AC INTERESTS, L.P., FORMERLY AMERICAN COATINGS, L.P., PETITIONER, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, RESPONDENT
No. 16-0260
IN THE SUPREME COURT OF TEXAS
March 23, 2018
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
JUSTICE BOYD, joined by JUSTICE JOHNSON,
Thе Texas Clean Air Act provides that a person “may appeal” a Texas Commission on Environmental Quality decision “by filing a petition in a district court of Travis County.”
The Court holds that subsection (c)‘s deadline is merely “directory,” rather than “mandatory,” so AC Interests‘s failure to meet the deadline does not preclude it from pursuing the appeal. Ante at ___. The Court agrees that the deadline creates a condition precedent, ante at ___, but it identifies no right or duty that is conditioned on the precedent.1 Under the Court‘s reasoning, the deadline is a condition precedent that conditions nothing at all. As a result, the deadline means nothing at all. I disagree. The deadline—which subsection (c) says the party “must” meet—must be a condition on something, and the only thing it can be a condition on is the right to pursue the appeal. The statute‘s plain language compels that result, and that result promotes the statute‘s apparent purposes. I would hold that because AC Interests failed to serve citation on the Commission within thirty
I.
The Statute‘s Plain Language
The Clean Air Act prescribes a specific process for those who want to appeal a Commission decision, and it does so by using varying directives—“may,” “must,” or “shall“—for each step along the way:
- A person “may” appeal the Commission‘s decision “by filing a petition in a district court of Travis
County.”2
- The petition “must be filed within 30 days” after the decision‘s effective date.3
- Service of citation on the Commission “must be accomplished within 30 days” after the plaintiff files the petition.4
- The citation “may” be served on the executive director or any member of the Commission.5
- The plaintiff “shall” pursue the action with reasonable diligence.6
- The court “shall” presume the action has been abandoned if the plaintiff fails to prosecute the action within one year after the date on which the action is filed.7
- The court “shall” dismiss the suit upon the attorney general‘s motion, unless the plaintiff “can show good cause for the delay.”8
We need not guess at the mеanings of these directives, as the Legislature has defined them in the Code Construction Act. When a statute uses the term “must,” it “creates or recognizes a condition precedent,”
Applying the definitions the Legislature has provided, I would follow a simple, plain-language approach аnd construe the statutorily-required process as follows:
- “May” appeal: AC Interests had statutory permission to appeal the Commission‘s decision, and it could exercise that right “by filing a petition in a district court of Travis County,” but it was not required to appeal.
- “Must” file within thirty days: As a condition precedent to pursuing its appeal, AC Interests was required to file its petition within thirty days after the decision‘s effective date. If AC Interests failed to file its petition within that time frame, it could not pursue its appeal.
- “Must” accomplish service of citation within thirty days: As another condition precedent to pursuing its appeal, AC Interests was required to accomplish service of citation within thirty days after filing its petition. If AC Interests failed to effectuate service within that time frame, it could not pursue its appeal.
- “May” serve on director or members: In effecting service, AC Interests had statutory permission to serve the citation either on the
Commission‘s executive director or any Commission member.
- “May” serve on director or members: In effecting service, AC Interests had statutory permission to serve the citation either on the
- “Shall” pursue with diligence: After it completed the first three steps, AC Interests had a duty to prosecute its action with reasonable diligence.
- “Shall” presume abandoned and “shall” dismiss: If AC Interests failed to prosecute the appeal within one year, the court had a duty to presume that AC Interests had abandoned the suit—and a duty to dismiss the suit—absent a showing of good cause for the delay.
The Court rejects this construction, at least of the service-of-citation deadline, because the statute does not expressly state that the suit will be dismissed if the claimant fails to meet that deadline. Ante at ___. According to the Court, even though the statute uses the word “must,” even though that word сreates a condition precedent, and even though it is therefore “mandatory” under any ordinary understanding, the requirement is merely directory because the statute does not expressly state that AC Interests cannot pursue its appeal if it fails to effectuate service of citation within thirty days.
This Court has struggled for decades—without much meaningful success—to identify a clear standard for determining whether a statutory requirement is “mandatory” or “directory.” See Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956) (“There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory.“). We have said that, in general, in determining “whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex. 2001). When the statute expressly states a consequence for noncompliance, of course, the Court‘s task is simply to apply that consequence. But when the statute fails to expressly state a сonsequence for noncompliance, our task becomes more difficult. We have concluded that the absence of any stated consequence “may be considered as a circumstance tending to support a directory construction,” meaning the statute imposes no consequence for noncompliance. Chisolm, 287 S.W.2d at 945. But we have also warned that this holding “does not suggest that when no penalty is prescribed, ‘must’ is non-mandatory.” Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009).
Ultimately, we have concluded that when “the statute is silent about consequences of noncompliance, we look to the statute‘s purpose in determining the proper consequence of noncompliance.” Albertson‘s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (per curiam); see Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992) (“When the statute is silent, we have looked to its purpose for guidance.“). Applying this approach here, I conclude that the Clean Air Act requires timely service of citation as a condition precedent to a suit for judicial review both because the statute‘s text and context compel that result and because that result best supports the statute‘s presumеd purposes.
II.
Text and Context
Reading subsection 382.032(c)‘s service-of-citation deadline in context makes dismissal the only logical consequence for noncompliance. Subsections (a), (b), and (c) together stipulate that a person “may appeal” a Commission decision by filing a petition, but the petition must be filed
I disagree. If, as the Court suggests, merely filing a petition is the sole condition precedent to appeal, then the mere filing of a petition would always be sufficient, and subsection (b)‘s deadline for that filing would not be a condition precedent. But if timely filing the petition is also a condition precedent to the right to appeal, as the Court agrees it is, then we must read subsections (a) and (b) together to determine the effect of missing that deadline. But then there is no principled reason to read subsection (c)—or to understand its application to subsection (a)—differently from subsection (b) and its application. Even after the plaintiff has filеd a petition, the trial court‘s “jurisdiction is dependent upon citation issued and served in a manner provided for by law,” and “[a]bsent service, waiver, or citation, mere knowledge of a pending suit does not place any duty on a defendant to act.” Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990). Service of citation, in other words, is effectively as “jurisdictional” as the filing of the petition, and equally as “necessary to establish a claim, right, or benefit under the statute.” Ante, at ___.
A claimant cannot obtain judicial review simply by filing a petition. While subsection (a)—when read alone—sаys that a person “may appeal by filing a petition,” subsection (c) recognizes that inherent in the act of filing a petition is the constitutionally required step of serving process on the named defendant. The “mere filing of the plaintiff‘s petition is not all that is required to ‘commence’ the suit,” Owen v. City of Eastland, 78 S.W.2d 178, 179 (Tex. Comm‘n App. 1935) (addressing statutes of limitations), because “those not properly served [with citation] have no duty to act, diligently or otherwise,” Ross v. Nat‘l Ctr. for the Emp‘t of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (per curiam). Initiating a lawsuit is always a two-step process of filing and serving process, and subsections (b) and (c) impose deadlines on both of those steps.
The Court asserts that subsections (a) and (b) must be read together because both refer to the filing of the petition and subsection (b) simply defines what it means to file a petition as subsection (a) requires. Ante at ___. Thus, according to the Court, if you file a petition (as subsection (a) requires) but fail to file it within thirty days (as subsection (b) requires),
Under the Court‘s approach, by contrast, the term “must” requires dismissal if the person fails to timely file the petition, but the same term imposes no consequence at all if the person fails to timely serve citation. The Court reasons that, unlike a “jurisdictional requirement, where failure to comply results in dismissal,” subsection (c) “does not state a consequence and, importantly, no consequence is logically necessary.” Ante at ___.10 But serving citation is jurisdictional, as is any requirement that can be fairly characterized as a “statutory prerequisite.” See
The Court attempts to avoid this reality by suggesting that “other possible consequences exist,” ante at ___, but it cannot identify any other consequences that could apply to the failure to timely serve citation under subsection (c). The only “other consequence” the Court suggests is abatement, ante at ___, but it makes no effort to explain how abatement would ever be appropriate to address the late service of citation, and I cannot see how it would. The only “possible”
consequence that could appropriately result from missing the service-of-citation
We have recognized that, when a particular statutory provision imposes a requirement without expressly stating a consequence for noncompliance, other provisions of the same statute may provide guidance as to what the consequence should be. In Helena Chemical, for example, although the statute required that a claim for arbitration be filed by a particular time, we concluded that the failure to timely file the claim did not require dismissal because another provision of the statute required trial courts to take into account the arbitrators’ findings “as to the effect of delay in filing the arbitration claim.” 47 S.W.3d at 494. Here, however, other statutory provisions support the conclusion that the consequence for failing to timely serve citation is dismissal.
First, the Legislature‘s inclusion of a good-cause exception for delay in subsection (d)—which applies only after a claimant has timely filed its petition and timely served citation—evidences the Legislature‘s intent that a claimant strictly comply with the filing and service deadlines in subsections (a), (b), and (c), none of which contain a good-cause exception. This is not a novel concept. See PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P‘ship, 146 S.W.3d 79, 84 (Tex. 2004) (“When the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended. If so, we must honor that difference.“). As the court of appeals correctly noted, the thirty-day service provision “does not have an exception for good and sufficient cause.” 521 S.W.3d at 63; see also TJFA, L.P. v. Tex. Com‘n on Envtl. Quality, 368 S.W.3d 727, 737 (Tex. App.—Austin 2012, pet. denied) (“The
legislature‘s decision to not include a provision allowing a party to explain why compliance with the deadline was not achieved is instructive. This seems particularly true in this case in light of the fact that in the very next provision, thе legislature afforded parties the ability to explain why their suit should not be dismissed for failure to pursue the claim ‘with reasonable diligence.‘“).
Second, the Legislature‘s decision to include a specific time period compels the conclusion that dismissal is required, and that decision must be afforded some significance. See Edwards Aquifer, 291 S.W.3d at 403 (“The importance of a fixed filing deadline is apparent in the [Edwards Aquifer Authority Act]. The Legislature picked a specific, calendar date by which permit applications were required tо be filed.“); TJFA, 368 S.W.3d at 735 (concluding that an analogous provision regarding service of citation under the Solid Waste Disposal Act was mandatory and that by providing an explicit deadline, “the legislature has indicated its intention to foreclose the possibility of excusing delays between filing and executing service due to diligent efforts at service undertaken by plaintiffs“).
Recently, we noted that “absent statutory language to the contrary, a statutorily imposed time period does not allow for substantial compliance.” BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 83 (Tex. 2017). In addition, we have recognized that a deadline “is not something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer, 291 S.W.3d at 403. And although the Court may be concerned that dismissal is too harsh a remedy, we noted in BankDirect that “[s]tatutes that impose timelines naturally burden those who miss them.” 519 S.W.3d at 85. When the statute‘s
III.
The Statute‘s Purposes
Even if we concluded that the statute‘s plain language does not make the timely service of citation a condition precedent to pursuing the appeal, and we were thus required to “look to the statute‘s purpose in determining the proper consequence of noncompliance,” Albertson‘s, 984 S.W.2d at 961, I would reach the same conclusion. In the broadest sense, the Clean Air Act‘s “policy and purpоse is ‘to safeguard the state‘s air resources from pollution by controlling or abating air pollution and emissions of air contaminants.‘” S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013) (quoting
The Court suggests that the Act‘s judicial-review provisions’ more specific purpose is to “provide a process for the judicial review of [Commission] decisions” and “to expedite filing and notice and presumably the appeal itself.” Ante at ___.
Even assuming that correctly states the statute‘s purpose, construing the service-of-citation requirement as a condition precedent to aрpeal best promotes that purpose. By conditioning the right to appeal on the claimant‘s fulfillment of a duty to diligently and timely seek such review, the statute ensures that any appeal from a Commission decision must be pursued and resolved in an efficient and expedited manner.
The Court, however, makes no effort to address whether and how its construction supports this purpose. Instead, it simply concludes that, even though the stаtute‘s purpose is to expedite the resolution of appeals from Commission decisions, it finds “no textual basis to conclude that serving citation within 30 days of filing the petition is so essential to the statute‘s purpose that the Legislature intended anything less than strict compliance to require dismissal.” Ante at ___. But because subsection (c) addresses constitutional service of citation, without which the trial court lacks jurisdiction, the Commission has no duty to appear or take any action, and the suit cannot begin at all, until citation is served. See Wilson, 800 S.W.2d at 836–37; El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 149 (Tex. App.—El Paso 2010, no pet.) (“Citation serves the purposes of giving the court jurisdiction over the defendant, satisfying due process requirements, and giving the defendant an opportunity to appear and defend.“) (citing Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex. App.—San Antonio 1987, no writ)); Cockrell, 737 S.W.2d at 140 (“The purpose of citation is to give the court proper jurisdiction of the parties and to provide notice to the defendant that he has been sued and by whom and for what so that due process will be served and he will have an opportunity to appear and defend the action.“); see also Tex. Nat. Res. Conservation Com‘n v. Sierra Club, 70 S.W.3d 809, 813 (Tex. 2002) (“[A] ‘citation’ is directed to the defendant, telling the defendant that he or she has been sued and commanding the defendant to appear and answer the opposing party‘s claims.“).
Thus, service of citation is different from mere notice, and we should be loath to confuse the two. See Perez v. Perez, 59 Tex. 322, 324 (1883) (“The words citation and notice are by no means synonymous. . . . A notice is much less formal.“). Indeed, we have observed that “service of citation” is “a term of art that describes the formal process by which a party is informed that it has been sued.” Sierra Club, 70 S.W.3d at 813. Contrary to the Court‘s suggestion, the statute provides a “textual basis to infer that” service of citation “is essential to the statute‘s purpose” because, until citation has been served on the Commission, the process of judicial review cannot commence at all.
Beyond the Court‘s identified purpose of expediting appeals from Commission decisions, I would conclude that another “purpose“—or, I would say, “effect“—of the statute is to express the Legislature‘s policy decisions as to when to waive the Commission‘s sovereign immunity and allow for judicial review оf executive-branch decisions. Because the statute provides a limited waiver of immunity, we must construe it narrowly in favor of retaining the State‘s immunity. See In re Smith, 333 S.W.3d 582, 587 (Tex. 2011) (“First, a statutory waiver of sovereign immunity must be construed narrowly.“) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We interpret statutory waivers of immunity narrowly. . . .“)); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003) (“[W]hen construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity.“); Tex. Nat. Res. Conservation Comm‘n v. IT–Davy, 74 S.W.3d 849, 854 (Tex. 2002) (“Subjecting the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes toward defending lawsuits and paying judgments.“); Magnolia Petroleum Co. v. Walker, 83 S.W.2d 929, 934 (Tex. 1935) (“Legislative grants of property, rights, or privileges must be construed strictly in favor of the state. . . .“) (quoting Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 272 (Tex. 1932)). Construing the statute to permit judicial review only when the claimant has complied with the statute‘s express requirements best fulfills this purpose of providing a limited waiver of immunity.
IV.
Conclusion
The Clean Air Act allows a person to appeal a Commission decision by filing a petition in a Travis County district court. The petition “must” be filed within thirty days after the decision and service of citation “must” be accomplished within thirty days after filing. The filing and service requirements are conditions precedеnt to the right to pursue the appeal. The statute‘s plain language compels this result, and the statute‘s effects likewise support this conclusion. I would hold that because AC Interests failed to serve citation on the Commission within thirty days, as the statute says it “must” do, it cannot pursue this appeal. Because the Court holds otherwise, I respectfully dissent.
Jeffrey S. Boyd
Justice
Opinion delivered: March 23, 2018