      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



                               CONCURRING OPINION


                 I join in the majority’s opinion, but write separately to emphasize our deference to the

Texas Supreme Court’s expressly stated “reluctan[ce] to conclude that a provision is jurisdictional,

absent clear legislative intent to that effect,”1 which furthers its policy “‘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 “prerequisites”




        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)).
rather than the general word “requirements” in section 311.034 of the Code Construction Act,3 I see

no “clear 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




        3
            See Tex. Gov’t Code Ann. § 311.034 (West 2010) (providing that “statutory 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) (“Section 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.—Austin 2008) (op. on
reh’g) (“A ‘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 “focus 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)).


                                                      2
