The San Antonio Court of Appeals has held that a city or other governmental entity has no obligation to help a resident pay for relocation expenses if the city abates the resident’s property as a public nuisance.
Montellano v. Jones, et al. (No. 04-25-00331; Jan. 21, 2026) arose from a dispute between Plaintiff and City of San Antonio officials over the city’s abatement of Montellano’s home as a public nuisance. City employees began visiting the residence in 2017 and classified the house as dangerous and “dilapidated.” Even though Montellano began taking steps to comply with the city to render his home to a habitable condition, in December 2020 the city ordered the demolition of the house and vacation of the premises within 30 days. Plaintiff did not appeal the city’s order but instead filed a lawsuit in November 2021 against city officials of San Antonio for failing to provide him with a relocation assistance program under § 21.046, Property Code. Plaintiff argued that by failing to adhere to the statute, the city “failed to perform a purely ministerial act, and therefore acted ultra vires.” The city argued that § 21.046 applied to situations involving eminent domain and not to nuisance abatements, so there was no duty to put in place a relocation assistance program. Consequently, the city contended that because city employees did not fail to perform their official duties, they did not act ultra vires and were entitled to immunity. The trial court granted the city’s plea to the jurisdiction. Plaintiff appealed.
In an opinion by Justice Valenzuela, the court of appeals affirmed. The issue boiled down to the construction of the statute. Section 21.046 directs political subdivisions to establish a relocation advisory service for an individual that is compatible with the federal program. The program must, “as a cost of acquiring real property,” pay moving expenses and other costs of relocating residents. The statute states further that if a person moves from the person’s dwelling as a direct result of “code enforcement, rehabilitation, or a demolition program,” the person is considered displaced because of the property acquisition. Plaintiff hung his hat on this latter part of the section, arguing that an abatement of a public nuisance constituted a code enforcement or demolition entitling him to benefits. The city, on the other hand, argued that, since the statute is located in Chapter 21, Property Code, it only applies in the eminent domain context.
The court cited a recent opinion of the El Paso Court of Appeals, which examined the legislative history and intent of § 21.046. In Alamo Heights Indep.Sch.Dist. v. Jones, 706 S.W.3d 317 (Tex. App.—El Paso 2024, no writ), a school district purchased land with apartments on it and required residents to relocate. Residents sued, arguing that under § 21.046 the district acted ultra vires in failing to implement a program to require relocation assistance to them. The court determined that § 21.046 pertained exclusively to eminent domain and that the term “acquiring” in the statute should be interpreted in that context. It pointed to the bill analysis, which explained that “under present law, relocation expenses may be paid only where condemnation proceedings have been initiated.” Additionally, the court observed that there might be some truth to the Legislature adopting “the predecessor” to § 21.046 to receive federal funding, but when section 21.046 became “mandatory” in 2011, it felt the Legislature had no intention of holding itself to the federal standard of obligations which the federal government “imposed on itself.”
Based on the analysis of its sister court, the court found the term “acquiring” to mean “possessing or obtaining the right to use of the property.” A governmental entity thus becomes obligated to implement a relocation assistance program when it acquires the right to use and possession. But in this case Plaintiff’s suit didn’t stem from the city’s acquisition of property for its own use or possession, but instead from an abatement of public nuisance process established in Local Government Code. Here the property remained in the possession of Plaintiff to do with as he pleased, provided that he removed the nuisance. The court found it “illogical” for the Legislature to intend the use of relocation assistance for every situation in which an individual is moved because of code enforcement.
The court concluded that section 21.046(e) does not apply to Plaintiff’s case because the city did not acquire his property through the use of eminent domain (or at all). Consequently the city had no obligation to implement a relocation assistance program and city officials did not exceed their statutory authority. Plaintiff tried to make due course of law argument under the Texas Constitution, but the court found that he had no “vested, constitutionally protected interest” because he had no vested right in relocation assistance. The court affirmed the TC order dismissing the case.
TCJL Legal Intern Haden Knobloch researched and prepared the first draft of this article.
