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
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
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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.
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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 joint-
enterprise 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.
3Quinlan 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
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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).
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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,
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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
6Even 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
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