TJFA, L.P. v. Tex. Comm'n On Envtl. Quality

• Decision Date: 21 September 2012
• Docket Number: No. 03–10–00677–CV.,03–10–00677–CV.
• Citation: 368 S.W.3d 727
• Parties: TJFA, L.P., Appellant, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and BFI Waste Systems of North America, Inc., Appellees.
• Court: Texas Court of Appeals

368 S.W.3d 727

TJFA, L.P., Appellant,

v.TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and BFI Waste Systems of North America, Inc., Appellees.

No. 03–10–00677–CV.

Court of Appeals of Texas,

Austin.

May 4, 2012.

Discretionary Review Denied Sept. 21, 2012.

Erich M. Birch, Angela K. Moorman, Birch Becker & Moorman, LLP, James A. Hemphill Graves, Dougherty, Hearon & Moody, PC, Austin, TX, for appellant.

Cynthia Woelk, Brian E. Berwick, Nancy Elizabeth Olinger, Assistant Attorney General Environmental Protection & Administrative Law Division, Paul G. Gosselink, Jeffrey S. Reed, Lloyd Gosselink Rochelle & Townsend, PC, Austin, TX, for appellees.

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

OPINION

DAVID PURYEAR, Justice.

TJFA, L.P. (“TJFA”) sought judicial review of a decision made by the Texas Commission on Environmental Quality (the “Commission”) that granted an application to expand a landfill and that required TJFA to pay half of the transcript fees associated with the hearing addressing the application. Although TJFA filed its suit within the statutory deadline, it did not execute service of citation until after the deadline listed in the health and safety code. SeeTex. Health & Safety Code Ann. § 361.321(c) (West 2010). For that reason, the Commission filed a joint plea to the jurisdiction and motion to dismiss. After a hearing, the district court dismissed the suit by granting the plea and, alternatively, dismissed the suit for failure to comply with a mandatory statutory directive. The district court also ordered TJFA to pay the transcript fees imposed by the Commission. We will affirm en banc the district court's dismissal of the suit for failure to comply with a mandatory statutory provision. See Tex.R.App. P. 41.2 (allowing appellate court to decide to consider case en banc).

BACKGROUND

BFI Waste Systems of North America, Inc. (“BFI”) sought to expand its municipal-solid-waste-landfill permit for a landfill on the east side of Austin, Texas. TJFA owned land near the landfill and opposed the expansion suggested by BFI. After a hearing, the Commission approved the proposed expansion and issued an order granting the application for expansion. In its order, the Commission also ordered BFI and TJFA to each pay one-half of the $13,128.85 in transcript fees ($6,564.42 each) generated as a result of the hearing before the Commission.

Shortly after the Commission made its determination, TJFA filed a suit for judicial review of the Commission's decision. SeeTex. Health & Safety Code Ann. § 361.321(c) (explaining that to appeal administrative determination, affected party must file petition within 30 days of Commission's decision). Because it was contesting the Commission's determination, TJFA did not pay its portion of the transcript fees, and BFI paid the full amount. On the day that it filed suit, TJFA gave the Commission a copy of the petition, but TJFA did not execute service of citation on the Commission until 41 days after it filed suit. Under the governing statutory provision, “[s]ervice of citation must be accomplished not later than the 30th day after the date on which the petition is filed.” Id.

After being served, the Commission filed a joint plea to the jurisdiction and motion to dismiss. In the filing, the Commission asserted that because TJFA did not comply with the 30–day deadline for service of citation, the district court did not have subject-matter jurisdiction over the case. Alternatively, the Commission contended that the suit should be dismissed because TJFA failed to comply with a statutory requirement. After the Commission requested that the case be dismissed, BFI intervened in the case and filed a counterclaim against TJFA for the transcript fees that the Commission ordered TJFA to pay.

In response to the Commission's filing, the district court scheduled a hearing. After the hearing, the district court dismissed the suit. In particular, the district court found that the 30–day deadline for executing service of citation was a jurisdictional prerequisite to suit. Alternatively, the district court determined that the 30–day statutory deadline was “mandatory, not directory.” Further, the district court determined that TJFA had not complied with the deadline because the Commission “was not served with citation until 41 days after the suit was filed.” Accordingly, the district court dismissed TJFA's suit. In addition, the district court ordered TJFA to reimburse BFI for half of the transcript fees from the administrative hearing ($6,564.42).

After the district court made its ruling, TJFA appealed the district court's dismissal.

STANDARD OF REVIEW

A party to a case may assert that a trial court is without jurisdiction to consider the case by filing a plea to the jurisdiction. Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex.2007). In cases in which a governmental unit has filed a plea to the jurisdiction, a party to the case may appeal the grant or the denial of the plea. SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008 & Supp. 2011); see also id. § 101.001(3) (West 2011 & Supp. 2011) (defining “governmental unit”). On appeal, we review de novo the trial court's grant or denial of the plea. Ferrell, 248 S.W.3d at 156.

Moreover, the issues asserted by TJFA involve statutory construction, which is a legal question that we review de novo. See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 501 n. 30 (Tex.2010); Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied). In construing a statute, we must ascertain the legislature's intent in enacting the statute. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). In making this determination, courts should look to the plain meaning of the words used in the statute. See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768–69 (Tex.2000). We presume that every word was deliberately chosen and that excluded words were left out on purpose. USA Waste Servs., 150 S.W.3d at 494. When determining legislative intent, the entire act, not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998). We may also consider the “object sought to be attained” by enacting the statute and the “consequences of a particular construction.” Tex. Gov't Code Ann. § 311.023 (West 2005); see City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002).

DISCUSSION

On appeal, TJFA challenges the district court's alternative bases for dismissing the suit. First, TJFA contends that the district court erred when it determined that the service-of-citation requirement found in section 361.321 of the health and safety code is a jurisdictional prerequisite to suit. Accordingly, TJFA argues that its failure to execute service within 30 days did not deprive the district court of jurisdiction and that the district court therefore erred by granting the Commission's plea to the jurisdiction. Second, TJFA attacks the district court's alternative determination that the case be dismissed because the service requirement is mandatory. Instead, TJFA insists that the provision is merely directory and that its failure to comply with the requirement should be excused because it diligently attempted to execute service. For these reasons, TJFA argues that the district court erred by dismissing the suit and by ordering TJFA to pay half of the transcript fees.

Dismissal for Lack of Subject Matter Jurisdiction

As described above, TJFA's first issue challenges the district court's grant of the Commission's plea to the jurisdiction and dismissal of the case for lack of subject-matter jurisdiction. When supporting the district court's jurisdictional determination, the Commission notes that the legislature has expressly limited the circumstances in which a statute should be construed as a waiver of sovereign immunity. SeeTex. Gov't Code Ann. § 311.034 (West Supp. 2011). Moreover, the Commission also notes that the legislature has determined that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Id. In light of that determination, the Commission argues that timely execution of service of citation is a statutory prerequisite for waiving sovereign immunity under subsection 361.321(c) of the health and safety code. SeeTex. Health & Safety Code Ann. § 361.321(c). Accordingly, the Commission contends that because TJFA failed to execute service within the statutory deadline, the district court did not have subject-matter jurisdiction over the claim.

For the reasons that follow, we disagree with the Commission. This Court has previously explained what qualifies as a statutory prerequisite to suit. See Scott v. Presidio Indep. Sch. Dist., 266 S.W.3d 531, 535, 537 (Tex.App.-Austin 2008) (op. on reh'g) (concluding that requirement that all parties agree to allow suit to occur in Travis County before suit is filed is statutory prerequisite to suit and, therefore, jurisdictional), rev'd on other grounds,309 S.W.3d 927 (Tex.2010) (reversing appellate court's determination that Commissioner of Education was required to give consent to suit being filed in Travis County). In the context of suits against the State, this Court reasoned that a statutory prerequisite to suit is “a step or condition that must be satisfied before the suit against the state can be filed.” Id. at 535. That construction is consistent with those of other courts of appeals. See County of Bexar v. Bruton, 256 S.W.3d 345, 348 (Tex.App.-San Antonio 2008, no pet.) (stating that common usage of term “[p]rerequisite to suit ... implies a requirement to be fulfilled before suit is filed”); Dallas County v. Hughes, 189 S.W.3d 886, 888 (Tex.App.-Dallas 2006, pet. denied) (observing that ordinary meaning of “...