Tjfa, L.P. v. Texas Commission on Environmental Quality and BFI Waste Systems of North America, Inc.
2012 Tex. App. LEXIS 3594
Tex. App.2012Background
- TJFA sought judicial review of a TCEQ decision granting a landfill expansion and ordered TJFA to pay half the hearing transcript fees.
- The order required TJFA and BFI to each pay $6,564.42 of the $13,128.85 transcript costs.
- TJFA filed suit within 30 days but did not execute service of citation until 41 days after filing.
- The Commission moved to dismiss for lack of jurisdiction and filed a plea to the jurisdiction; BFI intervened with a transcript-fee counterclaim.
- The district court dismissed the suit and ordered TJFA to pay half of the transcript fees; TJFA appealed en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service deadline is a jurisdictional prerequisite | TJFA claims deadline is directory, not jurisdictional | Commission says deadline is jurisdictional prerequisite to suit | Deadline is not jurisdictional; but summary: court sustained non-jurisdictional view on other grounds |
| Whether the 30-day service deadline is mandatory or directory | Deadline is directory; due diligence should excuse late service | Deadline is mandatory; noncompliance warrants dismissal | Deadline is mandatory; dismissal affirmed |
| Transcript-fee liability on TJFA | If suit dismissed, counterclaim should be reconsidered on the merits | District court properly enforced Commission's transcript-fee allocation | District court’s dismissal stands; no reversal on transcript-fee issue |
Key Cases Cited
- Sierra Club v. Texas Natural Res. Conservation Comm'n, 26 S.W.3d 684 (Tex. App.--Austin 2000) (service prerequisites not jurisdictional (in prior dicta))
- Gutierrez, 182 S.W.3d 430 (Tex. App.--Austin 2005) (due diligence can relate back for service in some contexts)
- Wilkins, 47 S.W.3d 493 (Tex. 2001) (mandatory vs. directory; when no penalty may indicate directory)
- Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956) (general approach to mandatory vs. directory; factors for determination)
- Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d 552 (Tex. 2008) (statutory timing provisions; purposeful conduct considerations)
- Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011) (notice provisions not always jurisdictional; substantial compliance context)