Opinion issued July 19, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00942-CV
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HDW2000 256 EAST 49TH STREET, LLC AND PLAZA DE CENTRAL
SQUARE, INC., Appellants
V.
THE CITY OF HOUSTON, Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2010-01156
MEMORANDUM OPINION
Appellants HDW2000 256 East 49th Street, LLC (LLC) and Plaza De
Central Square, Inc. (the Square) contend that (1) the trial court erred in granting
the City of Houston’s plea and dismissing their petition because the petition was
timely and (2) even if untimely, the trial court nevertheless erred because the due
process claims are distinct from the judicial review claims, and are not subject to
the thirty-day filing requirement.
We reverse and remand for further proceedings.
Background
LLC and the Square are legal entities partially owned by Alfred J. Antonini,
a commercial real estate developer. Appellants own two multi-story office
buildings and a parking garage located at 2100 Travis Street in Houston, Texas.
This property has been unoccupied for approximately ten to fifteen years.
The Legislature authorizes municipalities to regulate housing and other
structures and issue orders requiring, inter alia, repair, removal, and demolition of
such structures, after notice and hearing. See TEX. LOC. GOV’T CODE
ANN. §§ 214.001, .003 (West 2008 & Supp. 2011), §§ 214.0011–.002, .004–.005
(West 2008), § 214.0031 (West Supp. 2011). Section 214.0012 provides for
judicial review of such orders. The Local Government Code authorizes the
appointment of a Building and Standards Commission (BSC) to hear and
determine cases alleging violations of health and safety ordinances. See TEX. LOC.
GOV’T CODE ANN. §§ 54.031–.034, .036–.039, .041–.044 (West 2008), §§ 54.035,
.040 (West 2008 & Supp. 2011). The City of Houston’s BCS conducts
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administrative hearings pursuant to this authority, and judicial review of its
decisions is statutorily prescribed. See TEX. LOC. GOV’T CODE § 54.039(a).
Because appellants seek judicial review of the BSC decision, section 54.039
controls. Id.
On November 4, 2009, the City gave notice to appellants, identifying
deficiencies in appellants’ property and informing them that a public hearing on
the condition of the property would be held on December 2, 2009 before the City’s
BSC. 1 At the conclusion of the nine-hour hearing, and in the presence of
appellants’ counsel and Mr. Antonini, the BSC announced its decision: appellants
were to secure repair permits within ten days, and repair all the deficiencies cited
in the notices within sixty days. This ruling was reduced to a written order the
same day, and mailed to appellants on December 3, 2009. Appellants filed their
petition for judicial review on January 7, 2010. The City answered, and
subsequently filed a Plea to the Jurisdiction and Motion to Dismiss, arguing that
appellants’ petition was untimely, thus depriving the court of jurisdiction to review
the BSC’s ruling. The trial court granted the City’s plea and dismissed appellants’
petition. This appeal followed.
1
Although the hearing was originally scheduled for October 21, 2009, the parties
agreed to reschedule the hearing.
3
Discussion
Standard of Review
We review a ruling on a plea to the jurisdiction de novo, construing the
pleadings in the plaintiff’s favor and considering relevant evidence when the
existence of jurisdictional facts has been challenged. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004); Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 553–55 (Tex. 2000); Koll Bren Fund VI, L.P. v. Harris
Cnty. Appraisal Dist., No. 01-07-00321–CV, 2008 WL 525799, at *2 (Tex. App.—
Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.).
Appellants contend that because their petition was filed within thirty
calendar days of one of the three triggering events set out in the statute, their
petition was timely. Specifically, appellants maintain that their petition was filed
within thirty days of the date they received the BSC’s order (i.e., the date the postal
service delivered the order via first class mail) pursuant to section 54.039 of the
Local Government Code. The City disagrees. The City argues that statutory
construction principles require interpretation that the deadline begins on the date of
mailing.
Section 54.039(a)
Section 54.039(a) of the Local Government Code provides that:
Any owner, lienholder, or mortgagee of record jointly or
severally aggrieved by any decision of a commission
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panel may present a petition to a district court, duly
verified, setting forth that the decision is illegal, in whole
or in part, and specifying the grounds of the illegality.
The petition must be presented to the court within 30
calendar days after the date a copy of the final
decision of the commission panel is personally
delivered, mailed by first class mail with certified return
receipt requested, or delivered by the United States
Postal Service using signature confirmation service, to all
persons to whom notice is required to be sent under
Section 54.035. . .
TEX. LOC. GOV’T CODE ANN. § 54.039(a) (West 2008) (emphasis added).
Law Concerning Statutory Construction
The primary objective in construing any statute is to give effect to legislative
intent. Warner v. Glass, 135 S.W.3d 681, 683 (Tex. 2004). We begin with the
plain and common meaning of the statute’s words. Id.; TEX. GOV’T CODE ANN.
§ 311.011(a) (West 2005). “If the meaning of the statutory language is
unambiguous, we adopt . . . the interpretation supported by the plain meaning of
the provision’s words and terms.” Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 865 (Tex. 1999); see also Alex Sheshunoff Mgmt. Servs.,
L.P. v. Johnson, 209 S.W.3d 644, 651–52 (Tex. 2006). We must, however, be
mindful of our duty to glean “legislative purpose from a consideration of the
statutory scheme as a whole rather than from a literal application or interpretation
of any particular statutory language.” Rylander v. Fisher Controls Int’l, Inc., 45
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S.W.3d 291, 299 (Tex. App.—Austin 2001, no pet.). In doing so, we are
committed to interpreting statutory language “according to the rules of grammar
and common usage.” TEX. GOV’T CODE ANN. § 311.011(a) (West 2011).
The City argues that, applying basic statutory construction principles, we
must look to the plain meaning of the words used in the statute and presume that
every word was deliberately chosen and that excluded words were intentionally
excluded. In this case, the City contends, that means that if the Legislature had
intended for the thirty-day deadline to trigger when a party “received” the order,
they would have included such language in the statute. This argument is curious.
Although appellants use the word “received” they do not argue that we should read
something new into the statute, they are just using “received” as a synonym of the
word the statute recites (i.e., the date the decision is “delivered by the United States
Postal Service using signature confirmation service”).
It must be noted that the application of basic statutory construction
principles leads to a contrary result than that urged by the City. The plain language
of the statute dictates that the petition is due within thirty calendar days after the
date a copy of the BSC’s final decision is
(1) personally delivered,
(2) mailed by first class mail CMRRR, or
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(3) delivered by the United States Postal Service using signature
confirmation service, to all persons to whom notice is required to be
sent under Section 54.035.
See TEX. LOC. GOV’T CODE ANN. § 54.039(a) (emphasis added). The statute
provides three separate triggers for the thirty-day deadline—personal delivery,
mailing first class mail CMRRR, and delivery by mail with signature
confirmation—as indicated by the presence of the disjunctive conjunction “or.”
TEX. GOV’T CODE ANN. § 311.011(a) (court’s interpret statutory language
“according to the rules of grammar and common usage”). The City’s method of
service effectively triggered both the second and third time frames and, therefore,
appellants’ filing within thirty days of the third method complies with the statute.
The statute makes no one of these three methods preferable to the others or
requires the deadline to begin to run from the earliest of the three. Thus, provided
that the petition is filed within thirty calendar days of one of these statutorily
enumerated events, the petition is timely.
Citing to Perkins v. City of San Antonio, 293 S.W.3d 650 (Tex. App.—San
Antonio 2009, no pet.) and Bates v. City of Beaumont, 241 S.W.3d 924 (Tex.
App.—Beaumont 2007, no pet.), the City argues that the appeal must have been
filed within thirty calendar days of the date copies of the BSC’s orders were mailed
by first class certified mail, return receipt requested. The City suggests that
interpreting Bates and Perkins and their respective discussions of section 214.0012
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is appropriate because appellants referenced both section 214.0012 and section
54.039 of the Local Government Code in their original petition for judicial review.
Neither Bates nor Perkins, however, supports the proposition that appellants’
appeal must have been filed within thirty calendar days of copies of the orders
being mailed. See Perkins, 293 S.W.3d at 655 (holding “Board’s decision
becomes final upon the expiration of thirty calendar days after the copy of the
Board’s final decision is personally delivered, mailed, or delivered by mail”)
(emphasis added); Bates, 241 S.W.3d at 928–29 (holding that, under specific facts
of case, section 214.0012’s thirty-day requirement was triggered on date final
decision was mailed). Bates does not, however, exclude delivery as a legitimate
triggering event under the statute. See Bates, 241 S.W.3d at 928–29. Bates and
Perkins simply reflect that section 214.012, as does section 54.039, provides three
separate triggers for the thirty-day deadline for parties to file their petition for
judicial review challenging the municipality’s decision—personal delivery,
mailing first class mail CMRRR, and delivery by mail with signature
confirmation—as indicated by the presence of the disjunctive conjunction “or.”
TEX. GOV’T CODE ANN. § 214.0012.
The record reflects that the copies of the order, mailed on December 3, 2009
by first class certified mail with return receipt requested, were delivered to
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appellants on December 8, 2009 and December 12, 2009. Appellants filed their
petition for judicial review on January 7, 2010.
Based on the record evidence, we hold that the time period for filing a
petition for judicial review commenced, at the earliest, on December 8, 2009, the
date the final BSC decision was delivered by the U.S. Postal Service using
signature confirmation service.2
Because appellants’ petition was filed within thirty days of the date the
BCS’s final decision was delivered to them by the postal service using a signature
confirmation service, the trial court has jurisdiction to consider their suit for
judicial review and therefore erred in granting the City’s plea to the jurisdiction
and motion to dismiss.
2
We note that the green cards filed by the City and included in the record show that
other parties entitled to notice pursuant to section 54.035 also received a copy of
the order around the same time as appellants, except for one who received the
order on December 23, 2009. See TEX. LOC. GOV’T CODE ANN. § 54.035(a)(1)
(West Supp. 2011) (requiring notice of proceedings for enforcement of municipal
ordinances be given to all record owners of affected property). We further note that
section 54.039 states that the thirty-day timeframe begins when the final decision
has been personally delivered, mailed, or delivered by mail to “to all persons to
whom notice is required to be sent under Section 54.035.” TEX. LOC. GOV’T
CODE ANN. § 54.039(a) (West 2008). However, because the parties have not
raised an issue with respect to this portion of the statute, we decline to reach the
question of whether the initiation of the thirty-day timeframe is dependent upon
record-evidence demonstrating that all persons entitled to notice have received at
least one of the forms of notice contemplated by the statute.
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Conclusion
We reverse and remand for further proceedings.
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
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