COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ALAMO HEIGHTS INDEPENDENT

SCHOOL DISTRICT

, and RYAN

ANDERSON, DAVID HORNBERGER,

BRIAN HAMILTON, BONNIE GIDDEN,

LISA KRENGER, PERRY SHANKLE,

STACY SHARP

, and DR. DANA

BASHARA

, in their O fficial C apacities,

Appellants,

v.

SELINA JONES, ROY HUMMEL, and

LESLIE MICHELLE PRUITT

,

Appellee s

. §

§

§

§

§

§

§

§

§ No. 08

- 23

- 00 124

- CV

Appeal from

438th Judicial District Court

of Bexar County, Texas

(TC# 2020CI23809 )

O P I N I O N

The lawsuit below was brought by Selina Jones, Roy Hummel, and Leslie Michelle Pruitt,

tenants of an apartment complex (the Residents)

, who were displaced when it was purchased by

the Alamo Heights Independent School District (the District)

. The D istrict required the Residents

to vacate the ir apartments in anticipation of its demolition

. The Residents filed suit in Bexar

County seeking relocation e xpenses

, relocatio n assistance

, and injunctive relief (all premised on

two provisions in Chapter 21 of the Texas Property Code) against the D istrict and several of its2

officials (R yan Anderson, David Hornberger, Brian Hamilton, Bonnie Gidden, Lisa Krenger, Perry

Shankle, Stacy Sharp, and Dr. Dana Bashara ) (collectively, AHISD)

. 1

Before this Court

, AHISD seek s interlocutory review of the trial court ’ s order den ying their

second

- filed motion for summary judgment

, which expressly raised a jurisdictional plea as to

claims brought under Chapter 21. We conclude that the claims asserted do not fall within any

waiver of AHISD ’ s governmental immunity

, which therefor e deprives the trial court of jurisdiction

to reach the merits of the suit

. But before explaining our reasoning for that holding, we tackle a

challenge to our own jurisdiction based on the denial of AHISD ’ s first

- filed motion for summary

judgment (which was not appealed)

. The Residents urge that i f the first filed motion raised the

same jurisdictional challenge

, and was not appealed, th e appeal of the second filed motion w ould

be un timely.

We conclude that the first motion did not expressly raise a jurisdictional challenge

— the

second motion did

— and we thus have jurisdiction to hear this appeal

. We conclude that the second

motion should have been granted, which deprives the trial court of jurisdiction over the merits of

the suit.



### I. B ACKGROUND

A. AHISD buys an apartment complex and evicts its tenants

The Residents lived at the Desert Sands Apartments in San Antonio (the Property)

, where

they pa id monthly rent between $515 and $595. By 202 0, e ach Re sident was leasing month

- to

month

.

1 This case was transferred pursuant to the Texas Supreme Court ’ s docket equalization efforts. Tex. Gov ’ t Code Ann.

§ 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See

Tex. R. App. P. 41.3.3

In March 2020, t he District purchased the Property

, which sits across the street from a local

high school

. To avoid revealing the D istrict ’ s identity as the buyer, it engaged another entity to

enter into a contract to purchase the Property and subsequently assign its interests in the contract

to the D istrict

. The District maintains that it took this approach to “ negotiate a fair market price

for the Property without fear that the seller would realize it was negotiating with a governmental

entity and try to drive up the sales price [

. ] ” After acquiring the Property, the District sent letters to

the Residents still residing at Desert Sands

, stating that it would extend their leases until June 30,

2020 to provide “ enough time to find an alternate living accommodation, ” so long as the they

“ compl[ied] with all of the other terms and conditions of the Lease

. ”

Each of the Residents faced challenges with the change in ownership. Mr. Hummel

reported that soon after he received the District ’ s letter, construction workers entered his home

without knocking

, claiming that they were part of a demolition team and had been told no one was

living there

. T he District later agreed to extend Mr. Hummel ’ s deadline to vacate until

September 30, 2020. In A ugust 2020, through counsel, Mr. Hummel sent the District a demand for

relocation assistance under Texas Property Code § 21.046

, which the Dis t rict denied

. Mr. Hummel

ultimately found a new apartment in October 2020

, but his rent increased from what he paid at

Desert Sands.

Ms. Pruitt not iced maintenance issues after the District purchased the Property, including

lapsed pest control and an unaddressed water leak that she says caused her electric bill to rise

several hundred dollars more than normal. When she moved to a new apartment in July 2020, her

rent increased more than $300 per month

. She also reported that the D istrict towed her c ar from

Desert Sands, and she has been unable to retrieve it from storage due to her financial struggles.4

At Ms. Jones ’ s request, the District extended her deadline to vacate until September 30,

2020

, though it denied her request for relocation assistance under § 21.046 of the Property Code

.

Ms. Jones retained counsel and again made a relocation

- assistance demand

. When Ms. Jones did

not pay rent for August, the District sent her a notice of default, requesting that she become current

on rent within 15 days or meet with District representative s to determine another payment

arrangement

. Ms. Jones instead renewed her demand for relocation assistance

, which the District

again denied

. It instead offered to connect Ms. Jones with the owner of another apartment complex

who was willing to assist her in renting an apartment at a reduced rate for a six

- month lease

. Those

attempts failed

, and the District gave Jones a notice to vacate on October 1 and again on

November 5. The District began eviction proceedings but later dismissed its case after Ms. Jones

vacated the Property on January 23, 2021.

B. The R esidents strike back

, suing for relocation expenses

In December 2020

, the Residents sued the District as well as its superintendent and trustees

in their official capacities

. Their suit is premised on duties defined by § 21.046(b ) of the Texas

Property Code which provides that governmental entities “ 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

. ”

Tex. Prop. Code Ann § 21.046(b )

. The suit asserted an ultra vires claim against several officials

of the District claiming they failed (1) to provide “ any relocation advisory services or relocation

program ” or (2) “ adopt [ ] rules relating to the administration of the relocation program ” or (3)5

provid e several notices the Residents contend a s required by § 21.046(b ). As a separate claim, the

Residents sought recovery of relocation expenses under § 21.043 of the Property Code

. 2

AHISD answered and aside from its general deni al, ple a d ed six affirmative defenses

, two

of which claimed: (1) that because AHISD was immune from Appellees ’ claims, the trial court

lacked subject matter jurisdiction; and (2) that Chapter 21 of the Texas Property Code was

inapplicable to the subject of the suit because it only applied to eminent domain proceedings.

C. AHISD files for summary judgment on the merits

In March 2021

, AHISD filed its first motion for summary judgment, which argued that

AHISD had “ no duty to pay any relocation fees ” to the Residents because “ [t]he eminent domain

chapter of the Texas Property Code (Chapter 21)

, and the relocation program section therein

(Section 21.046) are inapplicable to an arm ’ s length purchase, such as the one at issue here. ” They

also contended that the Residents “ are not ‘ persons displaced due to an acquisition ’ as required for

applicability of S ection 21.046. ” The motion sought dismissal of the claims with prejudice. A fter

a hearing, the trial court in June 2021 denied the motion

.

D. AHISD reloads its summary judgment motion, and adds a governmental

immunity claim ; the R esidents file their own partial motion for summary

judgment

In July 2022

— o ver a year after the denial of its first motion for summary judgment

—

AHISD filed a second motion for summary judgment

. In that motion, AHISD made the same

arguments noted above but added that because “ AHISD did not exercise its eminent domain

2 That section allows that:

A property owner who is permanently physically displaced from the property owner ’ s dwelling or

place of business and who is not entitled to reimbursement for moving expenses under another law

may recover, in addition to the property owner ’ s other damages, the reasonable expenses of moving

the property owner ’ s personal property from the dwelling or place of business.

Tex. Prop. Code Ann. § 21.043 (a). The suit also sought injunctive relief to forestall Ms. Jones ’ s then

- pending eviction

suit, but that claim is now moot.6

authority, Chapter 21 itself deprives the Court of jurisdiction to decide any issues of amounts

awardable under Chapter 21 Subchapter C [

. ] ” It added that all discovery was complete

, so the

motion for summary judgment was ripe

.

The Residents opposed the motion and filed their own motion for partial summary

judgmen t, which asked the trial court to conclude that AHISD violated § 21.046

.

E. The trial court denies AHISD ’ s motion and grants the Residents ’ motion

After hearing the cross

- motions, the trial court denied AHISD ’ s motion and granted the

Resident ’ s motion

. Its order conclud ed that :

• AHISD has “ ministerial duties under Texas Property Code section 21.046 and those

duties apply to negotiated purchases of real property as well as demolition programs,

even in the absence of any exercise of eminent domain authority ” ;

• the Residents “ are entitled to advisory services and relocation assistance as described

in section 21.046 which requires [AHISD] to compensate [the Residents] ” ;

• AHISD “ acted ultra vires and violated their ministerial duties to [the Residents] under

Texas Property Code section 21.046 by failing to provide relocation advisory services,

to pay moving expenses, to pay rental supplements, to make relocation payments, to

provide financial assistance to acquire replacement housing, and to compensate for

expenses incidental to the transfer of property ” ; and

• AHISD “ acted ultra vires and violated their ministerial duty by failing to adopt rules

relating to the administration of a relocation assistance program under Texas Property

Code section 21.046. ”

AHISD filed its notice of accelerated interlocutory appeal

. After filing their merits brief, the

Residents moved to dismiss the appeal for lack of appellate jurisdiction due to AHISD ’ s purported

untimely notice of appeal

.



### II. T HE 

### M OTION TO 

### D ISMISS

The Residents ask that we dismiss this appeal because AHISD ’ s second motion for

summary judgment re

- urged the same grounds for dismissal as in their first motion, making the

second motion effectively a motion to reconsider

, which is not subject to interlocutory appeal.7

Thus, the Residents argue that AHISD ’ s appeal deadline lapsed 20 days after the trial court ’ s denial

of its first motion for summary judgment

— nearly two years before AHISD filed its notice of

appeal.

AHISD urges otherwise, contending its first motion did not seek dismissal on jurisdictional

grounds but sought dismissal based on the Residents ’ failure to state a cognizable claim. AHISD

maintains it raised governmental immunity and the lack of subject

- matter jurisdiction under

Chapter 21 for the first time in its second motion, such that its notice of appeal is timely filed.

AHISD adds that motions for summary judgment are limited to the grounds “ expressly ” asserted

in them and the first motion did not assert a lack of subject matter jurisdiction

.

The relevant timeline of events is as follows:

• December 10, 2020

— suit is filed.

• March 16, 2021

— AHISD file s its first

- filed motion captioned as a “ Motion for

Summary Judgment. ”

• June 25, 2021

— trial court denies AHISD ’ s motion, no appeal taken

.

• July 13, 2022

— AHISD file s a second

- filed motion captioned, “ [AHISD ’ s] Second

Motion for Summary Judgment. ”

• March 8, 2023

— AHISD ’ s motion denied, notice of appeal filed 20 days later

.

A. Controlling case law and the limited guidance it provides to the issue before us

First, we note the law that is clear. A party may appeal from a district court ’ s interlocutory

order that grants or denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(8 ). Because it is an accelerated appeal

, the party must file its notice of

appeal within 20 days after the judgment or order is signed. Tex. R. App. P. 26.1(b); 28.1(a). A

party who misses that deadline cannot reset the timetable by moving to reconsider and noticing its

appeal from the date of denial of the motion to reconsider. City of Houston v. Estate of Jones

, 3218

S.W.3d 668, 670 ( Tex. App.

— Houston [14th Dist.] 2010), aff ’ d in part, rev ’ d in part

, 388 S.W.3d

663 ( Tex. 2012) ; Dayco Products, Inc. v. Ebrahim

, 10 S.W.3d 80, 83 ( Tex. App.

— Tyler 1999, no

pet.)

.

But o nly a few case s have tackled whether a governmental entity los es its right to an

interlocutory appeal by filing successive motions, where the adverse ruling from the first motion

was not appealed. While instructive, none squarely address the question before us.

I n City of Houston v. Estate of Jones

, the governmental entity file d successive pleas that

each s ought dismissal for want of jurisdiction

. 388 S.W.3d 663 ( Tex. 2012) (per curiam). The first

plea was denied and not appealed. Id. at 664

. The second plea was denied and was appealed. Id

.

Agreeing that the appeal was untimely, the Court there held that when the second motion only

offers new reasons for immunity, the change is one of form over substance and is in effect a motion

to reconsider. Id

. at 667

. The Court reasoned that i f a governmental entity could file successive

pleas to the jurisdiction by simply adding new reasons, it “ would invite successive appeals and

undermine the statute ’ s purpose of promoting judicial economy. ” Id

. at 667

, ( quoting Bally Total

Fitness Corp. v. Jackson

, 53 S.W.3d 35 8 ( Tex. 2001) )

.

In City of Magnolia 4A Econ. Dev. Corp. v. Smedley

, the C ourt again considered two

motions, each of which sought dismissal for want of juri s dic tion

. 533 S.W.3d 297, 300

( Tex. 2017). The first was a plea to the jurisdiction pre sented through a Rule 91a motion that

cla i m ed even if the plaintiff ’ s pleaded facts were true, they did not establish a waiver of

governmental immunity. Id

. at 298

– 99. The second motion was a traditional mo tion for summary

judgment that sought to put forward facts that disproved any ground for immunity. Id. at 301

. The

Court there held that the motions were “ sufficiently different based on both their substance and

procedural nature ” such that the second “ was not a mere motion for reconsideration

. ” Id

. at 302

.9

In both Estate of Jones and Smedley

, each set of successive motions expressly sought

dismissal based on subject matter jurisdiction. Smedley

, 533 S.W.3d at 298

– 99 ; Estate of Jones

,

388 S.W.3d at 664

. Here, however, AHISD ’ s first

- filed motion never mentioned subject matter

jurisdiction

. 3 Thus

, the Residents ’ argument hinges on whether the denial of the first motion denied

a n implied plea to the jurisdiction

, that then created an obligation on AHISD to appeal

. We find

limited guidance on that point as well. In Thomas v. Long

, a governmental entity filed a combined

motion for summary judgment and challenge to jurisdiction

. 207 S.W.3d 334, 339

– 40 ( Tex. 2006).

T he trial court did not rule on the plea to the jurisdiction but granted a partial judgment on the

merits. Id. at 339

. The governmental entity took an interlocutory appeal that the court of appeals

dismissed because there was no express ruling on the plea to the jurisdiction. The supreme court

,

however, reversed because it found an implied ruling on the plea : “ B ecause a trial court cannot

reach the merits of a case without subject matter jurisdiction, a trial court that rules on the merits

of an issue without explicitly rejecting an asserted jurisdictional attack has implicitly denied the

jurisdictional challenge. ” at 339

– 40 (internal citation omitted). But clear from the opinion is that

the summary judgment motion “ asserted [a] jurisdictional attack ” that “ clearly challenged ” subject

matter jurisdiction. Id

. at 339

. That is, Thomas involves an implied ruling on plea, and not a motion

that is an implied plea

.

B. AHISD did not lose its right to appeal

These case s frame our dispute which asks whether the denial of a motion for summary

judgment (that never mentions subject matter jurisdiction or governmental immunity) and that

3 In its first

- filed motion, AHISD cited no case law or authority establishing the trial court lacked subject matter

jurisdiction. The word “ jurisdiction ” was only included in passing in two instances: (1) in listing the subtitles of

Chapter 21; and (2) in generally discussing the jurisdiction of the justice court to grant injunctive relief when Chapter

21 applied to a transaction

. Moreover, the motion never used the words “ immune, ” “ immunity, ” “ waive, ” or “ waiver. ”

The Residents ’ response to the first motion likewise did not reference “ jurisdiction ” nor use any of these related terms.

See Tex. R. Civ. P. 166a(c)

.10

seeks only a dismissal with prejudice

, is an impl ied ruling on a n impli ed plea to the jurisdiction

that must be immediately appealed

. For four reasons, we conclude that it i s not.

First, the substance of the two motions w as different in the relief sought

. A jurisdiction al

plea is “ a ‘ dilatory plea ’ that challenges a court ’ s jurisdiction to hear the case. ” Abbott v. Mexican

Am. Legis. Caucus, Tex as House of Representatives

, 647 S.W.3d 681, 689 ( Tex. 2022). Its purpose

is to defeat a plaintiff ’ s claims, “ without regard to whether the claims asserted have merit. ” Bland

Indep. Sch. Dist. v. Blue

, 34 S.W.3d 547, 554 ( Tex. 2000). When granted, the court dismisses the

case without reference to the merits. In comparison, the purpose of a summary judgment is “ to

eliminate patently unmeritorious claims and untenable defenses. ” Samson Expl., LLC v. T.S. Reed

Props., Inc.

, 521 S.W.3d 766, 783 n.56 ( Tex. 2017) (citing City of Houston v. Clear Creek Basin

Auth.

, 589 S.W.2d 671, 678 n.5 ( Tex. 1979)); see also Tex. R. Civ. P. 166a(c). A summary

judgment resolves the merits. See Hyundai Motor Co. v. Alvarado

, 892 S.W.2d 853, 855

( Tex. 1995). Here, the first motion for summary judgment asked the trial court to dismiss all the

claims with prejudice. The portion of the second motion that asserted a jurisdictional challenge

ask s that the suit be dismissed for lack of jurisdiction. C f. Tex as Comm ’ n on Env ’ t Quality v. Union

Pac. R.R. Co.

, No. 03

- 21

- 00082

- CV, 2022 WL 1038198, at *4 ( Tex. App.

— Austin Apr. 7, 2022,

pet. denied ) (mem. op.) (determining governmental entity ’ s motion for partial summary judgment

was not a plea to the jurisdiction when the motion did not attempt to defeat any cause of action

without regard to the merit s

, or contend the district court lack ed jurisdiction, or challenge the

district court ’ s authority to decide the subject matter of a claim).

Second, while the initial premise s in the two motions may be the same, the portion of the

argument that legally justifies the trial court ’ s action is different

. B oth motions begin with the

premise that Chapter 21 does not govern the Residents ’ claim, but they diverge on how that11

premise translate s into the relief sought. On the merits, the inapplicability of Chapter 21 cuts the

legs out of any duty owed by AHISD

, b ecause the duty to act must arise from somewhere. But the

inapplicability of Chapter 21 has a different path to relief in the jurisdictional sense. The second

motion include s two and half pages of case citations and arguments on the Resident ’ s burden to

overcome governmental immunity

. It argues that the only ground available to overcome immunity

for the Residents is through § 21.003

, but that would in turn necessitate the existence of a claim

under Chapter 21

.

Third, no existing case authority squarely holds that a governmental entity raise s a plea to

the jurisdiction simply by asserting a predicate assertion that could be used to support such a plea

.

That is, there is case law that tells us when there is an implied ruling o n a plea to the jurisdiction,

but not when there is a ruling on an implied plea to the jurisdiction. Some existing cases hit around

that proposition, and snippets from those case s can be cobbled together to suggest that could be

the law

. B ut we are unpersuaded absent controlling authority that it should be the law. And i f it

were the case, we would undermine several important policies.

Recognizing an implied ruling on an impli ed plea would undermine the legislative

preference that governmental entities be allowed to test a trial courts ’ denial of a “ plea to the

jurisdiction ” by interlocutory appeal

. As here, an impli ed plea creates a s nare for the unwary

,

inadvertently costing an entit y its right to appeal

. See Mitschke v. Borromeo

, 645 S.W.3d 251, 261

( Tex. 2022) ( noting historical development of rules designed to move Texas away from “ traps ” in

its appellate procedure ). That is, governmental entities c ould potentially sacrifice the right to

appeal simply by making a merits

- based argument in one of the several motions that can house a12

jurisdictional plea

, but which a court later determine s could have been used to seek dismissal on

governmental immunity grounds. 4

Next, re cognizing an impli ed plea to the jurisdiction would undermine Rule 33.1 ’ s

directive that complaints should be made to the trial court through a motion that state s “ the grounds

for the ruling

. . . with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context [.] ” Tex. R. App. P. 33.1 (a)(1)(A)

. A party (or

court) should not have to guess about whether a plea to the jurisdiction is before it (and therefore

subject to interlocutory appeal). So r ather than requiring government entities to expressly inform

the trial court (and opposing counsel) that a jurisdictional dismissal motion is at issue

, an impli ed

plea

- rule would allow those entities to knowingly or unknowingly hide the ball. 5 T r ial courts would

fall in to the role of “ Inspector Javert, hunting for defects [in jurisdiction] that the parties do not

see or raise

. ” See Rattray v. City of Brownsville

, 662 S.W.3d 860, 869 ( Tex. 2023) ( “ [c]ourts are

empowered to note potential jurisdictional defects sua sponte, but the adversary process remains

the touchstone of litigation even in this context. ” ). And for that matter, it would deny those who

sue a governmental entity fair notice that some merits

- based motion is also a stealth plea to the

jurisdiction

, a ruling on which can be immediately appealed. 6

4 A “ plea to the jurisdiction ” is not restricted to a “ particular procedural vehicle [.] ” Texas D ep ’ t of Crim. Justice v.

Simons , 140 S.W.3d 338, 349 ( Tex. 2004). So, a jurisdictional plea could be through a variety of different singular or

hybrid motions. See Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 ( Tex. 2000) (stating plea may be raised

through “ other procedural vehicles, such as a motion for summary judgment. ” ): Town of Shady Shores v. Swanson

, 590 S.W.3d 544, 551 ( Tex. 2019) (allowing pleas to be raised in no evidence motion for summary judgment); City of

Magnolia 4A Econ. Dev. Corp. v. Smedley , 533 S.W.3d 297, 299

– 300 ( Tex. 2017) (jurisdictional challenge raised

through Rule 91a motion, and hybrid plea to the jurisdiction and motion for summary judgment).

5 Add appellate court clerks to the list of interested parties ; an attempted appeal of the first motion for summary

judgment would have likely met with an appellate court clerk questioning the basis for the appellate court ’ s ability to

hear the denial of an interlocutory motion for summary judgment.

6 It would also contravene the oft cited proposition that a party on appeal is restricted to the argument advance d to the

trial court. See Elness Swenson Graham Architects, Inc. v. RLJ II

- C Austin Air, LP , 520 S.W.3d 145, 159 ( Tex. App.

— Austin 2017, pet. denied) ( collecting case for the proposition that “ [t] o preserve error for appeal, the argument made

in the trial court must comport with the argument made on appeal.)

. If the Residents w ere right, a governmental entity13

Finally, dismissing the appeal here means that the parties must wait until a final trial on the

merits to test whether governmental immunity precludes the claims

. We are often reminded that

court of appeals should seek to resolve cases on the merits, and not procedural failings. See Perry

v. Cohen

, 272 S.W.3d 585, 587 ( Tex. 2008) (advising appellate courts to “ reach the merits of an

appeal whenever reasonably possible ” ); Verburgt v. Dorner

, 959 S.W.2d 615, 616

– 17 ( Tex. 1997)

( “ This Court has never wavered from the principle that appellate courts should not dismiss an

appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate

Procedure would preserve the appeal. ” ); Silk v. Terrill

, 898 S.W.2d 764, 766 ( Tex. 1995) (in the

context of supplementing the record, “ [ j ] udicial economy is not served when a case, ripe for

decision, is decided on a procedural technicality of this nature. ” )

. To be sure, that preference does

not allow a court of appeals to create jurisdiction where none is established by statute. Mitschke

,

645 S.W.3d at 261

– 62 ( Tex. 2022)

. Yet here, the statute requires an interlocutory appeal of a “ plea

to the jurisdiction ” and AHISD did not file a pleading denominated as a plea to the jurisdiction.

This Court would be effectively renaming the pleading

, and in doing so, avoiding the merits of

this appeal. We decline to do so.

Fourth, we find no demonstrable prejudice to the Residents. True enough, some premises

raised in AHISD ’ s two motions were similar, if not repetitive. And were the filing of two motions

done for some strategic purpose to give AHISD a leg up on the jurisdictional challenge, we might

be more persuaded by the Residents ’ argument. But waiting two and half years to file its plea to

the jurisdiction, and more than a year after losing its summary judgment, did AHISD no favors. It

did not diminish the Residents ability to respond to the plea to the jurisdiction. It did not capitalize

on any change in the law. It did not allow for successive appeals as feared in Estate of Jones

, 388

could argue for a merits

- based dismissal to the trial court, then on appeal pull out the plea to the jurisdiction argument

with its own unique case law and standards

.14

S.W.3d at 667 ( “ the main purpose of the interlocutory appeal statute

. . . is to increase [the]

efficiency of the judicial process. ” ) ; see also Mitschke

, 645 S.W.3d at 263 ( “ Nothing suggests that

the misfiling was done from trickery or to mislead anyone, and respondents have presented no

argument about how Mitschke ’ s filing the motion in the original docket number could have

prejudiced them. ” ).

We therefore deny Appellees ’ motion to dismiss and address the merits of the appeal.



### III. D ID THE 

### L EGISLATURE 

### W AIVE 

### AHISD ’ S 

### G OVERNMENTAL 

### I MMUNITY 

### ?

As prefaced above, the governmental immunity question turns on whether the Legislature

has waived immunity for the claims asserted. We frame that question with some historical

background of the statut es relied on by the Residents

.

A. The s tatutory b ackground

(1) Origins of Tex. Prop. Code Ann. § 21.046

In 1968, Congress passed the Federal

- Aid Highway Act of 1968, Pub. L. No. 90

- 495, 82

Stat. 815 (codified at 23 U.S.C. § § 501

– 512)

. Section 502 of that Act stated that the Secretary of

Transportation “ shall not approve any project ” which would cause the displacement of any person,

business, or farm unless the State Highway Department provided assurances for “ fair and

reasonable ” relocation expenses and a “ relocation assistance program ” benefiting the displaced

persons. Id. § 30

, 82 Stat. at 831 (emphasis added).

A state as large as Texas cannot pass up federal highway dollars. So the Texas Legislature

acted quickly and passed its own measure

— limited to the State Highway Commission ’ s

acquisition of right of way

— that allowed displaced persons to seek moving expenses, relocation

payments, rental supplements

. Act of March 24

, 1969, 61st Leg., R.S.

, ch. 45, §1, 1969 Tex. Gen

.

Law s 133 ( originally Tex. Rev. Civ. Stat. Ann. art. 667n

- 4, repealed 1983 and recodified at15

Tex. Prop. Code Ann. § 21.046 )

. In 1970

, Congress passed the Uniform Relocation Assistance and

Real Property Acquisition Policies Act of 1970

, Pub. L. No. 91

- 646, 84 Stat. 1894 (codified at 42

U

. S

. C

. A

. § § 4601

– 4655 )

. T hat measure ex panded the Federal

- Aid Highway Act beyond road

construction to other federally funded projects

. 42 USCA § § 4601

– 4655. 7 In 1971, the Texas

Legislature then broadened Article 6674n

- 4

, making it applicable to the acquisition of real property

by any “ department, agency,

. . . instrumentality

. . . or

. . . political subdivision ” of the State ; it

was also relocated from Title 116 (State Highways) to Title 52 (Eminent Domain)

. Act of May 31

,

1971, 62nd Leg., R.S., ch

. 918, § 1, sec s

. 1

– 3

, 1971 Tex. Gen. Laws 2817

, 2817

– 18 ( repealed 1983

and recodified at Tex. Prop. Code Ann. § 21.046 )

. This expanded enactment also allowed for a

person displaced to be paid moving expense s

, relocation payments

, and rent al supplements. Id.

Each instrumentality of the State was required to formulate rules and regulations to carry out the

provision, but the payments were only authorized

— they were not required. Id

. But if paid, the

amounts were limited to those authorized by the more comprehensive federal enactment. Id. § 1,

sec. 2

, 1971 Tex. Gen. Laws at 2818

.

The 1971 revision was codified a s Article 3266b in the old Texas Civil Statutes

. Tex. Rev.

Civ. Stat. Ann. art. 3266b (repealed 1983)

. Article 3266a

, passed in the same legislative session,

contains s even sub

- sections that define d the jurisdiction of courts in eminent domain proceedings.

Act of May 31

, 1971, 62nd Leg., R.S.

, ch. 832

, § § 1

– 7

, 1971 Tex. Gen. Laws 2536

, 25 36

– 37

( repealed 1983 and recodified at Tex. Prop. Code Ann. § § 21.001

–

. 003 ). And both Article 3266 a

and 3266b were nested in a cluster of twelve provisions that all govern em inent domain

7 That federal a ct ’ s stated purpose was to provide “ fair and equitable treatment of persons displaced as a direct result

of programs or projects undertaken by a Federal agency or with Federal financial assistance. ” 42 U.S.C .A. § 4621(b).

The program is embodied in its 28 distinct subsections. One provision allows for recovery of “ actual reasonable

expenses ” for a person displaced by the Federal Government ’ s acquisition of property to relocate to a new property.

Id

. § 4622 (a)(1)

. Another provision allows tenants so displaced to obtain rental assistance payments when they must

relocate. Id. § 4624.16

proceedings

. See Tex. Rev. Civ. Stat. Ann. a rt s

. 3264

– 3271 (repealed 1983) (all contained in Title

52 “ Eminent Domain ” ).

In 1973, the Legislature added a subsection that allowed those who were displaced by

“ code enforcement, rehabilitation, or demolition programs ” to be considered “ displace d ” for the

purposes of the section. Act of May 17

, 1973, 63rd Leg

. , R.S.

, ch

. 586, § 2, sec. 1A

, 1973 Tex. Gen

.

Laws 1625

, 1625

– 26 ( repealed 1983 and recodified at Tex. Prop. Code Ann. § 21.046 )

. Then in

1983, the Legislature adopted Chapter 21 as part of the newly enacted Texas Property Code. Act

of May 26, 1983

, 68th Leg, R.S.

, ch

. 576, § 1, 1983 Tex. Gen

. Laws 3475, 3497 (codif i ed at

Tex. Prop. Code Ann. § § 21.001

– .103 )

. The move placed Article 3266b (now numbered as

§ 21.046 ) in to the Chapter 21 titled “ Eminent Domain

. ” Tex. Prop. Code Ann. § 21.046.

And one last change

. In 2011, the Legislature made the payment s in § 21.046 mandatory,

rather than discretionary

, by replacing the word “ may ” provide, with “ shall ” provide

. Act approved

May 19, 2011, 82nd Leg., R.S.

, ch. 81, § 16

, sec. 21.046, 2011 Tex. Gen. Laws 354, 360 (codified

at Tex. Prop. Code Ann. § 21.046(a )).

(2) Origins of Tex. Prop. Code Ann. § 21.043

In 19 69, the Legislature amended Article 3265 to add a new section seven ; it provid ed that

a landowner who is “ actually and physically displaced and permanently moves from his dwelling

or place of business shall be entitled to

, as a separate element of damages, the reasonable moving

expenses ” for personal property not to exceed $500 for personal property

, or $5,000 for busi ness

property. Act of May 28

, 1969, 6 1st Leg., R.S., ch

. 772

, § 1, sec. 7, 1969 Tex. Gen. Law s 229 3

( repealed 1983 and recodified at Tex. Prop. Code Ann. § 21.043 )

. Any move was limited to 50

miles

, the cost could not exceed the market value of the personal property, and “ this section shall

not apply in any condemnation proceeding, whether before special commissioners or the court17

where the owner is entitled to reimbursement for moving expenses under other existing law

. ” Id

.

Article 3265 itself was titl e d “ Rule of Damages ” and contained five existing sections, each of

which expressly addressed the damages that commissioners could award in condemnation awards.

See generally Tex. Rev. Civ. Stat. Ann. a rt

. 326 5 (repealed 1983 ). The 1969 enactment also added

a new § 6 that dealt with damages when a condemnation was dismissed. 1969 Tex. Gen. Law s § 1

at 2293.

In 1979, Article 3265

, § 7 was revised to remove the $500 and $5,000 caps

. Act of May 4

,

1979, 66th Leg., R.S., ch

. 206, § 1, sec s. 6

– 7, 1979 Tex. Gen. Laws 449

, 449

– 450 ( repealed 1983

and recodified at Tex. Prop. Code Ann. § 21.043 )

. And as part of codification of the Property Code,

Article 3265

, § 7

, was included as § 21.043 in Chapter 21. Act of May 26, 1983, 68th Leg

. , R.S.

,

ch. 576, § 1

, sec. 21.043, 1983 Tex. Gen

. Laws 3475, 3504

– 05 (codified at Tex. Prop. Code Ann.

§ 21.043 ). With minor textual revisions, it provides that “ [a] property owner who is permanently

physically displaced from the property owner ’ s dwelling or place of business and who is not

entitled to reimbursement for moving expenses under another law may recover, in addition to the

property owner ’ s other damages, the reasonable expenses of moving the property owner ’ s personal

property from the dwelling or place of business. ” Tex. Prop. Code Ann. § 21.043

.

The question before us is whether § 21.043 or § 21.04 6 are provision s of general

applicability whenever a political subdivision acquire s property by any means that results in the

displacement of persons. Or as A H ISD urges, is it limited to times when the governmental entity

exercises its right of condemnation. That right was not exercised here, and absent some statutory

authority to sue

, AHISD urges that the Residents have no basis to claim a waiver of governmental

immunity.18

B. Standard of r eview and a pplicable l aw

When it applies, governmental immunity protects political subdivisions of the State,

including cities, from suit

. Tex as Dep ’ t of Transp. v. Jones

, 8 S.W.3d 636, 638 ( Tex. 1999). Like

sovereign immunity

, and when it applies, governmental immunity protects political subdivisions

of the State, including school districts

, from suit. See El Paso Educ. Initiative, Inc. v. Amex. Props.,

LLC

, 602 S.W.3d 521, 526 ( Tex. 2020) ; Harris Cnty. v. Sykes

, 136 S.W.3d 635, 638 ( Tex. 2004)

.

Immunity from suit implicates a trial court ’s subject matter jurisdiction. Texas Dep ’ t of Parks &

Wildlife v. Miranda

, 133 S.W.3d 217, 224 ( Tex. 2004). “ Although the justifications for its

existence have evolved through the years, we have steadfastly retained it in modern times precisely

because it shields ‘ the public from the costs and consequences of improvident actions of their

governments, ’ and ensures that the taxes the public pays are used ‘ for their intended purposes[.] ’ ”

Hillman v. Nueces Cnty.

, 579 S.W.3d 354, 361 ( Tex. 2019) (quoting Tooke v. City of Mexia

, 197

S.W.3d 325, 332 ( Tex. 2006) and Reata Const. Corp. v. City of Dallas

, 197 S.W.3d 371, 375

( Tex. 2006)). Immunity defeats “ a cause of action without regard to whether the claims asserted

have merit. ” Bland Indep. Sch. Dist. v. Blue

, 34 S.W.3d 547, 554 ( Tex. 2000). But inherent in that

principle is Justice Willett ’ s observation that “ just as immunity is inherent to sovereignty,

unfairness is inherent to immunity. ” City of Galveston v. State

, 217 S.W.3d 466, 480 n.38

( Tex. 2007) (Willett, J., dissenting).

Texas Courts have recognized that the Legislature “ is best suited to make the policy

- laden

judgments as to if and how state government resources should be expended. ” Bacon v. Texas Hist.

Comm ’ n

, 411 S.W.3d 161, 172 ( Tex. App.

— Austin 2013, no pet.) (citing Texas Dep ’ t of Transp.

v. Sefzik

, 355 S.W.3d 618, 621 ( Tex. 2011) and Tooke

, 197 S.W.3d at 331

– 32 ) )

.19

C. Overview of t he parties ’ contentions

AHISD offers several reasons why the trial court lacked jurisdiction over this claim. First,

Chapter 21

, where § 21.043 and § 21.046 are found, is a comprehensive statutory scheme to govern

eminent domain proceedings, and the purchase of the Property was not accomplished through

eminent domain. When a state entity chooses to exercise its condemnation powers

, Chapter 21

imposes a specific process with safeguards for the property owner and the acquiring entity. The

entity must undertake preliminary steps, such as informing the property owner of their rights and

making a good faith offer. Tex. Prop. Code Ann. § § 21.0111

, 21.01 2, 21.0113

. Failing an

agreement at that stage, the entity initiates a condemnation proceeding, that allows a court to

appoint special commissioners to determine a condemnation damage award. Id. § § 21.012

,

21.014

–

. 015

. That award is then reviewable through a second judicial stage. Id

. § 21.018

. Chapter

21 is itself divided into five subchapters that outline the procedures and protections available to

property owners. And because § 21.043 and § 21.046 are embedded in the “ Damages and Cost ”

section of Chapter 21, AHISD urges that they are part of that process, and not stand

- alone

provision s available outside of eminent domain.

Moreover, an actual waiver of immunity is found in § 21.003 that gives district courts the

authority to “ determine all issues, including the authority to condemn property and the assessment

of damages ” for suit in which a political subdivision is a party and “ that involves a claim for

property or for damages to property occupied by the party under the party ’ s eminent domain

authority [.] ” Id

. § 21.003 (emphasis added)

. As for § 21.043 and § 21.046, neither contain any

express language waiving immunity

, nor do they meet the exacting standard for finding a waiver.

See Hillman

, 579 S.W.3d at 360 (setting out five factors to determine whether a statute clearly and

unambiguously waives governmental immunity) ; Tex. Gov ’ t Code Ann. § 311.034 ( “ [A] statute20

shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and

unambiguous language. ” )

. Because that authority was never exercised here, AHISD contends this

provision cannot waive its immunity.

The Residents argue a different view. They first direct us to the portions of the petition

asserting ultra vires claims. Those claims seek to compel the named District officials to execute

their non

- discretionary statutory duties. Because ultra vires claims ask that an official execute their

designated duties, they fall outside the governmental immunity bar. See Fed. Sign v. Tex as

S. Univ.

, 951 S.W.2d 401, 404 ( Tex. 1997) ( “ A state official ’ s illegal or unauthorized actions are

not acts of the State [] ” and thus do not implicate the State ’ s sovereign immunity)

. “ To fall within

this ultra vires exception, a suit must not complain of a government officer ’ s exercise of discretion,

but rather must allege, and ultimately prove, that the officer acted without legal authority or failed

to perform a purely ministerial act. ” City of El Paso v. Heinrich

, 284 S.W.3d 366, 372 ( Tex. 2009)

.

From this body of law, the Residents argue that the District officials had non

- discretionary duties

under § 21.043 and § 21.046 to implement a program to provide relocations assistance.

Next, the Residents argue that under the plain statutory language of the statute, AHISD

owed a duty to pay relocation expenses whenever it acquired property by any means. Section

21.046 use s the word “ acqui ring

, ” and the common ordinary meaning of th e root word

encompasses more than just cond emnation. 8 They also argue that s ome provisions in Chapter 21

expressly use the words “ acquire through condemnation, ” so the omission of that phrase in

§ 21.046 must mean som e thing. And the Residents bolster their construction with legislative

8 For instance, Black ’ s Law Dictionary defines “ Acquire ” as “ To gain possession of control of; to get or obtain [.] ”

Acquire

, B LACK ’ S L AW D ICTIONARY ( 7 th ed. 1999 ). Similarly , Webster ’ s defines acquire as “ to come into possession

o r ownership of; get as one ’ s own ; to acquire property [.] ” Acquire

, W EBSTER ’ S N EW U NIVERSAL U NABRIDGED

D ICTIONARY (2003) (emphasis original)

.21

history suggesting that § 21.043 and § 21.046 are meant to operate alongside the federal

enactment

, which applies outside the condemnation context.

Both AHISD and the Residents point us to case law and other authorities supporting their

view, which we discuss in more depth below.

D. Discussion

(1) Framework for our analysis

W hether § 21.043 and § 21.046 encompass more than just condemnation is a question of

statutory construction. We follow familiar guideposts in assessing statutes. Statutory construction

presents a question of law that we review de novo. Malouf v. State ex rels. Ellis

, No. 22

- 1046,

2024 WL 3075672, at *3 ( Tex. June 21, 2024); State v. Shumake

, 199 S.W.3d 279, 284

( Tex. 2006)

. Our primary objective in statutory construction is to give effect to the Legislature ’ s

intent. Shumake

, 199 S.W.3d at 284

. The plain meaning of the text is the best expression of

legislative intent unless a different meaning is supplied by legislative definition or is apparent from

the context, or unless the plain meaning would lead to absurd or nonsensical results that the

Legislature could not have intended. City of Rockwall v. Hughes

, 246 S.W.3d 621, 625

– 26

( Tex. 2008); see Tex. Gov ’ t Code Ann. § 311.011 ( “ Words and phrases shall be read in context

and construed according to the rules of grammar and common usage. ” ).

We consider the words in context, and not in isolation. In re Office of the Att ’ y. Gen. of

Texas

, 456 S.W.3d 153, 155 ( Tex. 2015) (per curiam) ( “ Given the enormous power of context to

transform the meaning of language, courts should resist rulings anchored in hyper

- technical

readings of isolated words or phrases. ” ). A court must also presume that the Legislature chose its

language with care, and that it included (or omitted) each word purposefully. Emeritus Corp. v.

Blanco

, 355 S.W.3d 270, 276 ( Tex. App.

— El Paso 2011, pet. denied)

. Finally, a statute is22

presumed to have been enacted by the Legislature with complete knowledge of the existing law

and with reference to it. Acker v. Texas Water Comm ’ n

, 790 S.W.2d 299, 301 ( Tex. 1990).

(2) The u ltra v ires c laims funnel us back to the same question

The Residents concede in their briefing that they do not claim § 21.046 contain s the

necessary language to waive a governmental immunity. Instead, they focus on its mandatory

language, and the consequent non

- discretionary obligations for District officials to create

programs, provide relocation assistance, or pay sums

. The Residents contend v iolations of these

duties can be pursued as ultra vires claims. Our high court has held that “ that while governmental

immunity generally bars suits for retrospective monetary relief, it does not preclude prospective

injunctive remedies in official

- capacity suits against government actors who violate statutory or

constitutional provisions. ” Heinrich

, 284 S.W.3d at 368

– 69

. The rationale for ultra vires claims is

that they “ do not seek to alter government policy but rather to enforce existing policy. ” Id. at 372

.

And they may do so even if the result of enforcement implicates the public fisc. Id

. at 371

.

There are important limitations to ultra vires claims. First, they must be against appropriate

officers acting in their official capacity

, and not the state institution that they serve. Heinrich

, 284

S.W.3d at 377 ( “ Thus, Heinrich ’ s claims for prospective relief may be brought only against the

appropriate officials in their official capacity, and her statutory claims for future benefits against

the City, Fund, and Board must be dismissed

. ” ). For that reason alone, we are compelled to reverse

the order below and dismiss the District for want of jurisdiction. That leaves the named school

officials

.

T o fall within the u ltra vires

, exception, “ a suit must not complain of a government

officer ’ s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted

without legal authority or failed to perform a purely ministerial act. ” Id

. at 372

. A “ government23

officer with some discretion to interpret and apply a law may nonetheless act ‘ without legal

authority, ’ and thus ultra vires

, if he exceeds the bounds of his granted authority or if his acts

conflict with the law itself. ” Houston Belt & Terminal Ry. Co. v. City of Houston

, 487 S.W.3d 154,

158 ( Tex. 2016). 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. ” Sw. Bell Tel., L.P. v. Emmett

, 459 S.W.3d 578, 587 ( Tex. 2015) (quoting City of

Lancaster v. Chambers

, 883 S.W.2d 650, 654 ( Tex. 1994) )

.

The parties have not addressed (and neither do we) how t he alleged failure to provide

advisory services, relocation assistance

, or to adopt rules relating to the administration of an

assistance program fit the “ without legal authority ” o r “ ministerial act ” requirement for ultra vires

claims (t he statute does not define the scope of those services or rules other than to say they should

be compatible with federal policy )

. Nor do the parties directly address how ultra vires claims fit

with a statute that requires payment of an indeterminate amount of moving expenses, r ental

supplements

, and r elocation payments (the statute sets a ceiling but not a floor for payment s)

. But

s etting th ose questions aside

, we are still returned to whether these statutes apply to the acquisition

of this Property and create the mandatory duties as the Residents claim. If there is a statutory duty,

it arise s only if § 21.043 and § 21.046 appl y to the acquisition of property through something other

than a condemnation

. And if the y do not apply here, then there is no duty to underpin an ultra vires

claim.

(3) The context and placement of § 21.046 limits it to condemnation cases

Juxtaposing the parties ’ arguments, the Residents focus on the common meaning of

“ acqui ring ” while AHISD narrows the word ’ s common meaning by its context ual use in24

Chapter 21. We agree that here, context controls and that the word “ acqui ring ” in § 21.046 cannot

be read in isolation of the 43 other provisions that surround it.

T he Texas Supreme Court often remind s us of the importance of context. Courts are

required to construe words in light of their statutory context, considering the statute as a whole.

Silguero v. CSL Plasma, Inc.

, 579 S.W.3d 53, 59 ( Tex. 2019). As the Court recently stated:

This Court also relies on statutory context when construing statutes. Our “ text

based approach to statutory construction requires us to study the language of the

specific provision at issue, within the context of the statute as a whole, endeavoring

to give effect to every word, clause, and sentence. ” Ritchie v. Rupe

, 443 S.W.3d

856, 867 ( Tex. 2014). We determine the meaning of the words a statute uses by

“ considering the context in which they are used, not in isolation. ” Silguero

, 579

S.W.3d at 59.

Malouf

, 2024 WL 3075672, at *10

. The United States Supreme Court echoe s a similar admonition:

“ [I]t is a ‘ fundamental principle of statutory construction (and, indeed, of language itself) that the

meaning of a word cannot be determined in isolation, but must be drawn from the context in which

it is used. ’ ” Yates v. United States

, 574 U.S. 528, 537 (2015) (quoting Deal v. United States

, 508

U.S. 129, 132, (1993) )

. Stated otherwise

, “ [w]ords in a vacuum mean nothing. Only in the context

of the remainder of the statute can the true meaning of a single provision be made clear. ” McLane

Champions, LLC v. Hous ton Baseball Partners, LLC

, 671 S.W.3d 907, 920 ( Tex. 2023) (quoting

Bridgestone/Firestone, Inc. v. Glyn

- Jones

, 878 S.W.2d 132, 133 ( Tex. 1994))

.

The most important contextual clue for the meaning of “ acqui ring ” 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 S ubchapter A (Jurisdiction)

, grant jurisdiction to

courts in em inent domain cases. Tex. Prop. Code Ann. § 21.001

–

. 003. The next 20 sections

,

grouped in S ubchapter B ( Procedure )

, define the procedure s for how a governmental entity

exercises its eminent domain authority. See id. § § 21.011

– .025. Those procedures include initial

disclosures to a landowner ( § 21.0111 )

, providing a bill of rights ( § 21.01 1 2 )

, making a bona fide25

offer ( § 21.0113 )

, filing of a condemnation petition ( § 21.012 ), the appointment and findings of

special commissioners

, (§ § 21.014

, 21 .01 8 )

, and the appeal from the commissioner ’ s decision

(§ 21.018)

.

Section 21.043 and 21.046 are contained in S ubchapter C ( Damages and Costs )

. It contains

ten sections, eight of which expressly relate to payments owed in property condemnation cases.

Id

. § 21.041 (evidence for assessing actual damages from a “ condemnation ” ); § 21.042

(assessment of damages by “ special commissioners ” in a “ condemnation ” ); § 21.044 (allowing

damages from temporary possession against “ condemnor ” who had no right to “ condemn ” the

property); § 21.045 (related to title acquired by “ condemnor ” ); § 21.047 (assessment of cost and

fees by special commissioners from “ eminent domain proceedings ” ); § 21.048 (requiring special

commissioners to issue a statement of damages and costs in an “ eminent domain proceeding ” );

§ 21.049 (requiring notice of decision of special commissioners to be filed).

The next five sections in Chapter 21

, under S ubchapter D ( Judgment ), address the judgment

in a condemnation case, the writ of possession, and any appeal. Id

. § § 21.061

– 21.065. The final

five sections outline the process of repurchase of property f ro m a condemning entity. Id

.

§ § 21.101

– .103 (Repurchase of Real Property From Condemning Authority).

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. Tex. Gov ’ t C ode

Ann. § 311.024

. Yet those headings can inform of the Legislature ’ s intent. See TIC Energy &

Chem., Inc. v. Martin

, 498 S.W.3d 68, 75 ( Tex. 2016) ( “ The headings here confirm a

rule/exception model, rather than the opposite. ” ) ; In re United Services Auto. Ass ’ n

, 307 S.W.3d

299, 307

– 08 ( Tex. 2010) ( noting that statutory provision titled “ Statute of Limitations ” gave some

indication of the Legislature ’ s intent ); Univ. of Tex as Sw. Med. Ctr. at Dallas v. Loutzenhiser

, 14026

S.W.3d 351, 361 ( Tex. 2004) ( stating that the heading used in a statute g ave “ some indication of

the Legislature ’ s intent to group what it considered to be procedural matters together. ” ).

But even without the headings, we would still find 43 sequen tially numbered sections that

outline the procedures for initiating

, conducting, and concluding condemnation proceedings. To

assume that § 21.046 w as just randomly placed in this sequence of statutes and is not tied to

condemnation defies reason.

We also acknowledge the Residents ’ argument that the creation of the Property Code in

1983 was intended as a non

- substantive change in the law. See G.P. Show Productions, Inc. v.

Arlington Sports Facilities Dev. Auth., Inc.

, 873 S.W.2d 120, 122 ( Tex. App.

— Fort Worth 1994,

no writ). Yet the predecessor to § 21.043

— Article 3266b

— w as also grouped in the Texas Revised

Civil Statutes with the eminent domain articles. 9 That article was placed in Title 52, labeled

Eminent Domain

, containing A rticle s 3264 to 3271. It was placed next to A rticle 3266a which

provides for court jurisdiction in condemnation cases. 10 And l ike the current Chapter 21, those

articles contained the procedures and process for condemnation

. Moreover, t he only court to have

considered Article 3266b believed it applied only in eminent domain proceedings.

In City of Beaumont v. West

, a landowner claimed that the c ity intended to construct a street

across property that she us ed in her business. 484 S.W.2d 789, 79 0 ( Tex. App.

— Beaumont 1972,

writ ref ’ d n.r.e.). She claimed that ( as here ) the City refused to negotiate over sums she believe d

were due under A rti cle 3266b

. Id. The City admitted that it intended to institute eminent domain

proceedings if the Plaintiff did not accept their offer

. The City denie d that A rticle 3266b applied.

9 Act of May 31 , 1971, 62nd Leg., R.S., ch. 918, § 1 , secs. 1

– 3, 1971 Tex. Gen. Laws 2817 ( repealed 1983 and

recodified at Tex. Prop. Code Ann. § 21.046 )

.

10 Act of May 31 , 1971, 62 nd Leg., R.S. ch. 832

, § 1, 1971 Tex. Gen. Laws 2536 ( repealed 1983 and recodified at

Tex. Prop. Code Ann. § § 21.001

– .003 )

.27

Before the City had formally init iated a condemnation action, the landowner filed a declaratory

judgment action seeking a declaration that A rticle 3266b applied to the City ’ s contemplated

condemnation proceeding. Id. She sought

, and obtained, an injunction restraining the City from

starting condemnation proceedings until her declaratory judgment action was concluded. Id.

In an appeal from that injunction, the Beaumont court identified the “ narrow question ”

before it as “ whether or not the county court had any jurisdiction to hear and determine the

questions presented at the time it entered the order enjoining the City from prosecuting its proposed

condemnation proceeding. ” Id. at 792. T he West court found that a trial court could “ acquire

jurisdiction of the condemnation proceedings only by the filing of the petition for condemnation

and notice to the landowner served in accordance with [ A rticle 3264 ]. Id. Because the City had

not yet filed any eminent domain proceeding

, the trial court lacked jurisdiction to hear and

determine the landowner ’ s claim, including whether she was entitled to benefits under

A rticle 3266b. See id.

O ne take away from this case is that the court viewed A rticle 3266b (the predecessor to

§ 21.046 ) as being tied to the em inent domain procedures. A nd unsurprisingly so, because a t the

time, Article 32 66b was nestled with the rest of Texas ’ eminent domain law. That would have been

the legal background when the Property Code was enacted, which similarly places Article 3266b ’ s

successor alongside the balance of Texas condemnation provisions. That context provides another

significant clue to the Legislature ’ s intent of what “ acqui ring ” means in § 21.046

. “ We presume

the Legislature enacted the statute ‘ with complete knowledge of the existing law and with reference

to it. ’ ” In re Bridgestone Am. ’ s Tire Operations, LLC

, 459 S.W.3d 565, 572 ( Tex. 2015) (quoting

Acker v. Tex as Water Comm ’ n

, 790 S.W.2d 299, 301 ( Tex. 1990) )

.28

The Residents discount West

, because at the time, Article 3266b only allowed entities t he

discretion t o provide assistance. It did not require it. And true enough, almost two decades later,

the Legislature made the payments in § 21.046 mandatory, rather than discretionary, by replacing

the word “ may ” provide, with “ shall ” provide. Act approved May 19, 2011, 82nd Leg., R.S.

,

ch. 81, § 16

, 2011 Tex. Gen. Laws 360 (codified at Tex. Prop. Code Ann. § 21.046(a )). But w e

fail to see how th at change nullifies the view then that relocation payments were tied to

condemnation proceedings. If anything, making the payments mandatory would place a greater

financial burden on governmental entities, and if the Legislature intended to tak e that more drastic

step for all property acquisition s

, it could have made th at intent clear by removing § 21.046 from

the E minent D omain Title in the Property Code.

AHISD also responds to this argument, noting that the enabling clause for the 2011 changes

in Chapter 21 states the change in the law applies “ only to a condemnation proceeding in which

the petition is filed on or after the effective date of this Act and to any property condemned through

the proceeding. ” 20 11 Tex. Gen

. Laws § 24 at 363 (emphasis supplied)

. These change s were all

part of S.B. 18. The caption of that bill read s “ An act relating to the use of eminent domain

authority. ” Id

. The Government Co d e allows that “ [i] n construing a statute, whether or not the

statute is considered ambiguous on its face, a court may consider among other matters the

. . . title

(caption) [.] ” Tex. Gov ’ t Code Ann. § 311.023

. 11

, 12

11 Explanatory b ill captions are constitutionally required in Texas: “ The rules of procedure of each house shall require

that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable

notice of that subject. ” Tex. Const. art. III, § 35

.

12 T h e Author ’ s/Sponsor ’ s Statement of Intent for S.B. 18 would also show it was focused on condemnation :

Currently, the Fifth Amendment to the United States Constitution prohibits the taking of private

property for public use without just compensation, commonly referred to as the “ takings clause. ”

Section 17 of Article I of the Texas Constitution, prohibits a person ’ s property from being taken,

damaged, or destroyed for public use without adequate compensation , unless by consent of that

person.29

In sum we are persuaded that the context of § 21.046 limits its application to condemnation

proceedings. Here, c ontext control s over the o rdinary meaning of one word viewed in isolation

.

See City of Houston v. Bates

, 406 S.W.3d 539, 544 ( Tex. 2013) ( “ Whereas we are typically

inclined to apply a term ’ s common meaning, a contrary intention is apparent from the statute ’ s

context. ” ); TGS

– NOPEC Geophysical Co. v. Combs

, 340 S.W.3d 432, 439 ( Tex. 2011)

( “ 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. ” ).

We find the Resident ’ s other argument s to the contrary unavailing. They point us to

§ 21.011 which reads : “ Exercise of the eminent domain authority in all cases is governed by

Sections 21.012 through 21.016 of this code

. ” Tex. Prop. Code Ann. § 21.011

. From this, the

Residents reason that because § 21.046 is not within that range of section numbers

, it is not part

of eminent domain

. But th at section defines the “ exercise ” of eminent domain “ authority ” and the

provisions listed set out the process from the condemnation petition ( § 21.012 ) to the hearing by

the special commissioners ( § 21.01 5 ). It simply means all condemnation flow s through that

process, not that other provisions are independent of condemnation

. For there are a host of

provisions outside that range that can only apply to condemnation proceedings. E.g

., § 21.042

S.B. 18 makes changes, additions, and del etions, to various provisions in Texas la w in an attempt

to reform the power, limitations, process, and various other aspects of the power of eminent domain

and condemnation in this State.

As proposed, S.B. 18 amends current law relating to the use of eminent domain authority.

Senate Rsch

. Ctr

. , Bill Analysis

, Tex. S.B. 18, 82nd Leg., R.S. (2011). The Fiscal Note to the bill noted that it would

have a s ignificant fiscal impact on local governmental entities, but again, it analyzed the bill as amendments to the

framework of condemnation proceedings

. See Fiscal Note, S.B. 18, 82nd Leg., R.S. (2011) ( “ The bill would amend

various statutes related to the scope and process of private property condemnation under the power of eminent

domain. ” ).30

(defining how special commissioners assess damages ); § 21.061 (relating to judgment on special

commissioner ’ s finding ); § 21.063 (authorizing appeal of condemnation award ).

The Residents also direct us to provisions in Chapter 21 they say apply to the voluntary

purchase of property. From this, they reason that Chapter 21 is not exclusive to condemnation

proceedings. But th at says too much. The provisions the Residents rely on relate to preliminary

steps that a governmental entity with eminent domain authority must take before filing the

condemnation petition

— such as making a good faith offer and informing the prospective seller of

their rights. Id

. § 21.0112

– .0113. These predicate steps must occur as an important part of the

condemnation proce ss

. 13 A nd while true that the landowner might accept the governmental entit y ’ s

good faith offer

— and a condemnation suit might never be filed

— that does not mean that

condemnation was never a part of the process. A landowner negotiating with a governmental entity

is surely on a different footing from those in a typical arm ’ s length negotiations

. A landowner who

rejects the government ’ s offer cannot always just walk away from the table.

Next, the Residents point to some provisions in Chapter 21 that use the phrase “ acquir ed

through eminent domain ” while § 21.046 simply uses “ acquir ing real property

. ” Compare

§ 21.046(b ) with § § 21.101 (a) ; 21.102; 21.1021(a). Because the Legislature added that

preposition al phrase in some places in Chapter 21, the Residents reason that its omission in

§ 21.046 carries significance. See Malouf

, 2024 WL 3075672, at *11 ( “ [W] e generally presume

the Legislature uses the same word consistently throughout a statute and uses different words to

13 A case that that Resident ’ s cite make s that point. Tex as Cent. R.R. & Infrastructure, Inc. v. Miles , 635 S.W.3d 684

( Tex. App.

— Corpus Christi 2020)

, aff ’ d , 647 S.W.3d 613 ( Tex. 2022). The central issue in that case was whether

certain entities who were surveying the route for a high

- speed train between Dallas and Houston have eminent domain

authority

— the court of appeals concluded that they did. Id . at 688 , 692

. The court also concluded that one of the

entities violated § 21.0112 b y failing to provide a landowner with the landowner ’ s bill of rights when it first

approached him about surveying his property. Id . at 695. That section requires that “ an entity with eminent domain

authority shall provide a copy of the landowner ’ s bill of rights statement to a landowner before or at the same time as

the entity first represents in any manner to the landowner that the entity possesses eminent domain authority. ”

Tex. Prop. Code Ann. § 21.0112

.31

convey different meanings. ” ). Most of t he references that the Residents rely on are found in

S ubchapter E, which defines when and how a property owner can repurchase real property from a

condemning entity. That right might arise if the public project is cancelled, no progress is made on

the project in ten years, or the property becomes unnecessary for the project. Tex. Prop

. Code Ann

§ 21.101 (a)(1)

– (3).

The rep urchase provisions were added to Chapter 21 as a new Subchapter E in 2003

. Act

approved J une 21, 2003, 78th Leg.

, R.S.

, ch

. 1307, § 2, 2003 Tex. Gen. L aws 4739 (codified at

Tex. Prop. Code Ann. § § 21.101

– .103) ; State v. LBJ/Brookhaven Inv s.

, L.P.

, 650 S.W.3d 922,

926

– 27 ( Tex

. App.

— Dallas 2022, pet. denied) (setting out the history of the provisions). We find

nothing in the text of the new provisions that suggest s the Legislature intended to redefine how the

word “ acqui ring ” had been used in A rticle 3266b, and later § 21.046

, for the several decades those

provisions had been on the books. It would be no surprise that in adding this new s ubchapter

, the

Legislature would want to be clear that it only applied to property acquired through eminent

domain, and not by other means. Moreover, § 3 of the 2003 enactment provides another important

clue to how the Legislature us es the word acquire. Section 3(a) provides : “ Subchapter E,

Chapter 21, Property Code, as added by this Act, applies only to a real property interest acquired

by a governmental entity on or after the effective date of the Act. ” 2003 Tex. Gen. Laws § 3 at

4740 (emphasis added). Then § 3(b) immediately follows: “ A real property interest that was

acquired by a governmental entity before the effective date of this Act through eminent domain

for a public use is governed by the law as it existed immediately before the effective date of this

Act[.] ” Id. (emphasis added). The use of the singular term “ ac quired ” soon followed by the more

definitive statement of “ acquired

. . . through eminent domain ” is a strong indicator that the

Legislature uses these term s interchangeably in Chapter 21 and does use them to mean different32

things. Cf

. In re R.R.A.

, 687 S.W.3d 269, 277 ( Tex. 2024) ( “ When the Legislature uses

substantially the same words and phrases in a statute

, subsequent uses of that same word in the

same subject area ordinarily carry the same meaning. ” ) (emphasis added). 14

, 15

Next, 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 th ose

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. Act of

May 17

, 1973, 63rd Leg.

, R.S.

, ch. 586, § 2

, 1973 Tex. Gen

. Laws 1625

, 1625

– 26 ( repealed 1983

and recodified at Tex. Prop. Code Ann. § 21.046 ). The Bill Analysis acknowledged that “ Under

present law relocation expenses may be paid only where condemnation proceedings have been

initiated. ” Bill Analysis, Tex. H.B. 606, 63rd Leg.

, R.S. (1973). The amendment brought Texas

into conformity with federal relocation assistance requirements. Id

. 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 P roperty.

14 For the same reason, how the term “ acquire ” is used in Tex. Prop. Code Ann. § 21.0111 (c) does not inform our view

of § 21.046. That section requires an “ entity seeking to acquire property

. . . through the use of eminent domain ” to

timely disclose appraisal reports on the property. Yet § 21.0111(a), dealing with the same disclosure requirements,

refers to entities “ with eminent domain authority that wants to acquire real property for a public use[.] ” And

§ 21.0111(b) more simply refers to an “ entity seeking to acquire the property[.] ” The several ways that the Legislature

uses acquire shows that they all share the same meaning: acquiring property through eminent domain. See State v.

LBJ/Brookhaven Invs

. , L.P. , 650 S.W.3d 922, 928 ( Tex. App.

— Dallas 2022, pet. denied) ( “ Chapter 21, and the

repurchase statute itself, is limited to property acquired through eminent domain; thus, for the repurchase statute to

apply at all, the property must have been acquired by eminent domain. ” ).

15 The contextual canon that the Residents implicitly rely on is the “ presumption of consistent use. ” Antonin Scalia &

Bryan A. Garner, Reading Law 170

– 71 (2012) ( “ A word or phrase is presumed to bear the same meaning throughout

a text; a material variation in terms suggests a variation meaning. ” ). But this canon “ assumes a perfection of drafting

that, as an empirical matter, is not often achieved. ” Id . Drafters “ often (out of a misplaced pursuit of stylistic elegance)

use different words to denote the same concept. ” Id

.33

The Residents then urge a backstop

— that they were displaced as a direct result of a

demol ition program. That is, AHISD demolition of the apartment complex qualifies as a

“ demolition program ” under § 21.046( e ). This theory was raised in a reply brief below but suffers

from the lack of any evidence that AHISD ’ s demolition of the apartment complex was part of a

“ demolition program

. ” Th at term is no t defined in the statute. T he word “ program ” has a variety

of meanings ( i.e.

, a TV program or computer program). But relevant here, the dictionary meaning

includes : “ a plan of action to accomplish a specified end; a school lunch program ” or “ a p l a n ned

coordinated group of activities, procedures, etc.

, often for a specifi c purpose

, o r a facility offering

such a series of activi t i e s: a dr u g rehabilitation program ; a graduate program in linguistics

. ”

Program

, W EBSTER ’ S N EW U NIVERSAL U NABRIDGED D ICTIONARY (2003) (emphasis original).

In common parlance, we might speak of a football program, and underst and it consists of

facilities, coaches, and equipment to play an entire series of games

, over more than a single season.

In governmental parlance, we might speak of notable federal programs

— Medicare, Social

Security, School Lunch, or Disability Insurance programs

. Each have s erve d multiple participants

over many decades. Texas governmental programs include systems like “ crime prevention

programs ” that a crime control and prevention district might establish. Tex. Loc. Gov ’ t Code Ann.

§ 363.151

. Or the “ drug offense program ” that serve s multiple offenders across the judicial system.

See Tex. Gov ’ t Code Ann. § 171.0001

. Or prison rehabilitation programs available to an entire

prison population. See Tex. Gov ’ t Code Ann. § 507.033. In sharp contrast, t he tear down of a single

apartment complex on a single piece of property is a project

. And significantly, the Texas

Legislature used the word “ program ” and not the dual terms “ program or project ” that is used

throughout the federal Uniform Relocation Assistance and Real Property Acquisition Policies for

Federal and Federally Assisted Programs

. 42 U.S.C.A. § 4601 ( 6 ) (A)(i)( I )

, (ii)(I)

, (B) ( ii ); (11)34

(definitional sub

- sections all referring to “ programs or projects ” ) ; Id. § 4633(a)(4) ( requiring

agency to “ ensure that relocation assistance activities under this chapter are coordinated with low

income housing assistance programs or projects by a Federal agency or a State or State agency

with Federal financial assistance [.] ” ) (emphasis added) ; Id. § 4622(a) ( “ Whenever a program or

project to be undertaken by a displacing agency will result in the displacement of any person,

. .

. ” ) (emphasis added )

.

We do not discount that a school district might embark on what could be proven to be a

demolition program, if for instance it included attributes of commonly understood governmental

programs. This record

, however, lacks any evidence to show the demolition of a single apartment

structure on a single piece of land next to a single school was anything more than a project.

Final l y, t he Residents also fall back on legislative history, emphasizing that the predecessor

to § 21.046 w as enacted alongside federal legislation that is not limited to acquiring property by

condemnation. An earlier Attorney General ’ s opinion explains the connection of Article 3 2 66(b)

—

originally numbered as Article 6674n

- 4

— to the federal statute :

It is clear from the structure of article 6674n

- 4, its repeated reference to the Federal

Highway Relocation Assistance Program and the time of its enactment, that it was

passed as enabling legislation to permit the State Highway Department to comply

with the requirements of the Federal highway Relocation Assistance Act in

acquiring rights of way for its federally

- funded projects

.

Tex. Att ’ y Gen. Op

. No. JM

- 8 (1983)

. 16 The Texa s Legislature similar ly broadened Article 3266b

to cover more than just high ways to follow a federal expansion o f relocation rights

. Id

. ( “ This

expansion was required for the same reason that the passage of the original a rticle 6674n

- 4 was

required, that is, in order to enable the affected agencies to comply with the mandatory

16 The Residents read the Attorney General Opinion to support its view that § 21.046 applies outside of condemnation

cases. We disagree

— it informed the requesting party, Texas Southern University, that Article 3266b applies to it , but

that the school was not required to comply with Article 3266b unless it was required to by federal law. Id

.35

requirements of federal relocation assistance legislation. ” ). The assistance payments were

permissive because not all projects involved the receipt of federal funds. Id

. But we fail to see how

this helps the Residents, as that original intent was to create a needed counterpart when federal

funds were used to acquire property. If that was the intent, it has no relevance here, as there is no

showing that this purchase was part of some federal program or project

. And as we explain below,

§ 21.046 only became mandatory through S.B. 18

. And the legislative history of that bill shows it

was altering Texas eminent domain law.

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.

(4) Section 21.043

The Residents urge a n alternative ground that § 21.043 itself waives governmental

immunity and supports a portion of their claim (it applies only to moving expenses)

. Yet the

context for § 21.043 also shows that it is also limited to condemnation proceedings

. It was adopted

a s a new section under Article 3265

, whose other sections specifically addressed the damages that

special commissioners could award in condemnation awards. Act of May 28

, 1969, 61st Leg., R.S.,

ch. 772

, § 1

, secs. 6

– 7, 1969 Gen. Law Tex. 2293 ( repealed 1983 and recodified at Tex. Prop.

Code Ann. § 21.043 )

. It now appears alongside eight other sections in Chapter 21 that expressly36

apply to eminent domain proceedings. Section 21.043 itself provides: “ [a] property owner who is

permanently physically displaced from the property owner ’ s dwelling or place of business and

who is not entitled to reimbursement for moving expenses under another law may recover, in

addition to the property owner ’ s other damages, the reasonable expenses of moving the property

owner ’ s personal property from the dwelling or place of business. ” Tex. Prop. Code Ann.

§ 21.043 (a)

.

In support of their claim that § 21.043 itself waives governmental immunity

, the Residents

rely on State v. Langley

, 232 S.W.3d 363, 368 ( Tex. App.

— Tyler 2007, no pet.)

. That case

ultimately held that the property owner s were barred by sovereign immunity for seeking moving

expenses under § 21.043, because they had not made a claim under § 21.046 before the special

commissioners during the administrative phase of the condemnation case

. Id

. at 368. In its

discussion, t he court make s the statement that “ [w]here applicable, section 21.043(a) is a

sufficiently clear waiver of sovereign immunity. ” Id

. at 368

. But “ where applicable ” meant when

it is part of a condemnation suit. And for that kind of suit, immunity is expressly waived in

Tex. Prop. Code Ann. § 21.003. This suit is not a Chapter 21 condemnation proceeding, and we

question whe ther § 21.043 by itself accomplishes a waiver of governmental immunity. 17

(5) Because this property was not acquired by condemnation, neither § 21.043

nor § 21.046 apply

The summary judgment record conclusively establishes that the District did not use its

eminent domain authority to purchase the apartment complex where the Residents previously

lived. Because the Residents claims all turn on statutory provisions that apply only to eminent

17 Langley predates Hillman v. Nueces Cnty. , 579 S.W.3d 354, 361 ( Tex. 2019) which sets out five factors to consider

whether a statute clearly and unambiguously waives immunity. L angley cites no authority other than the statute itself

for its statement on waiver of immunity. Langley , 232 S.W.3d at 368

. Section 21.043 itself makes no mention of

immunity, or contains any explicit waiver of immunity as found in other statutes. Cf. Tex. Gov ’ t Code

Ann. § 554.0035 ( “ Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under

this chapter for a violation of this chapter. ” ).37

domain, they cannot establish the ministerial duties or violations of law necessary for their ultra

vires claims.

* * * * * * * *

When a willing buyer and willing seller arrive at a sales price, it is fair to assume that the

seller has considered the consequential costs

— like moving or finding a new property if that is

needed. Yet when the sale is forced

— as through a government ’ s eminent domain power

— the

seller (and by extension, any tenant) is in a different posture. They lack the ability to just say no to

the sale. Understandably, the Legislature included protections for Texas landowners (or tenants)

faced with a forced sale to a governmental entity. Looking at Chapter 21 as a whole, and § 21.043

and § 21. 0 46 in context, w e are persuaded th ose provisions stand as safeguards in condemnation

proceedings. We are unpersuaded that the Legislature also meant t hose provisions t o govern arm ’ s

length bargained for exchange s.



### IV. C ONCLUSION

We deny the Residents ’ motion to dismiss

. We grant Appellants ’ First Issue and dismiss

this case for lack of jurisdiction.

JEFF ALLE Y

, Chief Justice

August 21 , 2024

Before Alley, C.J., Palafox and Soto, JJ.