Sierra Club v. TX Nat. Resource Conserv.

• Citation: 26 S.W.3d 684
• Parties: (Tex.App.-Austin 2000) Sierra Club and Downwinders at Risk, Appellants v. Texas Natural Resource Conservation Commission, Appellee NO. 03-99-00880-CV
• Decision Date: 27 July 2000
• Court: Court of Appeals of Texas

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26 S.W.3d 684 (Tex.App.-Austin 2000) Sierra Club and Downwinders at Risk, Appellants
v.
Texas Natural Resource Conservation Commission, Appellee NO. 03-99-00880-CV COURT OF APPEALS OF TEXAS, AUSTIN. July 27, 2000.
Rehearing Overruled Sept. 21, 2000.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 99-06479, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING

Before Chief Justice Aboussie, Justices Kidd and Powers^*

JOHN E. POWERS, Justice (Retired).

Sierra Club and Downwinders at Risk ("plaintiffs") appeal from a judgment that dismisses for want of subject-matter jurisdiction their suit for judicial review of a final order issued by the Texas Natural Resource Conservation Commission (the "Commission") in a contested case.¹ We

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will reverse the judgment and remand the cause to the trial court.

THE CONTROVERSY

TXI Operations, L.P. (TXI) applied to the Commission for a permit authorizing the burning of solid waste in TXI's cement kilns at Midlothian, which TXI had done previously without the necessity of a permit. The plaintiffs, the Commission's Public Interest Counsel, and seven individuals were parties of record in the contested case that followed the filing of TXI's application. After a hearing, the Commission issued its final order granting the permit.

The plaintiffs filed in the present cause an original petition imputing numerous errors of law to the Commission's decision, naming the Commission as the sole defendant. The Commission was served with citation and appeared in the cause by filing an original answer containing a general denial only. While the other parties of record evidently received copies of the plaintiffs' petition, they were not served with citation requiring them to appear and answer in the cause.²

The trial court construed the plaintiffs' petition as alleging a single cause of action that was purely statutory, authorized and governed by section 361.321 of the Texas Health and Safety Code and another statute discussed below.³ And because these statutes required service of citation on the other parties, with a copy of the plaintiffs' petition attached thereto, the court concluded the plaintiffs had failed to comply with statutory provisions that were integral parts of their statutory cause of action. Under the doctrine requiring strict compliance with such provisions--a doctrine laid down in Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926)--the trial court dismissed the cause for want of subject-matter jurisdiction.⁴ See Mingus, 285 S.W. at 1087. The plaintiffs appeal from the judgment of dismissal.

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THE STATUTES

Some 84 days after the plaintiffs filed their petition, the Commission filed a plea to the jurisdiction that the trial court sustained. The plea orchestrated two applicable statutes as grounds for the Commission's contention that the trial court lacked subject-matter jurisdiction because the other parties had not received service of citation.

The first statute is section 361.321 of the Texas Health and Safety Code, which the court held was the sole statute under which plaintiffs alleged they were authorized to bring a cause of action for judicial review of the Commission's final order granting the permit requested by TXI. Subsection (a) of the statute provides "[a] person affected by a decision . . . of the commission may appeal the action by filing a petition in a district court of Travis County." Tex. Health & Safety Code Ann. § 361.321(a) (West Supp. 2000). Subsection (c) of the statute provides that in such actions, save for an exception not material here, "the petition must be filed not later than the 30th day after the date of the . . . decision" and "[s]ervice of citation must be accomplished not later than the 30th day after the date on which the petition is filed." Id. § 361.321(c) (emphasis added). It is undisputed that citation was not served on the other parties of record before the 30th day after the plaintiffs filed their petition. The Commission, the sole defendant named in the plaintiffs' petition, was served with citation within the time required.

The second statute governing the plaintiffs' statutory cause of action is Section 2001.176 of the Administrative Procedure Act ("APA"). See Tex. Gov't Code Ann. § 2001.176 (West Supp. 2000). Subsection (b)(2) of the statute requires that "a copy of the petition must be served on the state agency and each party of record in the proceedings before the agency." Id. § 2001.176(b)(2) (emphasis added). In E.R.S. v. McKillip, we held that section 2001.176(b)(2) meant, for reasons set forth in our opinion, that each party of record in the agency proceedings must be served with a copy of the petition attached to a citation issued and served in a manner authorized by Rules 99 through 107 of the Texas Rules of Civil Procedure. See Employees' Retirement Sys. v. McKillip, 956 S.W.2d 795, 797-98 (Tex. App.--Austin 1997, no writ). We held, moreover, that the provisions set out in Rules 21 and 21a, authorizing the service of "notice" on other parties (as was evidently...