Court of Appeals of Texas, 2012

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

Court of Appeals of Texas · Decided May 4, 2012

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00677-CV

TJFA, L.P., Appellant v.

Texas Commission on Environmental Quality and BFI Waste Systems of North America, Inc., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-09-004062, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

CONCURRING OPINION

I join in the majority’s opinion, but write separately to emphasize our deference to the Texas Supreme Court’s expressly stated “reluctan[ce] to conclude that a provision is jurisdictional, absent clear legislative intent to that effect,”1 which furthers its policy “‘to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.’”2 I can think of few greater threats to the finality of a judgment than to deem post-filing service-of- citation requirements as jurisdictional. And given the Legislature’s use of the word “prerequisites” rather than the general word “requirements” in section 311.034 of the Code Construction Act,3 I see no “clear legislative intent” to deem section 361.321(c)’s post-filing requirement for service of citation a jurisdictional prerequisite to suit.4

Accordingly, I respectfully concur in the opinion and the judgment.

__________________________________________ Jeff Rose, Justice Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin.

Filed: May 4, 2012

1 City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) and applying Dubai’s principles to an administrative appeal); see 2 Beal, Texas Administrative Practice and Procedure § 11.2.1[a] (2011) (discussing if and how supreme court would apply Dubai to administrative appeals). 2 Dubai, 12 S.W.3d at 76 (quoting Restatement (Second) of Judgments § 11 cmt. e, at 113 (1982)). 3 See Tex. Gov’t Code Ann. § 311.034 (West 2010) (providing that “statutory prerequisites to suit . . . are jurisdictional requirements in all suits against a governmental entity”); Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2010) (“Section 311.034 applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed.”) (emphasis in original); see also Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535 (Tex. App.—Austin 2008) (op. on reh’g) (“A ‘statutory prerequisite to a suit . . . against a governmental entity’ refers to a step or condition that must be satisfied before the suit against the state can be filed.”), rev’d on other grounds, 309 S.W.3d 927 (Tex. 2010). 4 See Tex. Health & Safety Code Ann. § 361.321(c) (West 2010) (requiring service of citation within 30 day s of filing petition for judicial review of TCEQ decision); City of Desoto, 288 S.W.3d at 394 (noting that our “focus is to ‘avoid a result that leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislature’s clear intent”) (citing Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 84 (Tex. 2008)).

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