OPINION
Appellants, Houston Belt & Tеrminal Railway Co., BNSF Railway Co., and Union Pacific Railroad Co., (collectively, the “Railroads”) present this accelerated appeal from the trial court’s order partially sustaining the plea to the jurisdiction filed by appellees, the City of Houston, Texas (the “City”), and Daniel Krueger, in his official capacity as Director of Public Works and Engineering, based on governmental immunity in a declaratory judg
I. Factual and Procedural Background
In April 2011, the City enacted Ordinance No. 2011-254, the drainage fee ordinance. See Houston, Tex., Code of Ordinances, ch. 47, art. XIV (“Code of Ordinances”). The drainage fee ordinance created a municipal drainage utility, a public utility, “[i]n the interest of public health and safety and a more efficient and economic operation of drainage facilities of the city.” Code of Ordinances, § 47-803. Under the drainage fee ordinance, the City shall “establish a schedule of drainage charges against all real property in the city subject to such charges”; provide drainage “for all real property in the city on payment of drainage charges unless the property is exempt from such payment”; and “offer drainage service on nondiscriminatory, reasonable and equitable terms.” Id. § 47-801. The drainage charges are imposed “[t]o recover the city’s cost of service to provide drainage to benefitted properties” and are to be used exclusively for various expenses “associated with the cost of service to provide drainage services within the service area.” Id. §§ 47-821, 47-822(a). Drainage charges are calculated based on the specified rate (either residential or non-residential, and if residential, whether curb-and-gutter or open-ditch) per “square foot of impervious surface of a benefitted property.” Id. § 47-822(b), (c). The drainage fee ordinance provides for various categories of exemptions from the imposition of a drainage charge. Id. § 47-822(f). The director of the City’s department of public works and engineering “shall be responsible for the administration of this article [XIV. Municipal Drainage Utility System].” Id. § 47-805. The drainage fee ordinance provides that the director “shall establish and implement a system of verification and correction of drainage charges for each property subject to the drainage charges.” Id. § 47-824(a).
In May 2011, the Railroads received notice of proposed drainage charges Krueger had determined for each of the hundreds of parcels of property that the Railroads own in the City based on each property’s impervious square footage. The Railroads submitted requests for verification and correction of their initial drainage charges, specifically indicating which of their propertiеs were not “benefitted properties” subject to charges — those not discharging stormwater runoff to the City’s drainage utility system. See id. § 47-824(b). The Railroads also requested verification and correction of areas of their properties they claimed Krueger had incorrectly determined as impervious. See id. After these requests were denied, the Railroads requested an appeal. See id. § 47-824(e). The hearing examiner made no material changes to the Railroads’ assessed drainage charges. The Railroads then appealed this decision to a three-member panel of
In October 2012, the Railroads sued both the City and Krueger in his official capacity. The Railroads sought declarations with respect to the validity of the drainage fee ordinance and, if valid, whether Krueger acted in violation of the ordinance by imposing drainage charges on their non-“benefitted properties” and in determining the amount of drainage charges imposed on their properties. The City and Krueger filed a plea to the jurisdiction based on governmental immunity. The Railroads responded in opposition.
After a nоn-evidentiary hearing, the trial court sustained the plea to the jurisdiction only as to the Railroads’ ultra vires claims against Krueger. The Railroads moved for clarification and for an opportunity to amend their petition to cure any jurisdictional defects. The trial court denied the motion. This timely appeal followed.
II. Analysis
The parties acknowledge that the sole issue on appeal is whether the trial court erred in. sustaining the City and Krueger’s plea to the jurisdiction as to the ultra vires claims alleged against Krueger by the Railroads. The parties did not submit evidence with their respeсtive plea and response; nor did the trial court hold an evidentiary hearing on the plea. The City and Krueger argue the real substance of the facts actually pleaded by the Railroads confirms that the alleged ultra vires claims are barred by governmental immunity. We conclude that the trial court erred in part.
A. Standard of review
If a governmental unit has immunity from a pending claim, a trial court lacks subject matter jurisdiction as to that claim. Rusk State Hosp. v. Black,
When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating the court’s jurisdiction. Id. at 226 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
B. Ultra vires claims
The Railroads have attempted to plead ultra vires claims against Krueger in his official capacity, alleging that Krueger is acting outside of his authority under the drainage fee ordinance, first, by imposing drainage charges on certain of the Railroads’ properties at all and, second, by determining that the Railroads should pay approximately $3 million in drainage charges per year based on their properties’ impervious surface area. They contend that Krueger exceeded his authority because their properties are not “benefit-ted properties,” and because the “track
A suit asserting that a government officer acted without legal authority or seeking to compel him to comply with statutory оr constitutional provisions is an ultra vires suit and is not subject to pleas of governmental immunity. See City of El Paso v. Heinrich,
The parties agree that this court will need to construe the ordinance in our review of the trial court’s ruling in order to determine whether the facts as pleaded demonstrate the ultra vires nature of Krueger’s alleged actions.
C. The director’s authority and discretion with regard to the determination of whether a property is a “ben-efitted property” under the drainage fee ordinance
The City and Krueger insist that the drainage fee ordinance necessarily grants Krueger the authority and discretion to assess drainage charges on the Railroads’ properties after making the threshold determination as to whether the property is within the “service area” as defined in the ordinance. They note the Railroads do not claim that any of their properties otherwise qualifies for any exemption under the ordinance. The City and Krueger further contend that the ordinance provides the director with authority to determine the area of “impervious surface” of each of the Railroads’ properties and with discretion regarding the method used to determine which surfaces are impervious. The City and Krueger maintain that Krueger has authority to make decisions, even “wrong ones,” and that the real substance of the Railroads’ complaints “is not that Krueger acted outside his authority in making them but that they disagree with his decisions.” The Railroads argue that Krueger has no authority and disci'etion under the ordinance to “deviate from or modify the definitions [of “benefitted property” and “impervious surface”], or to apply them as he sees fit.” In other words, Krueger acted without authority by disregarding the specific factually determinable definitions of “benefitted property” and “impervious surface” provided in the ordinance. Thus, the Railroads contend they have adequately allegеd Krueger acted ultra vires by incorrectly imposing drainage charges on certain of their properties at all and by incorrectly determining that portions of their “benefitted properties” are “impervious surfaces” subject to charges.
There, we concluded that “under the plain language of the drainаge fee ordinance, a property must be a ‘benefítted property’ to be subjected to drainage charges.”. Id. at 652.
As in Little Nell, we thus cannot agree with the City and Krueger that, if, as the Railroads have pleaded, their properties do not fit within the definition of “benefít-ted property” because they do not make use of the City’s drainage system and instead discharge directly to bayous as natural water courses not owned or controlled in part by the City or dedicated to drainage service, Krueger has the аuthority and discretion to choose to impose drainage charges on their properties. At this stage of the proceedings, construing the Railroads’ pleadings liberally and where the trial court was not presented with any jurisdictional evidence to the contrary, we conclude that the Railroads have met their affirmative pleading requirement with regard to Krueger’s alleged ultra vires actions in imposing fees on those properties alleged not to be “benefítted properties.” See Miranda,
D. The director’s authority and discretion with regard to the determination of “impervious surface” under the drainage fee ordinance
However, this does end our inquiry. The Railroads do not allege that all of their properties are not “benefítted properties,” only that certain ones do not make use of the City’s drainage system. With regard to the properties they acknowledge are “benefítted properties,” they allege Krueger violated or exceeded his legal authority under the ordinance by imposing drainage changes for areas that are not “impervious surfaces.” In other words, they contend portions of their properties — specifically, those consisting of
To determine the extent of the authority and discretion granted to the director with regard to this allegedly ultra vires action, we examine the enacting body’s words in the context of the drainage fee ordinance as a whole and do not consider words or parts of the ordinance merely in isolation. See Tex. Lottery Comm’n v. First State Bank of DeQueen,
any area that has been compacted or covered such that it does not readily absorb water or does not allow water to percolate through to undisturbed underlying, soil strata. Surface materials considered impervious shall include, but not be limited to, bricks, pavers, concrete, asphalt, compacted oil-dirt, compacted or decomposed shale, oyster shell, gravel, or granite, and other similar materials. Surface features utilizing such materials and considered impervious shall include, but not be limited to, decks, foundations (whether pier and beam or slab), building roofs, parking and driveway areas, sidewalks, compacted or rolled areas, paved recreation areas, swimming pools, and other features or surfaces that are built or laid on the surface of the land and have the effect of increasing, concentrating, or otherwise altering water runoff so that flows are not readily absorbed.
Id. § 47-802. Thus, “impervious surface” is “any area that has been compacted or covered such that it does not readily absorb water or does not allow water to percolate through to undisturbed soil strata.” Id. The ordinance then provides some examples of “surface materials сonsidered impervious” and of “surface features utilizing such materials and considered impervious.” Id.
Drainage charges are imposed based on the applicable rate — depending on whether the land use of the “benefitted property” is residential or nonresidential and, if residential, whether the drainage system is “curb and gutter drainage or open ditch drainage” — “to each square foot of imper
Thus, the ordinance grants authority with regard to the determination of “[t]he area of impervious surface on each benefit-ted property.” Id. § 47-822(c). The ordinance also provides specific authority to the director with regard to calculating, verifying, and adjusting the calculation of “impervious surface.” Id. §§ 47-805, 47-828; see id. § 47-824(b) (authorizing City to increase or decrease amount of “impervious surface” and adjust drainage charge when user requests verification and correction of City’s initial drainage charge).
The Railroads acknowledge Krueger’s authority to determine “impervious surface,” but argue that such authority “is constrained by the specific factually determinable rule set by the definition of ‘impervious surface.’ ” The City and Krueger respond just because the ordinance defines “impervious surface” does not eliminate Krueger’s ability to exercise his discretion within that authority. Thus, if the Railroads allege acts within Krueger’s legal authority and discretiоn, their claim only seeks “to control- state action” and is barred by sovereign immunity. See Heinrich,
Moreover, other language within the ordinance supports that the director’s determination of “impervious surface” involves the exercise of discretion. For example, the director has the authority to determine the area of “impervious surface” based on digital map data associated with tax plats and assessment rolls “or other similar reliable data as shall be determined by the director.” Code of Ordinances, § 47-822(d) (emphasis added).
Thus, we sustain in part and overrule in part the Railroads’ sole issue.
III. Conclusion
Accordingly, we reverse in part the trial court’s order on the City and Krueger’s plea to the jurisdiction as to the Railroads’ claims that Krueger acted ultra vires by imposing drainage charges on their properties that are not “benefitted properties” and affirm in part as to the Railroads’ claims that Krueger acted ultra vires when determining the impervious square footage of their properties subject to drainage charges. We remand for proceedings consistent with this opinion.
Notes
. In one additional argument presented here, the City and Krueger contend, assuming certain of the Railroads’ properties drain exclusively into bayous, as the Railroads allege, that " 'benefítted property’ includes property discharging into a bayou” and bayous form part of the City's drainage system as a matter of fact and of law. However, the plain language of the definitions of "benefítted prоperty” and of "drainage system” does not support this claim. See Code of Ordinances, § 47-802. If a particular property directly discharges into a bayou, that may meet the definition of "benefítted property” but only where that bayou "forms part of the city drainage utility system.” See id. Thus, we cannot agree that just because the Railroads allege certain of their properties discharge directly to bayous, they are "benefítted properties.”
. The same rules that govern statutory construction apply to the construction of municipal ordinances. Seawall E. Townhomes Ass’n, Inc. v. City of Galveston,
. In doing so, the Railroads point to certain FAQs and other purportеd City documents allegedly limiting the ordinance's definition of "impervious surface” to such "hard” surfaces. However, their pleadings did not cite such documents nor were such documents attached to their plea response; thus, we review the trial- court's ruling based on the ordinance itself and the face of the pleadings.
. The Railroads acknowledge that section 47-822(d) provides Krueger with discretion to determine and use "other similar reliable data," but contend this discretion is not unlimited. They also contend that using Harris County Appraisal District ("HCAD”) data is "preferred” as the "primary data source” and thаt ■ use of aerial photography analysis equates to Krueger’s rolling "dice” or throwing "darts.” The ordinance, however, does not provide any express preference for HCAD data. Nor does the ordinance require that such data even be used; instead, the ordinance permits the director to determine the area of impervious surface solely on the basis of "other similar reliable data as shall be determined by the director.” Code of Ordinances, § 47-822(d).
. In addition to their arguments that they have adequately alleged ultra vires claims against Krueger, the Railroads also assert that the trial court erred in partially sustaining the plea because their claims arise from the City’s proprietary, as opposed to governmental, functions. They primarily rely on the Texas Tort Claims Act (‘‘TTCA”), which provides that "the operation and maintenance of a public utility” is a proprietary function. See Tex. Civ. Prac. & Rem. Code § 101.0215(b)(1) (West 2011). The Railroads do not seek to invoke the TTCA's limited waiver of governmental immunity for certain negligence or premises claims. See id. § 101.021. Instead, they requested declaratory relief — challenging the validity of the drainage fee ordinance under the Uniform Declaratory Judgments Act ("UDJA”) and seeking to restrain Krueger’s allegedly ultra vires actions. See id. §§ 37.001-.011. However, the UDJA “does not enlarge a trial court's jurisdiction,” and except for suits challenging statutes or ordinances, the UDJA does not waive governmental entities’ immunity from suit. See Heinrich,