “no suggested application of it to the facts”); In re M.A.S. , 233 S.W.3d 915, 924 (Tex. App.—Dallas 2007, pet. denied) (“Failure to provide substantive anal ysis waives an issue on appeal.”).
V. D ISPOSITION We affirm the trial judge’s order denying the Ci ty’s pleas to the jurisdiction to the extent the judge ruled that HRG could proceed with its claims for monetary relief in an amount not to exceed the amount necessary to offset the City’s cl aim for attorneys’ fees in connection with the City’s affirmative claim for declaratory relief. We reverse the part of the trial court’s order denying the City’s pleas to the jurisdiction with respect to HRG’s claims for declaratory judgment and injunctive relief. We render judg ment dismissing HRG’s claims for declaratory judgment that (1) the City failed to follow its own procedures for handling code disputes under the ICC fire code; (2) the City entered withou t permission, invitation, or probable cause the property of Hank’s Texas Grill; (3) the City has stopped people leavi ng Hank’s Texas Grill without probable cause; and, (4 ) the City’s conduct was egre gious and inequitable.–25– We remand this cause to the trial court so that the trial court may give HRG an opportunity to amend its pleadings with respect to its other claims for declaratory judgment and with respect to its claims for injunctive relief.

121359F.P05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–26– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CITY OF MCKINNEY, TEXAS, Appellant No. 05-12-01359-CV V. HANK’S RESTAURANT GROUP, L.P., Appellee On Appeal from the 366th Judicial District Court, Collin County, Texas Trial Court Cause No. 366-03124-2012. Opinion delivered by Justice FitzGerald. Justice Lewis participating.
In accordance with this Court’s opinion of th is date, the trial court’s Order Denying Plea to the Jurisdiction is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s Order denying appellant City of McKinney, Texas’s pl ea to the jurisdiction with respect to appellee Hank’s Restaurant Grou p, L.P.’s claims for declaratory judgment and injunctive relief. We RENDERjudgment dismissing appellee Hank’s Restaurant Group, L.P.’s claims for declaratory judgment that (1) the City failed to follow its own procedures for handling code disputes under the ICC fire code; (2) the City entered without permission, invitation, or probable cause the property of Hank’s Texas Gr ill; (3) the City has stopped people leaving Hank’s Texas Grill without probable cause; a nd, (4) the City’s conduct was egregious and inequitable. We REMAND this cause to the trial court so that the trial court may give appellee Hank’s Restaurant Group, L.P. an opportunity to amend its pleadings withrespect to its other claims for declaratory judgment and with respec t to its claims for injunctive relief. We AFFIRM the Order with respect to appellee Hank’s Restaurant Gr oup, L.P.’s claim for damages up to an amount not exceeding the amount necessary to offset the City’s monetary claims. It is ORDERED that appellant City of McKinney, Texa s recover its costs of this appeal from appellee Hank’s Restaurant Group, L.P.
Judgment entered September 18, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–27–