Richard Montellano v. Gina Ortiz Jones, in Her Official Capacity; Sukh Kaur, in Her Official Capacity; Jalen McKee-Rodriguez, in His Official Capacity; Phyllis Viagran, in Her Official Capacity; Edward Mungia, in His Official Capacity; Teri Castillo, in Her Official Capacity; Ric Galvan, in His Official Capacity; Marina Alderete Gavito, in Her Official Capacity; Ivalis Meza Gonzalez, in Her Official Capacity; Misty Spears, in Her Official Capacity; Marc Whyte, in His Official Capacity, Erik Walsh, in His Official Capacity

Fourth Court of Appeals
San Antonio, Texas
OPINION

No. 04-25-00331-CV

Richard MONTELLANO,
Appellant

v.

Gina Ortiz JONES, in Her Official Capacity; Sukh Kaur, in Her Official Capacity; Jalen
McKee-Rodriguez, in His Official Capacity; Phyllis Viagran, in Her Official Capacity; Edward
Mungia, in His Official Capacity; Teri Castillo, in Her Official Capacity; Ric Galvan, in His
Official Capacity; Marina Alderete Gavito, in Her Official Capacity; Ivalis Meza Gonzalez, in
Her Official Capacity; Misty Spears, in Her Official Capacity; Marc Whyte, in His Official
Capacity; Erik Walsh, in His Official Capacity; and Michael Shannon, in His Official Capacity,
Appellees

From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CI22967
Honorable Christine Vasquez Hortick, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice

Delivered and Filed: January 21, 2026

AFFIRMED

In this appeal, appellant Richard Montellano challenges the trial court’s order granting the

plea to the jurisdiction filed by appellees Gina Ortiz Jones, Sukh Kaur, Jalen McKee-Rodriguez,

Phyllis Viagran, Edward Mungia, Teri Castillo, Ric Galvan, Marina Alderete Gavito, Ivalis Meza
04-25-00331-CV

Gonzalez, Misty Spears, Marc Whyte, Erik Walsh, and Michael Shannon. Montellano alleges that

appellees, officials for the City of San Antonio (the “City”), acted ultra vires by failing to

implement a statutorily required relocation assistance program benefitting individuals like himself

when public nuisance abatement orders issued by the City’s Building Standards Board (“BSB”)

arising from code violations or a demolition program lead to the demolition of their homes. We

hold that the statute’s unambiguous language and context limit its applicability to the eminent

domain environment—that is, cases in which a government entity will gain possession or obtain

the right to use the property in question. Because the record shows the City would not gain

possession or the right to use Montellano’s property as designated in the statute, under these

circumstances, we affirm the judgment of the trial court.

BACKGROUND

This dispute concerns a property located on the east side of San Antonio, owned in part by

Montellano. Montellano resides in a house on the property. In October 2017, employees of the

City’s Development Services Department began visiting Montellano’s house, eventually

classifying it as a dangerous premise due to its dilapidated form. The City outlined the steps

necessary for Montellano to render his house non-dangerous and provided him access to resources.

Montellano took some steps to comply with the City’s instructions; however, ultimately, in

December 2020, the BSB determined that Montellano’s house was a public nuisance in need of

abatement. Due to the condition of the house, the BSB additionally “found that repair of the

structure was not feasible” and “ordered that the structure be demolished and the premises vacated

within thirty days.” Montellano did not appeal the BSB order. 1

1
By agreement, the BSB order was stayed pending the resolution of this litigation.

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Thereafter, in November 2021, Montellano filed this lawsuit against appellees in their

official capacities. Montellano claimed that appellees failed to comply with section 21.046 of the

Texas Property Code because they had not established a relocation assistance program to help him

and others in similar situations. See generally, TEX. PROP. CODE § 21.046. Located in the eminent

domain chapter of the Property Code, section 21.046 generally requires a government entity to

implement a relocation assistance program that complies with federal law. See id. Montellano

argued that by not complying with the Property Code, appellees had “failed to perform a purely

ministerial act, and therefore [] acted ultra vires.”

Appellees subsequently filed a plea to the jurisdiction, arguing that section 21.046 does not

apply to nuisance abatements adjudicated by the BSB. Instead, appellees contended that section

21.046 applies to situations in which eminent domain power is exercised, such as condemnation

proceedings and all property purchases by the City. Therefore, because section 21.046 does not

apply to nuisance abatement adjudications, appellees aver that they did not have a duty to

implement a relocation assistance program for individuals displaced by BSB orders, as alleged by

Montellano. Accordingly, appellees concluded they could not have acted ultra vires and are

entitled to immunity. After a hearing, the trial court granted appellees’ plea to the jurisdiction.

Montellano now appeals.

STANDARD OF REVIEW

“Sovereign immunity, or governmental immunity as it is called in relation to subdivisions

of the State such as cities, defeats a trial court’s subject matter jurisdiction unless the immunity

has been waived.” City of Houston v. Hous. Mun. Emp. Pension Sys., 549 S.W.3d 566, 575 (Tex.

2018). A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction. See Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Subject-matter

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jurisdiction is a question of law; accordingly, we review de novo a trial court’s ruling on a plea to

the jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

Montellano, as the plaintiff, bears the initial burden of alleging facts that affirmatively

demonstrate the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993). “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. When a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the parties to

determine if a fact issue exists. Id. at 227. The standard of review for a jurisdictional plea based

on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure

166a(c).” Id. at 228.

Furthermore, because this case hinges on the parties’ conflicting interpretations of statutory

text, we must construe the statute with the primary objective “to give effect to the Legislature’s

intent.” Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).

“To discern that intent, we begin with the statute’s words.” TGS-NOPEC Geophysical Co. v.

Combs, 340 S.W.3d 432, 439 (Tex. 2011). “If a statute uses a term with a particular meaning or

assigns a particular meaning to a term, we are bound by the statutory usage.” Id. “Undefined terms

in a statute are typically given their ordinary meaning, but if a different or more precise definition

is apparent from the term’s use in the context of the statute, we apply that meaning.” Id. “And if a

statute is unambiguous, we adopt the interpretation supported by its plain language unless such an

interpretation would lead to absurd results.” Id. “We further consider statutes as a whole rather

than their isolated provisions.” Id. “We presume that the Legislature chooses a statute’s language

with care, including each word chosen for a purpose, while purposefully omitting words not

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chosen.” Id. “If the text’s meaning is unambiguous, we do not resort to extrinsic aids or special

rules of construction.” Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 718 (Tex. 2024).

APPLICABLE LAW AND ANALYSIS

A. A Proper Ultra Virus Claim Survives Immunity

“Even if a governmental entity’s immunity has not been waived by the Legislature, a claim

may be brought against a governmental official if the official engages in ultra vires conduct.”

Houston Mun. Emp. Pension Sys., 549 S.W.3d at 576. “Plaintiffs in ultra vires suits must allege,

and ultimately prove, that the officer acted without legal authority or failed to perform a purely

ministerial act.” Id. (internal quotation marks omitted). “‘Ministerial acts’ are those where the law

prescribes and defines the duties to be performed with such precision and certainty as to leave

nothing to the exercise of discretion or judgment.” Id. (internal quotation marks omitted).

“Conversely, ‘discretionary acts’ are those that require the exercise of judgment and personal

deliberation.” Id. (internal quotation marks omitted).

In this case, Montellano sued appellees, officials for the City, in their official capacity. See

City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 2009) (explaining ultra vires claims can

only be brought against city officials in their official capacity). Therefore, if appellees, as City

officials, are charged with implementing a relocation assistance program under section 21.046 as

Montellano alleges, and failed to do so, an ultra vires claim may be meritorious, and the trial court

erred in dismissing Montellano’s case. See id.

We bear in mind that our responsibility is to remain focused on the narrow question before

us, not the merits of the case. Stated another way, if we determine that section 21.046 applies to

the City as alleged by Montellano, City officials have a mandatory duty to construct and implement

a relocation assistance program in accordance with the statute. However, even if we reach this

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disposition, we are not deciding how the relocation assistance program must be facilitated. See

Houston Mun. Emp. Pension Sys., 549 S.W.3d at 582. (“The controversy here is not about how the

City must make the payments, only whether it must.”) (emphasis added).

B. Texas Property Code Section 21.046 and the Parties’ Interpretations

As relevant here, section 21.46 provides the following:

(a) A department, agency, instrumentality, or political subdivision of this state shall
provide a relocation advisory service for an individual . . . that is compatible
with the Federal Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, 42 U.S.C.A. 4601, et seq.

(b) This state or a political subdivision of this state shall, as a cost of acquiring real
property, pay moving expenses and rental supplements, make relocation
payments, provide financial assistance to acquire replacement housing, and
compensate for expenses incidental to the transfer of the property if an
individual . . . is displaced in connection with the acquisition.

(c) A department, agency, instrumentality, or political subdivision of this state that
initiates a program under Subsection (b) shall adopt rules relating to the
administration of the program.

(d) Neither this state nor a political subdivision of this state may authorize
expenditures under Subsection (b) that exceed payments authorized under the
Federal Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970, 42 U.S.C.A. 4601, et seq.

(e) If a person . . . moves personal property[] or moves from the person’s dwelling
as a direct result of code enforcement, rehabilitation, or a demolition program,
the person is considered to be displaced because of the acquisition of real
property.

TEX. PROP. CODE § 21.046. Subsection (e) formulates the crux of Montellano’s argument. Namely,

Montellano asserts that the City’s use of code enforcement, through the BSB order to demolish his

home because it is a public nuisance in need of abatement, is an acquisition under subsection (e)

that entitles him to benefits in accordance with subsection (b). Because the statute requires a

political subdivision, such as the City, to implement and facilitate a relocation assistance program,

which it is undisputed that the City has not done for individuals whose property is demolished

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04-25-00331-CV

pursuant to BSB orders or court ordered abatement actions, Montellano concludes that appellees’

inaction, as City officials, is ultra vires for which he can bring his claim. 2 Appellees counter that

subsection (e)’s contextual location within the Property Code means that the statutory obligation

is reserved for the City’s use of eminent domain power, such as condemnation proceedings or

other actions in which the City would acquire the property.

In essence, both parties argue that the statute is unambiguous in their favor, or, in the

alternative, if we find the statute to be ambiguous, that legislative history and external construction

aids shift the balance in their favor. For the reasons below, we find section 21.046 to be

unambiguous and direct—the acquisition of property, meaning, in general, to gain possession or

obtain the right to use the property within the context of a government entity’s eminent domain

authority, is a requirement for benefits under subsection (b) and, thus, necessary to impose a duty

on government officials to implement a program rules under subsection (c). Our disposition turns

on the meaning of “acquisition” in section 21.046.

C. “Acquisition” Under Texas Property Code Section 21.046

Neither the statute nor its federal counterpart provides a definitive definition of

“Acquisition.” “In such circumstances, we typically look first to dictionary definitions to

determine a term’s common, ordinary meaning.” Am. Pearl Group, L.L.C. v. Nat’l Payment Sys.,

L.L.C., 715 S.W.3d 383, 387 (Tex. 2025) (internal quotation marks omitted). One dictionary

defines “acquire” as “to gain possession or control of.” Acquire, BLACK’S LAW DICTIONARY (12th

ed. 2024). Another dictionary defines the term as “to get as one’s own.” Acquire, MERRIAM-

WEBSTER.COM, https://www.merriam-webster.com/dictionary/acquire (last visited October 17,

2
Montellano additionally argues that the subsection (e) applies because the City’s use of BSB orders qualifies as a
demolition program. However, regardless of how Montellano prosecutes his claim, our disposition remains the same.
See TEX. R. APP. P. 47.1.

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04-25-00331-CV

2025). Thus, the common or “ordinary” meaning shared by these definitions is that to “acquire”

something, the acquiring party must, at a minimum, gain possession or obtain the right to use the

thing sought to be acquired.

Recently, the Eighth Court of Appeals examined the meaning of “acquisition” in section

21.046. See generally Alamo Heights Indep. Sch. Dist. v. Jones, 705 S.W.3d 317 (Tex. App.—El

Paso 2024, no pet.). In Jones, AHISD, a school district, purchased land that had apartments on it

through a third-party intermediary. Id. at 323. AHISD informed the apartment residents that they

would need to move because the property would be repurposed. Id. The residents sued, arguing

that under section 21.046, AHISD acted ultra vires in failing to implement a program to provide

relocation assistance to the residents. Id. at 323–24. The residents reasoned that because AHISD

“acquired” the property, they were entitled to benefits under subsection (b). Id. at 323. The Eighth

Court conducted a detailed and complex statutory construction analysis. Id. at 329–43. Ultimately,

the Eighth Court, focusing on the meaning of “acquired” in section 21.046, held that the context

and the section’s placement in the Property Code restrict section 21.046’s application to

condemnation cases.

The most important contextual clue for the meaning of “acquiring” in § 21.046 is
its placement within a series of sections that comprehensively deal with eminent
domain. The first three sections in Chapter 21, grouped under Subchapter A
(Jurisdiction), grant jurisdiction to courts in eminent domain cases. The next 20
sections, grouped in Subchapter B (Procedure), define the procedures for how a
governmental entity exercises its eminent domain authority. Those procedures
include initial disclosures to a landowner . . . providing a bill of rights . . . making
a bona fide offer . . . filing of a condemnation petition . . . the appointment and
findings of special commissioners . . . and the appeal from the commissioner’s
decision[.]

....

Section [21.046 is] contained in Subchapter C (Damages and Costs). It contains ten
sections, eight of which expressly relate to payments owed in property
condemnation cases. . . . . The next five sections in Chapter 21, under Subchapter

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D (Judgment), address the judgment in a condemnation case, the writ of possession,
and any appeal. The final five sections outline the process of repurchase of property
from a condemning entity. . . . We acknowledge the Government Code’s
admonition that “[t]he heading of a title, subtitle, chapter, subchapter, or section
does not limit or expand the meaning of a statute.[”] Yet those headings can inform
of the Legislature’s intent. . . . But even without the headings, we would still find
43 sequentially numbered sections that outline the procedures for initiating,
conducting, and concluding condemnation proceedings. To assume that § 21.046
was just randomly placed in this sequence of statutes and is not tied to
condemnation defies reason.
....

. . . [The Residents] point us to added § 21.046(e) which addresses “code
enforcement, rehabilitation, and demolition program.” TEX. PROP. CODE ANN. §
21.046(e). Because none of those situations necessarily encompass condemnation,
[the Residents] reason that the other subsections of § 21.046 apply outside the
condemnation process. This subsection was added in 1973. The Bill Analysis
acknowledged that “Under present law relocation expenses may be paid only where
condemnation proceedings have been initiated.”
....

In summary, we might agree that the Legislature adopted the predecessor to §
21.046 to dovetail with federal relocation requirements, allowing Texas to
participate in federal funding. The relocation services and payments were
discretionary, allowing a governmental entity to comply when it needed to under
federal law, or when it desired to for its own reasons. The terms of § 21.046 only
became mandatory in 2011, and nothing informs us that at that time the Legislature
intended to adopt the comprehensive obligations that the federal government
imposes on itself. Instead, the mandatory obligations in Texas fall within the much
narrower scope of eminent domain.

Id. at 335–40 (citations omitted); see also Burris v. Metro. Transit Auth. of Harris Cnty., 266

S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“A governmental unit exercises its

power of eminent domain through the process referred to as condemnation. Condemnation is the

procedure by which the sovereign exercises its right to take property of a private owner for public

use, without consent, upon the payment of just compensation.”) (citation omitted). Even though

our sister court looked to the legislative history of section 21.046 in its analysis, and we do not,

we nevertheless reach the same result “that the context of § 21.046 limits its application” to the

eminent domain environment—i.e., cases in which a government entity will gain possession or

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obtain the right to use of the property in question. See Jones, 705 S.W.3d at 338; see also Tex.

Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 135–36 (Tex. 2018) (noting that

reference to legislative history or external aids is reserved for when a statute is determined to be

ambiguous despite the legislative grant of power to the contrary); but see TEX. GOV’T CODE §

311.023(3).

Reviewing section 21.046 in its entirety and in the context in which it occurs, acquiring—

meaning possessing or obtaining the right to use of the property—is a necessary triggering event

for a duty to be imposed on a governmental entity to develop a relocation assistance program and

implement rules focused on the parties to be affected by the acquisition as provided by the statute.

See Jones, 705 S.W.3d at 335–40; Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage

Comm’n, 518 S.W.3d 318, 326 (Tex. 2017); Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 58

(Tex. 2015); see also Devines v. Maier, 665 F.2d 138, 148 (7th Cir. 1981) (“[T]he phrases

‘acquisition of real property,’ used in [section] 4601(6), and ‘right to use property,’ used by the

Supreme Court in defining ‘acquisition,’ each carry the connotation of vesting affirmative property

rights.”); cf. Alexander v. U. S. Dep’t of Hous. & Urban Dev., 441 U.S. 39, 63 n.41 (1979) (noting,

in reviewing the federal relocation assistance program statute, “Section 101(6) does not, however,

require that an agency anticipate obtaining title to the property. The legislative history

demonstrates that Congress focused on the eventual right to use property, not on an agency’s mode

of procurement.”).

Here, it is undisputed that the City has adopted and implemented rules in compliance with

section 21.046 in cases in which it exercises its eminent domain authority. It is also undisputed

that the circumstances giving rise to the facts of this case were not spawned from the City’s use of

its eminent domain powers. Rather, Montellano’s lawsuit is based on the City’s initiation of public

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nuisance abatement proceedings, a detailed process established in the Local Government Code.

See generally TEX. LOC. GOV’T CODE §§ 214.001–.005. And critically, the City is not seeking to

acquire possession or obtain the right to use the property, which remains with the owners—

Montellano and his other co-owners. See id. at § 214.002; City of Dallas v. Stewart, 361 S.W.3d

562, 569 (Tex. 2012) (explaining that because “‘all property is held subject to the valid exercise

of the police power,’” the Supreme Court of Texas has “long held that the government commits

no taking when it abates what is, in fact, a public nuisance”).

Furthermore, it is unlikely and illogical for the legislature to have intended for the benefits

described in subsection (b) and the relocation assistance program mandated in the statute to apply

to every fathomable situation in which a person must move personal property or from their home

as a direct result of code enforcement or an enumerated program. See United States v. Am. Trucking

Assns., Inc., 310 U.S. 534, 543 (1940) (“There is, of course, no more persuasive evidence of the

purpose of a statute than the words by which the legislature undertook to give expression to its

wishes.”); see, e.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 444 (Tex. 2009); Saade

v. Villarreal, 280 S.W.3d 511, 519 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d). We

additionally recognize that under the Local Government Code, a municipality may generally

recover the expense of removing a public nuisance and assess civil penalties. See generally TEX.

LOC. GOV’T CODE § 214.0015; SAN ANTONIO, TEX. CODE art. VIII § 6-165 (2025); Bd. of

Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). As we strive to read

statutes cohesively, it is untenable to interpret the Local Government Code as allowing a

municipality to recover the expenses of abating public nuisance and impose civil penalties, while

the Property Code would require the municipality to create a program mandating relocation

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expenses. 3 See Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)

(“Looking to the statutory scheme, we strive to give the provision a meaning that is in harmony

with other related statutes.”); Combs, 340 S.W.3d at 439.

In sum, we hold that subsection (e) only applies in the situations in which the governmental

entity “acquires” the property, such as through eminent domain or other proceedings in which

possession or the right to use the property will pass to the government entity within the context of

the entity’s eminent domain authority. Here, because the City will not gain possession or obtain

the right to use the property, and because it is undisputed that the City is not exercising its eminent

domain authority, appellees do not have a statutory duty to implement a relocation assistance

program under section 21.046 as alleged by Montellano. Accordingly, appellees have not acted

ultra vires in failing to implement a program that they have no legal duty to implement.

D. Montellano’s Due Course of Law

Finally, Montellano argues that, because he has a right to relocation assistance under

subsection (e) based on the language of section 21.046, and because appellees failed “to provide

any procedures to claim assistance or challenge the deprivation of assistance,” his right to the due

course of law in the Texas Constitution has been violated. “The Texas Constitution’s due-course-

of-law guarantee provides that ‘[n]o citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due course of the law of

the land.’” Mosley v. Tex. Health & Human Services Comm’n, 593 S.W.3d 250, 264 (Tex. 2019)

(quoting TEX. CONST. art. I, § 19) (alteration in original). To be protected by the state constitution’s

3
We acknowledge that our sister court, when examining the legislative history of subsection (e), generally stated that
“[e]ach of the § 21.046(e) situations involve a common thread—a government’s coercive power to regulate the use of
private property. They serve as a stand in for condemnation, and are a logical addition to § 21.046. Thus[,] they do
not inform our view of AHISD’s duties in acquiring this Property.” See Jones, 705 S.W.3d at 340. We interpret our
sister court’s point, within its broader analysis, to mean that the acquisition of the property—or a “stand in” for a
condemnation case—is necessary for the statute to apply. The question of what constitutes, does not, and could be a
condemnation case is not before this court.

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due-course clause, however, the protected interest must be vested. See Tex. Dep’t of State Health

Sers. v. Crown Distrib. LLC, 647 S.W.3d 648, 655 (Tex. 2022); Honors Acad., Inc. v. Tex. Educ.

Agency, 555 S.W.3d 54, 61 (Tex. 2018) (“To have a constitutionally protected . . . interest, a person

must have a legitimate claim of entitlement rather than a mere unilateral expectation.”) (internal

quotation marks omitted). Here, because we hold that appellees do not have a duty to implement

a relocation assistance program under these facts, Montellano has not shown that he has a vested,

constitutionally protected interest. See Crown Distrib. LLC, 647 S.W.3d at 655; Honors Acad.,

Inc., 555 S.W.3d at 61. Accordingly, because Montellano has not been deprived of a vested interest

protected by the due course clause, his right to due course of law has not been violated.

CONCLUSION

Because an ultra vires claim against City officials will only lie where a legal duty exists,

and none does here, the trial court did not err in granting appellees’ plea to the jurisdiction. We

affirm the judgment of the trial court.

Lori I. Valenzuela, Justice

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