AC Interests L.P., Formerly American Coatings, L.P. v. Texas Commission on Environmental Quality
01-15-00378-CV
| Tex. App. | Jul 9, 2015Background
- AC Interests applied for certification of Emission Reduction Credits (ERCs) with the Texas Commission on Environmental Quality (TCEQ); the Executive Director denied the application in a final agency action.
- AC Interests sued in Travis County district court on December 10, 2014, invoking review under the Texas Clean Air Act § 382.032 and also citing the Water Code.
- Section 382.032(c) of the Clean Air Act requires service of citation on the Commission within 30 days after filing the petition.
- AC Interests did not request or effect formal service of citation on the Commission within 30 days; citation was served on day 58.
- TCEQ moved to dismiss under Tex. R. Civ. P. 91a, arguing the Clean Air Act’s 30‑day service requirement is mandatory; the district court granted dismissal. AC Interests appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Clean Air Act § 382.032(c)’s 30‑day service requirement is mandatory | The Water Code’s more general provisions (and legislative changes) control or excuse delay; constructive notice and diligence should suffice | The Clean Air Act waives immunity for review suits but imposes a mandatory 30‑day service deadline for citation; failure requires dismissal | The 30‑day requirement is mandatory; dismissal affirmed |
| Whether Water Code § 5.353 (longer/one‑year abandonment rule) overrides § 382.032(c) | Water Code should control because plaintiff invoked it and it was later amended | The Clean Air Act is the specific enabling statute for ERC suits and its explicit 30‑day rule controls over the general Water Code | The specific enabling statute (Clean Air Act) controls; § 382.032(c) governs service timing |
| Whether giving a copy of the petition or constructive notice substitutes for formal service | AC Interests gave a copy to someone at the agency shortly after filing and claims the Commission had notice | TCEQ: constructive notice is not service of citation; statutory service is a formal process and statutory deadline requires formal service | Constructive notice or informal delivery does not satisfy the statute; formal service within 30 days required |
| Whether exceptions (good‑cause, due diligence, undue prejudice, vested‑rights) excuse noncompliance | Plaintiff argues good cause/due diligence and substantial hardship from dismissal; claims vested property right in ERCs | TCEQ: statute contains no extension or due‑diligence exception; courts have rejected such exceptions; ERCs are not vested property rights under the rules | No statutory exception for delay; due‑diligence/undue‑harm arguments fail; ERCs not shown to be vested property rights |
Key Cases Cited
- TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 368 S.W.3d 727 (Tex. App.—Austin 2012) (holding a nearly identical 30‑day service deadline in the Solid Waste Disposal Act is mandatory and not subject to due‑diligence exception)
- Tex. Natural Res. Conserv. Comm’n v. Sierra Club, 70 S.W.3d 809 (Tex. 2002) (agency enabling statute governs procedures for judicial review)
- MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475 (Tex. 2010) (statutory construction reviewed de novo)
- Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729 (Tex. 2002) (statutory‑interpretation principles)
- Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767 (Tex. 2000) (use plain meaning in statute construction)
- Curry v. Heard, 819 F.2d 130 (5th Cir. 1987) (federal tolling/amendment context; inapposite to mandatory state statutory service deadlines)