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
C O N C U R R I N G O P I N I O N
I join in the majority=s opinion, but write separately to emphasize our deference to the Texas Supreme Court=s expressly stated Areluctan[ce] to conclude that a provision is jurisdictional, absent clear legislative intent to that effect,@[1] which furthers its policy A>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 Aprerequisites@ rather than the general word Arequirements@ in section 311.034 of the Code Construction Act,[3] I see no Aclear 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 Astatutory 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) (ASection 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.CAustin 2008) (op. on reh=g) (AA >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 Afocus 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)).