Tjfa, L.P. v. Texas Commission on Environmental Quality and BFI Waste Systems of North America, Inc.

predicated code section 241.1335 is upon underlying the same facts as their claim,

breach-of-fiduciary duty a claim that appellate purposes

is established for to be

an fact HCLC. The mere the Ku- profess

metses to seek different kinds of

damages under the two theories does not

impact analysis. this Tex. Civ. Prac. 74.001(13) (“whether

& Rem.Code Ann.

the claimant’s claim or cause of action

sounds in tort or contract” is not what

controls whether the cause of an action is

HCLC). Consequently, even if the section

241.1335 claim could be viewed aas non-

HCLC, Yamada compel would still us to

dismiss it. I respectfully dis- majority’s contrary

sent to the judgment.

TJFA, L.P., Appellant,

TEXAS COMMISSION ON ENVIRON QUALITY

MENTAL and BFI Waste

Systems America, Inc., Ap of North

pellees.

No. 03-10-00677-CV. Texas, Appeals

Court of

Austin.

4,May Birch, Moorman, Angela

Erich K. M. Moorman, LLP, Birch Becker & A. James Graves, Hemphill Dougherty, Hearon & TX, PC, Austin, Moody, appellant. for Woelk, Berwick, Cynthia Brian E. Nan- cy Olinger, Attorney Elizabeth Assistant & General Environmental Protection Ad- Division, Law Paul G. ministrative Gossel- ink, Reed, Jeffrey Lloyd Gosselink Ro- S. Townsend, PC, Austin, TX, & chelle appellees. JONES,

Before Chief Justice Justices PEMBERTON, PURYEAR, HENSON, ROSE and GOODWIN.

OPINION Shortly after the Commission made its determination, TJFA filed a suit judi- PURYEAR, Justice. DAVID cial review of the Commission’s decision. See Tex. Health (“TJFA”) Safety & TJFA, Code Ann. sought judicial L.P. re- appeal that to ad- view of a decision made the Texas determination, ministrative party affected on Environmental Quality Commission (the “Commission”) petition must file within days of Com- granted appli- an decision). mission’s Because it was con- expand cation to a landfill and that re- testing determination, the Commission’s quired pay transcript TJFA to half of the pay did not its portion of the tran- fees with the hearing associated address- fees, script paid and BFI the full amount. ing the application. Although TJFA filed suit, On day that it filed deadline, gave its suit within the it did copy Commission a petition, but not execute service of citation until after TJFA did not execute service of citation the deadline listed in the health and on the Commission until 41 days after it code. See Tex. Health & filed 361.321(c) (West 2010). governing suit. Under the statutory pro- §Ann. For that “[sjervice vision, reason, citation must be accom- joint plea Commission filed a plished not later day than the 30th after jurisdiction to the and motion to dismiss. date on which the is filed.” hearing, After a the district court dis- Id. and, missed the suit granting plea alternatively, dismissed the suit for failure served, being After the Commission filed comply mandatory statutory with a di- joint plea to the and motion rective. The district court also ordered In filing, dismiss. the Commission TJFA to pay transcript imposed fees asserted that because TJFA did not com- by the Commission. We will affirm en ply 30-day deadline for service of banc the district court’s dismissal of the citation, the district court did not have comply suit for failure to with a subject-matter jurisdiction over the case. statutory provision. Tex.RApp. P. Alternatively, the Commission contended (allowing appellate 41.2 court to decide to that the suit should be dismissed because banc).

consider case en TJFA failed to with a statutory

requirement. After the Commission re- dismissed, quested that the case be BFI BACKGROUND intervened in the case and filed counter- America, BFI Systems Waste of North against claim TJFA for the transcript fees (“BFI”) sought expand Inc. its munici- the Commission ordered TJFA to pal-solid-waste-landfill permit for a landfill pay. Austin, on the east side of Texas. TJFA land opposed response owned near the landfill and In to the filing, Commission’s expansion suggested by BFI. After a the district court hearing. scheduled a Af- hearing, approved hearing, the Commission ter the district court dis- proposed expansion particular, and issued an order missed the suit. In the district granting expansion. application court found that the deadline for order, executing jurisdic- Commission also ordered service of citation was a BFI pay and TJFA to each one-half of prerequisite Alternatively, tional to suit. $13,128.85 ($6,564.42 in transcript fees the district court determined 30- each) generated hearing day statutory as a deadline “mandatory, result was Further, directory.” before the Commission. the district court Hidi, County Fund Mut. Ins. Co. v. complied TJFA had not determined (Tex.2000). pre 768-69 We with the deadline because Commission every deliberately word was sume with citation until “was not served words were left chosen and excluded filed.” after the suit was Servs., 150 purpose. out on USA Waste TJFA’s suit. court dismissed district determining legisla addition, S.W.3d at 494. When court ordered TJFA the district intent, act, por tive the entire not isolated transcript reimburse BFI for half of tions, v. Fowl hearing must be considered. Jones from the administrative fees er, We ($6,564.42). may “object sought to be also consider ruling, the district court made its After by enacting attained” the statute and dis- appealed the district court’s TJFA particular of a construc “consequences missal. § tion.” Tex. Gov’t Ann. 311.023 Code (West 2005); Austin v. South City see of OF REVIEW STANDARD Co., 434, 442 Bell Tel. 92 S.W.3d western may a assert that party A to case (Tex.2002). jurisdiction without to con a trial court is plea juris a to the by filing sider the case DISCUSSION Employees Houston Mun. Pen diction. challenges TJFA the district appeal, On Ferrell, 151, 156 Sys. sion v. 248 S.W.3d dismissing court’s alternative bases for (Tex.2007). govern in which a In cases First, TJFA contends that the dis- suit. jurisdic a plea mental unit has filed trict court erred when it determined that tion, party appeal to the case requirement the service-of-citation found plea. of the See Tex. grant or denial in section 361.321 of the health and 51.014(a)(8) § Prac. & Ann. Civ. Rem.Code jurisdictional prerequisite code is a to suit. (West 2011); Supp. 2008 & see also id. failure TJFA its 2011) 101.001(3)(West (de § Supp. 2011 & to execute service within 30 did not unit”). appeal, On fining “governmental jurisdiction deprive the district court of grant court’s we review de novo trial and that the district court therefore erred Ferrell, plea. or denial of the 248 S.W.3d by granting plea to the Commission’s at 156. Second, jurisdiction. TJFA attacks Moreover, asserted TJFA issues alternative determination district court’s construction, involve which is the case be dismissed because the novo. legal question that we review de In- requirement mandatory. is Hinton, Serv., Inc. v. See MCI Sales & stead, TJFA insists that the is (Tex.2010); 475, Bragg 501 n. 30 S.W.3d failure to merely directory and that Auth., 729, 71 S.W.3d Aquifer Edwards requirement should be (Tex.2002); Waste Servs. USA of diligently attempted excused because Houston, Strayhorn, Inc. reasons, For these execute service. 2004, pet. de argues that the district court erred nied). statute, In we must construing dismissing ordering the suit and in enact legislature’s ascertain the intent pay transcript half of the fees. Tex. v. ing Fleming the statute. Foods of Subject Lack Matter Ju- Dismissal for of Rylander, risdiction determination, making this courts above, first issue plain meaning As described TJFA’s should look to challenges grant court’s used in the statute. See Fireman’s the district words plea to the the suit against the Commission’s the state can be filed.” Id. and dismissal of the case for lack of sub- at 535. That construction is consistent ject-matter jurisdiction. support- When with those other courts of appeals. See Bruton, jurisdictional court’s de- ing County district Bexar v. termination, notes that (Tex.App.-San Commission Antonio expressly pet.) has limited the (stating that common usage term “[prerequisite circumstances in which a statute should implies to suit ... a re sovereign quirement a waiver of im- be construed as to be fulfilled suit before filed”); munity. See Tex. Gov’t Ann. County Dallas v. Hughes, 189 2011). (West Moreover, Supp. 311.034 (Tex.App.-Dallas denied) legis- pet. also notes that the (observing ordinary Commission “[sjtatutory lature has determined that meaning prerequisite something “[a] suit, beforehand”). fact, to a prerequisites including pro- required notice, jurisdictional require- vision of are when construing section 311.034 of the code, against governmental government ments all suits supreme court ex- entity.” light plicitly Id. In of that determina- distinguished prerequi- between tion, timely the Commission that to requirements sites suit and that only accomplished execution of service of citation is a statu- be after a suit is filed. tory prerequisite waiving sovereign v. County, 341 Roccaforte Jefferson 361.321(c) 919, immunity under subsection of S.W.3d particular, supreme the health and code. See Tex. court determined that section 361.321(c). § Safety Health & Ann. 311.034 apply require- Code does not to “notice that only Commission contends ments can be satisfied suit after id.; that because TJFA to execute failed ser- is filed.” See also v. see Ballesteros deadline, 566, statutory County, vice within the the Nueces 286 S.W.3d 569-70 subject-matter 2009, district court did not have (Tex.App.-Corpus pet. Christi de- nied) jurisdiction over the claim. (holding compliance that with post- jurisdictional); suit-notice is not follow, For the reasons that we dis 753, County Coskey, Dallas v. 247 S.W.3d agree with the Commission. This Court denied) 2008, (Tex.App.-Dallas pet. 754-56 previously explained has what qualifies as (concluding requirement that that notice a statutory prerequisite to suit. See Scott given thirty days be after suit was filed is Dist., Indep. v. Presidio Sch. 266 S.W.3d and, therefore, statutory prerequisite not 535, 2008) 531, (op. jurisdictional). By very terms of reh’g) on (concluding requirement that 361.321(c), subsection deadline parties that all agree to allow suit to occur executing process begins service of af- County Travis before suit is filed is ter the suit has been See Tex. filed. and, statutory prerequisite to suit there 361.321(c). § Health & Ann. Code rev’d, fore, jurisdictional), on other (Tex.2010) (re statute, grounds, construing 309 S.W.3d 927 When a courts versing appellate pre court’s determination be mindful there is a must that Commissioner of Education was re sumption against finding statutory pro quired give being jurisdictional. consent to City suit filed vision be DeSo (Tex. White, County). Travis In the context of suits to v. 288 S.W.3d State, 2009); against the Dubai Petroleum this Court reasoned see also Co. (Tex.2000) Nazi, prerequisite step to suit is “a 75-76 (overruling holding or condition that must be satisfied before line of cases statutes, (stating construing that when mandatory and are statutory provisions rely plain meaning on of statute courts endorsing modern trend exclusive meaning supplied by unless different judgments final vulnerability of reducing apparent or is from context legislature statutory require- characterizing by not mean- using plain unless construction or Furthermore, jurisdictional). as ments results”).1 ing “leads to absurd be overcome may only presumption intent to the con- “by legislative clear addition, a determination DeSoto, at 288 S.W.3d trary.” City of jurisdictional requirement service is not a language in the of subsec- Nothing 394. the manner in which is consistent with 361.321(c) an intention indicates tion trial court’s is invoked. Under juris- make service a law, en case governing Tex. Health & requirement, see dictional subject-matter ju with dows a trial court 361.321(c), § Ann. and as Safety Code involves a provided risdiction that the case above, section 311.034 authority discussed that the trial court has dispute Co., only prerequi- code makes government adjudicate. Hughes v. Atlantic Ref. (Tex.1968); Tex. Gov’t jurisdictional, to suit see In re sites see (Tex.App.-Texar Alley, Ann. 311.034. See also State (Tex.2010) K.E.W., orig. proceeding) kana re- noting previously supreme court's characterization of the It worth that this Court quirements re in subsection and then determined that the service-of-citation 361.321(c) quirement in of the made all subsection chose to enact a statute that "statu- jurisdiction jurisdictional health and code was not a tory prerequisites” in nature. requirement. Club v. TexasNat al See Sierra Accordingly, that the Commission contends Comm’n, Res. Conservation 26 S.W.3d ural legal landscape underpinning conclu- our 2000), on oth enough in Club has been altered sion Sierra aff'd grounds, In its er 70 S.W.3d 809 holding inapposite that to the current render brief, the Commission asserts that we should case. disregard prior that our conclusion because govern- Although of the section 311.034 legislature decided before the enact case was not in effect at the ment code was provision stating prerequi ed a Club, in we time we made our decision Sierra jurisdictional. sites to suit were See Tex. believe our conclusion in that case warrants 311.034(c) (West Supp. Gov’t Code Ann. Moreover, mentioning in the case. current addition, 2011). points the Commission although supreme may court have charac- portions supreme opin- various court’s requirements as terized service-of-citation affirming judgment our in which the court ion prerequisites, supreme made no de- court 361.321(c) “requires that subsection stated regarding require- termination whether those sought when review is in ‘service of citation’ Instead, jurisdictional were in nature. ments court,” district Texas Natural Res. Comm'n supreme the re- court concluded that Club, (Tex. 70 S.W.3d 813-14 Sierra and, quirements were met in Sierra Club II 2002) (“Sierra ”), in Club II and which therefore, jurisdictional "did not reach the filing require and citation characterized by” at 814- issue addressed this Court. Id. 361.321(c) "judicial- as ments in subsection Accordingly, supreme court made no 15. Moreover, prerequisites,” at review id. binding whether the determination summarizing opinion, supreme when our comply with failure to the service-of-citation court that this Court concluded that the stated requirements in subsection de failure to meet the service-of-citation "statuto prives jurisdiction, a trial and its de court of ry prerequisites is not a defect that affects scription requirements in of the subsection subject-matter jurisdiction.” court’s Id. at 361.321(c) is dicta. See Traveler's Indem. Co. highlighting supreme 811. In addition to Fuller, 848, 852 n. 3 Ill. v. 892 S.W.2d language describing requirements court’s (Tex. 1995) 361.321(c), (explaining cre that dicta does not also subsection Commission binding precedent). asserts that the was aware of the ate jurisdiction light preceding, rule “is that at- we general conclude filing pro- at the time of the taches that the district court erred when it deter- Ginsberg, ceeding”); Gaynier v. that compliance mined with the deadline (Tex.App.-Dallas for service of jurisdictional citation was a writ) (stating jurisdiction of court to prerequisite to suit.2 Given legis- petition when hear case is established separate lature chose to create two dead- alleging subject matter over which filed lines for suit and for executing ser- words, jurisdiction). has In other court given vice and the service deadline to act in the authority of the court filed, occurs after a suit has been we be- properly by filing peti matter is invoked lieve that execution of service is not a alleging falling ju tion a claim under the statutory prerequisite to suit and that the petition risdiction of the court. If the does timely failure to execute should instead be dispute falling not address a under the viewed as similar to a more traditional umbrella, jurisdictional court’s then the failure to comply with a statute of limita- subject-matter juris court does not have words, tions. In other may defendant diction, subject case to dismissal argue that the case should be dismissed plea jurisdiction. to the State v. failing timely service, execute but (Tex.2007) Holland, untimely jurisdictional service is not a de- plea challenges ju that when fect. we sustain TJFA’s first court, risdiction of court reviews appeal. issue on pleaded to determine whether facts “dem exists”). onstrate that More Dismissal Failure to Comply with Ser- over, subject-matter jurisdiction, unlike a vice Requirement defendant waive a generally defect above, As mentioned TJFA also chal- service if he chooses. See Werner v. Col alternative, lenges the district court’s non- well, (Tex.1995); 869-70 jurisdictional basis for dismissing the suit. (stating see also Tex.R. Civ. P. 121 In particular, TJFA asserts that the dis- appearance answer “an constitutes trict court erred concluding that defendant to dispense so as with the neces statutory deadline listed in subsection sity for the issuance or service of citation him”). upon a provision.3 is To support jurisdic- 2. As for the district court's and did not rule on the motion to determination, tional the Commission refers Accordingly, dismiss. TJFA asserted that this prior opinion by to a this Court. See Court should remand the case to the district Pacific Ctr., Employers Ins. Co. v. Twelve Oaks Med. hearing for a court on the motion to dismiss if 03-08-00059-CV, 1511753, No. 2010 WL we determine that the district court erred Tex.App. (Tex.App.-Austin 2010 LEXIS 2771 concluding compliance 30-day that with the 16, 2010, (mem. Apr. pet.) op.). no In that jurisdictional requirement. deadline was a case, this Court that the trial determined However, above, as discussed the district by failing grant Employ- court erred Pacific nonju- court also determined that there was a Company’s plea jurisdic- ers Insurance to the requiring risdictional basis dismissal of tion, which asserted that Twelve Oaks Medi- particular, TJFA’s suit. In the court found diligence cal Center failed to exercise due in compliance 30-day that with the deadline was *1, executing Tex.App. service. Id. at 2010 mandatory. light In of this alternative deter- LEXIS 2771 at *3. To the extent that Pacific mination, agreed during argu- TJFA later oral suggests Employers that service of citation is a and, fact, should, may ment that this Court in suit, jurisdictional requirement reject we judicial economy, in the interests of consider that determination. proper whether dismissal was under the alter- brief, initially suggested In its TJFA native basis. only plea district court ruled on the to the 734 that “are included for Statutory provisions insists that dead- contrary, TJFA promoting proper, or purpose directory merely provision. a

line is are prompt conduct of business” derly and words, although that other mandatory, construed as generally not of citation says the statute Chisholm, 945, particularly 287 S.W.2d at later than the accomplished not “must be comply preju failure to will not when the peti- on which the day after the date 30th parties, the interested rights dice the filed,” Safety Health & Tex. tion is see Dear, Pub. v. Dep’t see Texas 361.321(c), provision Ann. 1999, (Tex.App.-Austin no S.W.2d mandate, “directs, not merely but does Fox, v. pet.) (quoting State S.W.2d specified peri time within the performance 'd)). 1939,writ ref (Tex.Civ.App.-Austin Moreover, asserts that al od.” may weigh in favor of One factor not though did construing requires timely a statute that citation, executing service deadline for directory if the does action as is id., diligence due it did exercise see consequences failing to act specify to execute service of citation. attempting Chisholm, by the deadline. the date Accordingly, TJFA insists differently, “[i]f S.W.2d at 945. Stated was executed relates back that service requires per that an act be provision filed. See Police the date that the suit was any a certain time without formed within Gutierrez, Serv. Comm’n Civ. restraining performance words the act’s S.W.3d time, timing provision after that (stating plaintiff that if fails to exe pet.) Wilkins, usually directory.” 47 S.W.3d at until after limita cute service of citation Dear, 495; at 152 see also period expires, date of service relates tions directory if plaintiff filing provided back to date of act but not in time or performed “diligence effecting ser exercised due indicated, act will be suffi manner deemed vice”). provided accomplishes that act sub cient For determinations statute). stantial statutory requirement is direc whether when a statute uses the word “must” to tory mandatory, or there is no “absolute requirement and also includes a describe apply. test” that courts Chisholm noncompliance, word penalty “[t]he Mills, 155 Tex. Bewley mandatory meaning.” given ‘must’ is (1956). general, statutes that However, Wilkins, 47 at 493. are con use words like “shall” or “must” penalty a in the statute for absence of 945; mandatory, as see id. at Hel strued statutory require to with a failing comply Wilkins, ena S.W.3d Chem. Co. automatically compel ment does not a con (Tex.2001); see Tex. Gov’t Code also stating that an act clusion that (West 2005) § Ann. 311.016 mandatory. not accomplished “must” be is statutes, construing that when courts Aquifer Auth. v. See Edwards Chemical (Tex. creating as Lime, Ltd., should construe word “must” precedent), 2009). Instead, condition but recognizing or the statute is “‘[w]hen ” “have, circumstances, in certain courts penalty for noncom silent’ “ directory being ‘pur construed” those terms as look to the statute’s pliance, courts ” mandatory, (quoting rather than Texas Mut. Ins. Id. Hines v. pose guidance.’ Ctr., L.L.P., Hash, (Tex.1992)); Cmty. Med. see Co. Vista Chisholm, (stating at 945 Chisholm, provision whether is determining 287 S.W.2d at 945. when pet.); see mandatory directory, days or courts should con- of the deadline.4 In final argu- act, ment, “the entire its nature ob- TJFA sider and insists that a conclusion that 30-day ject,” consequences and of alternative con- deadline is would Ctr., L.L.P., structions); actually Med. frustrate the Cmty. Vista the stat- (same). ute because the statutory provision 275 S.W.3d at 552 “exists judicial to allow appeals review of adminis- mind, preceding With the in we turn to trative agency determinations.” arguments made TJFA. TJFA asserts that the deadline is directo- follow, For the reasons that we First, ry for five reasons. TJFA contends disagree with Although TJFA. this is not provision directory is “it because dispositive, we note that the language of upon does not bear the substance of the the statute at issue written with manda appeal review at all” and instead tory language. particular, the statute only ensure that “serves to the [Commis- specifies that service of citation “must be prompt receives notice that the case sion] accomplished not less than day the 30th Second, argues has been initiated.” after the date on which petition designed guarantee that the deadline is to Safety filed.” Tex. Health & Code Ann. 361.321(c). diligently prosecuted” Moreover, § “that case unlike other stat and, therefore, in simply prop- relates to “the utes which the legislature specified has er, filing deadline for orderly prompt and conduct of busi- but chosen deadline, see, Chisholm, specify not to e.g., ness.” See 287 S.W.2d at 945. 143.015(a) § Tex. Loc. Gov’t Third, Code Ann. statutory pro- TJFA notes that the (West 2008) (specifying filing deadline for no explicit penalty failing vision has service), providing suit but no deadline for comply with the deadline and does not legislature’s provide decision to an ex expressly prohibit service of citation after plicit deadline must be afforded sig some deadline, Bruton, see 256 S.W.3d at nificance, see Tex. Health & (noting requiring that statute notice 361.321(c). § Ann. When legislature after suit was filed contained au- provided specific has not deadlines for ser thorizing appeal dismissal of if notice was vice, courts have determined whether ser timely if party made and files motion vice properly performed of citation was dismiss), argues legisla- and that if the cases in which service was executed after ture had intended the service deadline by considering deadline for suit a mandatory requirement, be it could have person whether the filing suit exercised specified failing will result diligence executing due service. See in dismissal as it has in other Gutierrez, By 182 S.W.3d at pro 432-33. see, provisions, e.g., Tex. Loc. Gov’t Code deadline, viding explicit an (West 2008). Fourth, Ann. 89.0041 has indicated its intention to foreclose the that “the lack of service possibility excusing delays fil between prejudice” within 30 did not ing executing diligent service due to rights of the Commission because it re- by plaintiffs.5 efforts at service undertaken ceived actual notice of the lawsuit on the day that it was filed and because service of importantly, legislature More chose accomplished citation was within a few to include the serviee-of-eitation deadline judgment, datory, complied 4. its the district court found that it still with the of prejudiced by the Commission was not statutory provision, argues which TJFA delay in service. provision prompt to ensure the of notice to diligent the Commission in order to allow for issue, argues its second TJFA also that Moreover, prosecution TJFA case. as- even if the deadline at issue is man- failing for any explicit penalty requiring specify not explicitly provision in the same 30-day dead- to execute service within review of the judicial for petition that a line, to the statute does not seem contem- within be filed determination Commission’s not judicial review of suits that do plate decision. See days Commission’s Wilkins, comply with the deadline. failure time- that the id. Given the fact (concluding that statute re- S.W.3d at 495 review within ly petition for file a filing complaint of sworn within quiring decision en- of the Commission’s inspection was time to allow for effective tirely a trial court deprives not provision because did appeal an Commission’s consider require dismissal for failure to expressly decision, on Envtl. Texas Comm’n see explicitly also because statute comply but Kelsoe, 96-98 Quality v. may in delay filing oc- contemplated denied), pet. (Tex.App.-Austin may particular, in proceed; cur but case pair filing both legislature’s decision may findings said that Board make in the subsection is indica- deadlines same delay filing in and that trial importance that the tive of the may findings). consider those The court placed on the service deadline. provides option no for governing statute correctly excusing out or Although points extending TJFA the deadline and comply does failure to deadline the health and code tively trying filing limitations dead- to serve the defendant but serfs that unlike and lines, having difficulty locating defendant. Un- "practically which TJFA concedes must may against like what occur in suits non- strictly, compli- by necessity” be construed defendants, plaintiffs governmental should ance service is measured whether the with difficulty locating serving have little and diligence executing plaintiff with in acted due entirely Accordingly, it is not Commission. preju- service and whether the defendant was diligence clear that due considerations should delay Although by any diced service. above, Regardless, apply here. as discussed acknowledges did not execute that it service legislature’s we believe that the decision to deadline, it of citation until after the provide explicit by which an deadline argues comply failure to should be its of citation must be executed foreclosed due- diligence excused because it acted with due diligence imposed considerations and instead Specif- attempts its to serve the Commission. party an absolute deadline that a must ically, provided it the Com- TJFA asserts that Moreover, to maintain suit. with in order his copy petition day mission with a of its on the although copy petition its TJFA sent that it filed the with the district court. thereby gave the the Commission and Com- Moreover, it that the reason service of suit, providing notice is mission notice of the provided citation was not earlier was due to executing not the same as service of citation. electronically filing a its mistaken belief that II, 70 at 813. Execut- See Sierra Club petition with the district court also effected ing citation formal than service of is more and that once it service of citation discovered notice, merely providing see Tex.R. Civ. P. 99- mistake, promptly executed service of service); requirements (specifying see Accordingly, urges citation. (stating every also id. R. 21a notice date service was executed should relate back required by procedure rules of civil "other filing. date of Civ. to the See Police Serv. may the citation ... be served deliv- than Gutierrez, Comm’n v. 432-33 served”), ering copy party to the to be pet.). party process which a is informed diligent We note that courts consider efforts required he been sued and that he is has determining pursued when if a suit be appearance op- "and to make an answer claims,” II, though even the defendant was not served posing party's Sierra Club until after the deadline for suit and that we do not be- S.W.3d at 813. will excuse a failure to serve before that TJFA's actions could be deemed as courts lieve passage plaintiff complying if ac- of the deadline with the statute. procedure handling days suits within 30 of filing establishes suit. Texas Cf. Dep’t Protective & comply Regulatory that do not with the deadline. See Servs. v. Care, Inc., Lime, Mega Child at 404. The Chemical (Tex.2004) (concluding right to provi decision to not include a legislature’s judicial review administrative proce- allowing explain why to com under party sion “provides dure act a limited waiver of sov- pliance with the deadline was not achieved ereign immunity”); see also id. at 172 This seems particularly is instructive. (noting that in absence agency action light true in this case in of the fact that in affecting property right vested or violating very provision, legislature next constitutional right, person may only seek parties ability why afforded explain to judicial review of agency decision if statute their suit should not be for fail- dismissed review). provides right to judicial By cou- pursue ure to the claim “with reasonable pling right judicial to review with a diligence.” See Tex. Health & requirement that suits be filed and that 861.321(d) (West 2010) (stat- Code Ann. deadlines, service be executed within short if ing governmental entity files motion legislature has demonstrated its intent to for failure claim prosecute dismiss promote quick resolution of appeals filed, year within petition one after court by decisions the Commission and to plaintiff will dismiss suit unless “can show promote the finality of the Commission’s good delay”). and sufficient cause for the light actions. In of the preceding and in fact, only consequence that can be light of required the fact that courts are gleaned from the statute is that a suit filed narrowly construe statutory waivers of by party comply who did not sovereign immunity, see Mission Consol. subject by deadline is to dismissal a trial Garcia, Indep. Sch. Dist. v. court. See id. at 404 that al- 653, (Tex.2008), reject we must TJFA’s though statute was silent non- assertion that the service deadline was deadline, compliance with application pen- merely to promote included “the proper, alty contemplated by statute was that late orderly and conduct prompt of business.” considered). will not be applications Lime, 291 Chemical S.W.3d at 403 Cf. (explaining that enforcement of deadlines

Finally, although correctly points can sometimes lead to harsh (quot- results out designed that the statute is to allow for Locke, ing United States v. 471 U.S. judicial review by of determinations made 100-01, 105 S.Ct. 85 L.Ed.2d 64 Commission, legislature curtailed (1985))).6 sovereign immunity this limited waiver of by requiring suit for review For all the previously given, reasons we by be filed within 30 of a decision conclude that properly district court Commission and that service be executed determined that deadline for requirement 6. TJFA that the deadline set to be deemed as fulfilled legislature unduly will not be undermined even if service was executed well after the a determination that the deadline is regardless was filed and of whether directory plain- and not because plaintiff diligently attempted comply. only tiff's failure to would be excused fact, might the deadline even be considered if he demonstrated that he exercised due dili- provided satisfied that the Commission was gence attempting to execute service. How- given though notice of the suit even none of ever, entirely it is not clear to this Court that requirements the service-of-citation were ever directory a determination that the deadline is met. We do not believe that the actually impose suggest- would the limitation intended for section 361.321 to be read so words, ed TJFA. In other a conclusion that broadly. mandatory might the deadline is not allow the part transcript of the require pay a manda- to it to process of was executing service Instead, the amount of the costs. costs or Accordingly, tory statutory requirement. argues that because the district court that the district we must conclude suit, “the by dismissing court erred for dismissing TJFA’s suit by err did not must be granting of BFI’s counterclaim statuto- failing comply to with ... to and the matter remanded reversed and overrule TJFA’s sec- ry requirement fact, the merits.” In be considered on appeal.7 on ond issue its concession in although TJFA couches Transcript Fees jurisdictional assertions sum- terms of its TJFA chal- appeal, In its final issue on issue, marized in the first TJFA admits court’s lenges portion of district if the dismissal is unsuc- appeal its of BFI’s counterclaim judgment granting cessful, indemnity by claim “BFI’s would above, the TJFA. As mentioned against necessity granted.” be TJFA and BFI to ordered Commission we conclude previously, As discussed of the costs for the pay each one-half by court did not err dis- district TJFA did transcript, but administrative missing light the suit. In of our determi- portion transcript costs not cover nation, we overrule TJFA’s final issue as ($6,564.42). Accordingly, paid BFI all of express no fur- presented appeal on During appeal fees. of transcript regarding the of propriety ther comment decision, sought BFI re- the Commission’s enforcing court’s decision district transcript half of the imbursement portion of the order that Commission’s fees, court ordered TJFA and the district . pay half of the tran- required TJFA the amount ordered the Commis- pay script fees. sion. CONCLUSION of the district challenging portion this judgment, challenge TJFA does not conclude that deadline court’s We executing decision for service of citation under sec- propriety of Commission’s brief, purpose provision that a recent vision and that the In a letter compels supreme case issued court was satisfied. deadline determination that the listed sub- We believe that TJFA’s reliance on Rocca- directory and not man- section misplaced. That case involved a forte County, datory. See Roccaforte Jefferson requiring given, be but notice Roccaforte, 341 S.W.3d 919 ex the statute at issue in this case relates to compli- supreme court determined earlier, pro ecution discussed of service. As statutory requiring provision with a no- ance executing viding equivalent to notice is not jurisdic- filed tice after a suit was was not service, executing requirements and the prerequisite to suit. Id. at 925-26. tional merely provid are more formal than service However, supreme court also determined II, ing at notice. See Sierra Club improperly even that the suit was dismissed 813; J.T.O., In the Interest No. 04-07- though plaintiff provide cf. notice failed 00241-CV, *1, WL at governing specified within the deadline Tex.App. (Tex.App.-San at *2 LEXIS Essentially, Id. at 926-27. the su- statute. 16, 2008, (mem. pet.) op.) Antonio Jan. preme court determined that the relating that rules service though provision even the notice was satisfied mandatory and that failure to citation are with the notice was not mailed accordance comply with renders service ineffec rules statutory provision because notice was tive). might be actions actually given within the deadline. substantially compliant deemed with no light light Id. at 926. In of this case and in necessarily provision will not be suffi tice copy TJFA hand-delivered a of its the fact that Commission, requirements cient to with the of a petition to the TJFA insists that governing substantially complied pro- service of citation.

739 used, safety act, tion 361.321 of the health and code words as well as the entire jurisdictional prerequisite object, not a to suit its nature and is and the conse mandatory statutory requirement. quences that would follow but is from each con addition, we overrule TJFA’s is- struction. See Helena third Chem. v.Co. Wil kins, 486, (Tex.2001); 47 transcript fees. We 494 sue Texas Ctr., modify judg- therefore the district court’s Mut. Ins. Co. v. Vista Cmty. Med. ment affirm the district S.W.3d accordingly and denied). judgment pet. light

court’s dismissal. of these consider ations, I would conclude that the service by Concurring Dissenting Opinion and 361.321(c) deadline set forth in subsection Justice HENSON. directory. Turning plain first to the meaning of the Concurring Opinion Justice ROSE. used, statutory provision words at is- HENSON, Justice, DIANE M. sue directs that service “must” be made

concurring dissenting. and thirty days within specify but fails to agree While I that the failure to effectu- proper consequences for noncompliance. Thus, ate service within the deadline for service plain language provision of the set forth subsection of the itself fails to establish that the deadline is jurisdictional, health Co., and code is mandatory. See Helena Chem. disagree majority’s I conclusion (noting S.W.3d at 493 that word “must” is mandatory. the service deadline is given mandatory meaning when followed See Tex. Health & Ann. by noncompliance penalty). Generally a 361.321(c) (West 2010). provision Because I directory is treated as if it re- statutory quires would instead conclude that the performed that an act be within a directory service deadline is and that dis- certain time but specify does not the con- required missal is not when the plaintiff sequences however, noncompliance; demonstrates that the substantial this conclusion is not automatic. Chis- holm, of the met 945; statute is and the Commission 287 S.W.2d at see Edwards Ltd., prejudiced by delay, respect- Lime, is not I Aquifer Auth. v. Chemical (Tex.2009). fully Therefore, dissent. we must examine object the nature and of the A provision directory if it legislature’s statute determine the in- promotes “proper, orderly, prompt Co., tent. See Texas Mut. Ins. 275 S.W.3d conduct Bewley of business.” Chisholm v. at 552. Mills, Tex. (1956). concedes,' Conversely, majority courts agree, construe stat- As the and I utory provision mandatory designed as when the the statute in this case is to allow power duty or to which it relates is for the review of determinations made Albertson’s, Sinclair, public good. agree Inc. v. I Commission. also legislature simultaneously As has demonstrat- out, majority correctly points promote there is no ed an “intent to the quick resolu- “absolute test” to determine whether a tion of appeals decisions Commis- statutory provision mandatory promote finality or direc- sion and to Chisholm, tory. However, 287 S.W.2d at 945. actions.” the ma- Commission’s jority part To determine whether the in- relies in on the fact that the operates sovereign tended a to be or as a waiver of issue, directory, we plain meaning immunity, jurisdictional consider the to con- delay in ser- interpretation, any majority’s intend- deadline was the service elude that result promote proper, any “the for reason would more than vice of citation ed to do of business.” conduct orderly prompt and This result is in of the case. dismissal objective and of the the nature Based on relatively the given harsh particularly statute, disagree. I the fact that for service and short deadline delayed by circumstances may service be gener- of citation of service purpose

The plaintiff. of the outside the control over the court ally give is to Cf. Guerra, v. Dep’t Safety notice to the Texas Pub. provide and to parties the of 645, it has been sued. TAC (holding that that defendant Boothe, 315, Americas, 94 S.W.3d Inc. v. held within hearing that be requirement 2002, pet.). no No- (Tex.App.-Austin noting that it forty days directory, is and thereby gives the defendant by tice service punish plaintiff would be unreasonable the law- to answer and defend a chance control). I for acts that are not within no indication that the Id. There is suit.1 deadline not believe that the service do for service of citation legislature intended trap procedural to create a was “intended notice of purpose other than promote to obtain dis- allowing the [Commission] By in- against the Commission. the suit diligently when service has been missal” statutory deadline in which to cluding a has not been and the Commission pursued service, has indi- effectuate v. delay. See prejudiced Roccaforte in delays intention to minimize cated an 919, Cnty., 341 S.W.3d 926-27 Jefferson beyond thirty days. Because service (Tex.2011) noncompliance notice and prompt deadline concerns that notice statutory requirement with review, it there- judicial of quick resolution within county mailed to officials must be orderly, promote “proper, by serves to filing require of of suit did not prompt conduct of business.” Chis- and notice was instead hand- dismissal when holm, Accordingly, I at 945. 287 S.W.2d delivered, requiring dis- despite provision deadline would conclude that “as re- give for failure to notice missal 361.321(c) in is direc- presented subsection quired”). tory. Having the service determined A conclusion that the service deadline directory, we next determine deadline when we directory especially compelling fail- consequences for TJFA’s proper consequences interpre- of the consider Dep’t See Texas majority. strictly comply.2 ure to urged by tation Under contrast, deadlines, recognized Supreme that noncom such as the Court has 1. In statutory require pliance mandatory with a to file a set forth in subsec deadline 361.321(c), necessarily require dismissal in ment does not to set a time limit on a tion seek University Tex. Sw. Med. Ctr. subject- all cases. See party’s ability invoke the court’s Loutzenhiser, (Tex. 140 S.W.3d controversy. jurisdiction over the matter 2004) ("The non-jurisdictional re 361.321(c) failure of §Ann. Tex. Health & Co., may (West 2010); quirement mandated statute result Hughes v. Atlantic Ref. Albertson’s, ....”); (Tex. 1968). of a claim but see loss Sinclair, (Tex. 961-62 Inc. v. 984 S.W.2d 361.321(c)’s 1999) assuming (noting that failure to with that subsection 2. Even worker’s mandatory, disagree I notice under service deadline is require consequence noncompli- compensation law did not dismissal appropriate Hash, review); necessarily Hines ance is dismissal of the suit. action (Tex. 1992) (noting nonjuris- comply with a 468-69 While the failure to mandatory, presuit purpose notice re requirement mandated dictional claim, practices deceptive trade act may quirement under result in the loss of Texas Dear, discussed, Safety v. previously As purpose Pub. this statute in case is to pet.) (noting allow for the decisions, review of Commission while statute is if “act is directory, that when purpose of the service deadline set forth but not in or in the performed, the time subsection is to ensure indicated, be mode it will still be precise Commission receives prompt notice of the sufficient, if that accom which is done suit so that answer statute”); prepare the substantial plishes defense. The statute does not indicate Duncan, Reese v. cf . that of the plaintiffs termination substan- denied) (Tex.App.-Dallas pet. rights tive for late service required is or (noting that when statute is purpose the of the service deadline is compliance there was whether substantial by best such served See termination. relevant). case, When, a is not as this $435,000.00, State v. S.W.2d consequences statute is silent about the of (Tex.1992) (“If the Legislature had intend noncompliance, we look to the statute’s ed to be dismissal the consequence of purpose determine the conse proper failure to hear a forfeiture case within the Co., quences. Helena 47 S.W.3d at Chem. prescribed period, easily could have said Hash, 494; v. Hines S.W.2d so....”). Instead, like the Roccaforte, purpose substantial of the be issue, proper A similar without accomplished requiring automatic consequences with noncomplianee for suit. dismissal of the statutory notice requirement, recently was It undisputed that TJFA timely filed by the Supreme addressed Texas Court suit for review and that notice of v. County, 341 Roccaforte Jefferson the suit was e-mailed to the Commission case, supreme at 926-27. court Thus, day. the same the Commission had plaintiffs to deliver held that failure suit, of actual notice TJFA’s enabling it to mail, of county by notice suit to an officials Further, prepare answer and a defense. not re- express requirement, did formally while service was effected eleven dismissal quire against of the suit deadline, presented after the TJFA Instead, county.3 recog- Id. the court evidence that its failure to effect service purpose provi- that the of nized the notice sooner was due to on misunderstanding “county sion was to ensure that officials trial part possible of counsel and a suits, allowing are made aware of pending by Specifically, error the district clerk. case,” county to answer and defend presented TJFA evidence for that counsel purpose and that this was served where incorrectly believed that electronic gave county officials plaintiff notice to accomplish would also service delivery. Id. hand citation and it did not no- “reeeive[ ] require statutory provision not plaintiffs does dismissal of action 3. The at issue in Rocca- County, section untimely); when notice State 89.0041 forte Jefferson code, government provides $435,000.00, (Tex.1992) the local also give person required does not "[i]f notice as (holding that failure to hold forfeiture case section, this court in which the suit hearing statutorily 30-day pe- required within pending dismiss the suit shall on a motion dismissal, require explaining did riod county county dismissal made or the issue is not whether 'shall' is mandato- "[T]he (Tex.2011); official.” 341 ry, consequences what a failure but follow Gov't Code see Tex. Loc. Ann. comply.”). (West 2008). provi- to conclude that a ed “reluctan[ce] Petition’s readiness Original tice of legisla- clear jurisdictional, until the stat- absent mail” sion is via First Class service effect,” already had for service to that which furthers utory deadline tive intent “ vulnerability learning Commis- ‘to reduce the passed.4 Upon policy citation, ground had not received to attack on the judgments sion final effected formal service. matter immediately subject tribunal lacked ”2 greater I can think of few jurisdiction.’ circumstances, I would con these Under finality judgment of a than threats to the substantially complied that TJFA clude service-of-citation re- post-filing to deem forth in sub deadline set with the service jurisdictional. given as And quirements 361.321(c), such that substan section “prereq- of the word Legislature’s use statutory deadline was tial word “re- general rather than the uisites” preju was not met and the Commission in section 311.034 of quirements” delay. Rocca diced as a result Act,3 legisla- I see no “clear Construction Accordingly, I at 926. forte, 341 S.W.3d 361.321(e)’s tive intent” to deem section judgment trial court’s would reverse the for service of cita- post-filing requirement motion to dis granting Commission’s jurisdictional prerequisite to suit.4 tion the trial this cause to miss and remand proceedings further consistent court for respectfully I concur in the opinion. with this judgment. opinion and ROSE, Justice, concurring. JEFF but write majority’s opinion, in the join

I deference to emphasize to our

separately expressly stat- Supreme

the Texas Court’s governmental entity”); against a Roc v. Gutier all suits 4. Civil Service Commission Police rez, recognized late service of Cnty., this Court 341 S.W.3d Jefferson caforte judicial of an ("Section review (Tex.2010) citation in suit applies pre 311.034 necessarily decision does not administrative suit, requisites requirements not notice the suit. 182 S.W.3d result in dismissal of 430, filed.”) (em only can be satisfied suit is after pet.). In original); phasis in see also Scott v. Presidio stead, date of service of we held that the Dist., (Tex. Indep. Sch. 266 S.W.3d plaintiff's relates back to the date of citation 2008) ("A reh'g) 'statutory App.-Austin (op. on review, and thus is suit for govern prerequisite against ... suit timely, plaintiff exercises due dili when the entity’ step mental refers to a or condition gence effecting Id. service. against that must be satisfied before the suit filed.”), the state can be rev'd on other White, City 1. DeSoto v. grounds, 309 S.W.3d 927 (Tex.2009) (citing Co. v. Dubai Petroleum Kazi, (Tex.2000) apply- and ing principles to an administrative Dubai's & Ann. 4.See Tex. Health Beal, appeal); Texas Administrative 361.321(c) (West 2010) see (requiring § service of (2011) (dis- § 11.2.1[a] Practice and Procedure filing petition within 30 citation cussing supreme ap- if and court would TCEQ how decision); City judicial review of appeals). ply Dubai to administrative DeSoto, (noting 288 S.W.3d at 394 that our "focus is to 'avoid a result that leaves Dubai, (quoting Restate- 12 S.W.3d at 76 judgments [a tribunal] decisions e, (Second) § Judgments 11 cmt. at ment attack, subject future limbo and unless (1982)). intent”) Legislature's (citing was the clear Inc., (West Grp., Igal Brightstar Tech. Code Ann. 311.034 3. See Tex. Gov’t Info. 2010) "statutory (Tex.2008)). (providing prerequisites jurisdictional requirements in to suit ... are

Case Details

Case Name: Tjfa, L.P. v. Texas Commission on Environmental Quality and BFI Waste Systems of North America, Inc.

Court Name: Court of Appeals of Texas

Date Published: May 4, 2012

Citation: 368 S.W.3d 727

Docket Number: 03-10-00677-CV

Court Abbreviation: Tex. App.