### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00677- CV

TJFA , L.P., A ppellan t

v.
Texas Com m ission on En vironm ental Quali ty and BFI Wast e System s of North Am eric a, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 9-0 0406 2, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

C O N C U R R

I N G A N D D I S S E N T I N G O P I N I O N

Whil e I ag ree that the failure to eff ectua te service within the deadline for service set
forth in subsection 361.321(c) of the health and safe ty code is not jurisdictional, I disag ree with the majority ’s conclusion that the service deadline is mandatory

. See Tex. Hea lth & Safety Code Ann. § 361.321(c) (West 2010)

. Be cause I would instead conclude that the statutory service deadline is
direc tory and that dismiss al is not require d wh en t he plaintiff demonstrates that the substantial

p u r p o s e o f th e s ta

tu te is me t a n d th e Co mm is s io n is n o t p r e ju d ic e d b y th e d e la

y , I r e s p e c tf

u ll y d is s e n t.
A statutory provision is direc tory if it promotes the “prope r, order ly , and prompt
conduct of business.” Chisholm v. Bewley Mil ls , 287 S.W .2d 943 , 9 4 5 (Tex. 1956). Conversely ,
courts construe a statutory provision as mandatory when the power or duty to which it rela tes is for the publ ic good. Albertson’s, Inc. v. Sinclair , 984 S.W .2d 958, 961 (Tex. 1999). As the m ajority

c o r r e c tl y p o in

ts o u t, th e r e is n o “ a

b s o lu te te s t” to d e te r

mi n e w h e th e r a s ta

tu to r y p r o v is io n is ma

n d a to r yor direc tory

. See Chisholm , 287 S. W

. 2 d at 9 4 5

. To deter mine whether the leg islature intended

a provi s i o n t o b e m andatory or direc tory , we consider the plain meaning of the words used, as
well as the entire act, its nature and object, and the conseque nces that would follow from eac h
construction. See H

elena Chem . Co. v. W

ilkins , 47 S.W .3d 486, 494 (Tex. 2001); Texas Mut. Ins.
Co. v. Vista Cmty. Med. Ctr ., 275 S.W .3d 538, 552 (Tex. App.—Austin 2008, pet. denied)

. I n light
of these considera

tions, I would conclude that the service deadline set forth in subsection 361.321(c) is directory

. Turning first to the plain meaning of the words used, the statutory provision at issue
direc ts that service “must” be made within thirty day s but fails to specify the proper conseque nces for noncompliance

. Thus, the plain lang uag e of the provision itself fails to establish that the deadline is mandatory

. See Helena Chem. Co. , 47 S.W .3d at 493 (noting that word “must” is g iven mandatory meaning when followed by noncompliance penalty ). Ge nera lly a provision is trea ted as direc tory
if it require s that an ac t be performe d within a certain ti me but does not specify the consequence s
for nonc ompliance; howe ver, this conc lusion is not automatic. Chisholm , 287 S.W .2d at 945; see
Edwards Aquifer Auth. v. C hemical Li me , Ltd. , 291 S.W .3d 392, 404 (Tex. 2009). There fore , we

must examine the nature and object o f t h e s t at u t e to deter mine the l eg islature’s intent

. See Texas
Mut. Ins. Co. , 275 S.W .3d at 552.

As the majority conce des, and I ag ree , the statute in this case is desig ned to allow for judicial revie w of deter

minat i o n s m ad e by the Commi ssion. I also ag ree that the leg islature has
simult aneously demonstrated an “intent to promote the quick resolution of appea ls of decisions by
the Commi ssion and to pr omote the finality of the Commi ssion’s actions.” Howeve r, the majority

2relies in part on the fac t that the statute opera tes as a waiver of sovere ign immunit y , a jurisdictional

i ssue, to conclude that the service deadline was intended to do more than promote “t h e p ro p er , order ly and prompt conduct of business.” Ba sed on the nature and objective of the statute, I disag ree
.

The purpose of service of citation g ener ally is to g ive the court jurisdiction over the parties and to provide notice to the defe ndant that it ha s been sued. TAC Americas, Inc. v. Boothe , 9 4 S. W. 3 d 3 1 5 , 3 1 9 ( T e x. A p p
. — Au s ti n 2 0 0 2 , n o p e t. )

. N o ti c e b y s e r v ic e th e r e b y g iv e s th e d e f

e n d a n t

a chanc e to answe r and defe nd the lawsuit. Id

. There is no indication that the leg islature intended 1
for service of citation to promote a purpose other than not i ce o f t he suit ag ainst the Commi ssion. By i ncluding a statutory deadline in which to eff ectua te service , the leg islature has indicated an
intention to minimi ze delay s in se rvice bey ond thirty day s. Be cause the deadline conce rns prompt
notice and the quick resolution of judicial revie w, it there by serve s to promote the “prope r, order ly , and prompt conduct of business.” Chisholm , 287 S.W .2d at 945. Acc ording ly , I would conclude
that the servic e dea dline prese nted in subsection 361.321(c ) is direc tory

.

A conclusion that the service deadline is direc tory is espe ci al l y compelli ng when

we consider the conseque nces of the interpre tation urg ed by the majority

. Under the majority ’s interpre tation, any delay

in service of citation for any rea son would result in dismissal of the ca se.
This result is particula

rly harsh g iven the rela tively short deadline for service and the fac t that service

may be delay ed by circ umstances outside the control of the plaintiff. Cf. Texas Dep’ t of Pub. Safety

I n contra st, filing deadlines, such as t he deadline t o file a petition set forth in s ubsection 1 361.321(c) , s ee k t o s et a time limit on a party ’s ability to invoke the court’s subject-matter jurisdiction over the controve rsy
. See Tex. Hea lth & Safety Code Ann. § 361.321(c) (West 2010); Hughes v . Atlantic Ref. Co. , 424 S.W .2d 622, 625 (Tex. 1968).
3v. Guerra , 970 S.W .2d 645, 649 (holding that statutory require ment that hear ing be held within forty

day s is direc tory , and noting that it would be unrea sonable to punish plaintiff for acts that are not
within its control). I do not believe that the s ervic e deadline was “intended to cre ate a proce dural
trap allowing the [C ommissi on] to obt ai n d i smissal” when service has been diligently pursued

an d the Commi ssion has not been prejudice d by the delay

. See Rocc aforte v. Jefferson Cnt y. , 341 S.W

. 3 d 9 1 9 , 926-27 (Tex. 2011) (explaining that noncompliance with statutory require ment that
notice mus t be mailed to county officia ls within 30 day s of f i l i n g of sui t did not require dismiss al
when notice was instead hand-de livered, despite provision requiring dismiss al for failure t o gi v e
notice “a s require d”).

Having deter

mined that the service deadline is direc tory , we next deter mine the

proper conseque nces for TJ FA’ s failure to strictly comply

. See Texas Dep’ t of Pub. Safety v. Dear , 2

999 S.W .2d 148, 152 (Tex. App.—Austin 1999, no pet.) (n o t i n g that when statute is direc tory , if
“ac t is pe rfor

med, but not in the time or in the prec ise mode indicate d, it will be sti ll be sufficie nt,

Even assuming that subsection 361.321(c) ’s service deadline is mandatory , I disag ree that 2 the appropr iate conseque nce for noncompliance is n ece ssarily dismiss al of the suit. Whil e the failure to comply with a nonjurisdictional require ment mandated by statute may result in the loss of a claim, th e T e xa s Su

p r e me Co u

r t h a s r ecog nized that noncompliance with a mandatory statutory requir e me n t d o e s n o t n e c e s s a

r il y r e q u ir e d is mi s s a l in a ll c a s e s
. S e e U n iv e r s it y o f Te x

. S w. M e d

. Ct r

. v

. Lo u tz e n h is e r , 140 S.W .3d 351, 360 (T ex
. 2003) (“The failure of a non-jurisdictional require ment mandated by statute may result in the loss of a claim

. . . .”); but see Albertson’s, Inc. v. Sinclair , 984 S.W .2d 958, 961-62 (Tex. 1999) (noting that failure to comply with mandatory notice provision under worke r’s compensa tion law did not require dismiss al of action for judicial revie w); Hines v. Hash , 843 S.W .2d 464, 468-69 (Tex. 1992) (noting that purpose of mandatory , presu i t notice require ment under dece ptive trade prac tices act does not require dismiss al of plaintiff’s action when notice is untimely ); State v. $435,000.00 , 842 S.W .2d 642, 644 (Tex. 1992) (holding that failure to hold forf eiture case hear ing within statutorily require d 30-day period did not require dismiss al, explaining “[T] he issue is not whether ‘ shall’ is mandatory , but what conse quence s follow a fa ilure to comply .”).
4if that which is done acc omplishes the substantial purpose of the statute”); cf

. Ree se v. Duncan , 80 S.W .3d 650, 658 (Tex. App.—Dallas 2002, pet. denied) (noting that when statute is ma ndatory
whether there was substantial c ompliance is not rele vant). When, a s in this case , a statute is silent
about the conseque nces of noncompliance , we look to the statute’s purpose to deter m i ne the

proper conseque nces. Helena Che m. C o , 47 S.W .3d at 494; Hines v. Hash , 843 S.W .2d 464, 468 (Tex. 1992).
A simil ar i s s u e, reg arding the proper conseque nces for noncompliance with a statutory notice require ment, was rec ently addre ssed by the Texas Supre me Court in Rocc aforte v.
Je f f er s o n C ounty , 341 S.W .3d at 926-27. I n that case , the supreme court held that the plaintiff’s
failure to deliver notice of suit to county officia ls by mail, an express statutory require ment, did not require dismiss al of the suit ag ainst the county

. Id

. I nstead, the court rec og nized that the purpose 3
of the notice provision was to ensure that “county officia ls are made awa re of pending suits, allowing
the county to answe r and defe nd the case ,” and that this purpose was serve d wher e the plaintiff g ave notice to county

officia ls by

hand deliver

y
. Id

. As previously discussed, the purpose of the s t at u t e i n this case is to allow for the
revie w of Commi ssion decisions, while the purpose of the servic e dea dline set forth in subsec tion 361.321(c) is to ensure that the Commi ssion rec eives prompt notice of the suit so that it may answe r and prepare a defense. T he statute doe s not indicate that termination of the pl aintiff’s substantive

The statutory provision at issue in Rocc aforte v. Jefferson County , section 89.0041 of the 3 local g overnme nt code, also provides that “[i] f a person does not g ive notice as require d by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismiss al made by the county or the county officia l.” 341 S.W .3d 919, 925 (Tex. 2011); see Tex. L oc. Gov’t Code Ann. § 89.0041(c ) (West 2008).
5rig hts for late service is require d or t hat t he purpose of t he service deadline is best serve d by such

termination. See State v. $435,000.00 , 842 S.W .2 d 642, 644 (Tex. 1992) (“I f the L eg islature had
intended dismiss al to be the conseque nce of a failure to hear a forf eiture case within the presc ribed period, it could ea sily

have sa id so . . . .”). Instead, like Rocc aforte , the substantial purpose of the
statute may

be ac complished without requiring automatic dismissal of the suit.

I t is undisputed that TJ FA timely filed suit for judicial revie w and that notice of the
suit was e- m ai l ed to the Commi ssion the same day

. Thus, the Commi ssion had actua l notice of

T J FA ’s s uit, enabling it to answe r and prepa re a defe nse. Fur

ther, while service was form al l y
eff ecte d eleve n day s afte r the deadline, TJ FA prese nted evidenc e t h at i t s fa i lure to eff ect service

sooner was due to a misunderstandin g on the part of trial counsel and a possible err or by the
district cler

k. Specifica lly , TJ FA prese nted evidenc e that counsel for TJ FA incorre ctly believed that
elec tronic fili ng would also acc omplish service of the citation and that it did not “re ceive [] notice
of the Orig inal Peti t i o n ’s re ad i ness for service via First Class mail” until the statutory deadline
for service had alre ady passed. Upon lear ning t h at t h e C o mmissi on had not rec eived service of 4 citation, TJ FA immediate ly eff ecte d formal se rvice

. Under these circ umstances, I would conclude that TJ FA substantially complied with
the service deadline set forth in subsection 361.321(c) , such that the substanti al p u rp o s e o f the
statutory deadline was met and the Commi ss i o n wa s n ot prejudice d as a result of the delay

. See

I n Police Civil Servic e Commission v. Gutierrez , this Court rec og nized that late service of 4 citation in a suit for judicial revie w of an administrative decisi o n does not nece ssarily result in dismiss al of the suit. 182 S.W .3d 430, 432 (Tex. App.—Austin 2005, no pet.). I nstead, we held that the date of service of citation rela tes back to the date of plaintiff’s filing suit for judicial revie w, and thus is ti mely , when the pla intiff exercises due diligenc e in ef fec ting se rvice

. Id

. 6Rocc aforte , 341 S.W .3d at 926. Acc ording ly , I would reve rse the trial court’s judgme nt g ranting the

Commi ssion’s motion to dismiss and rema nd this cause to the trial co u rt fo r further proce eding s consistent with this opi nion.

__________________________________________ Diane M. H enson, Jus tice
Be fore Chief J ustice Jones, J ustices Pury ear , Pemberton, He nson, Rose and Goodwin Filed: May

4, 2012

7