Supreme Court of Texas

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No. 22-0202

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The City of Austin, Texas, 

Petitioner,

v.

Irene Quinlan, 

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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Argued March 23, 2023

JUSTICE LEHRMANN delivered the opinion of the Court.

The Texas Tort Claims Act waives governmental immunity from 

suit in certain circumstances, but the Act generally does not apply to a 

governmental unit’s failure to perform an act that the unit has 

discretion not to perform. In this premises-liability case, the City of 

Austin asserts immunity from the plaintiff’s claim that the City 

negligently maintained a permitted sidewalk cafe. The agreement 

between the City and the permit-holder restaurant delegated 

maintenance responsibilities to the restaurant and lacked any terms 
2

requiring the City to ensure the restaurant’s compliance with those 

responsibilities. A divided court of appeals held that the City 

nevertheless had a legal duty to ensure the restaurant fulfilled its 

maintenance obligations and that the Act thus waived the City’s 

governmental immunity. Because we hold that the City had discretion 

to enforce or monitor the restaurant’s compliance—but was not required 

to do so—we reverse.

I. Background

Irene Quinlan was dining at Güero’s Taco Bar on South Congress 

in Austin. After exiting the restaurant, Quinlan fell more than a foot 

from the sidewalk to the street, injuring her ankle.

The restaurant maintains a sidewalk cafe between its front door 

and the street. The sidewalk cafe includes several tables, chairs, and 

potted plants. The sidewalk is level with the restaurant entrance but 

elevated more than a foot above the street. When the incident occurred, 

no railing or barrier was in place preventing patrons from proceeding 

directly from the restaurant to the street.

Güero’s has a permit from the City of Austin to operate its 

sidewalk cafe. To obtain the permit, the restaurant entered into a 

“Sidewalk Café Maintenance Agreement” with the City. The Agreement 

authorizes Güero’s to use a designated “‘Right-of-Way’ . . . for the sole 

purpose of constructing, installing, operating, maintaining and 

repairing a temporary sidewalk cafe for food and beverage service, 

consisting of decking, fencing, tables, chairs and other necessary 

facilities as described and depicted in [a sketch attached as] Exhibit ‘A.’” 

Güero’s is responsible for the operation and maintenance of those 
3

facilities, and the furnishings on the premises may not extend outside 

the permitted area or “constitute a danger to the health or safety of a 

patron or the public.” Güero’s is also responsible for keeping the 

sidewalk cafe clean and free of litter. The City, however, has the right 

to enter the sidewalk cafe premises to inspect, improve, maintain, alter, 

or utilize the premises to ensure the restaurant’s compliance with the 

Agreement. Should the City determine that any of the improvements

must be removed or modified, Güero’s is responsible for paying all 

required costs. At its sole discretion, the City may revoke the permit for 

the restaurant’s noncompliance with the Agreement.

Quinlan sued both Güero’s and the City for premises liability, 

alleging that the City breached its duty of care by failing to install 

railings and failing to warn of the danger of the sudden drop from the 

sidewalk to the street. She further alleged that the City is liable under 

a joint-enterprise theory of liability with the restaurant.1

After Quinlan filed her third amended petition, the City filed a 

plea to the jurisdiction, asserting governmental immunity. In response 

to the City’s plea, Quinlan filed a fourth amended petition, which 

remains her live pleading. In that pleading, Quinlan added allegations 

that the City was negligent in failing to level the sidewalk with the 

street and in allowing the restaurant to maintain tables, chairs, and 

plants in a confusing manner that obstructed Quinlan’s view of the 

sharp drop at the edge of the sidewalk. She further alleged that the 

Agreement evidenced a maintenance policy affirmatively compelling the 

1 Quinlan’s claims against Güero’s are not before us, and we express no 

opinion on the merits of those claims.
4

City to ensure Güero’s operated a safe sidewalk cafe and that the City 

negligently implemented this policy by failing to do so.

The City responded with an amended plea to the jurisdiction, 

asserting that Quinlan’s additional arguments regarding the Agreement 

did not demonstrate a waiver of immunity. The trial court denied the 

City’s amended plea, and the City appealed. See TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(5) (providing a right to interlocutory appeal from a 

trial court order denying a governmental entity’s plea to the jurisdiction 

asserting governmental immunity).

The court of appeals affirmed in part and reversed in part. ___ 

S.W.3d ___, 2022 WL 261569, at *1 (Tex. App.—Austin Jan. 28, 2022). 

The court of appeals unanimously held that the City was immune from 

Quinlan’s claims premised on “discretionary design decisions regarding 

the safety features of the premises.” Id. at *5. This encompassed

Quinlan’s “allegations that the City ‘failed to install railings between 

the patio and the street,’ ‘failed to warn Plaintiff and other patrons of 

the danger of a sudden drop from the patio to the street,’ ‘failed to make 

level the patio and the street,’ and ‘was obligated to elevate the street 

and/or provide appropriate modifications to the patio and surrounding 

area to make such premises safe for patrons.’” Id. The court also 

unanimously held that immunity was not waived under a jointenterprise liability theory. Id. at *8–9. Quinlan did not petition for 

review of those portions of the court of appeals’ judgment, and they 

accordingly are not before us. See TEX. R. APP. P. 53.1. 

The court of appeals was divided on whether the City’s immunity 

was waived as to Quinlan’s claims “relating to the City’s alleged 
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negligent implementation of its policy regarding the maintenance of the 

premises.” 2022 WL 261569, at *9. The majority held that the City’s 

immunity was waived and Quinlan could proceed on those claims, 

concluding that the Agreement shows “a disputed material fact 

regarding . . . the degree to which the City exercised control over the 

maintenance of the premises.” Id. at *6. Justice Goodwin dissented, 

opining that the claim involving the City’s negligent implementation of 

policy was also barred by immunity. Id. at *9 (Goodwin, J., dissenting). 

The dissent argued that the pleadings and evidence conclusively 

establish that the City had discretion, as opposed to the obligation, to 

enforce or monitor the restaurant’s compliance with the Agreement. Id. 

at *10. As a result, the dissent would have held that the Tort Claims 

Act’s exception for discretionary acts applied and that the Act thus did 

not waive the City’s immunity. Id. at *10–11.

We granted the City’s petition for review.

II. Discussion

Governmental units, including political subdivisions, are 

generally immune from suit absent a legislative waiver. City of San 

Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). Because 

governmental immunity is jurisdictional, a governmental entity 

properly raises an immunity claim in a plea to the jurisdiction. Univ. of 

Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 

2019). We review a court’s ruling on a plea to the jurisdiction de novo. 

Id.
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A. The Tort Claims Act’s Discretionary-Function Exception

The Tort Claims Act waives governmental immunity with respect 

to certain personal-injury claims, including claims that an unreasonably 

dangerous condition of real property caused the plaintiff’s injury. See

TEX. CIV. PRAC. & REM. CODE § 101.021(2); see also id. § 101.022(a) 

(noting that, with certain exceptions, “if a claim arises from a premise 

defect, the governmental unit owes to the claimant only the duty that a 

private person owes to a licensee on private property, unless the 

claimant pays for the use of the premises”). Quinlan relies on that 

waiver to pursue her claims against the City. 

However, the Act does not apply to, and thus does not waive 

immunity from, claims based on the state’s failure to act when no 

particular action is required by law. Tarrant Reg’l Water Dist. v. 

Johnson, 572 S.W.3d 658, 662 (Tex. 2019). Proper application of this

“discretionary-function exception” to the Tort Claims Act is central to 

our resolution of this case. The exception provides:

This chapter [the Tort Claims Act] does not apply to a claim 

based on:

(1) the failure of a governmental unit to perform an act 

that the unit is not required by law to perform; or

(2) a governmental unit’s decision not to perform an act 

or on its failure to make a decision on the 

performance or nonperformance of an act if the law 

leaves the performance or nonperformance of the act 

to the discretion of the governmental unit.

TEX. CIV. PRAC. & REM. CODE § 101.056.

The issue here is whether the City was legally obligated to ensure 

the restaurant’s compliance with the Agreement, which delegates to the 
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restaurant the responsibility to maintain the permitted sidewalk cafe. 

Absent such an obligation, the Act’s discretionary-function exception 

forecloses an immunity waiver. See id. 

B. Analysis

In this Court, Quinlan maintains that the Tort Claims Act’s 

discretionary-function exception does not apply to her remaining claims. 

First, Quinlan asserts that the City had an obligation to enforce the 

restaurant’s compliance with the Agreement under the terms of the 

Agreement itself. Second, Quinlan argues that, irrespective of the 

Agreement’s terms, the City owed Quinlan a statutory duty of care that 

could not be delegated to the restaurant. Specifically, Quinlan argues 

that under Chapter 316 of the Transportation Code, municipalities have 

a nondelegable legal duty to protect the public from sidewalk cafes with 

dangerous conditions.2 The City disputes both contentions and argues 

that the Act does not apply to the City’s discretionary decisions 

regarding enforcement of the restaurant’s maintenance responsibilities 

under the Agreement.

We hold that the Agreement allows, but does not require, the City 

to monitor and enforce the restaurant’s maintenance obligations with 

respect to its operation of the sidewalk cafe. Further, we agree with the 

2 At oral argument, Quinlan’s counsel appeared to also argue—for the 

first time—that the obstructing tables and chairs were actually located off the 

permitted premises and on the portion of the sidewalk solely controlled by the 

City. This allegation does not appear in Quinlan’s live pleading, her response 

to the City’s plea to the jurisdiction, her briefing in the court of appeals, or even 

her briefing in this Court. Accordingly, we decline to consider it as a basis for 

waiving the City’s immunity. See TEX. R. APP. P. 33.1.
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City that the Transportation Code does not foreclose municipalities from 

delegating the maintenance of sidewalk cafes to permit holders, as the 

City has done.3 Because Quinlan’s claims are premised on the City’s

“failure . . . to perform an act that [it] is not required by law to perform,” 

id., the Act does not waive the City’s immunity from suit.4

1. The City’s Discretion to Enforce the Agreement

We first address whether the Agreement legally obligated the 

City to ensure the restaurant’s compliance with its maintenance 

obligations. Neither Quinlan nor the court of appeals identifies any 

maintenance- or inspection-related act that the City was affirmatively 

required to perform under the Agreement. Rather, the Agreement 

grants the City permission—but does not impose a contractual 

obligation—to conduct inspections and order additional maintenance as 

the City deems fit. And Quinlan has produced no evidence that the City 

ever actually exercised its permissive right to order the restaurant to 

maintain the sidewalk cafe in a particular way.

3 Quinlan does not argue that any other legal ground forecloses the City 

from contractually delegating its maintenance responsibilities to a private 

party in a manner that results in its immunity from suit by an injured third 

party. We therefore do not consider whether any such legal prohibitions exist 

and address only the arguments raised by the parties.

4 This case presents a somewhat unusual vehicle for considering the 

discretionary-function exception because, under the Agreement, a third party

(Güero’s) is obligated to maintain the sidewalk cafe. So, the City’s discretion 

concerns the extent to which it monitored a third party, not necessarily the 

City’s substantive determination about how the sidewalk cafe should be 

designed or maintained.
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The City of Austin City Code, which establishes the procedures 

by which the City issues sidewalk cafe permits and monitors permit 

holders, is also instructive. The Code gives the director of the Austin 

Transportation Department the power to issue sidewalk cafe permits. 

AUSTIN, TEX., AUSTIN CITY CODE, ch. 14-4, § 14-4-3 (2014). When making 

a permitting decision, the director must determine whether the 

proposed sidewalk cafe will create a hazardous condition and whether 

the proposal minimizes potential harm or injury to the public. Id. 

§ 14-4-8. But the applicant, not the director, is responsible for preparing 

a schematic design of the proposed cafe and determining “the number 

and placement of tables, chairs, and other furnishings.” Id. 

§ 14-4-7(B)(4)(A). Once the director issues the permit, the City Code 

imposes minimal monitoring procedures for permit holders, requiring 

them to either obtain preapproval from the City to rearrange or 

reconfigure furnishings or to promptly provide the department a sketch 

of the new placement. Id. § 14-4-14. And even here, City oversight is 

minimal; the onus is on the permit holder to ensure that the new 

furniture arrangement does not extend outside the permitted area, 

constitute a danger to a patron or the public, or violate the terms of the 

permit. See id.

In short, the Agreement grants the City a series of permissive 

rights without any corresponding obligation to enforce them. And 

neither the City Code nor any other evidence indicates the existence of 

a municipal policy to exercise those permissive rights on any systematic 

basis. See id. ch. 14-4. A right to ensure compliance with an Agreement 

is not a legal obligation to do so. We see no evidence that the City had 
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an affirmative policy of ensuring that its sidewalk cafe permit holders 

operated their permitted premises in a safe manner. The record thus 

does not support the court of appeals’ determination that Quinlan raised 

a fact issue on whether the City negligently implemented such a policy.

Quinlan relatedly argues that the City’s ultimate “control” over 

the sidewalk cafe under the Agreement alters this analysis by imposing 

a duty on the City to maintain the premises. We disagree. Whether a 

governmental entity controlled the premises is relevant to the merits of 

a cause of action premised on the Tort Claims Act’s waiver of immunity 

for premises-liability claims. See County of Cameron v. Brown, 80 

S.W.3d 549, 556 (Tex. 2002). But that is a separate inquiry from 

whether the Act’s discretionary-function exception applies. Again, that

exception expressly excludes claims from the Act’s immunity waiver 

when those claims are based on either (1) a governmental unit’s failure 

to perform an act that it is not required by law to perform or (2) the 

unit’s decision not to perform an act if the law leaves performance of the 

act to the unit’s discretion. See TEX. CIV. PRAC. & REM. CODE § 101.056. 

An entity’s “control” of the relevant premises does not foreclose 

application of the exception. See Johnson, 572 S.W.3d at 670–71. 

Finally, Quinlan’s and the court of appeals’ reliance on an 

apparent distinction between the City’s initial permitting decisions—

which they characterize as immune discretionary design decisions—and 

the City’s later decision not to compel Güero’s to install a railing or 

warning sign—which they characterize as a non-immune maintenance 

decision—is misplaced. See 2022 WL 261569, at *5. In Johnson, we 

recognized that a “sharp line between ‘design’ and ‘maintenance,’ under 
11

which anything on the ‘maintenance’ side of the line is not covered by 

the discretionary function exception,” is not supported by the statutory 

text. 572 S.W.3d at 665–66. Instead, a “design” versus “maintenance” 

analytical rubric is useful only to the extent to which it helps distinguish 

between discretionary and nondiscretionary government decisions. Id. 

The key inquiry here is whether the City had a legal obligation to compel 

Güero’s to install a railing or warning sign, not whether the decision to 

do so would more accurately be characterized as design or maintenance. 

As discussed, the record is devoid of evidence that the City had an 

affirmative obligation to monitor the safety of the sidewalk cafe.

2. The Transportation Code

Nevertheless, Quinlan argues that municipalities have a 

nondelegable duty under Chapter 316 of the Transportation Code to 

protect the public from sidewalk cafes with dangerous conditions. In her 

view, the nondelegable nature of this duty compels us to read the 

Agreement as creating a policy by which the City would fulfill its 

nondiscretionary obligation to monitor how restaurants like Güero’s 

operate their sidewalk cafes. We disagree. The relevant provisions of 

the Transportation Code, properly construed, do not support Quinlan’s 

position.

We interpret statutes by looking to their plain language and 

construing the text in light of the statute as a whole. Miles v. Tex. Cent. 

R.R. & Infrastructure, Inc., 647 S.W.3d 613, 619 (Tex. 2022). To that 

end, we give statutory terms their common, ordinary meaning unless 

either the text provides a different definition or the common meaning 

leads to an absurd result. Id. We may not impose our own judicial 
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meaning on a statute by adding extra-textual words or requirements.

Id. That said, we do not interpret statutes in strict isolation; rather, we 

interpret the statute’s words with reference to the Legislature’s broader 

statutory context. Id. We give effect to all the statute’s words without 

treating any language as surplusage, if possible. Hlavinka v. HSC 

Pipeline P’ship, LLC, 650 S.W.3d 483, 491 (Tex. 2022).

Chapter 316 of the Transportation Code provides comprehensive 

regulations governing a municipality’s process for permitting the “[u]se 

of municipal streets and sidewalks for public conveniences and 

amenities or for private uses.” TEX. TRANSP. CODE ch. 316.5 

Subchapter A applies to certain enumerated “public conveniences and 

amenities,” including sidewalk cafes, and provides a detailed framework 

under which municipalities may allow property owners or lessors “to use 

property in the municipality on which a municipal street is located” to 

establish or maintain the specified improvements. Id. § 316.002; see 

generally id. §§ 316.003–.010. Before authorizing such an improvement, 

the municipality must find that (1) it will not be located or extend upon 

the roadway or a part of the sidewalk needed for pedestrian use; (2) it 

“will not create a hazardous condition or obstruction of vehicular or 

pedestrian travel”; and (3) its design and location “includes all 

5 A “municipal street” is “the entire width of a way held by a 

municipality in fee or by easement or dedication that has a part open for public 

use for vehicular travel.” TEX. TRANSP. CODE § 316.001(1). It includes both 

the “roadway”—“the portion of a municipal street that is improved, designed, 

or ordinarily used for vehicular travel”—as well as the “sidewalk”—“the 

portion of a municipal street between the curb lines or lateral lines of a 

roadway and the adjacent property lines that is improved and designed for or 

is ordinarily used for pedestrian travel.” Id. § 316.001(2)–(3).
13

reasonable planning to minimize potential injury or interference to the 

public in the use of the [roadway or sidewalk].” Id. § 316.003. Further, 

the municipality may, by ordinance, establish a permit program 

governing the establishment and maintenance of such improvements. 

Id. § 316.004. 

Subchapter B consists of a lone provision, Section 316.021, and 

applies to the use of a municipal street or sidewalk for a “private 

purpose” as distinguished from the “public conveniences and amenities” 

described and governed by Subchapter A. See id. § 316.021. Section 

316.021 provides:

A municipality may permit and prescribe the consideration 

and terms for the use of a portion of a municipal street or 

sidewalk for a private purpose if the use does not:

(1) interfere with the public use of the street or 

sidewalk; or

(2) create a dangerous condition on the street or 

sidewalk.

Id.

The City established a permit program for sidewalk cafes under 

Subchapter A, and Quinlan does not assert that the City failed to comply 

with any of the program’s requirements, including making the finding 

that the sidewalk cafe at issue would not create a hazardous condition 

when the permit was issued and renewed. Instead, Quinlan relies on 

Section 316.021’s restriction on permitting private use of a municipal 

street if it “create[s] a dangerous condition on the street or sidewalk.” 

See id. Given Chapter 316’s structure, Section 316.021 does not appear 

to apply at all to the enumerated uses governed by Subchapter A’s much 

more detailed provisions. But even taking Section 316.021 into account, 
14

it must be viewed in the context of the chapter as a whole.6 The 

provisions in Subchapter A prescribe what a municipality must and may 

do in allowing the covered uses, and, again, there is no argument that 

the City violated any of those provisions. 

Further, Quinlan’s position that Section 316.021 creates a 

nondelegable, nondiscretionary duty renders at least one of 

Subchapter A’s specific provisions largely nugatory. For example, the 

Code provides that granting a sidewalk cafe permit does not “impair the 

right of a municipality . . . to abate an unlawful obstruction or use of a 

municipal street.” Id. § 316.009. Such a provision expressly allowing 

cities to remove obstructions is superfluous if, as Quinlan argues, those 

cities already have a nondelegable duty to remove obstructions under 

Section 316.021. See Hlavinka, 650 S.W.3d at 491 (“We give effect to all 

included words without treating any language as surplusage, if 

possible.”). 

In short, the Transportation Code allows municipalities to 

delegate the maintenance of sidewalk cafes to permit holders, and the 

jurisdictional facts pled here indicate that the City did so. And because 

neither the Agreement nor any city ordinance legally obligated the City 

6 Even looking at Section 316.021 in isolation, that provision imposes a 

condition on a municipality’s right to permit the private use of a municipal 

street or sidewalk. More specifically, municipalities may not permit the 

private use of municipal streets and sidewalks if the private use will create a 

dangerous condition. So, under Section 316.021, the City could not issue 

Güero’s a sidewalk cafe permit—or renew that permit—if the restaurant’s 

proposed private use would create a dangerous condition on the street or 

sidewalk. And again, Quinlan does not assert that the City improperly issued 

or renewed the restaurant’s permit.
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to intervene, the City’s decision not to do so was a discretionary act for 

which the City remains immune. See TEX. CIV. PRAC. & REM. CODE

§ 101.056.

C. Disposition

Because the City is immune from Quinlan’s remaining claims as 

pled, we must determine whether to dismiss those claims or remand to 

the trial court to give Quinlan an opportunity to replead. “When a 

plaintiff fails to plead facts sufficient to demonstrate the trial court’s 

jurisdiction, courts generally should afford the plaintiff the opportunity 

to replead unless ‘the pleadings affirmatively negate the existence of 

jurisdiction.’” Fraley v. Tex. A&M Univ. Sys., ___ S.W.3d ___, 2023 WL 

2618532, at *7 (Tex. Mar. 24, 2023). But when a governmental entity 

asserts immunity and the plaintiff fails to allege or show facts 

demonstrating a waiver of immunity after having a reasonable 

opportunity to conduct discovery directed to the issue, the case is 

appropriately dismissed. Tex. Dep’t of Crim. Just.–Cmty. Just. 

Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012).

The City filed its original plea to the jurisdiction nearly two years 

after Quinlan filed suit. Nearly six months later, Quinlan amended her 

petition for the fourth time in response to the City’s plea. Quinlan’s 

fourth amended petition differs from her third only in that it adds her 

negligent-implementation-of-policy claim. But as we outline above, 

Quinlan cannot establish that the Legislature has waived the City’s 

immunity from that claim. 

The City’s initial plea to the jurisdiction, filed approximately 

nineteen months after the start of the discovery period, placed Quinlan 
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on notice that her claims were subject to the discretionary-function 

exception to the Tort Claims Act. See Fraley, ___ S.W.3d at ___; 2023 

WL 2618532, at *7. She was given the opportunity to replead and did 

so, but she did not allege facts overcoming that exception. See id. 

Accordingly, we conclude that dismissal is appropriate. 

III. Conclusion

We hold that Quinlan has failed to plead a claim against the City 

for which the City’s immunity is waived. Accordingly, we reverse the 

court of appeals’ judgment in part and dismiss the remaining claims for 

lack of jurisdiction.

 

 Debra H. Lehrmann

 Justice

OPINION DELIVERED: June 2, 2023