Supreme Court of Texas
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No. 20-0725
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Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael
Knuffke, and Daniel Petri,
Petitioners,
v.
City of San Antonio,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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Argued October 28, 2021
JUSTICE HUDDLE delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby,
Justice Bland, and Justice Young joined.
JUSTICE BLACKLOCK filed an opinion concurring in the judgment,
in which Justice Devine joined.
The petitioners in this case allege that the San Antonio City
Council voted to prohibit the opening of a Chick-fil-A in the San Antonio
airport based, at least in part, on Chick-fil-A’s contributions to religious
organizations that councilmembers found objectionable. Some months
later, Texas enacted the “Save Chick-fil-A law.” The statute prohibits a
governmental entity from taking any adverse action against any person
based wholly or partly on the person’s membership in, affiliation with,
or support of a religious organization. Petitioners, who are would-be
customers of the airport Chick-fil-A, sued the City, seeking declaratory
and injunctive relief, plus costs and attorney’s fees.
The City raised two jurisdictional challenges: governmental
immunity and lack of standing. The trial court denied both, but the
court of appeals reversed on governmental-immunity grounds and
dismissed the case. We hold that petitioners’ live pleading does not
demonstrate a waiver of governmental immunity. But because the
pleading does not affirmatively negate the existence of jurisdiction, we
reverse the court of appeals’ judgment and remand to allow petitioners
an opportunity to replead.
I. Background
In March 2019, the San Antonio City Council considered whether
to approve a proposed concession agreement pursuant to which
concessionaire Paradies Lagardère would contract with various vendors
who would operate in the San Antonio International Airport. The
agreement as initially proposed contemplated the installation of a
Chick-fil-A in a 985-square-foot space near Gate A6.
This proposal drew opposition at the March 21, 2019 City Council
meeting. According to the petition, Councilmember Roberto Treviño
objected to the concession agreement’s inclusion of Chick-fil-A and
“announced that he wanted Chick-fil-A banned from the San Antonio
airport.” He elaborated: “The inclusion of Chick-fil-A as a national
2
brand tenant is something I cannot support. The heart of the LGBTQ
community is in District One and the community has come together to
voice its disapproval of this proposal because it includes a company with
a legacy of anti-LGBTQ behavior.” It is alleged that Treviño “moved to
approve the agreement with Paradies Lagardère, but with an
amendment [that] would direct the city’s staff to work with Paradies
Lagardère in replacing Chick-fil-A with another vendor.”
The petition also alleges that, at that same meeting,
Councilmember Manny Pelaez seconded Treviño’s motion, citing Chick-
fil-A’s history of “funding anti-LGBTQ organizations.” Petitioners
allege Pelaez “explicitly stated that he wanted Chick-fil-A banned from
the airport because of its donations to certain religious organizations.”
The petition quotes Pelaez as having said: “I want to make [] sure that
when people traverse our airport, the first thing that they see is a San
Antonio that is welcoming, and that they not see a symbol that for many
people is a symbol of hate.”
The petition alleges that some councilmembers opposed the effort
to exclude Chick-fil-A from the airport. But, after debate, “the council
voted 6-4, with one abstention, to approve the contract with
Councilmember Treviño’s amendment to ban Chick-fil-A from the
airport.”
The Texas Legislature responded later that year by passing
Senate Bill 1978, popularly known as the “Save Chick-fil-A law.”
Codified at Chapter 2400 of the Government Code, the statute prohibits
a governmental entity from taking “any adverse action against any
person based wholly or partly on the person’s membership in, affiliation
3
with, or contribution, donation, or other support provided to a religious
organization.” TEX. GOV’T CODE § 2400.002. Section 2400.001 defines
“adverse action” to mean “any action taken by a governmental entity”
to, among other things, “withhold, reduce, exclude, terminate, or
otherwise deny” the following:
• any grant, contract, subcontract, cooperative
agreement, loan, scholarship, license, registration,
accreditation, employment, or other similar status
from or to a person; or
• access to a property, educational institution, speech
forum, or charitable fund-raising campaign from or
to a person.
Id. § 2400.001(1)(A), (F).
Under the heading “Relief Available,” the statute provides:
A person may assert an actual or threatened violation of
Section 2400.002 as a claim or defense in a judicial or
administrative proceeding and obtain: (1) injunctive relief;
(2) declaratory relief; and (3) court costs and reasonable
attorney’s fees.
Id. § 2400.003(a). And Section 2400.004, entitled “Immunity Waived,”
provides:
A person who alleges a violation of Section 2400.002 may
sue the governmental entity for the relief provided under
Section 2400.003. Sovereign or governmental immunity,
as applicable, is waived and abolished to the extent of
liability for that relief.
Id. § 2400.004.
Chapter 2400 was signed into law in June 2019 and took effect
September 1, 2019. Act of May 23, 2019, 86th Leg., R.S., ch. 666, 2019
Tex. Gen. Laws 1939 (current version at TEX. GOV’T CODE §§ 2400.001–
4
.005). Four days later, petitioners, who are five individuals residing in
Bexar, Kendall, and Comal County, sued the City and Paradies1 in
Bexar County district court, asserting a violation of Section 2400.002.
Petitioners allege that they have standing because they “use[] the San
Antonio airport for travel and would patronize Chick-fil-A if the city had
not banned it from the airport.”
Petitioners allege “[t]he city of San Antonio is violating section
2400.002 by banning Chick-fil-A from its airport.” They further allege:
“The city’s continued exclusion of Chick-fil-A is based ‘wholly or partly’
on Chick-fil-A’s past and present contributions, donations, and support
for certain religious organizations, including the Salvation Army and
the Fellowship of Christian Athletes, which it provides through []
WinShape, its charitable foundation.”
The petition requests the following relief:
• a declaration that the City violated and continues to
violate Section 2400.002 by banning Chick-fil-A
from the San Antonio airport;
• a temporary and permanent injunction that
prevents the City from excluding Chick-fil-A from
the San Antonio airport;
• a temporary and permanent injunction that compels
the City to install a Chick-fil-A restaurant in the San
Antonio airport, consistent with the proposal
submitted by Paradies before the Treviño
amendment;
• a temporary and permanent injunction that
prohibits the City from taking any adverse action
1 Paradies filed a Rule 91a motion to dismiss, was nonsuited, and is no
longer a party. Chick-fil-A has never been a party.
5
against Chick-fil-A or any other person or entity
based wholly or partly on that person or entity’s
support for religious organizations that oppose
homosexual behavior;
• all costs of suit and reasonable attorney’s fees; and
• all other appropriate relief.
To support their request for a temporary injunction, petitioners
allege they “will suffer probable, imminent, and irreparable injury
absent a temporary injunction.” They add that “[t]he plaintiffs have a
probable right to relief because Councilmember Treviño and Pelaez’s
statements show that the city’s exclusion of Chick-fil-A from the San
Antonio airport is at least ‘partly’ based on Chick-fil-A’s donations to a
religious organization.”
The City sought dismissal based on governmental immunity and
lack of standing. The City argues, first, that Chapter 2400 does not
reach the City’s March 21, 2019 conduct—the City Council’s vote to
amend the concession agreement to exclude Chick-fil-A—because
Chapter 2400 was not in effect at the time, and the petition alleges no
facts to support the notion that the City violated Section 2400.002 on or
after its September 1, 2019 effective date. The City’s standing challenge
is premised on its contention that petitioners have suffered no injury in
fact because being deprived of the ability to buy Chick-fil-A products at
the airport is not a concrete, particularized injury, either actual or
imminent.
Petitioners dispute the City’s contention that Section 2400.004
authorizes lawsuits only by the person who has suffered adverse action
at the hands of the governmental entity. They argue that, under Section
6
2400.004, a person need only “allege” a violation to sue, regardless of
whether that person was the victim of the adverse action. They argue,
in the alternative, that if a concrete, particularized injury must be
shown, theirs qualify. With respect to the statute’s temporal reach,
petitioners acknowledge that Chapter 2400 did not take effect until
September 1, 2019, and is not retroactive. They agree therefore that the
City Council’s March 21, 2019 vote did not violate Chapter 2400.
Rather, they argue the City’s exclusion of Chick-fil-A was “ongoing” and
that they seek relief solely for the City’s actions on or after September
1, 2019.
After a hearing, the trial court denied the City’s jurisdictional
challenges, and the City appealed. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(8). The Fourth Court of Appeals reversed the trial court’s
order denying the City’s plea to the jurisdiction and rendered judgment
dismissing the case for lack of jurisdiction. 612 S.W.3d 503, 505 (Tex.
App.—San Antonio 2020). The court of appeals rejected petitioners’
argument that immunity was waived. Id. at 507–08. It concluded that,
although petitioners purported to be seeking only prospective relief, the
only plausible remedy for petitioners’ claims was invalidation of the
previously enacted concession agreement. Id. at 507. The court of
appeals further held that petitioners’ pleading was incurably defective
and thus dismissed the case without providing them an opportunity to
replead. Id. at 508. The court of appeals did not address standing.
In this Court, petitioners ask us to address standing and
governmental immunity. They argue that they have demonstrated a
waiver of immunity by alleging a violation of Section 2400.002 and
7
seeking declaratory and injunctive relief under Section 2400.003.
Petitioners also assert that Chapter 2400 confers standing and,
therefore, their argument goes, they need not demonstrate a concrete,
particularized injury. Petitioners argue alternatively that even if these
standing requirements did apply, they are satisfied here because they
have suffered or are at imminent risk of suffering a concrete and
particularized injury that is traceable to the City’s conduct and will be
redressed by a favorable decision.
II. Governmental Immunity
A. General Principles
We begin with immunity, the basis for the court of appeals’
decision. Governmental immunity protects the State’s political
subdivisions, including its cities, against suits and legal liability.
Hillman v. Nueces County, 579 S.W.3d 354, 357 (Tex. 2019); Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
Governmental immunity therefore bars suit against the City of San
Antonio unless the Legislature has waived the City’s immunity.
Chambers–Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344
(Tex. 2019). Cities retain immunity unless the Legislature clearly and
unambiguously waives it. See Tooke v. City of Mexia, 197 S.W.3d 325,
330 (Tex. 2006) (“[A] statute that waives the State’s immunity must do
so beyond doubt . . . .” (quoting Taylor, 106 S.W.3d at 697)). We defer to
the Legislature in waiving immunity because it is in a better position to
weigh the conflicting public policy interests associated with subjecting
the government to liability. See Wasson Ints., Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 432–33 (Tex. 2016).
8
Governmental immunity encompasses two related but distinct
concepts: “immunity from liability, which bars enforcement of a
judgment against a governmental entity, and immunity from suit, which
bars suit against the entity altogether.” Tooke, 197 S.W.3d at 332. A
statute can waive immunity from suit, immunity from liability, or both.
State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Only immunity from
suit implicates a court’s subject-matter jurisdiction. Hillman, 579
S.W.3d at 357. Thus, immunity from suit is properly raised in a plea to
the jurisdiction while immunity from liability is not. Taylor, 106 S.W.3d
at 696 (“Unlike immunity from suit, immunity from liability does not
affect a court’s jurisdiction to hear a case and cannot be raised in a plea
to the jurisdiction.”).
In some instances, though, the Legislature has waived immunity
from suit “to the extent of liability,” which merges the two. See, e.g., Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)
(“The Tort Claims Act creates a unique statutory scheme in which the
two immunities are co-extensive: ‘Sovereign immunity to suit is waived
and abolished to the extent of liability created by this chapter.’” (quoting
TEX. CIV. PRAC. & REM. CODE § 101.025(a))). These immunity waivers
collapse the jurisdictional and merits inquiries to some degree. See
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 784 (Tex.
2018). When a statute waives immunity from suit to the extent of
liability, it directs the inquiry to the statute’s elements and may require
a court to consider those elements at both the jurisdictional and merits
stages. See Lueck, 290 S.W.3d at 883 (holding that certain elements of
9
the Whistleblower Act “can be considered to determine both jurisdiction
and liability”).
When immunity is waived for an alleged violation of a statute, at
the jurisdictional stage, a plaintiff must “actually allege” a violation of
the statute. Id. at 881. “Mere reference” to the statute’s elements in the
pleading is not enough. Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d
583, 587 (Tex. 2001). A plaintiff “actually alleges” violation of a statute
“by pleading facts that state a claim thereunder.” Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); see also
Reynosa v. Univ. of Tex. Health Sci. Ctr., 57 S.W.3d 442, 444 (Tex.
App.—San Antonio 2001, pet. denied) (“The plaintiff has the burden to
allege facts that affirmatively demonstrate the lack of governmental
immunity and, hence, the court’s jurisdiction to hear the cause.”).
Requiring the plaintiff’s pleading to stand on more than bare allegations
to trigger immunity protects the use of pleas to the jurisdiction, a
longstanding “procedural vehicle to challenge subject matter
jurisdiction” that has been used in our “trial courts for over a century
and a half.” Lueck, 290 S.W.3d at 884 (quoting Miranda, 133 S.W.3d at
232).
“When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts that affirmatively
demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133
S.W.3d at 226. If the pleading does not contain sufficient facts to
demonstrate the court’s jurisdiction but also does not affirmatively
demonstrate incurable defects, the plaintiffs are given an opportunity to
amend. Id. at 226–27. But if the pleading affirmatively negates
10
jurisdiction, then the plea to the jurisdiction should be granted without
the opportunity to amend. Id. at 227; see also Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“[A] pleader must be given
an opportunity to amend in response to a plea to the jurisdiction only if
it is possible to cure the pleading defect.”).
B. Analysis
As noted, Chapter 2400 explicitly waives sovereign and
governmental immunity when a person “alleges” a violation of Section
2400.002. The relevant provision states:
A person who alleges a violation of Section 2400.002 may
sue the governmental entity for the relief provided under
Section 2400.003. Sovereign or governmental immunity,
as applicable, is waived and abolished to the extent of
liability for that relief.
TEX. GOV’T CODE § 2400.004.
Petitioners allege the City “is violating” Section 2400.002. In the
“Factual Allegations” section of their pleading, petitioners describe at
length the history of Chick-fil-A’s commitment to Christian
organizations and the public statements of Chick-fil-A’s then-COO, Dan
Cathy. The petition also details the efforts by “activists” to attack Chick-
fil-A “because it gives money to Christian organizations that accept the
Bible as the Word of God.” Petitioners then describe in detail the process
by which the City ultimately approved the amended concession
agreement for the San Antonio airport that would replace Chick-fil-A
with another vendor, including multiple quotes from councilmembers on
both sides of the debate. All of the factual allegations describing actions
by the City relate to conduct that occurred at the March 21, 2019 City
11
Council meeting, well before the statute’s September 1, 2019 effective
date.
There is an assertion that the City’s alleged violation is
continuing in nature. Under the heading “Cause of Action,” petitioners
allege:
The city of San Antonio is violating section 2400.002 by
banning Chick-fil-A from its airport. The city’s continued
exclusion of Chick-fil-A is based “wholly or partly” on
Chick-fil-A’s past and present contributions, donations,
and support for certain religious organizations, including
the Salvation Army and the Fellowship of Christian
Athletes . . . . [Emphasis added.]
But the petition alleges no facts to support this assertion; it nowhere
describes any “action” by the City after September 1, 2019, that could
constitute a violation, as the statute requires. See id. § 2400.001(1)
(defining “adverse action” as “any action taken by a governmental
entity” to, among other things, withhold, exclude, or deny a contract or
access to a property (emphasis added)). At oral argument, petitioners
asserted that the City is taking actions to implement the agreement
approved by the City Council and urged us to conclude that is sufficient
to invoke Section 2400.004’s waiver of immunity. But petitioners
conceded that they have not alleged facts describing any actions relating
to the agreement’s implementation. Indeed, they concede that, without
the benefit of discovery, petitioners do not know what those actions may
be.
Petitioners argue they are not required, at this stage of the
litigation, to allege facts sufficient to demonstrate a waiver of immunity
because Section 2400.004 permits any person to “sue the governmental
12
entity for the relief provided under Section 2400.003” merely by alleging
in conclusory fashion that the governmental entity committed “a
violation of Section 2400.002.” See id. § 2400.004 (“A person who alleges
a violation of Section 2400.002 may sue the governmental entity for the
relief provided under Section 2400.003.”).2 But under our precedents
applying similar immunity-waiver language in other statutes, such a
bare assertion of a violation is insufficient. To invoke a waiver of
immunity, petitioners must allege facts to support their claim that the
City has violated Chapter 2400. See Lueck, 290 S.W.3d at 884; Miranda,
133 S.W.3d at 230.
Lueck is instructive because the Whistleblower Act’s immunity
provision is virtually identical to Section 2400.004: it states that “[a]
public employee who alleges a violation of this chapter may sue the
employing state or local governmental entity for the relief provided by
this chapter” and that “[s]overeign immunity is waived and abolished to
the extent of liability for the relief allowed under this chapter for a
violation of this chapter.” TEX. GOV’T CODE § 554.0035. A violation of
the Whistleblower Act occurs when a governmental entity takes an
adverse personnel action against a public employee who in good faith
reports “a violation of law” by the employer or another employee to “an
appropriate law enforcement authority.” Id. § 554.002(a). In Lueck, the
2 The City argued in its Rule 91a motion that “[a] person” entitled to
sue under Sections 2400.003 and 2400.004 must be a person against whom an
alleged adverse action was taken. Under the City’s view, petitioners could not
sue under Chapter 2400 because no adverse action was alleged to have been
taken against them (as opposed to Chick-fil-A). Given our disposition, we
express no opinion on the issue and instead note that it may need to be
addressed on remand.
13
plaintiff sued the Texas Department of Transportation (TxDOT) for
allegedly firing him in violation of the Whistleblower Act. 290 S.W.3d
at 879. Lueck was tasked with coordinating with a private vendor to
develop the agency’s Statewide Traffic Analysis and Reporting System
(STARS), a program designed to collect, analyze, and report traffic data.
Id. After a billing dispute with the vendor caused TxDOT to suspend
work on STARS, Lueck sent an email to his supervisor warning him not
to terminate the contract with the vendor because, without STARS,
TxDOT “is not capable of handling this data and will, therefore, never
be in compliance” with state and federal law. Id. TxDOT terminated
the contract and fired Lueck on the basis that he knew the vendor had
overcharged TxDOT. Id.
Lueck’s petition alleged that the email to his supervisor
constituted a report of a violation of law to an appropriate law
enforcement authority because it reported that TxDOT would violate
state and federal law if TxDOT did not resolve the dispute with the
vendor. TxDOT filed a plea to the jurisdiction on immunity grounds,
arguing that Lueck’s report did not invoke the Whistleblower Act’s
waiver of immunity because he (1) did not actually report a violation of
law and (2) sent his report to his supervisor rather than an appropriate
law enforcement authority. Id. at 880. Lueck countered that his
allegations of a Whistleblower Act violation, standing alone, triggered
the statute’s waiver of immunity. Id. at 879–80.
We cautioned that, when a statute waives immunity for one who
“alleges a violation” of the statute, it is not enough for the pleading to
have “merely referenced the chapter” to invoke a waiver. Id. at 882.
14
Rather, we held that the Whistleblower Act’s immunity provision
required Lueck to “actually allege a violation” of the statute, meaning
the statute’s underlying elements were relevant to determining whether
immunity had been waived. Id. at 881. Lueck’s pleading affirmatively
demonstrated that he did not allege a violation of the statute because
his report detailed regulatory non-compliance, not a violation of law, and
was sent to his supervisor, not a law enforcement authority. Id. at 885–
86. We explained that, although a plaintiff does not have to “prove his
claim” at the jurisdictional stage, “bare allegations” are not enough to
waive immunity when immunity is predicated on “alleg[ing] a violation”
of a statute. Id. at 884. Otherwise, any superficial reference to the
statute in a pleading would be sufficient to waive immunity, a result the
Legislature did not intend. Garcia, 372 S.W.3d at 637.
The Texas Tort Claims Act (TTCA) also contains an immunity-
waiver provision like Chapter 2400. See TEX. CIV. PRAC. & REM. CODE
§ 101.025(a) (“Sovereign immunity to suit is waived and abolished to the
extent of liability created by this chapter.”). Our cases interpreting the
TTCA similarly look to the statute’s underlying elements in determining
whether immunity has been waived. See, e.g., Miranda, 133 S.W.3d at
225. In Miranda, a woman sustained injuries after a tree limb fell on
her at a state park. Id. at 220. The Mirandas sued the Texas Parks and
Wildlife Department for negligence and gross negligence. Id. at 220–21.
The Department filed a plea to the jurisdiction based on sovereign
immunity. Id. at 221.
We noted that the TTCA waives sovereign immunity for claims
arising from premises defects and incorporates the limitations on
15
liability articulated in the recreational use statute under Chapter 75.
See TEX. CIV. PRAC. & REM. CODE § 101.058 (“To the extent that Chapter
75 limits the liability of a governmental unit under circumstances in
which the governmental unit would be liable under [the TTCA], Chapter
75 controls.”). Because the Mirandas were camping and picnicking at
the time of the incident, we looked to the recreational use statute to
determine whether immunity was waived under the TTCA. Miranda,
133 S.W.3d at 225. The recreational use statute limits the Department’s
duty for premises defects to that owed to a trespasser, and thus
sovereign immunity was waived only if the governmental entity was
grossly negligent. Id. We explained that for immunity to be waived the
Mirandas had to “allege sufficient facts to establish that the Department
was grossly negligent.” Id. at 230. Turning to the pleadings, we held
that the Mirandas met that standard by detailing several factual
allegations, including that Miranda was struck by a falling tree branch
that severely injured her; that the unpruned and uninspected tree
branches created a dangerous, defective condition; and that the
Department knew of the dangers of the tree branches but failed to make
the premises safe or warn her of the danger. Id.
Consistent with Lueck and Miranda, to waive immunity, a
plaintiff must plead sufficient facts to actually allege a violation of
Chapter 2400. The immunity provision in Section 2400.004 directs the
inquiry to Section 2400.002, which prohibits “adverse actions” based in
part on support of a religious organization. TEX. GOV’T CODE
§§ 2400.002, .004. And Section 2400.001 defines “adverse action” to
require an “action” by the governmental entity. Id. § 2400.001(1). Thus,
16
to invoke Section 2400.004’s waiver of immunity, a plaintiff must plead
facts describing actions that constitute the prohibited “adverse action”
the governmental entity took based on a person’s membership in,
affiliation with, or support provided to a religious organization.
Here, petitioners do not plead sufficient facts to “actually allege a
violation” of Chapter 2400 because they fail to point to any specific
“action” the City took on or after September 1, 2019, that could
constitute an “adverse action” under Section 2400.002. See Lueck, 290
S.W.3d at 881. The City Council’s vote to adopt the Treviño amendment
and thereby exclude Chick-fil-A from the airport cannot constitute an
adverse action because all agree it occurred six months before Chapter
2400 took effect. Because there is no factual allegation to support
petitioners’ assertion that the City has taken actions that could
constitute an adverse action after the statute’s effective date, the
petition is insufficient to invoke Section 2400.004’s waiver of immunity.
See id. at 884.
Our concurring colleagues concede that the petition alleges no
adverse action by the City after Chapter 2400’s effective date. Yet, in
their view, petitioners have sufficiently alleged a credible threat of a
violation because the City Council’s vote and other conduct pre-dating
Chapter 2400’s effective date constitute “forward-looking direction” from
the City Council, which allows “a permissible assumption” that the City
would violate Chapter 2400 after it became effective. Post at 5
(Blacklock, J., concurring in the judgment). The concurrence relies on
In re Abbott, 601 S.W.3d 802 (Tex. 2020), in which we held that judges
challenging an executive order lacked standing. We reasoned that
17
although “[a] plaintiff does not need to be arrested and prosecuted before
suing to challenge the constitutionality of a criminal law,” he does have
to allege, among other things, that a credible threat of prosecution
exists. Id. at 812. We question the relevance of Abbott’s standing
analysis to this immunity issue. But, more importantly, we do not think
the City’s March 2019 conduct standing alone permits a reasonable
inference that there exists a “credible threat” of a post-September 1,
2019 adverse action against Chick-fil-A by the City. Indeed, the
contrary is true. Rather than assume the City would violate Chapter
2400, we presume the City would comply with Chapter 2400, until the
contrary is shown. See Avelo Mortg., LLC v. Infinity Cap., LLC, 366
S.W.3d 258, 263 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“In the
absence of evidence to the contrary, it is presumed that . . . a public
official discharges his duty or performs an act required by law in
accordance with the law.”); Sanchez v. Tex. Indus., Inc., 485 S.W.2d 385,
387 (Tex. App.—Waco 1972, writ ref’d n.r.e.) (“The law presumes, until
the contrary is shown, that every public official will discharge the duties
imposed upon him by the law.”).3 Because petitioners have not alleged
a violation of Chapter 2400—and we cannot assume one—we hold that
petitioners have not invoked a waiver of governmental immunity.4
This principle coheres with similar presumptions that governmental
3
officials will act in accordance with law. See In re D.W., 249 S.W.3d 625, 635
(Tex. 2008) (“We start with the presumption that the legislature intended to
comply with the United States and Texas constitutions.”); In re C.J.C., 603
S.W.3d 804, 820 (Tex. 2020) (“We are confident the trial court will comply; our
writ [of mandamus] will issue only if it fails to [vacate its temporary orders].”).
Our concurring colleagues argue that we should infer a credible threat
4
of a post-September 1, 2019 adverse action based on the City’s argument in the
18
The question then becomes whether petitioners are entitled to an
opportunity to amend. Texas courts allow parties to replead unless their
pleadings demonstrate incurable defects. See Tex. Dep’t of Transp. v.
Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (“When this Court upholds a
plea to the jurisdiction on sovereign immunity grounds, we allow the
plaintiff the opportunity to replead if the defect can be cured.”); City of
Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (“The allegations found
in the pleadings may either affirmatively demonstrate or negate the
court’s jurisdiction. If the pleadings do neither, it is an issue of pleading
sufficiency and the plaintiff should be given an opportunity to amend
the pleadings.” (citations omitted)); Miranda, 133 S.W.3d at 226–27 (“If
the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court[’]s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiffs should be afforded the opportunity to
court of appeals that its March 2019 vote would not have violated Chapter 2400
even if it had occurred after Chapter 2400 became effective. Post at 4 n.3
(noting the City argued that no “statement or action taken on March 21, 2019
would constitute a violation of Chapter 2400, even if the statute had been in
effect at that time”). But we cannot abandon our longstanding, objective
pleading requirements governing immunity cases based on the City’s legal
posturing. Our precedents do not allow parties to invoke a waiver of immunity
on conclusory or barebones pleading—they require more detailed pleading that
is simply absent from the petition. In the absence of such allegations, we
cannot assume that the City would violate or threaten violation of Chapter
2400 after its effective date. Indeed, as our concurring colleagues concede,
information outside the record suggests the City dropped its earlier opposition
to Chick-fil-A’s presence at the airport. Post at 5 n.4 (noting that “[i]nformation
outside the pleadings indicates that, since the time the petition was filed,
. . . the City may have dropped its opposition to Chick-fil-A’s presence at the
airport”). In any event, as noted below, petitioners will have the opportunity
on remand to plead any details our concurring colleagues would have us infer.
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amend.”). Texas law does not favor striking defective pleadings without
providing plaintiffs an opportunity to replead. KSNG Architects, Inc. v.
Beasley, 109 S.W.3d 894, 898 (Tex. App.—Dallas 2003, no pet.); see also
Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied) (“[T]he general rule expresses a
preference to allow a plaintiff the opportunity to amend . . . .”). Thus, so
long as petitioners’ pleading does not affirmatively demonstrate the
absence of jurisdiction, they should be given an opportunity to amend.
Petitioners’ pleading does not allege sufficient facts to support
their assertion that the City took an adverse action on or after
September 1, 2019. But neither does the petition affirmatively negate
jurisdiction. Thus, the pleading here differs from that in Lueck, where
the plaintiff’s petition affirmatively showed that his “report” was not
reporting a violation of law to an appropriate law enforcement authority
and, therefore, he could not allege a violation of the Whistleblower Act.
290 S.W.3d at 885. Because petitioners’ pleading does not contain
sufficient facts to demonstrate either the court’s jurisdiction or incurable
defects, petitioners should be given an opportunity to amend. Miranda,
133 S.W.3d at 227. This conclusion does not mean petitioners will be
required to marshal evidence and prove their claim to invoke the waiver
of immunity. They need only plead facts supporting the elements of the
statutory cause of action—here, facts describing the “actions” the City
took that constitute an alleged violation of Section 2400.002. See Garcia,
372 S.W.3d at 637.
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III. Standing
Petitioners urge us to reach standing, which was raised in the
trial court but not addressed by the court of appeals. The City argued
in its Rule 91a motion that the petitioners lack standing because (1) they
do not fall within the class of plaintiffs whom the Legislature has
authorized to sue and (2) their injury is not a concrete, particularized
injury, either actual or imminent. See Data Foundry, Inc. v. City of
Austin, 620 S.W.3d 692, 696 (Tex. 2021) (“To maintain standing, a
plaintiff must show: (1) an injury in fact that is both concrete and
particularized and actual or imminent, not conjectural or hypothetical;
(2) that the injury is fairly traceable to the defendant’s challenged
action; and (3) that it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.”); see also Tex. Bd.
of Chiropractic Exam’rs v. Tex. Med. Ass’n, 616 S.W.3d 558, 567 (Tex.
2021) (discussing the proper use of the term “standing”); Pike v. Tex.
EMC Mgmt., LLC, 610 S.W.3d 763, 773–74 & nn.2–6 (Tex. 2020) (same).
Petitioners argue first that they have standing based on Section
2400.004. See TEX. GOV’T CODE § 2400.004 (“A person who alleges a
violation of Section 2400.002 may sue the governmental entity for the
relief provided under Section 2400.003.”). They contend that because
the Legislature created this private right of action and they fall within
the class of persons authorized to sue, they need not plead an injury in
fact. In their view, it matters not that petitioners themselves were not
the parties excluded from the San Antonio airport. Petitioners further
argue that, even if they are required to satisfy the usual standing
elements, those elements are met here because “the denial of a preferred
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eating option at the airport” is a sufficiently concrete and particularized
injury.
In response, the City notes that the U.S. Supreme Court recently
rejected a similar argument. See TransUnion LLC v. Ramirez, 141 S.
Ct. 2190, 2205 (2021) (“Congress’s creation of a statutory prohibition or
obligation and a cause of action does not relieve courts of their
responsibility to independently decide whether a plaintiff has suffered a
concrete harm . . . .”). Because we have “adopted the federal
requirements for standing,” Data Foundry, 620 S.W.3d at 696, the City
argues that petitioners’ standing argument necessarily fails in Texas
courts. The City further counters that petitioners’ injuries are
insufficiently concrete.
Because we hold that petitioners have not demonstrated a waiver
of governmental immunity and should have the opportunity to replead,
we decline petitioners’ invitation to address standing at this stage.
Standing should be determined based on a plaintiff’s live pleading, and
it would be premature for us to weigh in on the City’s standing
arguments before petitioners have repleaded. See Jasek v. Tex. Dep’t of
Fam. & Protective Servs., 348 S.W.3d 523, 527 (Tex. App.—Austin 2011,
no pet.) (“[A]nalysis of whether a party has standing begins with the
plaintiff’s live pleadings.”). On remand, the trial court and the court of
appeals may have an opportunity to address the important questions
raised on the issue with the benefit of full briefing and argument. See
City of Fort Worth v. Rylie, 602 S.W.3d 459, 469 (Tex. 2020) (“Because
the question presents an important issue of first impression in this
Court, we decline to address the question in the first instance and defer
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instead for the court of appeals to address it after full briefing and
argument by the parties.”); Wasson Ints., 489 S.W.3d at 439 (remanding
case for “court of appeals to address [unaddressed] questions in the first
instance”). 5
IV. Conclusion
Government Code Section 2400.004 requires more than
conclusory references to the statute’s elements. To invoke the waiver of
immunity, a plaintiff must plead sufficient facts to actually allege a
violation of Section 2400.002. We hold that petitioners’ pleading does
not allege sufficient facts to invoke Chapter 2400’s waiver of
governmental immunity. But because the pleading also does not
affirmatively negate jurisdiction, petitioners are entitled to an
opportunity to replead. Accordingly, we reverse the court of appeals’
judgment dismissing the case for lack of jurisdiction and remand to the
trial court to give them that opportunity.
5 Finally, we note this case may present another jurisdictional issue
that has not yet been addressed and should be considered on remand: whether
Chick-fil-A’s public statement that it is no longer interested in pursuing a
space in the San Antonio airport renders the case moot. Acacia Coronado,
Chick-fil-A no longer pursuing restaurant at San Antonio airport after chain’s
plans denied more than a year ago, USA TODAY, Sept. 14, 2020. Our courts
address issues concerning subject-matter jurisdiction sua sponte. See State ex
rel. Best v. Harper, 562 S.W.3d 1, 6–7 (Tex. 2018) (“Harper argues we cannot
address mootness at all because the trial court’s record contains no evidence
that he lost his reelection bid . . . . But we must consider issues affecting our
jurisdiction sua sponte.”).
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Rebeca A. Huddle
Justice
OPINION DELIVERED: April 1, 2022
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