                               MEMORANDUM OPINION
                                       No. 04-09-00795-CV

                                       Malcolm MONROE,
                                            Appellant

                                               v.

                               THE CITY OF SAN ANTONIO,
                                        Appellee

                  From the 408th Judicial District Court, Bexar County, Texas
                               Trial Court No. 2009-CI-19007
                            Honorable Peter Sakai, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Phylis J. Speedlin, Justice
         Rebecca Simmons, Justice
         Steven C. Hilbig, Justice

Delivered and Filed: August 31, 2010

AFFIRMED; TEMPORARY STAY VACATED

       Malcolm Monroe appeals the trial court’s order granting the City of San Antonio’s

motion to dismiss his suit for lack of subject matter jurisdiction. A demolition order was issued

by the City’s Dangerous Structure Determination Board (DSDB), and Monroe filed suit seeking

injunctive relief. Because we hold that Monroe lacks standing, we affirm the trial court’s

dismissal of Monroe’s suit and vacate our order granting a temporary stay.
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                          BACKGROUND AND PROCEDURAL HISTORY

       The record owner of the property located at 115 Bluebonnet St. in San Antonio, Texas is

Allen Monroe. Even though Allen Monroe is the record owner of 115 Bluebonnet, several

public databases, including the City tax records, Bexar County appraisal district records, and

water system records list the owner of the property as “Monroe Allen.” According to appellant

Malcolm Monroe, his brother Allen Monroe died intestate in 1997. The record contains no

evidence that any probate proceedings were initiated to declare heirship or grant an

administration upon his estate. Appellant Malcolm Monroe is the current occupant of 115

Bluebonnet. Although appellant has paid some taxes and utilities on the property since 1997,

title to the property has never been recorded in appellant’s name.

       The City received a complaint about the deteriorated condition of the house at 115

Bluebonnet, and conducted an inspection on the property on July 21, 2009. Malcolm Monroe

was present at the time of the inspection. On or about September 2, 2009, written notice of a

DSDB hearing concerning the property was mailed to “Monroe Allen” at 115 Bluebonnet by

certified mail, return receipt requested; it was returned “unclaimed.” In addition, written notice

was given by publication and by posting notice on the front gate at 115 Bluebonnet.

       On September 14, 2009, following a public hearing which Malcolm Monroe did not

attend, the DSDB, acting pursuant to Chapter 214 of the Texas Local Government Code, found

the structure at 115 Bluebonnet to be a public nuisance and ordered it to be demolished within

thirty days. TEX. LOC. GOV’T CODE ANN. §§ 214.001–.005 (Vernon 2008 & Vernon Supp.

2009). A copy of the DSDB demolition order was mailed to “Monroe Allen” at 115 Bluebonnet

by certified mail, return receipt requested, on September 28, 2009; it was signed for by




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“Malcolm Monroe.” 1 Notice of the demolition order was also published on September 29 and

September 30, 2009.

        Subsequently, on November 25, 2009, Monroe filed a lawsuit in district court seeking a

temporary restraining order, temporary injunction, permanent injunction, issuance of a writ of

certiorari, and reversal of the DSDB demolition order. In response, the City filed a plea to the

jurisdiction asking that Monroe’s suit be dismissed for lack of subject matter jurisdiction. A

hearing was held on December 11, 2009, which resulted in the trial court finding Monroe lacked

standing and dismissing his lawsuit for lack of subject matter jurisdiction. This appeal followed.

                                                 DISCUSSION

        In four issues, Malcolm Monroe argues he is entitled to seek injunctive relief to prevent

the destruction of the real property at 115 Bluebonnet, even though there is a valid order by an

administrative board for demolition.           The City first replies that Monroe lacks standing to

challenge the DSDB demolition order because he is not an owner, lienholder, or mortgagee of

record of the property. We agree with the City.

        Standing is a prerequisite to subject matter jurisdiction, and a trial court must have

subject matter jurisdiction to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

553–54 (Tex. 2000). Subject matter jurisdiction cannot be conferred or taken away by consent

or waiver. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993).

Whether a court has subject matter jurisdiction is a question of law. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When the legislature confers standing by

statute, the party seeking relief must allege and establish that he meets the statutory

requirements. Tex. Dep’t of Prot. and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.


1
  At the hearing on the motion to dismiss, Malcolm Monroe denied that the signature on the certified mail receipt
card was his signature.

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2001) (reviewing applicable standing provisions in Texas Family Code to determine whether

purported father had standing); In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008,

pet. denied) (estoppel cannot be used to confer standing where none exists under the legislative

framework).   In   the absence of a waiver of governmental immunity, a trial court lacks subject

matter jurisdiction over a suit against a governmental entity. Tex. Dep’t of Transp. v. Jones,

8 S.W.3d 636, 638 (Tex. 1999). We review a trial court’s ruling on a plea to the jurisdiction de

novo. See Miranda, 133 S.W.3d at 226.

       Two statutes found in the Local Government Code govern standing in the context of

challenging an order related to a substandard structure. See TEX. LOC. GOV’T CODE ANN.

§ 214.0012 (Vernon 2008) (providing for judicial review from an order of a municipality); see

also TEX. LOC. GOV’T CODE ANN. § 54.039 (Vernon 2008) (providing for judicial review from a

decision of a commission panel). Both provisions specifically enumerate who may seek judicial

review and limit it to three classes of individuals—“[a]ny owner, lienholder, or mortgagee of

record . . . .” Id. §§ 214.0012(a), 54.039(a). When a statute is clear and unambiguous, we

“should give the statute its common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d

503, 505 (Tex. 1997). We read the phrase “of record” as modifying all three terms “owner,

lienholder, or mortgagee” in both statutes, according to their plain language and common

meaning. Id.; TEX. LOC. GOV’T CODE ANN. §§ 214.0012(a), 54.039(a). The legislature could

have chosen to broaden the scope of persons able to challenge demolition orders, but elected not

to according to the plain language used. Both statutes list three types of ownership interests that

are sufficient to confer standing, and separate them by commas instead of semi-colons before

adding the modifier “of record.” This structure supports a reading of both statutes as requiring

that an “owner, lienholder, or mortgagee” be “of record” in order to have standing. Compare


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TEX. LOC. GOV’T CODE ANN. § 214.0012(a) (permitting “[a]ny owner, lienholder, or mortgagee

of record” to appeal a municipality’s order concerning a substandard structure) with TEX. LOC.

GOV’T CODE ANN. § 211.011(a) (Vernon 2008) (permitting any of the following to appeal a

municipality’s zoning decision under a similar review process—“a person aggrieved by a

decision of the board; a taxpayer; or an officer, department, board, or bureau of the

municipality”). In addition, this reading of the two statutes is supported by the notice provisions

of both statutory schemes which require the municipality to search certain designated records to

determine the person to whom notice is due. See TEX. LOC. GOV’T CODE ANN. § 54.035(a)

(Vernon Supp. 2009) (requiring that notice by personal delivery or certified mail must be given

to “the record owners of the affected property, and each holder of a recorded lien against the

affected property;” and further requiring that notice also be given to “all unknown owners” by

posting notice on the front door); id. § 54.035(e) (Vernon Supp. 2009) (stating municipality

exercises “due diligence” by searching the designated records); see also id. §§ 214.001(c), (q)

(Vernon Supp. 2009) (requiring that notice of a hearing under section 214.001 must be sent to

“an owner, lienholder, or mortgagee” and that a municipality satisfies due diligence in

determining the identity and address of “an owner, a lienholder, or a mortgagee” if it searches the

designated records). Reading sections 54.039 and 214.0012 within the context of their respective

statutory schemes, we must assume the legislature used the phrase “any owner, lienholder, or

mortgagee of record” because it intended to limit standing to persons with a property interest of

record. See Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377, 382 (Tex. App.—San

Antonio 1990, writ denied) (we must presume that every word used, and every word excluded,

by legislature was for a purpose).




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         Malcolm Monroe has not shown that he is an “owner, lienholder, or mortgagee of record”

of 115 Bluebonnet Street. Although he may be an heir at law 2 of the owner of record, his brother

Allen Monroe, appellant has not pled and proved that he is an “owner of record” of the property

within the meaning of sections 54.039 and 214.0012. Because he fails to meet the statutory

requirements, Monroe lacks standing to challenge the demolition order in this case. Given our

disposition of the issue of standing, we need not address the remaining issues raised on appeal.

         Accordingly, we affirm the trial court’s dismissal of Monroe’s lawsuit.                         Our order

granting a temporary stay in this cause is hereby vacated.



                                                               Phylis J. Speedlin, Justice




2
  Malcolm Monroe represents that his brother died intestate in 1997 and that he is his brother’s heir, but there is no
evidence in the record to support these assertions.

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