
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., Appellees




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-09-004062, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING


O P I N I O N

	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.  See Tex.
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.  See Tex. 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.  See Tex. 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.  See Tex. 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.  See Tex. 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 "[a] prerequisite is something
that is required beforehand").  In fact, when construing section 311.034 of the government code, the
supreme court explicitly distinguished between prerequisites to suit and requirements that may
only be accomplished after a suit is filed.  See Roccaforte v. Jefferson County, 341 S.W.3d 919, 925
(Tex. 2011).  In particular, the supreme court determined that section 311.034 does not apply to
"notice requirements that can be satisfied only after suit is filed."  See id.; see also Ballesteros v.
Nueces County, 286 S.W.3d 566, 569-70 (Tex. App.--Corpus Christi 2009, pet. denied) (holding
that compliance with post-suit-notice provision is not jurisdictional); Dallas County v. Coskey,
247 S.W.3d 753, 754-56 (Tex. App.--Dallas 2008, pet. denied) (concluding that requirement that
notice be given thirty days after suit was filed is not statutory prerequisite and, therefore, not
jurisdictional).  By the very terms of subsection 361.321(c), the 30-day deadline for executing service
of process begins after the suit has been filed.  See Tex. Health & Safety Code Ann. § 361.321(c).

	When construing a statute, courts must be mindful that there is a presumption against
finding a statutory provision to be jurisdictional.  City of Desoto v. White, 288 S.W.3d 389, 394
(Tex. 2009); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75-76 (Tex. 2000) (overruling
line of cases holding that statutory provisions are mandatory and exclusive and endorsing modern
trend of reducing vulnerability of final judgments by not characterizing statutory requirements as
jurisdictional).  Furthermore, that presumption may only be overcome "by clear legislative intent to
the contrary."  City of Desoto, 288 S.W.3d at 394.  Nothing in the language of subsection 361.321(c)
indicates an intention by the legislature to make service a jurisdictional requirement, see Tex.
Health & Safety Code Ann. § 361.321(c), and as discussed above, section 311.034 of the government
code only makes prerequisites to suit jurisdictional, see Tex. Gov't Code Ann. § 311.034.  See also
State v. K.E.W., 315 S.W.3d 16, 21 (Tex. 2010) (stating that when construing statutes, courts rely
on plain meaning of statute unless different meaning is supplied by legislature or is apparent from
context or unless construction using plain meaning "leads to absurd results"). (1)

	In addition, a determination that service is not a jurisdictional requirement is consistent
with the manner in which a trial court's jurisdiction is invoked.  Under governing case law, filing
a petition endows a trial court with subject-matter jurisdiction provided that the case involves a
dispute that the trial court has authority to adjudicate.  Hughes v. Atlantic Ref. Co., 424 S.W.2d 622,
625 (Tex. 1968); see In re Alley, 1 S.W.3d 268, 271 (Tex. App.--Texarkana 1999, orig. proceeding)
(explaining that general rule "is that jurisdiction attaches at the time of the filing of a proceeding");
Gaynier v. Ginsberg, 763 S.W.2d 461, 463 (Tex. App.--Dallas 1988, no writ) (stating that jurisdiction
of court to hear case is established when petition is filed alleging subject matter over which court
has jurisdiction).  In other words, the authority of the court to act in the matter is properly invoked
by filing a petition alleging a claim falling under the jurisdiction of the court.  If the petition does
not address a dispute falling under the court's jurisdictional umbrella, then the court does not
have subject-matter jurisdiction, and the case is subject to dismissal by a plea to the jurisdiction.  See
State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (explaining that when plea challenges jurisdiction
of court, court reviews petition to determine whether facts pleaded "demonstrate that jurisdiction
exists").  Moreover, unlike subject-matter jurisdiction, a defendant may generally waive a defect in
service if he chooses.  See Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995); see also Tex.
R. Civ. P. 121 (stating that answer constitutes "an appearance of the defendant so as to dispense with
the necessity for the issuance or service of citation upon him").
	In light of the preceding, we conclude that the district court erred when it determined
that compliance with the deadline for service of citation was a jurisdictional prerequisite to suit. (2)
Given that the legislature chose to create two separate deadlines for filing suit and for executing
service and given that the service deadline occurs after a suit has been filed, we believe that
execution of service is not a statutory prerequisite to suit and that the failure to timely execute should
instead be viewed as similar to a more traditional failure to comply with a statute of limitations.
In other words, the defendant may argue that the case should be dismissed for failing to timely
execute service, but untimely service is not a jurisdictional defect.  Accordingly, we sustain TJFA's
first issue on appeal.


Dismissal for Failure to Comply with Service Requirement
	As mentioned above, TJFA also challenges the district court's alternative, non-jurisdictional basis for dismissing the suit.  In particular, TJFA asserts that the district court erred
by concluding that the statutory deadline listed in subsection 361.321(c) is a mandatory provision. (3)
To the contrary, TJFA insists that the deadline is merely a directory provision.  In other words, TJFA
argues that although the statute says that service of citation "must be accomplished not later than
the 30th day after the date on which the petition is filed," see Tex. Health & Safety Code Ann.
§ 361.321(c), the provision merely "directs, but does not mandate, performance within the specified
time period."  Moreover, TJFA asserts that although it did not comply with the 30-day deadline for
executing service of citation, see id., it did exercise due diligence in attempting to execute service
of citation.  Accordingly, TJFA insists that the date that service was executed relates back to the
date that the suit was filed.  See Police Civ. Serv. Comm'n v. Gutierrez, 182 S.W.3d 430, 432
(Tex. App.--Austin 2005, no pet.) (stating that if plaintiff fails to execute service of citation until
after limitations period expires, date of service relates back to date of filing provided that plaintiff
exercised due "diligence in effecting service").
	For determinations regarding whether a statutory requirement is directory or mandatory,
there is no "absolute test" that courts may apply.  Chisholm v. Bewley Mills, 287 S.W.2d 943, 945
(Tex. 1956).  In general, statutes that use words like "shall" or "must" are construed as mandatory,
see id. at 945; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); see also Tex. Gov't
Code Ann. § 311.016 (West 2005) (explaining that when construing statutes, courts should
construe word "must" as creating or recognizing condition precedent), but courts "have, in certain
circumstances, construed" those terms as being directory rather than mandatory, Texas Mut. Ins. Co.
v. Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d 538, 552 (Tex. App.--Austin 2008, no pet.); see
Chisholm, 287 S.W.2d at 945.  Statutory provisions that "are included for the purpose of promoting
the proper, orderly and prompt conduct of business" are not generally construed as mandatory,
Chisholm, 287 S.W.2d at 945, particularly when the failure to comply will not prejudice the
rights of the interested parties, see Texas Dep't of Pub. Safety v. Dear, 999 S.W.2d 148, 152 (Tex.
App.--Austin 1999, no pet.) (quoting State v. Fox, 133 S.W.2d 987, 990 (Tex. Civ. App.--Austin
1939, writ ref'd)).  One factor that may weigh in favor of construing a statute that requires timely
action as directory is if the statute does not specify consequences for failing to act by the statutory
deadline.  Chisholm, 287 S.W.2d at 945.  Stated differently, "[i]f a provision requires that an act be
performed within a certain time without any words restraining the act's performance after that time,
the timing provision is usually directory."  Wilkins, 47 S.W.3d at 495; see also Dear, 999 S.W.2d
at 152 (explaining that if provision is directory and act is performed but not in time or manner
indicated, act will be deemed sufficient provided that act accomplishes substantial purpose of
statute).  Accordingly, when a statute uses the word "must" to describe a requirement and also
includes a penalty for noncompliance, "[t]he word 'must' is given a mandatory meaning."  Wilkins,
47 S.W.3d at 493.  However, the absence of a penalty in the statute for failing to comply with a
statutory requirement does not automatically compel a conclusion that a statute stating that an
act "must" be accomplished is not mandatory.  See Edwards Aquifer Auth. v. Chemical Lime, Ltd.,
291 S.W.3d 392, 404 (Tex. 2009).  Instead, "'[w]hen the statute is silent'" regarding the penalty for
noncompliance, courts look to the statute's "'purpose for guidance.'"  Id. (quoting Hines v. Hash,
843 S.W.2d 464, 468 (Tex. 1992)); see Chisholm, 287 S.W.2d at 945 (stating that when determining
whether provision is mandatory or directory, courts should consider "the entire act, its nature and
object," and consequences of alternative constructions); Vista Cmty. Med. Ctr., L.L.P., 275 S.W.3d
at 552 (same).
	With the preceding in mind, we turn to the arguments made by TJFA.  TJFA asserts
that the 30-day deadline is directory for five reasons.  First, TJFA contends that the provision
is directory because "it does not bear upon the substance of the judicial review appeal at all"
and instead "serves only to ensure that the [Commission] receives prompt notice that the case has
been initiated."  Second, TFJA argues that the deadline is designed to guarantee "that the case is
diligently prosecuted" and, therefore, simply relates to "the proper, orderly and prompt conduct of
business."  See Chisholm, 287 S.W.2d at 945.  Third, TJFA notes that the statutory provision has no
explicit penalty for failing to comply with the deadline and does not expressly prohibit service of
citation after the deadline, see Bruton, 256 S.W.3d at 349 (noting that statute requiring notice after
suit was filed contained provision authorizing dismissal of appeal if notice was not timely made and
if party files motion to dismiss), and argues that if the legislature had intended the service deadline
to be a mandatory requirement, it could have specified that failing to comply will result in dismissal
as it has in other statutory provisions, see, e.g., Tex. Loc. Gov't Code Ann. § 89.0041 (West 2008).
Fourth, TJFA argues that "the lack of service within 30 days did not prejudice" the rights of the
Commission because it received actual notice of the lawsuit on the day that it was filed and because
service of citation was accomplished within a few days of the deadline. (4)  In its final argument, TJFA
insists that a conclusion that the 30-day deadline is mandatory would actually frustrate the purpose of
the statute because the statutory provision "exists to allow judicial review appeals of administrative
agency determinations."
	For the reasons that follow, we disagree with TJFA.  Although this is not dispositive,
we note that the language of the statute at issue is written with mandatory language.  In particular,
the statute specifies that service of citation "must be accomplished not less than the 30th day after
the date on which the petition is filed."  Tex. Health & Safety Code Ann. § 361.321(c).  Moreover,
unlike other statutes in which the legislature has specified a deadline for filing a petition but chosen
not to specify a service deadline, see, e.g., Tex. Loc. Gov't Code Ann. § 143.015(a) (West 2008)
(specifying deadline for filing suit but providing no deadline for service), the legislature's decision
to provide an explicit deadline must be afforded some significance, see Tex. Health & Safety Code
Ann. § 361.321(c).  When the legislature has not provided specific deadlines for service, courts have
determined whether service of citation was properly performed in cases in which service was
executed after the deadline for filing suit by considering whether the person filing suit exercised due
diligence in executing service.  See Gutierrez, 182 S.W.3d at 432-33.  By providing an explicit
deadline, the legislature has indicated its intention to foreclose the possibility of excusing delays
between filing and executing service due to diligent efforts at service undertaken by plaintiffs. (5) 
	More importantly, the legislature chose to include the service-of-citation deadline in
the same provision explicitly requiring that a petition for judicial review of the Commission's
determination be filed within 30 days of the Commission's decision.  See id.  Given the fact that the
failure to timely file a petition for judicial review within 30 days of the Commission's decision
entirely deprives a trial court of jurisdiction to consider an appeal of the Commission's decision, see
Texas Comm'n on Envtl. Quality v. Kelsoe, 286 S.W.3d 91, 96-98 (Tex. App.--Austin 2009, pet.
denied), the legislature's decision to pair both filing deadlines in the same subsection is indicative
of the importance that the legislature placed on the service deadline.
	Although TJFA correctly points out that the health and safety code provision does
not specify any explicit penalty for failing to execute service within the 30-day deadline, the statute
does not seem to contemplate judicial review of suits that do not comply with the deadline.  See
Wilkins, 47 S.W.3d at 495 (concluding that statute requiring filing of sworn complaint within time
to allow for effective inspection was not mandatory because provision did not expressly require
dismissal for failure to comply but also because statute explicitly contemplated that delay in filing
may occur but case may proceed; in particular, statute said that Board may make findings regarding
delay in filing and that trial court may consider those findings).  The governing statute provides no
option for extending the deadline or for excusing a failure to comply with the deadline and
establishes no procedure for handling suits that do not comply with the deadline.  See Chemical Lime,
291 S.W.3d at 404.  The legislature's decision to not include a provision allowing a party to explain
why compliance with the deadline was not achieved is instructive.  This seems particularly true in
this case in light of the fact that in the very next provision, the legislature afforded parties the
ability to explain why their suit should not be dismissed for failure to pursue the claim "with
reasonable diligence."  See Tex. Health & Safety Code Ann. § 361.321(d) (West 2010) (stating that
if governmental entity files motion to dismiss for failure to prosecute claim within one year after
petition is filed, court will dismiss suit unless plaintiff "can show good and sufficient cause for
the delay").  In fact, the only consequence that can be gleaned from the statute is that a suit filed by
a party who did not comply with the deadline is subject to dismissal by a trial court.  See id. at 404
(explaining that although statute was silent regarding noncompliance with application deadline,
penalty contemplated by statute was that late applications will not be considered).
	Finally, although TJFA correctly points out that the statute is designed to allow for
judicial review of determinations made by the Commission, the legislature curtailed this limited
waiver of sovereign immunity by requiring that a suit for judicial review be filed within 30 days of
a decision by the Commission and that service be executed within 30 days of filing suit.  Cf. Texas
Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004)
(concluding that right to judicial review under administrative procedure act "provides a limited
waiver of sovereign immunity"); see also id. at 172 (noting that in absence of agency action
affecting vested property right or violating constitutional right, person may only seek judicial review
of agency decision if statute provides right to judicial review).  By coupling the right to judicial
review with a requirement that suits be filed and that service be executed within short deadlines, the
legislature has demonstrated its intent to promote the quick resolution of appeals of decisions by the
Commission and to promote the finality of the Commission's actions.  In light of the preceding and
in light of the fact that courts are required to narrowly construe statutory waivers of sovereign
immunity, see Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008), we
must reject TJFA's assertion that the service deadline was merely included to promote "the proper,
orderly and prompt conduct of business."  Cf. Chemical Lime, 291 S.W.3d at 403 (explaining that
enforcement of deadlines can sometimes lead to harsh results (quoting United States v. Locke,
471 U.S. 84, 100-01 (1985))). (6)
	For all the reasons previously given, we conclude that the district court properly
determined that the 30-day deadline for executing service of process was a mandatory statutory
requirement.  Accordingly, we must conclude that the district court did not err by dismissing TJFA's
suit for failing to comply with a mandatory statutory requirement and overrule TJFA's second issue
on appeal. (7)
Transcript Fees
	In its final issue on appeal, TJFA challenges the portion of the district court's
judgment granting BFI's counterclaim against TJFA.  As mentioned above, the Commission ordered
TJFA and BFI to each pay one-half of the costs for the administrative transcript, but TJFA did not
cover its portion of the transcript costs ($6,564.42).  Accordingly, BFI paid all of the transcript fees.
During the appeal of the Commission's decision, BFI sought reimbursement for half of the transcript
fees, and the district court ordered TJFA to pay the amount ordered by the Commission.
	In challenging this portion of the district court's judgment, TFJA does not challenge
the propriety of the Commission's decision to require it to pay part of the transcript costs or the
amount of the costs.  Instead, TJFA argues that because the district court erred by dismissing the
suit, "the granting of BFI's counterclaim must be reversed and the matter remanded . . . to be
considered on the merits."  In fact, although TJFA couches its concession in terms of its jurisdictional
assertions summarized in the first issue, TJFA admits that if its appeal of the dismissal is
unsuccessful, "BFI's indemnity claim would by necessity be granted."
	As discussed previously, we conclude that the district court did not err by dismissing
the suit.  In light of our determination, we overrule TJFA's final issue as presented on appeal and
express no further comment regarding the propriety of the district court's decision enforcing the
portion of the Commission's order that required TJFA to pay half of the transcript fees.

CONCLUSION
	We conclude that the 30-day deadline for executing service of citation under
section 361.321 of the health and safety code is not a jurisdictional prerequisite to suit but is
a mandatory statutory requirement.  In addition, we overrule TJFA's third issue regarding the
transcript fees. We therefore modify the district court's judgment accordingly and affirm the
district court's judgment of dismissal.

					__________________________________________
					David Puryear,  Justice
Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose and Goodwin;
  Concurring and Dissenting Opinion by Justice Henson;
  Concurring Opinion by Justice Rose

Modified and, as Modified, Affirmed

Filed:   May 4, 2012
1.  It is worth noting that this Court previously determined that the service-of-citation
requirement in subsection 361.321(c) of the health and safety code was not a jurisdictional
requirement.  See Sierra Club v. Texas Natural Res. Conservation Comm'n, 26 S.W.3d 684, 688
(Tex. App.--Austin 2000), aff'd on other grounds, 70 S.W.3d 809 (Tex. 2002).  In its brief, the
Commission asserts that we should disregard our prior conclusion because that case was decided
before the legislature enacted a provision stating that statutory prerequisites to suit were
jurisdictional.  See Tex. Gov't Code Ann. § 311.034(c) (West Supp. 2011).  In addition, the
Commission points to various portions of the supreme court's opinion affirming our judgment in
which the court stated that subsection 361.321(c) "requires 'service of citation' when review
is sought in district court," Texas Natural Res. Comm'n v. Sierra Club, 70 S.W.3d 809, 813-14
(Tex. 2002) ("Sierra Club II"), and in which it characterized the filing and citation requirements in
subsection 361.321(c) as "judicial-review prerequisites," id. at 812.  Moreover, when summarizing
our opinion, the supreme court stated that this Court concluded that the failure to meet the service-of-citation "statutory prerequisites is not a defect that affects the court's subject-matter jurisdiction."
Id. at 811.  In addition to highlighting the supreme court's language describing the requirements in
subsection 361.321(c), the Commission also asserts that the legislature was aware of the supreme
court's characterization of the requirements in subsection 361.321(c) and then chose to enact a
statute that made all "statutory prerequisites" jurisdictional in nature.  Accordingly, the Commission
contends that the legal landscape underpinning our conclusion in Sierra Club has been altered
enough to render that holding inapposite to the current case.

	Although section 311.034 of the government code provision was not in effect at the time we
made our decision in Sierra Club, we believe our conclusion in that case warrants mentioning in the
current case.  Moreover, although the supreme court may have characterized the service-of-citation
requirements as prerequisites, the supreme court made no determination regarding whether
those requirements were jurisdictional in nature.  Instead, the supreme court concluded that the
requirements were met in Sierra Club II and, therefore, "did not reach the jurisdictional
issue addressed by" this Court.  Id. at 814-15.  Accordingly, the supreme court made no binding
determination regarding whether the failure to comply with the service-of-citation requirements in
subsection 361.321(c) deprives a trial court of jurisdiction, and its description of the requirements
in subsection 361.321(c) is dicta.  See Traveler's Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852
n.3 (Tex. 1995) (explaining that dicta does not create binding precedent).
2.   As support for the district court's jurisdictional determination, the Commission refers to
a prior opinion by this Court.  See Pacific Employers Ins. Co. v. Twelve Oaks Med. Ctr., No. 03-08-00059-CV, 2010 Tex. App. LEXIS 2771 (Tex. App.--Austin Apr. 16, 2010, no pet.) (mem. op.).
In that case, this Court determined that the trial court erred by failing to grant Pacific Employers
Insurance Company's plea to the jurisdiction, which asserted that Twelve Oaks Medical Center
failed to exercise due diligence in executing service.  Id. at *3.  To the extent that Pacific Employers
suggests that service of citation is a jurisdictional requirement to suit, we reject that determination. 
3.   In its brief, TJFA initially suggested that the district court only ruled on the plea to the
jurisdiction and did not rule on the motion to dismiss.  Accordingly, TJFA asserted that this Court
should remand the case to the district court for a hearing on the motion to dismiss if we determine
that the district court erred by concluding that compliance with the 30-day deadline was a
jurisdictional requirement.  However, as discussed above, the district court also determined that
there was a nonjurisdictional basis requiring dismissal of TJFA's suit.  In particular, the court found
that compliance with the 30-day deadline was mandatory.  In light of this alternative determination,
TJFA later agreed during oral argument that this Court may and, in fact, should, in the interests of
judicial economy, consider whether dismissal was proper under the alternative basis.
4.   In its judgment, the district court found that the Commission was not prejudiced by the
delay in service.
5.  In its second issue, TJFA also argues that even if the statutory deadline at issue is
mandatory, it still complied with the purpose of the statutory provision, which TJFA argues is to
ensure the prompt provision of notice to the Commission in order to allow for diligent prosecution
of the case.  Moreover, TJFA asserts that unlike filing and limitations deadlines, which TJFA
concedes must "practically by necessity" be construed strictly, compliance with service is measured
by whether the plaintiff acted with due diligence in executing service and whether the defendant was
prejudiced by any delay in service.  Although TJFA acknowledges that it did not execute service of
citation until after the 30-day deadline, it argues that its failure to comply should be excused because
it acted with due diligence in its attempts to serve the Commission.  Specifically, TJFA asserts that
it provided the Commission with a copy of its petition on the day that it filed the petition with the
district court.  Moreover, it argues that the reason service of citation was not provided earlier was
due to its mistaken belief that electronically filing a petition with the district court also effected
service of citation and that once it discovered its mistake, it promptly executed service of citation.
Accordingly, TJFA urges that the date service was executed should relate back to the date of filing.
See Police Civ. Serv. Comm'n v. Gutierrez, 182 S.W.3d 430, 432-33 (Tex. App.--Austin 2005, no
pet.).

	We note that courts consider diligent efforts when determining if a suit may be pursued even
though the defendant was not served until after the deadline for filing suit and that courts will excuse
a failure to serve before the passage of the deadline if the plaintiff is actively trying to serve the
defendant but is having difficulty locating the defendant.  Unlike what may occur in suits against
non-governmental defendants, plaintiffs should have little difficulty locating and serving the
Commission.  Accordingly, it is not entirely clear that due diligence considerations should apply here.
Regardless, as discussed above, we believe that the legislature's decision to provide an explicit
deadline by which service of citation must be executed foreclosed due-diligence considerations and
instead imposed an absolute deadline that a party must comply with in order to maintain his suit.
Moreover, although TJFA sent a copy of its petition to the Commission and thereby gave the
Commission notice of the suit, providing notice is not the same as executing service of citation.  See
Sierra Club II, 70 S.W.3d at 813.  Executing service of citation is more formal than merely providing
notice, see Tex. R. Civ. P. 99-119 (specifying requirements for service); see also id. R. 21a (stating
that every notice required by rules of civil procedure "other than the citation . . . may be served by
delivering a copy to the party to be served"), and is the process by which a party is informed that he
has been sued and that he is required to make an appearance "and answer the opposing party's
claims," Sierra Club II, 70 S.W.3d at 813.  Accordingly, we do not believe that TJFA's actions
could be deemed as complying with the purpose of the statute.
6.   TJFA argues that the deadline set by the legislature will not be unduly undermined by a
determination that the statutory deadline is directory and not mandatory because a plaintiff's failure
to comply would only be excused if he demonstrated that he exercised due diligence in attempting
to execute service.  However, it is not entirely clear to this Court that a determination that the
deadline is directory would actually impose the limitation suggested by TJFA.  In other words, a
conclusion that the deadline is not mandatory might allow the service requirement to be deemed as
fulfilled even if service was executed well after the petition was filed and regardless of whether the
plaintiff diligently attempted to comply.  In fact, the deadline might even be considered satisfied
provided that the Commission was given notice of the suit even though none of the service-of-citation requirements were ever met.  We do not believe that the legislature intended for section
361.321 to be read so broadly.
7.   In a letter brief, TJFA argues that a recent case issued by the supreme court compels a
determination that the deadline listed in subsection 361.321(c) is directory and not mandatory.  See
Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011).  In Roccaforte, the supreme court
determined that compliance with a statutory provision requiring notice after a suit was filed was not
a jurisdictional prerequisite to suit.  Id. at 925-26.  However, the supreme court also determined that
the suit was improperly dismissed even though the plaintiff failed to provide notice within the
deadline specified by the governing statute.  Id. at 926-27.  Essentially, the supreme court determined
that the purpose of the notice provision was satisfied even though the notice was not mailed in
accordance with the statutory provision because notice was actually given within the statutory
deadline.  Id. at 926.  In light of this case and in light of the fact that TJFA hand-delivered a copy
of its petition to the Commission, TJFA insists that it substantially complied with the service
provision and that the purpose of the provision was satisfied.

	We believe that TJFA's reliance on Roccaforte is misplaced.  That case involved a statute
requiring that notice be given, but the statute at issue in this case relates to execution of service.  As
discussed earlier, providing notice is not equivalent to executing service, and the requirements for
executing service are more formal than merely providing notice.  See Sierra Club II, 70 S.W.3d at
813; cf. In the Interest of J.T.O., No. 04-07-00241-CV, 2008 Tex. App. LEXIS 303, at *2 (Tex.
App.--San Antonio Jan. 16, 2008, no pet.) (mem. op.) (explaining that rules relating to service
of citation are mandatory and that failure to comply with rules renders service ineffective).
Accordingly, actions that might be deemed substantially compliant with a notice provision will not
necessarily be sufficient to comply with the requirements of a provision governing service of citation.
