City of Houston and Daniel W. Kruger, in His Official Capacity as Director of Public Works and Engineering Department v. Little Nell Apartments, L.P., 424 S.W.3d 640

Background

In April 2011 Houston enacted a drainage-fee ordinance creating a municipal drainage utility and authorizing drainage charges based on impervious surface, with specified exemptions and administration vested in the Director of Public Works (Krueger).
Little Nell, Regency, and Windshire (the Apartments) received proposed drainage charges, sought verification/appeal, and then sued the City and Krueger (official capacity) seeking declaratory relief that Krueger acted ultra vires by imposing charges.
The trial court after an evidentiary hearing denied the plea to the jurisdiction only as to the Apartments’ claims that Krueger acted ultra vires in charging their properties; it otherwise sustained the plea.
The City and Krueger appealed; the court of appeals concluded appellate jurisdiction existed despite an initial defective notice of appeal and addressed whether the ultra vires claims survive governmental immunity.
Central statutory/ordinance questions: (1) whether a property is a "benefitted property" (defined as property to which drainage service is made available and which discharges into part of the city drainage utility system) and (2) whether properties qualify for the exemption for being "served exclusively by a properly constructed and maintained wholly sufficient and privately owned drainage system."
The court held that the ordinance does not plainly grant the Director authority to determine (or to override) whether a property is a benefitted property or whether it falls within the private‑system exemption; disputed factual issues about City ownership/control of drainage facilities and the properties’ drainage paths preclude summary dismissal on jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court of appeals has jurisdiction despite defective notice of appeal	City’s amended notice (though initially defective) constitutes a bona fide attempt to appeal; amendment cured omission	Defect barred Krueger’s appeal because he wasn’t named timely	Court found jurisdiction: timely filing invoked appellate jurisdiction and amendment before briefing was allowed
Whether the Apartments pleaded viable ultra vires claims against Krueger	Director acted beyond authority by imposing fees on properties that are not "benefitted" or are exempt as privately‑served	Ordinance grants broad administrative authority to Director to assess charges; decisions are discretionary and immune	Pleadings suffice: ordinance requires a property be a "benefitted property" to be charged; ultra vires claim is viable when director acts outside ordinance
Whether the ordinance vests Director with discretion to classify properties as benefitted or exempt	Apartments: ordinance definitions and exemptions limit Director; classification is not a discretionary administrative matter	City/Krueger: language and MS4 permit show a holistic system and implicit Director authority to treat all city properties as benefitted	Court: ordinance language does not grant Director clear authority to make underlying determinations; Director may be acting ultra vires if he charges properties not meeting definitions
Whether evidence conclusively negates fact issues (i.e., City ownership/control of drainage; whether properties discharge into city system or are exclusively privately served)	Apartments: evidence shows private/HCFCD/County involvement; material disputes of fact exist	City/Krueger: submitted deeds, SWMP, and testimony to show City (or MS4 co‑permit) responsibility; argue no fact issue	Court: evidence did not conclusively negate disputed factual issues; trial court correctly denied plea as to ultra vires claims so factfinder must resolve

Key Cases Cited

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (ultra vires suits against officials for actions beyond legal authority are not barred by governmental immunity)
Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (governmental immunity deprives trial court of subject‑matter jurisdiction)
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standards for plea to the jurisdiction and consideration of jurisdictional evidence)
City of San Antonio v. Rodriguez, 828 S.W.2d 417 (Tex. 1992) (a timely filed but defective instrument that is a bona fide attempt can invoke appellate jurisdiction)
Sweed v. Nye, 323 S.W.3d 873 (Tex. 2010) (timely filing of a defective document invokes appellate jurisdiction and rules are applied liberally)
TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory/ordinance construction principles: give effect to legislative wording and defined terms)
City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) (distinguishes discretionary acts from ministerial acts for immunity analysis)